An explanation of Marsy’s Law

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DANE COUNTY, Wis. (WMTV) - Marsy's Law is aimed at giving crime victims more rights during the legal process.

NBC15 News Reporter Elise Romas speaks with survivors, advocates and defense attorneys about what Marsy's Law is and what it would do if it's passed on April 7.

It started in California in the 1980s, and variations of that legislation have been passed in other states. Wisconsin voters will see a version of that law on their ballots as a proposed state Constitutional Amendment, April 7.

"I was strangled and beaten by my boyfriend at the time,” Marsy’s Law advocate and survivor Christina Traub said, as she recalled a horrific night five years ago. “His hands were on my throat and I was pinned on top of the hood of my car."

She spent the night in the hospital, but months after, she was still dealing with the legal consequences of the assault. Traub said on two occasions she showed up to an empty courtroom, without knowing a hearing had been rescheduled.

"Obviously they told him about this, but nobody told me, or for whatever reason, it wasn't a priority to let me know," Traub

"Crime victims' rights are often trumped by the accused in the courtroom and that's what we're trying to correct with this," Marsy’s Law Wisconsin Communications Director Myranda Tanck said.

Tanck said there are state rights for victims in Wisconsin’s constitution, but the new law would take it a step further.

"It takes some of those rights that are already in the state constitution and strengthens or clarifies them and then it takes a number of rights that are already in the Wisconsin state statutes and puts them into the constitution," Tanck said.

NBC15 News reached out to the Wisconsin Association of Criminal Defense Lawyers. They sent a statement saying, while Marsy's Law has good intentions, the law would pose a risk to the constitutional protections of someone accused of a crime. (See full statement below).

The American Civil Liberties Union of Wisconsin is opposed to it, saying Marsy's Law, "threatens the civil liberties of all Wisconsinites."

"It's about recognizing victims through the process and that we understand that and respect that and respect their rights as well," Traub said.

A few examples of the rights included in Marsy's Law:
- Giving victims more opportunities to speak at hearings
- Timely notifications of a court proceedings
- Victim privacy

A statement on Marsy’s Law from the Wisconsin Association of Criminal Defense Lawyers:

MARSY’S LAW CREATES UNFUNDED GOVERNMENT MANDATES
THAT JEOPARDIZE CONSTITTUIONAL RIGHTS

This April 7, 2020 Election, the Wisconsin election ballot asks voters whether they want to amend Wisconsin’s Constitution to adopt “Marsy’s Law,” a national proposal created by a California billionaire to amend our state constitutions for the stated purpose of increasing constitutional rights for victims of crime. Marsy’s Law defines a “victim” as any person, or in certain cases a family member or representative, who accuses another person of a criminal act.

While Marsy’s Law has good intentions, it was not drafted with the existing protections for victims under the Wisconsin Constitution in mind, and therefore is likely to burden our state with unclear, unfunded mandates while presenting grave risks to the Constitutional protections to citizens of Wisconsin accused of crimes.

The Wisconsin Ballot Referendum question for Marsy’s Law states:

“Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

The first problem is that the Wisconsin Ballot Referendum question for Mary’s Law does not explain which “additional rights” it would provide to “victims,” leaving voters in the dark about what they are voting for. The Ballot Referendum question therefore requires Wisconsin citizens to vote on a substantial constitutional change without providing them the text of the proposed constitutional amendment. Expressing similar concerns, the Supreme Court of Montana struck down Marsy’s Law as unconstitutional, ruling that Marsy’s Law contains multiple constitutional amendments, each of which require a separate vote so that voters are able to make an informed and specific choice about which Constitutional changes they are voting for.

Second, while many of the proposed “additional rights” included in Marsy’s Law are indisputably beneficial - - such as treating victims “with dignity, respect, courtesy, sensitivity, and fairness” – the fact is that section 9m, article I of the Wisconsin Constitution already provides victims with many of the same constitutional rights. Because Marsy’s Law is a national proposal, it was not written with careful consideration about how to improve existing victim’s rights in the Wisconsin Constitution, but to advance a national agenda.

Third, states that have rejected Marsy’s Law have raised concerns that it would create undefined and potentially far-reaching Constitutional mandates that are likely to directly undermine the Constitutional rights of the accused.

Marsy’s Law would allow “victims,” who accuse someone of a crime (whether or not that individual is innocent or guilty) to refuse to provide evidence that may be essential to the determination of the accused’s innocence. This mandate undermines fundamental Constitutional protections that our Founding Fathers guaranteed to protect our citizens who are presumed to be innocent from being wrongfully convicted by allowing them to discover and present evidence in support of their innocence. For these reasons, lawmakers in states such as Iowa, Idaho, Maine, and New Hampshire have recently rejected Marsy’s Law. Lawmakers in Idaho specifically cited concerns about the vague and potentially far-reaching language guaranteeing a victim “reasonable protections from the accused throughout the criminal justice process,” which they were concerned would be used to confiscate firearms from the accused before trial, even if there were substantial evidence that he or she is innocent.

Finally, states that have passed Marsy’s Law have raised significant concerns about paying for the costs of the unfunded mandates created by Marsy’s Law. In South Dakota, a sparsely populated state, the four largest counties reportedly spent a half-million dollars in the first year alone responding to the Constitutional mandates created by Marsy’s Law. There is no way to accurately calculate all the far-ranging costs that Wisconsin would incur resulting from Marsy’s Law becoming law because the mandates are not defined. As a result, Wisconsin judges, prosecutors, law enforcement agencies, and victim rights coordinators would be left to interpret them, creating additional burdens on justice officials and taxpayers.