Marsy’s Law is Adding Victim’s Rights, but Raising New Concerns

By a 4–1 margin in November, Ohio voters passed Issue 1, Marsy’s Law, named for Marsalee Nicholas, a woman who was stalked and murdered by her ex-boyfriend in 1983. Her brother Henry T. Nicholas III, a Cincinnati-born billionaire living in California, bankrolled Ohio’s campaign and other previous successful ones in California, Illinois, North Dakota, and South Dakota. (Montana’s passed in November 2016 but was later ruled unconstitutional.) Ohio Attorney General Mike DeWine cochaired the campaign in favor of Marsy’s Law, with actor Kelsey Grammer urging support in a television spot. The opposition included an unusual alliance: Ohio State Bar Association, ACLU of Ohio, Ohio Prosecuting Attorneys Association, and Ohio Association of Criminal Defense Lawyers.

Marsy’s Law will replace current victim’s rights language in the Ohio constitution with what some describe as needed expansions of rights. Others see the amendment as a threat to due process for the accused and, alternatively, as toothless because it offers no clear recourse if victims aren’t granted their rights. Here’s what changed, with open questions currently being sorted out by the Ohio Crime Victim Justice Center as it drafts implementation language, says Aaron Marshall, spokesman for the “Yes on State Issue 1” campaign.

Image courtesy Shutterstock/Modified by Megan Scherer


Existing rights
No standard definition of “victim.”

Rights added
Marsy’s Law defines “victim” as a person against whom the criminal offense or delinquent act is committed or the person directly or proximately harmed by the act. Victim does not include the accused or a person who would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.

Unanswered questions
Since being a victim will grant so many new rights, William Gallagher, chair of the CLE Institute for the National Association of Criminal Defense Lawyers, anticipates legal gymnastics over who qualifies as a victim. In a self-defense case, for example, sometimes the person who set out to commit a crime becomes injured; can he/she also claim to be a victim prior to a criminal ruling? And in a more typical criminal proceeding, at what point—before the crime has been ruled upon—can a person assert they’ve been the victim of that very crime?


Existing rights
Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process.

Rights added
Expands to the juvenile justice system and adds the victim’s right to privacy.

Unanswered questions
None


Existing rights
Victims must be given reasonable and appropriate notice, information, access, and protection and be allotted a “meaningful role” in criminal justice proceedings.

Rights added
Upon request, victims have a right to reasonable and timely notice of all public proceedings, a right to be present at all proceedings, and a reasonable notice of any release or escape by the accused.

Unanswered questions
It’s unclear what qualifies as a “reasonable” timeline.


Existing rights
Victims did not have the right to appeal or modify any decision in a criminal proceeding.

Rights added
Now victims have a right to be heard in any public proceeding involving release, plea, sentencing, disposition, parole, or any public proceeding “in which a right of the victim is implicated.”

Unanswered questions
“Depending upon the goals of the victim,” explains Mike Brickner, ACLU Ohio’s Senior Policy Director, the opportunity to interject throughout the case “could compromise the defendant’s fair trial. It could also jeopardize the prosecution’s case as well,” for instance if a domestic violence victim did not want to see his or her loved one punished and interjected throughout the prosecution’s case.


Existing Rights
Victims now have the right to refuse interview, deposition, and discovery requests made by the accused in most cases. Victims have the right to full and timely restitution from the person who committed the criminal offense.

Rights added
Victims will be able to refuse discovery of evidence in some cases, as determined by a judge.

Unanswered questions
If a defendant trying to prove innocence does not have access to every piece of evidence, “that could be a big due process and fair trial concern,” says Brickner.

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