January 18, 2024
Building Block of Justice: Victims’ Rights & Remedies
Meg Garvin, NCVLI
In 2024 NCVLI’s theme is: Building Blocks of Justice: Victims’ Rights & Remedies. We so often talk about rights but let’s focus on “remedies”. A critique of the victims’ rights statutes and constitutional provisions of the last century was that they lacked remedies – meaning that if a right was violated “there was nothing to be done.”
Much has been done over the last twenty years to clarify the availability of remedies in law. For instance, in 2004, the United States Congress passed, and the President signed into law, the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act (CVRA). Pub. L. No. 108-405, codified at 18 U.S.C. § 3771.
The CVRA has clear standing and appellate review provisions to get us to remedies, which one of the primary authors of the CVRA, Senator John Kyl, noted “ensure[] that victims’ rights will have meaning.” See, e.g., 150 Cong. Rec. S4270 (Apr. 22, 2004).
Since 2004, California, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, and Wisconsin have each amended their constitutions to include clear language regarding enforcement and remedies. For example, the Florida Constitution provides, in part, that “a victim may assert and seek enforcement of the rights . . . in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right” and that the court “shall act promptly on such a request, affording a remedy by due course of law for the violation of any right.”
Unfortunately, NCVLI continues to regularly hear: “There is no remedy for a violation of victims’ rights in my state.” Notably, we hear this from jurisdictions with the newer, clearer language as well as from jurisdictions that have not yet improved their law. It is a flawed critique regardless of jurisdiction. So this year we are going back to the fundamentals.
What is a “remedy”? In law, a “remedy” is any form of judicial relief or judicial enforcement of a legal right. In popular culture we most often see monetary damages as the primary remedy. But money is only one type of remedy. Other remedies include stopping ongoing violations; vacating orders or proceedings that were reached in violation of rights, quashing discovery requests, directing actors to perform certain actions, and so much more.
When working with survivors, the starting point of remedies is asking them what they need. We can then leverage the law to secure the remedy that gets as close as possible to filling that need.
While monetary damages are currently rarely available for a violation of a victims’ right, we need to not throw in the towel on all remedies. As NCVLI details in a recent resource: “Courts have power to award remedies for violations of individual rights even when the law is silent about the availability of remedies to enforce the rights.”
So in 2024, join us in securing the building block of justice – including remedies.
Unsure how? Check out our newest resource: https://ncvli.org/wp-content/uploads/2023/10/NCVLI-Victims-Rights-Enforcement-Remedies-Resource_Final_10.30.2023.pdf.
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