Justice for Whom?: The Dangers of the Growing Victims’ Rights Movement

Larry Nassar, a former doctor for the US Gymnastics team and the University of Michigan, was convicted in 2017 on multiple charges of criminal sexual conduct and child pornography. He was sentenced to 60 years in federal prison and additional time in state prison. At his state sentencing hearing, over 150 victims gave victim impact statements that were broadcast live. The statements recounted the lives of those who had been hurt and left jurors, audience members, and the judge in tears. In cases that highlight deep social issues—particularly surrounding sexual violence—victims should have a voice, but the victims’ rights movement incorrectly identifies criminal legal proceedings as the appropriate forum and sets dangerous precedent by doing so.

The modern victims’ rights movement has been building steam over the past several decades. It self-identifies its beginnings around the 1960s when the Warren Court endowed criminal defendants with a more robust set of rights. At that time, it was mostly “tough on crime” proponents who were prickled by this trend that seemed to them a perversion of justice. They felt that while criminal defendants were granted a whole set of codified rights, victims, the ones who actually deserved sympathy, had no rights. Thus began a movement to correct this supposed imbalance, and they lobbied at the state and federal level for codifications of the rights of victims.

In the 1980s, the victims’ rights movement found a serendipitous partnership with liberal feminism. In this unlikely marriage of two rather separate interests, the victims’ rights movement gained momentum by focusing on the issue of sexual assault. Some feminists saw injustice in the due process revolution for sex crimes. Given the realities of low reporting, stigma for the victim, the difficulties of obtaining convictions, and biased juries, some believed that a thumb should be put on the scale in favor of conviction. Part of that strategy was to allow victims to participate in the proceedings. The criminal process perpetuates the sidelining of survivors and is specifically designed to deny them agency in the process. Even if a crime is reported, the prosecutor decides whether to bring a case at all, how to try the case, and what sentence to demand.

In 1991, the Supreme Court held in Payne v. Tennessee, notably a death penalty case, that victim impact statements given during the sentencing phase are constitutional and not in violation of the Eighth Amendment ban on cruel and unusual punishment. Overturning the precedent set by Booth v. Maryland and South Carolina v. Gathers, the majority found that the statements were pertinent at the sentencing phase for assessing harm and determining the appropriate punishment. Portentously, Justice Thurgood Marshall began his dissenting opinion in Payne by warning that “Power, not reason, is the new currency of this Court’s decisionmaking.” Nevertheless, with the majority opinion as a foothold, Congress passed the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771, in 2004. The Act establishes a set of rights that victims have, including the right to be notified of court dates, the right to be treated with fairness and respect, and, importantly, “the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”

So far, the Crime Victims’ Rights Act only grants an affirmative right to be heard during the sentencing phase, not the guilt phase. But states have taken initiative to expand these rights. In November this year, 6 states passed some version of Marsy’s Law, joining the 6 states that already have the statute. Marsy’s Law is one particularly expansive incarnation of the legislation that the victims’ rights movement proposes. Some versions of the law include the right for victims to refuse interviews, to withhold evidence, and also grant family members legal standing in bail hearings, pleas, sentencing, and parole hearings.

The rise of the victims’ rights movement is worrisome in part because it is fueled by political incentive and pandering. Especially in the wake of the #MeToo movement, standing up for criminal defendants is not politically savvy. The only backstop protecting criminal defendants is the strength of the legal system’s commitment to due process, and this commitment itself has been the cause of heated debate in the context of sexual assault and Title IX. The courts generally act as a steadying hand on political tides, but the courtroom is a theater in many ways, and judges are human, too. They have biases and sympathies, and without clearly defined limits regarding victim participation, they may also be swept up in the emotional fervor.

Even though it may sound cold, the criminal legal system is not designed to leave room for victim participation. And there is a rationale for this structure. Crimes are prosecuted by the state because the goals of the penal system (namely incapacitation, retribution, and rehabilitation) are not coextensive with the goals of private prosecutors. This rationale was articulated in Linda R.S. v. Richard D. (1973) and has been a cornerstone principle ever since. In Linda R.S., Justice Marshall wrote, “[i]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” The rights developed over time for criminal defendants are protections against the awesome power of the state. Therefore, the equivalence between defendants’ rights and victims’ rights is a dangerous rewriting of the legal system. It sets up a false dichotomy that threatens to undermine the defenses a defendant has in the face of state power.

This formalistic, structural argument for diminished roles of victims is compelling because of the severe consequences that criminal defendants face. However, in the context of sexual assault, the correct answer becomes more elusive. Here, reality reveals a legal system that has entrenched biases against victims. With growing awareness about the stigma and bias heaped upon victims of sexual assault, it is deeply unsatisfying to allow the system keep running as it does. The victims’ rights movement rejects the cold rules of the legal system and implores legislators to recognize and address the reality of what victims need.

One argument on this front is the difficulty of obtaining convictions in sexual assault prosecutions. There is growing public awareness that sex crimes are underreported, and when they are reported, they are under-prosecuted, not convicted, or under-sentenced for a variety of reasons. The victims’ rights movement would tip the scales towards conviction and harsher sentences, in order to correct the seemingly unfair status quo. By allowing victims to voice their perspective and participate more fully in the process, juries and judges may feel compelled to be harsher towards defendants, thus compensating for implicit biases that would otherwise compel them to be too lenient.

This solution loses much of its appeal when demographics are examined. Increased victim participation tends to play in juror biases in its own way. Victims who are affluent, well-educated, and white tend to elicit greater sympathy from jurors, and also tend to have the resources to know their rights and participate in the first place. Should victims’ rights be expanded, black defendants and poorer women of color will doubly suffer in a system that already discriminates against them.

Another motivation is the victim’s cathartic experience when given the opportunity to confront the accused. The resolution in the courtroom may be therapeutic and also empowering. But this actually presents a strong argument for developing alternatives to the criminal legal system, rather than expanding victims’ rights. The courtroom and the criminal system are not designed to be productive spaces for restoration, and the project of healing should not be undertaken at the defendant’s expense.

Restorative or transformative models of justice are being developed exactly because there is a need for a more positive process than the criminal justice system. And these models are being developed as alternatives to the courtroom because the courtroom precludes the emotional catharsis or reconciliation that parties crave. Victims’ rights should not be expanded within the courtroom. Instead, energy should be redirected to developing more appropriate forums for victim and survivor participation, forums that do not rely on the coercion of the state and the threat of incarceration to achieve restorative outcomes. Otherwise, the victims’ rights movement will threaten the court’s commitment to the core principle of innocent until proven guilty.

Written by

Mingming Feng is a 2L at Harvard Law School. She is interested in systemic justice, criminal justice, and community lawyering, and spent her 1L summer at the Federal Public Defender in Los Angeles.

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