What are crime victims’ rights? What does it mean to impose them with “equal force” to the rights of the accused? And why didn’t victims have these rights already?
Wisconsin residents weighed such questions this year before a majority of voters ratified Marsy’s Law, an amendment to the state’s constitutional provision for crime victims.1 Opponents warned that the amendment would devastate defendants’ rights and further overburden the criminal justice system. Proponents insisted it would secure victims a voice by equalizing victims’ and defendants’ rights.2 Both sides of the debate seemed to miss that Wisconsin victims have had such rights for years – at least, on the books.
To work with Marsy’s Law, lawyers must understand the historical and practical legal context of crime victims’ rights.3 This article considers the amendment in light of Wisconsin victims’ long-standing constitutional and statutory rights in an effort to provide lawyers with a framework through which to discern what Marsy’s Law means and does not mean for crime victims in this state.
Leading Up to Marsy’s Law
The Wisconsin Constitution and Wisconsin statutes have offered victims robust rights for decades. Forty years ago, Wisconsin enacted Wis. Stat. chapter 950, and Wisconsin voters approved adding victims’ rights provisions to the state constitution in 1993 with article I, section 9m. Lawmakers executed the constitutional provisions and provided remedies for violations by amending chapter 950 over the years, expanding and expounding on victims’ rights along the way.4
Becca Donaldson, Harvard 2016, is a staff attorney on the Crime Victims’ Rights Project with Legal Action of Wisconsin Inc., Milwaukee. She previously served as a law clerk to the Hon. Virginia M. Kendall in the Northern District of Illinois, a Harvard Presidential Public Service Fellow at the ACLU, and a Fulbright Fellow in political science.
Amanda R. Rabe Mayer, Marquette 2012, is the Civil Unit Lead Attorney and a part of the Crime Victims’ Rights Project with Wisconsin Judicare Inc., Wausau. She works with victims and survivors of domestic abuse and sexual assault, in cases including family law, victims’ rights, and public benefits. She also runs a clinic for self-represented divorce litigants and supervises outreach at a domestic abuse shelter. She is the immediate past chair of the State Bar of Wisconsin Public Interest Law Section.
Megan E. Robson, Michigan State 2019, is a staff attorney on the Victims’ Rights Project at Wisconsin Judicare Inc., Wausau. She advocates for victims and survivors of domestic abuse and sexual assault in family law and victims’ rights cases and conducts outreach at a domestic abuse shelter.
Andrea K. Rufo, Emory 2005, is project director and supervisor for Legal Action of Wisconsin Inc.’s Crime Victims’ Rights Project in Racine. She works with victims and survivors of domestic and sexual abuse to preserve their rights as victims and protect their privacy interests.
Rachel E. Sattler, U.W. 2008, is with the Crime Victims’ Rights Project at Legal Action of Wisconsin Inc., Madison, focusing in privacy and crime victims’ rights law. She previously worked as a sensitive-crimes prosecutor. She is also the cofounder of Dane County Multi Agency Center Inc., a local nonprofit organization dedicated to streamlining survivor access to support.
Patrick Shirley, U.W. 2018, is a staff attorney on the Crime Victims’ Rights Project with Legal Action of Wisconsin Inc., Madison. After a stint as a State Public Defender, he joined Legal Action in 2019. He now works with victims of crime to help them enforce their privacy and other rights.
Since their inception, these rights intended to serve the same purpose as Marsy’s Law: empower victims to participate in the criminal justice process to protect them from the systemic wrongdoings and disregard of state actors, specifically “law enforcement agencies, prosecutors and judges.”5
Yet these same state actors also serve as victims’ primary source of information during a case, including about victims’ rights.6 This often leaves victims to navigate their rights alone when disputes arise, because these messengers also function as system gatekeepers. Such a conflict can inhibit accountability and rights enforcement. Victims rarely have access to independent counsel, or even know that they can seek it out, to assist in explaining and asserting their rights. Only a handful of cases have explored the meaning of victims’ rights in Wisconsin.7
Lacking statewide standards, and the motivation or capacity to probe the status quo, the resulting underenforcement and underdevelopment of victims’ rights law perpetuated ambiguity and inattention toward victims on matters as complicated as the remedies available for violations and as simple as where victims should sit in the courtroom.
The Marsy’s Law amendment arose from a recent national campaign to amend each state constitution with a Marsy’s Law-branded victims’ rights provision, regardless of a state’s existing protections.8 In Wisconsin, the amendment sought to accomplish this primarily by constitutionalizing many of victims’ existing statutory rights, even though these statutory rights executed victims’ existing constitutional rights and thus already inherently enjoyed the weight of constitutional support.
Marsy’s Law alters multiple aspects of Wis. Const. article I, section 9m.9 A close look reveals that victims could have argued these rights under the previous section 9m along with Wis. Stat. chapter 950 among other statutes.10 Instead, these rights went largely unenforced.11
Marsy’s Law comprises two types of rights: broad enabling provisions and a long list of enumerated, substantive rights. The below sections survey these rights, compare them to victims’ earlier rights, and question the impact Marsy’s Law will have on Wisconsin crime victims.
The Amendment’s Enabling Provisions
Enabling provisions establish the means by which victims can enforce substantive rights – the who, when, and how. This section reviews the Marsy’s Law enabling provisions and shows the extent to which victims already had these rights before the amendment was ratified.
Definition of Victim. Marsy’s Law preserves the prior statutory definition of “victim.” The amendment specifies that rights vest “at the time of victimization.”12 Before, the law remained silent on when vesting occurred. The omission left open whether someone could raise violations that happened before they reported – such as a bad experience while trying to report. Clarifying when rights vest could ensure greater protection for victims at the start of a case, particularly those who fear for their safety while reporting and those who doubt whether authorities will take their complaint seriously enough to investigate and charge the case, disproportionately affecting individuals of color, who are differently abled, or those who have arrest or conviction records. Chapter 950 still ultimately requires someone to report to qualify as a victim.13
Accordingly, Wisconsin’s version of Marsy’s Law does not substantially change who can claim victim status.14 The system must still distinguish a victim from the “accused,” as before,15 which will continue to prove complicated in investigations such as officer-involved shootings. Amendment opponents fear that, because of Marsy’s Law, law enforcement officers, governmental entities, and corporations now will be able to claim victim status. That might be so, but not because of Marsy’s Law. Wisconsin did not previously require a victim to be a private citizen or natural person, nor did existing laws preclude such actors from claiming victim status.16 Wisconsin’s earlier laws, not Marsy’s Law, created this possibility in Wisconsin.17
Asserting and Appealing Victims’ Rights. Section 9m now states that victims “may assert and seek in any circuit court or before any other authority of competent jurisdiction, enforcement of the rights in this section and any other right, privilege, or protection afforded to the victim by law.” But victim standing is not new. Victims could already participate in proceedings implicating their rights under general standing doctrine and Wis. Stat. section 950.105, which gives victims “a right to assert, in a court in the county in which the alleged violation occurred, his or her rights as a crime victim….”18
For many years, victims asserted their interests in certain criminal proceedings, such as sentencing hearings, without resistance. More recently, with the help of private counsel, victims have exercised and even successfully defended against challenges to their standing in other types of criminal court proceedings. Victims have appeared in a limited scope to file legal briefs and argue orally through counsel in support of issues implicating their rights. Victims have even asserted their interests in opposition to prosecutors’ positions – sometimes aligning with the defense.19
Much the same can be said for victims’ ability to file appeals and petitions for writ: they could do this before approval of Marsy’s Law. The amendment articulates that victims “may obtain review of all adverse decisions concerning their rights” by “filing petitions for supervisory writ….” The Wisconsin Supreme Court already left open this possibility in Gabler v. Crime Victims Rights Board. Moreover, nothing in chapter 950 nor laws governing writs had previously foreclosed victims from filing appeals or petitions for supervisory writs.20 Some victims have appealed decisions regarding their rights.21 Amendment critics argue that victims appealing pretrial decisions will result in problematic if not unconstitutional delays or overburdening of the system. At any rate, these tools have been available to victims before Wisconsin voters approved Marsy’s Law.22
Self-execution. Marsy’s Law deems the amendment “self-executing.” In 2005, the Wisconsin Supreme Court held in Schilling v. State Crime Victims Rights Board that section 9m’s directive to “treat crime victims … with fairness, dignity and respect for their privacy” constituted a statement of purpose, not an enforceable, self-executing right.23 Lawmakers responded by amending chapter 950 in 2011 to enumerate these rights. The Schilling court found that the other privileges and protections listed in section 9m “intended to provide an outline of the specific rights that the State shall afford crime victims.”24 Each privilege and protection traced to one or more specific rights in chapter 950 and was thus executed. Given that lawmakers already executed victims’ constitutional rights and that Marsy’s Law primarily – if not exclusively – constitutionalizes victims’ existing rights, Marsy’s Law does not execute victims’ rights to a greater extent than before.25
In a Manner No Less Vigorous. Marsy’s Law affirms that a victim’s state constitutional rights must “be protected by law in a manner no less vigorous than the protections afforded to the accused.” Chapter 950 has alluded to this standard since 1979, instructing state actors to extend rights to victims “in a manner no less vigorous than the protections afforded criminal defendants.” Before Marsy’s Law, section 9m articulated that “[n]othing” in Section 9m or corresponding statutes “shall limit any right of the accused….”26 Because chapter 950 executed and enumerated section 9m, victims could have leveraged the statute’s stated intent to argue the equal nature of their rights before Marsy’s Law. The new language in Marsy’s Law does not necessarily create newly equal rights for victims, though it does elevate this language from the statute to the constitution.
Constitutionalizing this language prompts perhaps the biggest unknown in the wake of Marsy’s Law. Courts will need to balance victims’ and defendants’ constitutional rights when conflicts arise, harmonize their respective constitutional rights with statutory rights, and possibly limit or abrogate preexisting rights that cannot be otherwise reconciled.
However, this alteration’s effects might not emanate as far as feared by opponents or as cheered by proponents. An adversarial legal system, coupled with the traditional construct of a two-party criminal system, sets up a false dilemma between defendants’ rights and victims’ rights. Defendants’ and victims’ interests sometimes align and often do not contradict, considering that section 9m and chapter 950 predominantly safeguard victims from state actors who might otherwise ignore their interests.
Marsy’s Law reflects section 9m’s earlier recognition that victims’ state constitutional rights are “not intended and may not be interpreted to supersede a defendant’s federal constitutional rights.” The U.S. Constitution’s Supremacy Clause makes this obvious.27 Defendants’ state constitutional and statutory rights sometimes track with their federal rights, so this change might not lead to much difference for victims’ rights in practice.
Even so, now that Marsy’s Law constitutionalizes this “no less vigorously” language in section 9m, questions emerge about how to settle conflicts. What will happen when victims argue that their state constitutional right should supersede a defendant’s state constitutional or statutory right not otherwise captured as a federal right? Or when victims argue that their broader federal constitutional right, like the U.S. Constitution’s underlying right to privacy, should take priority over a defendant’s state, or even federal, constitutional right? Such legal and practical realities both amplify and temper the potential magnitude of this change.
The Amendment’s Substantive Provisions
Marsy’s Law enumerates 16 rights. This list elevates many prior statutory rights to constitutional protections, with tweaks to the exact wording. Overall, as with the enabling rights discussed above, these rights are effectively not new. Victims could argue these rights under preexisting law.
Access to Information. Marsy’s Law maintains victims’ constitutional rights to confer with a prosecutor and to obtain information about the case’s outcome, adding to section 9m that victims have a right to information about the investigation and to receive this information in a “reasonable and timely” manner.
Victims already had the right to consult with intake workers, corporation counsel, and the government’s attorneys, as well as rights to a speedy disposition, dignity, and fairness. Such preexisting rights thus offered much the same as those provided in Marsy’s Law because courts could have interpreted these rights to encompass reasonable and timely case updates, including about the investigation of a victim’s case.
Relatedly, the amendment includes a provision that victims receive “timely notice about all rights under this section,” along with information about how to enforce those rights. Chapter 950 had already placed such obligations on law enforcement and district attorney offices by requiring them to share victims’ rights information within 24 hours after initial contact with a victim.28
Proceedings and Timely Disposition Free from Unreasonable Delay. Marsy’s Law amends section 9m to shield victims from “unreasonable delay” in cases and proceedings. Victims already enjoyed a constitutional right to “timely” disposition of a case as well as to “speedy” disposition by statute.29 For a case to resolve quickly, those involved already needed to minimize unreasonable delays at proceedings and throughout a case.
Rights to Notice and to Being Heard. Victims have had numerous rights to notice and being heard.30
Marsy’s Law states that victims have the right to receive, on request, “reasonable and timely notification of proceedings,” along with the right to “attend all proceedings involving the case.”31 Section 9m already conferred “the opportunity to attend court proceedings” and “notification of court proceedings,” without any apparent limitation on which proceedings, while chapter 950 has given victims the right to “attend court proceedings” and “have reasonable attempts made to notify the victim of hearings or court proceedings.”32
Also, section 9m already contained a provision to inform victims “about the outcome of the case and the release of the accused,” alongside an almost overwhelming number of notification requirements under chapter 950, showing the legislature’s intent to convey extensive notice to victims before charges, during a case, and after a conviction. Given this, a victim could have reasonably argued even before Marsy’s Law that they were entitled to the full extent of updates available under Marsy’s Law, at a minimum under victims’ existing rights to fairness and dignity.33
Under Marsy’s Law, victims also have the constitutional 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.”34 While this right includes even more examples than previously listed, victims already enjoyed express statutory rights to be heard regarding requests for continuance, sentencing, parole, probation modification, and at “disposition,” a category separate from and broader than sentencing.35 More generally, victims have had the right to provide the court “with information pertaining to the economic, physical and psychological effect of the crime … and have the information considered by the court.”36
Dignity, Respect, Courtesy, Sensitivity, Fairness, and Privacy. Marsy’s Law lists the right “[t]o be treated with dignity, respect, courtesy, sensitivity, and fairness” and a separate right to privacy. This language parallels preexisting section 9m and chapter 950, which granted victims the right “to be treated with fairness, dignity, and respect for his or her privacy by public officials, employees, or agencies …” and expressed intent to ensure that victims “are treated with dignity, respect, courtesy and sensitivity….”37
These preexisting rights remained essentially untested, obscuring their potential and limitations. They are not, however, newly provided under Marsy’s Law.38 Amendment critics suggest these rights might be problematically vague, though no such challenges rose up through Wisconsin courts in the decades when the previous provisions existed with nearly identical wording.
Meanwhile, Marsy’s Law breaks respect for privacy into two rights, respect and privacy, ostensibly providing broader protections for both. Yet victims’ existing right to “dignity” might have already included both as standalone rights, in addition to victims’ right to privacy under other relevant statutes39 and the U.S. Constitution.40
Reasonable Protection from the Accused and Refusing Pretrial Discovery Requests. Marsy’s Law presents victims an explicit constitutional right to refuse interviews, depositions, or other discovery requests from the accused or their agents, in addition to the right to “reasonable protection” from the accused.41 By comparison, the previous section 9m only expressed a general right to reasonable protection from the accused.
Chapter 950, however, already empowered victims to decline defendants’ demands for pretrial interviews and depositions.42 Further, victims’ preexisting constitutional and statutory rights required courts to balance defendants’ and prosecutors’ discovery requests with a victim’s right to privacy, typically regarding privileged records, often rendering victims able to refuse pretrial discovery requests in practice.43 In other words, while some of the constitutional language is new, these rights are not.
Compensation and Restitution. Victims enjoy essentially the same rights post-Marsy’s Law when it comes to compensation and restitution as they did pre-Marsy’s Law, down to nearly identical constitutional wording. Marsy’s Law adds the right “to be provided with assistance collecting restitution” but does not specify what this means. If it merely provides that victims can lean on district attorney offices or victim service professionals for help submitting claims, victims might already have had the “assistance” this right entails.44
Marsy’s Law proponents and opponents appear to agree on one thing: now ratified, Marsy’s Law will alter Wisconsin’s criminal justice system. The question is how and to what extent.
As this article lays out, the previous version of the victims’ rights provision in Wisconsin’s constitution, paired with chapter 950, already offered crime victims extensive rights. Indeed, the comparison above shows that the rights afforded by the amendment existed plainly or arguably before its ratification.
Marsy’s Law also does not change victims’ lack of access to resources and information that have inhibited the enforcement and development of their rights. Further, defendants still enjoy considerable, well-established constitutional rights that courts will continue to emphasize as a legal, ethical, and practical reality. So long as this is the situation, Marsy’s Law will not necessarily lead to greater enforcement, or “equal force,” of victims’ rights laws any more than before the amendment.
This is not to say Marsy’s Law, now ratified, does not change the legal landscape for victims and defendants, or for their respective counsel, prosecutors’ offices, law enforcement and corrections offices, and courts. The amendment provides greater detail about the scope of many rights of victims. These actors also must now play their respective roles to sort out how to reconcile the constitutional and statutory conflicts that arise while ensuring that the system properly recognizes and enforces the rights of both victims and defendants.45 The main points of contention about Marsy’s Law mentioned in this article suggest the legal issues likely to manifest.
Perhaps most significantly, Marsy’s Law has increased the attention paid to victims’ rights laws in Wisconsin. Law develops when people pay attention to it. Maybe the question therefore is not what the amendment changes about the law on paper, but whether and how increased awareness of victims’ rights will lead to more robust enforcement, protection, and critical thinking about the definitions and boundaries of such rights in practice.
Meet Our Contributors
What is your favorite place in Wisconsin?
Hoyt Park in Wauwatosa. The pool’s slides rival those in Wisconsin Dells – which was a big priority to me as a kid growing up around here! As an adult, the beer garden offers some of my very favorite things about Wisconsin all in one place: a quality public park, the memories of special moments with loved ones, fireflies at sunset on a summer evening, good beer. And the occasional polka band.
Becca Donaldson, Legal Action of Wisconsin Inc., Milwaukee.
What was your favorite/best vacation?
Last summer I went on a two-week road trip with my husband out to the California coast and back. We visited as many national parks and other landmarks as we could, ranging from the Badlands to Yellowstone to Alcatraz Island. We even went whale watching and saw otters, seals, and a pod of whales. My personal favorite was Arches National Park in southern Utah, which is absolutely breathtaking.
Amanda R. Rabe Mayer, Wisconsin Judicare Inc., Wausau.
What is on your bucket list?
An item on my bucket list is to be a juror. Jurors have such great responsibility in our legal system and are so crucial. However, I have seen characters in TV shows wear kooky outfits and make wild excuses to avoid jury duty and articles dedicated to legally getting out of jury duty. I, on the other hand, anxiously await the arrival of a jury summons and hope to one day be able to serve as a juror and fulfill my civic duty.
Megan E. Robson, Wisconsin Judicare Inc., Wausau.
If you could have any superpower, what would it be?
To stop time. There are more books that I want to read than I have the actual lifespan to complete. And here’s the rub: great books are still being written. Literally, every week a new plethora of beautiful stories, fascinating information, and other wordy delights are released into the world. I need more time.
I would like to tell you I would use my superpower solely for good and crime fighting, and sure, if while on my way to the library or bookstore I see someone about to get hit by a car, of course I’ll stop time and move them safely out of the way before restarting things – I’m not a monster. But to be clear, the superpower I would most want is the ability to stop time. So I can read all the books.
Andrea K. Rufo, Legal Action of Wisconsin Inc., Racine.
What are you reading now? Do you have a favorite author or genre?
I’m engrossed in two extraordinary page-turners right now; both are must-reads for very different reasons: Caste: The Origins of Our Discontents, by Isabel Wilkerson, to better understand our nation’s hierarchy in order to become a better friend, neighbor, human. Life After Life, by Kate Atkinson, to simply delight in storytelling creativity and inventiveness.
Rachel E. Sattler, Legal Action of Wisconsin Inc., Madison.
Where or when do you get your best ideas?
I get my best ideas in the kitchen, while cooking. This often results in good ideas, but slightly distracted, and then burned, me.
Patrick Shirley, Legal Action of Wisconsin Inc., Madison.
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1 Wisconsin voters ratified the Marsy’s Law Amendment on April 7, 2020, and the Wisconsin Election Commission certified the election results on May 4, 2020. See 2020 Spring Election and Presidential Preference Vote, Statewide Referendum, Canvass Reporting System, County by County Report (WEC, May 4, 2020).
2 See Rich Kremer, Wisconsin Voters Approve State Constitutional Amendment Known as Marsy’s Law, WPR.org (April 13, 2020).
3 To interpret a constitutional amendment, Wisconsin courts look at the plain meaning of the provision, the debates and practices at the time the state passed the amendment, and the legislature’s earliest interpretations of the amendment as evidenced by the first legislative action after the amendment’s adoption. Compare Dairyland Greyhound Park Inc. v. Doyle, 2006 WI 107, ¶ 19, 295 Wis. 2d 1, 719 N.W.2d 408 (citations omitted), with State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶¶ 45-46, 48, 271 Wis. 2d 633, 681 N.W.2d 110. This accounts for the intent of the legislature in passing the amendment and the intent of the voters in ratifying it. See Dairyland Greyhound Park, 2006 WI 107, ¶ 37, 295 Wis. 2d 1.
4 See Analysis by Wis. Legis. Reference Bureau, Constitutional Amendment Relating to Crime Victims’ Rights, 5 Reading the Constitution 1, at 3 (March 2020) [hereinafter Analysis]; Wis. Const. art. I, § 9m (amended 2020).
5 See Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.01; 1979 Wis. Act 219; Analysis, supra note 4, at 2-4.
6 See, e.g., Wis. Stat. § 950.04(1v)(t)-(u).
7 See, e.g., Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶ 59, 376 Wis. 2d 147, 897 N.W.2d 384; Schilling v. State Crime Victims Rights Bd., 2005 WI 17, ¶ 17, 278 Wis. 2d 216, 692 N.W.2d 623.
8 See Analysis, supra note 4, at 3-4. Since 2008, when California became the first state to enact Marsy’s Law, 13 more states have passed a version of Marsy’s Law, amending existing victims’ rights provisions in some state constitutions and adding them for the first time to others. See Cal. Const. art. 1, § 28; Fla. Const. art. 1, § 16(b); Ga. Const. art. 1, § 1, ¶ XXX; Ill. Const. art. 1, § 8.1; N.C. Const. art. 1, § 37; N.D. Const. art. 1, § 25(1); Nev. Const. art. 1, §8A; Ohio Const. art. 1, § 10a; Okla. Const. art. 2, § 34; Pa. Const. art. 1, § 9.1; S.D. Const. art. 6, § 29(5). Lawsuits filed in three of those states have challenged the validity of a Marsy’s Law state constitutional amendment on primarily procedural grounds, with Kentucky and Montana striking down the amendment as proposed. See League of Women Voters of Pa. v. Boockvar, 219 A.3d 594 (Pa. S. Ct. 2019); Westerfield v. Ward, 2018-SC-000583-TG, 2019 WL 2463046 (Ky. S. Ct. June 13, 2019); Montana Ass’n of Cntys. v. Montana, 389 Mont. 183 (2017).
9 Marsy’s Law contains so many provisions that a lawsuit seeks to enjoin Wisconsin’s amendment on the grounds that the ballot oversimplified the question posed to voters to the point of rendering ratification invalid. See Summons and Complaint, Wisconsin Justice Initiative Inc. v. Wisconsin Elections Comm’n, No. 2019-CV-3485 (Wis. Cir. Ct. Dane Cty. Dec. 18, 2019).
10 Cf. Wis. Att’y Gen. Explanatory statement for proposed constitutional amendment 2-27 (2020) (“… [T]the proposed amendment would expand the rights of victims by creating additional rights and incorporating other statutory rights into the constitution…”) [hereinafter Explanatory Statement].
11 These arguments rest on the rules for statutory interpretation set forth by the Wisconsin Supreme Court, according to which plain meaning considers not only a statute’s wording but its context, including the “relation to the language of surrounding or closely-related statutes….” See State ex rel. Kalal, 2004 WI 58, ¶¶ 45-46, 48, 271 Wis. 2d 633. Chapter 950 uses several lists of instances when a particular right could apply without further limiting language, signaling the legislature’s intent to elucidate a given right with examples of when it might apply rather than putting forth a finite list of applications when it does apply. See also State v. Lopez, 2019 WI 101, ¶ 21, 389 Wis. 2d 156, 936 N.W.2d 125 (“When the legislature does not include limiting language in a statute, we decline to read any into it.”) These principles encourage a broader rather than narrower reading of many rights afforded to victims under chapter 950.
12 See Wis. Const. art. I, § 9m(1), (2); Wis. Stat. § 950.02(1m), (4); see also Explanatory Statement, supra note 10 (“the proposed amendment would incorporate into the constitution a definition of ‘victim’ similar to the definition currently in statute”). Chapter 950 defines a victim as “[a] person against whom a crime has been committed,” when a “crime” is “an act committed … which, if committed by a competent adult, would constitute a crime….” Wis. Stat. § 950.02(1m), (4)(a). Marsy’s Law defines victim as “[a]ny person against whom an acthas been committed that would constitute a crime if committed by a competent adult.” See Wis. Const. art. I, § 9m(1). The goal of this subtle change might be to more directly align the definition of victim with Marsy’s Law, making it more obvious that victims have rights throughout juvenile justice proceedings, even though the definitions of “victim” and “crime” already provided this under chapter 950. See id.; Wis. Stat. § 950.02(1m), (4)(a).
13 See Wis. Stat. § 950.03. Because Marsy’s Law defines victim “notwithstanding any statutory right, privilege, or protection…,” reporting remains a prerequisite to victim status. See Wis. Const. art. I, § 9m(1)(a).
14 But see Asma Kadri Keeler, “Marsy’s Law Fails the Victims It Purports to Protect,” ACLU Wisconsin, www.aclu-wi.org/en/news/marsys-law-fails-victims-it-purports-protect (March 4, 2020) [hereinafter ACLU]; Matt Rothschild, “Take a Stand against Fatally Flawed Marsy’s Law,” Wis. Examiner (March 18, 2020), https://wisconsinexaminer.com/2020/03/18/take-a-stand-against-fatally-flawed-marsys-law/.
15 See Wis. Const. art. I, § 9m(1)(b); Wis. Stat. § 950.02(4)(b).
16 Wisconsin’s version of Marsy’s Law, along with chapter 950 and public records laws, differ in important ways from the laws in other states that have passed Marsy’s Law. See e.g.,Fla. Const. art. 1, § 16(b); N.D. Const. art. 1, § 25(1); Ohio Const. art. 1, § 10a; S.D. Const. art. 6, § 29(5).The opportunity for law enforcement officers, municipalities, or corporations to claim victim status in Wisconsin cannot be attributed to the amendment, save for legal arguments that may now come to mind because of the attention Marsy’s Law brings to victims’ rights laws in Wisconsin.
17 Marsy’s Law now expressly excludes as a victim anyone “who the court finds would not act in the best interests of a victim….” Wis. Const. art. I, § 9m(1)(b). The change clearly authorizes courts to assess whether a representative, such as a parent or guardian, can stand in for the victim. Courts will need to determine how to make this assessment and who can raise the issue. This check, which arguably could have occurred before, does not change the core definition of who can be considered a victim in the first place.
18 See Wis. Const. art. I, § 9m(4)(a); Wis. Stat. § 950.105; 2011 Wis. Act 283; Foley-Ciccantelli v. Bishops Grove Condo. Ass’n, 2011 WI 36, ¶¶ 37-41, 333 Wis. 2d 402, 797 N.W.2d 789 (citation omitted) (standing should be construed liberally and is appropriate when actions in question cause injury to the party seeking standing); Explanatory Statement, supra note 10 (excluding standing from the list of changes the amendment would make). See also Wis. Stat. § 950.04(1v)(pm), (z)-(zx).
19 See Wis. Const. art. I, § 9m(4)(a); Wis. Stat. § 950.02(4)(a). Although Marsy’s Law explicitly mentions a “victim’s attorney” for the first time, chapter 950 already permitted “designated” persons to appear on behalf of victims. See id. Marsy’s Law makes even clearer that victims have a “right” to an attorney, in the sense that they can consult with and retain an attorney who “may seek and assert” rights enforcement on behalf of a victim. This does not necessarily mean victims now have a “right” to assistance of counsel, as with criminal defendants under Gideon v. Wainwright. Victims with the help of counsel have successfully defended their standing when challenged in at least six Wisconsin counties: Dane, Eau Claire, Monroe, Sheboygan, Sauk, and Walworth.
20 Wis. Const. art. I, § 9m(4)(b). Compare Gabler, 2017 WI 67, ¶ 59, 376 Wis. 2d 147 (“Wisconsin Stat. § 950.105 assures victims a mechanism for directly asserting their own rights in court. We reserve for future cases more comprehensive discussion of the interplay between victims’ rights and … writs of mandamus, and supervisory writs.”) and Wis. Stat. §§ 809.51, 809.71 with Explanatory Statement, supra note 10 (“[T]he proposed amendment would create an additional mechanism by which victims could enforce their rights as victims.”).
21 See, e.g., State v. Johnson, No. 2019-AP-664-CR (Wis. Ct. App. May 7, 2019) (granting writ to victim in interlocutory appeal about their ability to assert standing in circuit court). Some of the contributing authors to this article represent the victim-appellant in this case. Chapter 950 prohibits victims from appealing judgments of conviction or sentences based on a rights violation, but not appealing decisions more generally. Wis. Stat. § 950.10(2).
22 See, e.g.,Testimony of the Wisconsin State Public Defenders Office, Hearing Materials for 2017 S.J.R. 53, Testimony, Sen. Comm. on Judiciary and Public Safety (June 15, 2017).
23 Wis. Const. art. I, § 9m(3); Schilling, 2005 WI 17, ¶ 17, 278 Wis. 2d 216.
24 Id.; see also Wis. Stat. § 950.04(1v)(ag);2011 Wis. Act 283.
25 If anything, the ability for crime victims’ rights to be modified might be reduced. Before, crime victims’ rights in Wisconsin could be changed by amendment of chapter 950 (done by the legislature). Now, for certain rights, it might be necessary to amend the constitution – a much more involved process. See Wis. Const. art. XII, § 1.
26 See Wis. Const. art. I, § 9m(2); Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.01; see also 1979 Wis. Act 219.
27 See Wis. Const. art. I, § 9m(6); Wis. Const. art. I, § 9m (amended 2020). The Supremacy Clause assumes this. See U.S. Const. art. VI, cl. 2.
28 See Wis. Const. art. I, § 9m(2)(h), (o); Wis. Const. art. I, § 9m (amended 2020).Wis. Stat. § 950.04(1v)(ag), (i)-(k), (t)-(u).
29 See Wis. Const. art. I, § 9m(2)(c)-(d); Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(k).
30 More broadly, Marsy’s Law constitutionalizes the acknowledgement of victims’ right to “due process.” Wis. Const. art. I, § 9m(2). Given the extent and nature of victims’ rights before this amendment, which largely focused on notice and the opportunity to be heard, victims could be said to have possessed at least procedural due process rights before Marsy’s Law. See Goldberg v. Kelly, 397 U.S. 254, 268-69 (1970); Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976).
31 Wis. Const. art. I, § 9m(2)(e), (g). Section 9m confers these rights to victims only on request. In practice, victims needed to opt in to notice and attendance rights before. Marsy’s Law also scraps the language that conditioned victims’ right to attend proceedings by allowing the defendant to request that the victim be sequestered at trial, though victims still could have advocated for their attendance at trial and contested a request for sequestration as long as they showed that their presence would not impede a defendant’s right to a fair trial. See Wis. Stat. §§ 950.04(1v)(b), 906.15 (exclusion of witnesses).
32 Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(b), (g).
33 See Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(ag), (g); see e.g., Wis. Stat. §§ 950.04(1v)(f), (gm), (L), (o)-(p), (um)-(ym), 973.09(3m)(b) (probation).
34 See Wis. Const. art. I, § 9m(2)(i).
35 See Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(ar), (m), (nx); Wis. Stat. § 973.20(14) (restitution).
36 Wis. Stat. § 950.04(1v)(pm).
37 Wis. Const. art. I, § 9m(2)(a)-(b); Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. §§ 950.01, 950.04(1v)(ag).
38 See, e.g., ACLU, supra note 14.
39 See, e.g., Wis. Stat. §§ 801.21 (motions to seal), 905.04 (professional-patient privilege), 995.50 (right of privacy).
40 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965).
41 Wis. Const. art. I, § 9m(2)(f), (L).
42 Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(er).
43 Wis. Const. art. I, § 9m (amended 2020); Wis. Stat. § 950.04(1v)(ag). Some argue that defendants do not even have a pretrial right to discovery, save for exculpatory evidence that prosecutors must turn over under Brady v. Maryland. See Weatherford v. Bursey, 429 U.S. 545, 449 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one.”). This point underlines that a Wisconsin defendant’s access to victims’ information through discovery does not hinge entirely, or maybe even primarily, on Marsy’s Law.
44 See Wis. Const. art. I, § 9m(2)(m)-(n); Wis. Const. art. I, § 9m (amended 2020); see also Wis. Stat. §§ 950.04(1v)(q)-(rm), 973.20 (restitution). Marsy’s Law also says victims must receive “full” restitution, presumably to address victims’ concerns that courts ordered partial, insufficient orders for restitution. See Wis. Const. art. I, § 9m(2)(m). Victims argued this before Marsy’s Law under Wisconsin’s statutory standards for restitution. See Wis. Stat. § 973.20 (restitution).
45 See Explanatory Statement, supra note 10 (“… [T]he proposed amendment would expand the rights of victims by … incorporating other statutory rights into the constitution.”).