Crime Victims Rights Suzanne Elwell

Crime Victims Rights Suzanne Elwell
Crime Victim Justice Unit Office of Justice Programs Minnesota Department of Public Safety Minnesota Victim Assistance Academy October 2, 2014

Agenda Introduction/Crime Victim Justice Unit
Overview of statutory scheme Definition of crime victim Categories of crime victim rights Who has responsibilities Crime victim rights throughout criminal justice process Pre-charging – law enforcement intervention and case screening Prosecution phase – prosecutor’s office and courts Post conviction – prosecutor’s office, probation, courts, etc. Wrap up/questions Thank you for giving us the opportunity to present to you today about reparations and crime victim rights. In this day and age with online trainings available 24/7 and webinar announcements appearing daily in our inboxes, we are gratified that you carved three hours from your busy schedules to attend this training. I recognize that the information I’ll be presenting will be a refresher for some of you, but for others it may be new material. Hopefully all of you will learn something along the way that will help you to improve your work with crime victims. In the hour remaining, I want to discuss the key crime victim rights that apply as a case moves through the criminal justice system – at the pre-charging phase, where law enforcement plays a large role, then the prosecution phase, and briefly the post conviction phase. While we may have some time for questions at the end, please feel free to ask them when you have them as well. I’ll first gives ome background on my unit, the Crime Victim Justice Unit, and why we’re in a good position to talk about CVR in Minnesota and then move on to provide an overview of our CVR scheme in Minnesota before talking about specific CVR.

Crime Victim Justice Unit
Formerly known as the Office of Crime Victims Ombudsman Same function, different name. Minnesota Statutes § 611A.72-74 Established in 1986. Reorganized into the Department of Public Safety in 2003. My unit has been around since 2003, but its precursor was the Office of Crime Victims Ombudsman, or OCVO, created by statute in 1986 as the first CVR compliance office in the nation. An ombudsman is somebody who investigates complaints about government, and OCVO was given the authority to investigate complaints from victims about elements of the CJS.

CVJU Responsibilities
Information and referral Short term assist Intensive assist Formal investigation of complaints alleging statutory rights violations and/or victim mistreatment by elements of the CJS Most complaints are handled informally. Despite a reorganization in 2003 that placed OCVO under the auspices of DPS, our “ombudsman” function remains little changed. We provide information and referral to crime victims (and others) statewide, short-term and intensive assists with victims with the goal of helping them to resolve their concerns and complaints with agencies directly, and formal investigations of complaints alleging statutory rights violations and/or victim mistreatment by elements of the CJS. It is our job to be familiar with CVR statutes and practices and to see that they’re enforced. From our many contacts with victims, we’ve become pretty familiar with what rights tend to get overlooked and when victims feel they’ve been mistreated.

What victims think Myths Misconceptions, and
The problem with Hawaii 5-0, CSI, and Law and Order.

Common Misconceptions about Law Enforcement
All law enforcement interventions lead to an arrest. All cases are investigated – and right away– and physical evidence will be gathered and forensically tested. I get to know what’s happening with the investigation (and see a copy of the report). The police will call me to let me know the charging status of my case. My case is as important as any other. Many victims have had no prior contact with the CJS, so they come to us with preconceived notions of how the CJS works. Some of these notions are probably drawn from tv crime dramas, especially relating to how much forensic evidence gets collected and tested, but many arise from their sense of what a reasonable person would believe to to fair and just, especially one who’s just been victimized. Victims believe that …

Common Misconceptions about the Prosecution Phase
If a crime happens, the offender will be charged. I can press/drop charges. I can influence what will happen at sentencing. My case is as important as any other. People who do bad things go to prison. Again, victims have misconceptions at this phase – some of which may be attributed to tv crime dramas, but, again, others of which are understandable if you are able to put yourself in the shoes of someone who has been victimized and believes justice should be served. Victims believe that …

Information is key Predominant Theme
Getting information about rights and available resources Getting information about the case at critical points Preventing others from getting information about victim

Crime Victim Rights “Crime Victim Bill of Rights” Minnesota Statutes Chapter 611A (And elsewhere) Most CVR in Minnesota are contained within Minnesota Statutes Chapter 611A, also known as the “Crime Victim Bill of Rights,” with the “elsewhere” being statutes relating to bail, sentencing, probation, corrections, juvenile delinquency, and data practices. While “Bill of Rights” connotes a constitutional set of rights, Minnesota (unfortunately from my perspective) is not among the 33 states with constitutional victim rights amendments. What this means is that victims in our state are even more reliant on CJS personnel to assert and uphold their CVR as victims essentially lack the standing to mount a legal challenge or an appeal if they believe their rights have been violated.

In Minnesota Victim rights apply to all crime victims, including victims of juvenile offenders. Applies to both misdemeanors and felonies. Most pre-trial victim rights apply without the victim being required to take any steps Most post-conviction victim rights require opt in. A few other points to know about our statutory scheme is that CVR apply to all crime victims without exception – including victims of juvenile offenders and both misdemeanor- and felony-level cases. Also, most CVR at the pre-trial stage apply without the victim being required to take any steps, i.e., don’t need to “opt in,” whereas post-conviction, most CVR require the victim to opt in.

Definition of Crime Victim
A person who suffers loss or harm as a result of a crime. Includes family members, guardian, or custodian of a minor, incompetent, incapacitated or deceased person. The definition of a crime victim in 611A is simple: a person who suffers loss or harm as a result of a crime. A decade or so ago, the definition was expanded to include the guardian, custodian, or family members of a minor, incompetent, incapacitated, or deceased person.

Victims have a right to . . . Notification Participation Protection
Four Main Categories Victims have a right to . . . Notification Participation Protection Compensation There are four main categories of rights: victims have a right to receive notification of their rights and their case; victims have the right to participate in their case as it moves through the CJS; victims have a right to be protected from harm; and victims have a right to be compensated for their losses resulting from the crime.

Rights kick in throughout case
Law enforcement intervention Case screening Initiation of the case At key points throughout prosecution After case disposition The CVR we’ve been talking about kick in throughout the case as it progresses through the CJS.

Who has responsibilities?
Law enforcement Prosecutors Judges Court personnel Jails and detention facilities Probation and corrections Correctional facilities Others As you can see, almost every group that composes the CJS has CVR responsibilities (state them all), with prosecutors having the most responsibilities. Law enforcement has fewer statutory obligations, but they typically have contact with vastly greater numbers of victims, so the role they play with CVR cannot be understated. In your folder, you’ll find our reference guide for CJS personnel that lists the CVR that each “element” of the CJS is responsible for – in our time together, it would be impossible to go over every CVR that attaches to each “element,” so I hope after today you’ll be motivated to review the section that pertains to you in the near future.

PRE-CHARGING Law enforcement intervention and case screening
The pre-charging phase is where victims have contact with law enforcement.

Notification of rights The Gateway Right
Initial Notice of Victim Rights: Law enforcement officers must distribute a notice of rights and information to all crime victims at initial contact. “The Blue Card” or the “Victim Information Card.” The first specific CVR I’m going to talk about is called the Initial Notice of Victim Rights. This is considered a GATEWAY RIGHT—without providing this notice, most victims would not even be aware that they have CVR or of the resources available to help them cope with the crime. Most agencies fulfill this obligation by providing a victim information card. This notice must be provided at initial contact with the victim – and that includes reports over the telephone or online. Please note that this notice must be provided to ALL crime victims, not just DV and sexual assault victims. GETTING INFORMATION AT THE POINT OF THE CRIME.

Victim Information Card
Must include: Right to be informed of and participate in prosecution process and request restitution Reparations information Right to request name be withheld from public Local crime victim program Domestic Abuse – additional information regarding OFPs and rights Homicide – additional information on rights and procedures Should include Prosecutor’s office Jail and VINE Social services/help lines/etc. The victim information card must notify all victims of the .. Domestic violence victims and homicide victims must be provided with additional information. Domestic violence victims must be told about how to obtain an OFP and the relief it can provide; contact information for the nearest shelter; and the right to ask a prosecutor to file a criminal complaint. Homicide victims must be told that, by law, the murder defendant cannot benefit financially from the crime – either through a will, insurance policy, or contractual agreement, and of their right to ask the court to issue a protective order preventing the offender from selling, destroying, or otherwise disposing of property belonging to the deceased victim. Because the homicide victim notice applies to relatively few victims (thankfully), the CVJU prepared a homicide brochure to give to victims together with the victim information card to meet the requirements of the statute. If possible, take the time to point out resources you think would be helpful to the victim (like reparations), and be sure to document provision of the initial notice in your incident report – it protects you and makes my job easier if the CVJU gets a complaint!

Incident Reports - Right to Protection
Information Related Information related to CSC victims automatically withheld by law enforcement. Information about victims of child abuse and neglect automatically withheld. Identity of juvenile witness can be withheld if law enforcement agency determines that subject matter of investigation justifies protecting the identity of the witness. Victim or witness can request law enforcement withhold identity from the public. Many of the rights related to protection concern the protection of the victim’s identity, and there’s a lot of attention being paid to this topic in the CVR world – NCVLI has done a number of trainings on this topic that are available on its website in its CVR toolkit (albeit, this is mainly in the prosecution phase). MAC also has a memo they wrote with MNCASA and MCBW about protecting victim privacy in the pretrial stages. Recognize that many victims have an interest in keeping their information private, to not only protect themselves from harm or retaliation, but also to avoid the stress of embarrassment and unwanted attention. Our statutes ensure that identifying information for all CSC victims and all child abuse and neglect victims be automatically withheld in incident reports. The identity of a juvenile witness can be withheld in some instances, and, as mentioned earlier, any victim or witness can request that law enforcement withhold his or her identity from the public as well.

Domestic Violence Victims
Law enforcement must write a report for incident. If no arrest, law enforcement must assist victim in obtaining necessary medical treatment and provide notice to victim of rights and resources. Provide copy of report to victim, advocate, or attorney at no cost. Given the ongoing nature of DV, Minnesota provides some additional CVR for victims in these case …

Sexual Assault Victims
Identity of sexual assault victims must be withheld from public. Cannot require sexual assault victims to undergo polygraph examination as a condition of investigating or prosecuting a case. As for sexual assault victims, again, protecting their identify is key. I doubt that the polygraph prohibition comes up that often, but here it is – have to provide certain notices prior to offering a polygraph to CSC victims as well. What comes up much more often with sexual assault victims are complaints about being mistreated – about not being believed and about being blamed for the assault. That’s why “delayed reports” – the vast majority of reports – need to be handled with great sensitivity. It’s easy for victims to get the impression that they are to blame for the “delayed report,” so law enforcement must demonstrate an understanding of why the victim may not have initially reported and validate that. It’s important to provide context for the “tough questions” that often need to be asked after a sexual assault as part of the investigation. Explain why you have to ask these questions, given what you know the prosecutor needs to be able to prosecute the case and the types of questions the defense attorney will ask to try to discredit the victim. Again, a best practice is to connect the victim to the advocate who can provide information and support during this difficult stage.

Notice to decline Prosecutor must notify victim of decision to decline to file charges in cases of domestic violence, stalking, and criminal sexual conduct. Prosecutor must provide reasons for the decision to decline charges and provide information about obtaining an OFP or HRO at no cost to the victim. Minn. Stat. § 611A.0315 Again, remember that victims don’t know what’s going on with their cases – they’re not the ones with the information. Because of the unique nature of dv and sexual assault cases (and the fact that the perpetrators are known and often play a significant role in the victim’s life), in the pre-charging phase, prosecutors are required to notify these victims if their cases are declined for charging. They’re required to provide reasons for the decision for the record, but we say it’s important to let the victim know the rationale as well. Prosecutors must also provide information on obtaining an OFP or HRO at not cost. I can’t let this slide go by without stating my sentiment that it is a best practice to notify victims and provide rationale in ALL cases that are declined.

Right to Protection Pre-trial Release Notification:
Jails and custodial facilities must notify victims of offender’s release from custody: Crimes of violence. Minn. Stat. § subds. 1 and 2. Domestic abuse. Minn. Stat. § , subd. 6 Applies to victims of juvenile offenders. The remaining CVR I’ll go over in the pre-charging phase pertain to jails and detention facilities, and again, we do get complaints from victims that they’re not being provided with these notices.

Right to Protection Pre-trial Release Notification:
Oral notice to victim of: Time of release Conditions of release Next court appearance (if known) Battered women/sexual assault services Followed up by a written notice as soon as practicable. The release notification must include the … While this right applies to only victims of violent crime, all victims can register with VINE to learn the custody statute and obtain release notification about the offender via text, , phone, or TTY.

Right to Protection Pre-trial Release Input:
Prosecutor must present relevant information involving the victim or the victim’s family account of the alleged crime to the judge to be considered in determining the arrested person’s release. Minn. Stat. § § , subd. 1(a) and , subd. 2(a)

Victim Information and Notification Everyday
VINE Victim Information and Notification Everyday Custody status information Request release notification for county facilities 24-hour, toll free automated telephone service Anonymous and confidential Anyone can use Telephone service: English, Spanish, Somali, and Hmong Web service: English and Spanish Things to know about VINE are that … Mobile app available!

Case Scenario Exercise
Peg’s story Part 1

PROSECUTION PHASE Now let’s move on to review CVR that apply during the prosecution phase.

Notification of rights The Gateway Right
Supplemental notice of victim rights by prosecutor: Prosecutors must notify victims of all rights under chapter 611A within a reasonable time after the offender is charged or petitioned. Typically by letter, along with notice of charges being filed. This is another “gateway right” because at this point, as soon as possible after charging, it is the prosecutor’s responsibility to notify the victim of the charges and to notify victims of ALL rights under 611A. This notice is called the “supplemental notice of victim rights,” and it’s typically done by letter, with an enclosed brochure (often from the OJP office) listing all CVR at all stages of the case. In many offices, victim impact statement and restitution information is also included at this time.

Hearing Notice Victims have a right to be informed of the prosecution process. Victims must be notified of the plea and sentencing hearings. Changes in court proceeding schedule if asked or subpoenaed to testify. Victims frequently call us to complain that their rights were violated because they did not receive notice of a hearing and consequently missed a critical event in the case. We let them know that, while it’s a best practice, prosecutor’s offices are not required to notify victims of each and every hearing. By statute, the only hearings where the prosecutor MUST provide notice are the plea and sentencing hearings. Arguably, because victims have the right to “participate in the prosecution process,” one could say that they need to be notified of all hearings in order to make this particular right a reality. If possible, do try to provide these hearing notices for all hearings. As for changes in the schedule, the only time the prosecutor is required to provide this notice is if the victim has been subpoenaed to testify. While this requirement does not apply to other court proceedings, in order for victims to assert many of their rights, they need to know when certain court proceedings are taking place. In addition, treating victims fairly means that you inform them when a court date has changed, especially if you know that the victim had plans to attend that hearing. Victims often take time off from work, get child care, or take extraordinary steps to get themselves to the courthouse so it is important that they be kept informed of changes in the schedule.

Right to Protection Right to safe and secure waiting area.
Right to a support person at omnibus and other pretrial hearings for CSC victim. Right to a support person during testimony in delinquency proceeding. Victims have a right to safe and secure waiting area at the courthouse. CSC victims have the right to have a support person at omnibus and other pretrial hearing. And victims of juvenile offenders have the right to have a support person in the courtroom during testimony in a delinquency proceeding.

Case Developments Right to notice and give input if pretrial diversion for violent crimes. Notice and reasons for dismissal in cases of domestic violence, sexual assault, and stalking plus provide information about obtaining an OFP or HRO at no cost to the victim. Notice of plea agreement: contents, right to attend hearing, and right to object (orally or in writing).

Plea Agreement Notice is required prior to presentation of plea
If victim is not present at hearing, but has communicated objections to prosecutor, the prosecutor shall make these objections known to the court. Good faith effort. Best practice to document provision.

“You don’t have to be there”
Pre-Trial Hearing Plea Hearing Sentencing Hearing

Another kind of right – Access to info
How Do I Get a Copy of My Police Report? Available on the OJP website. Finally, before I go on to victim rights compliance, I wanted to touch on another kind of right or category of rights, that is those related to access to information. Chapter 611A deals with rights of participation in the process and notification throughout the process, but crime victims also have a need for information about the case and the offender. They must look to Minnesota Statutes chapter 13.

TRIAL AND SENTENCING

Rights at Trial Right to request speedy trial.
Right to be notified of schedule changes if subpoenaed to testify. Victim address and other information may be withheld from defendant and/or defense attorney. Witness and victim may not be compelled to disclose home/work address, telephone number, or DOB on the record in open court. Privacy of victim records. (See “Privacy Memo”) Right to closed courtroom during minor CSC victim’s testimony.

Rights at Sentencing Victim Impact Statement Restitution
The victim has a right to be present at the sentencing and give a Victim Impact Statement. Community victim impact statement. Restitution The victim has the right to request restitution for losses. The opportunity to give a Victim Impact Statement is a fundamental crime victim right. One of the few places in the process in which the victim has a voice. Very important to the victim When this right is denied, victims will feel revictimized, angry with the system, and lose faith in the system. Community victim impact statement about social and economic impact of crime on persons and businesses in the community.

POST-CONVICTION

Notification after case
Final disposition of the case Sentence modifications (felony, crime of violence) Appeals (petition, presence, disposition, release) Petition for expungement Civil Commitment (petition, outcome) Civil Commitment (release) Certain predatory offenders (Terms of conditional release, the release of offender, and limited information about offender. ) Sentence modifications include information on date, time & location of review

Peg’s story Parts 3 and 4

Victim request for HIV testing
Confidential request Only after conviction Only for CSC and violent offenses where there has been evidence of exposure. Compare to DOC testing process Minn. Stat. § 611A.19

Right to Compensation Emergency Fund – State funds distributed by local organizations to crime victims in small amounts for emergency needs. Restitution – through submitting evidence of loss to the criminal court process (prosecutor’s function) Reparations – through filing a claim with the Crime Victims Reparations Board (OJP function) Special reminders for Hennepin County: Going to initial submission of claim only Loss of support (help identify guardians of all children) Funeral home selection Crime scene clean-up Repeat, repeat, repat Submit an affidavit to the prosecutor’s office or probation officer who is conducting a pre-sentence investigation. Getting a restitution order is easier than collecting a restitution order. (We can devote an entire training sessions to restitution.) Reparations is available to the victim even if crime is not charged or defendant who was charged was not convicted. A separate training module just on reparations.

Right to Protection Release Notification: Post-conviction Upon request, victims shall be notified of release, transfer when custody status is reduced, or escape of the offender from prison or custodial institution. Applies to victims of juvenile offenders, too. Compare to pre-trial release. Must opt-in Victim can get information about juvenile to assist in asserting this right.

VINE County facility 877-664-8463 www.vinelink.com Anyone can use.
Victim Information and Notification Everyday Offender information (all inmates) Release notification (jails & detention facilities) Anyone can use.

Minnesota CHOICE Dept of Corrections www.minnesotachoice.com
VINE still an option for victims of offenders in county facilities. DOC facilities—victims must use MN CHOICE

Dept of Corrections Users groups: Post notification rights
Persons who register can: Get information about offenders in a DOC facility Request release notification Provide input into re-entry plans Ask to participate in restorative justice opportunities. Improve communication with DOC case managers and field agents. Users groups: Post notification rights VINE still an option for victims of offenders in county facilities. DOC facilities—victims must use MN CHOICE

VICTIM RIGHTS COMPLIANCE

What happens if rights violated?
No specific penalty for non-compliance with statutory rights. No legal recourse for victims for noncompliance No “do-overs”

Two categories of CVJU complaints
Statutory rights violation Violation of specific statutory right. Victim mistreatment Rude or inappropriate treatment of victims Not following the law or agency’s own procedures and policies Poor or inadequate investigation Unethical conduct Abuse of discretion

CVJU Responses Informal assistance A lot of second opinions
Setting realistic expectations Advice on how to communicate Advice on how to complain Repairing relationships Connecting people Violations of victim rights are not punishable. More of an educational opportunity to talk with the agency, make sure they understand the statute and their obligations to crime victims, as well as to help them improve their response to victims. CVJU views the investigations more as a change agent opportunity and a chance to help the agency make sure the same doesn’t happen to other victims.

CVJU Responses Formal investigation Request and review documents
Interview parties Prepare Report Findings Recommendations “Further discussion” Violations of victim rights are not punishable. More of an educational opportunity to talk with the agency, make sure they understand the statute and their obligations to crime victims, as well as to help them improve their response to victims. CVJU views the investigations more as a change agent opportunity and a chance to help the agency make sure the same doesn’t happen to other victims.

Common Complaints about Law Enforcement
Not given a victim information card. Offender not arrested Not informed of release. Inadequate report or won’t let me see it. Rude, insensitive, or victim blaming behavior. Poor communications. Inadequate investigation. Not surprisingly, when things don’t go as they expected, victims end up having complaints. Here are some of the most common complaints we get about law enforcement. Some of these may come as no surprise to you as each agency has its own citizen complaint procedure, something we strongly encourage victims to access before filing a CVJU complaint. Victims complain that they were … Poor communications can mean not letting me know what’s happening with the case or simply not returning phone calls and s and generally being hard to reach. While the first two complaints are about statutory violations, the rest are about “victim mistreatment.” And, while I know we all strive to provide the best service possible to victims because we want to and it’s the right thing to do, I admit that complaint avoidance can also be a motivating factor.

Common Complaints about Prosecutors
Not provided with notice of prosecution and supplemental notice of victim rights. Inadequate charges. No notice of hearings. No notice of plea agreement and right to object; inadequate plea agreement. Not given opportunity to present victim impact statement and request restitution. Rude, insensitive, or victim blaming behavior. And, again, when the reality fails to mesh with expectations, there will be complaints. Here are some common complaints we hear about prosecutors’ offices … To provide the best service to crime victims – and, again, avoid complaints – it’s important for prosecutors’ office to know and be prepared to assert CVR during the prosecution phase.

Wrap Up Information is key
Getting information about rights and available resources Getting information about the case at critical points Preventing others from getting information about victim

Resources for victims Resources for professionals
ojp.dps.mn.gov Resources for victims Resources for professionals

OJP crime victim brochures – free!
Crime victim brochures available in English and Spanish, and PDF versions available online in Somali and Hmong. Financial help (reparations) brochures available in English, Spanish, Hmong, Somali, Cambodian, and Vietnamese. Brochures available on OJP website. Order form on OJP website.

Contact Information Suzanne Elwell, Director Crime Victim Justice Unit x 8 Office of Justice Programs Minnesota Department of Public Safety 445 Minnesota Street, Suite 2300 St. Paul, MN • ojp.dps.mn.gov

Crime Victims Rights Suzanne Elwell

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