Decisions Opposing Victims Interests and Rights

Decisions Opposing Victims Interests and Rights

Government Has No Constitutional Duty to Protect Individuals In 1989 (De Shaney v. Winnebago County Dept. of Social Ser- vices), six of the nine justices decided that a government agency could not be sued for failing to intervene (on behalf of a child repeatedly beaten and permanently injured by his father) because the state does not have a special obligation to protect individuals from harm by other private persons (U.S. Supreme Court, 1989).

Victims Can’t Sue Police Departments for Failing to Enforce Orders of Protection In 2005 (Gonzales v. Castle Rock Police), the Supreme Court by a 7–2 margin ruled that a victim of domestic violence did not have the right to sue her local police department for failing to enforce a restraining order against her husband who sub- sequently murdered their three children. The Court upheld the principle that police departments are not liable to law- suits challenging the way officers exercise discretion in the

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performance of their duties, unless there is evidence of extreme negligence (Bunch, 2005).

Victims Cannot Compel Prosecutors to Take Action Against Suspects A number of decisions handed down in 1967, 1973, 1977, 1981, and 1983 have established that attorneys general and district attorneys have absolute discretion over whether to charge defendants with crimes and what charges to press or drop. Victims cannot compel prosecutors to take particular actions, and courts cannot intervene in this decision-making process (see Stark and Goldstein, 1985).

Victims of Rape and Domestic Violence Can’t Sue Attackers in Federal Court In 2000 (United States v. Morrison), the Supreme Court by a 5– 4 margin struck down a provision of the 1984 Violence Against Women Act, which had granted injured parties in domestic violence and rape cases the additional option of suing their assailants for monetary damages in federal court. The majority voted to uphold the doctrine of state sovereignty over gender- based violence rather than extend federal authority via the interstate commerce clause (Biskupic, 2000).

Newspapers Can Publish the Lawfully Obtained Names of Rape Victims In 1989, a majority of six justices argued that the First Amendment’s guarantee of freedom of the press protected a newspaper from liability for printing the name of a woman who already was identified as a rape victim in publicly avail- able police reports. However, the decision did not declare unconstitutional state laws in Florida, Georgia, and South Carolina that prohibit the publishing of a rape victim’s name as an invasion of privacy (Greenhouse, 1989).

Offenders Can Escape Paying Restitution to Victims In 1989 (Pennsylvania Dept. of Public Welfare v. Davenport), the Court ruled 7–2 that if convicts declare bankruptcy, they can avoid paying court-ordered restitution because restitution obligations are dischargeable debts. In 1990 (Hughey v. United States), the Court ruled that a federal judge cannot order a defendant to pay restitution to a victim if the charge involving that victim was dropped as part of a nego- tiated plea. The Court based its ruling on a provision of the federal Victim and Witness Protection Act of 1982 (Eddy, 1990).

Victims Can’t Easily Claim Income Gained by Notorious Offenders In 1991 (Simon & Schuster v. New York Crime Victims Board), the Supreme Court struck down New York’s 1977 “Son-of-Sam” statute, which served as a model for 41 other state laws. The law

confiscated fees and royalties offenders gained from selling their inside stories to book publishers or moviemakers and permitted victims to claim that money. The unanimous opinion held that the state’s worthwhile goals of ensuring that criminals do not profit from their crimes, and of transferring the proceeds to victims, did not justify infringements on the First Amendment right of free speech (Greenhouse, 1991).

Victims of Identity Theft Can’t Have Extra Time to Sue Credit Bureaus In 2001 (TRW v. Andrews), the Supreme Court ruled that people who find out that impostors have ruined their financial reputa- tions have only two years from the time the mistake about their real creditworthiness was made to file damage lawsuits against the major credit bureaus that generate ratings, even if they don’t discover these errors in sufficient time (Savage, 2003).

The Statute of Limitations on Child Sexual Abuse Charges Cannot Be Extended In 2003, the Supreme Court struck down a California law that had lengthened the state’s statute of limitations to enable criminal prosecutions of alleged molesters whose accusers came forward many years after the events took place. How- ever, the decision did not block victims from pursuing law- suits in civil court (Garvey and Winton, 2003).

Victims of Child Pornography Have to Return to State Courts to Seek Restitution In 2014, (Paroline v. United States) by a five to four decision, the Court affirmed that a child whose sexual abuse appeared in pornography was entitled to financial compensation under the federal Crime Victims Restitution Act for direct, foreseeable, significant, and repeated harm from the viewing of these images. But the higher court reversed a state court decision and held that only a trial court, on a case-by-case basis, had the authority, using its discretion and sound judgment, to determine the appropriate amount of restitution from the offender for imposing this mental anguish on the victim (NCVLI, 2014).

Insufficient Proof That the Lives of Murdered Black People Count for Less In 1987 (McCleskey v. Kemp), in upholding a death penalty conviction, the Supreme Court rejected a statistical analysis that seemed to show that the deaths of black victims were not taken as seriously as the deaths of white victims by criminal justice deci- sion makers—prosecutors, juries, and judges. The Court ruled that a pattern—in which offenders convicted of killing white people were 11 times more likely to be sentenced to die than those found guilty of murdering black victims—was not compel- ling evidence of intentional discrimination in violation of the Eighth and Fourteenth Amendments (Triebwasser, 1987a).


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the advent of consultants who use statistical meth- ods, especially findings from surveys of the local residents’ attitudes and biases, to predict which kinds of people are more likely to convict or acquit in a case based on similar facts and accusations.

One bit of conventional wisdom taught to lawyers is that prospective jurors who disclose that they have been victims in the past can be expected to consciously or subconsciously identify with the injured party who is serving as a star witness for the prosecution. This tendency is presumed to be espe- cially strong if the crime committed against them resembles the charge that the defendant is facing in the upcoming trial (Gobert and Jordan, 2009). Judges often ask venire members about their own past experiences with criminals and send home vic- tims who admit that they will have trouble being open-minded about the presumption of innocence. Although no jurisdiction has strict laws that address the issue of jury ineligibility because of prior vic- timization, eliminating victims from the pool often might be justified on an individual basis but imprac- tical as a general procedure since being harmed by criminals is such a common experience. Former victims are indeed more likely to vote to convict than other jurors, according to the findings of a simulation in which 2,400 people were asked to decide guilt or innocence after watching a one- hour mock trial about a burglary of a dwelling (Culhane, Hosch, and Weaver, 2004).

Concealing a hidden bias due to past experi- ences can get a juror in trouble, as the following case demonstrates:

A young man is serving as a juror in a capital murder case in which a former Marine is accused of stabbing a woman to death. He confides in a court bailiff that he doesn’t think he can be impartial because two of his family members had been killed in robberies. The bailiff informs the judge, who angrily asks the young man why he didn’t reveal these troubling relation- ships on a detailed questionnaire or to the two attorneys who vetted him. The judge lectures him about the disruption his tardy disclosure has caused, and warns, “I’m not going to put you in jail, but you’re going to forfeit your jury fee ($90). Now, get

out of here before I change my mind!” The prosecutor and the defense attorney urge the judge not to declare a mistrial and start over, and both agree to continue with just 11 jurors. (Emily, 2010)

The findings of several other studies shed addi- tional light on the victim–juror relationship.

In death penalty cases, prosecutors, judges, and juries seem to be influenced by the race of the victim as much as by the race of the defendant. Blacks who murder whites and whites who dispatch whites are much more likely to be sentenced to die by juries than whites who slay blacks or blacks who kill blacks, according to a statistical study entered as evidence in a case that led to a landmark decision by the Supreme Court (see Baldus, 2003). Murder victims’ families (referred to as “co-victims”) find death penalty cases understandably burdensome and emotionally frustrat- ing because the legal process marginalizes them, leav- ing them with a very limited role to play in resolving their traumatic loss. During bifurcated capital trials, prosecutors often urge murder victims’ families to attend all the proceedings, and if a conviction takes place, to testify during the penalty phase to provide victim impact evidence that might influence jurors to choose execution over life imprisonment (Karp and Warshaw, 2009). Just as first responders (like police officers and emergency technicians) and caregivers (such as doctors, social workers, and advocates) can suffer vicarious traumatization, so too can sensitive jurors succumb to the stresses generated by gruesome evidence and harrowing testimony and by emotion- ally draining arguments during protracted jury delib- erations behind closed doors (Robinson, Davies, and Nettleingham, 2009).

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