Listen as Lyn Schollett, Executive Director of the New Hampshire Coalition Against Domestic Violence And Sexual Assault, talks to NHJournal.com about why Marsy’s Law was needed, why it was defeated, and its supporters plans for the future.
Supporters of Marsy’s Law provided these comments from the testimony of crime victims and their families during Tuesday’s hearing before a NH House committee:
“I have heard opponents of this legislation say it solves no problems—my family and I have lived the problems that make Marsy’s Law necessary. When my daughter was brutally murdered, we had no voice, no standing in the system that was supposed to bring justice to Lizzi. With Constitutional rights that were given equal consideration to the defendant, much of the terror, anger, and helplessness that we experienced in the process would have been alleviated. New Hampshire needs Marsy’s Law to protect the next family who experiences the unspeakable tragedy that we did,” said Bob Marriott, whose daughter Lizzi was raped and murdered in 2012.
“There is a Victims Bill of Rights under current New Hampshire law. However, these rights are only statutory, and the rights afforded to the accused and convicted are constitutional. In reality, this means that the rights of the accused and convicted will always outweigh the rights of their victims. While it is of course very important for the accused to have constitutional rights, it seems only reasonable that victims should have very basic, commonsense rights in the constitution as well. Right now, in the New Hampshire constitution, victims have zero rights,” said Paula Czech Lesmerises, a survivor of child sexual abuse.
“I have heard some say that statutory rights are sufficient for victims of crime and that enshrining these rights in the constitution will not make them any more enforceable. If that’s the case, then why don’t we remove defendants’ rights from the constitution and put them in statute? If statutory rights are sufficient for victims, then why aren’t they good enough for defendants? I was not notified that my rapist was being released—I wasn’t given the opportunity to weigh in or speak to the impact that him moving to New Hampshire would have on me and my children. I needed the protection from the government. I needed the same weight of law that he had. Please don’t tell me that statutes are enough. I’ve lived through the system and I can tell you that they’re not. When you say that a person who has been kidnapped and raped in front of their children doesn’t deserve basic constitutional protections—then, who does?”–Carissa Dowd, who was kidnapped and raped by a stranger in front of her two young children.
“Two years after my sister’s murderer was convicted he climbed a wall and escaped from prison. For two weeks he was free in the community and no one notified us. Years later, in spite of the escape, he was paroled. Again, no one notified us. We did not know he was up for parole, we did not know he had a parole hearing and we did not know he was released. After what we’ve been through as a family, not much scares me, but the thought of coming face to face with that monster terrifies me.”– Bill Greeley, whose sister Lee Ann was murdered in New Hampshire in 1973.
“I had my power stripped away when I was drugged and raped. The very system that was supposed to hold him accountable stripped my power away again and silenced me. Victims of crime deserve better. Elevating my statutory rights to the same constitutional level as the man that violated me is the only way to have ensured that I had a voice in the process and had the chance to address the court prior to conclusion of the case. I understand my statement may not have changed the outcome of the case, but at least I would have been heard.”– Sexual assault survivor, Debbie Verdicchio.
Getting state senators Donna Soucy (D- Manchester) and Sharon Carson (R- Londonderry) to agree on any political issue isn’t easy. But when a joint meeting of the New Hampshire House Judiciary and Criminal Justice Committees convenes Tuesday morning to consider CACR 22—better known as Marsy’s Law—these two traditional political opponents will be standing together showing their support.
Marsy’s Law has made many strange bedfellows across New Hampshire. It has the support of the Republican governor, Chris Sununu; GOP Attorney General Gordon MacDonald; GOP Senate President Chuck Morse; plus every Democrat in the Senate. Republican senator William Gannon and Democrat Martha Fuller Clark are both scheduled to speak on behalf of this proposed constitutional amendment that would enshrine the rights of crime victims in the state’s highest law.
At the same time, some of New Hampshire’s conservative grassroots activists find themselves in rare agreement with the traditionally liberal ACLU in opposing Marsy’s Law. The ACLU worries about what will happen if the constitutionally-protected rights of alleged criminals and the new rights of victims come into conflict. Meanwhile, some traditional “Constitutionalists” want to protect the constitution as a document that protects existing—or “natural”—rights, not a device for inventing new ones.
In the end, the fate of Marsy’s Law is likely to come down to a simple political question: Who benefits? And there is virtual agreement, even among its opponents, that passing Marsy’s Law in New Hampshire would be a win for crime victims and their families. That is a strong selling point.
“When you’re in court and the judge has to balance the rights of the victim against the rights of the defendant, protections for the victim disappear because the constitution is protecting the accused,” Sen. Sharon Carson told the NHJournal. “All Marsy’s Law tries to do is provide some balance for victims. It doesn’t affect any of the constitutional rights of the defendant. It just adds protections for the victims.”
Protecting crime victims–who could be against that? Well, GOP state senator Bob Guida for one. Interestingly, he was initially listed as a sponsor of the bill before he spoke against it in the state senate. (He told NHPR that he signed onto the bill before he knew all the details.)
Now Guida complains about “an emotional rush that leverages the horrific circumstances facing many victims, into inadequately crafted changes to the fundamental principles of our self-governance.”
The New Hampshire ACLU opposes Marsy’s Law because they claim it could put the rights of defendants at risk. What happens, for example, if a defendant needs an alleged victim to testify but the victim—who is also by definition a witness—refuses under Marsy’s Law and the right “to refuse an unnecessary interview or deposition request made by the accused?”
But even the ACLU acknowledges that federal constitutional protections of defendant’s rights would supersede any actions by New Hampshire and so, in that case, the defendant is likely to prevail. All Marsy’s Law does—for those crime victims who choose to opt-in—is ensure that as a judge is balancing those competing interests, the rights of the victims are on a level playing field.
As former US federal judge Paul Cassell says in a video promoting Marsy’s Law, “This is not some technical issue that requires experts. It just requires a sense of justice.”
Opponents like Hooksett attorney Nicole Fortune, complain that the law is “a solution in search of a problem.” Sen. Guida notes a 2015 Department of Corrections study that found more than 80 percent of New Hampshire crime victims gave the state’s victim’s advocacy system a thumbs up. “Do we really have a problem,” Guida asks?
But the math of Marsy’s Law turns that question on its head. If the rights of the accused are protected and if the victim’s advocacy system works fairly well, then Marsy’s Law is essentially a backstop. The law would only be invoked in those extreme, often heart-rending cases, that involve victims of rape, sexual assault or abuse—victims who could be re-victimized again without the protections of Marsy’s Law.
As Strafford County Attorney Tom Velardi said in his testimony before the state Senate: “There is nothing subtracting away from our long-held constitutional rights [for the accused]. What we are talking about is an elevation of victims’ rights.”
Sen. Carson agrees: “We just want to make sure that the victim is heard throughout this process. That’s really the heart of Marsy’s law.
(You can read the text of Marsy’s Law as amended by the NH Senate here)
