Indiana Law Review


Indiana Law Review
Volume 34 2001 Number 3

NOTE

The Swinging Pendulum of Victims' Rights:
The Enforceability of Indiana's

Victims' Rights Laws

Mary Margaret Giannini*

Introduction

The victim's place within America's criminal justice system has undergone
a marked shift over the past two decades. In response to growing concerns
regarding the exceedingly peripheral role victims play in the prosecution of the

crimes committed against them,
1

states have begun to search for ways to be more
responsive and sensitive to victims' needs. As a result, state legislatures have
passed an ever growing number of laws granting victims increased rights within
the criminal justice process.

2

Indianajoined the victims' rights movement in 1996 with the passage of its
own victims' rights amendment.3 Three years later, the Indiana General
Assembly gave further meaning and scope to the amendment by passing a

* J.D. Candidate, 2002, Indiana University School ofLaw—Indianapolis; M.L.S., 1 993,
State University ofNew York at Albany; M.A., 1992, University of St. Andrews, Scotland.

1

.

See Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 Harv. J.L. & PUB.
POL'Y 357, 372 (1986).

2. Thirty-two states have passed victims' rights amendments to their constitutions. See ALA.

Const, amend. 557; Alaska Const, art L, § 24; Ariz. Const, art. 2, § 2.1 ; Cal. Const, art. I, §
28; Colo. Const, art 2, § 16a; Conn. Const, art. XXIX; Fla. Const, art. 1, § 16(b); Idaho

Const, art. 1 , § 22; III. Const, art. I, § 8. 1 ; Ind. Const, art. 1 , § 1 3(b); Kan. Const, art. 1 5, § 1 5;

La. Const, art. I, § 25; Md. Decl. of Rights Art. 47; Mich. Const, art 1, § 24; Miss. Const, art.

3, § 26A; Mo. Const, art. 1, § 32; Neb. Const, art. I, § 28; Nev. Const, art. 1, § 8; N.J. Const.

art. 1, para. 22; N.M. CONST, art II, § 24; N.C. CONST, art I, § 37; OHIO CONST, art. I, § 10a; OKLA.

Const, art. 2, § 34; Oreg. Const, art. 1, § 42; S.C. Const, art. I, § 24; R.I. Const, art. 1, § 23;

Tenn. Const, art. 1, 35; Tex. Const, art. 1, § 30; Utah Const, art. I, § 28; Va. Const, art. I, §
8-A; Wash. Const, art. I, § 35; Wis. Const, art. 1, § 9m. Similarly, the United States Congress

has passed several laws ensuring that the interests of victims are better protected during the

prosecutorial process. See Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 1512-1515

(1994 & Supp. 2000); Victims ofCrime Act of 1984, 42 U.S.C. §§ 10601-10604 (1997); Victims'
Rights and Restitution Act of 1990, 42 U.S.C. §§ 10606-10607 (1997).

3. See Ind. Const, art I, § 13(b).



1 158 INDIANA LAW REVIEW [Vol. 34:1 157

victims' rights statute.
4
However, in the fall of 1999, the strength of Indiana's

victims' rights laws were put to their first test in Newman v. Indiana Department
of Correction.

5
In this action, Marion County Prosecutor, Scott C. Newman,

along with four crime victims and prosecutors from eighteen Indiana counties,
brought an action requesting that the court declare the Community Transition Act
(an offender early release program)

6
unconstitutional in that it violated the rights

of Indiana crime victims. The action was short lived and dismissed by the trial
court on grounds that the victims lacked standing to bring their claim.7

The result in Newman raises compelling questions regarding the
effectiveness and enforceability of Indiana's victims' rights laws. While the
current status ofIndiana's victims' rights laws raises no question as to the state's
commitment to providing victims with rights, the full scope and enforceability
ofthose rights remain unclear. In light ofthese questions, this Note will examine
the extent ofrights afforded to victims in Indiana, and query how the state might
better protect and enforce those rights.

In examiningthe effectiveness and enforceability ofIndiana's victims' rights
amendment and enabling legislation, Part I ofthis Note places Indiana's victims'
rights movement in a larger context by providing a brief history ofthe victims'
developing role in the criminal justice system. Part II ofthis Note examines the
basic structure and scope of Indiana's victims' rights laws and how these laws
were invoked and ultimately rejected in Newman. Part III ofthis Note examines
the key issues raised in Newman and compares them to victims' rights challenges
raised in other states. In particular, this section highlights how victims' attempts
to enforce their rights tend to have limited success. These sparse successes are

predicated by the reality that most victims' rights laws provide only a

circumscribed scope within which victims can seek redress for the violation of

their rights. However, a handful of states take a broader approach to enforcing

victims' rights, and have established specific victims' rights enforcement

mechanisms through the use ofthe writ ofmandamus and the creation ofvictims'
rights oversight committees. Parts IV and V of this Note examine these two
enforcement mechanisms and advocate that some combination of these models
be adopted in Indiana.

AlthoughNewman provided only the most limited ofopportunities to test the
mettle of Indiana's victims' rights laws, it nonetheless highlighted Indiana's

struggle in determining the proper place and rights ofvictims in Indiana. While

Indiana has taken impressive steps in granting victims solid and substantial

rights,
8
as the law currently stands, Indiana victims are quite limited in how they

can seek to enforce these rights. Therefore, the Indiana legislature should enact

4. See Ind. Code §§ 35-40-1-1 to -13. (2000).

5. Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-1431 (Marion Super. Ct., Ind.,

dismissed, Jan. 18, 2000).

6. See IND. CODE §§ 1 1-8-1-5.5 to 5.6; § 1 1-12-10-1 to -4 (2000).

7. See Findings ofFact and Conclusions ofLaw and Order Den. Inj. Reliefand Dismissing

Action, Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-143 1 (Jan. 18, 2000).

8. See Ind. Const, art. I, § 13(b); Ind. Code § 35-40-1 to -13 (2000).



2001] VICTIMS' RIGHTS LAWS 1 1 59

additional measures to more fully protect the rights of Indiana crime victims.

I. History of the Victims' Place Within the Criminal Justice System

The victim's position within the prosecutorial process has waxed and waned
over the course ofhistory. In some ofthe earliest manifestations ofthe criminal
justice system, victims marshaled extensive control over prosecuting offenders.

9

However, victims' interests in bringing offenders to justice eventually gave way
to the larger interests ofthe state, leaving the victim separated and disconnected

from the criminal process.
10

However, over the past twenty years, victims have
increasingly regained ground in the criminal justice process, marking a distinct

shift in the scope and boundaries of the victim's role and place within the law.

In reflecting upon the growing prevalence ofthe victim in the law, one might
posit that as our criminal justice system has evolved, the pendulum marking the
balance between victims and defendants has swung far to one extreme, focusing
entirely on the rights of defendants, to the exclusion of victims' rights. The
victims' rights movement appears to be shifting the pendulum to a position where
the victim has a more significant place within in the prosecutorial process.
However, the proper location of the pendulum remains far from clear, leaving

courts and legislatures continually challenged to identify the appropriate swing

of its arc.

Crime victims have not always had to struggle for a place within the justice
process. Dating from the Anglo-Norman era, crime victims had enormous, ifnot
exclusive, control in prosecuting those who had committed crimes against them 11

under what is commonly referred to as the private prosecution model. 12 Under
this model, a crime was seen primarily as an injury against an individual, rather
than against the state, and the purpose ofprosecution was to restore rights to the
victim and obtain some form ofrestitution from the offending party." However,
as loosely knit feudal and rural communities gave way to more organized
commerce-based centers, a need for centralized government systems developed

and the private model was increasingly overshadowed by a state driven, public

9. See generally Sue Anna Moss Cellini, The Proposed Victims ' Rights Amendment to the

Constitution ofthe United States: Opening the Door ofthe Criminal Justice System to the Victim,

14 ARIZ. J. Int'L & Comp. L. 839 (1997); Peggy M. Tobolowsky, Victim Participation in the
Criminal Justice Process: Fifteen Years After the President 's Task Force on Victims ofCrime, 25

New Eng. J. on Crim. & Civ. Confinement 21(1 999); Thad H. Westbrook, Note, At Least Treat
Us Like Criminals!: South Carolina Responds to Victims ' Pleasfor Equal Rights, 49 S.C. L. REV.

575,577(1998).

1 0. See generally Richard Barajas & Scott Alexander Nelson, The Proposed Crime Victims

'

Federal Constitutional Amendment: Working Toward a Proper Balance, 49 BAYLOR L. REV. 1

(1997); Cardenas, supra note 1 ; Cellini, supra note 9; Tobolowsky, supra note 9.

1 1

.

See Westbrook, supra note 9, at 577.

1 2. See Tobolowsky, supra note 9, at 23-3 1

.

13. See Cellini, supra note 9, at 842; Tobolowsky, supra note 9, at 23-37.



1160 INDIANA LAW REVIEW [Vol. 34:1 157

prosecution model.
14

The public prosecution model supports the underlying notion that the
prosecution and prevention of crime is a direct and primary interest of the
government.

15 Commonly labeled by scholars as an "historical enigma," the
exact origin of the public prosecution model is unclear and has been subject to
a variety of different legal and historical theories. 16 Generally, as government
and civic structures developed, an unspoken social contract was struck between
the citizenry and government.

17 Under this "social contract theory," individuals
"surrendered] certain freedoms to the government in exchange for mutual
protection."

,8 A state driven criminal justice system represented one form of
protection government provided to its citizens, through which it sought to deter
citizens from future breaches of the "social contract" by punishing and
incarcerating present offenders of the contract.

19 As a result of this "social
contract," society increasingly viewed criminal activity as an offense committed
against the state as a whole, rather than merely as an offense committed against

an individual victim.
20
Hence, governmental interests in deterring crime through

incarceration began to overshadow the victim's interest in seeking restitution or

compensation from the offender.
21

America's criminaljustice system has been almost entirely dominated by the

pubic prosecution model. This dominance is further enhanced by the system's
explicit focus on defendants' rights, to the exclusion ofany mention ofvictims'
rights. Neither the United States Constitution, nor the Bill of Rights bear any

mention of victims' rights, while devoting several amendments (and countless
cases articulating the scope of those amendments) to the rights of criminal

defendants.
22

14. See Tobolowsky, supra note 9, at 23-26.

15. Scholar Cesare Beccaria advanced the notion that crime was not a private concern

between the aggressor and the victim, but a societal concern. See Cardenas, supra note 1, at 366-

69. Therefore, the criminal justice system should serve the interests of society, not the individual

victim. See id

16. See Cellini supra note 9, at 842-43.

17. See id at 847-48.

18. Id at 847.

19. See id.

20. See Barajas & Nelson, supra note 10, at 8-9.
2 1

.

Seegenerally Cellini, supra note 9, at 847-48 (criminal prosecutions should serve societal

interests ofdeterrence and retribution rather than interests ofindividual victims in private redress);

Tobolowsky, supra note 9, at 25-26 (goals of the criminal justice system shifted to focus more on

attempt to vindicate the harm done to society as opposed to harm to the individual).

22. See U.S. CONST, amend. IV (search and seizure rights); U.S. CONST, amend. V (grand
jury, doublejeopardy, selfincrimination, and due process rights); U.S. Const, amend. VI (speedy

and public trial by impartial jury, confrontation, compulsory process for obtaining witnesses,

assistance ofcounsel rights); U.S. CONST, amend. VIII (limits on excessive bail or cruel or unusual

punishments). See also Miranda v. Arizona, 384 U.S. 436 (1966) (suspect must be given notice

of his right to an attorney before the police may question the suspect); Douglass v. California, 372



2001] VICTIMS' RIGHTS LAWS 1161

One unfortunate consequence ofthe public prosecution model is that victims
are relegated to a peripheral role in prosecuting the crime committed against

them,
23 and the process is generally divorced from any consideration regarding

the direct and specific harm suffered by the victim as a result ofthe perpetrator's
actions. Damages suffered by the victim, whether they are physical, economical
or psychological, tend to be viewed as incidental and secondary to the state's

primary goal of deterring and punishing criminal activity.
24

However, over the past twenty years, the American criminal justice system

has appeared increasingly willing to find ways to reintegrate the victim into the
prosecutorial process, indicating a shift in the swing ofthe pendulum charting the
victim's place within criminal law.

25
Prompted in large part by the final report

issued by the President's Task Force on Victims ofCrime,
26

states began to pass

victims' rights amendments to their constitutions, coupled with supporting
legislation to further articulate, enhance and protect victims' rights.

27
However,

despite the widespread passage ofvictims' rights laws, the exact and appropriate

U.S. 353 (1963) (defendant has right to assistance of counsel on first appeal of right); Gideon v.

Wainwright, 372 U.S. 335 (1963) (defendant has fundamental right to assistance ofcounsel where

punishment will include incarceration); Mapp v. Ohio, 367 U.S. 643 (1961 ) (evidence obtained by

searches and seizures in violation ofthe constitution is admissible). Scholars have disagreed as to

why there is no mention ofvictims in the United States1 Constitution or Bill ofRights. Some have

posited that when the first colonists came to America they "brought with them the English common

law tradition of private prosecutions." Barajas & Nelson, supra note 10, at 9-10. Under this
reasoning, because victims were able to control the prosecutorial process, there was no need to

articulate victim rights in the Constitution or Bill of Rights. See id. Moreover, scholars have

argued that regardless ofthe absence ofspecific rights articulated for victims, "victim ' s rights would

surely have been presumed by the drafters of the Bill of Rights to be included in the Ninth

Amendment's protection ofunenumerated rights." Cellini, supra note 9, at 846. Conversely, others

have argued that if there

were no public criminal prosecutions at the time of drafting the Bill of Rights . . . , the

founders would not have included the Fourth, Fifth, Sixth, and Eighth Amendments, all

of which protect the individual from the government in a criminal proceeding . . .

[substantiating the argument that] it is perhaps self-evident what the framers felt about

the relation of the interests of crime victims to criminal defendants—the rights of the
defendant should predominate.

Rachel King, Why a Victims' Rights Constitutional Amendment Is a Bad Idea: Practical

Experiencesfrom Crime Victims, 68 U. ClN. L. Rev. 357, 367-68 (2000).

23

.

See Cardenas, supra note 1 , at 37 1 -72.

24. See id.

25. See Barajas & Nelson, supra note 10, at 24.
26. President's Task Force on Victims of Crime, Final Report ( 1 982).

27. Seesupra note 2, for list ofstate constitutional victims' rights amendments. See also Ala.

Code § 15-23-3-60 to -84 (1995); Ariz. Rev. Stat. § 13-4401 to -4437 (2000); La. Rev. Stat.

Ann. § 46-1844 (West 1999 & Supp. 2000); S.C. Code Ann. §§ 16-3-15-30 to -60 (Law. Co-op.
Supp. 1999); Utah CodeAnn. §§ 77-38-3 to -1 2 (1999) (giving examples of state victims' rights

legislation).



1 162 INDIANA LAW REVIEW [Vol. 34:1 157

place for the victim within the criminal justice system remains unclear and
contentious. Critics ofthe movement argue that the criminal justice system is not
necessarily the appropriate forum to address victim needs, positing that the law
is ill equipped to remedy the vast emotional, physical and economic harms
suffered by victims of crime.

28 More important, critics argue that increased
victims' rights can result in decreased defendants' rights,

29
undermining core

constitutional principles ofdue process
30
and the defendants' right to a fair trial.

31

Despite these valid arguments, states continue to pass victims' rights laws, and
in so doing, challenge our traditional perceptions regarding the victim's place

within the criminal justice system.

One cannot ignore that the pendulum marking the victim's place within
American criminal law is shifting. As this shift is still in its infancy, the full arc
of the pendulum remains unclear, and the ramifications of its slow shift
uncertain. Nonetheless, an understanding of the historical progression of the
victim within the law provides a foundation from which one can examine current
victims' rights laws and analyze the scope of rights they afford to victims, and
question how these rights should be enforced.

II. Indiana's Victims' Rights Laws

An examination of Indiana's victims' rights laws highlights the important
task of identifying the appropriate scope and boundaries of these laws and

questioning what method might best enforce them. Currently, while Indiana
victims are afforded rights under the law,

32
the enforceability ofthese rights has

not been fully tested and the strength of Indiana's victims' rights laws is not

entirely clear.

A. Introduction to Indiana 's Victims ' Rights Laws

In 1996, the Indiana General Assemblyjoined twenty-five of its sister states
in passing a victims' rights amendment to its constitution.33 Three years later, the
Indiana General Assembly passed enabling legislation to further the purpose of
the victims' rights amendment.

34
Noting that "many innocent persons suffer

economic loss and personal injury or death as a result of criminal or delinquent
acts,"

35
the General Assembly passed section 35-40 ofthe Indiana Code with the

28. See generally Lynne Henderson, The Wrongs of Victim 's Rights, 37 Stan. L. Rev. 937

(1985); Lynne Henderson, Co-opting Compassion: The Federal Victim 's Rights Amendment, 10

St. Thomas L. Rev. 579 (1998).
29. See generally Robert P. Mosteller & H. Jefferson Powell, With Disdain for the

Constitutional Craft: The Proposed Victims ' Rights Amendment, 78 N.C. L. REV. 371 (2000).

30. See U.S. CONST, amend. V.

31. See U.S. CONST, amend. VI.

32. See Ind. Const, art. I, § 13(b); Ind. CODE § 35-40-1 to -13 (2000).

33. See Ind. CONST, art. I, § 13(b).

34. See Ind. CODE § 35-40-1 to -30 (2000).

35. Id. §35-40-1-1.



2001] VICTIMS' RIGHTS LAWS 1 163

intent to "[e]nact laws that define, implement, preserve and protect the rights

guaranteed to victims by Article 1, Section 13 ofthe Constitution ofthe State of
Indiana . . . [and to e]nsure that Article 1, Section 13 of the Constitution ofthe

State of Indiana is fully and fairly implemented."
36

In its full form, Section 13(b) ofthe Indiana Constitution reads:

Victims of crime, as defined by law, shall have the right to be treated

with fairness, dignity, and respect throughout the criminal justice

process; and, as defined by law, to be informed of and present during

public hearings and to confer with the prosecution, to the extent that

exercising these rights does not infringe upon the constitutional rights of
the accused.

37

As further articulated in the victims' rights statute, Indiana victims have the right
to notice oftheir rights,

38
the right to information about the release or escape of

the charged or convicted person from custody,
39
and the right to information,

upon request, about the disposition ofthe criminal case involving the victim, or
the conviction, sentence or release ofthe person accused ofcommitting the crime

against the victim.
40

Additionally, victims have the right to be heard at any
proceeding involving sentencing or post-conviction release decisions.

41
Victims

also have the right to confer with a representative from the prosecutor's office,
42

the right to have their safety considered in determining the release ofthe accused

or defendant,
43

the right to contribute to the preparation of the presentence

report,
44
and the right to pursue an order of restitution or other civil remedies

against the person convicted of a crime against the them.
45

Finally, Indiana's

36. Id. §35-40-1-1.

37. Ind. Const, art. I, § 13(b). Indiana's victim's rights statute contains very similar

language to that ofthe constitutional amendment reading "[a] victim has the right to be treated with

fairness, dignity and respect throughout the criminal justice process." Ind. Code § 35-40-5-1

(2000).

38. See IND. CODE § 35-40-5-9 (2000).

39. See id. § 35-40-5-2.

40. See id. § 35-40-5-8.

41. See id. § 35-40-5-5; see also H.B. No. 1352, 1 12th General Assembly, 1st Regular Sess.

(Ind. 2001). This bill seeks to require courts to order that victim impact statements prepared under

Indiana Code § 35-38-1-2.5 be read aloud in the courtroom before the court imposes a sentence on

a defendant convicted of murder.

42. See id. § 35-40-5-3. While the victim does have the right to confer with a representative

from the prosecutor's office, this right does not allow the victim to direct the prosecution ofthe case

against the accused. See id.

43. See id. § 35-40-5-4. Additionally, if a victim provides the prosecutor with an affidavit

asserting that the defendant is threatening the victim or the victim's family, the prosecutor can file

a motion with the court to have the defendant's bond order revoked. See id. § 35-40-6-6.

44. See id. § 35-40-5-6.

45. See id § 35-40-5-7. Victims may also receive assistance from the prosecutor's office in

filing restitution orders. See id. § 35-40-6-4(10). Also, they may participate in victim-offender



1 1 64 INDIANA LAW REVIEW [Vol. 34: 1 1 57

victims' rights laws do not "[p]rovide grounds for a person accused of or
convicted of a crime or an act of delinquency to obtain any form of relief."

46

B. Newman v. Indiana Department of Corrections: A First Test of
Indiana 's Victims ' Rights Laws

Indiana's victims' rights amendment and legislation was put to its first test
in Newman v. Indiana Department ofCorrection.

47
In this action, four crime

victims and prosecutors from nineteen Indiana counties brought an action
challenging the constitutionality of the an early release offender program,
Community Transition Program (CTP), positing that it violated the rights of
Indiana crime victims.

48

The CTP was initially passed by the Indiana Legislature in 1999 and
established a system by which offenders could be released into a community
transition program "between two to four months before [their] expected release
date, depending upon the severity ofthe . . . offenses."

49
At least forty-five days

before an offender was eligible for transfer into the program, the Department of
Corrections had to provide the sentencing court and the prosecutor with written

notice ofthe offender's eligibility.
50 Upon receiving notice from the Department

of Corrections, the sentencing court was required to determine whether the
offender should be allowed to enter the CTP. If the offender's most serious
conviction was a class C or D felony, the sentencing court could order the
Department ofCorrections to retain control over offender and deny his entry into

the program. No hearing was required for this determination. However, if the

reconciliation programs. See id. § 35-40-6-4(9).

46. Id. § 35-40-2- 1 . Numerous other states contain a similar limit in their victims rights laws.

See Conn. Const, art. XXIX; III. Const, art. 1, § 8. 1(d); IdahoConst, art. 1, § 22; Kan. Const.

art. 15, § 15(a); La. Const, art I, § 25; Miss, Const, art. 3, § 26A(2); Mo. Const, art. I, § 32.4;

Neb. Const, art. I, § 28; Nev. Const, art 1, § 8; N.M. Const, art. II, § 24(B); N.C. Const, art.

1 , § 37(3); S.C. Const, art. 1 , § 24(B)( 1 ); Tenn. Const, art. 1 , § 35; Tex. Const, art. 1 , § 30(e);

Utah Const, art. I, § 28(2); Va. Const, art. I, § 8-A; Wash. Const, art. I, § 35; Ala. Code § 1 5-

23-84 ( 1 995); COLO. REV. STAT. § 24-4. 1 -303( 1 6) (2000); LA. REV. STAT. ANN. § 46: 1 844.S. (West

1999 & Supp. 2000); MICH. COMP. LAWS. § 780.774 (1998); MISS. CODE. ANN. § 99-36-5(3)
(1999); Miss. Code. Ann. § 99-43-49 (1999); N.M. Stat. Ann. § 31-26-14 (Michie Supp. 2001);

N.C. GEN. STAT. § 15A-840 (1999); TENN. CODE. ANN. § 40-38-108 (1997); TEX. CR1M. PROC.

Code Ann. Art. 56.02(d) (Vernon Supp. 2001); Utah Code Ann. § 77-38-12(2) (1999); Utah

Code Ann. § 77-37-5(5) (1999); Wash. Rev. Code § 7.69.050 (1992); Wis. Stat. § 950.10(2)

(2000).

47. No. 49D01-9910-CP-1431 (Marion Super. Ct, Ind. dismissed, Jan. 18, 2000).

48. The prosecutors argued that the CTP abrogated their rights and duties as prosecutors in
that the program limited their ability to enter into binding plea agreements with offenders. See

Findings of Fact and Conclusions of Law and Order Denying Inj. Relief and Dismissing Action,

Newman v. Ind. Dep't ofCorr., No. 49D01-9910-CP-1431, at 8 (Jan. 18, 2000).
49. Id at 5.

50. See Ind. Code § 1 1-10-1 1.5-2 (2000).



200 1 ] VICTIMS' RIGHTS LAWS 1 1 65

court barred an offender's entry into the program, the court was required to issue
findings of fact stating good cause for its decision.

51
Conversely, ifthe offender

was convicted of a class A or B felony, the sentencing court could assign the
offenderto the CTP, provided the court issued written findings to the Department
of Corrections explaining its decision. If the court did not present any written
findings, the offender could not enter the CTP.92

In Newman, the victims argued that the CTP violated Article I, Section 13(b)
of the Indiana Constitution, for the CTP did not establish any victim notice
procedures or provide the victims with an opportunity to be heard in regard to the

offender's release.
53

In light of these alleged violations, the victims requested

that the court declare the CTP unconstitutional, and grant preliminary and
permanent injunctions preventing the Department ofCorrections from allowing
felons to enter the CTP.54 However, early within this action's proceedings, the
trial court dismissed the case, primarily on the ground that the victims lacked
standing to bring this constitutional challenge.

55

In order for the victims to succeed in their contest against the CTP, they had
the "burden to show that their legal rights, status or relationships . . . [were]
invaded by the Legislature's enactment oftheCommunity Transition Program."56

However, the Newman court determined that the victims failed to satisfy this
threshold issue ofstanding because the CTP did not abrogate any rights afforded
to victims under Indiana law. Basing its analysis partly on definitions provided

within Indiana statute, the court noted that the CTP represented "a form of
imprisonment . . . [rather than] a post-conviction release and thus [was] not
subject to the "right to be heard' requirement for all post-conviction release

decisions" under the Indiana's victims' rights amendment.
57

Moreover, the trial court noted that even if the victims did have standing to

contest the constitutionality of the CTP, their claims would still be dismissed.
While the plaintiffs claimed that the CTP failed to provide victims with notice
of an offender's release, the court reasoned otherwise, specifying that under the

51. See id. § 35-38-1-24.

52. See id. § 35-38-1-25.

53. See Am. Compl. For Decl. Relief, Prelim, and Permanent Inj. and Specific Performance,

Newman, No. 49D01-9910-CP-1431, at 19-20 (filed Nov. 10, 1999).

54. See id. at 22.

55. See Findings ofFact and Conclusions ofLaw and Order Den. Inj. Reliefand Dismissing

Action, Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-1431, at 17 (Jan. 18, 2000).
56. Id. at 3.

57. Id. at 13. Under Indiana law, "imprison'* means to "confine in a penal facility; commit

to the department ofcorrection; or assign to a community transition program.'* Ind. Code § 35-4 1 -

1-15 (2000). Conversely, "post-conviction release" means "parole, work release, home detention,

or any other permanent, conditional, or temporary discharge from confinement ofa person who is

confined in the custody ofthe department ofcorrection; or a sheriff; a county jail; a secure mental

health facility; or a secure juvenile facility or shelter care facility." Id § 35-40-4-6. However,

under the rubric of the victims' rights statute, a victim's right to be heard extends only to any

"proceeding involving a sentence or a postconviction release decision." Id. § 35-40-5-5.



1 1 66 INDIANA LAW REVIEW [Vol. 34:1157

rubric of the CTP, program officials were required to inform prosecutors of an
offender's potential release into the program. The prosecutors, in turn, had the
statutory duty to notify victims of the change in the offender's imprisonment
status.

58
Nothing in the CTP had altered this prosecutorial duty.59 Hence, there

existed a clear procedure for providing victims with notice regarding an

offender's transfer into the program.

Furthermore, the court noted that as a matter of basic equity law

jurisprudence, the victims' claims for equitable reliefwere further barred because

they did not fully exercise their rights at law, as evidenced by their admitted
failure to request notice as required by statute.

60
Hence, the victims' action was

dismissed not only because their articulated injuries did not fall within the scope

ofrights afforded to them under Indiana's victims' rights laws, but also because
oftheir own failure to properly exercise their rights as detailed by statute.

While some might posit that Newman represented a blow to victims' rights
in Indiana,

61
the result from Newman need not paint a wholly negative picture.

First, in response to Newman, the Indiana legislature made changes to the CPT,
directly addressing the victims' challenges in regard to the right to notice and the

right to be heard. The revamped CTP details that victims must be given notice of
an offender's potential release into the program and provides victims with an

opportunity to submit a written statement to the sentencing court regarding the

offender's potential release.
62

Moreover, while circumscribed to its particular

facts, Newman represented the first time Indiana's victims' rights laws were
invoked and tested, providing a natural forum to further examine Indiana's

commitment and ability to enforce and protect victims' rights.

III. A Comparison of Indiana Victims' Rights Laws to
Those of Other States

In light ofthe limited precedential power ofNewman,
63
the effectiveness of

58. See id § 35-40-6-4(2).

59. See Findings of Fact and Conclusions of Law and Order Denying Inj. Relief and

Dismissing Action, Newman v. Ind. Dep't of Corr., 49D0I-9910-CP-1431 (Jan. 18, 2000) at 1 1.

60. See id at 12, 15-16. A victim's right to be informed about an offender's release or escape
from custody, is contingent upon the victim requesting such information. See Ind. CODE § 35-40-5-

2; § 35-40-10-1 (2000). Indiana Code section 35-40-10-1 states that "[a] victim shall provide to

and maintain with the agency that is responsible for providing notice to the victim a request for

notice Ifthe victim fails to keep the victim's . . . [contact information] current, the agency may

withdraw the victim's request for notice." Id. § 35-40-10-1.

61. See Tim Starks, Inmate-Move Law Survives Legal Test, EVANSV1LLE COURIER& PRESS,
Jan. 20, 2000, at B3; Rick Thackeray, Prosecutors Dealt Blow in War Against Community

Transition Program, IND. LAWYER, Feb. 2, 2000, at 5.

62. See IND. CODE § 1 1-10-1 1.5-4.5; § 1 1-10-8-9; § 35-38-1-24; § 35-38-1-25; § 35-50-1-7

(2000).

63. See Findings ofFact and Conclusions ofLaw and Order Den. Inj. Reliefand Dismissing

Action, Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-1431, at 17 (Jan. 18, 2000).



2001] VICTIMS' RIGHTS LAWS 1 167

Indiana's victims' rights laws might best be gauged through a comparison of

similar laws from other states. In so doing, one can generally conclude that

Indiana stands on par with most of its sister states in terms of the strengths and
weaknesses of its victims' rights laws. Like other states, Indiana strives to

reintegrate victims into the criminal justice system in a manner that recognizes
their legitimate concerns, while remaining committed to the public prosecution

model and the protection of defendant rights.
64

However, like many states,
Indiana falls short of clearly identifying what methods should be employed to
ensure that a victim's rights are not violated.

A. Limited Nature of Victims ' Rights Laws in Other States

The strength ofmany states' victims' rights laws are immediately hampered
by the absence ofany direct method to remedy victims' rights violations, coupled
with a lack of mandatory language to enforce those rights.

In many instances, courts faced with victims' rights claims have declined to
create judicial remedies for the violations of victims' rights in the absence of

controlling statutory or constitutional authority.
65

For example, in Bandoni v.

Stated the victims ofa drunk driving accident brought a cause ofaction seeking

damages from the town ofCoventry and the State ofRhode Island for failing to
notify them ofthe defendant's plea to a lesser offense and subsequently reduced

sentence.
67 The victims alleged that had they known ofthe defendant's plea, they

would have "objected to the plea bargain and requested restitution" from the

defendant.
68

While the court expressed sympathy for the victims and in no way
condoned "the officials' failure to notify the victims of their rights,"

69
the court

denied the victims' claim for damages on the ground that there was nothing
within the Rhode Island victims' rights amendment or its supporting legislation
which allowed victims to bring damage actions against state officials for failure
to afford them their rights.

70 The court further noted that Rhode Island's

64. See generally IND. CODE § 35-40-1-1; § 35-40-2-1 (2000).

65. See, e.g., Gansz v. People, 888 P.2d 256 (Colo. 1995); State v. Adkins, 702 So.2d 1115

(La. Ct. App. 1997); State ex rel. Hillbig v. McDonald, 839 S.W.2d 854 (Tex. App. 1992)

(exemplifying cases in which courts were unwilling to recognize a victim's standing to bring a

claim based upon a limited construction of each state's victims' rights laws).

66. 715 A.2d 580 (R.I. 1998).

67. See id. at 583.

68. Id.

69. Id. at 582.

70. See id. at 584-86. The Rhode Island victim's rights amendment states that

[a] victim of crime shall, as a matter of right, be treated by agents of the state with

dignity, respect and sensitivity during all phases of the criminal justice process. Such

person shall be entitled to receive, from the perpetrator of the crime, financial

compensation for any injury or loss caused by the perpetrator of the crime, and shall

receive such other compensation as the state may provided [sic]. Before sentencing, a

victim shall have the right to address the court regarding the impact which the



1 1 68 INDIANA LAW REVIEW [Vol. 34:1157

Victims' Rights Amendmentand enabling legislation did not afford any remedies
to victims for the violation of their rights, nor was the court willing to create a
judicial remedy.

71

Many victims9 rights laws are also written in such a manner so that their
command is permissive rather than mandatory. For example, Colorado's statute
directs that "[a]fter a crime has been charged ... the district attorney shall

consult, wherepracticable, with the victim concerning the reduction ofcharges
... or other disposition"

72
and that the "district attorney's office, ifpracticable,

shall inform the victim ofany pending motion that may substantially delay the
prosecution."

73
North Carolina's statute creates an equally permissive tone by

stating that

[t]o the extent reasonablypossible and subject to available resources,
the employees of law enforcement agencies, the prosecutorial system,

the judicial system, and the correctional system should make a
reasonable effort to assure that each victim and witness within their

jurisdiction [receive rights afforded to them under the statute and

amendment].
74

Therefore, while these statutes contain language charging that the prosecuting

attorney "shall" inform a victim ofhis or her rights, this language is tempered by
permissive terms such as "where practicable" or "where reasonably possible,"

implying that compliance with the statute is favored, but not absolute.

B. Specific Limits Within Indiana 's Victims ' Rights Laws

With complementsto the framers ofIndiana's victims' rights amendmentand
legislation, the force of Indiana's laws are not immediately tempered by
permissive language and broad denials of remedial action. However, the law

explicitly limits Indiana victims' attempts to seek redress for violation of their

rights by three factors. First, victims cannot exercise their rights where doing so

would "infringe upon the constitutional rights ofthe accused."
75

Second, victims

perpetrator's conduct has had upon the victim.

R.I. CONST, art. I, § 23. Similarly, while the victims did have a right to be "informed by the

prosecuting officer ofthe right to request restitution," R.I. Gen. Laws § 1 2-28-3(aX 1 5) (2000), and

the right to address the court in regard to a plea negotiation, see R.I. Gen. Laws. § 12-28-4.1

(2000), there is nothing within the language of these statutes to indicate that the state's failure to

provide the victims with this right created a cause of action for damages on behalf of the victim.

71. SeeBandoni, 715 A.2dat 585.

72. COLO. REV. Stat. § 24-4. 1 -303(4) (2000) (emphasis added).

73. Id. §24-4.1-303(3) (emphasis added).

74. N.C. Gen. Stat. § 15A-825 (1999) (emphasis added). See also Alaska Stat. §
12.61.010(b) (Michie 2000); FLA. Stat. ch. 960.001(2) (1996); Miss. CODE Ann. § 99-43-49

(1999); Tex. Crim. Proc. Ann. § 56.02(c) (Vernon Supp. 2001); Wash. Rev. Code § 7.69.030

(2000); Wis. Stat. § 950.04(t>(g) (2000).

75. IND. CONST, art 1, § 13(b).



200 1] VICTIMS' RIGHTS LAWS 1 1 69

cannot "challenge a charging decision or a conviction, obtain a stay of trial, or
compel a new trial"76 in light of an alleged victims' rights violation. Finally,
victims cannot bring a "claim for damages against the state ofIndiana, a political
subdivision, or any public official"

77
for failing to effectuate a victim's rights

under the statute. Similar limits appear in numerous other state laws.
78

1. Victim *s Inability to Intercede in Trial.—Indiana's prohibition against
victims' rights actions that would "challenge a charging decision or a conviction,

obtain a stay oftrial, or compel a new trial"79 represents an important constraint
to any victims' rights claim. To govern otherwise would represent a monumental
shift ofthe victims' rights pendulum that only a few courts have been willing to
acknowledge.

80
Permitting a victim to exercise such power within a criminal

proceeding harkens back to actions brought under the private prosecution model,

where the victim was a direct party to the proceeding, with rights to appeal or
challenge the course of the prosecution.

The Maryland case, Cianos v. State™ provides a prime example ofa court's
reluctance to sanction such a dramatic shift in the structure of criminal law. In

Cianos, victims were denied their opportunity to speak at a sentencing hearing.
82

In an effort to enforce their rights, the victims brought an action to have the

Maryland Supreme Court vacate the sentence and remand the case back to the

76. IND. CODE § 35-40-2-1(1) (2000).

77. Id. § 35-40-2-1(2).

78. See Md. Const, art. 47(C); Nev. Const, art. 1 , § 8(3); Tex. Const, art. 1 , § 30(e); Ariz.

Rev. Stat. § 13-4436A (2000); 725 III. Comp. Stat. § 120/9 (2000); S.C. Code Ann. § 16-3-

1565(B) (Law Co-op. Supp. 1999) (providing examples of state constitutional amendments and

statutes which limit a victim's ability to intercede in the criminal proceedings to challenge a

conviction or sentence). See also La. Const, art. I, § 25, N.C. Const, art. I, § 37(2), Md. Const.

art. 47(C); MiSS. CONST, art. 3, § 26(A)(2); Mo. CONST, art. I, § 32.3; OHIO CONST, art I, § 10(a);

Or. Const, art. I, § 42(2); Utah Const, art. I, § 28(2); Va. Const, art. I, § 8-A; Alaska Stat.

§ 12.61.015(c) (2000); La. REV. STAT. Ann. § 46:1844(U) (West 1999); N.C. Gen. Stat. § 15A-

839(1999); S.C.CODEANN. § 16-3- 1565(C) (Law Co-op. Supp. 1 999); TENN. CODEAnn. § 40-38-

108 (1997); UTAH CODE ANN. § 77-38-11(3) (1999); Wis. STAT. § 950.10 (2000) (providing

examples of state constitutional amendments and statutes which bar a victim from bringing a

damage claim against the state or any of its agents for failing to provide victims rights). But cf.

Ariz. Rev. Stat. § 13-4437.B (2000); UtahCode Ann. § 77-38-1 1 (1999); Wis. Stat. § 950. 1

1

(2000). See also FLA. Const, art I, § 16(b); Miss. CONST, art. 3 § 26A(2); Or. Const, art. I, §

42(2); Va. CONST, art. I, § 8-A; Utah Code Ann. § 77-38-12(4) (1999) (providing examples of

state constitutional amendments and statutes which note that victims rights laws cannot undermine

rights afforded to criminal defendants).

79. IND. CODE §35-40-2-1 (2000).

80. See In re K.P., 709 A.2d 315, 321 (N.J. Super. Ct. Ch. Div. 1997); Sharp v. State, 908

S.W.2d 752, 755-56 (Mo. Ct. App. 1995).

81. 659A.2d291(Md. 1995).

82. See id. at 292. Maryland's victims' rights amendment states in part that "a victim of

crime shall have the right ... to be heard at a criminal justice proceeding." Md. Const, art 47(B).



1170 INDIANA LAW REVIEW [Vol. 34:1 157

trial court for resentencing.
83
While the Maryland Supreme Court acknowledged

that the victims' right to be heard at sentencing was violated, it nonetheless
denied their request for a new sentencing hearing.84 First, the court noted that the
only individuals who can appeal a final order or conviction are those who were
parties to the case (in this instance, the defendant and the state).

85
Moreover, the

court noted that

even ifthe . . . [victims] had applied for leave to appeal prior to the final

judgment in this case, such action would not have stayed the criminal
proceedings against . . . [the defendant]. An appeal by a victim is
collateral to and may not interrupt a criminal case, and such an appeal
cannot result in a reversal ofthejudgment and a reopening ofthe case.

86

Finally, the court examined the legislative history surrounding the passage of

Maryland's victims' rights laws and determined that the legislature did not intend

to allow victims to seek to invalidate a defendant's sentence.
87

Hence, as was
borne witness in Cianos, while the obvious (though not necessarily legally

sanctioned) remedy to an acknowledged victim's rights violation might include

a stay of the proceedings or a challenge to a conviction or sentence, most state

legislatures and courts prohibit such action on the part ofthe victim.
88

2. Limits on a Victim 's Standing to Bring a Claim.—As Newman clearly
exhibited, victims' tend to have limited standing rights. Indiana's victims' rights

statute articulates that a "victim has standing to assert the rights established by
this article."

89 As evidenced in Newman, the scope ofstanding is strictly limited
to the rights articulated in the statute and in the victims' rights amendment.

90

The Newman court's approach to victim standing is comparable to decisions

83. See Cianos, 659 A.2d at 293.

84. See id. at 294.

85. See id. at 293.

86. Id. at 293-94.

87. See id. at 294. The court nonetheless noted that the victims* rights had been violated by

the trial court's decision not to allow them to speak the sentencing, and hence determined that the

victims were not required to pay the court costs for the action. See id. at 295.

88. Accordingly, Indiana's victims' rights statute prohibits a victim from challenging a

"charging decision or a conviction, obtaining] a stay of trial, or compelling] a new trial." Ind.

Code § 35-40-2- 1(1) (2000). It does not, however, contain any specific language limiting victims'

action in sentencing hearings. Therefore, under Indiana law, more room may exist for victims to

challenge a sentence.

89. Id. §35-40-2-1.

90. In Newman, because the CTP represented an alternative form of imprisonment for

offenders rather than a form ofpost-conviction release, it did not fall within the ambit of Indiana's

victims' rights legislation. Hence, the victims lacked standing to challenge the constitutionality of

the program. See Findings of Fact and Conclusions of Law and Order Den. Inj. Relief and

Dismissing Action, Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-1431, at 13 (Jan. 18,

2000).



2001] VICTIMS' RIGHTS LAWS 1171

rendered in other states. For example, in Gansz v. People?* the Colorado
Supreme Court was presented with a case in which a prosecuting attorney moved
to dismiss an assault charge on the ground that the charge could not be proven

beyond a reasonable doubt.
92 The trial court initially dismissed the case without

a hearing, but after the victim complained, the trial judge ordered a hearing

where he determined that the victim lacked standing to challenge the dismissal
of the case.

93 On appeal, the Colorado Supreme Court noted that victims have
the right to be present at and informed ofall critical stages in the criminal justice

process,
94
and the right to be heard at any '"court proceeding which involves a

bond reduction or modification, the acceptance of a negotiated plea agreement,
or the sentencing of any person accused or convicted of a crime'" against the

victim.
95

However, the court emphasized that Colorado law did not extend a

victim's standing to challenge a district attorney's decision to dismiss an action

against a defendant.
96

State ex rel Hilbig v. McDonald*
1

provides an additional example of how
courts limit victim standing based on the expressed intent and scope of victims'

rights laws. In this case, parents of a sexual assault victim brought an action to

gain access to the prosecuting attorney's files to aid in a civil suit the parents

were filing against the defendant.
98

The Texas Court of Appeals rejected the
victim's assertion of standing, determining instead that "a crime victim does not

have a constitutional or statutory right to discover evidence regarding the pending

criminal case that is contained within the prosecutor's file."
99

Rather, the intent

of Texas' victims' rights amendment and enabling legislation was to "give
victims access to the prosecutor—not to the prosecutor's file."

100
Similarly, in

State v. Adkins,
m

the father ofa murder victim filed a motion under Louisiana's

victims ' rights amendment requesting that the court recuse one ofthe prosecuting
attorneys on the case.

102 The court determined that the father did not have

standing to bring such an action, noting that while Louisiana law gave victims'

families the right

'to attend any hearing or trial pertaining to the offense which caused

[them] ... to become a victim,' it . . . does not give them any right to

91. 888 P.2d 256 (Colo. 1995).

92. See id. at 257.

93. See id.

94. See id. at 258; see also COLO. REV. Stat. § 24-4.1-302.5(l)(c) (2000).

95. Gansz, 888 P.2d at 258 (quoting COLO. Rev. STAT. § 24-4.1-302.5(l)(d) (2000)).

96. See id. at 258-59.

97. 839 S.W.2d 854 (Tex. App. 1992).

98. See id. at 856.

99. Id.

1 00. Id. at 859. Texas victims' rights laws articulate that victims have the right to "confer with

a representative of the prosecutor's office." Tex. Const, art. 1 § 30(b)(3).

101. 702 So. 2d 1 1 15 (La. Ct. App. 1997).

102. See id. at 1116.



1 1 72 INDIANA LAW REVIEW [Vol. 34: 1 1 57

determine who is in charge ofthe investigation and/or the prosecution or
when the person or persons charged are brought to trial. 103

As these Colorado, Louisiana and Texas cases illustrate, courts tend to
exercise great care in examining victims' rights claims and strictly limit a
victim's standing to the rights detailed in their respective state constitutions.

However, not all courts approach victim standing with complete austerity.
The state of Arizona fluctuates in its treatment of victim standing. For

example, in State v. Lamberton9
m

a victim filed a petition opposing the trial

court's grant of the defendant's motion for post conviction relief.
105

In

examining whether the appellate court's decision to dismiss the victim's petition
for review was in error, the Arizona Supreme Court determined that the victim
did not have standing to bring her action.

106
While the court acknowledged that

under Arizona law victims have the right to be heard at criminal proceedings, it

stated that "we cannot conclude that victims are "parties' with the right to file
their own petitions for review."107 Rather, in order for the victim to have
standing to challenge the action ofthe trial court, she would have to assert relief
for rights denied to her.

108
For example, ifthe victim were denied the right to "be

informed . . . when the accused or convicted person . . . [was] released from
custody or has escaped"

109
or denied the right to "be heard at any proceeding

involving a post-arrest release decision, a negotiated plea . . . [or] sentencing"
110

hearing, the victim would have standing to bring her claims. However, in this
action, while the victim was displeased that the court granted the defendant's
motion for post-conviction relief, Arizona law did not give her standing to

challenge the trial court's ruling.
111

In contrast to the decision handed down by the Arizona Supreme Court in
Lamberton, the Arizona Court of Appeals took a different approach when a
victim's restitution rights were at issue.

112
In FDIC v. Colosi, a theft victim

brought a special action seeking relief from a sentencing court's refusal to enter

judgment againstthe defendant who, during his probationary period, failed to pay

103. Mat 1119.
104= 899 P.2d 939 (Ariz. 1995).

1 05. See id. at 940. After granting the defendant's request for post conviction relief, the trial

court set a date for resentencing, which both the victim and the state sought to stay through appeals.

See id. The appellate court rejected the victim's petition for review on the ground that the appellate

court did not have jurisdiction over the victim's claim as she was not an "aggrieved party" to the

criminal proceeding. Id. The Arizona Supreme Court allowed the victim to bring a petition for

review as to the issue of standing. See id.

106. See id.

107. Id. at 941.

108. See id. at 942.

109. Ariz. Const, art. 2, § 2.1(A)(2).

110. ARIZ. Const, art. 2, §2. 1(A)(4).

111. See Lamberton, 899 P.2d at 942.

1 12. See FDIC v. Colosi, 977 P.2d 836 (Ariz. Ct App. 1998).



200 1 ] VICTIMS' RIGHTS LAWS 1 1 73

court-ordered restitution to the victim.

'

,3
The FDIC court noted that because the

victim was not a party to criminal-adjudicatory process the victim had no
adequate remedy by way of appeal against the sentencing court's initial ruling.
Therefore, in order to protect the victim's restitution rights, the court deemed it
appropriate to allow the victim to bring a special action challenging the lower

court's decision.
114

Hence, where a victim's restitution rights were at issue, the
Arizona court was willing to let the victim bring an action in a judicial context
traditionally reserved to the state and defendant.

The New Jersey courts have given even further breadth to the boundaries of
victim standing. In In re K.P."5 the State ofNew Jersey, on behalfofajuvenile
victim of a juvenile offender, sought to exclude the press from the courtroom

during thejuvenile proceedings.
116

The State argued that New Jersey's victims'
rights amendment required the "court to consider the victim's position when the
court is ruling on an issue that [will] affect a victim as well as the juvenile

defendant."
117

Concurring with, and expounding upon the State's arguments, the

New Jersey court cited to language in New Jersey's victims' rights amendment,
which states that "[a] victim ofcrime shall be treated with fairness, compassion
and respect by the criminal justice system,"

118
and determined that the

amendment was self-executing and provided the victim with standing to protect
her constitutional rights.

119 The court further reasoned that the victim's right to
be treated with fairness, compassion, and respect would be directly affected by

the presence of the press in the courtroom, and therefore the victim should be

afforded the opportunity to have the proceedings closed.
120

In so holding, the

court acknowledged that New Jersey's victims' rights amendment marked a
"fundamental change in the criminal justice system. Instead ofadopting a two-

party State v. Defendant, [sic] paradigm, this provision requires that the system

consider interests ofthird parties, specifically crime victims."
121

In observing how other state courts have dealt with the issue of victim
standing, the result in Newman is not necessarily surprising. By and large, courts
appear reluctant to grant standing when to do so allows victims to bring actions
that fall outside of the articulated rights granted under state victims' rights

113. See id. at 837. The Arizona Constitution states that a victim of crime has a right "[t]o

receive prompt restitution from the person or persons convicted ofthe criminal conduct that caused

the victim's loss or injury." ARIZ. CONST, art. II, § 2.1(A)8.

114. See FDIC, 977 P.2d at 838.

115. 709 A.2d 315 (N.J. Super. Ct. Ch. Div. 1997).

116. See id at 316.

117. Mat 321.
118. N.J. Const, art I, para. 22.

119. InreKP., 709 A.2d at 324-25.

120. See id. at 325.

121. Mat 321.



1 1 74 INDIANA LAW REVIEW [Vol. 34: 1 1 57

amendments or statutes. Lamberton,122 Gantz, 123 andMcDonald124 a\\ beartribute
to such a limited approach. However, where a victim seeks to compel or limit
court action which is directly or impliedly connected to the rights afforded to
them by law, or where granting such rights does not undercut the defendant's
rights or fully supplant the victim into the prosecutorial role ofthe state, courts
appear more willing to accept a victim's claim of standing. 125

In Newman, the CTP was defined by statute as a form ofimprisonment rather
than a post-conviction release.

126
Therefore, it did not fall within the scope ofthe

victims' constitutional rights, consequently precluding any victims' rights
challenge to the CTP.

127
However, it remains to be determined whether victim

standing issues will always be addressed in such a guarded manner in Indiana.
If presented with the right set of facts, the Indiana courts might follow the lead

ofthe New Jersey court128 and decide that because victims "shall have the right
to be treated with fairness, dignity and respect throughout the criminal justice

process,"
129

practices that deny crime victims fairness, dignity and respect are

unconstitutional and can be challenged. Moreover, if the victim is seeking to
protect his restitutionary rights, Indiana courts, like those in Arizona,

130
might be

willing to acknowledge victim standing in such matters.

3. A Victim 's Right to Notice.—Beyond the threshold question of standing,
a victim's right to notice coupled with the right to be heard, raise numerous

enforcement challenges. The connection between these two rights is important,
for the failure to provide victims with their notice rights can lead to additional

rights violations. For example, a victim's ability to exercise his or her rights to

be heard at a sentencing hearing
131

is directly contingent upon the victim's

knowledge ofthat right
132

and the victim's knowledge ofthe date and time ofthe

sentencing hearing.
133

Therefore, it is exceedingly important that victims' notice

rights are provided and enforced.

Indiana's victims' rights statute takes great pains to clearly delineate who is
responsible for ensuring that a victim's notice rights are satisfied. Within this

122. 899 P.2d 939 (Ariz. 1995).

123. 888 P.2d 256 (Colo. 1995).

124. 839 S.W.2d 854 (Tex. App. 1992).

1 25

.

See supra notes 111-12 and accompanying text.

1 26. See supra note 57 and accompanying text.

127. Newman v. Ind, Dep't of Corr., No. 49D01-9910-CP-1431 (Marion Super. Ct., Ind.
dismissed, Jan. 18, 2000).

128. See In re K.P., 709 A.2d 315 (N.J. Super. Ct. Ch. Div. 1997).

129. Ind. Const, art. I, § 13(b).

130. See FDIC v. Colost, 977 P.2d 836 (Ariz. Ct. App. 1998).

131. See, e.g., Ind. CODE § 35-40-5-5 (2000) (stating victims have right to be heard at any

proceeding involving sentencing or postconviction release decision).

132. See, e.g., id. § 35-40-5-9 (stating victims have the right to be informed ofconstitutional

and statutory rights).

133. See, e.g., id. § 35-40-6-4 (providing that prosecutor's office or victims' assistance

program shall timely notify the victim of all criminal justice hearings and proceedings).



2001] VICTIMS' RIGHTS LAWS 1 175

statutory construct, victims must take an active role in protecting their rights by

providing and maintaining a current address and phone number with the variety
of agencies responsible for providing notice to the victim.

134
Hence, victims

must actively seek to have their rights enforced, rather than passively expecting
the rights to be bestowed upon them. However, once a victim has exercised the

statutory duty to request notice, the statute shifts the burden of notice duties to

prosecutor's offices, victim assistance programs, courts, and custodial bodies.

The prosecutor's office, and any victim assistance program under its
authority

135
has the obligation to ensure that victims are "treated with dignity

[and] respect, and . . . [that their] rights ... are protected."
136

In particular, the

prosecutor's office or victims' assistance program must inform a victim that the

victim may be

present at all public stages of the criminal justice process . . . timely

notify a victim of all criminal justice hearings and proceedings that are

scheduled for a criminal matter in which the victim was involvedf,]
promptly notify a victim when a criminal court proceeding has been
rescheduled or canceled . . . [and] [i]nform the victim that the court may
order a defendant convicted of the offense involving the victim to pay

restitution to the victim . . . .
137

Additionally, the prosecuting attorney or victims' assistance program must

inform the victim of his or her rights under Indiana law,
138

the specific criminal

offense for which the defendant was convicted or acquitted,
139

or notice that the

charges were dismissed against the defendant accused ofcommitting the offense

against the victim,
140

and the terms and conditions of release of the person

accused ofcommitting a crime against the victim.
141

Likewise, if the defendant

is convicted, and the victim has so requested, the prosecutor or victims'

assistance program must notify the victim of his or her rights during the

sentencing phase of trial including the time, place, and date of the sentencing

134. See Ind. CODE § 35-40-10-1 (2000). Several other states place a similar level of

responsibility upon crime victims. See, e.g., Colo. Rev. Stat. § 24-4.1 -302.5(l)(q)-(r) (2000);

Conn. Gen. Stat. § 51-286e(b) (2000); La. Rev. Stat. Ann. § 46:1844B (West 1999 & Supp.
2001); Md. Code Ann. Corr. Serv. § 7-801(b) (West 1999); Neb. Rev. Stat.§ 81-1849 (2000);

Neb. Rev. Stat. § 81-1850 (2000); N.C. Gen. Stat. § 15A-825(1 1)-(12) (1999); Tenn. Code

Ann. § 40-38- 103(a) (1997); Tex. Crim. Proc. CodeAnn. § 56.08(b) (Vernon Supp. 2001); TEX.

Crim. Proc. Code Ann. § 56.11(d) (Vernon Supp. 2001); Tex. Crim. Proc. Code Ann. §
56.12(b) (Vernon Supp. 2001); Va. Code Ann. § 19.2-1 l.OlAJ.e (Michie 2000).

135. In Indiana, the prosecutor's office can contract with an outside agency to provide victim

assistance services. See Ind. Code § 35-40-6-4 (2000).

136. Id. § 35-40-6-2.

137. Id. § 35-40-6-4.

138. See id. §35-40-6-4(11).

139. See id. § 35-40-6-4(8)(A).

140. See id. § 35-40-6-4(8XB).

141. See id. §35-40-6-4(7).



1 1 76 INDIANA LAW REVIEW [Vol. 34: 1 1 57

proceeding.
142

Ifthe defendant seeks appellate review or attacks his conviction,

the "prosecuting attorney or the office ofthe attorney general . . . shall inform the

victim . . . of the status of the case and ofthe decision ofthe court."143 Finally,
where the victim has requested, the prosecutor or

law enforcement agency having custody ofa person accused of a crime
against the victim shall notify the victim of the scheduling of the bond
hearing, the escape or death ofa person accused of committing a crime
against the victim, release of a person convicted of a crime against the

victim to a work release program, or any other type ofpostarrest release
of a person convicted of a crime against the victim.

144

Indiana's victims
9

rights statute also imposes notice duties on law

enforcement agencies who exercise custodial duties over defendants and
convicted persons.

145
"The law enforcement agency having custody ofa person

accused of committing a crime against a victim shall notify the victim if the

accused person escapes from . . . custody . . . ,"
146

This notice must be given

"before the person is released by the law enforcement agency, if possible; or as
soon as practicable after the person escapes or has been released by the law

enforcement agency."
147

Courts have similar notice duties under the statute.
148 "Upon request of a

victim, a criminal court shall notify the victim of any probation revocation

disposition proceeding or proceeding in which the court is asked to terminate the

probation of a person who is convicted of a crime against the victim." 149

However, where a probation order against a defendant is modified, the court need

only notify the victim if "the modification will substantially affect the person's

contact with or safety of the victim; or the modification affects the person's

restitution or confinement status."
150

Similar notice must be given to the victim

if the defendant is released, discharged or has escaped from a mental health

treatment agency.
151

While other states may not allocate the responsibility for victim notice rights
in exactly the same manner as Indiana, they nonetheless require similar levels of

142. See id. § 35-40-6-7.

143. Id § 35-40-6-10.

144. Id § 35-40-7-2.

145. See id U 35-40-7-1 to -3.
146. Id §35-40-7-1.

147. Id § 35-40-7-3.

148. See id §§ 35-40-8 to -9.

149. Id § 35-40-8-1.

150. Id § 35-40-8-2.

151. See id. § 35-40-9-1. Generally, if a victim has requested notice upon the release of a

defendant from a mental health treatment agency, the agency must provide notice to the court, and

then court must give the victim notice no later than ten days before the discharge or release of the

defendant. See id.



2001] VICTIMS' RIGHTS LAWS 1 177

notice to victims.
152 However, despite the breadth or particularity of a given

state's victim notice requirements, the violation ofthese rights (whether they be

unintentional or otherwise) can directly impede upon a victim's other rights,
compounding the difficult question of how to remedy such violations.

Some courts have displayed great flexibility in their attempts to find ways to
redeem victim notice rights violations. For example, victims in Alabama have
the "right to be notified by the Board of Pardons and Paroles and allowed to be
present and heard at a hearing when parole or pardon is considered pursuant
to"

153
Alabama's pardons and parole law. In a recent unreported case, the

Alabama Board of Pardons and Paroles failed to notify a rape victim ofa parole
hearing for one of the two men convicted of raping her, and the man was
released.

154
Judge Charles Price ruled that the Alabama Board of Pardons and

Paroles violated state law when it did not notify the rape victim of the hearing,
and ordered that the parole board rescind the defendant's parole and schedule a
new hearing. 155 Similarly, in State ex rel. Hance v. Arizona Board ofPardons
andParoles,

156
the Arizona Court ofAppeals ordered that the results ofa parole

hearing for a convicted rapist be set aside, as the victim of the crime was not
informed ofthe hearing, nor ofher right to even request notice ofthe hearing.

157

The court stated that the parole board

cannot use the victim's failure to request notice as a defense against the

victim's right to appear at the release proceeding because the state failed

to first fulfill its constitutional obligation to inform her ofthat right. The
constitutional mandate is clear: victims must be informed oftheir rights.

Armed with this knowledge, victims may choose to exercise these rights.
Conversely, an uninformed victim may not exercise her rights because
she is unaware of them, or unaware that the right to notice of a release

hearing requires that she first file a request for such notice.
158

The court continued, noting that

152. See, e.g., ALASKA STAT. § 12.61.015(a)(2) (Michie 2000); Cal. Penal CODE § 679.03

(West 1 999); La. Rev. Stat. Ann. § 1 844.A (West 1 999 & Supp. 200 1 ); S.C. Code Ann. § 1 6-3-
1 530 (Law Co-op. Supp. 1999); Tex. Crim. Proc. CodeAnn. § 56.08 (Vernon Supp. 2001); Tex.

Crim. Proc. Code Ann. § 56.1 1 (Vernon Supp. 2001); Tex. Crim. Proc. Code Ann. § 56.12

(Vernon Supp. 2001); UtahCodeAnn. § 64-13-14.7(2)-(4)(1999); Utah Code Ann. § 77-38-3

(1999).

153. Ala. Code § 15-23-79(b) (2000).

1 54. See Bob Johnson, Montgomery Judge Orders Paroles ofConvicted Rapists to Be Null

and Void, A.P. NEWSWIRES, Aug. 11, 2000.

155. See id.

156. 875 P.2d 824 (Ariz. Ct. App. 1993).

157. See id. at 832. Under Arizona law, a victim has the right to be "informed of victims'

constitutional rights." Ariz. Const, art. 2, § 2. 1(A) 12. The victim also has the right to "be heard

at any proceeding when any post-conviction release from confinement is being considered." Id. §
2.1(A)9.

158. Hance, 875 P.2d at 830.



1 1 78 INDIANA LAW REVIEW [Vol. 34: 1 1 57

[t]he issue is whether the victim received that which the constitution
guarantees: reasonable efforts by the state to notify her of her
constitutional rights and, in particular, the right to participate in the post-

conviction release process .... We decide today only that the
constitution gives victims the right to be notified and that this victim's
right to notification was violated. 159

However, not all states have addressed the enforcement of victims'
notification rights in such a pro-victim manner. In a controversy raising similar

notice issues as to those arising in Newman,160 the State of Kansas brought an
action on behalfofvictims who were not given notice ofa defendant's probation
hearing.

161
The State argued that the results ofthe probation hearing should be

revoked because the victims were not provided with their right to notice and
hence were not present at the probation hearing. 162 The court rejected the State's
claims, remarking that Kansas' victims' rights legislation was not mandatory, but
rather directive, and lacked any enforcement mechanism.

163 The court further
noted that while the victims' rights statute provided victims with the right to

notice for public hearings, including preliminary hearings, trials, sentencings, and

sentencing modifications, the right to notice did not extend to probation

hearings.
164 The court also noted that while both parties had consistently referred

to the "probation" hearing of the defendant, the legally correct term was
"parole."

165
This definitional clarification gave further weight to the court's final

conclusion.

There is nothing in our constitutional, statutory, or case law which

requires a public hearing or holds that 'the accused or the convicted

person has the right to appear and be heard' at the granting of a parole

to a misdemeanant. The granting of a parole to a misdemeanor
defendant who has served a portion ofthejail sentence imposed is purely
discretionary with the trial court as is the holding of any hearing in

connection therewith.
166

Therefore, while the victims had an interest in knowing that the defendants were
being considered for parole, the parole board was under no obligation to inform
the victims ofthe hearing.

159. Id. at 831.

160. Newman v. Ind. Dep't of Corr., No. 49D01-9910-CP-1431 (Marion Super. Ct, Ind.

dismissed, Jan. 18, 2000).

161. See State v. Holt, 874 P.2d 1 183 (Kan. 1994).

162. See id. at 1184. The State argued that victims had the right to be informed of the

probation hearing and to be afforded the right to be heard. See Kan. Const, art. 15, § 15; Kan.

Stat. Ann. § 74-7333 (1992).

163. See id.

164. See id. at 1186.

165. Id.

166. Mat 1187.



200 1 ] VICTIMS' RIGHTS LAWS 1 1 79

While the construction ofthe parties in State v. Holt differed somewhat from
those in Newman, the underlying issue remained the same. In Holt, the particular
question was whether the victims had a right to notice of the probation
hearings.

167
In comparison, the Newman case queried whether a victim had a

right to notice ofan offender's transfer into the CTP.
168

In both cases, the courts

determined that a victim's right to notice did not include either a probation

hearing or alternative imprisonment programs; hence, there was no violation of
the victim's rights.

An even more interesting comparison can be drawn from the Holt and
Newman controversies. Both cases, regardless of their legal conclusions,
highlighted their respective states' concern and commitment to victims' rights.
Despite the Holt court's rejection ofthe plaintiffs claims, it did acknowledge the

growing force and intent of the victims' rights movement stating that the

right ofthe public in general, and victims in particular, to open access to

the courts is to be encouraged. We recommend that trialjudges carefully
consider holding a public hearing and notifying crime victims in cases

where the court deems it advisable and when it can be accomplished
without undue burden on the judicial system.

169

Moreover, in 1997, Kansas expanded the notification rights of victims so that

probation hearings were included within the definition of a public hearing.
170

Similarly, one ofthe important effects ofthe Newman case was that the Indiana
General Assembly amended the CTP to require victims be given direct notice of
an offender's eligibility for the program, and the ability to submit a written

statement to the sentencing court regarding the offender's eligibility.
171

In California, a victim's right to notice has received varying treatment. For

example, the result of People v. Superior Court
112

exemplifies how a victim's
attempt to enforce her notice rights were thwarted by the permissive nature ofthe

state's victims' rights laws, coupled by her inability to intercede in the criminal

trial. In this case, a battery victim was not given notice ofthe sentencing hearing
for the defendant, and therefore sought to vacate the court's judgment and have

the defendant's probation order set aside.
173

In rejecting the victim's prayer for

relief, the California Court ofAppeals noted that it did not have the authority to

167. See /rf. at 1184.

1 68. See Newman v. Ind. Dep't ofCom, No. 49D0 1 -99 1 0-CP- 1 43 1 , at 1 2- 1 3 (Marion Super.

Ct, Ind. dismissed, Jan. 18, 2000).

1 69. Holt, 874 P.2d at 1 1 87-88.

170. See Kan . Stat. Ann. § 74-7335(b) (1992). Chapter 74, article 73 of the Kansas Code

currently reads "the victim of a crime . . . shall be notified of the right to be present at any

proceeding or hearing where probation or parole is considered or granted by ajudge whether or not

a public hearing is conducted or required." Id.

171. 5eelND.CODE§§ 11-10-1 1.5-4.5, 11-10-8-9,35-38-1-24,35-38-1-25,35-50-1-7(2000);

see also supra note 62 and accompanying text.

172. 154Cal.App.3d319(1984).

173. See id. at 320.



1 1 80 INDIANA LAW REVIEW [Vol. 34: 1 1 57

grant the victim any relief, as the victims' rights amendment and supporting
statutes were directory as opposed to mandatory.

174
Moreover, the court stated

that "[t]he failure of the probation officer to comply with that officer's duty to
notify the crime victim ofthe probation and sentencing hearing, and the resultant
absence of the victim at such hearing, does not deprive the trial court of its
jurisdiction to proceed."

175
However, the Californiajudiciary adopted a different

stance in Melissa J. v. Superior Court}
16

In Melissa J., a defendant was initially
ordered to pay restitution to a sexual assault victim for counseling services.

177

The trial court later terminated the restitution requirement of the defendant's
sentence but did not inform the victim.

178
Distinguishing its holding from People

v. Superior Court, the court reasoned that there was a difference between an
initial sentencing hearing and a hearing concerning restitution rights.

179
"Proper

determination of restitution rights cannot take place without notice and an

opportunity for the victim to be heard. Thus, as to restitution, the notice and
right to appear requirements are mandatory. Ifthe requirements are not satisfied,

the victim may challenge a ruling regarding restitution."180 In a comparable
manner to how the Arizona courts have addressed victim standing, 181 these
California cases highlight a trend in which the courts are more comfortable
enforcing victim notice rights where the underlying concern is restitution, rather

than where victim notice impacts other victim concerns.

4. Victim 's Right to Be Heard.—Closely related to a victim ' s right to notice,
is the right to be heard.

182
Under Indiana law, victims have the right to be heard

in any proceeding involving sentencing or post-conviction release decisions.
183

174. See id. at 321-22.

175. Mat 322.
176. 190Cal.App.3d476(1987).

177. See id. at 476-77.

178. See id at 477-78.

179. See id

180. Id at 478.

181. See supra notes 111-13 and accompanying text.

182. A victim's right to be heard at capital sentencing hearings was first accepted by the
United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 ( 1 991 ), in which the Court held

that the Eighth Amendment of the United States Constitution was not violated by the use of a

victim-impact statement during the sentencing stage of a federal trial. The holding in Payne was

later extended to state capital trials in State v. Gentry, 888 P.2d 1 105 (Wash. 1995).

1 83. Ind. Code § 35-40-5-5 (2000). Similar statutory provisions exist in other states. See, e.g. ,
Ala. Code § 15-23-74(1995); Alaska Stat. § 12.61.010(8) (Michie 2000); Ariz. Rev. Stat. §
13-4424 (2000); ARIZ. Rev. Stat. § 13-4426 (2000); Cal. PENAL CODE § 679.02(a)(3) (West

1999); COLO. REV. Stat. § 24-4.1 -302.5(d) (2000); Fla. STAT.ch. 960.001(1 )(a)5 (2000); Idaho

Code § 19-5306(l)(e) (Michie 1997); 725 III. Comp. Stat. 120/4(a)(4) (2001); La. Rev. Stat.

Ann. § 1844.K (West 1999 & Supp. 2001); Mass. Gen. LAWSch. 258B, § 3(p) (2000); Miss.
Code Ann. § 99-36-5(l)(e) (1999); Mo. Rev. Stat. § 595.209.1(4) (2001); N.J. Stat. Ann. §
52:4B-36n (West Supp. 2000); N.M. STAT. ANN. § 3 1 -26-4.G (Michie Supp. 2000); OKLA. Stat.

tit. 19, § 215.33.1 1 (2000); TEX. Crim. Proc. Code Ann. § 56.02(a)(5) (Vernon Supp. 2001);



200 1 ] VICTIMS' RIGHTS LAWS 1181

However, except for the limited examination ofthis right provided in Newman, 1 *4

this right has not been subjected to extensive judicial scrutiny, nor a full

consideration as to the best method ofenforcement.
When victims in other states have sought to enforce their right to be heard,

the results have varied. For example, in People v. Pfeiffer,
1 *5

victims were
initially denied the opportunity to be present and address the court during the
sentencing hearing for a defendant convicted of sexual misconduct.

186
In an

effort to ensure that the victims were given an opportunity to be heard, the trial
court conducted a second sentencing hearing. At this hearing, the victims
addressed the court, and the defendant subsequently received a longer

sentence.
187 On the defendant's appeal, the appellate court reinstated the original

sentence, reasoning that while the victims had the right to be heard at sentencing,

the trail court's initial failure to provide those rights did not permit the victims

to seek to set aside the sentence.
188 The court noted that "the Crime Victims's

Rights Act does not purport to confer general remedial rights on victims or
prosecutors, and has therefore not provided the necessary legal exception to the

rule that a court may not modify a valid sentence." 189 Hence, despite a clear
violation of the victims' rights, the court flatly denied them any opportunity to
redress this wrong.

Conversely, in Sharpe v. State™ a defendant's challenge to the
appropriateness of a victim's statement at sentencing was struck down by the
Missouri court.

191
In Sharpe, a defendant pled guilty to involuntary manslaughter

in a drunk driving accident in exchange for the prosecution's agreement, in part,

to remain silent on the issue of punishment. At sentencing the prosecution
remained silent, but the victim addressed the court, and requested that the

defendant be "prosecuted to the fullest extent that the law will allow."
192 The

defendant argued that the victim's statement violated the plea agreement. The
court disagreed, stating that when the victim requested that the defendant be

Utah Code Ann. § 77-27-9.5(4Xb) (1999); Utah Code Ann. § 77-38-4(1) (1999); Va. Code
Ann. § 19-2-1 1.01.A.4 (Michie 2000); Wash. Rev. Code § 7.69.030(13) (2001); Wis. Stat. §
950.04(m) (2000).

184. See supra Part II.B.

1 85. 523 N.W.2d 640 (Mich. Ct. App. 1994).

186. See id. at 641.

187. See id. at 642.

1 88. See id. at 642-43 . The court determined that the language ofchapter 780 ofthe Michigan

Code which stated that
%i

[tjhe failure to provide a right, privilege, or notice to a victim under this

article shall not be grounds for the defendant to seek to have the conviction or sentence set aside*'

was not "intended to address a victim's right to seek resentencing, or to create such a right where

no such right previously existed." Id. at 643 (quoting Mich. Comp. Laws § 780.774 (1998)).
189. Id.

190. 908 S.W.2d 752 (Mo. Ct App. 1995).
191. See id. at 754.

192. Id. See also Mo. CONST, art. I, § 32.1(2); Mo. Rev. Stat. § 595.209.1(4) (2001).



1 1 82 INDIANA LAW REVIEW [Vol. 34: 1 1 57

punished to the "fullest extent that the law will allow,"
193

she was not speaking
as a party for the state, but rather on her own behalf. 194 In so holding, the Sharpe
court implicitly acknowledged that the interests of a third party, the victim, had
to be honored in the proceeding, representing at least one court's contribution
towards shifting the victims' rights pendulum to a new more victim-friendly
place.

The effectiveness and enforceability of Indiana's victims' rights laws have
not yet been tested to the extent of similar laws in other states. However, the
particularized result of Newman, coupled with an examination of victims'
attempts to enforce their rights in other states, indicates that while the extent of

victims' rights in Indiana is comparable to those in other states, an Indiana

victim's ability to seek ajudicial remedy for the violation ofthose rights may be
limited. The foregoing discussion, while by no means an exhaustive comparison
ofIndiana's victims' rights laws with those in other states, nonetheless highlights

how the judicial enforcement of victims' rights tends to be varied and
circumstantial, with victims finding more success when their restitution interests
are at stake than when other rights are being championed.

IV. Enforcement Mechanisms for Victims' Rights

In light of the projection that a victim will have only a varying ability to

judicially enforce his or her constitutional and statutory rights, the Indiana

legislature should take additional steps to ensure that a variety of enforcement

mechanisms exist to protect victims' rights. Several states have taken such steps
by establishing a number ofdifferent methods for victims to enforce their rights.

A few states do allow victims to seek direct redress from a state actor for the
violation of their rights. In Wisconsin, a "public official, employee or agency

that intentionally fails to provide a right specified under [the bill of rights for

victims and witnesses] to a victim ofa crime may be subject to a forfeiture ofnot
more than $1,000."

195
Arizona's victims' rights statute also includes a provision

which reads that "[a] victim has the right to recover damages from a

governmental entity responsible for the intentional, knowing or grossly negligent

violation ofthe victim's rights under the victims' bill of rights, article II, § 2.1,

Constitution ofArizona, any implementing legislation or court rules."
196

Finally,

in Illinois, while a victim cannot bring a civil action against a state employee who

193. Sharpe, 908 S.W.2d at 754.

194. See id. at 755-56.

1 95. Wis. Stat. § 950. 1 1 (2000).

196. ARIZ. Rev. STAT. § 13-4437.B (2000). Utah law contains a similar provision, reading

[i]f a person acting under color ofstate law willfully or wantonly fails to perform duties

so that the rights . . . [ofcrime victims] are not provided, an action for injunctive relief,

including prospective injunctive relief, may be brought against the individual and the

governmental entity that employs the individual.

UTAH CODE ANN. § 77-38-1 1(1) (1999).



2001] VICTIMS' RIGHTS LAWS 1 1 83

fails to comply with the state's victims' rights laws,
197

the Illinois courts have

nonetheless acknowledged that state actors have a measure of responsibility to

enforce crime victims' rights.

In Myers v. Daley™ an Illinois victim attempted on several different
occasions to obtain information from the state attorney as to whether the state

was going to prosecute his case.
199

The victim finally filed an action to enforce
his rights under the Illinois Bill of Rights for Victims and Witnesses ofViolent

Crime Act.200 In response to the victim's suit, the state attorney informed the
victim of the status of the case, and asked that the victim voluntarily drop his

complaint. The victim agreed, but only ifthe State would agree to pay his court
costs ofninety-two dollars and thirty cents.

201 The state attorney refused to pay
the costs. The victim, in response, filed a second action requesting an award of
the court costs.

202
In reviewing this controversy, the Illinois Court of Appeals

ordered the State to pay the victim's costs, noting that to direct otherwise would
run counter to the purpose ofthe Illinois victims' rights act which required that

"[u]pon specific request ofthe victim . . . [the victim should be] informed by law

enforcement authorities investigating the case of the status of the

investigation."
203

It appeared to the court that "the purpose ofthe Act would be
frustrated if a victim were forced to file suit to learn the status of his case, and

were also burdened with the costs ofthat suit."
204

In reflecting upon these scattered examples, it appears that while the victims

were provided some room to enforce their rights, the scope ofthis enforcement
power was quite limited. A thousand dollar fine,205 court costs of ninety three
dollars and thirty two cents,

206
or liability based only upon "intentional, knowing

or grossly negligent"
207

violations ofa victims' rights hardly represent formidable

sanctions to victims' rights violations.

A. Oversight Bodies

In an effort to consistently provide for and oversee the provision ofvictims'

rights laws, several states have established oversight committees or ombudsmen

197. See 725 III. Comp. Stat. § 120/9 (2000).

198. 521 N.E.2d 98 (111. App. Ct. 1987).

199. See id. at 99.

200. See id. The Illinois Bill of Rights for Victims and Witnesses of Violent Crime Act was

originally codified in chapter 38, paragraph 1 404( 1 ) ofthe Illinois Revised Statutes (current version

at 725 III. Comp. Stat. § 120/4 (2000)).

201. See Myers, 521 N.E.ld at 99.

202. Mat 100.
203. III. Rev. Stat. 1985, Ch. 38, para. 1404(1) (current version at 725 III. Comp. Stat.

Ann. § 120/4 (West 1999 & Supp. 2000)).
204. Myers, 521 N.E.2d at 100.

205. See Wis. Stat. § 950.1 1 (2000).

206. See Myers, 521 N.E.2d at 100.

207. Ariz. Rev. Stat. § 13-4437.B (2000).



1 1 84 INDIANA LAW REVIEW [Vol. 34: 1 1 57

to review the implementation and enforcement ofvictims' rights. Colorado has
established an oversight committee, through which "[a]ny affected person
[except the defendant] may enforce compliance with . . . [the Colorado crime
victim compensation and victim and witness rights statute] by notifying the
victims compensation and assistance coordinating committee ... of any
noncompliance with this article."

208

The Colorado Governor's Victims' Compensation and Assistance
Coordinating Committee (Coordinating Committee) is made up of seventeen
members, including representatives from law enforcement and district attorney's
offices, legislators, victims of crime, and other members of the community.
The primary goal ofthe Coordinating Committee

209

is to provide an unbiased assessment of whether a victim has been
afforded his rights under state law [and] 'act as an impartial fact finding
and disseminating entity. The coordinating committee is committed to
following] all complaints to resolution and to engage in a process that

is accurate, thorough, and responsive to crime victims and to the citizens
ofColorado.'

210

Under the auspices of the Coordinating Committee, a standards subcommittee
exists which recommends to the Coordinating Committee the standards criminal
justice agencies should be required to follow in providing victims rights.

211

The Coordinating Committee is charged to "review any such report of
noncompliance and if the committee determines that such report of

noncompliance has a basis in fact, and cannot be resolved, the committee shall

refer such report of noncompliance to the governor, who shall request that the
attorney general file suit to enforce compliance with" Colorado's victims rights

laws.
212

Additionally, the Coordinating Committee has the "power to investigate

. . . [victims' rights laws] violations, and [is] able to recommend action with
which the agency must comply to rectify victims' complaints. The . . . committee
also may monitor the implementation ofthose suggestions."213 If, in the course
of investigating a victim's complaint, the Coordinating Committee determines

that a victims' rights violation has occurred, the committee "sets forth

requirements of the agency in violation."
214

These requirements are "designed

to improve . . . [the] current problem and alleviate similar concerns within the

208. COLO. REV. STAT. § 24-4.1-303(17) (2000).

209. See Office ofthe Governor-Press Office, OwensAppoints Nine New Members to Victim 's

Compensation &. Assistance Coordinating Committee (Jan. 19, 2000), available at

http://www.state.co.us/govjdir/govnr_dir/l-19-00a.htm; Office for Victims* Programs, TheProcess

for Insuring Your Rights, available at http://www.cdsweb.state.co.us/ovp/vraVI.htm.

210. National Criminal Justice Association, Victims* Rights Compliance Efforts:

Experiences in Three States 1 1 (citation omitted).

211. See id. at 7.

212. Colo. Rev. Stat. § 24-4.1-303(17) (2000).

213. National Criminal Justice Association, supra note 2 1 0, at 5

.

2 1 4. Office for Victims* Programs, supra note 209.



2001] VICTIMS' RIGHTS LAWS 1 185

system on behalf of future victims."
215

For example, the Coordinating Committee was once presented with a case
in which a victim did not believe she was receiving timely information from
county officials about the status ofassault case against her estranged husband.

216

After examining the victim's complaint, and conferring with the District

Attorney's office, the Coordinating Committee determined that the victim's

rights had been violated, and established four requirements with which the

District Attorney's office had to comply before the victim's complaint could be
dismissed.

217
Pursuant to the directives from the Coordinating Committee, the

District Attorney was required to submit

the office's policies and procedures for ensuring that victims' rights are
provided; a description of the procedures by which employees ensure

that reasonable efforts are made to return victims' phone calls; a
description ofthe policies in place to insure consultation with victims on

charges; and the measures undertaken to assure that the victim's rights

were being adhered to in the pending case.
218

After the District Attorney provided the Coordinating Committee with this

information, the committee closed the case.
219

In comparison, Minnesota provides for an ombudsmen to oversee and
enforce victims rights.

220 As charged by statute, the Minnesota crime victims'
ombudsman investigates "complaints concerning possible violation ofthe rights
of crime victims . . . , the delivery of victim services by victim assistance

programs, the administration of the crime victims reparations act, and other

complaints ofmistreatment by elements ofthe criminal justice system or victim

assistance programs."
221

Moreover, the ombudsman is commanded to "act as a

215. Id

2 1 6. See NATIONAL CRIMINAL JUSTICE ASSOCIATION, supra note 2 1 0, at 1 3.

217. See id at 14.

218. Id

219. See id

220. See Minn. Stat.§ 61 1A.74 (2000). An ombudsman is an individual "acknowledged

officially by the government to whom citizens may report mistreatment or grievances resulting from
government action or inaction [They] have the power to investigate the allegations ofwrong-

doing and suggest systematic change to improve the implementation of government programs and

delivery ofservices to citizens." NATIONALCRIMINALJUSTICEASSOCIATION, supra note 2 1 0, at 23

.

Minnesota also has a Crime Victim and Witness Advisory Council, which is charged, in part, to

review ... the treatment of victims by the criminal justice system, . . . advocate

necessary changes and monitor victim-related legislation, . . . develop guidelines for the

implementation of victim and witness assistance programs and aid in the creation and

development of [those] programs, coordinate the development and implementation of

policies and guidelines for the treatment of victims and witnesses, and the delivery of

services to them ....

MINN. Stat. § 61 1 A.71 .5 (2000).

221. Id §611A.74.2.



1186 INDIANA LAW REVIEW [Vol. 34:1157

liaison, when the ombudsman deems necessary, between agencies, either in the
criminal justice system or in victim assistance programs, and victims and
witnesses."

222
Finally, the ombudsman "shall establish a procedure for referral

to the crime victim crisis centers, the crime victims reparations board, and other
victim assistance programs when services are requested by crime victims or
deemed necessary by the ombudsman."223 In carrying out these duties, the
Minnesota crime victims ombudsman has the power to:

investigate, with or without a complaint, any action ofan element ofthe
criminal justice system or a victim assistance program . . . prescribe the
methods by which complaints are . . . made, received, and acted upon;
. . . determine the scope and manner of investigations to be made . . .
[and] determine the form, frequency, and distribution of ombudsman
conclusions, recommendations, and proposals.

224

Ifthe ombudsman determines that a victim's complaint is pertinent and requires
remedial action, the "ombudsman may recommend action to the appropriate
authority."

225
That party, in turn, shall "within a reasonable time period, but not

more than 30 days, inform the ombudsman about the action taken or the reasons
for not complying with the recommendation."

226
Finally,

the ombudsman may publish conclusions and suggestions by
transmitting them to the governor, the legislature or any of its
committees, the press, and others who may be concerned. When
publishing an opinion adverse to an administrative agency, the

ombudsman shall include any statement the administrative agency may
have made to the ombudsman by way of explaining its past difficulties
or its present rejection of the ombudsman's proposals.

227

In reflecting upon the work of its office, the Minnesota ombudsman
perceives the office as a "problem-solving entity"

228
with the role of

advocating broadly for fairness—[but] not necessarily as an advocate

either for the victim or for the criminal justice system. Rather, . . . [the

Minnesota ombudsman's mission is] to promote the highest attainable
standards of competence, efficiency, and justice for crime victims and

witnesses in the criminal justice system. The office exists to discourage
mistreatment of crime victims and ensure compliance with statutory

protection for crime victims and witnesses.
229

222. Id.

223. Id.

224. Id. § 611A.74.3.

225. Id. §611A.74.5(a).

226. Id. §611A.74.5(b).

227. Id. §611 A. 74.5(c).

228. National Criminal Justice Association, supra note 2 1 0, at 27.

229. Id.



200 1 ] VICTIMS' RIGHTS LAWS 1 1 87

However, the power ofthe Minnesota ombudsman is limited in that it cannot
reverse judicial decisions, nor does it have direct control over judicial or

executive decision making.
230

Hence, if authorities do not accept the
recommendations ofthe ombudsman, the ombudsman does not have any power
to enforce its recommendations or discipline any state actors. Rather, the

ombudsman's principal means of remedial action is by making known to the
public, via the legislature and the press, an agency's failure to comply with the
state's victims' rights laws.

231
Nonetheless, some of the remedies that the

ombudsman has been able to effectuate have included

acting as a liaison between citizens and agencies to facilitate

communication and understanding between victims and criminal justice

practitioners; requesting that an agency issue an apology; reviewing

agency or department documentation concerning a specific case to

determine whether the agency has treated the citizen appropriately;

developing model policies and procedures to help agencies to correct
systemic procedures that negatively impact victims; and recommending
legislative changes to laws affecting victims of crime.

232

In conclusion, the Colorado and Minnesota victims' rights enforcement

bodies provide examples of entities which, although unable to exercise judicial

power to remedy victims' rights violations, are nonetheless able to employ other
effective methods to protect victims' rights.

B. Dual Enforcement Mechanisms: Oversight Bodies
and Victim Mandate Actions

Building upon the enforcement body model as employed in Colorado and

Minnesota,
233

other states have fashioned dual enforcement mechanisms by

coupling the powers of an oversight body with a victim's ability to bring some
form of distinct legal action to enforce his or her rights.

234

In Arizona, a "victim has standing to seek an order or to bring a special

action mandating that the victim be afforded any right or to challenge an order

denying any right guaranteed to victims under the victims' bill ofrights, . . . any

implementing legislation or court rules."
235 Crime victims also have the "right

to recover damages from a governmental entity responsible for the intentional,

230. See id. at 28 (citations omitted).

231. See id.

232. Id. at 28-29 (citations omitted).

233. See supra Part IV.A.

234. See S.C. CONST, art. I, § 24(B); Utah CONST, art. I, § 28; S.C. CODEANN. § 16-3-1620

(Law. Co-op. Supp. 1999); Utah Code Ann. § 77-38-1 1 (West 1999). See also Nev. Const, art

I, § 8; La. Rev. Stat. Ann. § 46:1844.U (West 1999 & Supp. 2000); N.C. Gen. Stat. § 15A-840
(1999) (providing additional examples of state laws which allow victims to bring a writ of

mandamus to enforce their rights).

235. ARIZ. REV. Stat. § 13-4437(A) (2000).



1 1 88 INDIANA LAW REVIEW [Vol. 34: 1 1 57

knowing or grossly negligent violation of the victim's rights" 236 under the
amendment, legislature or court rules and in some instances, can seek to set aside
post-conviction release orders.

237
This latter right, while limited, nonetheless

demonstrates a significant shift in the structure of Arizona's criminal justice
system, in that it explicitly allows a victim to interject his or her rights or

concerns into a criminal action. Consequently, the interests of a third party, the

victim, must be considered in conjunction with the interests ofthe state and the
defendant.

In addition to the enforcement rights afforded to Arizona victims by statute,
the Arizona Attorney General's Office of Victim Services has established an
audit procedure by which it monitors those agencies that implement and provide
victims rights.

238 The audit process includes a site visit of the given victim
service agency, interviews with staff regarding their knowledge of victim's
rights, and surveys ofvictims rating their satisfaction ofservices provided by the
agency.

239
After the conclusion ofthe site visit, the Attorney General's Office

ofVictim Services issues a final report, detailing the agency's views of its own
performance, a description of agency procedures for carrying out statutory

mandates, conclusions regarding compliance with victims rights statutes and

funding program guidelines, and possible suggestions to remedy any problems.240

Teena Olszeweski, director ofthe program, views the audit as a system wide
and prospective method of enforcing victim's rights.

241
Olszeweski notes that

[i]t may be a non-traditional mechanism, but it does enforce victims'
rights. Our approach to enforcement is pro-active: by auditing complex
operations and activities ofgovernment agencies, we ensure compliance
with duties imposed under our laws. Weuncover systemic problems that

236. Id. § 1 3-4437(B). However, the statute does limit the scope ofa victims action by stating

that "[njothing in this section alters or abrogates any provision for immunity provided for under

common law or statute." Id.

237. See id. § 13-4436(B). Under this statute, provided that a prisoner has not been

discharged, the "the failure to use reasonable efforts to provide notice and a right to be present or

be heard ... is a ground for the victim to seek to set aside the post-conviction release until the

victim is afforded the opportunity to be present or be heard.** Id. If the victim seeks to have the

post-conviction release set aside 'the court, board of executive clemency or state department of

corrections shall afford the victim a reexamination proceeding after the parties are given notice."

Id. § 1 3-4436(C). The reexamination proceeding "shall commence not more than thirty days after

the appropriate parties have been given notice that the victim is exercising his right to a

reexamination proceeding ... or to another proceeding based on the failure to perform a duty or

provide a right.** Id. § 13-4436(D).

23 8. See Auditingfor Compliance in Arizona, VICTIM POLICY PIPELINE, Fall 2000, at 1 1 . The

program was established in 1998, with the hope that auditing victim services agencies would help

ensure that rights afforded to victims by law would be carried out in practice. See id.

239. See id. at 12.

240. See id.

241. See id. at 13.



2001 ] VICTIMS' RIGHTS LAWS 1 1 89

can lead to large-scale violations of rights. When we help solve those
problems, we prevent further violations. Our program is essentially
about accountability.

242

Moreover, victim service agencies have responded positively to the audit process.

As Olszeweski has commented,

This is probably because our goals are similar to the goals of the

agencies we audit. No one wants to deny victims of crime their rights,
and no one sets out to serve victims poorly. Also, agencies appreciate
getting feedback from outside experts, whether we are identifying areas
for improvement or acknowledging programs that are doing well.

243

The benefits of the audit process are obvious, in that it has identified and
corrected instances of agency oversight in providing victims their rights. For

example, many victims were not receiving information about court date changes
in a timely manner from prosecutors.244 Findings from the audit determined that
the prosecutors themselves were not receiving the court date change information

in a timely manner, which prevented them from relaying this information to
victims.

245
In remedying this problem, the prosecutor's offices, courts, and

Attorney General's Office of Victim Services met to establish procedures to
"improve notice to prosecutors so [the prosecutors] in turn could better notify

victims."
246

Similarly, the audit process revealed that victims of serious

misdemeanors were not receiving post-conviction notification.
247

"Prosecutors

had interpreted that right to apply only to felony victims. The law in fact applies
to victims of both felonies and misdemeanors. Once this was clarified, . . .
prosecutors developed a form for victims to request post-conviction

notification."
248

Utah law provides a similar system ofdual enforcement for victim's rights.

First, victims may bring a variety of special actions to enforce their rights.
Pursuant to section 77-38-1 1 ofthe Utah Code, "[i]fa person acting under color

of state law willfully or wantonly fails to perform duties so that the rights

[afforded to victims] are not provided, an action for injunctive relief, including

prospective injunctive relief, may be brought against the individual and the
government entity that employs the individual."

249
Moreover,

[t]he victim ofa crime or representative ofa victim ofa crime, including

any Victims' Rights Committee . . . may: . . . bring an action for

declaratory relief or for a writ of mandamus defining or enforcing the

242. Id.

243. Id.

244. Id.

245. See id.

246. Id.

247. See id.

248. Id.

249. UTAHCODEANN. § 77-38-11(1) (2000).



1 1 90 INDIANA LAW REVIEW [Vol. 34: 1 1 57

rights of victims and the obligations of government entities . . . [and]
petition to file an amicus brief in any court in any case affecting crime
victims.

250

Finally, the statute also permits a victim or the victim's representative to appeal

an adverse ruling of an action brought under the statute.
251

Victims may also defer to the Victims' Rights Committee for enforcement
of their rights.

252 As dictated by statute, the Victims' Rights Committee is
required to meet "at least semiannually to review progress and problems related
to" Utah's victims' rights amendment and laws.253 Victims can submit issues or
matters of concern to the committee, which can in turn hold open meetings and
publish its findings on any issue raised by a victim.

254
Finally, the committee is

required to "forward minutes ofall meetings to the Commission on Criminal and
Juvenile Justice and the Office of Crime Victims' Reparations for review and
other appropriate action."

255

South Carolina provides a comparable model for enforcing victims' rights.
South Carolina law prohibits a victim from bringing a "civil cause of action

against any public employee, public agency, the State or any agency responsible

for the enforcement of rights and provision" of victim rights
256

and similarly

limits a victim's ability to invalidate a sentence as a result ofthe State's failure

to comply with South Carolina's victims' rights laws.257 However, victims are
entitled to bring a writ of mandamus to "require compliance by any public
employee, public agency, the State, or any agency responsible for the

enforcement of the rights and provisions of [South Carolina's victims rights

laws]."
258

Moreover, "willful failure to comply with a writ of mandamus is
punishable as contempt."

259

South Carolina has also created a Crime Victims' Ombudsman ofthe Office
of the Governor.

260 The South Carolina ombudsman extends multiple services
to members ofthe victim's rights community. The ombudsman provides a forum
for victims to raise compliance complaints while simultaneously serving as a

clearinghouse that refers victims to proper sections of the criminal justice

system.
261

Additionally, the office acts as a liaison between different elements

250. W.§ 77-38-1 l(2)(a).

251. See id. §77-38-1 l(2)(b).

252. See id. § 77-37-5.

253. Id. § 77-37-5(2).

254. See id.

255. Id.

256. S.C. CONST, art. I, § 24(B); see also S.C. CODEANN. § 1 6-3- 1 565(A) (Law Co-op. Supp.

1999).

257. See S.C. CODE Ann. § 16-3-1565(B) (Law. Co-op. Supp. 1999).

258. S.C. CONST., art I, § 24(B).

259. Id.

260. See S.C. CODE Ann. § 16-3-1620 (Law. Co-op Supp. 1999).

261. See id. §§ 16-3-1620(B)(1) and (3).



2001] VICTIMS' RIGHTS LAWS 1 191

ofthe criminal justice system and victims.
262

When acting as a forum for victim complaints, the ombudsman is required
to forward copies of the a victim's complaint to the "person, program, and

agency against whom . . . [the victim] makes allegations, and conduct an inquiry
into the allegations stated in the complaint."

263
In responding to the complaint,

the ombudsman is authorized to

request and receive information and documents from the complainant,
elements of the criminal and juvenile justice systems, and victim

assistance programs that are pertinent to the inquiry. Following each

inquiry, the ombudsman shall issue a report verbally or in writing to the
complainant and the persons or agencies that are the object of the
complaint and recommendations that in the ombudsman's opinion will
assist all parties. The persons or agencies that are the subject of the
complaint shall respond, within a reasonable time, to the ombudsman
regarding actions taken, if any, as a result of the ombudsman's report
and recommendations.264

However, in similar fashion to the limits placed on a victim's right to bring
a writ of mandamus,265 "[a] victim's exercise of rights . . . [through the
ombudsman] is not grounds for dismissing a criminal proceeding or setting aside
a conviction or sentence."

266

One cannot escape the reality that where the writ ofmandamus is sanctioned
by statute as an adversarial method to enforce victims' rights, its power is
restricted by other limits on a victim's ability to reestablish herselfin the criminal

process. However, despite these acknowledged challenges, the formal statutory

grant ofaction to a victim, coupled with the efforts ofan oversight committee or

victims' rights ombudsman, creates an environment in which a victim is far more
likely to be successful in bringing a victims' rights claim.

V. Increasing the Power of Indiana's Victims' Rights Laws

The State of Indiana should adopt a dual model of victims' rights
enforcement, combining the forces of a victims' rights ombudsman with a writ
of mandamus to insure that Indiana victims have a variety of mechanisms to
enforce their rights.

A. Creation ofan Ombudsman

The role of an ombudsman is not a foreign concept to Indiana lawmakers.
Currently, the state has at least three ombudsmen charged with responding to and

262. See id § 16-3- 1620(B)(2).

263. Id § 16-3-1630. The ombudsman must first receive a "written complaint that contains

specific allegations and is signed by a victim" of crime in the state. Id.

264. Id.

265. See supra, notes 248-49, and accompanying text.

266. S.C. Code Ann. § 16-3-1660 (Law. Co-op Supp. 1999).



1 192 INDIANA LAW REVIEW [Vol. 34: 1 157

investigating complaints regarding health and legal services to the elderly,

disabled, and mentally ill.
267

First and foremost, Indiana's ombudsmen help centralize the process by
which the state responds, investigates, and resolves complaints registered by
citizens who receive specialized state services. For example, the statewide
waiver ombudsman is commanded to "[p]romote effective coordination among
. . . [p]rograms that provide legal services for the developmentally disabled. . .,
the division [of disabilities] . . .; [providers of waiver services to individuals

with developmental disabilities; [and] providers ofother necessary or appropriate

services."
268 The long term care ombudsman has similar coordination duties and

is charged by statute to

[p]romote the effective coordination between the office and . . . (A)

[pjrograms that provide legal services for the elderly . . . (B) [t]he adult

protective services program . . . (C) [t]he attorney general's division of

Medicaid fraud . . . (D) [t]he state department of health . . . [and] (E)

Indiana protection and advocacy services.
269

Following naturally from their role as oversight coordinators, Indiana's

ombudsmen are also commanded by statute to investigate citizen complaints in
regard to services provided by the state to the mentally ill, the aging, and those

who are developmentally disabled.270 In investigating complaints, the mental
health ombudsman must

[a]t the request ofa mental health patient, or upon receiving a complaint

or other information affording reasonable grounds to believe that the

rights of a mental health patient who is not capable of requesting
assistance have been adversely affected, gather information about,

analyze, and review on behalfofthe mental health patient, the actions of

an agency, a facility, or a program.
271

Likewise, the long term care ombudsman

. . . shall receive, investigate, and attempt to resolve complaints and

concerns that ... are made by or on behalfofa patient, resident, or client
of a long term care facility or a home care service . . . and involve the
health, safety, welfare, or rights of a resident or client.

272

267. &elND.CODE§§ 12-10-13-4 to -20 (2000) (long term care ombudsman program); § 12-

11-13-1 to -16 (statewide waiver ombudsman); § 12-27-9-4 to -6 (mental health ombudsman

program). To assist in receipt of complaints, each ombudsman is required to establish a toll free

telephone number to which individuals can register complaints. See id. § 12-10-13-16.8(2); § 12-

11-13-15; § 12-27-9-5.

268. Id. §12-11-13-10.

269. Id. § 12-10-13-16.8(1).

270. See id. §§ 12-27-9-4(aX4), 12-10-13-14, 12-13-13-6.

27 1

.

Ind. CODE § 1 2-27-9-4(a)(4) (2000).

272. A/. § 12-10-13-14 (long term care ombudsman program). Similar investigation duties are



2001] VICTIMS' RIGHTS LAWS 1 193

Additionally, in the course of investigating complaints, the ombudsmen keep
complainants informed ofinvestigation results,

273
and make recommendations to

the relevant agencies involved in the party's complaint. For example, "[i]f after

(1) reviewing a complaint; (2) considering the response ofan agency, a facility,

or a program; and (3) considering any other pertinent material the mental health
ombudsman determines that the complaint has merit, the ombudsman may make
recommendations to that agency, facility, or program."

274
Similarly, the mental

health ombudsman can request that the "agency, facility or program shall . . .
inform the ombudsman about the action taken on the ombudsman's
recommendation ... or the reasons for not complying with the ombudsman's
recommendation."

275
Ifthe mental health ombudsman "believes that the agency,

facility, or program has failed to comply with the ombudsman's
recommendations, the ombudsman shall refer the matter to the division ofmental
health or the Indiana protection and advocacy services commission as
appropriate."

276
Finally, in similar fashion to the reporting requirements imposed

on the long term care ombudsman and the state wide waiver ombudsman,277 the
mental health ombudsman must "maintain records of all activities on behalf of
consumers and report all findings to the division on a quarterly basis."

278

Following its trend ofcreating health care and disabilities ombudsmen, the
Indiana legislature should establish a victims' rights ombudsman with
coordinating, investigatory, recommending, and reporting powers similar to the
powers granted to Indiana's current ombudsmen. First, since Indiana victims are
afforded specific rights by constitutional amendment279 and by statute,280 an
ombudsman could help ensure that victims were aware oftheir rights, and had
a forum in which they could seek to review and redress any alleged violations.

281

required of the Statewide Waiver Ombudsman. See id. § 12-1 l-!3-6(a).

273

.

See iV/. § 12-10-13-14 (ombudsman shall report findings to complainant); §12-10-13-16

(ombudsman must inform complainant when office decides not to investigate complaint); §12-11-

13-6(b) (ombudsman shall report findings to complainant); § 12-1 1-1 3-6(c) (ombudsman must

inform complainant when office decides not to investigate complaint).

274. Id § 12-27-9-5(0).

275. Id § 12-27-9-5(c).

276. Id § 12-27-9-6(a).

277. See id. § § 1 2- 1 0- 1
3 - 1 9 (long term care ombudsman must issue annual report to governor,

general assembly, division, federal Commissioner on Aging, area agencies on aging, and state

department of health ), 12-1 1-13-13 (statewide waiver ombudsman must issue annual report to

governor, legislative counsel, division and members of Indiana commission on mental retardation

and developmental disabilities).

278. Id § 12-27-9-4(b).

279. See Ind. CONST, art. 1, § 13(b).

280. See id § 35-40-1 to -13.

28 1

.

While established as an oversight committee rather than an ombudsman, the Colorado

Governor's Victims' Compensation and Assistance Coordinating Committee notes that one ofthe

important aspects of its work is to ensure that victims understand the scope oftheir rights, and what



1 194 INDIANA LAW REVIEW [Vol. 34: 1 1 57

Second, in investigating victim complaints and recommending possible remedial
action, the victims' rights ombudsman could "provide an unbiased assessment of
whether a victim has been afforded his rights under state law and . . . [and] 'act
as an impartial fact finding and disseminating entity'"282 while simultaneously
"advocating broadly for fairness . . . prompting] the highest attainable standards
of competence, efficiency, and justice for crime victims and witnesses in the
criminal justice system."

283
Finally, the ombudsman could "act as a liaison . .

.

between agencies, either in the criminal justice system or in victim assistance
programs, and victims and witnesses."

284

In its capacity as a liaison or coordinator, the Indiana victims' rights

ombudsman should also instigate some form of audit procedure, similar to the
one practiced by the Arizona Attorney General's Office ofVictim's services.

285

Such an audit procedure would provide a proactive and preventative approach to
enforcing and protecting victims' rights. "[B]y auditing complex operations and
activities ofgovernment agencies, . . . [the ombudsman could] ensure compliance
with duties imposed under . . . [Indiana] laws .... [The ombudsman could]
uncover systemic problems that . . . [might] . . . lead to large-scale violations of

rights."
286

In solving those problems, the ombudsman would help prevent further
violations of victims' rights.

287

B. Actionsfor Mandate

The Indiana legislature should equally be encouraged to amend the current
victims' rights legislation to specifically allow victims to bring actions for

mandate to protect their rights. Under the present status ofIndiana law, victims
do have standing to enforce their rights,

288
but the scope of that enforcement

power is limited and undefined.289

Commonly termed "writ of mandamus," Indiana law dictates that

[c]auses of action previously remedied by writs of mandate may be
remedied by means ofcomplaint and summons in the name ofthe state
on relation of the party in interest in the circuit, superior, and probate
courts as other civil actions. Such actions are to be known as actions for
mandate.

290

results they should expect from any review procedure. See National Criminal Justice

Association, supra note 210, at 12.

282. Id. at 11.

283. IddXll.

284. Minn. Stat. § 61 1A.74.2 (1999).

285. See supra notes 238-48, and accompanying text.

286. Auditingfor Compliance in Arizona, supra note 238, at 1 3.

287. See id.

288. See IND. CODE § 35-40-2-1 (2000).

289. See supra Part III.B.

290. IND. CODE § 34-27-1-1 (1999).



2001] VICTIMS' RIGHTS LAWS 1195

It is long established that an action for mandate is an "extraordinary remedy
expressly provided for by statute"

291
which should be "issued only where the trial

court [or other party] has an absolute duty to act or refrain from acting."
292

Likewise, "[b]ecause they are extraordinary remedies, such writs will not be

issued unless the . . . [party bringing the action] can show a clear and obvious
emergency where the failure of . . . [the] [c]ourt to act will result in substantial
injustice."

293
Finally, actions for mandate cannot be used as a substitute for

appeal.
294

In examining Indiana's current use of actions for mandate, it is evident that

such an action would contribute to victims' efforts to enforce their rights.

Section 34-27-3-1 ofthe Indiana Code states that "[a]n action for mandate may
be prosecuted against any inferior tribunal, corporation, public or corporate

officer, or person to compel the performance of any: (1) act that the law

specifically requires; or (2) duty resulting from any office, trust, or station."
295

In rendering a judgment in an action for mandate, the court will either issue "a

prohibition absolute, restraining the [lower] court and party from proceeding; or

authorizing the court and party to proceed ... in the matter in question."
296

When determining whether to grant an action for mandate, the Indiana courts
have carefully examined whether the party charged has an "absolute duty to act

or refrain from acting."
297

For example, in Perry Township v. Hedrick,
29*

commissioners determined that Hedrick was entitled to poor relief assistance in
satisfying her utility payments, and subsequently ordered the Perry Township
trustee to pay Hedrick's overdue electric bill.

299 When the trustee failed to
comply with the commissioner's order, Hedrick filed a petition for mandate,
seeking the court to order the trustee to pay the electric bill.

300
In challenging the

trial court's grant ofHedrick's action for mandate, the trustee argued, in part, that

it was not subject to a clear legal duty to pay Hedrick's bill.
301

The Indiana
Supreme Court concluded otherwise, finding the trustee's mandatory duty to
comply with the commissioner's order in the language of Indiana Code section

291

.

E.g., Moore v. Smith, 390 N.E.2d 1052, 1054 (Ind. Ct. App. 1979).

292. City of New Haven v. Allen Superior Court, 699 N.E.2d 1134, 1136 (Ind. 1998)
(emphasis added). See also State ex rel W.A. v. Marion County Superior Court, 704 N.E.2d 477,

478 (Ind. 1998); State ex rel Ind. State Bd. of Fin. v. Marion County Superior Court, 396 N.E.2d

340, 343 (Ind. 1 979); State ex rel Bicanic v. Lake Circuit Court, 292 N.E.2d 596, 598 (Ind. 1 973);

Perry Township v. Hedrick, 429 N.E.2d 313, 316 (Ind. Ct. App. 1981).

293. City ofNew Haven, 699 N.E.2d at 1 136.

294. See id at 1135-36.

295. Ind. CODE § 34-27-3-1 (2000).

296. Id § 34-27-2-2.

297. City ofNew Haven, 699 N.E.2d at 1 1 36.

298. 429 N.E.2d 3 1 3 (Ind. Ct. App. 1 98 1 ).

299. See id. at 315.

300. See id.

301. See id. at 317.



1 1 96 INDIANA LAW REVIEW [Vol. 34: 1 1 57

1 2-2- 1 - 1 8.
°2 The court noted that pursuant to the code,

the trustee 'shall' carry out the decision ofthe Commissioners. The term
'shall' in a statute is ordinarily to be used in its mandatory sense. We do
not think that the stated purpose of the act [to provide necessary and
prompt financial relief to citizens of Indiana] would be furthered ... by
permitting the trustee to suspend his mandatory duty to comply with the
Commissioners' order

303

Therefore, the court determined that the trustee did have a duty to comply with
the commissioner's order and pay Hedrick's bill.

Conversely, in State ex rel Indiana State BoardofFinance v. Marion County
Superior Court, Civil Division,

304
the Indiana Supreme Court rejected a crime

victim's action for mandate seeking an order for the Indiana Rehabilitation
Services Board to fund the administration of the Indiana Violent Crime
Compensation Division.

305
The court reasoned that "while the Violent Crime

Compensation Division is set up under mandatory statutes, there is no provision
for the mandatory funding of it"

306
and hence the victim's petition, and the lower

court's ruling ordering the State Finance Board or State Budget Agency to use
their discretionary powers to fund the Division, was inappropriate.

307

As these cases indicate, the command of statute is crucial in establishing
whether a mandatory duty to compel a public officer, court, or other party to take
action exists. Such commanding language is present in Indiana's victims' rights
laws.

For example, "[t]he law enforcement agency having custody of a person

accused of committing a crime against a victim shall notify the victim if the

accused person escapes from the custody of the law enforcement agency."
308

Similarly, "a criminal court shall notify the victim of any probation revocation

disposition proceeding or proceeding in which the court is asked to terminate the

probation ofa person who is convicted ofa crime against the victim."309 Courts
must provide similar notice to the victim ifthe defendant is released, discharged

or has escaped from a mental health treatment agency.
310

Finally, prosecutors are

302. See Ind. Code § 12-2-1-18 (repealed 1992).

303

.

Perry Township v. Hedrick, 429N.E.2d 313,317 (Ind. Ct. App. 1 98 1 ) (citations omitted).

304. 396 N.E.2d 340 (Ind. 1979)

305

.

See id. at 342-43 . The victim had filed a claim for compensation with the Violent Crime

Compensation division, but was informed that the processing ofhis claim was delayed due to a lack

of funding for the division. See id. at 342.

306. Id at 343.

307. See id

308. Ind. Code § 35-40-7-1 (2000) (emphasis added).

309. Id § 35-40-8-1 (emphasis added).

310. See id. § 35-40-9-1 to -3. Generally, if the victim has requested notice of release of a

defendant from a mental health treatment agency, the agency must provide notice to the court, and

the court must give the victim notice no later than ten (10) days before the discharge or release of

the defendant. See id. § 35-40-9-1.



2001] VICTIMS' RIGHTS LAWS 1 197

charged with providing victims with a variety of information, including the time

ofall "hearings and proceedings that are scheduled for a criminal matter in which
the victim was involved,"

31
' and if a defendant is convicted, and the victim has

so requested, the prosecutor must notify the victim regarding his or rights during

the sentencing phase of the trial, including the time, place, and date of the
sentencing proceeding.

312

Based upon these clearly delineated statutory duties, it is manifestly
appropriate that a victim should be able to bring an action for mandate to enforce
his or her rights. Denying victims the opportunity to require prosecutors, the
courts and other statutorily commanded bodies to comply with Indiana's victims'
rights laws would result in an obvious and "substantial injustice." Hence, it is
exceedingly appropriate that victims be afforded this remedy under the current
structure of Indiana's victims' rights laws.

Despite the additional power an action for mandate would provide to victims
seeking to enforce their rights, one must nonetheless remain mindful of the

limited force that such a writ will have. "For example, it would not apply to
solicitors once a victim 's case is closed. Furthermore, the enforcement provision

would fail to protect a victim if prison officials fail to notify the victim that the
person charged or convicted for the crime has been released."

313
Additionally,

victims would most likely be barred from using the action to "challenge a
charging decision or a conviction, obtain a stay oftrial, or compel a new trial"314

in light of an alleged victims rights violation. Hence, if a victim did not attend

a sentencing hearing and exercise his right to be heard
315

because the prosecutor

did not give the victim notice ofthe proceeding,
316

the victim would not be able
to bring an action for mandate commanding the court to conduct a second
sentencing hearing.

However, such limits should not dissuade the Indiana legislature from adding

a provision to Indiana's current victims' rights laws allowing victims to bring

actions of mandate to enforce their rights. In concert with creating a victims'

rights ombudsman, the legislature should pass a statute dictating that "[t]he
victim ofa crime or representative ofa victim ofa crime, including the [victims'

rights ombudsman] may: bring an action for. . . [mandate] enforcing the rights of
victims and the obligations of government entities under [Indiana's victims'

rights statute]."
317 By so doing, the legislature would provide an additional tool

311. Id §35-40-6-4.

312. See id § 35-40-6-7; see also supra Part III.B.3.

313. Westbrook, supra note 9, at 585.

314. Ind. Code § 35-40-2-1(1).

315. See id § 35-40-5-5.

316. See id §35-40-5-9.

3 1 7. Utah CODE Ann. § 77-38- 1 1 (2)(a) ( 1 999). Conversely, the Indiana legislature might

chose to pattern its action for mandate language after South Carolina law which dictates that victims

are entitled to bring a writ of mandamus to "require compliance by any public employee, public

agency, the State, or any agency responsible for the enforcement of the rights and provisions of

[South Carolina's victims rights laws]." S.C. CONST, art. 1, § 2.4(B).



1 198 INDIANA LAW REVIEW [Vol. 34:1 157

to aid Indiana victims in securing and enforcing their rights.

Conclusion

The pendulum charting the victim's place within American criminal law is
moving. While victims were once peripheral actors in the prosecutorial process,
they now hold a far less marginalized position within the boundaries of the
criminal justice system. Laws granting victims such rights as notice, presence
and being heard, have all helped in shifting the victims' rights pendulum to a new
position. The state of Indiana has equally contributed to this process.

Indiana's own victims' rights amendment,318 and supporting legislation,319

exemplify and highlight the state's commitment to reintegrating the victim into
the prosecutorial system. However, the ruling in Newman™ coupled with the
results of victims' rights enforcement actions in other states, illustrates the

numerous challenges that still surround enforcing victims' rights. Several states
have responded to this challenge by establishing victims' oversight committees

orombudsmen to coordinate and review victims' rights services. Similarly, some
states have formally sanctioned the writ of mandamus as a direct, albeit limited,
judicial remedy for the enforcement ofvictims' rights violations. While neither
of these systems can ensure a state's complete, unfettered, and consistent

compliance with victims' rights laws, they nonetheless represent a tangible and

cogent way for victims' rights claims to be heard, addressed, and reviewed.
Therefore, the Indiana state legislature should be strongly encouraged to adopt

a dual enforcement model, combining the forces of a victim's right to use an

action for mandate with a victims' rights ombudsman.

Wliile the American criminaljustice system may never be able to remedy the
ultimate violation an individual experiences when they become avictim ofcrime,
the slow, careful, and appropriate reentry of the victim into the fold of criminal

justice provides all individuals with the opportunity to acknowledge that the

harms committed against the victim were indeed committed against all ofsociety

.

Therefore, providing for and enforcing the manner by which victims participate

in the criminal justice process should be fiercely championed and protected.

318. See IND. CONST, art. I, § 13(b).

319. See IND. CODE ANN. § 35-40-1 to -13 (2000).

320. Newman v. Ind. Dep't of Coir., No.49D01-9910-CP-1431 (Marion Super. Ct, Ind.

dismissed, Jan. 18, 2000).