by Fatima Badreddine
Many legal professionals do not understand the concept of victims’ rights and why they are necessary. Critics of victims’ rights often contend that we should primarily be concerned with protecting defendants’ rights, but I am not arguing against protecting defendants’ rights. On the contrary, I agree that defendants’ rights are essential to a properly functioning justice system.
This article will explain the importance of victims’ rights and introduce the concept that victims’ rights are independent of defendants’ rights. Victims’ rights can be balanced with defendants’ rights in order to protect a victim throughout the judicial process, without conflicting with defendants’ rights.
Victims’ rights advocates believe that victims have a right to participate throughout the criminal justice process, rather than being shoved aside and forgotten.[1] Participation means that victims have a right to be present at all hearings where the defendant has a right to attend, to be kept updated on trial proceedings, and to consult with the prosecution regarding the charges.[2] Victims’ rights do not enable victims to seek revenge against defendants. Rather, they recognize that navigating the criminal justice system can be a confusing and a very traumatic experience for victims. These rights should protect victims from being exploited by unscrupulous defense attorneys, thereby minimizing the additional trauma caused by the trial process itself.
So, why are victims’ rights necessary? Because many victims suffer from post-traumatic stress disorder, depression, and other mental health issues as a result of the trauma that was inflicted on them.[3] Many are emotionally fragile, and almost all wish to get the trials over with so that they can move on with their lives. Every time victims are interviewed, questioned, etc., they must relive one of the most painful and traumatic moments of their lives, making it difficult for them to focus and think clearly. When victims attend court, they must face the same defendant who inflicted that pain and harm.
Issues often arise when defense attorneys employ pre-trial and trial strategies that physically and emotionally debilitate victims. For instance, when defense attorneys become openly hostile during cross-examination, many victims experience flashbacks, stress, and shock. Although this is arguably a poor trial strategy, it still has traumatic and lasting effects on the victim. Testifying is difficult enough for victims because they are forced to relive traumatic events. Victims suffering from post-traumatic stress disorder can easily be sent over the edge by an excessively hostile and aggressive line of questioning.
I’m not arguing that defense attorneys should not cross examine victims, but that defense attorneys can effectively argue a case without resorting to badgering the victim. Good defense attorneys know how to use the facts of the case and the evidence to successfully argue their case. This is a better trial strategy anyway because juries generally do not like to see a victim battered on the stand. But, judges often do not interfere with aggressive trial tactics for fear of interfering with a defendant’s due process rights. It is vital for a victims’ rights advocate to be present at trial to enforce the victim’s right to be treated with dignity and respect.
The law is not, nor should it be, an “all or nothing” approach. In other words, the law should not be narrowly viewed as protecting only defendants’ rights or only victims’ rights. Although sometimes the two can conflict, most of the time these seemingly incongruent rights can be balanced so that one set of rights is not compromised by the other. This is because victims’ rights exist independently of defendants’ rights, the courts, and the prosecution.[4] Arizona case law clearly states that where a victim’s right directly conflicts with a defendant’s constitutional right, the defendant’s constitutional right must prevail.[5] Thus, victims’ rights do not take away from defendants’ rights because a defendant cannot be compelled to forfeit his/her constitutional rights to the victim.
Striking a balance is never easy, but that is the role that we have assigned our judges. Contrary to popular belief, there is seldom a black and white line in the law or in life, and issues that appear clear-cut are rarely argued in court. Just because there could occasionally be a conflict between rights does not necessitate that victims cannot also have their rights protected. Above all, crime victims deserve to be treated with fairness, dignity, and respect.
[1]See “History of Victims’ Rights.”
[2]See Ariz. Const. art. II, § 2.1 (Arizona’s Victim’s Bill of Rights).
[3]See “How Crime Victims React to Trauma.”
[4]See National Crime Victim Law Institute.
[5]See Ariz. ex rel. Romley v. Superior Ct. of Ariz., 172 Ariz. 232, 240, 836 P.2d 445, 453 (Ariz. App. 1992).
Law Journal for Social Justice 
Fatima,
I agree that victims have long been marginalized by the criminal justice system. However, the victim’s rights you uphold are often the reason that defense attorneys need to engage in intensive cross examination at trial. Of course, a defendant must be entitled to confront witnesses. But because Victims are are not required to testify at preliminary hearings or be interviewed by defense counsel pre-trial, the first opportunity a defense attorney often has to hear a victims story is at the trial itself. This of course means that an in depth and often intense cross is often called for in order to expose any lapses or lies. If victims were made available before trial, I expect that less of what you decry would go on.
Fatima, This is a heartfelt and well-written article. In particular, separating victims’ rights from defendants’ rights removes the idea of a zero-sum game whereby one person’s rights can only be at the expense of another’s. If there is anything in this article that I would like to see SHOUTED and UNDERSCORED it is this very simply yet very crucial point: more rights for the victim do not mean less for the defendant (nor, do I believe, vice versa). What I wonder is to what extent secondary victims (family members, for example) also merit rights, and what happens to victims’ right when, say, the victim has been killed. Thank you.
Thank you, Tim. Immediate family of victims that have been killed qualify as victims under the Arizona constitution and receive the same protection. I’m not certain whether these rights apply to immediate family when the victim is alive, but I would be more than happy to forward that question to the attorney I worked for at the Crime Victims’ Legal Assistance Project.
Thank you, Adam. That’s a very interesting point, and I will keep that in mind.
Really??? I am a victim of crime and your comments are so off. Have you had someone come to your work assault you and try to kill you with a gun? I have. The trial is coming in spring 2014. I don’t care much for defense attornies or their motives. The law does not protect us, the victims. We have entered all evidence and when the offender asks to post bail, his lawyer knows the details of the case and proof against his client. To say they don’t is saying cops did not do their job. Victims are left with nothing except being victimed all over again when offenders get a slap on the wrist with time servef.