Crime Victims’ Rights Compliance Officer—MOMSV
Crime Victims Rights’ Compliance Officer
By: Denise Rotheimer, Founder/President
November 15, 2010
I am the Founder of Mothers On a Mission to Stop Violence (MOMSV) and crime victims’
rights activist. MOMSV is a grass-roots organization dedicated to strengthening and enforcing
laws that affect victims and survivors of violent crime and working to create a fair, just, and
equitable court system. Prior to our inception in 2008, I proposed legislation and advocated for
the enforcement of victims’ rights at the State level. Historically, crime victims are rarely
explained their rights and there is no mechanism to enforce these rights at the local and state
levels. In 2004 and 2006, State Representative Robert Churchill sponsored legislation to amend
the Rights of Crime Victims and Witnesses Act based on my criteria to eliminate the provision
that denies victims the right to legal recourse when their rights are violated, allow crime victims
the right to appellate relief, and mandate the State’s Attorneys Office furnish crime victims with
a sign-off sheet to ensure victims receive information and an explanation of their rights at the
onset of the criminal justice process. Both bills died in the House.
As a result of my work and diligence in publicly raising awareness of the Survivor Rights Act,
which inspired the Too young for justice series, by the Lake County News-Sun (2/2008), and the
Crime Victims’ Rights Roundtable sponsored by Illinois Attorney General Lisa Madigan
(4/2008), the Illinois Coalition for the Enforcement of Victims’ Rights proposed HJRCA 19.
After careful review of HJRCA 19, I opposed this legislation, prior to its failure in the House, for
reasons outlined in my email to House Republican Leader Tom Cross on April 15, 2010, see
attached.
Without a penal code within the Crime Victims’ Rights Act, crime victims are not afforded the
protection of their fundamental and basic right to due process as outlined in the Illinois
Constitution. In other words, there is no standard within current law that imposes a penalty or
remedy for the violation of crime victims’ rights.
For example, within Miranda Rights there is a law specifically written to outline the consequence
for any violation of these rights. Under the law, Miranda Rights requires arresting officers to
inform the accused that he or she has a right to remain silent, and that anything they say can be
used against them. The penal code within the Miranda Rights provides an enforcement
mechanism to protect the defendant’s Constitutional right under the 5th amendment based on a
Supreme Court decision and prevents an arresting officer from using any information collected
prior to a defendant receiving his or her rights. Consequently, any statement made by the accused
prior to having their rights read cannot be used against them as evidence in Court.
Crime victims’ rights to be informed, present, and heard throughout the criminal justice system
are guaranteed by law at the state and federal level, but their implementation remains incomplete.
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Crime Victims’ Rights Compliance Officer—MOMSV
Victims’ rights cannot be made a reality until crime victims have the ability to redress their
complaints and governments undertake measures to monitor the provision of victims’ rights. In
order to establish an investigatory agency to act as a Crime Victims Rights’ Compliance Officer
(CVRCO) with the authority to enforce crime victim’s rights, the Illinois general assembly needs
to enact a penal code within the law (for the appropriate authorities) to comply with the crime
victims’ rights act. By including a penal code within the Crime Victims’ Rights Act, victims of
violent crimes would equally enjoy the guarantee of their Constitutional rights as do defendants.
The creation of an investigatory agency within the Governor’s Office would designate a CVRCO
to receive, investigate, and attempt to resolve crime victim complaints and the ability to impose
consequences on offending agencies or officials found to have violated a victim’s rights.
FEDERAL CRIME VICTIMS’ RIGHTS ACT
According to the testimony of Susan Smith Howley, Public Policy Director, National Center for
Victims of Crime, before the Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary United States House of Representatives:
The basic rights contained in the Crime Victims’ Rights Act of 2004 (CVRA) were
already part of the federal code in Title 42, the Public Health and Welfare Code. The
CVRA restated those rights, moved them to Title 18, the Criminal Code, and made them
enforceable. Both the move to the Criminal Code and the added enforceability has raised
the profile of federal crime victims’ rights.
Following the CVRA, the Department of Justice (DOJ) established the Office of the
Victims’ Rights Ombudsman (VRO) to receive and investigate complaints filed by crime
victims against its employees, and has implemented procedures to promote compliance
with crime victims’ rights obligations. The VRO is placed with the Executive Office for
Untied States Attorneys (EOUSA). EOUSA has no authority over or, indeed, connection
to, many entities with DOJ that are responsible for implementing victims’ rights,
including the Federal Bureau of Investigation, the Federal Bureau of Prisons, and the
Parole Commission. Even for Offices of U.S. Attorneys, EOUSA is largely viewed as a
resource, rather than an authority (2009).
Federal-level compliance
The DOJ web site explains that the complaint process, under the VRO is not designed for the
correction of specific victims’ rights violations, but is instead used to request corrective or
disciplinary action against DOJ employees who may have failed to provide rights to crime
victims. The Office of the VRO does not administer crime victim funds or provide services.
In her testimony, Howley urges Congress to add a provision under section (a) to give victims the
right to be informed of their legal rights, including the right to seek legal advice or file a
complaint with the Department. She states, “We know from years of observation regarding
victims’ rights at the state level that meaningful enforcement is the key to promoting compliance.
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Crime Victims’ Rights Compliance Officer—MOMSV
The compliance system created by the DOJ is inadequate and that the current configuration of
the compliance office is insufficient to fulfill its purpose.” Howley further explains:
That since the Deputy Attorney General (DAG) has clear authority over senior-level
employees and attorneys throughout the DOJ, the VRO should be situated within the
Office of Professional Responsibility (OPR), which has jurisdiction to investigate
allegations of professional misconduct made against DOJ attorneys, investigators, or law
enforcement personnel where the allegations relate to the exercise of an attorney’s
authority to investigate, litigate, or provide legal advice.
Another flaw in the structure of the DOJ compliance procedure is that it provides no
avenue for review of a case. Instead, the regulation states that the VRO is the final
arbiter. The CVRA does state that the regulations created by the department to promote
compliance should “provide that the Attorney General or his designee shall be the final
arbiter of a complaint. For example, in Colorado, either party can request an appeal of the
decision or findings of the first authority, the Victim Rights Subcommittee, to the full
Governor’ Coordinating Committee. Similarly, if the VRO were within the Office of the
DAG or within OPR, a victim or official could seek an appeal or review of results from
the DAG. The DAG already receives reports of the outcomes of investigations by OPR,
and so would be a logical position for review.
FEDERAL FUNDING
Crime Victims Fund Preservation Act of 2009 (CVFPA) would ensure a continued and
substantial increase to the amount of Crime Victims Fund to be made available to support critical
crime victim services. The CVFPA would establish a minimum Victims of Crime Act (VOCA)
cap through 2014 and still leave a substantial balance in the Fund to ensure ongoing stable
services. By FY 2014, the VOCA cap would be $1.6 billion, an amount that is essential to help
meet victims’ needs. According to Senator Patrick Leahy (D-VT), Chair of the Senate Judiciary
Committee and a member of the Senate Appropriations Committee, “This bill (H.R. 3402) will
support the intent of Congress to use revenues generated from criminal fines and forfeitures to
provide direct services and compensation to crime victims.” Senator Mike Crapo (R-ID) said,
“We expect a steady increase over the next five years in this fund and I will aggressively work to
make sure these resources go to the people for whom they were originally intended.
Unfortunately, victims of violence nationwide remain significantly underserved. Congress needs
to honor the commitment it made to these victims 25 years ago (NAVAA, 2009).”
Furthermore, Howley indicated that calls to their National Crime Victim Helpline show why this
grant program should be reauthorized and expanded. She said, “Victims regularly tell us they
believe their rights are being violated, but too often we have no place to send them for
specialized legal assistance.” Although, Howley’s staff counseled a victim about advocating for
herself, she said, “this victim clearly needed a knowledgeable attorney to help her assert her
rights, but her state has no victims’ rights clinic.”
ILLINOIS CRIME VICTIMS’ RIGHTS ACT
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Crime Victims’ Rights Compliance Officer—MOMSV
725 ILCS 120/ Rights of Crime Victims and Witnesses Act. The purpose of this Act is to
implement, preserve and protect the rights guaranteed to crime victims by Article I, Section 8.1
of the Illinois Constitution to ensure that crime victims are treated with fairness and respect for
their dignity and privacy throughout the criminal justice system and to increase the effectiveness
of the criminal justice system by affording certain basic rights and considerations to the
witnesses of violent crime who are essential to prosecution.
Sec. 4. Rights of crime victims.
(b) A statement and explanation of the rights of crime victims set forth in paragraph (a) of
this Section shall be given to a crime victim at the initial contact with the criminal justice
system by the appropriate authorities and shall be conspicuously posted in all court
facilities.
(Source: P.A. 95-591, eff. 6-1-08.)
Sec. 4.5. Procedures to implement the rights of crime victims. To afford crime victims their
rights, law enforcement, prosecutors, judges and corrections will provide information, as
appropriate of the following procedures:
(a) At the request of the crime victim, law enforcement authorities investigating the case
shall provide notice of the status of the investigation, except where the State's Attorney
determines that disclosure of such information would unreasonably interfere with the
investigation, until such time as the alleged assailant is apprehended or the investigation
is closed.
(b) The office of the State's Attorney:
(9) shall inform the victim of the right to have
present at all court proceedings, subject to the rules of evidence, an
advocate or other support person of the victim's choice, and the right to
retain an attorney, at the victim's own expense, who, upon written notice
filed with the clerk of the court and State's Attorney, is to receive copies of
all notices, motions and court orders filed thereafter in the case, in the same
manner as if the victim were a named party in the case;
(c) At the written request of the crime victim, the office of the State's Attorney shall:
(4) where practical, consult with the crime victim
before the Office of the State's Attorney makes an offer of a plea bargain to
the defendant or enters into negotiations with the defendant concerning a
possible plea agreement, and shall consider the written victim impact
statement, if prepared prior to entering into a plea agreement;
Sec. 6. Rights to present victim impact statement.
(a) In any case where a defendant has been convicted of a violent crime or a juvenile has
been adjudicated a delinquent for a violent crime and a victim of the violent crime or
the victim's spouse, guardian, parent, grandparent, or other immediate family or
household member is present in the courtroom at the time of the sentencing or the
disposition hearing, the victim or his or her representative shall have the right and the
victim's spouse, guardian, parent, grandparent, and other immediate family or
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Crime Victims’ Rights Compliance Officer—MOMSV
household member upon his, her, or their request may be permitted by the court to
address the court regarding the impact that the defendant's criminal conduct or the
juvenile's delinquent conduct has had upon them and the victim. The court has
discretion to determine the number of oral presentations of victim impact statements.
Any impact statement must have been prepared in writing in conjunction with the
Office of the State's Attorney prior to the initial hearing or sentencing, before it can
be presented orally or in writing at the sentencing hearing. In conjunction with the
Office of the State's Attorney, a victim impact statement that is presented orally may
be done so by the victim or the victim's spouse, guardian, parent, grandparent, or
other immediate family or household member or his, her, or their representative. At
the sentencing hearing, the prosecution may introduce that evidence either in its case
in chief or in rebuttal. The court shall consider any impact statement admitted along
with all other appropriate factors in determining the sentence of the defendant or
disposition of such juvenile.
Sec. 9. This Act does not limit any rights or responsibilities otherwise enjoyed by or imposed
upon victims or witnesses of violent crime, nor does it grant any person a cause of action for
damages or attorneys fees. Any act of omission or commission by any law enforcement officer,
circuit court clerk, or State's Attorney, by the Attorney General, Prisoner Review Board,
Department of Corrections, the Department of Juvenile Justice, Department of Human Services,
or other State agency, or private entity under contract pursuant to Section 8, or by any employee
of any State agency or private entity under contract pursuant to Section 8 acting in good faith in
rendering crime victim's assistance or otherwise enforcing this Act shall not impose civil liability
upon the individual or entity or his or her supervisor or employer. Nothing in this Act shall create
a basis for vacating a conviction or a ground for appellate relief in any criminal case. Failure of
the crime victim to receive notice as required, however, shall not deprive the court of the power
to act regarding the proceeding before it; nor shall any such failure grant the defendant the right
to seek a continuance.
(Source: P.A. 93-258, eff. 1-1-04; 94-696, eff. 6-1-06.)
STATE FUNDING
The Office of the Illinois Attorney General administers the Violent Crime Victims Assistance
Program (VCVA). In FY 2009, the Office of the Attorney General awarded 367 VCVA grants
totaling $7,723,497.00 to agencies that: assist criminal justice agencies in giving more personal
attention to victims and witnesses; sensitize those working with crime victims; attempt to
decrease the incidence of unreported crimes; assure victims are informed of the progress of their
cases; and encourage public use of services.
In 1984, the General Assembly found “that when crime strikes, the chief concern of
criminal justice agencies has been apprehending and dealing with the criminal, and that
the victim or witness is frequently forgotten or further victimized by the criminal justice
system. Nevertheless, the single most important determinant of whether a case is resolved
is the information and assistance provided by the victim or witness.” In response to these
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Crime Victims’ Rights Compliance Officer—MOMSV
findings, the General Assembly passed the Violent Crime Victims Assistance Act to help
change attitudes toward victims and enhance efforts to assist victims in any way possible
(Hora, 2009)
According to the 2008 Illinois State Wide Assistance Report by, Illinois Criminal Justice
Information Authority, the total annual amount of VOCA grants allocated to the victim
assistance projects was $13,000,000.00. The total number of agencies funded from the federal
grant was 101 and the number of subgrants funded from this federal grant was 209. There were
343,104 victims who received services under thirteen different categories (ICJIA, 2008).
COMPLAINT RESOLUTION PROCESS
Each type of complaint for a violation of crime victims’ rights would require a different type of
response. In certain cases, direct intervention in the criminal case may be necessary to rectify an
impending violation of a legal right. Other complaints may warrant a broader investigation into
agency policies and practices to improve an agency’s response to victims in general. Ideally, an
independent agency would make an inquiry into an investigation or prosecution to avoid a
potential conflict of interest. States with a complaint resolution process include:
Alaska created a state office of victims' rights to assist crime victims in obtaining their legal
rights. The office has the power to receive and investigate complaints of crime victims regarding
denial of their rights.1
Arizona: While not statutorily created, Arizona has a Victims’ Rights Enforcement Officer,
which operates as a crime victim ombudsman, in the Attorney General’s office, authorized to
receive and investigate complaints of crime victims. The Officer also provides information and
referrals, as well as assistance, to complainants and other callers.
Colorado has a Victims’ Rights Coordinating Committee which, after investigating and
attempting to resolve any complaints regarding the provision of rights, may refer violations to
the Governor, who must ask the Attorney General to bring an injunctive action.2
In Connecticut, the Office of the Victim Advocate has a wide range of duties, which include the
receipt and investigation of crime victim complaints of mistreatment by state agency or other
entity providing services to victims, and coordinating and cooperating with agencies concerned
with the implementation, monitoring, and enforcement of the constitutional rights of victims.3
Maryland has a Compliance Initiative within the Governor’s Office of Crime Control and
Prevention, Bureau of Victim Services. The Compliance Initiative has a toll-free line through
which it can take complaints and make referrals. It can attempt to resolve victims’ complaints
and can act as a liaison between victims and criminal justice agencies.
Minnesota established a Crime Victim Ombudsman office that operated as a neutral third party
in investigating the complaints of victims of crime. Those complaints could include a possible
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Crime Victims’ Rights Compliance Officer—MOMSV
violation of rights, the delivery of victim services, the administration of the crime victims’
reparations act, and other complaints of mistreatment. The ombudsman could also act as a liaison
between crime victims and witnesses and criminal justice agencies.4 The office was defunded in
2003, and its duties were absorbed by the state’s Center for Crime Victim Services, which
continues to act as an ombudsman.
South Carolina also has a Crime Victim Ombudsman which can review and attempt to resolve
complaints against the criminal or juvenile justice systems or victim assistance programs. The
Ombudsman can also act as a liaison between those parties.5
Utah uses Local Victims’ Rights Committees in each judicial district, composed of various
officials and victim representatives. The Committees may hold hearings and publish findings.6
Wisconsin has created a Crime Victims Rights Board, which can review complaints of violations
of rights. Based on its findings, the board is authorized to issue reprimands, seek injunctive relief
in court, or bring civil actions to assess a civil forfeiture of up to $1,000.7
Legal standing
Legal standing for crime victims and, on their request, prosecutors or other officials, is an
important component of a system to make victims’ rights a reality. Legal standing gives victims
the right to ask the court to rule on an issue of victims’ rights. For example, if a court has
informed a victim that he or she will not be able to attend the trial, a crime victim must have
“legal standing” in order to be able to ask the court to reconsider its ruling, or to seek a higher
court ruling on the issue. Without legal standing to enforce rights, there is no effective means for
a victim to assert his or her rights during the criminal justice process, when time is often of the
essence.
Arizona, California, Florida, Indiana, Texas, and Utah all give crime victims legal standing to
assert their rights.8 In Alabama, Arizona, Florida, Mississippi, and Texas, the prosecutor also has
standing to assert rights on the victim’s behalf.9 Alaska and Connecticut give the state Victim
Advocate the ability to advocate for the crime victim in the criminal case, and in Maryland court
rules provide that an attorney may enter an appearance in a case on behalf of a victim, for the
purpose of advocating for a victims’ rights.10 While they do not have general legal standing to
assert their rights, crime victims in Maryland are empowered by statute to file an application for
leave to appeal to the State's Court of Special Appeals any final order denying certain basic
rights.11 Arizona's statutes grant victims the right to have set aside any post conviction release
decisions resulting from hearings in which they were denied the opportunity to receive
notification, attend, and be heard.12 Arizona's statutes also grant victims standing to seek
injunctive relief for violations of rights, or even to bring an action for money damages against a
government entity "responsible for the intentional, knowing, or grossly negligent violation of the
victims' rights."13
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Crime Victims’ Rights Compliance Officer—MOMSV
CONCLUSION
While Crime Victims’ Rights remain unenforceable in Illinois and State law requires victims to
request certain rights, some of which need to be requested in writing, the position of the CVRCO
should act as a liaison between the victim and/or witness and the criminal justice authorities. The
CVRCO should be contracted by law enforcement authorities and State’s Attorneys to provide
victims of violent crimes with information and resources necessary to meet the needs of victims.
Currently, there is no complaint form that exists in Illinois for crime victims to promote
compliance among law enforcement authorities or states attorneys with crime victims’ rights
obligations, nor is there a victims’ rights clinic to help assert victim’s rights.
Law enforcement authorities should provide a copy of the Crime Victims’ Bill of Rights with the
contact information of the CVRCO to any person who reports a crime. The CVRCO will be
charged with the responsibility to provide crime victims with information and referrals for
compensation and/or services as well as an explanation of their rights and compliance procedures
to file a complaint.
CVRCO will document the violation of a crime victim’s right(s), during any stage of the criminal
justice process, investigate and attempt to resolve any complaints regarding the provision of
rights, and may refer violations to the Governor, who must ask the Attorney General to grant
victims standing to seek injunctive relief for violations of rights, or even to bring an action for
money damages against a government entity "responsible for the intentional, knowing, or grossly
negligent violation of the victims' rights.
The result will be a stronger system of justice, inspiring the confidence of victims and witnesses as well
as the public at large (NAVRA).
____________________________________
1. Alaska Stat. §§ 24.65.010 et seq. (2001).
2. Colo. Rev. Stat. §§ 24-4.1-117.5, 24-4.1-303 (2000).
3. Conn. Gen. Stat. §§ 46a-13b to 13j (2001).
4. Minn. Stat. § 611A.74 (2000).
5. S.C. Code Ann. §§ 16-3-1620 to 1630 (2000).
6. Utah Code Ann. § 77-37-5 (2000).
7. Wis. Stat. Ann. §§ 950.08, 950.09 (2000).
8. Ariz. Rev. Stat. §§ 8-416, 13-4437 (2000); California Const. Art. I, sec. 28 (c); Fla. Stat. Ann. §
960.001(7)
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Crime Victims’ Rights Compliance Officer—MOMSV
(2000); Ind. Code Ann. §35-40-2-1 (2000); Tex. Const. Art. 1, §30; Utah Code Ann. § 77-38-11. Utah’s
law
states that a “victim of a crime or representative of a victim of a crime may, after giving notice to the
prosecution
and the defense, seek an appropriate remedy for a violation of a victim's right from the judge assigned
to the case
involving the issue as provided in section 77-38-11.”
9. Ala. Code § 15-23-83 (2000)(Attorney General or district attorney); Ariz. Rev. Stat. §§ 8-416, 13-4437
(2000)(prosecutor, at the request of the victim); Fla. Stat. Ann. § 960.001(7)(2000); Miss. Code Ann. §
99-43
-47 (2000); Tex. Const. Art. 1, Sec. 30 (prosecuting attorney).
10. Alaska Stat. § 24.65.110 (2001) (victims’ advocate has general ability to advocate for crime victim in
an ongoing
criminal case); Conn. Gen. Stat. §§ 46a-13c, 13g (2001)(Victim Advocate may file a limited special
appearance
in court to advocate for victim’s rights). Md. Rule 1-326 (2009)
11. MD Code Crim. Proc. Tit. 11, §103 (2003).
12. Ariz. Rev. Stat. §13-4436 (2000).
13. Ariz. Rev. Stat. § 13-4437 (2000).
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