OP-ED: MARSY’S LAW – Good thoughts making bad law

CACR-22, better known as Marsy’s Law is a proposed Constitutional Amendment that will add language to our state Constitution giving rights to victims of crime. While the idea of granting victims further protections facially appears laudable, the actuality is that this “feel good legislation” will ultimately create far more problems than it resolves and is wrought with unintended consequences.

First, Marsy’s Law promotes division and exclusion by creating a set of rights that apply to only a designated classification of people, which is contrary to the principles upon which this nation was premised – that all people are created equal and are born with unalienable rights that apply to all American citizens. Moreover, by insisting that a Constitutional amendment is required to create these rights implies that rights are derived from the Constitution as opposed being inherent and derived from being born.

The implication of this this faulty premise promotes the more dangerous idea that the Government, who must first propose an amendment to the Constitution, is the giver of rights and therefore can take rights away. This is why any consideration given to amending our Constitution should not be measured by good feelings, but be thoroughly vetted with research, logic and understanding.

Second, Marsy’s Law is a solution in search of a problem. New Hampshire statutes already provide for victims’ rights in many ways that make Marsy’s Law redundant. Moreover, additional and further protections for victims are found in the criminal code, domestic violence and restitution bodies of law.

Marsy’s Law inaccurately presupposes that police officers, prosecutors and judges, among others ignore these statutory protections for crime victims.

Third, Marsy’s Law is unconstitutional. It contradicts existing rights, including; a fair and speedy trial, due process, confrontation, effective assistance of counsel and the very presumption of innocence until proven guilty. While many may not be concerned about the rights of the accused, that is until they are the accused, falsely or otherwise, the potential end result of such a violation is of concern – appeal, mistrial or case dismissal.

If a mistrial or dismissal is without prejudice, the victim will be subjected to the entire process again. If the mistrial or dismissal is with prejudice the victim will be without any remedy in the criminal court system.

In the event of an appeal, it potentially could result in a retrial or dismissal. In the event of multiple appeals, the victim can be subjected to the process as many times as the case is overturned and set for retrial. Therefore, while Marsy’s Law may seek to reduce a victim’s chance of being re-victimized by the Court system, by creating a contradiction within our Constitution, the very objective sought to be reduced may very well be increased.

Fourth, Marsy’s Law effectually diminishes a victim’s privacy. Currently a victim is the actual victim with some exceptions. This amendment proposes to expand that definition to include any person who is “directly or proximately harmed” by offense or act. This expanded definition includes giving rights to family, friends, and non-human entities such as corporations and businesses.

Therefore, should a rape victim, the actual victim of the rape, wish to limit the knowledge possessed by his or her family, he or she can no longer do so, as those family members are also victims under the proposed language and will be afforded every right the actual victim is given. Therefore, they will likewise have the same standing, for example, as the victim on sentencing, which is terribly inconvenient if the accused is another family member for whom some family members will argue for light sentencing against the wishes of the actual victim.

Fifth, law is hierarchical and as such, the Constitution trumps state laws. Ergo, wherever Marsy’s Law conflicts with an existing statute, the statute will fail. An unfortunate loser will be the statutory protections for juvenile delinquents, particularly where they have been afforded privacy.

Similarly, other statutes that preserve trial integrity, such as requiring that witnesses not be privy or listen to other witnesses’ testimony so not to be influenced by it would be implicitly repealed, as all witnesses bearing the label “victim” would be permitted to hear and perhaps even read and evaluate all that testimony prior to trial. This situation would not bode well for the falsely accused whose so-called victims need to get their stories straight.

Ultimately, no matter how well-intentioned Marsy’s Law appears to be, as a practical matter it will create more problems and result in unintended consequences, only some of which are outlined here. Accordingly, taking a stance against Marsy’s Law is the best and only way to actually protect victims.

Nicole R. Fortune

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