Why Marsy’s Law may harm victims

Unless it is amended, Marsy’s Law, the proposed constitutional rights amendment for victims, stands to become a very sickly sheep in wolf’s clothing, promising protections for victims and their rights while proposing amendments to our constitution that would limit the ability of victims to seek recovery in our courts.

While spelling out new constitutional rights for victims, the proposed amendment says: “This article does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its political subdivisions, or any officer or employee of the court.”

The inclusion of this language would not only strip victims of rights they may seek to vindicate privately against a state that has failed to protect them under the same proposed constitutional provisions, the same language could be used by the state to preempt the entire field of victims’ lawsuits against the state in litigation.

Specifically, I have in mind the effect of this provision on lawsuits against the Division of Children, Youth and Families and the state brought by parents and other adults in the name of child victims of some of the worst abuse: children who have suffered this abuse while the state has been on notice and who have not protected by our state authorities.

An amendment like Marsy’s Law, which creates a comprehensive constitutional structure for recovery but precludes damages against the state, could be interpreted by our courts as answering all legal questions in regard to the rights victims against the bureaucrats who fail them.

That would be a terrible thing in a state with a documented history of failing victims (most egregiously children) and so has left victims with little choice but to seek recourse from the courts.

What is happening here? Why are victim’s rights advocates trumpeting this bill as a necessary step forward in the area of victim’s rights while stripping victims of the right to seek relief from constitutional officers who violate those rights in the face of an updated constitution? Why not make those remedies the most robust available? Why blunt remedies by limiting the rights of victims who are mistreated by the state?

Indeed, a figure of no less stature than the chair of the board of the NH Coalition Against Domestic and Sexual Violence addressed this very subject in an opinion piece, acknowledging that we already have a victims’ bill of rights as a matter of state law (a law no one has ever imagined would be subject to repeal). And yet she also wrote: “A law or amendment without enforceability is useless.” She imagines that Marsy’s Law works an improvement but does not say how.

Current statutory law provides over 20 protections to victims of crimes, including the rights to “fairness,” “respect,” “dignity” and “privacy” “throughout the criminal justice system.” It protects the rights of victims to be “informed” about the “criminal justice process” and numerous rights to be put on “notice” regarding a given prosecution. It goes further and provides the “right to confidentiality” and the “right to be informed about available resources, financial assistance and social services.”

But while providing these rights, the current law also states that “nothing in this section shall be construed as creating a cause of action” against the state employees responsible for enforcing ensuring that the rights will have meaning and be enforced.

The very existence of Marsy’s Law as a proposal suggests that the current law is not being respected and that prosecutors and courts are giving it short shrift. I have seen no evidence of this. So if proponents of Marsy’s Law believe we should take them seriously and put energy into supporting this law, they should press an amendment that works meaningful reforms, not symbolic ones.

I have two suggestions from the trenches of litigation in this regard:

 • Marsy’s Law should be amended and enhanced to permit victims to seek monetary relief against the state and state officials for failing to enforce its rights and the damages should not require the proof of any mental state and should provide for attorney’s fees to support this litigation.

 • Marsy’s Law should demand that Courts require these rights to be spelled out in standing orders in every criminal case with a contempt finding in the background should the state fail to abide by the law.

If Marsy’s Law is going to be anything more than a measure drawing a volume of support from its supporters, its architects must take a careful look at the provisions limiting the rights of victims to ensure that victims will not be harmed by the passage of this important constitutional amendment.

Michael S. Lewis is a Concord attorney.

Categories: Opinion