V. US Adherence to International Standards on the Rights and Interests of Crime VictimsDefinition of a Crime VictimUnder the Basic Principles for Victims, victims of crime are defined as:
The term victim includes where appropriate, the immediate family or dependants of the direct victim.42 By contrast, under most US state laws, family members are afforded victim status only if the direct victim of the crime is a minor, incapacitated, or deceased.43 In addition, in practice some state laws may fail to be as inclusive as the Basic Principles for Victims definition because the designation of victim status is left up to individual prosecutors or police officers, or the status is only recognized once a suspect is arrested and charged. For example, Delawares statutory definition of a victim is the person or entity identified as the victim of a crime in a police report (emphasis added).44 In Utah, the victim is any natural person against whom the charged crime or conduct is alleged to have been perpetrated or attempted by the defendant or minor .45 In some states, there are more restrictive definitions when the crime has allegedly been perpetrated by a person below the age of 18. For example, in Oregon, victim means any person determined by the district attorney or juvenile department to have suffered direct financial, psychological or physical harm as a result of an act that has brought the youth or youth offender before the juvenile court.46 Even in states without these restrictive definitions, victims who disagree with the prosecutions decision to seek the most severe punishment availableoften the death penaltyhave sometimes not been communicated with or afforded basic information about the progress of the investigation or prosecution of their cases. One advocate said:
Also contrary to the Basic Principles for Victims, in certain states incarcerated individuals, persons accused of crimes, and some police officers have been denied victim status or the ability to enjoy all the same rights afforded to other types of victims.48 The federal Victims of Crime Act restricts the use of funds under the act to prohibit offering rehabilitative or support services to incarcerated individuals, even when the service pertains to the victimization of that individual.49 In addition, some states accord rights to victims of only certain categories of crime.50 According to the Basic Principles for Victims, a person may be considered a victim irrespective of whether the perpetrator is identified. While this is technically also true in the United States, as discussed below, some victims rights advocates raise concerns that the systems in place to support victims become effective only after a suspect is identified.51 Also under international standards, victim status should be determined regardless of the familial relationship between the perpetrator and the victim.52 The United States tends to adhere to this standard; however, some victims rights advocates explain that systems set up to assist victims can break down when the victim and offender have family relationships. Victims assistance programs can sometimes
A sub-component of this definitional problem arises in the context of crime victims who are children. For example, definitions of crime victims under state and federal law have failed to adequately address the problems arising from child abuse. One victims rights advocate explained:
Finally, victim status can be temporal and blurred. For example, sometimes individuals who perpetrate crimes against others were themselves once victims of crime. Spouses who are victims of domestic violence and then commit crimes against their abusers, or children who are abused by parents and then commit violent crimes against them,55 are just two examples. An individuals prior victimization never justifies subsequent criminal acts, but it is important to note the complexities of victim status. Similarly, definitional problems arise when persons who are engaging in criminal acts are simultaneously victims of crime; examples include a teenage girl who is drinking but is also a victim of sexual assault, or a prostitute who is violently sexually assaulted and beaten.56 Access to Prompt RedressAccording to the Basic Principles for Victims, victims are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation.57 The purpose of redress is for the state and the offender to offset some of the harm done to the victim (to make the victim as whole as possible) and to provide a socially constructive way for the offender to be held accountable, while offering the greatest possible scope for rehabilitation.58 It includes redress provided by the offender to the victim (commonly referred to as restitution); but it also embraces compensation by the state, including in cases in which an alleged offender is never identified or prosecuted. Many courts worldwide order restitution as a part of sentencing.59 It means payment by an offender to the victim for out-of-pocket losses caused by the offenders wrongful acts.60 Since international standards on victims of crime embrace restorative justice principles, restitution may also include some of the activities an offender may engage in during alternative or restorative justice processes, such as admission of responsibility and apology to the victim.61 Compensation refers to payments or assistance offered by the state according to state law in addition to or in lieu of restitution paid by the offender.62 Victims often need to follow specific steps required by law in order to obtain compensation, such as filing their claims within a set time frame. In cases in which an offender is not convicted or cannot pay restitution, the state can fill the gap by paying compensation to the victim.63 Compensation can include access to social, health, or other public insurance systems. As with restitution, because international standards embrace restorative or alternative justice processes, compensation may involve providing state funding for public art installations, victim impact panels presented to the community, or other forms of commemoration of victims experiences.64 The redress provisions of the Basic Principles for Victims make clear that victims are entitled to claim some form of restitution and compensation for the harm they have suffered. However, that does not necessarily mean that they are entitled to see an offender tried by a court. National authorities, such as criminal prosecutors, may decide not to prosecute a particular crime without infringing on a victims entitlement to redress, as long as that decision is not made in a discriminatory manner.65 In the United States, as well as elsewhere in the world, this reality can cause conflicts between victims and prosecutors. As one prosecutor told Human Rights Watch:
One victims rights advocate explained her views on the role of victims in prosecutorial decision-making:
However, according to international standards, in specific instances redress may embrace more than simple restitution and compensation. For certain crimes, a judicial remedy may be necessary. The Human Rights Committee, which supervises compliance with the ICCPR, to which the US is bound, has recognized that purely disciplinary and administrative remedies cannot be deemed to constitute effective remedies when a victim has suffered a particularly serious violation[] of human rights, notably in the event of an alleged violation of the right to life.68 The Basic Principles for Victims also emphasize the importance of informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice.69 In addition, Article 2 of the ICCPR provides that the rights recognized by the treaty must be respected without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Therefore, if victims of a particular race or gender are provided access to state compensation programs but others are not, that would violate the treatys prohibition on discrimination. In fact, if any of the standards on victims rights and interests discussed in this report are not observed on an equal basis, Article 2 would be implicated. In addition, Article 2 provides that persons who suffer violation of their rights under the ICCPR are entitled to an effective remedy, and that any person:
Access to InformationDuring criminal proceedings or trials, human rights standards recognize that victims may prefer to be centrally involved (to the extent that this does not prejudice the rights of the accused) or to remain as anonymous and uninvolved as possible. The Basic Principles for Victims establish that victims should have a choice about their access to information and participation, stating that victims should be:
There is consensus in international standards and domestic law on the importance of providing victims with information about developments in the criminal case. This may be because victims themselves view access to information as one of the most powerful needs they have:
In accordance with the Basic Principles for Victims, the vast majority of jurisdictions in the United States give victims notice of court proceedings, sentencing hearings, final dispositions, and pardon or parole hearings. Fewer provide notice of arraignments, plea negotiations, schedule changes, or post-conviction proceedings or appeals.73 Some advocates are concerned about the lack of information provided to victims about these latter stages in the criminal process:
Although most laws in the US make notice mandatory, the Basic Principles for Victims make clear that victims should not be informed of developments in a case if they do not want that information. Some victims rights advocates strongly believe that mandatory notice should remain the practice in the US, irrespective of what the Basic Principles for Victims state.75 Other victims rights advocates told Human Rights Watch that they understand why victims must specifically request information and updates:
Yet victims rights advocates emphasize that in giving victims choice over access to information, they should all be informed of their right to ask for information, and unfortunately this does not consistently happen in the United States. One advocate said:
As noted above, all states in the US keep victims informed of various stages in the criminal proceedings, but there is less clarity about giving victims an opportunity to opt out of information. However, as one prosecutors office in San Francisco explained, as a practical matter, a [prosecutor] wouldnt force that information on a victim if it wasnt wanted.78 Another victims rights advocate explained to a Human Rights Watch researcher that in some states, the decision must be made early in the process, which is often the moment when victims are most acutely suffering from trauma:
Despite these failings, in other ways the United States has gone far beyond international standards in giving victims information about offenders. In many jurisdictions victims are informed about parole hearings and when an offender is released from prison. Many victims in the United States receive information through a computer system called Victims Information and Notification Everyday (VINE). Thirty-one states and one or more large counties in an additional 12 states plus the District of Columbia use VINE to provide crime victims and the general public with information about an offenders location through a toll-free number or a website.80 Through VINE:
Some victims rights advocates explain that resource constraints prevent some jurisdictions from providing this kind of information to victims. In addition, problems remain even in jurisdictions that have implemented VINE. For example, victims of crimes that pre-date the institution of the computer system are not able to be retroactively included. Therefore, if a parole hearing comes up 20 years after the crime, but the offense occurred prior to VINE, victims may not receive information about the hearing. Ability to ParticipateThe Basic Principles for Victims require that victims should be able to present their views and concerns at appropriate stages of the criminal proceedings without prejudice to the accused.82 The precise timetables and procedures under which this occurs are up to each jurisdiction. These issues are controversial because of concerns that victim participation can result in inequality of treatment and punishment among criminal offenders since if victims are allowed to present claims or to address the court, it is asserted that only some victims would do so and that the defendants in these cases may be subjected to harsher punishment.83 Others have argued that opportunities for victim participation should occur in each and every stage in the processcharging decisions, bail, plea bargaining, trial, sentencing, appeal, parole, and probation.84 Still others emphasize that victims should be notified of and participate in legislation that might retroactively change the outcomes in their cases,85 although there is no such requirement under applicable international human rights laws. In the United States, most states provide for victims participation during sentencing, although Delaware only allows victims to present impact statements if they have cooperated with the court and with Investigative Services officers, Texas only allows statements to be made after the sentence is pronounced, and Virginia only allows for a victim to testify if the prosecutor agrees.86 The majority of states provide for victims participation at all critical or crucial states of proceedings; these states allow victims to confer with prosecutors, including during plea negotiations, and they allow victims to be present at parole hearings. Far fewer states allow victims to be present at any stage at which the defendant is allowed to appear; allow victims to sit at the prosecutors table; or allow victims to have an advocate or family member present with them.87 Even if they are not required to participate as a principal witness in criminal proceedings, there are many reasons why victims or their family members may seek to participate in criminal prosecutions. In some cases, it is simply to ensure that justice is done. In others, relatives of direct victims seek to demonstrate the love and respect they have for the individual who was injured or killed. In still other cases, victims may wish to ensure that others are not victimized by the same offender in the future. Or victims may seek to participate because they oppose the type of punishmentsuch as the death penaltythat the accused may face. This was the case for one family member of a person killed in the 1995 Oklahoma City bombing in the United States. In that case, the victims family member wanted to testify about her own opposition to the death penalty at the sentencing of convicted bomber Timothy McVeigh, but she was not allowed to do so.88 In a similar case in Arizona, Duane Lynn, whose wife had been murdered, wished to testify to the jury in order to express his preference for a life sentence (as opposed to the death penalty). The state prosecutor opposed the victims petition to the court to make such a statement. The Supreme Court of Arizona ruled in favor of the prosecution and against Mr. Lynns desire to participate. It held that the US Constitution only allowed for statements from victims relating to the harm they have suffered, and that
In other jurisdictions the practice is different. For example one prosecutor in California said, Victims have a right to speak at the sentencing. That is their right.90 Some authors have interpreted the provisions in the Basic Principles for Victims relating to participation to require states to provide legal counsel for victims, separate from the state prosecutor in the case. Italy and India appear to provide separate counsel for victims, although eligibility is based on a strict means test, which makes it relevant for only a minority of victims in practice.91 Many other jurisdictions, including the United States, do not consider it necessary for victims to receive legal assistance other than that provided by police and prosecutorial professionals. However, some victims advocates in the United States commend states that have put in place an independent victims rights ombudsman (a public official with power to assist victims who are seeking rights protection) who is separate from the prosecutor or defense attorneys in the case. In addition, some states in the United States are experimenting with defense attorneys playing a role with victims of crime, as a means of reducing the adversarial nature (which is perceived by some as harmful) of the criminal justice system.92 Participation through the Presentation of EvidenceWhile victims may have different levels of interest and capacity to participate in criminal trials, one area in which they have less autonomy is in the presentation of evidence. For many crime victims, presentation of evidence of the harm they have suffered, including any forensic evidence relating to the identity of the offender, is an important part of their participation in criminal proceedings. Of course, analysis and presentation of this evidence (for example forensic evidence relating to the identity of a perpetrator of a rape, discussed below), can be equally important to protect the rights of the accused. Some victims may prefer not to give testimony or other evidence, but this preference is not protected under human rights standards or US law. In fact, under international standards, the accused has a right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as the witnesses against him.93 The Sixth Amendment to the US Constitution similarly provides that the accused must be confronted with the witnesses against him; [and] have compulsory process for obtaining witnesses in his favor . One prosecutor described the balance her office tries to strike when dealing with a victim who does not want to participate:
While no states have granted victims a right to refuse to give evidence to the prosecution, nine states (Alabama, Alaska, Arizona, Idaho, Louisiana, Oregon, Pennsylvania, Tennessee, and Wyoming) have granted victims a right to refuse an interview with the defense. Out of sensitivity to victims concerns over safety and privacy, several jurisdictions [outside the United States] allow the taking of evidence with video or closed-circuit television;95 yet these forms of testimony are not generally accepted in the United States as they are perceived as prejudicing the constitutional rights of the accused to confront the witnesses against him or her. While some victims may be reluctant to present evidence, many others see this as a very important part of their participation in criminal proceedings. With advances in forensic technology, evidence from crime scenes has become an increasingly reliable way for investigators to identify potential suspects and exclude others. In particular, DNA testing of biological evidence (for example, blood, semen, skin cells) is one of the most accurate ways to both eliminate suspects and identify perpetrators.96 Unfortunately, states failures to preserve or process evidence have frustrated law enforcements ability to hold offenders accountable. One issue at the heart of the problem is that state crime lab personnel have sometimes destroyed crime scene evidence before testing it. In July of 2007, the Denver Post conducted an investigation of evidence purges in 10 states.97 The Post discovered that law enforcement authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade.98 For example, in 2002, the Los Angeles police and sheriff departments threw away at least 3,000 rape kits to clear space in a crowded evidence locker.99 The destruction of untested rape kits is an illustrative and important example of how flawed evidentiary policies can thwart justice for victims of sexual violence,100 and violates international standards. The destruction of such rape kit evidence in particular contravenes the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, which urges in Article 3 that state police forces develop investigative techniques that do not degrade women subjected to violence while maintaining standards for the collection of the best evidence (emphasis added).101 In the United States there are no national, uniform regulations that mandate how police agencies preserve evidence, which leaves agencies with broad discretion. Twenty-two states have statutes that compel police agencies to preserve evidence.102 However, flaws in some state preservation statutes result in the continued destruction of evidence. For example, in most states, there are no penalties for those responsible for destroying evidence, a consequence that might deter improper evidence disposal.103 Provision of Restitution and CompensationThe Basic Principles for Victims make clear that victims of crime should receive restitution and compensation. According to the Basic Principles for Victims, restitution should include the return of property or payment for the harm or loss suffered, [and] reimbursement of expenses incurred as a result of the victimization.104 When offenders cannot provide restitution, under international standards, states should endeavor to provide compensation, especially to victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes and to their families, especially dependents of persons who have died.105 In the United States, offenders are typically ordered by the court to pay restitution to their victims. Many offenders do not have the funds to pay these costs upon conviction and if they are incarcerated, it may be nearly impossible for the garnishing of wages paid in prison (an average of $0.56 per hour for state prisoners in 1991)106 to reach the amount of the restitution ordered by the court. As one prosecutor noted, sometimes, if the offender receives a very long sentence, victims can receive full restitution through prison wages.107 All but two statesNew Hampshire and North Dakotaallow victims to enforce restitution orders through a civil judgment.108 State systems of crime victim compensation in the United States are intended to supplement or act in lieu of restitution that cannot or will not be provided directly by offenders. In most states, this is organized through state compensation funds. As of 2004, all 50 states and the District of Columbia compensated victims for medical expenses, mental health costs (except Utah), lost wages, and funerals. A majority of states compensated victims for travel expenses and for attorney fees and rehabilitation costs, while only a minority of states covered moving costs and crime scene clean-up in victims homes or other property. Maximum award limits ranged between $4,000 and $150,000, with $26,000 as the mean limit on compensation to victims among the 50 states and the District of Columbia.109 Some victims rights advocates told Human Rights Watch that they find these state systems sorely lacking: The kinds of compensation funds that exist in the states and at the national level are very minimal. They dont even cover the cost of the funeral. Getting compensation for time off work is almost impossible.110 Another advocate raised the problem of statutes of limitations: Most states have a statute of limitations of three years for access to the victims compensation fund. [Relatives of] victims of homicide may have ongoing mental health issues that dont present themselves until five years after the crime.111 Compensation problems are particularly acute in the area of health care, especially given that many US residents who are not victims of crime struggle to cover the expense of health care. One victims rights advocate explained, At its worst, victims say to themselves, why does the homicide perpetrator sit in prison and get health care, whereas victims do not?112 Another advocate gave the following example:
In some jurisdictions in the United States, victims services, which are most often provided through a team of victim advocates, do not commence until after a suspect is arrested or charged with the crime. A federal judge explained to Human Rights Watch, Most crime victims rights are triggered by the filing of a formal charging document; if that is never filed, victims are on their own.114 Another victims rights advocate said:
In contrast to the problems in Illinois identified above, in San Francisco, victims advocates get in touch with victims and provide compensation and assistance within 48 hours of the time the case is opened, and irrespective of whether a suspect is arrested or put on trial.116 Expeditious and Fair ProceduresAccording to the Basic Principles for Victims, victims should be able to obtain redress through procedures that are expeditious, fair, inexpensive and accessible.117 Expeditious criminal trials may at times be in the interests of victims (who may want a prompt resolution) as well as defendants (who, under Article 9 of the ICCPR, are entitled to trial within a reasonable time or to release). Nevertheless, defendants have pointed out that their rights to have adequate time and facilities for the preparation of [their] defence may militate against very rapid criminal procedures.118 Each victims experience is unique and reactions to the speed of trial differ. For example, one commentator, who is herself a victim of violent crime, writes:
One prosecutor explained that in her experience, she hears most from victims who are unhappy with delays in criminal trials: The victim will come to us and say I want closure, and now heres another continuance [delay in the case]? Cant you do something, prosecutor? And, often the prosecutor cant do anything and has to explain the process to the victim.120 In the United States, 25 states have enacted statutes recognizing a right of victims to a speedy trial.121 In Europe, the Court of Human Rights has condemned some governments for their failure to prosecute cases within a reasonable time.122 Apart from the speed of trial, international standards recognize that victims should be treated with compassion and respect for their dignity throughout criminal proceedings.123 Compassionate treatment may require assistance from mental health and other professionals. In addition, police, justice, health, social service and other personnel should receive training to sensitize them to the needs of victims.124 There are numerous international guidelines and codes of conduct that instruct public officials on achieving high standards of professional conduct when interacting with crime victims, including the following instruments developed by the United Nations: the Code of Conduct for Law Enforcement Officials;125 the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;126 and the International Code of Conduct for Public Officials.127 Jurisdictions in the United States each take their own approach to these issues, with varying results. In California, prosecutorial staff members receive training on the needs of victims, and victims services personnel work to get victims psychological assistance.128 The Basic Principles for Victims also require that governments take measures during criminal proceedings to:
The ICCPR similarly provides that:
Victims may have serious concerns about their safety and privacy. In accordance with international standards, criminal justice professionals should implement policies that protect victims from further harm, intimidation, or harassment. Harm, intimidation, or harassment can come from many sides, including from the accused and from individuals acting on behalf of the accused, and the dangers may be heightened when the accused is a family member of the victim.131 In the United States, most of these issues are governed by state and federal statutes. Of the 50 states and the District of Columbia, 37 protect victims right to keep home addresses and personal information confidential, and 39 protect victims right to protection from harm or threats of harm.132 However, there are limits to the protection victims receive when safety is not an issue. A prosecutor in California told Human Rights Watch:
Protection for other Rights of VictimsVictims of violent crime in the United States are disproportionately young, black, and poor. For example, in 2005, persons aged 16-24 were victims of violent crime at a rate that was 2.5 times that of persons aged 35-49. African Americans were crime victims at a rate that was 1.35 times that of whites; and persons in households earning less than $14,999 per year were victims at a rate that was 2.1 times higher than persons earning $75,000 or more.134 Therefore, victims rights are not only important on their own terms, but are worthy of special attention since marginalized portions of American society may have more difficulty enforcing these rights, or enjoying them on an equal basis with other segments of the population.135 As a starting point, the right to equal access to the mechanisms of justice for all victims must inform criminal procedures:
Non-discrimination is also an essential human right that must be part and parcel of the enjoyment and enforcement of crime victims rights. Female victims should have the same ability to participate in the justice system as males. And there should be no distinction between victims of different races, nationalities, or linguistic abilities. Citizenship status should not play a role in a victims ability to claim a remedy. Beyond accessing a remedy, there are other points in the proceedings at which additional important human rights concerns must be addressed. For example, child victims of crime should be subject to criminal procedures that are tailored to their best interests and that respect their rights to be informed, heard, and treated with dignity and compassion. Child victims of crime also have rights to be protected from discrimination and hardship during the justice process, and to have their rights to privacy, safety, and reparation respected.137 Despite these standards, and despite a detailed federal law on the need to provide special assistance, including the appointment of a guardian ad litem for child victims of crime,138 absolutely no money has been appropriated to actually hire and pay for the appointment of a guardian ad litem in federal courts for child victims.139 In addition, studies in the United States have shown that African-American victims are often denied equal rights to participate in criminal proceedings, even in the most serious cases.140 Recent moves by state and local officials to enforce federal immigration law appear to have suppressed immigrants willingness to come forward when they are victims of crime.141 Finally, one prosecutor gives the following perspective on possible discrimination against victims of different races, citizenship status, or economic backgrounds:
While several aspects of other human rights treaties such as the ICCPR and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) are relevant to the issue of non-discrimination, the Basic Principles for Victims provide a helpful summary:
41 Basic Principles for Victims, para. 1. 42 Ibid., paras. 2 and 3. 43 See for example, Alaska Statutes, sec. 12.55.185(19); Arizona Constitution, art. II, sec. 2.1(C); Colorado Revised Statutes, sec.. 18-1.3-602(4)(a)(V); Florida Constitution, Art. I, sec. 16; Georgia Code Annotated, sec. 17-17-3(11); Illinois Compiled Statutes 120/3 sec. 725 (a); Indiana Code, sec. 35-40-12-1; Maine Revised Statutes Annotated, title 17-A, sec. 1171; Michigan Compiled Laws, sec. 780.752, subsec. 2(1)(l) ; Mississippi Code Annotated, sec. 99-36-3; New Hampshire Revised Statutes Annotated, sec. 21-M:8-k; Ohio Revised Code Annotated, sec. 2930.02; South Dakota Codified Laws, sec. 23A-28C-4; Vermont Statutes Annotated, title 13, sec. 5301(4). There are also temporal limitations on the definitions in state laws that make some state definitions narrower than the Basic Principles for Victims. For example, Iowa allows family members victim status only if the victim was rendered incompetent as a result of the offense, which would not include family members of mentally disabled persons who were incompetent prior to the offense. Iowa Code, sec. 915.10(3). 44 Delaware Code, title 11, sec. 9410(5). Similarly, Ohio Revised Code Annotated, sec. 2930.01(H) defines victim as a person who is identified as the victim of a crime or specified delinquent act in a police report or in a complaint, indictment, or information that charges the commission of a crime and that provides the basis for the criminal prosecution or delinquency proceeding and subsequent proceedings. 45 Utah Code Annotated, sec. 77-38-2(9)(a). 46 Oregon Revised Statutes, sec. 419A.004(31). 47 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 48 Police officers harmed in the course of their duties are not considered victims under Ohios victims rights statute. In re Walling, 91 Ohio Misc. 2d 181, 698 N.E.2d 154, 1997 Ohio Misc. LEXIS 335 (Ct. Cl. 1997). In Arizona, the definition of victim excludes any person who is in custody for an offense or is the accused. Arizona Constitution art. 2, section 2.1(C). Incarcerated victims are not granted the right to be heard and must instead submit evidence in writing. Arizona Rules of Criminal Procedure 39 (2007). In Alabama, a person may be considered a victim except if the person is in custody for an offense or is the accused. Alabama Code, sec. 15-23-60(19). In Michigan, an individual who is incarcerated is not eligible to exercise the privileges and rights established for victims under this article except that he or she may submit a written statement to the court for consideration at sentencing. Michigan Compiled Laws, sec. 780.752, subsec. 2(1)(l). 49 US Department of Justice, Office of Justice Programs (OJP), Final Program Guidelines for Victims of Crime Act Victim Assistance Grant Program, October 1, 1996, http://www.ojp.usdoj.gov/ovc/welcovc/scad/guides/vaguide.htm (accessed August 27, 2008). 50 New Mexico Statutes Annotated, sec. 31-26-3(F) (Victim rights are provided to any victim against whom a specified criminal offense is committed. Victim also means a family member or a victims representative when the individual against whom a criminal offense was committed is a minor, is incompetent or a homicide victim. The specified criminal offenses for this purpose include: negligent arson resulting in death or bodily injury, aggravated arson, aggravated assault, aggravated battery, dangerous use of explosives, negligent use of a deadly weapon, murder, voluntary and involuntary manslaughter, kidnapping, criminal sexual penetration, criminal contact with a minor, armed robbery, homicide by a vehicle, great bodily injury by vehicle, abandonment or abuse of a child, stalking or aggravated stalking, aggravated assault against a household member, assault against a household member with intent to commit a violent felony, battery against a household member, or aggravated battery against a household member.) ; Louisiana Revised Statutes, sec. 46:1842(9) (Victim means a person against whom any of the following offenses have been committed: (a) any homicide, or any felony offense defined or enumerated in R.S. 14:2(B); (b) any sexual offense; (c) the offenses of vehicular negligent injuring and first degree vehicular negligent injuring; (d) Any offense against the person as defined in the Criminal Code committed against a family or household member as defined in R.S. 46:2132(4) or dating partner as defined in R.S. 46:2151(B).). 51 See Chapter V: US Adherence to International Standards on the Rights and Interests of Crime Victims, Provision of Restitution and Compensation. 52 Basic Principles for Victims, para. 2. 53 Murder Victims Families for Reconciliation, Dignity Denied: The Experience of Murder Victims Family Members Who Oppose the Death Penalty, August 2002, p. 13. 54 Human Rights Watch interview with Professor Doug Beloof, October 2, 2007. 55 Human Rights Watch, The Rest of Their Lives: Life without Parole for Child Offenders in the United States, October 2005, http://www.hrw.org/reports/2005/us1005/, p. 85. 56 Human Rights Watch interview with Professor Doug Beloof, October 2, 2007. 57 Basic Principles for Victims, para. 4. 58 Handbook for Victims, p. 47. 59 UN Economic and Social Council, Commission on Crime Prevention and Criminal Justice, Report of the Secretary General on Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, E/CN.15/1996/16/Add.3, April 10, 1996, http://www.uncjin.org/Documents/5comm/16e.htm (accessed August 26, 2008). Paragraph 8 of the Basic Principles for Victims states, Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependents. 60 Restitution can include payment of the following types of out-of-pocket losses directly relating to the crime: medical expenses, therapy or counseling costs, prescription charges, lost wages, expenses related to participation in criminal justice proceedings, lost or damaged property, insurance deductibles, or crime scene clean-up. 61 Handbook for Victims, p. 43. 62 Basic Principles for Victims, para. 12 (when restitution is not fully available from the offender or other sources, States should endeavor to provide financial compensation .). 63 See Chapter V: US Adherence to International Standards on the Rights and Interests of Crime Victims, Provision of Restitution and Compensation. 64 Handbook for Victims, p. 43. 65 With regard to gross violations of international human rights law and serious violations of international humanitarian law, there is a more rigorous definition of an effective remedy for victims. For these types of extremely serious violations, states have a duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible, and if found guilty, the duty to punish him or her. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc A/RES/60/147 (Dec. 16, 2005), sec. III, para. 4. 66 Human Rights Watch telephone interview with Maria Bee, chief of victim services and former assistant district attorney, San Francisco District Attorneys Office, San Francisco, California, September 14, 2007. 67 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 68 Bautista v. Colombia, communication No. 563/1993, para. 8.2, CCPR/C/55/D/563/1993 (1995). 69 Basic Principles for Victims, para. 7. 70 ICCPR, Article 2.3. 71 Basic Principles for Victims, paras. 6(a)-(c). These principles are echoed in some countries victims rights legislation. For example, the Northern Ireland Human Rights Commission has worked on similar principles as a part of its involvement in the proposed Bill of Rights for Northern Ireland. Northern Ireland Human Rights Commission, Human Rights and Victims of Violence, July 2, 2003. 72 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 73 National Conference of State Legislatures, Victims Rights Laws in the States, Table 4: Victim Notice of Rights of Events in Criminal Proceedings, 2004, http://www.ncsl.org/print/cj/guidetable04.pdf (accessed August 27, 2008). 74 Human Rights Watch interview with Hon. Paul Cassell, September 25, 2007. 75 Human Rights Watch interview with a victims rights advocate who chose to remain anonymous, Portland, Oregon, June 3, 2008. 76 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 77 Ibid. 78 Human Rights Watch interview with Maria Bee, September 14, 2007. 79 Human Rights Watch interview with Meg Garvin, October 2, 2007. 80 At the time of writing, there were 27 states providing statewide notification through VINE: Alaska, Arkansas, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, Washington, and Wyoming. Appriss, Inc., VINE: The National Victim Notification Network, http://www.appriss.com/VINE.html (accessed August 27, 2008). An additional four states were in the process of making VINE available statewide. Email communication to Human Rights Watch from Rick Jones, manager, Creative Services and Public Relations, Appriss, Inc., Louisville, Kentucky, November 8, 2007. 81 Appriss, Inc., VINE Fact Sheet, http://www.appriss.com/sitedocs/VINECutSheet.pdf (accessed August 27, 2008). 82 Basic Principles for Victims, para. 6. 83 Handbook for Victims, p. 36. 84 Human Rights Watch interviews with Hon. Paul Cassell, September 25, 2007, and Professor Doug Beloof, October 2, 2007; Douglas Beloof & Paul Cassell, The Crime Victims Right to Attend the Trial: The Reascendant National Consensus, Lewis and Clark Law Review, vol. 9 (2005), p. 481. 85 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 86 Delaware Code Annotated, Title 11, sec. 4331(g), Texas Code of Criminal Procedure Annotated article 42.03, Virginia Code Annotated, sec. 19.2-295.3. 87 National Conference of State Legislatures, Victims Rights Laws in the States, Table 5: Victim Participation, 2004, http://www.ncsl.org/print/cj/guidetable05.pdf (accessed August 27, 2008). 88 Marsha Knight, A Proposed Constitutional Amendment to Protect Victims of Crime, statement at hearings on S.J. Res. 6, 105th Congress (1997), pp. 70-71. 89 Lynn v. Reinstein, 68 P.3d 412, 417 (Arizona 2003). 90 Human Rights Watch interview with Maria Bee, September 14, 2007. 91 Jan Van Dijk, Victims Rights in International Criminal Law (referring to the experience in Italy); see also Handbook for Victims, p. 38 (referring to the experience in India). 92 Email communication from Jennifer Bishop Jenkins to Human Rights Watch, November 3, 2007. 93 ICCPR, Article 14.3(e). 94 Human Rights Watch interview with Maria Bee, September 14, 2007. 95 Handbook for Victims, p. 36. 96 Donald E. Riley, DNA Testing: An Introduction for Non-Scientists, Scientific Testimony: An Online Journal, April 6, 2005, http://www.scientific.org/tutorials/articles/riley/riley.html (accessed August 27, 2008). 97 Miles Moffeit and Susan Greene , Trashing the Truth (Evidence Project), Denver Post, July 21-24, 2007, http://www.denverpost.com/evidence, accessed August 18, 2008. 98 Miles Moffeit and Susan Greene, Room for Error in Evidence Vaults, Denver Post, July 23, 2007, http://www.denverpost.com/evidence/ci_6439646 (accessed August 27, 2008). 99 Ibid. 100Sexual violence is a significant problem in the United States. In 2005 there were 191,670 recorded victims age 12 and older of rape, attempted rape, or sexual assault. Shannan M. Catalano, Bureau of Justice Statistics (BJS),Criminal Victimization, 2005, September 2006, http://www.ojp.usdoj.gov/bjs/pub/pdf/cv05.pdf (accessed August 27, 2008). These statistics almost certainly underestimate the extent of the crimes, including rapes of male victims. Self-report victimization surveys have found that 23 percent of women were sexually abused before the age of 18. David Finkelhor, Sexually Abused Children in a National Survey of Parents: Methodological Issues, Child Abuse and Neglect: The International Journal, vol. 21 (1997), pp. 1-9. 101 UN General Assembly, Crime Prevention and Criminal Justice Measures to Eliminate Violence Against Women, General Assembly Resolution 52/86, annex, December 12, 1997. Although this General Assembly resolution is clearly directed at addressing the problems faced by female victims of sexual violence, it can be considered authoritative guidance to state law enforcement and medical professionals dealing with any victims of sexual violence, male or female. 102 The states are: Arkansas, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, Texas, Virginia, Washington, and Wisconsin. 103 The Innocence Project, Fact Sheet: Preservation of Evidence, http://www.innocenceproject.org/Content/253.php# (accessed August 18, 2008). 104 Basic Principles for Victims, paras. 8 and 12. 105 Ibid., para. 12(a) and (b). 106 Allen Beck, et al., BJS, Survey of State Prison Inmates, 1991, March 1993, fig. 61, p. 27, http://www.ojp.usdoj.gov/bjs/pub/pdf/sospi91.pdf (accessed August 27, 2008). 107 Human Rights Watch interview with Maria Bee, September 14, 2007. 108 The National Conference of State Legislatures reported in 2004 that Kansas, Maryland, Nevada, New Hampshire, North Dakota, Vermont, and Wyoming did not have statutory provisions enabling victims to enforce their restitution orders as civil judgments. National Conference of State Legislatures, Victims Rights Laws in the States, Table 9: Restitution, 2004, http://www.ncsl.org/print/cj/guidetable09.pdf (accessed August 27, 2008). Since that time, Kansas, Maryland, Nevada, Vermont, and Wyoming all provide for such enforcement in their laws. We found no provisions allowing for this in North Dakota law, and in New Hampshire, the law affirmatively prevents it. See New Hampshire Rev. Statutes Annotated, sec. 651:63. 109 National Conference of State Legislatures, Victims Rights Laws in the States, Table 8: Victim Compensation, 2004, http://www.ncsl.org/print/cj/guidetable08.pdf (accessed August 27, 2008). 110 Human Rights Watch interview with victims rights advocate Jennifer Bishop Jenkins, August 28, 2007. 111 Human Rights Watch interview with victims rights advocate Renny Cushing, August 28, 2007. 112 Ibid. 113 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 114 Human Rights Watch interview with Hon. Paul Cassell, September 25, 2007. 115 Human Rights Watch interview with Jennifer Bishop Jenkins, August 28, 2007. 116 Human Rights Watch interview with Maria Bee, September 14, 2007. 117 Basic Principles for Victims, para. 5. 118 ICCPR, Article 14(b). 119 Lynne Henderson, Revisiting Victims Rights, Utah Law Review, vol. 2 (1999), pp. 401-02. 120 Human Rights Watch interview with Maria Bee, September 14, 2007. 121 These states are Alaska, Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Carolina, Tennessee, Utah, Vermont, Wisconsin, and Wyoming. 122 Carolyn Reese, The Implementation of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in France, The Victimologist, vol. 4, no. 1, p.1 (May 2000). 123 Basic Principles for Victims, para. 4. 124 Ibid., para. 15. 125 UN General Assembly, Code of Conduct for Law Enforcement Officials, General Assembly Resolution 34/169, annex, December 17, 1979. 126 UN General Assembly, Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 37/194, annex, December 18, 1982. 127 UN General Assembly, International Code of Conduct for Public Officials, General Assembly Resolution 51/59, annex, December 12, 1996. 128 Human Rights Watch interview with Maria Bee, September 14, 2007. 129 Basic Principles for Victims, para. 6(d). 130 ICCPR, Article 14. 131 Handbook for Victims, p. 35. 132 National Conference of State Legislatures, Victims Rights Laws in the States, Table 6: Production and Confidentiality, 2004, http://www.ncsl.org/print/cj/guidetable06.pdf (accessed August 27, 2008). 133 Human Rights Watch interview with Maria Bee, September 14, 2007. 134 Shannan M. Catalano, BJS, Criminal Victimization, 2005, September 2006, p. 6, http://www.ojp.usdoj.gov/bjs/pub/pdf/cv05.pdf (accessed August 27, 2008). 135 Office of the President of the United States (Reagan), Final Report of the Presidents Task Force on Victims of Crime, 1982, December 1982, http://www.ovc.gov/publications/presdntstskforcrprt/welcome.html (accessed August 27, 2008); Douglas E. Beloof, Paul G. Cassell, and Steven J. Twist, Victims In Criminal Procedure (North Carolina: Carolina Academic Press, 2006), pp. 17-19. 136 Handbook for Victims, p. 34. 137 UN Economic and Social Council, Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, Resolution 2005/20, annex, July 22, 2005 (each of these rights is enumerated and described in this resolution). 139 Human Rights Watch interview with Hon. Paul Cassell, September 25, 2007. Experts on guardians ad litem at the American Bar Association and professionals at victim clinics that work with guardians ad litem were unaware of any funds being appropriated for guardians ad litem under 18 U.S.C. Section 3509(h). These experts and professionals were canvassed by Meg Garvin, executive director of the National Crime Victim Law Institute, in August 2008 at the request of Human Rights Watch. 140 Randall Kennedy, Race, Crime, and the Law (New York: Random House, 1997), pp. 12-28. 141 Jasmine Kripalani, "Hispanics Unlikely to Report Crime, Police Say," Memphis Commercial Appeal, August 7, 2000; Doris Sue Wong, "Gaps Seen in Help for Abused Immigrants," Boston Globe, June 23, 1999; Human Rights Watch, Letter to US Senate and House of Representatives regarding the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (CLEAR) and the Homeland Security Enhancement Act of 2003 (HSEA), April 21, 2004, http://hrw.org/english/docs/2004/04/21/usdom8473_txt.htm. 142 Human Rights Watch interview with Maria Bee, September 14, 2007. 143 Basic Principles for Victims, para. 3. Similarly, the Guidelines on the Role of Prosecutors, Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.144/28/Rev. 1 at 189 (1990), provide that prosecutors shall carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination. |