May 9, 2023
Crime Victim Attorneys as the Norm Requires Funding
Meg Garvin, MA, JD, Mst
It has long been recognized that representation by counsel improves outcomes in our justice system, whether that representation is of a criminal defendant, a family law litigant, or a crime victim.
It has been noted that “[w]ith rare exceptions, non-lawyers lack the knowledge, specialized expertise and skills to [represent themselves] and are destined to have limited success no matter how valid their position may be, especially if opposed by a lawyer.”*
Despite this recognition, there is significant cultural resistance to victims having independent counsel in criminal cases.
Often it is presumed that the prosecutor represents the victim. While prosecutors may have standing to assert and seek enforcement of victims’ rights, they represent the government and not the victim.**
Left with this reality of the prosecutor not being a victim’s attorney and improved outcomes being tied to representation, it seems there is a simple solution – crime victims should have attorneys.
Sadly, there is a dearth of accessible victim attorneys.
In fact, the 2013 final report of the Office for Victims of Crime’s Vision 21: Transforming Victim Services recognized a significant lack of affordable and accessible legal services for victims in this country. This lack of legal services for victims is perhaps most dramatic when it comes to rights enforcement.
For years, NCVLI and our partners have been litigating to ensure that attorney fees for victims’ rights enforcement are recoverable in restitution (with amazing success), and advocating that these same attorney fees be an eligible expense in every state’s Crime Victim Compensation program (with some success).
While this work continues, because these efforts may not result in sufficient funds for accessible legal services, we also need legislative strategies for funding.
In 2022, we saw two significant steps.
First, as passed, Section 549C of the National Defense Authorization Act requires that military connected sexual assault victims be informed about the “availability of legal resources from civilian legal service organizations.” With this provision each of us should be advocating to ensure that the legal services are well-funded.
Second, and even more directly relevant, the “Courtney Wild Crime Victims’ Rights Reform Act”, which was introduced in Congress in December, would (if passed) authorize attorneys fees and also authorize appropriations for funding of legal assistance for victims.
Let’s get funding for victim lawyers – including passing the Courtney Wild Crime Victims’ Rights Reform Act!
*Debra Gardner, Justice Delayed is, Once Again, Justice Denied: The Overdue Right to Counsel in Civil Cases, 37 U. Balt. L. Rev. 59, 70 (2008) (citing 2006 American Bar Association Task Force on Access to Civil Justice, ABA Resolution on Right to Counsel).
**See, e.g., Romley v. Flores, 891 P.2d 246 (Ariz. 1995) (observing a prosecutor is not a victim’s attorney); Gershman, Bennett L., Prosecutorial Ethics and Victims’ Rights: The Prosecutor’s Duty of Neutrality,” 9 Lewis & Clark L. Rev. 559 (2005) (discussing intersection of prosecutorial ethics and victims’ rights).