Advocate outlines victims’ rights protected in Marsy’s Law

By Valorie Brecht Victims of crimes need their rights protected. But first they need to understand what those rights are to know what legal options are available to them. That is where Marsy’s Law comes in.

Nela Kalpic of Marsy’s Law for Wisconsin spoke at a luncheon at the Clark County Courthouse March 4 to give an overview of the law and answer questions. About 23 agency representatives attended the luncheon, including from the Clark County district attorney's office, Personal Development Center in Marshfield, the Clark County corporation counsel’s office, Clark County Board of Supervisors, sheriff’s office, Clark County Circuit Court, probation and parole office, Greenwood Police Department and Wisconsin Department of Corrections.

“As someone who was not born in this country and someone who is a survivor as well, I always think about the barriers victims need to overcome in order to access their rights and support. And for that, the most important thing is collaboration. So the fact that you are all here today speaks volumes to how committed you are towards victims, and really the criminal justice system and partners you work with outside of the criminal justice system,” said Kalpic, who is from Serbia.

Marsy’s Law is named after Marsy Nicholas, a California woman who was stalked and murdered by her exboyfriend at 21 years old. Her family ran into her accused killer at a grocery store, having no knowledge that he had been released on bail. Marsy’s namesake law covers several victims’ rights, including the right to privacy, the right to reasonable and timely information about the status of the investigation, the right to appeal adverse decisions and many more.

Twelve states have passed Marsy’s Law. Twenty-two states have a crime victim rights amendment on the books, but not Marsy’s Law specifically.

Marsy’s Law is a self-executing constitutional victim rights amendment that was ratified by Wisconsin voters and took effect May 4, 2020. Although people tend to associate the amendment with victims of sensitive crimes such as domestic abuse and sexual assault, it could apply to any crime committed against another person, such as theft or a hit-and-run.

This constitutional amendment does not infringe upon the rights of the accused, but rather focuses on providing victims equal rights to that of the accused — no more, no less. The legislation explicitly states that it is “not intended to and may not be interpreted to supersede a defendant’s federal constitutional rights.”

First, Kalpic defined the term “victim.” Legally, a victim is “a person against whom an act is committed that would constitute a crime if committed by a competent adult.” If the person against whom the crime is committed is physically or emotionally unable to exercise their rights, incompetent, a minor or deceased, the term “victim” applies to that person’s parent or legal guardian or custodian or other legal representative. However, it does not apply to someone who has been accused of a crime or someone who is not acting in the best interests of the victim. An example would be a case of incest, where the parent would not be the best advocate for the child who suffered.

“In those situations, there are ways in which the court can be alerted and then they can make sure the victim is getting the representation they need,” said Kalpic.

Marsy’s Law strengthened and expanded Chapter 950 of Wisconsin state statutes, which contains a “bill of rights” for victims and witnesses. It also amended Article I of the Wisconsin Constitution, adding an entire section dedicated to victims’ rights.

There are several new rights that were added with the passage of Marsy’s Law, one of those being the right “upon request, to reasonable and timely notification of proceedings” including the status of the investigation and the outcome of the case. The statute specifies “upon request” because some victims may not want to be involved with the court proceedings or may find it triggering to be notified every time there’s a new development in the case, said Kalpic. That is why it is the victim’s prerogative as to how much they want to know.

Marsy’s Law also provides victims with the right “to be heard in any proceeding during which a right of the victim is implicated, including release, plea, sentencing, disposition, parole revocation, expungement, or pardon.”

“What this is intended to do is really give victims an opportunity to be heard earlier on,” said Kalpic.

The constitutional amendment also provides the right “to proceedings free from unreasonable delay” and “to timely disposition of the case, free from unreasonable delay.”

“And this includes the defendant. What this means is that everybody cares to get to the resolution as soon as possible. And so all of us are supposed to be there to ensure and do our best to move the case through the system as fast as we can and what is reasonable,” said Kalpic.

The next right Kalpic touched on is the right to privacy. Victims have always had a right to privacy, but Marsy’s Law put some additional language around it and upgraded it to the level of a constitutional amendment, which matters in terms of enforceability. At a basic level, the right to privacy means the victim has the right to choose what information he or she wants to share. The victim can connect with a victims’ services organization and receive help even if they are not wanting to share all the details of the situation. As a real-life example, Kalpic said she knows someone who works for a victims’ services organization whose child was a victim of sexual assault. This person didn’t want everyone in their immediate circle to know about it, so they chose to seek help in another county to protect the child’s privacy.

Another right spelled out in Marsy’s Law is for the victim “to be treated with dignity, respect, courtesy, sensitivity and fairness.”

“This is kind of an obvious right, but I, for many years, was a member of the Crime Victims Rights Board (part of the Wisconsin Department of Justice) and I cannot speak on behalf of the Crime Victims Rights Board and cannot speak of any conversations we had, but I can tell you that we have seen, I would say, what most victims tend to complain about is how they’re being treated. It is so important. When we just remember how to speak to them and how to listen to them, that makes (a) huge difference in their lives,” said Kalpic.

Please see Marsy’s Law, page 7

Members of various local agencies attended a Marsy’s Law luncheon at the Clark County Courthouse March 4. Silhouettes listing victims’ rights were also on display at the courthouse last week. Agencies represented included the Clark County district attorney’s office, corporation counsel’s office, circuit court, sheriff’s office, and probation and parole office, along with the Clark County Board of Supervisors, Personal Development Center in Marshfield, Greenwood Police Department and state Department of Corrections.

VALORIE BRECHT/STAFF PHOTO

from p. 3 The victim also has the following rights: upon request, to confer with the attorney for the government; upon request, to receive timely notice of any release or escape of the accused or death of the accused if the accused is in custody or supervision at the time of death; and to full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution. The recent Crime Victims Rights Board decision RR 40 gives additional guidance on the restitution process.

Additionally, victims have the right “to timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced” (Wisconsin Constitution Article 1 Section 9m (2)(p)).

Victims also have the ability to assert their rights in court or “before any other authority of competent jurisdiction enforcement of their rights.” This is a change from the previous statute that required the victim to assert their rights only in the county where the crime was committed. Now they can do so in any county court. They also have the right to appeal adverse decisions, file a complaint with the Department of Justice (DOJ) and have that complaint reviewed by the Crime Victims Rights Board.

After the DOJ receives a complaint, it will contact the subjects of the complaint, whether public officials, employees or agencies. It will gather information related to the complaint and provide advocacy to the victim. Once a decision is made, the DOJ will issue a closing summary letter and the victim has the right to be notified of the outcome of the complaint.

Challenges Although Marsy’s Law has been a benefit to crime victims and a positive step for the state, said Kalpic, there have been a number of challenges with its implementation.

For one, the law contains vague language with certain words not clearly defined. A lot of questions have come up on what constitutes the right to privacy. There is also language that talks about the right for victims to be heard “in any proceeding during which a right of the victim is implicated” and there’s been discussion on what exactly that includes and doesn’t include. Some language in the state statute and in the state constitution could be cleaned up to better match with each other, added Kalpic.

There have also been challenges with inconsistent application of Marsy’s Law.

“Every county is a universe of its own… I see practices differ from county to county just because every county is different. In some ways that’s a great thing because you guys make it work for you, but in other ways it’s a challenge because it’s not always that you can say if one county is doing it one way, that doesn’t necessarily mean another county is doing it the wrong way,” said Kalpic.

Successes Kalpic said that since the institution of Marsy’s Law, the state has seen increased victim participation. Victims are seeking more information and asking more questions.

“That doesn’t always mean they are becoming more involved in the criminal justice system and that is OK, too,” she said.

“We want to empower victims to be the best advocates for themselves. So self-advocacy is very important,” she said. “When I came here, it took me time to learn the terminology and stuff. But the more I learned, the more I was able to advocate for myself and really be my own best advocate, which is why I am so passionate about empowering victims with knowledge so they can communicate clearly.”

Another success has been increased efforts to protect the privacy of victims. The public has also gained a broader awareness of victims’ rights.

Kalpic said that as imperfect as the U.S. justice system is, she is grateful there is a system in place to help people who have been victimized.

“I lived in places where if you are suffering, you don’t have anyone to call. Like literally, you have no one to call. And then I came to this country and sure, I can spend another three hours talking to you guys about all the challenges the criminal justice system has, both on the victims’ rights side and on the defendant’s side — there are many, many challenges. But I always say, we at least have a system. We have victim service organizations that exist. We have other organizations that help on the other end. We are working towards healthier communities. We want everyone to be better, to do better. And so that is a blessing and a gift, and I’m just always filled with gratitude when I see so many people who show up for these things and care to be part of the conversation, because so many places around the world, we don’t get to do this.”

For more information on Marsy’s Law, visit marsyslaw.us or equalrightsforwi. com.