January 6, 2025

What does a “Victims’ Rights Attorney” do?

A Q&A with National Experts: Part One

By: Meg Garvin, MA, JD, Mst. Executive Director, NCVLI

Federal and state law grant victims of crime numerous constitutional, statutory, and rule-based rights.  These rights are personally held¹ and make crime victims independent, legal participants in the justice system.² Crime victims, like any other rights holder, have the right to have an attorney to represent them when their rights and interests are at stake in a proceeding.³ Importantly, a prosecutor is not and cannot be the attorney for the crime victim.⁴  

Despite it being well-settled that a person with rights can have an attorney to represent them regarding those rights, and despite the fact that the laws affording rights to crime victims are decades old, many criminal justice practitioners and justice-involved individuals (victims and defendants alike) have not seen a victims’ rights attorney at work.  

This leaves many people wondering – what does it look like when a crime victim has independent counsel representing them during a criminal case?  

While the daily practice of being a victims’ rights attorney varies, there are some common threads of practice regardless of jurisdiction.  To help bring to light what the practice looks like, in fall 2024, NCVLI interviewed three practitioners from three different jurisdictions.  Their responses follow.

• • • Elizabeth Well, J.D., Legal Director, Ohio Crime Victim Justice Center
    • Colleen Clase,  J.D.; LL.M., Chief Counsel and Chief Executive Officer, Arizona Voice for Crime Victims
    • Rosemary Brewer, J.D., Executive Director, Oregon Crime Victims Law Center

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Meg Garvin: Broadly describe a “day in the life” of being a victims’ rights attorney.

Elizabeth Well: Every day as a victims’ attorney can be quite different, so I will describe today, which is shaping up to be pretty typical.  I have a filing due for a client today so that will be my first priority.  I am working with a prosecutor’s office to oppose a third motion for early release of a sex offender who assaulted my client.  So far, the court has been very receptive to our combined arguments.  I often tag-team cases with the state to strengthen our positions and protect victims’ rights. After this, I will provide technical assistance to criminal justice system officials and allied professionals throughout Ohio. Specifically, today, I am helping a prosecutor get a protection order proceeding unsealed so the prosecutor can use that information for criminal charges against a stalker.  I will end my day working with the executive director of the Ohio Prosecuting Attorneys’ Association and some state representatives and senators to finalize some legislation designed to protect victim privacy.

Colleen Clase: It would be hard to describe a “day in the life” as a victims’ rights attorney since each day is different, each case is different, and each victim is different. Generally, what a victims’ rights attorney does is assert and enforce victims’ constitutional and statutory rights by appearing in court on behalf of victims and drafting motions/responses, providing updates to victims about what is happening in the criminal case, reviewing case materials, conferring with the deputy county attorney, working with non-attorney staff in my office to ensure that victims are also receiving much needed emotional support throughout the process and are receiving assistance with victim compensation, and opting in for notifications.  An example of what I have going on next week:  Monday-leave my house between 5:00 and 5:30 a.m. East Valley for Tucson, AZ (Pima County) to meet a victim in a sexual abuse case at 7:30 a.m. Appear at an 8:15 a.m. sentencing hearing with the victim, ensure that she is able to exercise her constitutional right to be heard, advise of her right to post-conviction notification, and have our victim advocate assist her with the forms to opt-in. Afterward, I will appear virtually at a hearing in Phoenix in a capital (death penalty) post-conviction status conference. I would prefer to appear in person, but I will still likely be in Tucson or pulled over somewhere on my way back to Phoenix. Once I’m back in Phoenix that afternoon, I will meet with victims in a different death penalty case that is in the pretrial stages. The victim in that case lives out of state and has come to town for a meeting with the prosecutors on the case.  After the meeting is over, I will work on a supplemental brief that is due in the Pinal County Superior Court on a case that the Arizona Supreme Court remanded back to the trial court to determine whether an inmate is responsible for restitution payments while in the State Hospital and whether my client, the daughter and lawful representative for her deceased father who was a victim in a case and was asserting rights before he passed away, has standing to assert victims’ rights. Later in the week, I will drive to Yuma County for a status conference in another sex abuse case involving minors and also to LaPaz County for a sentencing in a child abuse case. 

Rosemary Brewer: One of the more interesting things about being a victims’ rights attorney is that each day is different and the issues change with each case.  With this being a relatively new area of law without a lot of precedent, every week I see new issues arise. For example, recently I began my day working on a brief advocating for my client’s position on a motion for relief from sex offender registration filed by a defendant who was a juvenile at the time of disposition. My client had the right to notification of the motion for relief and has the right to be heard on the issue, and I will be attending the hearing with them. I then consulted with a local prosecutor regarding what costs may be allowable in restitution requests for a victim of a sexual assault. After that call, I had a meeting with legislators and other stakeholders regarding legislation for the upcoming session related to postprison supervision issues.  Finally, throughout the day I staff cases with other attorneys in my office to determine the best way to proceed on victims’ rights issues, such as whether to proceed with a protective order proceeding when there is a criminal case pending and how to get the court to schedule a restitution hearing when it’s beyond the statutory deadline for doing so due to the fault of the prosecutor. 

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Meg Garvin: Putting a % on things that you do in an average six-month period, how much do you:

Counsel clients

• Elizabeth Well: 20%
• Colleen Clase: 20%
• Rosemary Brewer: 20%

Confer with prosecution/attorneys for the government

• Elizabeth Well: 20%
• Colleen Clase: 15%
• Rosemary Brewer: 25%

Talk with defense counsel

• EW: 5%
• Colleen Clase: 5%
• Rosemary Brewer: 5%

Talk with law enforcement

• Elizabeth Well: 5%
• Colleen Clase: >5%
• Rosemary Brewer: 5%

Work with other system actors (e.g., post-conviction spaces)

• Elizabeth Well: >1%
• Colleen Clase: >5%
• Rosemary Brewer: 10%

Engage in motion practice at the trial court level

• Elizabeth Well: 20%
• Colleen Clase: 25%
• Rosemary Brewer: 20%

Engage in litigation at an appellate level 

• Elizabeth Well: 25%
• Colleen Clase: 15%
• Rosemary Brewer: 5%

Engage in public policy work (e.g., efforts to improve legislation, rules)

• Elizabeth Well: 5%
• Colleen Clase: 5%
• Rosemary Brewer: 5%

Other

• Elizabeth Well: Training/Outreach 5%
• Rosemary Brewer: Training/Outreach 5% 

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Meg Garvin: What is the most common motion that you file?

Elizabeth Well: Motion to Quash Subpoena for Private/Privileged Victim Records–by far.

Colleen Clase: Historically it has been related to defense discovery requests for victim records, usually counseling. However, in the last couple of years, I have filed a number of motions seeking protective orders to prevent the release of medical examiner/autopsy reports pursuant to public records requests. Some of the requests are made by members of the media, some are made by citizens, and others are made by other family members of the deceased victim. There is not a victim’s right to discovery from the state.  Even if there were, some of the “family members” making these requests fall outside of the legal definition of a victim and would not have standing to assert rights. Also, with the public record, once released to one person making the request, our interpretation of public record law would require the public agency to release the record to any future requestors including media, bloggers, and true crime producers.

Rosemary Brewer: Motion opposing pretrial discovery/motion to quash subpoena for victims’ records.

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Meg Garvin: What is the most common victims’ right that you see violated?

Elizabeth Well: The right to privacy. Closely followed by the right to restitution.

Colleen Clase: Speedy trial, prompt and final conclusion after conviction and sentence, privacy, right to refuse a defense discovery request.

Rosemary Brewer: Right to be heard on release issues, right to privacy, right to restitution.

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Meg Garvin: What is the biggest misperception about your practice held by the public that you have to overcome?  How do you overcome it?

Elizabeth Well: The biggest misperception by the public is that enforcement of victims’ rights would  somehow impair defendants’ rights.  This is simply not true and I think we have done a great job of overcoming that misperception.  We do a lot of community outreach and training to help the community and folks who work in criminal justice understand that victims’ rights can easily coexist with defendants’ rights and the state’s rights and responsibilities.

Colleen Clase: The general public, most of who haven’t been involved with the criminal justice system, don’t seem to understand our role. When I explain what I do, there seems to be confusion related to who I represent or whether I am really an attorney.  When there are people who do seem to get it, the questions of the rights of the accused sometimes come up. Under current Arizona law, victims’ constitutional rights do yield to state/federal constitutional rights of the accused. 

Rosemary Brewer: I think most of the public doesn’t understand that victims do have rights in the criminal justice system. The general public understands that defendants have rights based on the wide variety of television programs, movies, etc, that focus on the justice system. But there just hasn’t been enough of a national conversation about victims’ rights and how the criminal justice system can accommodate victims’ needs as well as those of defendants. 

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In Part One, our exclusive Q&A with national experts offered a glimpse into the world of victims’ rights attorneys. But the journey doesn’t end there. In Part Two, we tackle some complex issues and misconceptions in the field, and our experts share stories of real-world successes that have made a difference. Read Part Two here.