Academic discussion of victim‑rights statutes cites the Jeffrey Epstein pre‑charging case

Page 6 of 31 104 J. Crim. L. & Criminology 59, *66 A second overarching purpose of the CVRA was to allow crime victims to play a role in the criminal justice process. Through the CVRA, Congress intended to make victims "independent participants" in the criminal justice process. *7 The CVRA extends to crime victims a series of "rights" in the criminal justice process - rights that the victims have [*67] independent standing to assert. *4 Congress viewed these provisions as establishing a victim's right "to participate in the process where the information that [victims] and their families can provide may be material and relevant ... ."_ 3° Congress appears to have had both intrinsic and instrumental reasons for wanting crime victim participation. Congress clearly thought that such participation was valuable in its own right. Senator Kyl embodied this belief and explained his decision to become involved in the crime victims’ rights movement because of his discovery that victims: were suffering through the trauma of the victimization and then being thrown into a system which they did not understand, which nobody was helping them with, and which literally prevented them from participation in any meaningful way. I came to realize there were literally millions of people out there being denied these basic rights ... . 3° But Congress also thought crime victim participation in the criminal justice system could be instrumentally useful. For example, in protecting a victim's right to be heard by those determining a defendant's sentence, a victim might be able to provide important information that could alter that sentence. As a result, the sentence might reflect a fuller appreciation of the danger posed by a defendant, and the judge might take appropriate steps to prevent others from being victimized. 37 Congress also intended to ensure that crime victims were not revictimized in the criminal justice process - that is, that they would not suffer what scholars have called "secondary harm" in the process. 38 The concern is that victims suffer when they are excluded from the criminal justice process. Congress sought to end that suffering by making victims meaningful participants in criminal cases. 3° C. AN ILLUSTRATION OF THE PRE-CHARGING ISSUE: THE JEFFREY EPSTEIN CASE Grven the potentially expansive scope of victims' rights under both state provisions and the CVRA, a critical question arises about how to apply them: Do the rights come into existence only after prosecutors formally file [*68] criminal charges? Or do they attach at some earlier point in the process? Does v. United States, a federal case in the U.S. District Court for the Southern District of Florida, usefully illustrates the issue. *° In that case, the U.S. Attorney's Office for the Southern District of Florida 22 Td. 33 Td. at 7302 (statement of Sen. Jon Kyl). 34 Compare /8 U.S.C. § 3771(d), with Susan Bandes, Victim Standing, /999 Utah L. Rev. 331, 344-45 (illustrating the debate surrounding victim standing prior to adoption of the CVRA). 35 150 Cong. Rec. 7296 (statement of Sen. Dianne Feinstein). 36 Td. at 7298 (statement of Sen. Jon Kyl). 37 Td. 38 See, e.g., Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 294-96; Richard A. Bierschbach, Allocution and the Purposes of Victim Participation Under the CVRA, 19 Fed. Sent'g Rep. 44, 46 (2006). 39 150 Cong. Rec. 7298 (statement of Sen. Jon Kyl). 40 Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011). In the interest of full disclosure, two of the authors of this Article (Cassell and Edwards) are co-counsel for the victims in this case. The statement of the facts in this Article draws heavily on the victims' allegations as they have detailed in their pending motion for summary judgment in the case. See Jane Doe #1 & Jane Doe #2's Motion for Finding of Violations of the Crime Victims’ Rights Act and Request for a Hearing on Appropriate Remedies at 3-23, Does, 817 F. Supp. 2d 1337 (No. 9:08-cv-80736-KAM) [hereinafter Jane Doe Motion] (providing fifty-three proposed facts in the case). The U.S. Attorney's Office has generally disputed some of these allegations without offering specifics as to what happened. See, e.g., United States' Response to Jane Doe #1 & Jane Doe #2's Motion for Finding of Violations of the Crime Victim Rights Act and Request for a Hearing on Appropriate Remedies at 34- 43, Does, 817 F. Supp. 2d 1337 (No. 9:08-cv-80736-KAM) [hereinafter United States' Response]. As of this writing, Epstein has declined to intervene in the case to dispute the allegations. DAVID SCHOEN HOUSE_OVERSIGHT_017609