Victims Cannot Have Rights Equal To The Accused


Yesterday I wrote about a new victims rights ballot initiative in the state being headed up by North Dakota Second Lady Kathleen Wrigley, wife to Lt. Governor Drew Wrigley.

I expressed skepticism of the proposal then, and today with a copy of the text of the petition in hand (I have a copy of what’s being turned into the Secretary of State’s office today below) I’m not sure I feel any better about it.

The initiative is an iteration of “Marsy’s Law” which is policy that has passed in California and Illinois seeking to give the victims of crimes a sort of “bill of rights.” In California that has meant, controversially, some major changes to the parole process which have the impact of keeping people in jail longer.

That isn’t part of the North Dakota effort, which is likely a smart move given that the state is grappling with prison overcrowding issues.

But even with changes to the parole process off the table, there is still a lot to dislike about this measure. Specifically that it seeks to give victims rights and standings in proceedings against the accused. Or, as Wrigley herself put it on Facebook this morning, “ELEVATING VICTIMS’ RIGHTS TO THE SAME LEGAL LEVEL AS ACCUSED CRIMINAL DEFENDANTS.”


That pronouncement of putting the “rights” of victims on “the same legal level as accused criminal defendants” is at the heart of the problem with this measure. Why should victims get rights in proceedings in which they have nothing at risk? It is the accused, not the alleged victims, who are at jeopardy of fines or jail time (depending on the crime).

This concept of rights for alleged victims – the measure would even require that victims and their families be officially read their rights in the same way the accused are Mirandized – severely undermines the accused’s right to the presumption of innocence. If we give alleged victims legal standing as victims in criminal proceedings, aren’t we saying essentially that the accused are already guilty?

If the we make a determination, under the law, that the victims are victims then aren’t we, by extension, determining that the accused victimized them and is thus guilty?

There’s a reason why victims and their families are typically kept out of criminal proceedings (unless they have evidentiary testimony to provide) until after a verdict has been rendered. Their involvement is largely emotional can be hugely prejudicial to the accused in what is supposed to be a process based on facts and not feelings.

This measure would enshrine in our state constitution a right to that involvement. Among the mandates in the measure is “The right to be heard in any proceeding involving release, plea, sentencing, adjudication, disposition or parole, and any proceeding during which a right of the victim is implicated.”

The measure would also give victims the right not to cooperate with the accused and their legal representatives. The measure mandates the “right to privacy, which includes the right to refuse an interview, deposition or other discovery request made by the defendant, the defendant’s attorney, or any person acting on behalf of defendant, and to set reasonable conditions on the conduct of any such interaction to which the victim consents.”

It goes on to say that this new right does not abrogate the accused’s 6th amendment rights, or the State’s duties to share evidence. While that’s all well and good, as a practical matter this amendment gives alleged victims and their families leverage to oppose efforts by the accused to obtain potentially exculpatory evidence.

That goes well beyond merely poor policy into the realm of very dangerous policy which could produce unjust outcomes for defendants.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…as a practical matter this amendment gives alleged victims and their families leverage to oppose efforts by the accused to obtain potentially exculpatory evidence.[/mks_pullquote]

Wrigley is a sympathetic spokeswoman for this cause. Her family’s experience with the murder of her brother is tragic and heartbreaking. Wrigley’s husband Drew, who will no doubt fight alongside her for this measure, can bring some legal clout to the measure as well given his experience as a prosecutor in Pennsylvania and as North Dakota’s U.S. Attorney. So can the members of the measure’s sponsoring committee which includes a prosecutor and law enforcement officials.

But these people lack perspective, I think. Kathleen Wrigley sees this through the eyes of a victim. Drew Wrigley sees it through the eyes of a prosecutor. The cops see the issue as cops.

But the criminal justice system – the reams of and reams of jurisprudence and public policy which serve as its foundation – was created to establish guilt or innocence while protecting the rights of the accused. Throughout human history we have never had a problem with punishing those who allegedly did something wrong. What humanity has always struggled with has been ensuring that the people we punish are actually guilty of what they’re accused of.

It’s something we struggle with to this day.

Giving victims equal footing to the accused may sound great to prosecutors and cops and people who have experienced the criminal justice system as a victim, yet it wouldn’t be a good development for justice.

Besides, the North Dakota Century Code already has an entire chapter – specifically 12.1-34 – dedicated to victims rights. I think this measure is a solution in search of a problem.