Victim’s Role in Criminal Proceedings: Past, Present and

Future

BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm
based in New York City

the dawn of the U.S. legal system, victims were central – indeed, the essential element – in the
prosecution of crimes. Criminal investigations, criminal proceedings and restitution efforts were private,
that is, they were initiated and pursued by those who had been harmed. Crime had not yet been framed
as an offence against the state, or society, but was viewed as a failure of individuals and a violation of
interpersonal relationships. Before the Revolution, an active role in the criminal justice process was not
a privilege granted to victims; rather, it was their responsibility. This regime, drawn almost entirely from
English common law, considered only one crime as an offence against the state: treason.

This is a system of justice we would hardly recognize today, one in which the domains of criminal and
civil law were nearly indistinguishable. It was not fated to last. With the American Revolution came
fundamental changes in the understanding of crime, leading to the birth of what today we would call
the modern U.S. criminal justice system.

Having established their sovereignty, the colonies quickly recognized that new social groups, with their
own interests and vulnerabilities, had been born. Soon, public prosecutors were appointed, with
burgeoning bureaucracies to follow. Crimes themselves came to be seen no longer as offenses against
the individual, but as a form of harm against society. By the 19th century, private criminal prosecutions
had been “entirely eliminated,” according to Mary Boland, currently one of the foremost legal advocates
for victim’s rights and co-chair of the American Bar Association’s Victim’s Committee. As time passed,
the victim fell out of the criminal process’s view, until victims were little more than vehicles for the
presentation of evidence assembled at the state’s pleasure.

It was not until the 1960s that the victim, as an individual with rights and interests, would again come
into focus. The social revolutions of the 1960s led to a feeling of social instability that itself led to
concerns with the issue of crime, and victim’s rights groups emerged. Because of a shared experience of
oppression and vulnerability, champions of the Civil Rights Movement and the Feminist Movement
coalesced around an understanding of criminal justice that emphasized victims’ rights. Crucially, calls for
reform from progressive quarters were joined by similar ones from the conservative law and order
movement, which urged renewed attention on the failings of the criminal justice system to combat
rising crime rates.
A full-throated crime victims’ rights movement emerged in the 1970s, galvanized by the 1973 U.S.
Supreme Court decision in Linda R.S. v Richard D., in which the Court affirmed, in dicta, that victims
cannot compel criminal prosecution because “a private citizen lacks a judicially cognizable interest in the
prosecution or non-prosecution of another.”

Meanwhile, grassroots organizing led to the creation of domestic violence and rape crisis centers across
the Nation, organizations that would come to form the backbone of a vocal national coalition.
Reactionary impulses were also at work. In 1975, Rule 615 of the Federal Rules of Evidence was enacted,
requiring courts to exclude witnesses, including victims, from the courtroom on the request of either
prosecution or defense. Understandably, this has been widely cited as the low-water-mark in the battle
to reintegrate victims into criminal proceedings. At the same time, the justice system had begun to
realize that treating victims as valuable participants in proceedings was not contrary to, but supportive
of, its own aims.

In 1974, Donald E. Santarelli, then-Director of the Federal Law Enforcement Assistance Administration,
became acquainted with the work of Frank Cannavale. In his book Witness Cooperation, Cannavale
argued forcefully that the loss of cooperative witnesses, victims who had become fed up with a justice
system seemingly uninterested in their own needs, was the primary cause of prosecution failure.
Santarelli was instrumental in funding the first victim and witness assistance pilot projects, including one
in Denver’s District Attorney’s Office, which often went far beyond notifying victims of important court
dates. In collaboration with grassroots organizers, a quickly-growing roster of victims’ assistance
programs began offering crisis intervention services and on-call help lines. Likewise, prosecutors started
to seek out and consider victims’ opinions on bail determinations, plea bargains, sentencing and parole
hearings.

After his inauguration in 1981, President Ronald Reagan soon established the President’s Task Force on
Victims of Crime. In its December 1982 final report, the Task Force acknowledged what many members
of the public already knew: “[T]he innocent victims of crime have been overlooked, their pleas for
justice have gone unheeded, and their wounds – personal, emotional, financial – have gone
unattended.” As a starting point, the Task Force recommended a Constitutional Amendment that would
enshrine the rights of victims.

While that has not yet happened, the crime victims’ rights movement has spurred enormous legislative
successes. To date, 33 states have ratified constitutional amendments enlarging the rights of crime
victims, according to the National Crime Victim Law Institute at Lewis & Clark Law School. The remaining
states have all passed legislation on the subject. In 1982, Congress enacted the Victim and Witness
Protection Act, granting federal courts the authority to award restitution to victims as part of a
defendant’s sentence. The Victims of Crime Act of 1984 established the Office for Victims of Crime and
the Crime Victim’s Fund, which compensates victims for a variety of crime-related losses.
While certainly welcomed, these initial legislative measures were often criticized for focusing
disproportionately on financial remuneration at the expense of victims’ other needs. The Crime Victims’
Rights Act of 2004 went further, effectively granting victims a participatory role in criminal proceedings.
The Act enumerated eight rights to which victims are entitled in federal criminal cases:

The right to be reasonably protected from the accused.

The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole
proceeding, involving the crime or of any release or escape of the accused.,

The right not to be excluded from any such public court proceeding, unless the court, after receiving
clear and convincing evidence, determines that testimony by the victim would be materially altered if
the victim heard other testimony at that proceeding.

The right to be reasonably heard at any public proceeding in the district court involving release, plea,
sentencing, or any parole proceeding.

The reasonable right to confer with the attorney for the Government in the case.

The right to full and timely restitution as provided in law.

The right to proceedings free from unreasonable delay.

The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Unfortunately, in the view of many advocates, the promise of inclusion heralded by the Crime Victims’
Rights Act has remained illusory. These rights are rarely enforced, says Mary Boland. The National Crime
Victim Law Institute has called them “paper promises.”

Recent years have seen a new, double movement, in which the individualization of victims and their
increasing impact on criminal justice proceedings is matched by efforts to individualize offenders and
promote rehabilitative strategies over punitive measures. This is different from the movement of the
1970s that posited victims’ rights in opposition to defendants’ rights. Within this emerging regime, the
lives of victims and offenders are no longer isolated from one another and the rights of one do not
depend on limiting the rights of the other. In many ways, both parties to crime share the same path. It is
not a paradox that, under many alternative theories of justice, the state should once again fall into the
background, much as it did before the Revolution. The movement for restorative justice, a concept that
has come to prominence since the late 1970s, focuses on minimizing the state’s role in proceedings,
focusing instead on victim-offender mediation.

Related Readings:
 Mary Boland, Crime Victims’ Rights Movement, Oxford Bibliographies (last modified Aug. 2013) (fee
based resource).

Mary L. Boland & Russell Butler, Crime Victims’ Rights: From Illusion to Reality, 24 ABA Criminal
Justice, Spring 2009.

President’s Task Force on Victims of Crime, Final Report (Dec. 1982).

Federal Rules of Evidence, Rule 615 (Cornell LII).

Linda R. S. v. Richard D. et al., 410 U.S. 614 (1973).

Charles Doyle, Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771, CRS
Report (Dec. 9, 2015).

Crime Victims’ Rights Act, C-SPAN (Sept. 29, 2009).

Victim and Witness Protection Act of 1982, S. 2420, 97th Cong., Pub. L. 97-291 (1982).

18 U.S.C. § 3771 (2016) (Crime Victims’ Rights Act) (US DOJ).