Victim impact statements are written or oral information from crime victims, in their own word about how a crime has affected them. All 50 states allow such statements to be introduced at some phase of the sentencing process. Most states even allow victims to submit such statements at parole hearings, and the information in this statement is generally included in the pre-sentencing report presented to the judge.
Most of us know and have read the victim’s statements in the Stanford sexual assault case. This letter was presented and presumably was heard by the trial judge presiding over the trial and who sentenced the defendant. We do not know her identity—all we know, as in most cases of sexual assault or abuse, is that she is identified as “Emily Doe.”
The victim is allowed a great deal of discretion to state on the record what he or she wants the judge, probation officer, prosecutor, defense attorney and most of all, the defendant to know about the following: the physical damage caused by the crime, the emotional damage caused by the crime, financial costs to the victim from the crime, medical, psychological or both treatments required by the victim or his or her family, the need for restitution, his or her views of the crime or the defendant, victim’s views on an appropriate sentence. The last two are allowed in all states but most states do want to hear from the victim of all aspects.
Such statements provide information about the damage to victims that would otherwise have been unavailable to the court or parole boards. It is also critical since some statements may not have been allowed during trial and if they do testify, they can only respond to narrow, specific questions. This is the only time the victim has no restraints to voice out what he or she feels.
The outcome of “hearing” the voice of the victim especially in violent crimes as sexual assault cannot be diminished. They are meant to be impactful and should bring us all to feel how a victim of a crime deals with the aftermath of the violence. This is exactly what has occurred with the victim’s statements in the Stanford sexual assault case.
The jury of eight men and four women returned a guilty verdict on all three felony counts against the former Stanford student: assault with the intent to commit rape, sexual penetration with a foreign object of an intoxicated person and sexual penetration with a foreign object of an unconscious person.
The judge had a sentencing range to choose from, two, four, or six years in prison for count one; and three, six or eight years in prison for each of the other two counts. All three are “straight” felony charges, which can never be reduced to misdemeanor status. As we know now, Superior Court Judge Aaron Persky sentenced him to six months county jail, not state prison. I will follow this article with my views of judicial discretion on sentencing at a later article. But for now, my focus are victims of crime.
Victims of crime are as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors and law enforcement had no legal obligation to keep families of victims informed. But the passage of the law changed all that. Victims or their families now could have an attorney representing and voicing their opinions on court rulings and prosecutorial acts. Courts must consider the safety of victims and families when setting bail and release conditions. Victims and family members have legal standing in bail hearings, pleas, sentencing, and parole hearings.
As for federal crimes, there are similar victim or witness rights such as presence at the hearing, right to be reasonably heard involving the release, plea, sentencing or any parole proceeding of the defendant, the right to proceedings free from unreasonable delay and the right to be treated with fairness and respect.
I have represented several victims of domestic violence, criminal threats, stalking, assaults and fraud cases, among others. When I represent a victim(s), the prosecutor must notify me of all court hearings, plea bargaining, sentencing or probation terms. My clients gain a comprehensive overview of the case proceedings and their “voice” is heard. I have spoken on behalf of my clients as to how they feel about a plea bargain, whether to request the maximum sentence or leniency, monetary restitution amount requested and so forth.
The criminal arena is intimidating, confusing and requires a skilled attorney in this area who has both the experience and the expertise to explain, advice, and reach a fair and equitable solution on behalf of the victim and their families.
For white-collar crimes, I have represented victims in their requests for monetary restitution. It is important for victims, who are entitled to restitution, to keep a record of their losses, medical expenses, property damage and counseling expenses. Documentary proof must be strict and reliable. Such information will be necessary and needed by the Probation Department. Moreover, if a civil action to collect is a viable recourse, a comprehensive accounting will be required.
Victims and their families have rights that are guaranteed under Marsy’s law in California and in some levels of federal prosecution. Emily Doe’s voice has been heard loud and clear in the Stanford case and having both been a Los Angeles County District Attorney and now a criminal defense attorney, I am very aware of the constitutional rights afforded on the criminal defendants and it is time that victims of crimes are equally given center stage.
If you have any questions or comments, email me at [email protected] or call my office at 310-601-7144.
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