Victim's Rights - Sun News

Child sex assault victims feel lack of control in legal system

February 15, 2008

When a victim of violent crime enters Lake County Circuit Court on a quest for justice, she may assume the prosecutor is on her side. But court documents list the "People of the State of Illinois" as the plaintiff, not the victim.

The state's attorney's office works "on behalf of the plaintiff," not for the child or other victim of violent crime, who has a deeply personal and, it may be argued, greater stake in the outcome.

And there's the rub. It's also the reason victims rail over a lack of control, lack of information, lack of satisfaction with pleas and sentences in their court cases.

"What victims are feeling is, unfortunately, very common across the country," said Meg Garvin, director of programs for the National Crime Victim Law Institute at Lewis & Clark Law School in Portland, Ore. "In part, it's because they aren't being properly consulted with."

While victims in most states including Illinois can communicate with the prosecution, they are usually not included in detailed discussions about pleas and the implications of those pleas. They often don't know they have the right to speak at sentencing, that they can object, say "I disagree. I think (something else) should happen."

In Illinois, victims' rights are protected by law. But the law is tricky. For instance, while the Lake County state's attorney gives victims a booklet enumerating their rights -- to make a statement to the court at sentencing, to be given information about the conviction, sentence, imprisonment and release of the accused -- the law says that state's attorneys may choose to consult with victims before making a plea "only when practical and only when requested by a victim in writing." It also states that victims have no right to an impact statement when a plea is "fully negotiated."

Neither loophole is included in the little green booklet handed to victims.

"It's one thing to get a book that explains it all, but it would be much better if victims and families had a forum for discussion before and while court proceedings are going on," said the mother of one sexual assault victim, who asked not to be identified. "There's a lot of stuff you need to know right away and you don't know what questions to ask. There are a lot of unspoken rights victims have that they don't get to voice because they don't know they're supposed to. There are so many motions, and then there's a plea. The law may set a minimum of three years, but the fine print says that can include probation."

Plea bargaining has become standard practice in dispatching a high criminal caseload across the nation, and victims have little say in the process.

"The state negotiates in a way that may be best for the state," said Garvin, who helps victims find legal help through federally funded clinics. "The pendulum has swung where the harm of the crime is perceived so much as against the people and so little against the individual victim. That voice has to be heard in plea negotiations also."

"I felt like we were being dictated to," said the mother of a girl whose rapist will spend a year in work release. "There were all kinds of things they could have told us that they didn't have time to tell us or didn't think we had a right to know. We were depending on the system, and we got no help."

Denise Rotheimer, also the mother of a rape survivor, said that when she questioned the assistant state's attorney about why the plea in her case was lowered from 10 to six years without her knowledge. She says she was told, "You're not a lawyer, I don't have to explain the law to you."

"The overarching thing is we have these constitutional rights for victims that are being treated not as rights but as rhetorical pats on the head," Garvin said. "We would never take a defendant's right outlined in the state constitution and say they may be listed as rights but not treat them as rights."

The fact that the state prosecutor is not, in actuality, the attorney for the victim, leaves the victim without the legal power to assert rights.

"It's only when you have your own attorney that you really can be fully informed and knowingly and intelligently assert your rights," Garvin said. "If you look at the history of rights, whether it's defendants or special interests or civil rights, they don't mean anything if they're just written in the law books. They only come to mean something when an attorney asserts them in court."

If a victim is unhappy with the sentence or any other aspect of the criminal case, she has little recourse under the law. A majority of states, including Illinois, have explicit prohibitions on civil suits for violation of victims' rights in criminal cases.

"The hiccup in Illinois law is a provision that says you can't vacate a conviction nor is there ground for appellate relief in any criminal case," Garvin said. "In Illinois we haven't tested whether you can go up on appeal or not, but we should."

Most victims are not interested in lawsuits, Garvin said.

"What victims really want is to participate in the criminal case," she said. "If we start enforcing rights the way it works in other jurisdictions, victims with their own attorneys will file motions just like the prosecution and defense do."