Oklahoma State Question 794: Reforming the Victim's Bill of Rights

Oklahoma State Question 794, on the November 6, 2016, general election ballot, substantially modifies Article 2, Section 34, of the Oklahoma Constitution, which establishes certain rights for the victims of crime. If passed, SQ 794 would replace most of the existing text, narrowing the scope to the victims themselves (currently it includes the family members of a crime victim), and providing for concrete remedies to enforce these rights.

This was initiated by the Oklahoma Legislature in the 2017 regular session, via SJR 46. The resolution was approved by a vote of 43-2 in the State Senate, by a unanimous 9-0 House rules committee vote, and a unanimous 88-0 vote in the State House. The only nay votes came from two urban Democrat state senators: Kay Floyd from Oklahoma City and Kevin Matthews from Tulsa. As a constitutional amendment, it must be ratified by a vote of the people.

One word was changed during the committee process: Sen. Nathan Dahm proposed changing the word "granted" to "guaranteed." The state can't grant us civil rights, but it has a duty to guarantee our God-granted rights.

Here is how the constitution will change if SQ 794 is approved. Additions are underlined, deletions are stricken through.

Section 34. A. To preserve and protect the rights of victims to justice and due process, and ensure that victims are treated with fairness, respect and dignity, and are free from intimidation, harassment, or abuse, throughout the criminal justice process, any victim or family member of a victim of a crime has the right to know the status of the investigation and prosecution of the criminal case, including all proceedings wherein a disposition of a case is likely to occur, and where plea negotiations may occur. The victim or family member of a victim of a crime has the right to know the location of the defendant following an arrest, during a prosecution of the criminal case, during a sentence to probation or confinement, and when there is any release or escape of the defendant from confinement. The victim or family member of a victim of a crime has a right to be present at any proceeding where the defendant has a right to be present, to be heard at any sentencing or parole hearing, to be awarded restitution by the convicted person for damages or losses as determined and ordered by the court, and to be informed by the state of the constitutional rights of the victim.

B. An exercise of any right by a victim or family member of a victim or the failure to provide a victim or family member of a victim any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.

C. To secure justice and due process for victims throughout the criminal and juvenile justice systems, a victim of a crime shall have the following rights, which shall be protected by law in a manner no less vigorous than the rights afforded to the accused: to be treated with fairness and respect for the victim's safety, dignity and privacy; upon request, to reasonable and timely notice of and to be present at all proceedings involving the criminal or delinquent conduct; to be heard in any proceeding involving release, plea, sentencing, disposition, parole and any proceeding during which a right of the victim is implicated; to reasonable protection; upon request, to reasonable notice of any release or escape of an accused; to refuse an interview or other request made by the accused or any person acting on behalf of the accused, other than a refusal to appear if subpoenaed by defense counsel; to full and timely restitution; to proceedings free from unreasonable delay and a prompt conclusion of the case; upon request, to confer with the attorney for the state; and to be informed of all rights enumerated in this section.

B. The victim, the victim's attorney or other lawful representative, or the attorney for the state upon request of the victim may assert in any trial or appellate court, or before any other authority with jurisdiction over the case, and have enforced the rights enumerated in this section and any other right afforded to the victim by law. The court or other authority with jurisdiction shall act promptly on such a request. This section does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee or agent of the state or of any of its political subdivisions, or any officer or employee of the court.

C. As used in this section, a "victim" includes any person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act. The term "victim" does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor or incapacitated victim.

D. The Legislature, or the people by initiative or referendum, has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings and if enacted by the Legislature, youthful offender proceedings.

E. The enumeration in the Constitution of certain rights for victims shall not be construed to deny or disparage other rights granted guaranteed by the Legislature or retained by victims.

While I'm leery about creating new "positive rights" that require the state to take certain actions (as opposed to "negative rights" that limit the state's power, such as those enshrined in the Bill of Rights) and putting this level of detail in the State Constitution, since this provision is already in the Oklahoma Constitution, it makes sense to amend it in the same place. The proposed changes appear to fix practical problems created by the original amendment, approved by State Question 674 in 1996, and carefully avoids infringing upon the due-process rights of the accused.

MORE:

Ballotpedia's detailed discussion of Oklahoma SQ 794 includes a side-by-side comparison of the existing section with the proposed replacement.