Commentary

Do crime victims’ rights belong in Iowa’s constitution? The answer isn’t so simple

January 24, 2022 8:00 am

Crime victims say they want a voice in court, but some of their advocates are resisting a constitutional amendment for victims’ rights. (Photo by Prostock-Studio/Getty Images)

When someone says we need stronger rights for crime victims, it sounds like a no-brainer. It’s hard to find anyone who would say they lack sympathy for people who have been harmed by criminals.

But when it comes to whether to include a statement of victims’ rights in the state constitution, as legislation now being considered in Iowa proposes, the issues aren’t so clear. Political parties mean nothing here, and people who normally would be allied are lining up on opposite sides.

House Study Bill 525 is backed by the Iowa chapter of a national organization that is trying to enact victims’ rights constitutional amendments called “Marsy’s Law” in all 50 states and the U.S. Constitution. Among the provisions include rights to be notified and to be heard at criminal and juvenile justice proceedings involving the sentencing, parole or release of a defendant. The proposal creates a constitutional right to restitution for victims and creates standing for them to assert their rights.

Again, it seems like there’s little to quarrel over. But at a recent subcommittee meeting on the bill, representatives from the ACLU of Iowa were aligned with county prosecutors in opposing the measure. and a domestic abuse victim who supported it was on the opposite side from a representative of the Iowa Coalition Against Domestic Violence.

The group backing the legislation, according to the Marsy’s Law website, is named after Marsalee “Marsy” Ann Nicholas, a California college student who was killed by her ex-boyfriend in 1983. Just a week later, on the way home from Marsy’s funeral, her mother stopped at the grocery store for a loaf of bread and was confronted by her daughter’s accused killer. The family had not been notified he was out on bail. Marsy’s brother, billionaire Henry Nicholas, founded and funds the movement, which says it has enacted versions of Marsy’s Law in 36 states.

Victims’ roles may change

The issue of “standing” for victims in criminal cases is controversial. I won’t try to get into all the legal ramifications here. But John Werden, county attorney for Carroll County, noted that roles and relationships don’t always fit under a single label. “Today’s victim is tomorrow’s witness, next week’s suspect and perhaps the week after, a defendant. We deal with many of the same folks at different roles,” Werden said. “And I think it will be shocking to police officers, state special agents, troopers, sheriffs and deputies to know that these overlapping investigations will involve this person’s lawyer having standing in the courtroom to get access to confidential police investigations.”

He added, “… The answer is not just no, the answer is hell no.”

Advocates say current law isn’t always followed

People on both sides of the issue say Iowa has one of the more robust victims’ protection laws in the country in Chapter 915 of the Iowa Code. But a fighting issue in Iowa is whether those protections belong in the state constitution.

Rep. Marti Anderson, D-Des Moines, worked for years in the state’s Crime Victim Assistance Division in the attorney general’s office. She spoke in favor of the constitutional amendment, noting that if victims have legal standing in a case, they can go to the judge if they aren’t notified of a hearing, for example. “Everybody I know knows that judges and lawyers pay more attention to the Constitution than they do to the Code of Iowa. Everybody knows that,” she said at the subcommittee meeting.

Tony Phillips was one of two lobbyists for Marsy’s Law who attended a subcommittee meeting last week on House Study Bill 525. He said provisions in Iowa law aimed at protecting victims aren’t enough.

“Yes, we have statutory language in Chapter 915 that’s intended to avoid these mistakes but far too many Iowans can tell you their firsthand accounts of how the law is not being followed,” Phillips said.

One of those firsthand accounts came from Shal-Marie Winter, an advocate for Marsy’s Law. She told the subcommittee she suffered a traumatic brain injury when her husband punched her in the head in front of her children. She was living in Clinton County at the time.

“But the way our criminal justice system failed me was more traumatizing than the assault itself,” she said at the meeting. “Through the entire criminal justice process, I was never notified of any of the court dates concerning my case. Not once was I told that I could be at the hearings, I was never informed on what was happening with my case, I never even got to see the judge. My safety was never considered,” she said.

States experience unintended consequences

It’s a hard story to hear, said Rep. Steven Holt, R-Denison. He’s the chairman of the House Judiciary Committee and says he’s worked on the issue for years. He brought up the proposed Marsy’s Law amendment in a subcommittee, which advanced the proposal to committee without a recommendation for passage. Editor’s note: This paragraph was updated to correct the status of the bill, which can advance to a vote of the full Judiciary Committee.

He said in an interview he’s not closing the door on the possibility but he’s not sure the legislation belongs in the constitution. If there are unintended consequences, as some states that have enacted Marsy’s Law have experienced, it takes a minimum of four years to fix a constitutional amendment, he noted.

Several states have begun trying to roll back Marsy’s Law provisions in their constitutions or have had them blocked by the courts. South Dakota in 2018 ended up having to change their constitution after a Marsy’s Law amendment led to unintended consequences that hindered police investigations and service to high-risk victims and forced expensive staff additions to deal with all the notification requirements for “victims” that might have only a tangential relationship with a crime. Advocates in Iowa say they’ve already made changes to their proposal to address these and other issues.

In other states, lengthy ballot measures have run into legal challenges. Just last month, the Pennsylvania Supreme Court ruled that the constitutional provision approved by voters in 2019 could not be enacted into law as approved, the Pennsylvania Capital-Star reported, because it packed 15 separate issues into a single ballot measure. Montana had a similar issue with its Marsy’s Law amendment.

Holt aims at tightening state law for crime victims

Holt said he hopes to pass legislation this year to plug holes in state law dealing with crime victim rights.  One example raised by ACLU of Iowa, he said, is that first-time victims of domestic abuse aren’t included in notification requirements because the crime is a misdemeanor for a first offense.

He said while advocates are focused on the issue of fairness because people accused of a crime have constitutional protections, he does not believe it makes much difference in practice. “The challenge is that sometimes county attorneys and judges screw it up and get it wrong. And I don’t think that would be any different, even if it was in the constitution, because you have human beings working in a system, and there are going to be errors,” Holt said.

People want to frame the issue as being for or against victims’ rights, he said. “It’s not that simple in this situation,” he said.

“… It’s not about whether we believe in victims’ rights or not, of course we do. It’s about how that is handled, and where is most appropriate: code as opposed to constitution.”

I don’t always agree with Holt, but I consider him a straight shooter and I believe he’s an honest broker on this issue. Iowans who are interested in victims’ rights clearly have an opportunity this year to make changes in state law, if not the constitution. I hope Iowans who back Marsy’s Law will recognize that even strong allies of crime victims might disagree on this issue.

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Kathie Obradovich
Kathie Obradovich

Editor Kathie Obradovich has been covering Iowa government and politics for more than 30 years, most recently as political columnist and opinion editor for the Des Moines Register. She previously covered the Iowa Statehouse for 10 years for newspapers in Davenport, Waterloo, Sioux City, Mason City and Muscatine. She is a leading voice on Iowa politics and makes regular appearances on state, national and international news programs. She has led national-award-winning coverage of the Iowa Caucuses and the Register’s Iowa Poll.

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