OPINION: It's time we place victims' rights on par with defendants' rights

You don’t have to spend a lifetime in the courtrooms of New Mexico to know that our criminal justice system is not working. From the lack of transparency about defendants who violate conditions of release, to the difficulties in mandating treatment for individuals who are not competent to stand trial, New Mexicans are rightly confused about why court practices are increasingly disconnected from common sense.

While it appears that many of those issues will finally receive the attention they deserve during the upcoming legislative session, it is essential that we do not lose track of perhaps the most shocking feature of a system that has become unmoored, not only from the core values of our community, but also the legal principles that seek to balance the rights and interests of the accused and their victims.

New Mexico is a tragic outlier in the systemic disregard it shows for victims of crime. Despite the fact that victims’ rights are enshrined in our state Constitution, anyone who has had the courage to come forward and report a sexual assault or witnessed the shattering aftermath of a child abuse prosecution can tell you that those constitutional guarantees mean very little in the context of a system that has been relentlessly redesigned to serve the interests of court administrators and criminal defendants.

Article II, Section 24 is the most consistently disregarded element of the New Mexico Constitution guaranteeing, as it does, that crime victims have a “right to be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process.” From failing to provide timely notification to victims about a defendant’s defiance of GPS restrictions, to failing to even notify victims of hearings where defendants are excused from mandatory sex offender supervision, the public is routinely reminded that the scales of justice are out of balance.

And yet none of these examples compare to the barbaric practice of forcing sexual assault survivors and child abuse victims to submit themselves to humiliating and traumatic interrogations by defense attorneys and investigators before a case is even presented to a jury. From asking adult survivors about what clothes they wear or what sexual preferences they have, to asking children to recount violent physical and sexual abuse in excruciating detail, these unregulated “interviews” by untrained and adverse parties do little to uncover the truth or advance the interests of justice.

Proponents of this disgraceful practice routinely argue, both in public and in front of policymakers in Santa Fe, that it is not only necessary but constitutionally required. It is not. Unlike the specific constitutional guarantees set forth above, there is no comparable language — in either state or federal Constitutions — that requires victims to undergo a gauntlet of heartbreak and humiliation in the pursuit of justice.

Instead, it is yet another example of a court-made “rule” that undermines both the spirit and the letter of the law — a fact confirmed by its conspicuous absence from both federal criminal practice and the procedures adopted in the vast majority of states in this country.

As New Mexico’s chief legal officer, I am bound by oath to preserve, protect and defend both the state and federal constitutions. That includes upholding a criminal defendant’s right to confront the witnesses against him. But as federal courts have long recognized, that fundamental feature of due process is a trial right to be exercised under the close supervision of a judge and the watchful eyes of a jury, both of which tend not to look kindly on abusive conduct toward vulnerable survivors.

Because the courts have shown themselves unable or unwilling to place the constitutionally mandated rights of victims on equal footing with the rights of criminal defendants, it is time for the Legislature to both end this shameful practice and empower crime victims to protect their constitutionally guaranteed rights.

To do anything less would be an injustice.

Attorney General Raúl Torrez, formerly Bernalillo County’s district attorney, is pushing two bills during the legislative session beginning Tuesday aimed at protecting crime victims. One bill, sponsored by state Rep. Meredith Dixon, D-Albuquerque, would exempt sexual abuse victims, both children and adults, from having to answer questions in pretrial interviews. The other bill, sponsored by state Rep. Dayan Hochman-Vigil, D-Albuquerque, would amend the Victim of Crime Act, giving the state Department of Justice the authority to issue fines or pursue other penalties if victims’ rights are violated, and allow victims to file lawsuits against public agencies or individual employees in cases in which victims’ rights were infringed upon. Neither measure has yet been assigned a bill number.