In November 2017, the victim’s rights amendment, commonly known as “Marsy’s Law,” was passed and added to the Ohio Constitution. As part of Marsy’s Law, the definition of “victim” was expanded. A “victim” is now defined as “the person against whom the criminal act is committed, or the person directly and proximately harmed by the criminal offense.” This means that the parent(s) of a child that was assaulted, or the spouse of a victim that was injured during a robbery are considered “victims” are also considered a “victim” and now have a number of guaranteed constitutional rights. Previously, only the person listed as “victim” in the police report was considered a “victim” in court; and while that victim had some influence on the case (see our previous blog on some limits on victims’ influence in domestic violence cases), there was not a constitutional amendment defining victims’ rights that must be honored.
WHAT ARE THE CONSTITUTIONAL RIGHTS GIVEN TO ALLEGED VICTIMS / ACCUSERS UNDER MARSY’S LAW?
1. The right to be informed, in writing, of Marsy’s Law rights
2. The victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim’s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim’s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.
3. The right to be treated with fairness and respect for the victim’s safety, dignity, and privacy.
4. The right, upon request, to reasonable and timely notice of all public proceedings and the right to be present at those proceedings.
5. The right to be heard in public proceedings involving release, plea, sentencing, disposition, or parole, or in any proceeding that implicates a Marsy’s Law right.
6. The right to confer with the prosecutor, upon request.
7. The right to proceedings free from unreasonable delay and a prompt conclusion of the case.
8. The right to refuse an interview, deposition, or other discovery request by an accused, except as provided by Article I, Section 10 of Ohio’s constitution
9. The right to full and timely restitution from the offender.
10. The right to reasonable protection from the accused or any person acting on behalf of the accused.
11. The right, upon request, to reasonable notice of escape or release of the accused.
WHAT IMPACT DOES MARSY’S LAW HAVE ON DOMESTIC VIOLENCE CASES?
Many of the “victim’s rights” written into the Ohio Constitution through Marsy’s Law already existed in practice. However, the following phrase, written before the list of victim’s rights, is of particular concern in criminal case like domestic violence: “To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused.” (emphasis added).
As we discussed in our previous blog “Understanding a Domestic Violence Charge,” a person accused of domestic violence is typically going to be arrested or have a warrant issued for his/her arrest. An arrest late at night or on the weekend can limit the prosecutor’s ability to make contact with the “victim” or “victims” as defined by Marsy’s Law. This could lead to a delay in a bond hearing for the accused so that the “victim’s” right to be heard in public proceedings can be honored. Meaning the accused may end up waiting in jail during the delay.
A long history of protecting the rights of the accused
Under our Constitution, an accused person has a number of guaranteed due process and trial rights. Most people are familiar with these basic constitutional rights. For example: the right to remain silent, the right to an attorney, the right to a speedy trial, etc. One of the most important rights that an accused person has in our justice system is the presumption of innocence. Meaning that an accused person is assumed to be innocent unless the government can prove otherwise.
These rights have existed in our country for hundreds of years to protect the rights of the accused because the accused’s liberty and other important fundamental rights (like the right to vote) can be taken away from him or her if convicted of a crime. That is why the government must prove its case beyond a reasonable doubt.
“How could giving more rights to victims be problematic?”
Well, if a “victim” immediately has constitutional rights that must be “protected in a manner no less vigorous than the rights afforded to the accused” simply because s/he was named in a police report or is a “person directly and proximately harmed by the criminal offense,” then an accused’s right to a presumption of innocence can be lost.
If there is a conflict between the constitutional rights of a victim and the constitutional rights of the accused, who wins? We are already seeing some courts in Ohio delay bond hearings or other proceedings until the “victim(s)” can be present or represented.
How Can We Help?
Our criminal defense team at Rittgers Rittgers & Nakajima has years of experience helping people accused of violent crimes like domestic violence or assault. We have experience fighting for the constitutional rights of the “accused.” We are prepared to litigate cases to preserve the Constitution and to help our clients maintain their presumption of innocence.