The Crime Victims' Rights Act
Steve Twist  -  2007/10/10
http://ovc.ncjrs.gov/ovcproviderforum
 
 
What can you suggest be done to raise awareness in law enforcement circles of the U Visa for immigrant victims of crime. My program encounters several law enforcement entities who refuse to provide immigrant crime victims with a U Visa certification even though these victims have been active as witness in the prosecution of their perpetrators.
 
1.  Steve Twist
 I would go to a city council member, legislator or member of Congress and ask them to write a letter; or go to the local media. Ask for a meeting with the agency as a follow-up and take a copy of the letter with you. Also consider going to the states POST (Peace Officer Standards and Training Board) and get some in-service training started.
 
 
Please provide some examples of effective methods that have been used to uphold the victim's right to be heard regarding plea agreements. Please include examples related to homicide cases.
 
1.  Julie Bacon
 Steve, the language you use in your response ...CVRA...is this Federal Victim Rights language??? Wisconsin has vic rights leg. but none that lead us to believe that victims are made aware of plea negotiations in the works...victims must make call to DA before pretrial conferences or it can be too late as plea is offered. Judges do not ask at plea hearings if victims confered with....is this Federal?
 
2.  Steve Twist
 First focus on the rights in the CVRA. Right to notice of proceedings, right to be heard, right to confer, and right to fairness all combine to give the victim a right to adequate notice of plea negotiations not just plea hearing so victim can confer and participate along the way. Then adequate notice of agreement and implications of agreement coupled with referral to private attorney if there is any inkling that victim does not agree with plea or would be harmed by plea (i.e. restitution loss, future loss of rights bc their crime was pled away). Courts should ask on the record if victim was conferred with and whether she agrees and if not whether she is present to be heard. If no clear answer can be given on the record proceeding should be continued until can be given. Then opportunity to be heard & considered & if not a re-do.
 
3.  Debbie Bradley
 We seem to have this problem as well. Some State's Attorney's don't find it necessary to discuss plea agreements with victims because they feel the State ultimately has the final say in the matter. Seems to me the CVRA addresses this issue, but how can it be enforced?
 
 
How can inserting the "victim (s)" word into the Federal Rules of Evidence benefit crime victims? Should states consider adding the word victim into state rules of evidence?
 
1.  Steve Twist
 Senator Kyl has introduced a comprehensive bill to add victims to the Federal Rules of Criminal Procedure. States should definitely do this as well. The Rules are the scripts lawyers follow in court every day. Again thanks to Meg for her thoughts on this...The Rules of Evidence, together with Rules of Procedure, govern daily practice of courts in this country and it is critical that we integrate victims rights, including the word victim into these rules so that the victim becomes part of the daily practice. While there are lots of specific places that they should be integrated this general move toward integration will ensure they are not forgotten or thought of as an interloper. One thing to consider here I believe some rules of evidence (perhaps 412 rape shield) may use alleged victim. I think we really have to caution against this as victim is a legal term of art and should be treated as such.
 
 
How can the rights of victims in mass telemarketing or investment fraud cases be enforced when investigative agencies don't have the resources (such as enough financial analysts) to go through boxes & boxes of evidence to identify ALL victims and provide them with notification & services. Then again, why should they when the Agent and/or US Attorney's Office only needs a handful of victims to prove their case?
 
1.  Steve Twist
 thanks to Meg Garvin for her thoughts on this:Unfunded mandates can be a problem BUT there are things we need to recognize: a) congress should appropriate money; and b) administrative hurdles (even financial ones) are not grounds for denying rights. We need to find the resources to afford the rights not allow resources to dictate the implementation or existence of rights. We all would not stand for this in cases of criminal defendants rights. More specifically, we can learn some lessons from class actions in civil practice regarding adequate notice in terms of scope and timing and perhaps allow that to aid us some. The CVRA contemplates special proceudres for mass victim cases where notice is a real challenge.
 
 
What rights do victims have to the HIV testing of offenders?
 
1.  Evelyn Fortier
 As a footnote to my earlier posting, here's a link to the final, enacted version of the HIV testing provision in VAWA 2005, Public Law 109-271 (see Section 102 in Title I):http://www.rainn.org/docs/policy/vawa-2005.pdf(Note that U.S. Sen. Coburn's comments referenced the Senate version of the language rather than the enacted language).Evelyn Fortier, RAINN
 
2.  Michelle Ellis
 In Oregon, victims do have the right to request offenders have HIV testing. When a criminal act involves the transmission of body fluids, a crime victim may request HIV testing of the person charged or convicted of the offense, which, under certain circumstances, the court must order. If any such HIV test is positive, a victim shall be provided with counseling and referral for appropriate health care, testing and support services. The costs of this testing and counseling shall be paid through the crime victims compensation program. ORS 135.139. HIV rights in the juvenile system may be found at 419C.475.
 
3.  Kate
 I agree that the CVRA would be a great support for such a motion. There is also a statute providing for HIV testing of the defendant, at 42 USC 14011.
 
4.  Evelyn Fortier
 Sec. 102 of the Violence Against Women Act of 2005 (Grants to encouragearrest and enforce protection orders improvements), contains a new HIVtesting provision. Here is a portion of Sen. Coburn's (R-OK) comments from the Congressional Record explaining his support for the provision: Mr. COBURN. Mr. President, the Violence Against Women Act, VAWA, approvedby the Senate today contains an important provision that is intended toprotect women who have already been victimized once by sexual assault frombeing assaulted again by either the deadly AIDS virus or the legal systemwhich may deny them potentially life-saving information. Section 102 of VAWA now encourages States to implement laws that providevictims of sexual assault and rape the opportunity to know if the personindicted for the assault is infected with HIV. This new provision willrequire the Attorney General to reduce the amount of funding providedunder Section 102 by 5 percent to a State or local government that has notdemonstrated that laws are in place to allow a victim to request that adefendant, against whom an information or indictment is presented for acrime in which by force or threat of force the perpetrator compels thevictim to engage in sexual activity, be tested for HIV disease if thenature of the alleged crime is such that the sexual activity would haveplaced the victim at risk of becoming infected with HIV. The defendantmust undergo the test not later than 48 hours after the date on which theinformation or indictment is presented, and as soon thereafter as ispracticable the results of the test must be made available to the victim.As medically appropriate, the victim may request follow-up testing of thedefendant. If a State or local government does not currently allow victims of sexual assault such protections, assurances must be made to the Attorney General that the state legislature will bring their laws intocompliance before the end of their next session or within 2 years. The 5percent penalty will not go into effect until the expiration of the twoyear extension. The bill will also now allow Federal VAWA funds to be used to pay for HIVtesting of sexual assault perpetrators and notification and counselingprograms. These provisions are desperately needed to address a real, grievous injustice that victims of sexual assault are facing in manystates. In the summer of 1996, a 7-year-old girl was brutally raped by a57-year-old aged man who later told police he was infected with HIV. Thelittle girl and Page: S13755her 5-year-old brother had been lured to asecluded, abandoned building in the East New York section of Brooklyn. Theman raped and sodomized the girl. Her brother, meanwhile, was beaten,tied up, and forced to witness his sister's rape. After the man's arrest,the defendant refused to be tested for the AIDS virus by the BrooklynDistrict Attorney's office. His refusal to take the test was permittedunder State law.'' 'Hope this is helpful.Evelyn FortierVP of Policy RAINN
 
5.  Evelyn Fortier
 VAWA 2005 contains language that encourages states to adopt laws requiring HIV testing of indicted rape defendants, but only if the victim requests it. New York State is one state which has such legislation under consideration (NY may already have enacted it). Evelyn FortierRAINN
 
6.  Steve Twist
 In my view the CVRA can be used to assert a right to testing. The right to be reasonably protected from the accused, the right to be treated with fairness give the victim standing to ask for this in court. I am not sure if there is a federal statute directly on point but the CVRA should work also.
 
 
Has anyone had experience with a victim of Stalking and or Aggravated Stalking filing a civil lawsuit for violations of privacy issues? John Victim Advocate
 
1.  Steve Twist
 Check with NCVLI, http://www.lclark.edu/org/ncvli/
 
 
I work as a victim advocate for Homicide and Traffic Homicide. In some Traffic Fatalities cases the drivers that are at fault can not be charged and the cases never go to court. Even though that a fatality occurred, the suspect is charged with misdemeanor traffic tickets. What rights do the families of these victims have and what else can they do other than to sue the suspect in civil court?
 
1.  Steve Twist
 They can go to the legislature to seek changes in the laws that will prevent this from happening.
 
 
How can we get law enforcement trained to write the police reports for VC correctly? I have several elderly clients that have qualified for the $500 property loss funds but their claims are not being paid due to 'insufficient law enforcement reports'. I have contacted the sheriff's dept, the ag's office, the regional rep for victim com, and the governor's office with no response or results. What can be done to get these people the money they have coming to them. More direct, how can we get law enforcement trained to write the reports correctly in the first place?
 
1.  Kim
 I am not sure that I understand the question. What appeal rights are available to the victims in Virginia and if they have pursued these rights, what has been the outcome?
 
2.  Steve Twist
 This should be made a part of mandated training and if that does not work it should be mandated by local or state law.
 
 
Has anyone created victims rights training materials, powerpoint presentation, and/or training video for law enforcement, prosecution, and the courts? If so may we have a copy to modify?
 
1.  Cathy Harper Le
 Thank you Carol. My number is 614-848-8500, I'd love to talk to you.
 
2.  Carol
 Hi Cathy,Oregon has some materials. Feel free to contact me about them.Carol Schrader
 
3.  Steve Twist
 Yes. NCVLI has excellent materials, http://www.lclark.edu/org/ncvli/.
 
 
What client case software is preferred? Does software offer specific fields to collect data needed for grant reporting?
 
1.  Steve Twist
 Please contact Arizona Voice for Crime Victims for a good lead on this.
 
 
Is there a contact list of law enforcement, prosecutors, and judges currently working in the field who have contributed letters explaining how the enforcement of specific victims' rights laws helps their cases?
 
1.  Steve Twist
 Excellent idea...NCVLI should have some collected but we will work on this!
 
 
From our Victimology class @ Becker College... Steve, should illegal immigrant victims have rights and be covered under a Constitutional Ammendment?
 
1.  Steve Twist
 Any person who is the victim of a federal crime has rights under the CVRA and would have them under the constitutional amendment we seek.
 
 
Is there a list of prosecutors who have, or would be willing to submit, letters explaining the benefits of victims' rights clinics and clinic attorneys and the specific assistance that is provided to prosecutors?
 
1.  Steve Twist
 Yes...I know of several in my state and around the country and I'm sure we could compile such a list...great idea. I will work on this.
 
 
From our Victimology class @ Becker College... Steve, at any point do you think that meeting the needs of victims will affect the rights of the accused that our system protects today?
 
1.  Steve Twist
 No. Rights in the justice system do not exist as a zero sum game where giving rights to victims necessarily takes them away from defendants and our experience in jurisdictions where rights for victims are established and protected confirms this.
 
 
What are some of the the key factors to successfully establishing victim standing to assert rights and seek enforcement on a state level? Virginia's bill of rights indicates that "... No liability or cause of action shall arise from the failure to make such efforts or from the failure of such victims or witnesses to receive any such information or services." (19.2-11.01C) ("such efforts" refers to reasonable efforts to know legal responsibilities, ensure victims are informed, and ensure that victims receive information and services) So, we can do many things to leverage improved services and compliance but I don't think any court in Virginia has yet found that an individual victim has standing to assert his or her rights and seek enforcement.
 
1.  Steve Twist
 This is why standing is so key...we know from our earliest history that rights without remedies are no rights at all...and the remedy is to go to court and ask a judge that the right be protected at the very time when it was meant to apply. The courts can find standing through caselaw (see New Mexico) or the legislature can establish it by statute (see Arizona).
 
 
What are some of the best strategies for overcoming resistance to victims' rights enforcement?
 
1.  Steve Twist
 Do outreach to the prosecutors and judges. Point to other jurisdictions where it has worked, e.g. Arizona.
 
 
What are some of the biggest mistakes to avoid when designing victims' rights enforcement policies and procedures?
 
1.  Steve Twist
 Yes ...just contact me (steve_twist@sgagroup.com) and I can help with this.
 
2.  Kim
 Can anyone send us model victim's rights enforcement policies and procedures for victim's rights clinic?
 
3.  Steve Twist
 Don't forget the victim. The key to enforcement is that the victim have meaningful rights and standing to go into court to enforce them. Any effective office policy and procedure must be built around this foundation.
 
 
What can we do about victims being kept out of the court room after they have testified?
 
1.  Steve Twist
 If your state has the right or if you are working in the federal system where the CVRA portects the right, the victim should seek relief through the courts.
 
2.  Steve Twist
 Victims should have the right to be in the courtroom before and after they testify...indeed throughout the entire trial and all other public proceedings. This right is protected in the CVRA and in many states...AZ has had this as a constitutional right for 17 years now and no case has ever been reversed because the vicitm even as a witness has been in the trial.
 
 
To help us determine who is entitled to the rights granted under the Crime Victims' Rights Act, what is its definition of "victim"?
 
1.  Steve Twist
 from the statute:(e) Definitions.--For the purposes of this chapter, the term crime victim means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter, but in no event shall the defendant be named as such guardian or representative.
 
 
As a local victim service provider, where can we refer victims of Federal crimes that claim they were denied their rights?
 
1.  steve
 What about the Victims' Rights Ombudsman in the U.S. Department of Justice at http://www.usdoj.gov/usao/eousa/vr/index.html
 
2.  Steve Twist
 to NCVLI, http://www.lclark.edu/org/ncvli/
 
 
How can violations of the CVRA be enforced?
 
1.  Steve Twist
 The victim goes to court and asks the judge to protect the right and if the judge refuses the victim can go to the court of appeals and ask that court to direct the judge to protect and honor the right...here is what the statute says:(d) Enforcement and limitations.--(1) Rights.--The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter.(2) Multiple crime victims.--In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.(3) Motion for relief and writ of mandamus.--The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.
 
 
What remedy can a victim seek if the prosecutor fails to notify a victim of a retained jurisdiction review in which the offender is released from custody?
 
1.  Steve Twist
 Under the CVRA the victim can go to court and ask that a release decision be vacated if made without notice to the victim or the opportunity to be heard.
 
 
I would like to pose several questions which, hopefully, bleed into one another. How do states measure compliance with victims rights and who measures it? What is the recourse for noncompliance? Are there any evidence-based mechanisms for ensuring compliance?
 
1.  Steve Twist
 The best compliance, in my view, is through standing to participate in the case with standing to assert your rights. There are compliance measures. Check with John Stein at IOVA who has left an excellent effort in Oregon on this front.
 
 
Is there any free legal aid for victims of crime clients in the aspect of immigration matters?
 
1.  Steve Twist
 Through the NCVLI clinics for federal crime victims.
 
 
Several states have agencies or entities that investigate violations of victims' rights and/or represent victims during the criminal process. For example, some states have an Ombudsman and one has an Office of Victims Rights staffed with attorneys. What model and/or state has had the most success in enforcing and vindicating victims' rights?
 
1.  Steve Twist
 Enforcement: the NCVLI clinic states Compliance: look at Oregon (at Oregon voters will have a chance to add meaningful enforcement in November of 2008)
 
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