Why We Need National Crime Victims’ Rights Week

By Mai Fernandez

Everybody knows that the accused have rights under our legal system.  But what rights do crime victims have? And what if their rights are not enforced?

The Role of Victims in Plea Bargaining

By Robin L. Barton

On Dec. 3, 2008, Laura Garza, a 25-year-old aspiring dancer, left a Manhattan night club with Michael Mele, a 26-year-old registered sex offender, and disappeared...

The "Missing White Woman Syndrome"

According to the National Missing and Unidentified Persons System (NamUs), there are as many as 100,000 active missing persons cases in the United States at any given time. If you went solely by what you read in the media, you’d probably assume that most of these cases involve pretty white women.

Stop the Cycle of Violence Against Young People—and Support the Victims

By Mai Fernandez

Did you know that children are more likely...

Blogging on Murder: A Reporter's Story

By Laura Amico

A prosecutor once told me of D.C.’s...

After the Exoneration, What About the Victim?

By Mai Fernandez

Hardly a month goes by, it seems, without another news story about a wrongly convicted inmate being freed as a result of DNA testing. According to the Innocence Project, 266 people have been exonerated in U.S. history.  The ordeals of these exonerees are heartbreaking.

But what about the victims in these cases? We have to start thinking about society’s responsibilities to them.  

Victims commonly react with shock to the news of exoneration. One Texas victim told us she was “confused, angry, and terrified” when she learned the wrong man had been convicted of raping her 20 years ago. “How could this happen?” she asked.

This victim lapsed into a depression, fearing that the wrongly convicted man would kill her, as he had threatened to do when he was tried. “Every day seemed like a struggle just to survive,” she said. “Only this time, you have to deal with the guilt that you helped put the wrong man in prison.”  

Working with such victims creates enormous challenges for prosecutors and advocates. Some victims have moved, married, had children, and never told their loved ones about their victimization. Learning about an exoneration may cause victims to feel unsafe and deeply resentful of the criminal justice system that failed them. Some victims even tell authorities never to contact them again about their case.

Chris Jenkins, an advocate in the Dallas County District Attorney’s office, recommends creating a carefully considered protocol for contacting and supporting victims.

District Attorneys’ offices must decide when to contact the victim. Should it be when the defendant requests the test? When the state agrees to allow the test? When the test establishes the guilt or innocence of the convicted individual? On the one hand, why alarm the victim about the test request because the test may later confirm the defendant’s guilt? But the victim may find out through an automated victim notification system like Victim Information and Notification Everyday (VINE), that the offender has been moved to another location for the test. For that reason, prosecutors and victim advocates may want to consider contacting these victims before they are notified to explain why the offender is being moved. 

Prosecutors and advocates must be prepared to answer victims’ questions about the law and forensic DNA. Victims usually want to understand the process of DNA testing and what happens after an exoneration occurs. They want to know whether the investigation will be reopened and what are the chances—often after many years—of apprehending and convicting the real offender. 

In sexual assault cases where the statute of limitations on prosecuting the crime has been reached, victims must deal with the state’s inability to prosecute the real offender, even if the individual is identified and apprehended. The sense of injustice such victims feel can be overwhelming. 

When offenders apply for exoneration, victims need to know their options and rights. First, they need to understand they can refuse to be involved with the case. They also need to know their notification rights and what victim services are available after notification and testing.

Throughout the testing process, authorities must strive to protect victims’ privacy. In one Dallas case described by Chris Jenkins, the police needed a DNA sample from a victim, but the victim did not want her family or her employer to know about the case. So a detective flew to the city where the victim lived and met her at the security office of her local airport. The District Attorney’s office obtained what was needed, while still protecting the victim’s privacy.

Finally, authorities should treat victims in exoneration cases as the victims of a newly committed crime, regardless of whether the crime can be prosecuted. These victims need support, advocacy, and full access to their rights. They may need victim compensation for counseling to help them cope with the psychological trauma exoneration (and renewed fear of the real offender) may cause.

They should not have to face these challenges by themselves. 

Because exonerations are likely to continue or perhaps increase in the future, society must redouble its efforts to support the victims of these crimes. Justice requires no less.

Mai Fernandez is executive director of the National Center for Victims of Crime. Its online DNA Resource Center includes interviews with victims and forensic experts, a Webinar series, news articles, and conference presentations on forensic DNA also offers a range of information on forensic DNA for victims, victim service providers, and the public. Among the interviews is a conversation with Debbie Jones, a Texas victim advocate and the victim in a Texas exoneration case.

Is the Family of a Defendant Entitled to Privacy?

By Robin L. Barton

When Jared Loughner was arrested after opening fire in a Tucson strip mall on Jan. 8, his life became an open book subject to the scrutiny of the media and the general public. In an effort to learn more about the man responsible for this tragedy, the media descended upon his parents. They kept silent for several days, but eventually issued a brief statement saying in part, “We ask the media to respect our privacy.” Should the media honor this request?

In the eyes of the criminal justice system, an individual arrested for a crime is innocent until proven guilty. Yet in the eyes of the media, the opposite is often the case. And although the legal system is restricted by the safeguards in place to protect a defendant’s privacy, journalists aren’t so hampered and generally feel free to dig into every aspect of the defendant’s life. There’s a strong case to be made that anything and everything about a defendant is fair game. But it’s not necessarily appropriate for journalists to turn the lives of the defendant’s family—his parents, spouse, siblings, children—upside down.

When the media turns its attention to a defendant’s family, this scrutiny can cost the family its privacy. According to reports, Loughner’s parents, Randy and Amy, have always been very private people. Their neighbors seem to know very little about them, describing them as “antisocial.”

After the shooting, reporters gathered on the Loughners’ street and in front of their house. At one point, an overzealous photographer jumped their back fence to get a picture of what appeared to be a skull and candles, forcing Randy Loughner to call the police. Otherwise, the Loughners have stayed in seclusion.

No one understands more about the loss of privacy that the Loughners are experiencing than Susan Klebold, mother of Dylan Klebold, who was responsible for the Columbine shootings with Eric Harris. In an article Klebold wrote for O magazine in 2009, she describes the immediate aftermath: “Helicopters began circling overhead to capture a killer’s family on film. Cars lined the road and onlookers gawked to get a better view.”

The media firestorm that can be result from a high profile case can itself cause a tragedy. For example, the loss of privacy for Bernie Madoff’s family in the wake of his arrest and guilty plea coupled with the subsequent civil lawsuits and negative publicity may have driven Madoff’s son Mark to suicide. But he and his brother were apparently under investigation for their role in their dad’s Ponzi scheme. So perhaps Mark wasn’t an innocent bystander.

Going hand in hand with the loss of privacy is the blame inevitably heaped on a defendant’s family by the media. Susan Klebold said that although she felt like another victim of the tragedy, the rest of the community didn’t see it that way. In fact, according to a newspaper survey taken in the wake of Columbine, 83% of respondents blamed the shooters’ parents.

The jury is still out on Loughner’s parents. But blame is already beginning to fly in their direction. For example, reports suggest that there were warning signs about their son’s mental state that they ignored. Of course, it appears that Loughner’s friends and teachers as well as members of law enforcement may also have missed opportunities to help this troubled young man.

In the coming months, we’ll likely learn more about Loughner’s life and the role his upbringing played in his actions on Jan. 8. Did the Loughners raise a monster and so “deserve” all this scrutiny and criticism? Or are they simply victims who weren’t trained to recognize the possible signs of a serious mental disorder and were unprepared to handle a son with one?

It’s certainly appropriate for the media to ask these questions and explore the answers. But until all the evidence is in, the media would do well to reserve judgment on Loughner’s parents and try to respect their plea for privacy in what they’ve described as “a very difficult time.” After all, as Shakespeare said in The Tempest—and Columbine shooter Eric Harris wrote in his day planner on Mother’s Day—“Good wombs have borne bad sons.”

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office. She worked in the trial division, Serious Offender Unit in the Office of Special Narcotics and Rackets Bureau, where she developed and supervised investigations that targeted high-level narcotics trafficking, gambling and racketeering in the construction industry and related labor unions.

What Do the Gulf Oil Spill Victims Deserve?

By Mai Fernandez

“Are the victims of the Gulf oil spill getting what they deserve,” asked a recent Washington Post editorial (11/25/10). I’ve been asking myself the same question since visiting New Orleans for our National Conference several months ago. What is the scope of the damage, and what response do the victims deserve?

Answering these questions requires knowing who the victims are. The oil rig workers and their families are clearly victims, but what about everyone else in the Gulf? Anyone whose property, health, or livelihood was damaged by the oil spill (even if the damage takes years to fully emerge) is a victim. Those who lose income as an “indirect” result of the spill (such as laid-off public employees in financially stressed Gulf jurisdictions) are also victims, as are those suffering from other spill-related damage—such as PTSD, alcoholism, depression, and increased domestic violence in some Gulf communities.

How will our nation compensate these victims? The $20 billion BP compensation fund, administered by Kenneth Feinberg, is a start. As the cost estimates ($40 billion recently) for the spill continue to rise, Mr. Feinberg is sorting through the 450,000 claims for emergency assistance to tide victims over until they can receive a final settlement. Only those directly affected by the spill are eligible, and damage “must not be too remote in time or place from the spill.” Once victims have made a final claim and receive payment, they must give up their right to sue BP or its partners, no matter what the ultimate impact of the spill on their lives and property.

Our criminal and civil justice systems can provide some measure of justice to victims. The U.S. Department of Justice must investigate whether crimes under the Clean Water Act, the Oil Pollution Act, the Migratory Bird Treaty Act, and other laws were committed and if so, how to prosecute. But these efforts will take time.  And even successful prosecutions will produce no financial relief for the Gulf region because under current law, no funds (such as fines or restitution) awarded as a result of prosecution can go directly to the victims. Negligence claims brought by individuals and groups (an option only for those who do not receive final compensation fund payments) might help meet some victims’ medical and financial needs. Yet these civil actions, which are often unresolved for many years, neither cover all damages nor always end favorably for victims.

Clearly, the compensation fund is not enough, and our justice systems are not equipped to address the massive trauma, financial strain, crime, and long-term damage caused by the spill.

To respond to such disasters, our nation needs a better set of remedies. We need better victim support and compensation systems for direct and “indirect” victims, and laws that allow restitution for victims of environmental crime. We need more comprehensive, coordinated responses to such catastrophes, and we must take steps to learn from this disaster how to prevent the next one. Until we make this kind of progress, the victims of the Gulf oil spill (and future disasters) will never get “what they deserve.”

Mai Fernandez is the Executive Director of the National Center for Victims of Crime.

Child Sex Trafficking—After the Conviction, What about the Victim?

I recently heard a hopeful story about a distressing subject—child sex trafficking. A teenage girl, a recent immigrant, had suddenly disappeared from the community center she used to visit, and a social worker set out to find out what had happened to her. The social worker found out the girl had been kidnapped and forced into sex trafficking, and was being raped as many as 25 times a day. The community center worked with the U.S. Department of Justice and the U.S. Immigration Customs Enforcement (ICE) to have the traffickers (who included the girl’s mother) arrested and prosecuted and the girl placed in foster care.

In this case, law enforcement achieved its goals, and the victim was given a safe place to live and a chance to recover from her ordeal. As a foster care recipient under the jurisdiction of the court, she received a Special Immigrant Juvenile Status (SIJS) visa, which made her a legal resident of this country. She is also receiving the medical and psychological help she needs to survive.

Yet most victims in her situation would not have fared as well. Most foster care programs do not take teenagers or immigrants, especially without legal status, even though entry into foster care may qualify them for SIJS visas. Few victims are rescued through the swift collaboration of a local service provider and several federal law enforcement agencies. And few child sex trafficking victims ever get the help they need to recover from these crimes.

We can take pride in our nation’s powerful response to trafficking. The Trafficking Victims Prevention Act of 2000, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, and Representative Chris Smith’s and Carolyn Maloney’s recently introduced bill, Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010 (which provides $45 million to rescue and care for minor victims, prosecute perpetrators, and promote educational prevention programs; it would also and require timely and accurate reporting of missing children) show how seriously our legislators take this crime.

But to help victims, we need to do so much more. We need regular, robust collaboration among the U.S. Department of Justice, Homeland Security/ICE, and the U.S. Department of Health and Human Services (HHS), which provides direction to local foster care agencies. We need federal law enforcement to work with local agencies who know the victims and their communities, and we need HHS to take the lead in encouraging foster care agencies to accept more immigrant children and older teens. In short, we need a comprehensive, compassionate response to victims of child sex trafficking—justice requires no less.

Mai Fernandez is the Executive Director of the National Center for Victims of Crime.