Victim Rights in the US and Europe-A US Constitutional Amendment-NOVA-DC Public Safety Radio

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Radio Program available at http://media.csosa.gov/podcast/audio/2013/10/victim-rights-in-the-us-and-europe-a-us-constitutional-amendment-nova-dc-public-safety-radio/

[Audio Begins]

Len Sipes: From the nation’s capital, this is DC Public Safety. I’m your host Leonard Sipes. Our guest back at our microphones, Will Marling, he is the Executive Director of the National Association for Victim Assistance, www.trynova.org. Today we’re going to be talking about victims’ rights, international activity on the part of the National Organization for Victim Assistance, and a constitutional amendment, our favorite topic. Will, welcome back to DC Public Safety.

Will Marling: Thank you, Len, as always, wonderful to meet with you.

Len Sipes: Where do you want to start, Will? I mean I’m always interested in the constitutional amendment, so I’d like to start off with that. And just to refresh everybody’s memory, that we have somewhere in a ballpark of about 20, latter 20, 30 states out there that have constitutional amendments protecting victims’ rights, but there is no United States constitutional amendment that applies to federal crimes, correct?

Will Marling: That’s exactly right. Now, there are 33 of the 50 states have state constitutional amendments for victims’ rights, but at a federal level, there are none. And that contrast with upwards of 23 prescribed rights for those who are accused of a crime. But if you take that same crime where somebody is accused, and of course in our system we treat that as an accusation that needs to be tried and considered thoughtfully in a court of law, but in that same crime victimization, the victim of that same situation has no right to rights under the United States Constitution.

Len Sipes: Right. And the whole idea is to expand rights as they apply to federal crimes. But in particular, I’m going to make a leap and suggest that the states that don’t have constitutional amendments protecting victims’ rights, they will be further inclined to consider a constitutional amendment, their own constitutional amendment for victims’ rights, because of the fact that there’s now a federal constitutional amendment for victims’ rights. Am I right or wrong?

Will Marling: Well, certainly. I mean actually that’s a good insight that states constitutions could be amended – 17 states that don’t have it could be amended to include victims’ rights. I think the main push for us is that at a federal level, since we don’t have a victims’ rights amendment to the United States Constitution, we certainly have the Crime Victims’ Rights Act, which as a federal act, does provide rights, and services, and provisions for federal crime victims, but of course that’s 5% or less of what goes on. Most crimes are tried at a state and local level. So a United States constitutional amendment would do two major things, two big things. One big thing is that, similar and parallel to the average citizen who might be accused of that crime, the process of providing protections under the law for that accused would be there, but also the victims. And so, just like we have things like Miranda that went all the way to the Supreme Court, we could also have, victims could argue their case under the Constitution. And secondly, another dimension that’s quite intriguing to us is that soldiers would also have victims’ rights. Under the Uniform Code of Military Justice, there are some legislative rights, just like there are even in non-constitutional states, but from the standpoint of victims’ rights, this would actually address that. A U.S. soldier who is a victim of a crime could also appeal to the United States Constitution as a victim to protect those liberties, for the rights of that victim.

Len Sipes: And where that’s really important are the accusations of rape and sexual assault against female members of the Armed Forces. So there, they certainly have protections that they never had before.

Will Marling: Well, that’s true, and just to kind of bring in a balance there, the military is 85% male, and so numerically actually sexual assault against men is the preponderance. Now, since there is a 15% female population in the military, sexual assault has a higher proportion against women, but sometimes people don’t actually recognize that men as well as women in the United States Military are being sexually assaulted. And of course, both need to be respected in the service, they need to have rights affirmed, and then they need to have fair just processes to protect them going forward.

Len Sipes: A very important clarification, something that did not come to mind. You’re doing victim assistance training, I remember from a radio show months back, for the Department of Defense, correct?

Will Marling: Well, yeah. The Department of Defense project that we’re working is actually certification. The Department of Defense has the Sexual Assault Response and Prevention Office, it’s out of the Pentagon, and that office has been specifically tasked with dealing with the problem, the crime, of sexual assault. And we work with that entity to certify the victim advocates in the United States Military and those come under the moniker of the Department of Defense Sexual Assault Advocate Certification Program. Great, long military acronym as usual. But it’s an important one, because what we’re doing is we’re affirming standards of care for those advocates who are serving sexual assault victims in all branches of the military.

Len Sipes: Now, where are we with the constitutional amendment, any progress, any more support? I mean between the federal shutdown and debates over the Affordable Care Act, they seem to be busy with other things. Are they being supportive of…? Do they have additional members of…? The constitutional amendment starts off in the House, correct?

Will Marling: In this particular exercise and this particular strategy, we are working in the United States House of Representatives to start.

Len Sipes: Okay.

Will Marling: Under Article 5 of the Constitution, to amend the Constitution you could work through Congress first, either side. Both houses, both sides of Congress, have to amend, well, they have to approve by two thirds majority, any amendment to the Constitution, and then it would go to the states for ratification, three quarters of the states need to do that. You could start with the states and then work to Congress. We’re starting with the House of Representatives, because that’s the place that probably, from the standpoint of where we are, is maybe the biggest hill to climb.

Len Sipes: Okay.

Will Marling: But when we get that then we move forward.

Len Sipes: So you can start either in the House or the Senate, you just chose to start at the House?

Will Marling: We chose to start in the House in this particular context, just because of the current environment, the structure of the House at present; we felt it was a place to really address first. There’s been strong support historically anyway, for constitutional amendment in the Senate, and the last foray into this particular arena was started in the Senate. And so, yeah, it came two votes shy of cloture which was moving it to a vote, moving it out of committee, into a vote. And we just needed two votes to get it out and then to the floor, and there were forces at work, but that shows how much progress can be made.

Len Sipes: All right. So you were two votes short in committee in the Senate. I don’t mean to be too technical about this. So but for whatever reason you decide this time around to go in the House of Representatives to start there.

Will Marling: Right.

Len Sipes: Okay. How much support have you gotten?

Will Marling: Well, we’re currently quietly and carefully educating members of the House of Representatives. And what I would say is obviously it’s a big issue. To give perspective in any two year session of Congress. You can have between 12 and 14,000 bills presented.

Len Sipes: Right.

Will Marling: So between 2% and 4% of those pass. And when you’re talking about amending the Constitution, of course you’re talking about a smaller number. So we’re taking the time and giving the effort to going door to door in a sense, educating members, because they have so much that’s pulling at their attention, vying for their interest.

Len Sipes: Sure.

Will Marling: And so we just want to – we’re being very systematic in saying, “Here’s the amendment as it stands to propose. It’s House Joint Resolution 40. Give it some consideration. Let’s continue to educate-talk about the value that this represents, not only to the nation now, but to our posterity.”

Len Sipes: Well, are you encouraged? Do you think it’s going to go through this time? Do you think you’ll have enough support in the House? And consequently, do you think you’ll have the equal amount of support in the Senate?

Will Marling: Well, it’s about timing. We have, from the Senate side, Senate leadership I think has inferred and indicated that, “Hey, let’s see what you can do in the House side.” because that’s kind of a heavier lift, it’s a larger body of people, there are a lot more things at work, a lot of more issues at play. And if we can get through there then I think there’s a focus for the Senate to say, “Okay, there’s momentum, let’s work on it from our side.” In the House side, I would say I’m encouraged by the progress we’re making. I can’t specify for you specific benchmarks as such. It certainly can garner co-sponsorship and folks in your listening network who have the mind to look it up and contact their legislator to say in the House, “Hey, would you consider co-sponsoring House Joint Resolution 40?” We’re all for that. What we’re finding there are, as you mentioned right at the outset, there were a couple of big forces at work, including the shutdown and then the deliberations over the Affordable Care Act. So actually Congress, many parts of Congress, many would know here, because I’m in the Washington D.C. area too, people were working, there were things that were going on in Congress, and we did see some activity, and we were having conversations even then. So I’m encouraged, that’s how I would say. It’s a long slow deliberate process and of course timing is everything here, as you know, Len.

Len Sipes: Oh yeah. And it’s a bit of a risk because you’re starting off in the House, and the House; they only have two year tenures.

Will Marling: Well, that’s right.

Len Sipes: [OVERLAY] said that they have six year tenures.

Will Marling: Right.

Len Sipes: So you could find people who are supportive and they could be voted out.

Will Marling: Well, that’s right. But what our hope is in this particular term, if we can get the House to approve it, then if the House changes and we move over to the Senate to get approval, we’ve got that kind of momentum, as opposed to vice versa. Because you can educate, go to the Senate, maybe they approve it, then you have another election cycle, more changes, more education. And so we’re trying to play this smart.

Len Sipes: Constitutional amendments are extraordinarily rare. I mean everybody listening to this program needs to understand that. It’s difficult to get an amendment to the United States Constitution. There simply aren’t that many of them.

Will Marling: Well, that’s right. I mean, I don’t know what the average is. My speculation is they’re like 20 years at best, in terms of how often we amend the Constitution. And some would contend that amending the Constitution shouldn’t be done, or even very extremely rarely, and I agree. I mean my personal principal is, yeah, that’s true. It was not a perfect document, but a strong document. I’ve been reading about the early days of our Constitution and its founding. But at the same time, the founders wisely understood that it needs to be amended. And we know historically, there were important things to give citizens in this country a freedom, for one, and give other members of this society the right to vote, for another. And of course, if we didn’t have a process for amending, or if we didn’t make a commitment to amending, that would not have happened. So helping people understand by and large that victims of crime, those who are drawn into the systems, the justice systems of state, local, and as well federal government, without rights, they have no standing in that system under the law, they just don’t. They work for the government as such, as a witness, at best.

Len Sipes: And we understand that that’s fundamentally wrong, that victims of crimes should have constitutional protections at the federal level and in every state throughout the United States.

Will Marling: Well, that’s right. Because the average citizen, if you walked out on the street and just started interviewing people, and said, “Okay, if you’re accused of a crime, let’s say you’re arrested, what are your rights?” And most people, my kids, I’ve got teenagers, and they’d say, “We have the right to remain silent. And if you give up the right to remain silent – on, and on, and on.” Why? Because they’ve seen Miranda played out on television shows.

Len Sipes: Right.

Will Marling: If you turn around and say, “Okay, you’re the victim of that crime, what rights do you have?” They’re going to say, “Uh, well, uh, hmm, I’m not sure.” But that victim should have rights. Most people would contend that victims should have rights, because at the heart of it, they’re the one that experiences the brunt of the harm. And it’s always shocking for people to experience that firsthand, that, “Oh, I don’t have the rights I thought I did.”

Len Sipes: Well, I interviewed Lisa Spicknall, who is a victim’s advocate, and went through a tragic experience of having her own two children, infant children, murdered by a former husband, domestic violence and victim’s issue all rolled up into one. And as a victim’s advocate, that’s one of the things that she said very, very clearly, is that very few people understand that the criminal justice system is built around the offender not the victim.

Will Marling: That is exactly right. And our contingent is not to take away one right from the accused, at all. If I’m accused of a crime, under the Constitution, I want every protection, because I didn’t commit that crime, I’ve been falsely accused, and I want a deliberate consideration of the truth of that matter. At the same time, victims not having rights should change; because the treatment, the respect, the dignity, the right even to know what’s going on, is not a given in our society, believe it or not. The right to be told how this process is moving forward, how prosecution is interacting with the accused, in some sectors, you don’t have any right to any information about a case that applies directly to you.

Len Sipes: I just find that astounding. I, as a member of the criminal justice system for well over 40 years, I just find that astounding. But we’re more than halfway through the program. Let me reintroduce you, Will. Ladies and gentlemen, our guest today is Will Marling; he is the Executive Director for the National Association for Victim Assistance, www.trynova.org. On your website, www.trynova.org, you’ll find information about the constitutional amendment and find information about victims’ rights. How many people does the National Organization for Victims Assistance on a yearly basis, Will?

Will Marling: Well, it depends on how you want to calculate that. We have a toll free victim assistance line, 800-trynova, and that is nationwide, North American as well, we get some Canadian calls, we also get an occasional international call, but we take about 6,000 victim assistance calls a year on that line, and as well, we take a number of victims’ assistance e-mails. We will tell people that I would let people know, we don’t do a lot of victims’ assistance over e-mails, specifically because e-mail is not secure…

Len Sipes: Right.

Will Marling: Especially in some contexts. You do not want a domestic violence victim communicating details that could be accessed by a perpetrator. And also, it’s just complex. We know we’d like to talk to people real time to ask meaningful questions that help get to the resources they need. But otherwise we do take those e-mails, and then of course we do a lot of training with advocates. So we feel like, as a network, we touch literally thousands of people beyond even our victims’ assistance [INDISCERNIBLE 00:16:14], because of the great network we have, incredible, incredible, people.

Len Sipes: Well, that is the heart and soul of the National Organization for Victim Assistance, the fact that you are all involved in certifying and training and assisting victims’ advocates throughout the United States. And that’s one of the reasons why you are certifying the victims’ advocates for the US Department of Defense.

Will Marling: That’s right. Yeah, I mean we’re extremely proud of that. It’s humbling; I will admit to you, because there’re so many that do such good work. We are one of other really good, viable, committed, national, and local, and state, victim assistance type organizations. But I’m honored to lead the organization that actually tends to be, has to be the oldest. And some of my European colleges indicated that they believe that they believe that Nova is the oldest victim assistance organization of its kind in the world, let alone the nation. But many good organizations have emerged after that. I sometimes say, in hopefully a humble way, that a good bit of Nova DNA actually does transmit out to many of the wonderful organizations that are at work today in this area.

Len Sipes: Well, what I’d like to joke about, and it’s really not a joke, and take it in all seriousness, is that as a member of criminal justice system for, again, over 40 years, and at the national and state level, when you got a call from Nova, you paid a lot of attention to whoever was on the end of the phone, because Nova carried a lot of clout. So Nova’s carrying a lot of clout internationally. Tell me about the international activities that Nova’s been involved in?

Will Marling: Yeah, we’ve been meeting with some international colleagues. And it’s a very informal process at the moment. We’ve established a small working group, two weeks ago, very recently, obviously, to this program. We met New York City. And representatives of Victims’ Support Europe as well as a group from Korea, there’s a crime victim assistance network there. We met in New York City, in Manhattan, near the United Nations, as a focal point to discuss how we could collaborate and raise the voice to victims internationally. And we’ve established what is simply called the Victims of Crime International. I know it’s not real creative, but…

Len Sipes: Oh, it’s very Google friendly.

Will Marling: Yeah, thank you. And for search engine optimization, we’re trying to be really functional. But what it represented is a working group, to bring together thoughts on how we can better organize, and of course, as an entity, pursue some funding that might help facilitate these conversations and collaborations internationally. The reality is that I even mentioned here, we have some growing to do, even with our own Constitution and victims’ rights. Europe is taking some leadership with a very recent directive that is probably one of the most powerful national, internationally – a European Union directive for victims’ rights and services, that touches all 28 member states in the European Union, and of course like 120 languages. And bringing those voices together with ours and with those in Asia, some really good victim services and victims’ rights being done in Asia, we believe the opportunity is ripe for us to join those and affirm really international standards for these kind of things, and an international commitment. Because in some countries the human rights is a consideration that should be on the table, let alone victim rights. So we believe the time is now really to enhance the needs of victims around the world.

Len Sipes: Here’s an observation. I don’t know if it’s true or not. I remember a lot of victims’ work decades ago being done through the United Nations. Now it seems as if the European Union is taking the lead in terms of international victims’ rights. Am I right or wrong?

Will Marling: Well, you’ve got some good observations. The United Nations has focused on victims’ rights, and it’s not specifically or solely focused on crime victims’ rights in that sector. They have different foci; they have different dimensions to that. They do have an area that focuses on crime victim related issues. But the European Union has demonstrated some very strong leadership in the past two years, specifically, related to this directive. Victim Support Europe has been functioning for 25 years. And so I think it’s a combination of both, that the United Nations has obviously large peace agenda items – I mean the issues of war and peace and the demands on them to try and facilitate those things are big – along with human rights and then the issues related to crime victims’ rights. So what I’m hoping happens is that it truly becomes synergistic and that it become collaborative, even at a EU, European Union, and United Nations, level.

Len Sipes: Now, what prompted the activities and the connections in terms of the European Union? I mean was it part of recognizing that Nova is the oldest organization in probably the world, in terms of protecting victims’ rights? Did they come to you on that basis or is there something spurring the development of victims’ rights? Is there a new victims’ rights movement in Europe that’s spurring this?

Will Marling: Both. Both of those were really keen observations, Len. The first thing was that, relationally, Nova and Victims Support Europe, we ended up kind of speaking at each other’s conferences, and talking, and getting to know one another. So there was this, I call it a providential relational overlap, where we said, “Oh, wow! You’re doing that and we’re doing this.” And we started kind of cross-collaboration and training. And that caused us to start talking more specifically about the similarities and differences with our works, but also the needs around the world. At the same time, the issue of victims’ rights has emerged. In July, no June, of this year, European Union leadership, as well as the US Attorney General, met in Dublin, Ireland before, I think it was the G8 summit or after, I can’t remember which. But they met and the agenda item specifically was victims’ rights in our two particular sectors, Europe and the United States. And so, yes, there is this focus right now, for whatever reason, on victims’ rights and services, and the importance they should have to both the United States and the European Union.

Len Sipes: I don’t want to get into a larger discussion of crime, but crime tends to go up and down. Not necessarily in the same percentages, but the trend lines seem to go up and down, regardless as to whether it’s the United States, Canada, Europe, Australia, New Zealand, the Western industrialized countries, Japan, I mean there are a lot trend lines that are similar. And I’ve noticed that the Bureau of Justice Statistics came out a couple of days ago and said that we now have had two consecutive years in a row of rising property and violent crime in the United States. So it seems to me that, possibly, because we’ve had coming off a 20 year decline overall, in terms of violent and property crime, that the issue of victims’ rights may have taken a bit of backseat, because the overall crime issue has taken a bit of backseat. But with rising crime, do you feel that that gives a greater emphasis, that places a greater emphasis, and the proper emphasis, back on victims’ rights?

Will Marling: Well, that could be true. I would track with you that there are these larger trends sometimes that are beyond even the more obvious things of financial declines or whatever. There are a number of forces, as I’ve read, that can create increases and decreases in crime rate. What I try to always bring in terms of my role as focusing on the needs and the voices of victims is that even when there’s a decline in the crime rate, there’s still a lot of victims.

Len Sipes: Oh, yes.

Will Marling: Even when it goes down. And of course we celebrate every percentage point that crime decline represents. At the same time, there are still profound needs that exist there. So I suspect that you’re right. My sense is that with a greater focus on the rates going up, that there’s greater media exposure, and some interest in this kind of story. And what are we going to do about it? What needs to be done about it? Of course, how can we affect, hopefully, a decline in the crime rate? And that could well be why we’re seeing that greater interest.

Len Sipes: One of the other topics that you want to talk about. Well, you’ve had some additional information on victims’ rights beyond the international and beyond the constitutional amendment, anything new there?

Will Marling: Well, internationally, the victims’ rights issues?

Len Sipes: No, no, no, I mean are there victims’ right issues that are coming up, bubbling up, in the United States that go beyond what we’ve talked about in terms of international activity, and go beyond what we’ve talked about in terms of the constitutional amendment?

Will Marling: Well, there certainly can be specific and isolated battles for just dignity and respect for victims. You worked for 40 years with law enforcement and you’re, in many ways I’ve told you, you’re my poster child for the kind of officer the victims would want to have and take that report because you have a sensitive concerned spirit, but you’re also extremely competent. Both of those things –

Len Sipes: But I think most of us in the criminal justice system are pro-victims. I think it’s the bureaucracy that simply gets in the way of treating victims as if they need, as they need to be treated. We’ve had cutbacks throughout the country in terms of law enforcement officers. We’ve had cutbacks throughout the country in terms of parole and probation agents. I mean we’ve had some police departments, some major police departments, where they’ve lost 30%, 40%, and in some cases in New Jersey, 50% of their police officers. When you’re struggling with cutbacks and you’re struggling with lack of manpower lack of person power, you don’t have a lot of time to give to victims of crime. So I think we are pro-victim, but I think at the same time there’s only so much time that you can give. And when you cut the time back that far, I think victims get hurt in the process.

Will Marling: You’re right. There’s no question about that. And when we take victim assistance calls here, and I try to do my part in assisting there, and use my expertise, but also contribute time to helping a victim on a victim assistance call, it’s not uncommon for me to try to educate them, it’s not an excuse for them, because when they’re struggling, they’re looking for help, and it’s hard to say to them, “That officer couldn’t give you as much time as you would’ve wanted.” Why? “Because they’re stretched thin.” At the same time, we try to educate on those very issues to give people context for the limitations of resources that might exist, and also to encourage our officers, and prosecutors, and the like, that even sometimes the smallest simplest declarations of respect and also control, small demonstrations of giving control, can make such a profound difference. We go back to the issue of trauma with victims. The cause of trauma primarily in folk, is when they lose control. And that control is beyond their capacity, either to respond to, or to react to. And then, when having lost control that has resulted in a loss of life, or an injury, or even finances, or as we many times say, the loss of innocence now, when we give them back an opportunity to control, that can be very therapeutic in their lives. And so it’s hard. You’re exactly right. When you’re stretched thin and you’re running from call to call – my heart goes out to these folks who are working so diligently, and it can be hard to be – exude more patience in that context. At the same time, I can encourage them that whenever even the smallest step of respect and control is offered, they might not know how big a difference that can make.

Len Sipes: Well, and I think that’s the message to all of us within the criminal justice system, is that we must reach down deep, and I know we’re busy, I know we’re running from call to call, I know parole and probation agencies have huge caseloads, I know correctional officers have huge caseloads; but all of us need to reach in deep and get beyond the moment, and realize that that’s somebody’s mother, that’s somebody’s father, that somebody’s brother or sister. I mean we really have to have some sympathy and provide some respect for the victims, as well as making sure that we protect the rights of victims, and that’s best done through a constitutional amendment.

Will Marling: You are spot-on. I couldn’t have said it better.

Len Sipes: I mean sometimes it takes that, it takes the law, it said, “Okay, it’s no longer optional, folks. It’s the law.”

Will Marling: That’s right.

Len Sipes: We must follow the law. So regardless of how busy we are, we need to adhere to the law and respect victims.

Will Marling: That’s right. But we live in rule of law society and that means that law is king. Not a person, law is king. And so we refer – what does the king say? The law as king says, “This is the way it is.” And until we really, we can say we believe so many things, we can say there are inalienable rights, but we have to articulate those in a constitutional sense, or a legal sense, at the very least, to say, “This is what matters to us.”

Len Sipes: Well, –

Will Marling: And that empowers the system.

Len Sipes: Well, you’ve got the final word, ladies and gentlemen; we’ve been talking to Will Marling. He is the Executive Director of the National Association for Victim Assistance. www.trynova.org, www.trynova.org. We appreciate your calls. We appreciate your e-mails. We even appreciate your comments and criticisms. And we want everybody to have themselves a very, very pleasant day.

[Audio Ends]

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