Voters ratify Marsy's Law into Wisconsin's constitution
Victims in Wisconsin have 17 new constitutional rights after voters ratified the amendment in the April 7 election. Some rights already existed in
, while others are new to victims in the state.
While many people are celebrating the passage of the constitutional amendment, some organizations like the
have concerns. Either way, the changes went into effect Tuesday.
Wisconsin was the first state to implement a bill of rights for victims in 1980. Now, they have been strengthened not only by the fact that it is part of the state's constitution, but additional rights have been added. The legislature passed an amended version of Marsy's Law in 2017 and in 2019, allowing it to be voted on and ratified by Wisconsin voters. Here are the rights now afforded to victims in the constitution:
- To be treated with dignity, respect, courtesy, sensitivity, and fairness.
- To privacy.
- To proceedings free from unreasonable delay.
- To timely disposition of the case, free from unreasonable delay.
- Upon request, to attend all proceedings involving the case.
- To reasonable protection from the accused throughout the criminal and juvenile justice process.
- Upon request, to reasonable and timely notification of proceedings.
- Upon request, to confer with the attorney for the government.
- Upon request, to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole, revocation, expungement, or pardon.
- To have information pertaining to the economic, physical, and psychological effect upon the victim of the offense submitted to the authority with jurisdiction over the case and to have that information considered by that authority.
- Upon request, to timely notice of any release or escape of the accused or death of the accused if the accused is in custody or on supervision at the time of death.
- To refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.
- To full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution.
- To compensation as provided by law.
- Upon request, to reasonable and timely information about the status of the investigation and the outcome of the case.
- To timely notice about all rights granted under this constitutional amendment and all other rights, privileges, or protections of the victim provided by the law, including how such rights, privileges, or protections are enforced.
Who is considered a victim is also broad, particularly if the victim is a child, a deceased person, or someone who cannot speak for themselves. There are several people who then can become representative of the victim, in particular family members.
Louis Molepske, the Portage County district attorney and president of the Wisconsin District Attorneys Association said one of the biggest pieces this amendment changes, is the authority judges have to take away rights of people who could be considered victim representatives.
"If the court finds that someone who normally is a victim would not act in their best interest, then they can be removed as a victim," he said.
An example that could apply and comes up regularly is individuals involved in child abuse and neglect cases. One family member, like a parent who would be considered a victim representative of their child, actively tries to sabotage or cover up the abuse or neglect to prevent the perpetrator from going to jail. This could be for a variety of reason like relationship stability or financial reasons.
"They look at this truly as an economic issue and they're basically saying, 'I understand, little one, that you were a victim of a crime, but I'm more worried about mommy or daddy losing their job and the money for the house,'" Molepske gave as an example.
That means if the judge declares that the person is not acting in the victim's best interest, they do not get victim rights, like being notified of proceedings, any restitution, etc.
He said some judges ask that victims give their opinions about certain proceedings, but these constitutional rights allow victims to decline that. Molepske said it is likely that victims could take on their own attorneys as well, instead of solely relying on the state prosecutor if they choose.
Molepske said he expects there will be some challenges to some of the language of the rights. Victims' right to privacy has been broadened, which has caused concerns in some states that have implemented Marsy's Law.
"For example officers in officer-involved shootings of civilians, that the officer's name would be kept private in the sense that the officer is the victim when they are going through the trauma of shooting someone that has determined to be not a crime or is under the investigation to determine if it was a crime or not," Molepske explained some groups, like the ACLU of Wisconsin, do not agree with that interpretation.
The ACLU in several states has issued concerns, arguing that the rights of victims can be interpreted to violate the rights of the accused, especially since these rights are given prior to the accused being convicted.
"Marsy’s Law would remove that presumption of innocence – tipping the scales of justice against the accused," wrote Wisconsin ACLU attorney, Asma Kadri Keeler.
"When it comes to defendants' rights, there's a provision in Marsy's Law that makes clear that nothing should be interpreted to be inconsistent with the federal constitution," Attorney General Josh Kaul said.
Kaul stated he expects courts to ultimately make some interpretations for different parts of victims' rights so they do not impede on other rights afforded to defendants. However, he said he is looking at how other states have implemented the changes so the rights of defendants and victims are maintained.
"One of the things that we're going to be working on going forward is making sure that law enforcement in this state and also victim-witness professionals around Wisconsin are up to date on how state law is changing as a result of Marsy's Law," Kaul said. "And also, that they're being trained appropriately to make sure that those rights are being applied appropriately and they're not overreaching, but also that we're living up to the promises that have been made to victims."