Earlier this month, the Kentucky Senate voted to pass SB 3, more commonly known as “Marsy’s Law.” The bill seeks to create a new section of the Kentucky Constitution which would provide rights for crime victims. By providing these rights via a Constitutional amendment, those designated as victims of crime would be afforded “standing” to participate in a criminal case to enforce their rights. Standing is the right to not simply be present in Court, but the right to actively have an attorney litigate a matter on your behalf due to your rights being affected. Thus, instead of victims turning to the prosecutor for representation, this law will allow them to separately put their own dog in the fight and give criminal proceedings a civil twist.

While few can argue with the intent of a bill that promotes the rights of crime victims, “Marsy’s Law” could have some unintended effects which will dramatically change the face of our criminal justice system.

Our current judicial system orders that Kentucky prosecutors must make reasonable efforts to provide notice to crime victims of relevant information such as:

  • upcoming judicial proceedings and trial,
  • the charges against the defendant,
  • any plea entered by the defendant;
  • any verdict rendered against the defendant;
  • the victim’s right to make an impact statement for consideration by the court and/or parole board under KRS § 421.520 and KRS § 421.530; and
  • the defendant’s release from custody or eligibility for parole.

Prosecutors are tasked with involving the victim and protecting their rights as set forth in the relevant Kentucky Revised Statutes. Many prosecutors’ offices employ Victim’s Advocates—these individuals act as a liaison to ensure that victims have the opportunity to provide input, as well as that their rights are upheld throughout the court process. Prosecutors and Victim’s Advocates are not, however, a victim’s attorneys. Our Commonwealth’s and County Attorney’s Offices are expected to prosecute crime to the fullest extent of the law while taking a victim’s position into consideration as much as possible. These offices are not, however, expected to heed to a victim’s every wish.  At times, the interests of the general public and application of the law can be found at odds against the wishes of a victim. For example, say a defendant was charged with DUI and felony assault from an alcohol-induced car accident which injured a passenger. During criminal proceedings, the prosecutor must take into account a myriad of considerations in making his or her decision to offer a plea, including the defendant’s criminal history, the severity of the crime, a victim’s wishes, evidentiary concerns, and judicial economy. Prosecutors are afforded discretion so that a victim’s objections cannot derail the criminal process if, after all considerations are made, anything less than the maximum punishment is offered. Thus, should they choose, victims must turn to civil law to fully litigate their interests in court.

Therein the issue lies and competing interests become most apparent.

To remedy this concern, supporters of Marsy’s Law advocate that the law give victims the right “to be heard in any public proceeding involving a release, plea, sentencing, or other matter.” Those who qualify as a “victim” will be permitted to retain their own representation to actively participate in criminal court proceedings. Assuming that said victims can afford their own attorney (which is an entirely separate equal protection issue), this participation will open a Pandora’s box of litigation. Instead of having a historically adversarial proceeding solely between the Commonwealth and a defendant, victims will be afforded the opportunity to bring a civil twist to criminal law.

Adding a third party to criminal prosecutions is a not new concept in the criminal justice system. In criminal cases specifically involving child victims, the Court retains the discretion to appoint a Guardian Ad Litem (GAL) to advocate and protect the child’s interests. This GAL, however, plays no role in prosecuting crime and takes a backseat to the criminal proceedings. In fact, the Kentucky Supreme Court recently reiterated that a GAL is not even permitted to sit at counsel’s table during a trial with the prosecutor, nor question witnesses or voice objections. Golden v. Commonwealth, 2017 Ky. LEXIS 149, at *6 (Apr. 27, 2017). According to the Court, a GAL’s active participation in a trial could affect a defendant’s right to a fair trial by all but eliminating a presumption of innocence. Id.

The difference between the GAL system and what Marsy’s Law seeks to provide is the notion of standing previously discussed. Instead of simply protecting the interests of the victims who cannot help themselves, Marsy’s Law will be giving all victims the right to have their day in court during the defendant’s prosecution. Historically, victims would be forced to take up a separate civil matter against a criminal defendant to have this chance. With Marsy’s Law, they can alternatively make their claim right in the middle of criminal proceedings. By giving victims this standing, the legislature is blurring the lines between civil and criminal law, which will cause confusion as to the appropriate time to litigate certain issues. If victims are given the right to restitution in a criminal proceeding under Marsy’s Law, do they no longer have to pursue those claims via a relevant cause of action in civil court? Can victims seek punitive damages via this new right to restitution? How about compensation for emotional distress and/or pain and suffering?

Quite frankly, the Marsy’s Law legislation, although well-intended, will raise more concerns than they address. If passed in the House, the constitutional amendment will be put to a vote in the November 2018 general election. Only then will we see how the Courts will address the newly blurred line between criminal and civil law.