Marsy’s Law: Bringing enforceable rights to victims of crime

For the Monitor
Published: 2/16/2018 11:00:33 PM

In 2012, after Seth Mazzaglia raped and murdered University of New Hampshire student Lizzi Marriott, he dumped her body in the Piscataqua River and she disappeared without trace. Her parents, Bob and Melissa, were never able to say goodbye to their little girl.

As hard as it is to believe, the Marriott’s suffering did not end there. Their nightmare continued when the killer’s defense attorney demanded that Lizzi’s alleged sexual history be made public in an attempt to muddy the water during a desperate appeal.

Unfortunately, there are those who do not believe that the right of victims to have a voice in the process and to be protected against this kind of harm should be contained in New Hampshire’s Constitution.

Last week, the ACLU of New Hampshire came out against Marsy’s Law, an effort to amend the state’s constitution and provide victims with constitutionally enforceable rights – including the participatory right to be heard when their rights, like Lizzi’s right to privacy, are implicated in the criminal justice process.

In these pages, the ACLU’s legal director and an associated criminal defense attorney argued that victims do not deserve equal rights. In fact, the ACLU has opposed constitutional level rights for crime victims all across the country.

This is a shame, because the ACLU would do well to remember its historical roots. The organization built its reputation testing in court fundamental freedoms which were being ignored by the justice system. It was the only organization which took a stand against the internment of Japanese Americans during WWII. It stood up to the witch hunt of McCarthyism. And it helped the NAACP challenge racial segregation in public schools, leading to the landmark decision in Brown v. Board of Education.

For nearly a century, it helped establish rights for people who were otherwise unable to enforce them. So it is strange that the ACLU should now refuse to do the same for victims of crime.

Perhaps this bizarre contradiction can be explained by the fact that the ACLU has become a mouthpiece for criminal defense attorneys, who have twisted the organization into defending the indefensible. In recent years, the ACLU in New Hampshire has worked with criminal defense attorneys to remove hundreds of convicted child molesters from the public sex offenders register. In Massachusetts, they sided with the North American Man Boy Love Association to defend child sex predators that provide their peers with guides about how to groom, then rape young boys without getting caught. Now, siding with the defense attorneys that run their organization, the ACLU feels obliged to oppose this common sense bill.

Logically though, Marsy’s Law is something which the ACLU ought to support. Currently, the rights of New Hampshire crime victims are protected only by an aspirational statute, not the Constitution. As every child learns in 8th grade civics, these statutory rights are not as strong as constitutional rights, they are often ignored and, in the case of the victims’ rights statute, are completely unenforceable. Converting such rights into enforceable, constitutional protections is the bedrock of the ACLU’s heritage. Yet, while the ACLU claims to support victims’ rights, they do so only in theory.

Not a single clause in the proposed constitutional amendment allows a victim to enforce a right against the accused – rather, they are enforced only against the government. Nor do these rights come at the expense of the accused. For example, defendants do not have a constitutional right to pre-trial discovery from the victim, so constitutionally protecting victims from this indignity changes nothing.

Despite the fact that similar protections are in the constitutions of 35 other states, the ACLU has been unable to produce a single case where constitutional rights for victims of crime have infringed upon the constitutional rights of those who are accused and convicted.

Bob and Melissa Marriott did not choose to be thrust into the criminal justice system. They did not choose to be put at the mercy of the government. They did not choose to be re-victimized and injured by the power of the state to allow the defamation of their daughter’s character in open court. Yet they were harmed all the same.

The ACLU is correct that New Hampshire’s founders created our Bill of Rights as a safeguard against government abuse. It is also correct that those accused of a crime deserve robust protection. But it is wrong to argue that victims of crime do not deserve the same protections as anyone else in the criminal justice system – a seat at the table and a voice in the process when their rights are at stake.

Our founders also knew that sometimes we need a revolution to enshrine rights, not an evolution to enforce them. A revolution for victims of crime is long overdue. It’s time for Marsy’s Law.

(Rus Rilee is an attorney practicing in Bedford.)

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