Civil Justice Practitioners

Independent Legal Counsel

The victim's role in the criminal justice process is the subject of new legislation and increasing debate. Thousands of relatively recent legislative enactments provide victims with various rights pertaining to restitution and privacy, the right to be informed in matters of trial and sentencing, and the right to make statements of victim impact at sentencing.⁵² Most states have enacted victims' rights amendments to their constitutions and the remaining states and the U.S. Congress have enacted statutes doing the same. If victims are going to succeed in enforcing their current rights under existing laws, however, they need legal representation.⁵³

Victims' and prosecutors' interests intersect, but they are not always aligned.⁵⁴ This conflict is most apparent in the realm of privacy rights. For example, the prosecution may want evidence from victims' personal lives to strengthen its case, while victims want to keep their personal lives private despite the impact it might have on the prosecution's case. Or, a prosecutor may gather extensive medical, counseling, and other private information about victims that must then be disclosed to the defense pursuant to the state's obligation under Brady v. Maryland (373 U.S. 83 (1963)).

Until recently, rape crisis advocates routinely struggled alone to protect rape victims once the criminal process had begun.⁵⁵ While non-lawyer rape advocates have played the largest and most vital role in protecting victims' privacy rights, victims' civil attorneys should also be present in the courtroom defending their clients' civil (and crime victim) rights.