By Brittany Hailer
Pittsburgh Current Contributing Writer
On Nov. 5, Pennsylvanians will vote on a ballot referendum known as Marsy’s Law, which would amend Article I of the Pennsylvania Constitution.
The ballot measure would provide crime victims with 15 specific constitutional rights including, reasonable and timely notice of public proceedings involving the criminal conduct; the right to be present at public proceedings involving the criminal conduct; the right to be heard at proceedings where a right of the victim is implicated, including release, sentencing, and parole proceedings.
The law passed unanimously in the State Senate, and by a 190-8 margin in the State House, although it has faced opposition from the American Civil Liberties Union (ACLU) in a lawsuit filed on behalf of the League of Women Voters and an individual plaintiff.
The suit argues that the referendum will change too many aspects of the state constitution. It amends three different articles, eight different sections, and one schedule all with a simple “yes” or “no” vote.
According to the lawsuit: “Despite the many changes that the proposed amendment will make to the Constitution, the voters have only one option available to them: vote “yes” or “no,” to all these changes together…This is commonly referred to as logrolling. ‘Logrolling’ takes away the voters’ decision about what our Constitution should say and gives it to the Legislature.”
Mary Catherine Roper, the deputy legal director at the ACLU of Pennsylvania, explained that Pennsylvanians should be voting on each individual change that Marsy’s Law proposes.
The voters are entitled to pick and choose what they want to adopt,” she said, but Marsy’s Law doesn’t allow choice, “You have to take it all or nothing.”
ACLU is still waiting for a ruling from Judge Ellen Ceisler. Roper explained that normally a constitutional amendment goes into effect the day after the election. If Marsy’s Law instantly goes into effect, the changes may be irreversible. The ACLU is asking for a delay until the courts decide whether Marsy’s Law should make massive changes to the state constitution.
“We asked for a preliminary ruling, that just said, hold off counting the votes until the litigation is done…Don’t make changes that aren’t reversible while the courts are still considering it…Don’t let it go into effect until the litigation is done.”
Who will Marsy’s Law effect?
Some argue that the ballot measure may do more harm than good. Advocates and activists are not only raising concerns about individuals accused of a crime, but also their alleged victims, and the potential changes to the Pennsylvania State Constitution
Megan Block is a consulting attorney on the Women’s Law Project #MeTooPA, an initiative that provides free, confidential, victim-centered legal resources to students, parents and low-wage workers facing sexual harassment. She’s also concerned about how Marsy’s Law will change the State Constitution and said “it’s much easier to deal with nuance in state law.”
Block pointed to pro-victim bills signed into law by Governor Wolf in July of this year as a good example of how state legilature can empower victims of sexual assault. House Bill 504, for example, prevents prosecutors from bringing up the victim’s sexual history or prior allegations of sexual abuse while prosecuting certain crimes.
“The message resonates with so many of us, especially in light of Me Too.” she said, “It’s hard for people to stop and think, “Wait a minute, is this the best way to address this problem?” Whenever we’re amending our constitution we need to do a gut check. Are there other ways we can address the same problem?”
Block said that pitting victims’ rights against criminal rights is a false choice and that, while the law may be well-intentioned, Pennsylvanias must consider how the law will affect everyone’s rights.
“Even if it’s well-intentioned, it’s going to have serious effects on populations that we’re not even thinking of right now,” Block said.
Gabrielle Monroe, who survived sex-trafficking as a youth and now volunteers to help sex workers find housing, mental health aid and legal counsel, asked the same questions. Who will be affected by Marsy’s Law?
“My initial concern is the wording is very vague and problematic. Which victims are they talking about? We have sex workers being held for 6-8 months on high bail. Their victim is a hotel owner–or a victimless crime,” she said.
George Sant, an attorney who conducted research on behalf of the National Crime Victim Law Institute published, “Victimless Crime Take on a New Meaning: Did California’s Victims’ Rights Amendment Eliminate the Right to Be Recognized as a Victim” in Notre Dame’s Journal of Legislation in 2013.
In California, Marsy’s Law specifically states that “[t]he term ‘victim’ does not include a person in custody for an offense, the accused, or a person whom the court finds would not act in the best interests of a minor victim.”
According to Sant, “Based on a superficial reading of this language, one might conclude that all individuals “in custody” are excluded from “victim” status, and thus that “in custody” victims of sex trafficking and child prostitution (to take two examples) are excluded from the protections of Marsy’s Law.”
Monroe worries that Marsy’s Law will further punish marginized folks, including sex workers, and give the government more power than it should.
“It just Gives the government even more permission to abuse our system.What victims will be afforded these rights?”
How has Marsy’s Law affected other states?
Marsy’s Law for Ohio was passed in November 2017. Eric Laursen, a defense attorney in Cincinnati says the law has only complicated court proceedings and cases.
“Marsy’s Law hurts victims as well and violates the rights of those accused of the crime. Judges don’t know how to apply it. Some will ignore parts of it and are daring people to challenge it or appeal in in one way shape or another,” he said.
In Ohio, the alleged victims can challenge discover requests. They can deny the prosecution requests for facebook pages or medical records and Lauresen says medical records are vital for cases that include battery, assault or sexual assault.
Laurensen also talked about re-traumatizing the victim in rape cases. Under Marsy’s Law the victim is contacted, notified, or asked to be present in court more often than before.
“Let’s say the prosecution want to raise the bond. You have to bring in your victim in order to do that,” he said.
Vida Johnson is a professor at Georgetown University Law Center, and a former supervising attorney in the Trial Division at the Public Defender Service for the District of Columbia. Johnson raised concerns about alleged victims having say in court proceedings even before there is a conviction.
“We supposedly have a system that’s founded on the fact that anyone accused of a crime is presumed innocent,” she said, “to then have an alleged victim have some say in any of the proceedings, I think is really deeply troubling and undermining of the presumption of innocence and undermining of the defendant’s ability to get a fair trial, or have any fair process at all.”