This Week’s post is brought to you by Danielle Pease, is a first-year law student at the University of Montana School of Law. While an undergraduate at the University of Montana, Danielle was raped, sparking a two-year process through the Missoula County Criminal Justice System. Danielle earned her B.A. in Political Science. She is a co-creator and chair of the ASUM Title IX Ad Hoc Committee, created ASUM’s Committee on Equitable Education, serves as a GPSA Senator on the Title IX subcommittee, and serves on the UMT PEACE committee, working on prevention education and Title IX and VII training compliance. Danielle runs a non-profit in Missoula which assists survivors in making dignified and educated decisions in the direct aftermath of sexual violence.
***Trigger Warning: this post discusses sexual violence and the experiences of survivors in the legal system.***
As it stands, the criminal justice system is a problematic solution to violent crimes. “Punishment” is not a productive response—it fails both to deter and to rehabilitate. But in this current ineffective system, victims of violent crimes are not afforded adequate protection from the failures of an already flawed system.
Victim Experiences in the Criminal Justice System. Brock Turner raped an unconscious woman behind a dumpster in 2015. The victim, Chanel Miller, wrote a memoir of her experience in the criminal justice system and her efforts to cope with the implications of his actions. Her victim impact statement went viral in what has become a harrowing recollection of the ways in which the criminal justice system and its actors reaffirmed rape myths and disregarded her humanity. Her interactions with the legal system interfered with her ability to cope with her trauma. Miller was forced to constantly relive her experience in “excruciating detail” in order to prepare for invasive, aggressive, and manipulative attorney questioning. Her experience is not unique.
To victims of crime, procedural justice is often as important as a just result. More importantly, victims’ and secondary victims’ experiences within the system have quantifiable effects on their overall health, finances (funeral expenses, therapy, missed work for injury from the crime), and relationships. Post Traumatic Stress Disorder is heightened in survivors who have experienced procedural injustice and institutional betrayal. Access to Crime Victim Compensation Funds is tedious and likely to be declined. The relationships that victims have with others are often scrutinized and procedurally diminished.
The History of Enumerated Victims Rights. In Linda R.S. v. Richard D., the Supreme Court held, “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” Ten years later, President Regan established the President’s Task Force on Victims of Crime to “help crime victims receive the financial, medical, and legal help they need.” Around the same time, the Supreme Court, in Payne v. Tennessee, recognized crime victims are not nameless or faceless non-players in the criminal justice system. From there, the National Crime Victims’ Movement took off.
California led the way in enumerating victims’ rights. In June 1982, California passed Proposition 8, which established enumerated rights for surviving families and direct victims of crimes. Prop 8 restricted plea bargaining in violent crimes, increased prison sentences for those same offenders, required the victim be notified of hearings on dispositions, granted the courts bail discretion and allowed the victim to give impact statements and receive restitution.
In 1983, a college student, Marsy Nicholas was stalked and murdered by an ex-boyfriend. The court failed to notify the family that her perpetrator had posted bail. Less than one week after her funeral, Marsy’s mother ran into her daughter’s murderer at the grocery store.
The criminal justice system’s process had a profound effect on Marsy’s family. By 2008, Marsy’s brother, Dr. Henry T. Nicholas III, drafted and helped pass California Proposition 9. This proposition expanded on Prop 8 and required notice to victims of all hearings, consideration of a victim’s safety when setting bail conditions, and written notice to victims of their rights. After passage, Dr. Nicholas founded Marsy’s Rights For All, a national movement to enumerate basic rights for survivors of crime. Today, seven states have adopted Marsy’s law. (Image from, Marsy’s Rights For All)
Victims Current Rights in Montana. Between 2011 and 2013, the Missoula County Attorney’s Office committed gender discrimination in sexual assault cases, abused prosecutorial discretion in rape cases, failed to notify victims of hearings and releases, and entered plea deals for lesser charges without notifying a victim or hearing their impact statement. The failures of the Missoula County Attorney’s Office spurred a Department of Justice investigation. This investigation resulted in a Memorandum of Understanding that required the Attorney’s Office to establish an SVU with specialized attorneys, create Crime Victim Advocate positions, facilitate in-person meetings with witnesses, and train prosecutors in dealing with these cases and victims.
The media circus, the book Missoula, and the election of a new County Attorney seemingly caused a shift in citizens’ opinions on victims’ rights in Missoula. In 2016, Montana citizens voted on Constitutional Initiative-116, Marsy’s Law. The law contemplated enumerated victims’ rights in the Montana Constitution, which would have become Mont. Const. Art. II, § 36. The initiative overwhelmingly passed with 79% of voter support. However, in 2017, the Supreme Court of Montana held Constitutional Initiative-116 was voided because its passage violated the Court’s interpretation of the separate-vote requirement. The Court did not address the merits or purpose of the initiative. The aftermath of Marsy’s law’s failure left crime victims in Montana with minimal rights. Victims of crimes that involve actual or potential bodily injury have the right to be notified prior to disposition of a case. Crime victims also have the right to attend hearings, receive one copy of any publicly available document filed in the case, and have an advocate present while they are interviewed. Many of these rights are arguably not rights unique to a victim; rather, a right of the public. But without further enumerated rights, Montana still fails crime victims.
Who are Crime Victims? In the advocacy and history of the Victims’ Rights Movement, non-white victims are left out. There are several contributing factors, such as: (1) crimes that almost exclusively affect non-white persons are less likely to be considered crimes; (2) lack of broad language in hate crime statutes make penalty enhancements difficult for prosecutors to obtain; (3) the way in which media headlines are shaped makes research on the topic difficult and highlights perpetrators over minority victims; and (4) data analysis is rooted in inaccurate numerical evaluation and quantity.
Violence against Black, Indigenous, and people of color (BIPOC) people is often not considered a crime. According to Max Weber, the state has a monopoly on violence. An example is the lack of classifying excessive force by a police officer, which disproportionately affects BIPOC individuals, as a violent crime on data reports. In some cases, qualified immunity acts as an excuse for violent officer conduct.
Even when crimes are reflected in statute, hate crime penalty enhancements make it difficult to prosecute for a perpetrator’s specific selection of a victim based on race, gender, or sexual orientation. See Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194 (1993); Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093 (1992); § 45-5-222 (Montana’s sentence endorsement statute, requiring 2 year minimum and 10 year max); § 45-5-221 (Note, Montana also recognizes hate crimes as Malicious Intimidation Or Harassment Relating To Civil Or Human Rights, which carries a 5 year max.) While Montana’s statutes may seem progressive, the practice of charging hate crimes and advocating for penalty enhancements is a different matter. The Netflix documentary, The Trials of Gabriel Fernandez exemplifies a prosecutor choosing not to charge a hate crime penalty enhancement, for victim selection based on sexual orientation because of the difficulty of proving to the jury it was a motivating factor.
Media and police portrayal of crime focuses on the impact on the offender’s life and fails to discuss racial motivation. On March 19, 2021, Delaina Ashley Yaun, Paul Andre Michels, Xiaojie Tan, Daoyou Feng, Soon Chung Park, Hyun Jung Grant, Suncha Kim and Yong Ae Yue, were shot and killed at their places of work. The media headlines describe the instance as a hate crime, however, the police department did not. Racially motivated violence has seen an increase in 2021 but is likely still underreported.
Data analysis is rooted in a numerical evaluation and quantity—white people account for the largest segment of the population, placing BIPOC persons at a lower “percentage of the population” having experienced victimization. Here is an excerpt from the Department of Justice website on crime victimization.
The percentage of violent victimization reported to police was lower for White victims (37 percent) than for Black (49 percent) or Hispanic victims (49 percent). The percentage of violent incidents that involved Black offenders (25 percent) was 2.3 time the percentage that involved Black victims (11 percent). The percentage that involved Asian offenders (1.0 percent) was 0.4 times that portion that involved Asian victims (2.3 percent).
The paragraph does not continue to discuss the rates of white offenders in relation to white victims. Nearly 50% of violent crimes in 2019 were against BIPOC victims. This language shows BIPOC victims face greater challenges to accessing “justice.” A victim’s identity, therefore, affects their involvement and treatment in our current criminal justice system.
The criminal justice system profoundly affects victims and their families. While progress in Montana has been made, the privacy of victims is still not entirely respected. Victims should have a fuller right to privacy, “the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victims consents,” and to pseudonyms used by all parties in written pleadings. See Perma | Section 36. Rights of crime victims, MCA. In our current system, this would give victims more control over the traumatic implications of someone else’s crime. Additionally, victims should have the right to be heard, through an attorney or advocate, on all matters that involve a victim’s potential exposure to re-victimization by the offender. Furthermore, victims should have the right to be notified of their rights, including the ability to retain the assistance of an attorney. To the extent necessary to protect their safety, victims should also have the right to be present at, and informed of, pleadings. Montana courts should also offer an opportunity to engage in alternative methods of dispute resolution for sex crimes if the victim so chooses. Even with these changes—Montana would still fail to address the additional concerns for BIPOC communities. Violence against BIPOC communities must be acknowledged to the same degree as violence against white people.
The Victims’ Rights Movement is necessary under our current system. We should challenge this problematic structure and instead consider a system which does not require private citizen involvement in the prosecution process and instead move towards a process which respects the rights of everyone involved.
*The use of “victim” perpetuates a negative social stereotype, particularly for survivors of sexual crimes and domestic violence. “Victim” is a title the United States criminal justice system imposes on individuals subjected to another’s criminalized harm. This post uses the word victim to reduce confusion. Sexual violence, domestic violence, and homicide have a profound effect on survivors and their families. The author acknowledges the humanity and vibrance of every individual behind the word “victim.”
Englebrecht, Christine, PhD., Derek T. Mason PhD., and Margaret J. Adams EdD, The Experiences of Homicide Victims’ Families with the Criminal Justice System: An Exploratory Study, Violence and Victims, vol. 29, no. 3, 2014, pp. 407-21. ProQuest, https://search-proquest-com.weblib.lib.umt.edu:2443/scholarly-journals/experiences-homicide-victims-families-with/docview/1534085830/se-2?accountid=14593, doi:http://dx.doi.org.weblib.lib.umt.edu:8080/10.1891/0886-6708.VV-D-12-00151.
Wemmers, Jo-Anne, Victims’ Experiences in the Criminal Justice System and Their Recovery from Crime, International Review of Victimology 19, no. 3 (September 2013): 221–33. https://doi.org/10.1177/0269758013492755.