RIGHTS TO PRIVACY - VICTIM

Introduction

Privacy concerns are an issue for crime victims throughout the criminal justice process. Fear of harassment or retaliation from offenders who may learn their names and find out where they live through public records or court testimony deters victims from seeking justice. Victims who want to be notified by criminal justice agencies of offenders’ releases and scheduled proceedings may be reluctant to provide the contact information necessary to request notice. Anxiety over who might have access to compensation files, pre-sentence reports, and victim impact statements may result in guarded participation by victims.

Protection of Personal Information in Criminal Justice Records

Victims may have the right to protect the privacy of personal information, such as their name or identity, address, phone number, and place of employment contained in criminal justice documents, compensation records, and court testimony, as well as contact information provided for notification purposes. In some instances, the safety of the victim may be at stake if this personal information is made public. Some states extend this protection to witnesses or the immediate family members of the victim. Certain special victim populations, such as children, victims of sexual assault, domestic violence, stalking, or human trafficking, the elderly, and other vulnerable adults may have additional confidentiality rights that address their unique privacy concerns.

In general, statutory protections of a victim’s right to privacy related to information contained in criminal justice records most often take the following forms: 1) prohibition against compelling testimony relating to personal information in open court; 2) exclusion or limited disclosure of victim identifying information in criminal justice records, including law enforcement reports, court materials, and prosecution documents; and 3) protection from release of addresses and/or phone numbers provided for notice purposes.

Victim/Counselor Privilege

Traditionally, many types of communication have been protected from disclosure in court. These include communications between husband and wife, physician and patient, attorney and client, clergy and parishioner, and psychotherapist and patient. More recently, confidential communications generated in the course of a counseling relationship has also been afforded statutory protection from disclosure. In general, victim/counselor privilege laws enable counselors to maintain the confidentiality of information revealed to them, even if they are called to testify as a witness in a trial or another proceeding. In addition to preventing counselors from testifying or being compelled to testify in court, many privilege laws directly extend protection to a counselor’s written records, such as reports, memoranda, and working papers produced during the course of the counseling relationship.

Because of the sensitive nature of sexual assault crimes and the need to protect domestic violence, stalking, and human trafficking victims from future harm, much of the legislation extending testimonial privileges to counselors and victim advocates or service providers has been limited to these victim populations.

Victim/counselor privilege laws generally fall into one of three categories: absolute, semi-absolute, and qualified. Some states have enacted statutes that provide an absolute privilege prohibiting disclosure of confidential counseling records and communications under any circumstances without the victim’s consent. Other states specify exceptions to the victim/counselor privilege within their respective statutes. These states set forth a semi-absolute privilege and authorize disclosure in limited situations when disclosure of information is in the public interest. The most common exceptions involve reporting of abuse or neglect of a child or vulnerable adult, perjured testimony, evidence of the victim’s intent to commit a crime, or malpractice proceedings against the counselor. Although these laws do not provide the unlimited confidentiality of absolute privilege laws, they do provide complete protection from disclosure except under narrowly defined circumstances.

The remaining states have a qualified privilege that authorizes disclosure if a court finds it appropriate given the facts of the case. In making that determination, a court must use a balancing test, weighing the value of the evidence to the defendant against the victim’s need to keep the communication confidential. As a result, the confidentiality of counseling communications is decided on a case-by-case basis, and both parties are given the opportunity to make their arguments for or against disclosure.

Address Confidentiality Programs

In addition, many states have created address confidentiality programs to enable victims of domestic violence, sexual offenses, trafficking, and stalking to substitute an alternative address in place of their actual address in order to keep their whereabouts private. The program provides participants with a means to prevent abusers and potential abusers from locating them through public records by assigning them a legal substitute mailing address, which may be used as a residential, school, and employment address. Often, this substitute address is also used for voter registration purposes.

Right to Protection

Introduction


Many jurisdictions give crime victims the right to protection during the criminal justice process. This right may take the form of a generally stated right to protection, or may include specific protective measures. Most jurisdictions have defined criminal offenses of intimidation of victims or witnesses. Many provide that victims must be informed of protective procedures that are available.

Protective Measures

Measures to protect crime victims take various forms. Some examples include:

Police escorts to and from court;
Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
Witness protection programs;
Residence relocation; and
Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.
Several jurisdictions have also enacted laws to make it easier for victims to participate in the criminal justice process. Some give victims the right to refuse or limit any interviews with defense attorneys. Others provide for special court arrangements for vulnerable victims, such as young children. These arrangements may include closed-circuit testimony from outside the courtroom, arranging the courtroom so the victim does not see the defendant, or closing the courtroom to the general public.

Employment Protection

Many states also provide a means to protect a victim’s job or economic status during the criminal justice process. This many include requiring the prosecutors’ office to intervene with employers or creditors on request, or prohibiting employers from firing or punishing a victim from taking time off to participate in the criminal justice process.

Right to Restitution

Introduction

The term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.

Courts have the authority to order restitution by convicted offenders as part of their sentences.  In approximately one-third of states, courts are required to order restitution to victims in cases involving certain types of crimes, typically violent felony offenses. In many other states, if the court fails to order restitution, or orders restitution for only part of the victim’s losses, the court must state its reasons for doing so on the record. Payment of restitution is often a condition of probation or parole as well.

Not only can courts order restitution to the direct victim of a crime, they are often able to order restitution to the state victim compensation board, if that board has paid some of the victim’s expenses, or to a victim service agency that provided assistance to the victim.

Losses Covered

Restitution can cover any out-of-pocket losses directly relating to the crime, including:

medical expenses;
therapy costs;
prescription charges;
counseling costs;
lost wages;
expenses related to participating in the criminal justice process (such as travel costs and child care expenses);
lost or damaged property;
insurance deductibles; and
other expenses that resulted directly from the crime.

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonably expected future losses, such as ongoing medical or counseling expenses.

In calculating the restitution owed, a court will look at the victim’s losses. The court may also consider the defendant’s financial resources or other financial obligations, either in setting the total amount of restitution owed or when formulating a payment plan for the defendant.

Collecting Restitution

Courts may order restitution to be paid immediately, or may set a payment plan. Often the court clerk is designated to receive payments, but where restitution is a condition of probation or parole, the probation or parole office may be responsible for collection.

Because a defendant may be ordered to pay various fines and fees, as well as restitution to one or more victims, a jurisdiction may set out a priority of payments. For example, the law may state that each payment received from a defendant is to be split among all the obligations, or that the restitution must be paid first, followed by fines and fees.

Many jurisdictions provide that restitution orders become civil judgments.  This expands the ability of victims to collect restitution and also means that the orders can remain in effect for many years, typically 10 to 20 years.  In many jurisdictions, civil judgments can be renewed, so they can stay in effect even longer.  Depending on the jurisdiction, the civil judgment may be enforceable immediately, or enforceable when the offender defaults on payment, or enforceable only after the criminal justice process is completed and the offender has been released from probation, prison, or parole.

In some states, authorities are entitled to seize offenders' financial assets and property through garnishment and attachment to satisfy restitution orders. This authority may be granted immediately, or only after the defendant fails to pay as ordered.

When payment of restitution is a condition of probation or parole, probation or parole may be revoked if the defendant willfully fails to pay.

In those states with prison work programs, restitution payments are typically collected out of the wages of those programs.  Some states collect restitution from state income tax refunds, prisoner accounts, lottery winnings, or damage awards from lawsuits against the prison.

Offender profits from crime

Many jurisdictions have laws that prohibit convicted offenders from making a profit from their crime. These are often called “notoriety-for-profit” laws. Under these laws, the offender is typically required to notify a state agency when he or she enters into a contract related to the crime. The state agency then freezes or holds the profit and notifies the victim. The victim has a certain amount of time to bring a civil suit against the offender.

Right to Return of Property


A victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held as evidence.

All 50 states and the District of Columbia have passed laws outlining procedures for the return of stolen or personal property seized for evidentiary purposes in subsequent criminal proceedings.

In most states, property may be returned to its owner when it is no longer needed as evidence in a criminal prosecution. Since this often means the victim is deprived of his or her property for months or even years while the case is appealed or retried, some states have attempted to impose specific time requirements for the return of property.

A number of states have attempted to promote the prompt return of property needed as evidence by authorizing a photograph of the item to be serve as evidence.

Right to A Speedy Trial


A number of jurisdictions give crime victims the right to “a speedy trial” or “disposition of the case free from unreasonable delay.”

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances. “Continuances” are court-ordered delays of court proceedings. Many jurisdictions require that, in ruling on a continuance requested by a party, the court must also consider the impact of the delay on the victim.

In addition, several jurisdictions give priority to certain types of cases. They may require that cases involving children, or vulnerable elderly victims, be given preference in setting the court docket.


Right to Enforcement/Remedies of Victims

Introduction

Since crime victims have been afforded legal rights in every state, they also need ways to ensure that those rights are enforced.

Enforcement Mechanisms

A jurisdiction may promote the enforcement of victims’ rights through court proceedings. In a few jurisdictions, victims have “legal standing” to assert their rights. Because a crime victim is not a “party” to the case—that status is limited to the defendant and the prosecuting jurisdiction (such as the state)—legal standing for victims is not automatic but must be provided by statute or court ruling. In some jurisdictions, the victim does not have standing, but the prosecutor or some other official has the authority to seek court enforcement of the victim’s rights.

Aside from general “standing” to assert rights, some jurisdictions have other limited court options for enforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency to comply with the law, or allow other limited actions.

Several states have created a designated entity to receive, investigate, and attempt to resolve crime victim complaints. In some states, this may be an ombudsman or state victim advocate; in others, it may be a committee or board. Experience in those states has shown that the majority of calls from crime victims are resolved by providing information or referrals. However, many go on to the formal complaint and investigation stages. Some states also give the investigatory agency the ability to impose consequences on offending agencies or officials found to have violated a victim’s rights.

Limitations on Enforcement

Many victims’ bills of rights state that violation of a right does not create a civil cause of action against any government agency or official. Also, most specifically provide that a failure to provide a right to a victim cannot be raised by a defendant as a ground for appeal.

Disclaimer

This information is provided as a general overview of crime victims’ rights, which vary in scope and strength across the state, tribal, and federal criminal justice systems. It is not intended to serve as legal advice or statutory interpretation for any given jurisdiction.