Connecticut's constitution gives alleged victims of crimes certain rights. Among these are the right to be heard before the court accepts a plea bargain, the right to be heard at sentencing and the right to be treated with fairness and respect. Surprisingly, the constitution does not give to victims the most fundamental right of all: the right to stop a prosecution they do not want to take place.
Consider the following fact pattern: A young woman under the age of eighteen reveals to a third party that she has been sexually abused by her step-father. This information finds its way to a mandated reporter, a person obliged to report it to authorities. A criminal investigation begins. The child's outraged mother signs medical releases for the child's information. The child is interviewed. Prosecution ensues.
Several years pass between the allegations and the trial, as is customary in Connecticut. (Rumor has it that the state will soon change the logo on license plates to "Justice Delayed.")
By the time of trial, the alleged victim, now eighteen, wants no part of the trial. She moves overseas to live with relatives and refuses to return to the United States to testify against her step-father. What rights does this young woman have?
I tried to find out yesterday in a Connecticut courtroom, where I represented just such an alleged victim on these facts. R.P. authorized me to make every lawful effort to stop the trial. Evidence was set to begin yesterday.
The judge gave me a respectful hearing and then summarily denied every motion I argued.
Among other things, we argued that the right to be treated with decency and respect was a constitutional right much like the federal right to due process: it needed to be given flesh and blood in the hurly burly of actual litigation. How is this young woman treated with respect and dignity when she has no say in whether this prosecution goes forward? Giving her rights to comment only on the plea is weighted against the presumption of innocence. Do we only want to hear from victims when they are a pawn or token of the state's prosecutorial activity?
Of course, the judge suspected that the woman had been intimidated by family members not testify. Without saying as much, he intimated that giving victims the right to stop prosecutions would yield to the inevitable sorts of pressures victims feel whenever a crime is charged against a family member. That is a valid concern.
But a blanket rule that insists that the prosecution has the right to haul go to trial over the objection of the person most affected by the alleged misconduct seems one-sided. The issue is preserved for appeal, should evidence proceed today. It is by no means clear to me how they state can proceed to evidence in the case without a victim, although it seemed determined to do so.
More disturbing yesterday was the trial court's refusal to rescind the releases signed for the child's medical records by her mother before the child was eighteen. The judge wanted the young woman to appear in court herself to make that claim. I argued that doing so would expose her to a subpoena in the very case in which she was refusing to testify. Would the court consider permitting her to appear with immunity from subpoena from the state, a sort of limited appearance to contest jurisdiction only, the old form of such struggles at common law? The answer was no.
So victims can object to punishment, address the court about a defendant, be advised about the proceeding and more or less be treated well: They just don't have the right to tell the court that the prosecution ought not to take place at all. There's something wrong here.