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21 Update on L. Related Educ. 22 (1997)
Seeking Justice for the Victim

handle is hein.journals/ulred21 and id is 80 raw text is: Seeking Justice for the Victim Victims of crimes, as well as defendants, have legal rights- and they are growing. Richard T. Andrias Update on Law-Related Education, 21.2, 1997, pp. 22-23. 0 1997 American Bar Association, ew would wish to see a return to the hue and cry justice of feu- dal England or the justice of self-appointed posses of our own Wild West. Vestiges of private justice still exist in England's magistrate courts and the lowest criminal courts of many of our metropolitan areas. For the most part, however, criminal prosecutions have become depersonalized with pro- fessional prosecutors, defense attor- neys, and judges trying cases before jurors who have no prior knowledge of the cases. In modem American prac- tice, victims have been reduced to tes- tifying for the prosecution just as any other witness does. Since over 90 per- cent of criminal cases end in plea bar- gains (or dismissals), most victims never get their day in court. Even when a victim does testify, the focus of the proceedings invariably remains on the defendant and his or her rights. Individual victims express a variety of reasons for seeking greater partici- pation in the criminal process-dis- trust of prosecutors and the courts, redressing a perceived bias in favor of the accused, restitution, and even retri- bution. But the desire to be treated fairly and with understanding and the need to be heard as victims. not mere- Richard T. Andrias is an associate justice of the Appellate Division, First Department, New York State Supreme Court in New York. He is also chair of the Victims' Committee of the Crimi- nal Justice Section of the American Bar Association. ly as witnesses, are the universal con- cerns of the victims' movement. It is not surprising that victims per- ceive our criminal justice system as favoring the accused. Our due process model was developed in response to an oppressive sovereign. Thus, the Bill of Rights was enacted to protect the defendant from a powerful govern- ment and speaks exclusively of a defendant's rights: the right to a speedy, public trial; the right to a jury; the right to counsel; the right to con- front and cross-examine his or her accuser. A defendant's right not to tes- tify against himself or herself now encompasses a right to remain silent upon being taken into custody. The law of evidence presumes a defendant innocent until proven guilty beyond a reasonable doubt. Decades of Advances The proposal to amend the U.S. Con- stitution to protect the rights of crime victims that is pending before the current Congress is the culmination of several decades of legislative, judicial, and executive efforts to advance the interests of crime victims in the crimi- nal process. Some of these changes involve special victims, such as chil- dren, abused spouses, and rape vic- tims; other reforms affect all victims of crime. Legal changes affecting rape vic- tims are a good example of these reforms. Lord Chief Justice Matthew Hale's 17th-century commentary put the focus on the victim's truthfulness in rape prosecutions for almost 300 years: while rape is a most detestable crime ... it must be remembered that it is an accusation easily to be made and hard to be proved, and harder to be defended by the accused, though never so innocent. Because rape was pun- ishable by death, judicial interpreta- tion added that a woman must earnest- ly resist her attacker, however risky. Corroboration of a woman's testimony was also required, although few rapes occur in public. Beginning in the early 1970s, the corroboration requirement was eliminated, rape shield laws pro- tected a victim's sexual history, and the definition of rape was refined to eliminate earnest resistance. Courts now allow expert testimony about rape trauma to explain the lack of prompt outcry and other symptoms seemingly at odds with forcible com- pulsion. Many police departments now use specially trained-usually female-officers to question victims. Many prosecutors' offices have assis- tance units for victims and skilled prosecutors who specialize in trying both stranger and nonstranger rape cases. The overall changes achieved by victims' advocates in numerous states parallel many of the special victim reforms. Police officers are trained to be sensitive to victims' trauma when taking the report of a crime. Prosecu- tors' offices have victim-assistance units. Courts routinely issue orders of protection (stay-away orders) and, in certain situations, take threats to vic- 22 UPDATE ON LAW-RELATED EDUCATIONICrime and Frecdom. VOL. 21 NO. 2

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