Honesty. Fairness. Compassion. These are just a few of the things I was taught to respect as a child growing up in Albuquerque, and they are – I believe – the same core values that we should promote and foster inside our criminal justice system.
As a leader within that system, I have a moral obligation to speak up when I believe that some aspect of the process does not reflect who we are as a community. I believe it is time to stand up for victims and afford them greater protections for their privacy, dignity and humanity while still ensuring the basic due process afforded to criminal defendants.
Asking a sexual assault survivor, outside the presence of a judge or jury, whether she has engaged in “rough sex” or how many partners she’s had is not who we are.
Asking a seven-year old to recount, again and again, every graphic detail of a violent sexual attack is not what we stand for.
Article II, Section 24 of the New Mexico Constitution mandates that victims “be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process.” And yet these are the types of humiliating questions that get asked each and every day during mandatory pre-trial witness interviews across this state. No wonder so many are reluctant to report these types of crimes. Who would subject themselves to this dehumanizing process?
Some may wonder if this isn’t just a necessary part of the criminal justice system, one that is constitutionally mandated and common throughout the country. The short answer is no. New Mexico is different, but not in a good way.
The Sixth Amendment to the United States Constitution guarantees that a criminal defendant has a right “to be confronted with the witnesses against him.” That constitutional guarantee is, however, a trial right and does not entitle a criminal defendant to an unregulated and trauma-inducing pretrial interrogation where victims are not only asked about the details of the crime but also humiliating and irrelevant questions that often lead to depression, anxiety and sometimes a refusal to participate in the prosecution of their assailants.
A sexual assault survivor or child abuse victim from one of New Mexico’s many pueblos or reservations has an absolute right to refuse such an interrogation because they fall under federal jurisdiction and the U.S. Constitution does not require it. Indeed, in most states, victim protection from this type of process is enshrined in law.
New Mexico should follow suit and give victims at least as much protection within our criminal justice system as it currently provides to criminal defendants. That’s why I’m proposing amendments to the victim’s rights act that would give victims in this state the same level of protection as those currently living in Arizona, California, Idaho, Montana and Oklahoma.
First, it would permit the introduction into evidence of safehouse interviews of child abuse victims which are conducted by specially-trained, trauma-informed professionals. Second, it would preclude defense attorneys or investigators from interrogating children or developmentally disabled adults prior to trial, though they would still be subject to cross-examination at trial. Third, it would give adult victims of violent crimes the right to refuse a defense interrogation and, upon invoking that right, would permit defendants to craft written questions to be submitted to the court for review and approval. The court could then limit any immaterial or traumatizing questions and direct law enforcement to conduct a second interview, in a neutral setting outside the presence of both prosecutors and defense counsel.
This is a balanced proposal that would finally safeguard the dignity and privacy of victims, which we are supposed to protect in law but are currently failing to protect in practice. More importantly, it would reflect the values we all believe in and ensure the most vulnerable participants in our criminal justice system are no longer the least protected.