Friday, August 15, 2014
Geoffrey Sant has posted 'Victimless Crime' Takes on a New Meaning: Did California's Victims' Rights Amendment Eliminate the Right to Be Recognized as a Victim? (Journal of Legislation, Vol. 39, No. 1, 2012-13) on SSRN. Here is the abstract:
In 2008, California voters passed Proposition 9, the Victim's Bill of Rights Act of 2008 ("Marsy's Law"), thereby amending the California Constitution. Marsy's Law has been described as "significantly reform[ing] California's criminal justice system." Supporters see Marsy's Law as a possible model for victims' rights amendments elsewhere, including a potential amendment to the US Constitution.
The definition of "victim" within Marsy's Law, arguably the most fundamental aspect of this constitutional amendment, has been criticized in passing in the Berkeley Journal of Criminal Law as "somewhat ambiguous" such that it "may therefore be difficult for courts to interpret." The article foresaw litigation over the definitional section of Marsy's Law, but unfortunately it provided no detailed analysis of the purported ambiguities. Meanwhile, others have argued that the definitional section of Marsy's Law created a "strange world" with perverse results, including that "some crime victims are no longer crime victims." It has been stated that this victims' rights law "[c]uriously...appears at first glance to narrow the scope of victims' rights."
This article provides the first in-depth academic analysis of the definitions section of Marsy's Law. Based on the language of the text, the purpose of the amendment, and parallel language in other victims' rights laws, this article argues that the definition of "victim" is both clear and without "perverse results." Nevertheless, to avoid any potential ambiguity or difficulties in interpretaiton, this article also provides model language to be used in future victims' rights amendments. This proposed language accomplishes the same purposes as the Marsy's Law definitions while also avoiding any purported ambiguities.