By BRIAN REISINGER | May 10, 2017
On Aug. 12, 2015, Christina Traub’s boyfriend forced her to the ground and put his hands around her neck. On a Madison street in broad daylight, he slammed her head against the sidewalk and strangled her, his thumbs over her throat.
She’s been fighting for a voice ever since.
“Every time I went into a courtroom, it just felt like I was pushed to the background,” she says.
Unfortunately, Traub is one of many survivors of violent crime who say they’ve been revictimized by our court system — finding their attacker has a stronger voice in the process, leaving them feeling disrespected and even unsafe. This is not because Wisconsin doesn’t stand up for victims — we have some of the strongest victims’ rights laws and hardest-working victim advocates in the country — but because victims’ rights are not truly equal to those of the accused under the law.
Lawmakers in Wisconsin have a unique opportunity to erase this injustice, without eroding the rights of the accused or burdening our legal system. It’s called Marsy’s Law for Wisconsin, and it would address these problems the right way — with a constitutional amendment drafted by Wisconsinites, specifically tailored to complement our existing laws and fix problems in our communities.
Authored by state Sen. Van Wanggaard (R-Racine) and state Rep. Todd Novak (R-Dodgeville), this bipartisan legislation has the support of 42 Republicans and Democrats, as well as a broad statewide coalition. That includes victims’ rights groups such as Wisconsin Coalition Against Sexual Assault, family organizations such as Children’s Hospital of Wisconsin, shelters, district attorneys, law enforcement groups such as the Wisconsin Troopers’ Association, Attorney General Brad Schimel and of course, survivors like Traub.
This effort builds on Wisconsin’s proud tradition of reform. In 1980, Wisconsin became the first state in the nation to create a Crime Victims’ Bill of Rights. In 1993, Wisconsinites supported an amendment to the state constitution recognizing victims’ rights.
The results of past reforms are clear. Our state Department of Justice and district attorney’s offices across the state have dedicated victims’ rights staff, and we have infrastructure in place to notify victims of court proceedings, enforce their rights and compensate them for their losses. This is a stark contrast to many states that have taken on victims’ rights from scratch.
But we’ve learned a lot in the past 20 years, and Marsy’s Law for Wisconsin would update our constitution in two ways.
• It would take certain rights that already exist in Wisconsin under state statute and put them into the state constitution so that they are fully constitutional rights — just like those of the accused.
• It would strengthen other rights that are already part of the constitution, making them clearer — just like those of the accused.
An example of a state law that needs to be elevated to the constitution is the right to put victim restitution payments ahead of any dollars to the government. An example of a current constitutional right that needs clarification is the right to be heard throughout the legal process, including release, plea, sentencing, disposition, parole, revocation, expungement or pardon — as opposed to just disposition.
In Traub’s case, this would have meant she could have spoken up when her attacker’s release put her safety at risk. He works in downtown Madison, just like she does.
Critics of this bipartisan legislation say we already have rights that take care of victims and that Marsy’s Law for Wisconsin would weaken the defense. In Wisconsin, virtually all of the rights that Marsy’s Law for Wisconsin would put in the constitution exist in some form under the law, so you can’t both applaud those rights and say they’re harmful.
Maybe critics make circular arguments because their specific concerns — that this legislation will infringe on the rights of the accused and burden our system — don’t hold up under scrutiny.
For instance, critics warn that a victim’s right to refuse the defense’s pre-trial requests for a deposition, interview or other discovery request erodes a defendant’s rights. But a victim’s right to refuse a deposition or interview by the defense is already the law under state statute — it’s just not in the state constitution — and it only impacts pre-trial, not the defendant’s right to confront an accuser in court. Also, a defendant has a constitutional right to refuse to talk to law enforcement. Why shouldn’t a victim be able to do the same with her attacker?
As to discovery requests, any evidence considered part of the criminal investigation would still be available to both the prosecution and defense. Only personal information deemed irrelevant to the case — such as phone records revealing where a victim has called to seek safety — would be denied, and if the defense disagrees, it can petition the judge, who still can order the request to be fulfilled.
Critics also argue that Marsy’s Law for Wisconsin will burden law enforcement and the courts. But as noted, in Wisconsin we already have the dedicated resources to enforce these rights. And victims’ rights won’t slow down the courts — in fact, one of the rights is to be free from “unreasonable delay,” which is similar to the defendant’s right to a speedy trial.
In other words, Marsy’s Law for Wisconsin does nothing but ensure that a defendant’s rights won’t automatically trump a victim’s rights in court. That matters to survivors like Traub. Her fight started on a cold, hard sidewalk nearly two years ago, and it should end with rights that are no less than the rights of her attacker.
Marsy’s Law for Wisconsin would provide her with exactly that — nothing more, nothing less.
Brian Reisinger is founder of Hilltop Strategies and spokesman for Marsy’s Law for Wisconsin. This commentary represents his personal opinion.