In the wake of recent sexual harassment news, Prof. Bennett L. Gershman, of the Elisabeth Haub School of Law at Pace University, argues that private civil settlements that involve non-disclosure should be illegal.
BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.
At the dawn of the U.S. legal system, victims were central – indeed, the essential element – in the prosecution of crimes. Criminal investigations, criminal proceedings and restitution efforts were private, that is, they were initiated and pursued by those who had been harmed. Crime had not yet been framed as an offence against the state, or society, but was viewed as a failure of individuals and a violation of interpersonal relationships. Before the Revolution, an active role in the criminal justice process was not a privilege granted to victims; rather, it was their responsibility. This regime, drawn almost entirely from English common law, considered only one crime as an offence against the state: treason.
This is a system of justice we would hardly recognize today, one in which the domains of criminal and civil law were nearly indistinguishable. It was not fated to last. With the American Revolution came fundamental changes in the understanding of crime, leading to the birth of what today we would call the modern U.S. criminal justice system.
Having established their sovereignty, the colonies quickly recognized that new social groups, with their own interests and vulnerabilities, had been born. Soon, public prosecutors were appointed, with burgeoning bureaucracies to follow. Crimes themselves came to be seen no longer as offenses against the individual, but as a form of harm against society. By the 19th century, private criminal prosecutions had been “entirely eliminated,” according to Mary Boland, currently one of the foremost legal advocates for victim’s rights and co-chair of the American Bar Association’s Victim’s Committee. As time passed, the victim fell out of the criminal process’s view, until victims were little more than vehicles for the presentation of evidence assembled at the state’s pleasure.
It was not until the 1960s that the victim, as an individual with rights and interests, would again come into focus. The social revolutions of the 1960s led to a feeling of social instability that itself led to concerns with the issue of crime, and victim’s rights groups emerged. Because of a shared experience of oppression and vulnerability, champions of the Civil Rights Movement and the Feminist Movement coalesced around an understanding of criminal justice that emphasized victims’ rights. Crucially, calls for reform from progressive quarters were joined by similar ones from the conservative law and order movement, which urged renewed attention on the failings of the criminal justice system to combat rising crime rates.
A full-throated crime victims’ rights movement emerged in the 1970s, galvanized by the 1973 U.S. Supreme Court decision in Linda R.S. v Richard D., in which the Court affirmed, in dicta, that victims cannot compel criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.”
Meanwhile, grassroots organizing led to the creation of domestic violence and rape crisis centers across the Nation, organizations that would come to form the backbone of a vocal national coalition. Reactionary impulses were also at work. In 1975, Rule 615 of the Federal Rules of Evidence was enacted, requiring courts to exclude witnesses, including victims, from the courtroom on the request of either prosecution or defense. Understandably, this has been widely cited as the low-water-mark in the battle to reintegrate victims into criminal proceedings. At the same time, the justice system had begun to realize that treating victims as valuable participants in proceedings was not contrary to, but supportive of, its own aims.
In 1974, Donald E. Santarelli, then-Director of the Federal Law Enforcement Assistance Administration, became acquainted with the work of Frank Cannavale. In his book Witness Cooperation, Cannavale argued forcefully that the loss of cooperative witnesses, victims who had become fed up with a justice system seemingly uninterested in their own needs, was the primary cause of prosecution failure. Santarelli was instrumental in funding the first victim and witness assistance pilot projects, including one in Denver’s District Attorney’s Office, which often went far beyond notifying victims of important court dates. In collaboration with grassroots organizers, a quickly-growing roster of victims’ assistance programs began offering crisis intervention services and on-call help lines. Likewise, prosecutors started to seek out and consider victims’ opinions on bail determinations, plea bargains, sentencing and parole hearings.
After his inauguration in 1981, President Ronald Reagan soon established the President’s Task Force on Victims of Crime. In its December 1982 final report, the Task Force acknowledged what many members of the public already knew: “[T]he innocent victims of crime have been overlooked, their pleas for justice have gone unheeded, and their wounds – personal, emotional, financial – have gone unattended.” As a starting point, the Task Force recommended a Constitutional Amendment that would enshrine the rights of victims.
While that has not yet happened, the crime victims’ rights movement has spurred enormous legislative successes. To date, 33 states have ratified constitutional amendments enlarging the rights of crime victims, according to the National Crime Victim Law Institute at Lewis & Clark Law School. The remaining states have all passed legislation on the subject. In 1982, Congress enacted the Victim and Witness Protection Act, granting federal courts the authority to award restitution to victims as part of a defendant’s sentence. The Victims of Crime Act of 1984 established the Office for Victims of Crime and the Crime Victim’s Fund, which compensates victims for a variety of crime-related losses.
While certainly welcomed, these initial legislative measures were often criticized for focusing disproportionately on financial remuneration at the expense of victims’ other needs. The Crime Victims’ Rights Act of 2004 went further, effectively granting victims a participatory role in criminal proceedings. The Act enumerated eight rights to which victims are entitled in federal criminal cases:
- The right to be reasonably protected from the accused.
- The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.,
- The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
- The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
- The reasonable right to confer with the attorney for the Government in the case.
- The right to full and timely restitution as provided in law.
- The right to proceedings free from unreasonable delay.
- The right to be treated with fairness and with respect for the victim’s dignity and privacy.
Unfortunately, in the view of many advocates, the promise of inclusion heralded by the Crime Victims’ Rights Act has remained illusory. These rights are rarely enforced, says Mary Boland. The National Crime Victim Law Institute has called them “paper promises.”
Recent years have seen a new, double movement, in which the individualization of victims and their increasing impact on criminal justice proceedings is matched by efforts to individualize offenders and promote rehabilitative strategies over punitive measures. This is different from the movement of the 1970s that posited victims’ rights in opposition to defendants’ rights. Within this emerging regime, the lives of victims and offenders are no longer isolated from one another and the rights of one do not depend on limiting the rights of the other. In many ways, both parties to crime share the same path. It is not a paradox that, under many alternative theories of justice, the state should once again fall into the background, much as it did before the Revolution. The movement for restorative justice, a concept that has come to prominence since the late 1970s, focuses on minimizing the state’s role in proceedings, focusing instead on victim-offender mediation.
- Mary Boland, Crime Victims’ Rights Movement, Oxford Bibliographies (last modified Aug. 2013) (fee based resource).
- Mary L. Boland & Russell Butler, Crime Victims’ Rights: From Illusion to Reality, 24 ABA Criminal Justice, Spring 2009.
- President’s Task Force on Victims of Crime, Final Report (Dec. 1982).
- Federal Rules of Evidence, Rule 615 (Cornell LII).
- Linda R. S. v. Richard D. et al., 410 U.S. 614 (1973).
- Charles Doyle, Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771, CRS Report (Dec. 9, 2015).
- Crime Victims’ Rights Act, C-SPAN (Sept. 29, 2009).
- Victim and Witness Protection Act of 1982, S. 2420, 97th Cong., Pub. L. 97-291 (1982).
- 18 U.S.C. § 3771 (2016) (Crime Victims’ Rights Act) (US DOJ).
BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.
In 1982, after their son Scott was murdered, the Campbell family was barred from entering the courtroom when the murderer was tried. They were not allowed to make sentencing recommendations and only learned of the killer’s subsequent release from prison through media reports. The Campbells were not alone. Victims at this time were not simply a blind spot, a group that the criminal justice system simply failed to include in its calculations. They were actively marginalized.
Throughout the latter decades of the 20th century, victims of crime were granted no formal legal status. To the criminal justice system, these people – who had been injured and traumatized – were little more than witnesses or sources of evidence, likely to be re-traumatized by their encounters with law enforcement and prosecutors. It comes as little surprise that victims were frequently, if not systematically, excluded from criminal proceedings.
Today, there is little doubt that victims of crime have been granted some place at the table. But this place was only formally set in 2004, when Congress passed the Crime Victims’ Rights Act (18 U.S.C. § 3771) – granting victims and their families the right to be informed of trial developments and a limited role in criminal proceedings. This was certainly a step in the right direction; however, victims and families are often nevertheless left on their own. Compensating victims – especially for the non-financial harms – has traditionally been an afterthought.
As an aspect of sentencing, restitution is only mandated in about one-third of states, and it’s usually limited to violent felony offenses. Even where restitution is required, courts make no room for losses that cannot be strictly quantified. Pain, suffering and psychological trauma – in many cases the most lasting harm to victims – are not accounted for in the equation.
Perhaps more onerous, although certainly easier to rationalize, restitution frequently requires conviction. Of course, there is a glaring disparity between the rationale underpinning this conviction requirement and the reality of criminal justice – one that becomes more obvious in sexual assault and abuse cases. Convictions are few and far between. In cases of assault and battery, only 41 out of every 10,000 criminal offenses will lead to a criminal conviction, according to the Rape, Abuse & Incest National Network (RAINN). Thus only a small minority of victims will receive the “justice” made possible through criminal proceedings, let alone the private remuneration promised by restitution.
Thankfully, conviction usually isn’t required for victims to receive compensation through a state-administered compensation fund. In most cases, an arrest isn’t required, either. But prompt reporting is, and victims are required to cooperate fully with criminal investigations. But even here, we find a glaring disparity. Only 34% of rapes are ever reported, according to the Bureau of Justice Statistics, often because the victims are related to the perpetrators and fear retaliation. When children are the victims, the statistics become even less heartening.
And while there has been progress compensating victims for physical injuries, recognition of compensable psychological injuries has been less successful. Some state programs only compensate victims, even direct victims, for physical injuries. The legislative process is slow, and we can’t expect federal and state legislatures to capture every scientific development instantaneously; but a maturing neurobiology of trauma has closed the gap between “psychological” harm and physical damage. Brains are flexible and trauma is real. Where children are concerned, we now understand that brain development “grows” around traumatic experience. It’s time that we brought “pain and suffering” under the heading of physical injuries, where a robust science of victimization tells us it belongs.
For now, civil action completes the picture, making up for the deficits inherent in the criminal justice system and expanding the scope of those damages which are considered compensable.
Likewise, the bright line separating criminal and civil proceedings – public and private wrongs – has been obscured in recent years. Victims have been granted a limited role in criminal proceedings and, in increasing numbers, are learning that they have a right to private action.
These developments are critical, and while parallel proceedings can produce significant complexities for prosecutors and civil attorneys, a truly rational justice system demands both concern for societal health and individual lives.
We all were in the situation when we are looking for criminal justice related statistics without knowing where to look or where to even begin. No more. Hall of Justice, a project of the Sunlight Foundations, is trying to change that. Although not comprehensive, it contains nearly 10,000 datasets and research documents from all 50 jurisdictions, DC, US territories, and federal government. Its newly launched website offers searchable inventory of publicly available criminal justice statistics and documents in one convenient place, thereby improving transparency.
The project explains its methodology in how and which datasets are included. You can learn more about the Sunlight Foundation criminal justice work here and the spreadsheet of datasets is available here.
Users may search for available datasets and then narrow by state, groups, sectors (government, non-profit, private, etc.), and access type (not machine readable, open, restricted, closed, etc.). The results display in a table listing the state/location, category, dataset title, group issuing the dataset, years included, and the direct link to access it. The major categories include: Corrections, Courts, Crime, Financial, Juvenile Justice, Law Enforcement, Victims, and Miscellaneous. All categories are further divided into subcategories.
For example, the result page looks as follows (look to the left) when looking for Juvenile Justice – Delinquents datasets for the state of NY, listing 5 results with live links where the listed statistics can be accessed.
POST WRITTEN BY: Syed Alam (’17), J.D. Pace Law School
According to the ICRC Principles of Distinction between Civilians and Combatants Rule 1, one of the pillars of international humanitarian law permits military commanders to direct operations against military objectives. At the same time, however, Rule 1 also requires that military commanders distinguish between civilian and military object. This concept was already codified in St. Petersburg Declaration of 1868, which states that States engaging in a war should only commit acts that will help them to weaken the military forces of the enemy party.
It is the duty of the military commander to determine who civilians are and who military opponents are. At time of war, every military force faces a threat from their opponent; however, it hardly faces threats from civilians. Thus, civilians should not be harmed during any war. It is the duty of the military commander to take such steps and measures as to prevent harm to civilians.
How do we define civilians? According to article 50(1) of the Additional Protocol 1 of the Geneva Conventions, 1949, civilians are the persons who do not belong to one of the categories mentioned in articles 4(A)(1)-(3) and 4(A)(6) of the Third Geneva Convention 1949. The categories listed are member of armed forces, member of militias or member of volunteer corps. A person who by any act is not facilitating or acting as part of the armed conflict is a civilian. Additionally, as held by the criminal tribunal in Blaskić, “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, ¶ 111 (Int’l Crim. Trib. for the Former Yugoslavia Jul 29, 2004).
According to article 50(3) of the Protocol 1 of the Geneva Conventions 1949, even if a civilian population includes some armed people, still they do not lose their civilian status. For example, if militants enter a park filled with civilians – an attack cannot be launched in the park even if intended to only target the militants because under the principle of distinction the civilians ought to be protected. The criminal tribunal in Prosecutor v. Stanislav Galić further confirmed this principle and held that “[a] population may qualify as ‘civilian’ even if non-civilians are among it, as long as the population is predominantly civilian.” Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, ¶ 143 (Int’l Crim. Trib. for Former Yugoslavia Nov. 30, 2006).
According to article 51 of the Protocol 1 of the Geneva Conventions 1949, the protections civilian enjoy during wartime include:
- Protection against any danger arising out of military operations.
- Civilians should never be the objects of attack. Any act to spread terror among the civilian people is prohibited.
- Unless and until civilians take direct part in hostilities, civilians enjoy all the protections mentioned in this article.
- Indiscriminate attacks such as attacks not directed against a specific military object, methods or means of combat that are not specifically applied to a military object, attacks which do not distinguish between civilian object and military object.
- Any attack done to several military objects, situated within a civilian locality, bombardment upon such area in prohibited. Any act, which might result into suffering of civilians, is prohibited.
- Attack towards the civilians by the way of reprisal is prohibited.
- Civilians should never be used to shield any military object, to immune it from military operations, by any of the parties.
Under article 8 of the Rome Statute, war crime includes grave breaches of Geneva Conventions of 1949 and also violation of any laws and customs of international laws regarding international armed conflict. As discussed above, Geneva Convention of 1949 made it a crime to kill civilians during war. Article 8 of the Rome Statute re-affirms that position. Thus, killing civilians during war is a war crime.
Although international authorities put forth effort to protect civilians, the history speaks for itself – civilians are often not spared. Although, adequate international laws are in place, States engaged in war often overlook this principle of distinction. The law appears clear – civilian killing in war is a crime. The question then is why these international laws are ignored? States have often used the term ‘collateral damage’ to justify the killing of civilians. However, human life is priceless and no cause is big enough to spare innocent human life. The United Nations should find a way to enforce the international laws addressing civilian killing in war for the sake of humanity.