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Marsy’s Law: A dispute of victims’ and constitutional rights

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Marsy’s Law is a victims’ rights amendment that will be on the Georgia midterm ballot on Nov. 6, but many victims’ rights advocates are against its passage.

“If someone is raped right now in Georgia, the rapist has more protection than the person that they raped,” Ann Casas, state director for Marsy’s Law, said.

She said that the provisions in Amendment 4 are only to make sure that the victim is allowed to be present and allowed to have a voice during the legal procedures involving their case.

“I’m baffled to think that the victim being allowed to speak would take away any rights from the defendant,” she said. “Especially in this environment that we’re in, I would think you would want the victim to be able to speak. If [the victim] is incorrect, the system already protects the accused.”

The campaign was named after California college student Marsalee “Marsy” Nicholas, who was stalked and killed in 1983 by an ex-boyfriend.

The amendment states that a victim shall receive:

  • The right upon request to reasonable, accurate and timely notice of any scheduled court proceedings involving the alleged act or changes to the scheduling of such proceedings.
  • The right upon request to reasonable, accurate and timely notice of the arrest release or escape of the accused.
  • The right not to be excluded from any scheduled court proceedings involving the alleged act.
  • The right upon request to be heard at any scheduled court proceedings involving the alleged act.
  • The right to be informed of his or her rights.

Jeanne Hruska, policy director of the American Civil Liberties Union (ACLU) of New Hampshire, explained in an ACLU blog post that the notion that victims’ rights can be equated to the rights of the accused is a fallacy.

“The U.S. Constitution and all 50 state constitutions guarantee defendants’ rights because they are rights against the state, not because they are valued more by society than victims’ rights,” she said. “Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property.”

Illustration by Demetri Burke | The Signal

Hrusha said that though it has good intentions, the Marsy’s Law formula is poorly drafted and is a threat to existing constitutional rights.

“The Marsy’s Law formula includes the rights to restitution, to reasonable protection, and to refuse depositions and discovery requests, all of which are enforced against the defendant. Such rights do nothing to check the power of the government. In fact, many of the provisions in Marsy’s Law could actually strengthen the state’s hand against a defendant, undermining a bedrock principle of our legal system — the presumption of innocence,” she said.

But, Casas said that the amendment took three years to craft and seeks to secure victim’s rights, not withdraw existing rights from defendants.

“That’s why first of all you go through the legislative process. This bill had to go through all of those considerations in the house and in the senate and in the judiciary committee. And, the prosecuting attorneys council has endorsed Marsy’s Law. They were there, they helped to craft it. So if it violated anybody’s rights, those are things that would have been considered, even the defense attorneys signed off on it,” she said.

However, Hrusha said that this “experimental model law” is so expansive and ambiguous that it’s impossible to know how courts would interpret it or what its impact would be in any one state.

“It pits victims’ rights against defendants’ rights. Creating such a conflict means that defendants’ rights may lose in certain circumstances. In other words, the chances that an innocent person could be convicted of a crime they did not commit could potentially increase. The proponents of Marsy’s Law may not intend for this outcome, but nothing in their formula prevents it,” she said.

Casas said that the creators of Marsy’s Law recognize the importance of the constitutional rights of the accused, but they also recognize that victims deserve the same type of procedural protections.

“There’s a very long list of constitutional protections that are really very important, and they should be there because if we’re accused of a crime, we need to make sure the government doesn’t overreach in their authority,” she said. “What we are trying to do is make sure that crime victims are informed about every step of the legal process.”

Right now these protections are written in statutes in Georgia, but they are not constitutionally protected.

“So if violated, there’s really no repercussions,” Casas said.

Casas recalled a traumatic experience that one of her colleagues went through that she believes highlights the need for these protections. Her husband was released from jail after physically assaulting her, and she was unaware of his release because she was not notified by the state. Casas said shortly after his release, he returned, raped her and nearly killed her.

“The protections we are trying to give are procedural protections that do not assume the guilt of the person [accused],” Casas said. “How does a victim being allowed to be in court and being notified and being present, how does that violate someone’s rights?”

These provisions are already in place in 36 states.

“If people’s rights were being violated left and right all over the place, these other states would have had issues since the 1980s and they simply haven’t,” Casas said.

In Georgia, there is some inconsistency regarding the enforcement of these protections across the state, according to Casas. She said this amendment levels the playing field so that all crime victims across the state have the same level of protection.

“You’ve got Atlanta and then you got the rest of the state. Every county does things differently. So [in] some counties, victims’ rights are gonna be protected more than others, just simply because of manpower,” Casas said.

Jessica Szilagyi, a statewide contributor for AllOnGeorgia.com, wrote an opinion article on why she is voting “no” on Georgia’s Amendment 4.

“In some states, unintended consequences have resulted in problems of due process. In South Dakota, the approved Marsy’s Law has resulted in longer jail stays while courts wait for victims to be notified. Officials say it’s led to notification in even the simplest of crimes, like vandalism, and swamped staff with additional paperwork,” she said.

Benita Dodd from the Georgia Public Policy Foundation also provided her opinion on the law in an article published on their website.

“A constitutional amendment is no place to risk infringing the rights of someone accused of a crime. The accused have the presumption of innocence until convicted; their life and liberty are at stake. For many suffering victims and their surviving families, there’s a fine line between justice based on a court of law and vengeance based on the alleged wrongdoing,” she said.

Hrushka said that to oppose Marsy’s Law is not to oppose victims’ rights. Rather, it is to oppose the highly problematic formula that is Marsy’s Law.

“It doesn’t matter if you are white or black, rich or poor, or republican or democrat, you can be a victim of crime, and I would say we have a moral obligation to come alongside of people who have suffered,” Casas said.

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