Marsy’s Law gives rise to unintended consequences

OKEECHOBEE — Although, on the surface, Marsy’s Law sounds like it would be a great addition to Florida’s Constitution, in reality, it has had some unintended consequences. According to the Marsy’s Law for Florida website, the goal of the new law was to ensure that victims of crimes were given the same rights afforded those accused of crimes.

Initially, Marsy’s Law was passed in California in 2008. The law was named for Marsy Nicholas, a young woman who was stalked and murdered by an ex-boyfriend in 1983. A week after the murder, Marsy’s parents were out shopping and ran into the man who had killed their daughter. They had received no warning that he was out of jail, because it was not a requirement at that time, to inform victims or their families of the progress of a case.

In 2018, Marsy’s Law or Amendment 6 was placed on the ballot in Florida and passed with 61% of the votes. After the passage of Marsy’s Law, victims were ensured the following rights to help protect their safety and well being:

1. To be informed of local victim treatment programs.
2. To be informed, present and heard at all crucial stages of the criminal or juvenile justice proceedings and to be told how to participate in these proceedings.
3. To be informed about the availability of Victim Compensation.
4. To be protected from intimidation.
5. To submit a victim impact statement.
6. To seek restitution from the offender.
7. To be notified of scheduling changes.
8. To be informed of a confidential communication.
9. In the case of incarcerated victims, the right to be informed and to submit written statements at all crucial stages of the criminal proceedings, parole proceedings or juvenile proceedings.
10. To a prompt and timely disposition.
11. To be consulted by the State Attorney’s Office on certain felony cases.
12. To be notified upon escape of the offender from state correctional facility by the state attorney.
13. To request a victim advocate to attend depositions with the victim.
14. To be notified in advance of any possible release of offender.
15. To be notified of arrest of accused.
16. To be informed regarding victim’s rights to review certain portions of a pre-sentence investigation prior to the sentencing of the accused.
17. To be informed of victim’s rights of standing, through the State Attorney’s Office, with the consent of the victim to assert the rights of the victim.
18. To a prompt return of your property.
19. To be informed regarding advanced notification of judicial proceedings relating to the arrest and release (including new requirement regarding community control) of accused as well as proceedings in the prosecution.
20. To be informed regarding the victim’s right to request the courtroom be cleared, with certain exceptions, during his or her testimony of a sexual offense, regardless of the victim’s age or mental capacity.
21. To be informed regarding a victim of domestic violence having the right to be informed of the Address Confidentiality Program administered through the Attorney General’s Office.
22. To be informed regarding HIV testing in any case which involves the transmission of body fluids from one person to another, upon request of the victim or the victim’s legal guardian, or of the parent or legal guardian of the victim; if the victim is a minor, the court shall order such person to undergo HIV testing.
23. To not be excluded from any portion of any hearing, trial or proceeding pertaining to the offense based solely on the fact that such person is subpoenaed to testify, unless, upon motion, the court determines such person’s presence to be prejudicial.
24. That the victims and witnesses who are not incarcerated shall not be required to attend discovery depositions in any correctional facility.
25. To be advised that information gained by the victim pursuant to Chapter 960, including the next of kin of a homicide victim, regarding any case handled in juvenile court, must not be revealed to any outside party, except as is reasonably necessary in pursuit of legal remedies.
26. To request, for specific crimes, an exemption prohibiting the disclosure of information to the public, which reveals your name, home and work numbers, home and work addresses, and personal assets not otherwise held confidential under the Public Records Law.
27. The statutory obligation of the victim, or next of kin of a homicide victim, that any information gained pursuant to FS Chapter 960, regarding any case handled in juvenile court, must not be revealed to any outside party, except as reasonably necessary in pursuit of legal remedies.
28. The right to know in certain cases and at the earliest possible opportunity, if the person charged with an offense has tested positive for human immunodeficiency virus (HIV) infection. In such cases, upon request of the victim or the victim’s legal guardian, or the parent or legal guardian if the victim is a minor, the court shall order such person to undergo HIV testing. In some cases you can be notified of the results of the test within two weeks of the court’s receipt of the results.
29. The right to request, for specific crimes, that your home and work telephone numbers, home and work addresses, and personal assets not be disclosed to anyone.
30. The right of a victim of sexual offense to request the presence of a victim advocate during the forensic medical examination. An advocate from a certified rape crisis center shall be permitted to attend any forensic medical examination.
31. No law enforcement officer, prosecuting attorney or government official shall ask or require a victim of a sexual offense to submit to a polygraph examination or other truth telling device as a condition of the investigation.

The unintended consequences reared their heads almost immediately. Law enforcement, including the Okeechobee County Sheriff’s Office, determined after consulting with attorneys, that based on number 26 — “To request, for specific crimes, an exemption prohibiting the disclosure of information to the public, which reveals your name, home and work numbers, home and work addresses, and personal assets not otherwise held confidential under the Public Records Law” — they would no longer share any information about any victim of a crime, period. This was an attempt to be proactive in the event the victim or victim’s family might at some point request the information be withheld.

What this means in some cases is when two people are involved in a crime and they do something to each other, such as hit, stab, shoot or rob, then although they are both perpetrators of the crime, they are also both victims of a crime, so no information on either is released.

This week, the Florida Highway Patrol made a decision to no longer give identifying information about those killed in vehicle accidents. From this point on, they will be giving age and the town the victim is from, but no names or description of the vehicle.

Jennifer Fennell, a spokeswoman for Marsy’s Law, issued the following statement: “Marsy’s Law for Florida today thanks the Florida Highway Patrol for their effort and commitment to protect victims’ right to privacy by ensuring a victim’s personally identifiable information is kept private, in line with Florida’s constitution.

“We praise FHP’s willingness to reassess current policy and procedures to better align with the constitutional rights brought forth by Marsy’s Law for Florida. We thank FHP for their commitment to transparency, and to a victim’s right to privacy, moving forward. Marsy’s Law for Florida is confident FHP will set a positive example in Florida on how agencies can be empowered to protect the rights of crime victims.”

“Clear, enforceable crime victims’ rights, commonly called Marsy’s Law for Florida rights, were placed in the Florida Constitution following the passage of Amendment 6 in 2018. Article 1, Section 16, of Florida’s Constitution states victims of crime have ‘the right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.’

“Unless and until this amendment is overhauled, the names of any victim of a car accident will not be released. If two bank robbers shoot each other, they will be viewed as victims by law enforcement, at least when it comes to releasing information about them.”