May 2001
Crime Victims and the Law
by Mark A. Panitch, Bar News Editor
In the April Bar News I described how my sister Robbyn was murdered, and the effect that crime had on me and my family as we waited for the killer to come to trial. The trial ended almost exactly two years after the murder. The judge — and most of our friends — seemed to think that sentencing the killer would provide "closure" for the family. This month, for Law Week: crime victims, our legal system and reinventing yourself.
First, a brief history lesson. Bear with me. There are two neighboring villages in northern New Mexico that were settled in the 1600s by former residents of two neighboring villages in Spain. There was a blood feud between the villagers in Spain, and they brought it with them to the New World. No one knew how it started or what it was originally about. All they knew was that someone had been killed and the death had to be avenged. Ancient Spain had reached out to a new land, and carved a foothold for itself that lasted 400 years into the future.
For most of history the concept of crime didn’t exist, and the rhythm of these two villages represented life and death for most humans. Wrongs were avenged by the family, tribe or clan in neverending cycles of violence and retribution.
The idea of "crime" only developed with the centralized state. With feudal lords claiming a kind of ownership of all people, animals and land in their realm, a wrong against a person became a wrong against the lord. Even though the Sheriff of Nottingham was really after Robin Hood because he was a troublemaker, the warrant said he was poaching the king’s deer. By extension, the intentional killing of one of the king’s subjects also became a crime — murder or manslaughter. By definition, a crime was a wrong against the state.
Today, Anglo-American jurisprudence can be divided into crimes (wrongs against the state) and torts (wrongs against individuals). When my sister Robbyn was murdered, her death was prosecuted by the Los Angeles County District Attorney — acting for the People of the State of California — as first-degree murder.
Over the past 1,000 years, the victim and her family have been reduced from the central figures in the criminal justice process to figures with no role at all. In a throwback to earlier times, personal prosecution for felonies was still relatively common during the early days of the United States, especially in remote or frontier regions far from courts and prosecutors. A justice of the peace or local magistrate could issue a warrant based on a victim’s sworn statement, and deputize a posse to make the arrest. Often, the victim or a survivor, if the victim was dead, joined the posse and participated in the arrest. Many states, including Washington, still have provisions for citizens to institute a misdemeanor criminal prosecution by "swearing out" a criminal complaint in front of a judge (CRRLJ 2.1(c)). But even this remnant process is strongly discouraged by judges and professional prosecutors who are concerned that involvement of the victim may taint a conviction.
During the trial of Robbyn’s killer, the defense team even sought to exclude family members from the courtroom by placing our various names on their witness list. Although the defense never intended to call us, exclusion of the victim’s family from the jury’s sight was an important goal — and the ultimate indignity. Eventually the prosecutor, at our urging, raised the issue with the court, and the defense witness list was amended.
Subsequently, we learned that the families of most murder victims are routinely treated even more callously. It was only because we were not intimidated by courts and lawyers that we were able to prevail on this vital issue. Even so, we were warned to remain impassive and unemotional as we heard the details of Robbyn’s death, and watched the killer smiling and joking with his attorney. The only thing worse than the torture of being present would have been the torture of exclusion and never really knowing what happened.
The shift away from personal revenge to state prosecution is usually seen as an advance of civilization. There are established rules for managing the process, and clear categories of crimes and punishments. This is not a new idea — it’s just taken a long time to put into effect. When the Hebrew Bible calls for "an eye for an eye, a tooth for a tooth," it is saying that punishment should be proportionate to the crime. The emperor of Japan humorously sings "let the punishment fit the crime" in the Mikado. The motto over the entrance to the Supreme Court is "Equal Justice Under Law." In American jurisprudence the path to that goal is called "due process." But in seeking to treat every person accused of a crime like every other person accused of the same crime, our criminal justice system becomes more about process and less about justice every day.
Then there is the question that we never really want to ask: justice for whom? Is the criminal justice system exclusively for the "benefit" of defendants? Is it for the benefit of a society at large? Is it for the benefit of the victims and survivors of victims?
Increasingly over the years, the courts, properly prodded by the criminal defense bar, have answered that the process is essentially for the benefit — or at least the protection — of the defendant. By requiring more, smaller, and increasingly precise steps in the criminal justice dance, the courts have clearly reduced the number of what can only be called official lynchings. Indigent defendants must be provided counsel. Prosecutors must be more careful as they present their evidence and argue their case. Defense attorneys have more opportunities to show juries that the state’s case wasn’t made "beyond a reasonable doubt." The one thing that hasn’t changed in the last 200-plus years is control of the courtroom — and by extension, control of the criminal justice system itself — by the iron triangle of judge, prosecutor and defense attorney.
Research shows that crime victims and homicide survivors suffer terribly from a sense that they no longer control their own lives. Efforts by courts, police and prosecutors to "shield" victims from the horror are often counterproductive. To the surprise of most criminal justice professionals, people find some comfort in seeing their loved one’s corpse and in hearing the details of the death. Acts that are meant to comfort or protect are seen by victims as further efforts to infantilize. Reality is rarely as vivid or terrifying as imagination.
Two years after my sister was murdered the trial was over and I was forced to confront my own grief. Financially we were barely scraping along. I was doing assigned criminal appeals in Clark County, and my wife, Martha, was finishing her medical residency in Portland. The costs of traveling between Washington and Los Angeles had left us deeply in debt. We were both terribly depressed, and in professions that require at least some social grace, we were alienating friends, colleagues, associates, professors and potential employers right and left. Murder survivors, it seems, are routinely shunned by those around them. It’s almost as though the horror of the event rubs off on the survivor and makes him contagious. All we wanted to talk about was the murder; all others wanted was for us to "get over it" and "get on with your lives."
To make matters worse, we knew nothing about how to be homicide survivors. The fact that we weren’t alone didn’t help much. Ten years ago, little was known about the effect of a murder on surviving family members. Most psychologists subscribed to the theory that grief came in well-defined stages that could be predicted for everyone. Most physicians knew little about the effects of grief on our immune systems, or that the intensity of grief for a murder victim can be 10 times greater than for an aged relative, an accident victim, or even a suicide. We knew none of that. What Martha and I did know was that we were isolating ourselves by our behavior, which was clearly so irrational that even we recognized the problem. But we didn’t know what to do about it except claw at each other.
Fortunately, there were two signal events. Martha found an article in an emergency medicine journal about telling parents that a child had been murdered. The text mentioned Parents of Murdered Children and Other Homicide Survivors (POMC) as an organization that didn’t get tired of hearing about the murder or the victim. She called the POMC national headquarters in Cincinnati, got the number for the Greater Portland Chapter, found out when and where meetings were held, and insisted that we go to the next one.
At first the meetings were a little too "touchy-feely" for me. But I soon realized that my knowledge of the criminal justice system was an important resource for the chapter. Frankly, it was nice to be appreciated and given some recognition for what I knew. But equally important, there was a group of people who didn’t get tired of hearing about Robbyn, the murder and our grief. Instead of walking away, they nodded knowingly when Martha or I described an unexpected wave of grief or some lapse of judgment or attention that left us suddenly helpless. We were discovering that grief is a complex emotion that colored every aspect of our lives. What was unique to each of us was equally a variation on a theme that was thousands of years old, but virtually unknown outside a small circle who were fortunate enough to find each other.
Now we know that without skilled social services and support most crime victims suffer continuing psychic trauma long after the wounds have healed or their loved one has been buried. Reduced academic and job performance, mental illness, alcohol and drug abuse are significantly higher among crime victims than among the public at large. With 30 million crime victims, the cost of providing needed services would be astronomical. The cost of not providing those services is already higher, but it is broken into millions of pieces and absorbed by families, neighborhoods and businesses all over the country.
The second event was catalyzed by a friend in the psychology community who sent me to see Andy Benjamin, then director of the WSBA Lawyers’ Assistance Program. Like most psychologists, Andy knew virtually nothing about the impact of violent death on the survivors. But he did know how to ask hard questions over the years that stimulated introspection and insight and discouraged self-pity. Unlike most psychologists he had the confidence to admit his own ignorance on the subject of grief, and the imagination to find a LAP peer counselor who was knowledgeable from hard personal experience.
Bruce Myers, a retired marine colonel, has seen combat in three wars. One of the most difficult elements of a combat command is dealing with the grief of men who have lost friends who may be closer than brothers. Grief is a reality that has to be expressed and released, but it also has to be controlled and managed or — as I knew too well — it can swallow you.
Over a period of years there was nothing I could say that shocked Bruce or made him visibly uncomfortable. He was never judgmental. He gave me less time than I wanted, but as much as I needed. I was invited into his home and made to feel comfortable and welcome by Mrs. Jo Meyers. Conversation occasionally veered to remembering their friends who had been killed in war. Soon I realized that we shared dead friends. Writers and photographers I had known in Washington, D.C., who were killed in Viet Nam, also knew Bruce and Jo. They helped me understand that it was possible to grieve without letting the grief take over and overwhelm my life. And they gave me a dignified model to follow.
As I began to take control of my grief, Bruce helped me reinvent my legal career. I knew that I did not want to do criminal law. I wasn’t sure what I did want to do. He was a sounding board and a devil’s advocate. When I made sense he encouraged me by introducing me to one of his vast store of friends who practiced in an area I wanted to know more about. When I made no sense, Bruce just listened quietly. It would not be an overstatement to call Bruce and Jo Meyers the godparents of my second life.
Doing what, unfortunately, I knew best, I slowly re-entered law practice by representing families whose applications for crime victims’ assistance had been denied. I was surprised to discover that the state constitution actually contains a section on the rights of victims of crimes (Art. I, ß 35), endorsed by the voters in the November 1989 election. It seeks to provide crime victims with access to trials, and the opportunity to make a statement at sentencing or any other "proceeding where the defendant’s release is considered." But what the section qualifies or does not provide is really more interesting than what it does. For example, crime victims’ rights to attend a trial are "subject to the discretion of the individual presiding over the trial." A judge, on the defendant’s motion, can exclude the victim or her family. The victim has no recourse.
The preamble to the section states that "Effective law enforcement depends on cooperation of victims of crime." The Legislature’s priorities could not be more clear. The intent is not to provide crime victims with rights. It is to keep the victim on board until the trial is over. RCW.94A.080 provides:
In a case involving a crime against persons as defined in RCW 9.94A.440, the prosecutor shall make reasonable efforts to inform the victim of the violent offense of the nature of and reasons for the plea agreement, including all offenses the prosecutor has agreed not to file, and ascertain any objections or comments the victim has to the plea agreement.
RCW 7.69. 030 gives victims the right
(2) to be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case.
Unfortunately, since there are no consequences for failing to contact a victim to "ascertain any objections or comments the victim has to the plea agreement," we really don’t know how many prosecutors just don’t bother.
I am ashamed to admit that when I was a deputy prosecutor in Pierce County I was encouraged by more experienced colleagues to think of most victims as little more than a necessary annoyance. The attitude wasn’t universal, and now I realize that the toughest, most experienced prosecutors assigned to handle the most violent and difficult cases were frequently the most sensitive and compassionate to victims and survivors. I am glad that Carl Hultman is still a deputy prosecutor and Gerry Horne is now prosecuting attorney for Pierce County. I wish I had followed their example. I wish I had been able to recognize their example when I saw it.
Looking further, I discovered that many crime victims who were entitled to crime victim’s compensation, RCW 7.68.015 et seq, were being denied benefits, and had no recourse. Because the benefits were the same as those authorized for workers’ compensation, the Department of Labor and Industries was charged with administering the Crime Victims Compensation Program. But unlike workers’ compensation, crime victims’ compensation is a remedial program designed to resolve any question about the applicant’s qualifications in favor of the applicant. Many L&I staffers didn’t — and don’t — see it that way.
In one case I litigated, a young woman was murdered along with three others in a house in Tukwila. The police determined that the murders involved a failed drug deal. They also determined that the young woman, who was watching a two-year-old child in a bedroom when she was shot, was not involved in the drug business. She was simply in the wrong place at the wrong time. Despite the clear language of the police report and the statute, L&I denied the family’s claim, stating that the woman was not "an innocent victim." It probably didn’t help that the victims were African-American.
The family appealed the denial to L&I and the claim was again denied. The family then appealed to the Board of Industrial Insurance Appeals. Then, through a referral from a local victims’ rights group, the family found me. I was amazed at the denial. I was even more amazed that the assistant attorney general assigned to the case insisted on litigating every element. I was forced to conduct a full-scale discovery campaign including deposing several of the investigating officers. Their story remained the same, but the AAG refused to budge.
After months of expensive discovery and several hearings, the industrial appeals judge finally ruled in favor of the family, but it was nearly a pyrhic victory. The family spent more to win the benefit than it was worth, but the effort helped educate both the L&I staff and other crime victims about their rights under the law.
Over the next several years I was invited to speak at national meetings of POMC, NOVA (National Organization for Victim Assistance) and other groups in the developing crime-victim movement. My message was always the same. Crime victims or their survivors should have a right to sit in the courtroom. Crime victims should be allowed their own counsel with the right to address the court out of the presence of the jury. Defendants should not be allowed to attack the victim without first making an offer of proof to the court that there is a factual basis for the attack.
My message was well-received by crime victims, but many of the police officers and prosecutors’ groups that provide support and encouragement for the victims’ rights movement were less enthusiastic. As long as victims’ rights groups support law enforcement goals such as tougher sentences and more prisons and money for personnel, training and equipment, law enforcement supports them. But when the victims start asking for their own place in the system, that is different.
Nevertheless, the alliance is strong and will probably remain so. Like it or not, there is a symbiotic relationship between crime victims and law enforcement. But, in the final analysis, law enforcement needs crime victims more than victims need law enforcement. After all, no victim would be sorry if he could turn the clock back and avoid becoming a victim. But if crime were to drop dramatically, the need for police, prosecutors and prisons would drop as well. Every agency says it wants to be so successful it is no longer needed. It’s unlikely that we’ll be able to do away with our criminal justice system in the foreseeable future.
But the question remains, what about crime victims? First, a few statistics. In 1999, about 30 million Americans were victims of criminal violence or serious property crimes such as residential burglary. The victims of violent crime are disproportionately young, male and black. During any given hour in the United States there will be an average of 120 cars stolen, 240 burglaries committed, two people murdered and 78 women raped.
Over the past 25 years there has been a vast improvement in the way crime victims are treated by the criminal justice system. In 1976, there was one battered women’s shelter in the United States. Now there are about 2,000. Many states, including Washington, have added victims’ rights amendments to their constitutions and statutes that spell out those rights. Victims are being recognized by the criminal justice system.
But it is increasingly clear to me and to others concerned about crime victims that the criminal justice system is the wrong place to look for justice. After all, it is the criminal justice system, not the victims’ justice system.
In a speech to the National Press Club, Susan Herman, executive director of the National Center for Victims of Crime, put it succinctly, "While victims appreciate that justice is served if the criminal justice system is fair and the outcomes are appropriate, surely justice for victims is more than the arrest and adjudication for offenders. Think of it this way — crimes are violations of communal norms. When offenders are brought to the bar of justice they are held accountable by the state for harms suffered by individuals. There is a societal response to the offender that says, ‘You violated the law and we will hold you accountable, punish you if it is appropriate, isolate you if needed, and offer you services to help reintegrate you into the community.’ The individuals who have been harmed — the victims of crime — have no comparable experience of a societal response to them. There is no statement that says, ‘What happened to you was wrong’ — no response that says, ‘We will help you rebuild your life.’ The same event produces both an offender and a victim. Yet so far we have created a path to justice for offenders. We must begin to pursue justice for both parties."
What do we have in mind? As a first principle, Herman suggests, "We marshal government resources to help victims feel safe and get back on track. [W]e need to reintegrate victims as well as offenders." During 1999, the federal government spent $2.1 billion for halfway houses and other programs aimed at getting offenders’ lives back on track. During the same period, $450 million was spent on victims’ services.
This is not a call for mindless social engineering. It is a call for social protection. Recent research shows that the single greatest predictor among teenagers of who will become a criminal is not drug use, pregnancy or truancy. It is simply whether a teenager had, himself, been a victim of crime.
Large-scale aid for victims could well be one of the most effective ways to prevent crime and violence. As we all know, but rarely practice, prevention is more effective than punishment. So it is a mystery why we put so much emphasis on law enforcement and enormously expensive prisons while disdaining less costly social services that demonstrably reduce crime. You could almost believe that our lawmakers simply feel comfortable with the macho field of law enforcement and uncomfortable with the more "feminine" fields related to social services, regardless of cost or effect.
There are those who sincerely believe that punishment and retribution will provide "closure." More than 100 survivors of people killed in the Oklahoma City bombing have petitioned Attorney General John Ashcroft to be allowed to watch on closed-circuit television as Timothy McVeigh dies in the federal government’s execution chamber. I wouldn’t mind if the man who killed Robbyn were killed in prison. And I certainly don’t want him ever to be paroled, but I would take no pleasure in watching his execution. Nevertheless, I would never judge another victim’s desire to be present for the killer’s demise.
What is ultimately clear to me is that without the support Martha and I received through LAP, POMC and friends who stuck with us, our lives would be much different today. We will never get over a murder in our family, but we can learn to live and cope with the grief. With enough support the pain can lead to insight and compassion.
It is appalling to think of ourselves as fortunate, but among crime victims we are. We had the education to figure out what we needed to do, and we had the resources and the connections to make it happen. Most crime victims do not have a college education, much less graduate degrees. Many crime victims are so paralyzed by their trauma that they can’t go to work. Many can’t go outside their homes. Many aren’t able to make rent payments, and become homeless. Even in our deepest depression and anger we were able to pay our mortgage.
Now, 12 years after Robbyn was murdered, we are finally recovering financially. We are almost back to the point we were at on February 21, 1989. My law practice and Martha’s medical practice are in the black. We have learned to laugh again, though our humor tends toward the bleak and cynical. We are both less critical and judgmental, and we are more accepting of others’ foibles. Our sense of what is important has certainly changed.
The horror of the murder and the grief at the loss never go away, but we are learning to make those emotions part of our lives and keep them under control — most of the time. I have learned not to make any important decisions on February 21 of each year. Our family remembers Robbyn on her birthday now. We continue to work for crime victims’ rights. We give time to a variety of pro bono causes. And we try to build new lives.
For further information, contact Parents of Murdered Children (POMC) at 888-818-POMC or natlpomc@aol.com. In the Seattle area, contact the local chapter of Families & Friends of Missing Persons & Violent Crime Victims at 206-362-1081.
Back to table of contents >>
