What Is Marsy’s Law?
Marsy’s Law is understood as part of a nationwide movement to ensure that victims of crimes are afforded rights throughout the criminal justice process. Faced with a system that largely neglected the concerns of crime victims, volunteers from a Santa Monica, California group known as the "Marsy Task Force" joined together with activists across the United States to enact legislation that transformed the way law enforcement and the judicial system treated crime victims. Marsy’s Law is the product of a 2004 campaign by the "Marsy Task Force" and was named in honor of a woman named "Marsy" who was murdered a week after being stalked by a former boyfriend. Disappointed by the response of law enforcement and the judicial system, her brother, Henry Nicholas, sought to change how victims were treated in the system. This experience led him to co-found the anti-crime victims’ rights organization, Marsy’s Law for All. The laws were developed and passed by a number of states, including the following:
California – Marsy’s Law was adopted into California’s state constitution in 2008.
Florida – Marsy’s Law was passed in 2018 and became effective in January 2019.
North Carolina – In 2018, the law was adopted and became effective immediately.
Victims’ Bill of Rights (12/1/95) – The Victims’ Bill of Rights was adopted in 1995 by a NC constitutional amendment. Changes made to the Constitution’s – Art I, Sec. 37 of NC were effective on December 1, 1995.
South Carolina – The South Carolina Victims’ Bill of Rights was ratified in November of 2018 and became effective on January 1, 2019 .
Tennessee – Like North Carolina, Tennessee passed the Victims’ Bill of Rights at the state level, which went into effect in July 1999.
Kentucky – Marsy’s Law passed and went into effect in 2019.
In Kentucky, Marsy’s Law was passed by the Kentucky Legislature and was ratified by the voters during the 2018 election. The purpose of Marsy’s Law was to establish constitutional authority for victims’ rights in the criminal law system. The laws that were passed can be broken into the following categories:
Rights Before Criminal Conduct – The law laid out an individual’s victims’ rights before they became a party to a crime.
Rights During Criminal Proceedings – Victims are now afforded many rights during the criminal trial process. Some examples are: (i) right to confer with the prosecutor, (ii) right to be provided with a copy of a plea agreement in homicide cases, (iii) right to be reasonably protected from the accused.
Rights After Criminal Proceedings – The law also set out certain rights that victims had after the criminal proceedings. For example, it gave victims the right to: (i) receive information about all post-conviction options, (ii) receive notice of parole hearings, and (iii) submit a brief, written victim impact statement to the Board of Probation and Parole.
Victims have the right to privacy and to receive reasonable protection from the accused. They can submit this request to the court and if there is enough evidence for the judge to believe reasonable cause exists to grant the privacy protections.
Kentucky Adopts Marsy’s Law
The adoption of Marsy’s Law in Kentucky was a two-part process that spanned several years. In 2017, the Ohio Supreme Court ruled that a victim has a constitutional right to be present at court hearings, and Kentucky’s own Supreme Court of Kentucky followed suit the following year in 2018. In May of 2018, the Ohio Supreme Court amended the Ohio Constitution by adding in Section 2949.26, which stipulates that every victim of a crime has the right to be present in all criminal family court proceedings unless otherwise restricted. Shortly thereafter, in June of 2018, the Kentucky Victims’ Bill of Rights went into effect under KRS 421.575. The passage of KRS 421.575 implemented several new rights for rape victims and other crime victims in criminal court cases, including giving victims the right to be present during criminal trials, be notified of criminal proceedings, and confer with prosecutors before any plea agreement is finalized. In order to further enforce victims’ rights, Attorney General Andy Beshear and State Sen. John Schickel sponsored Senate Bill 3 in 2018, and the Kentucky Victims’ Bill of Rights was amended to include the terms of the bill. SB 3, also known as Marsy’s Law, dictates that victims will be notified of any and all proceedings in the criminal case involving them; the right to be treated with dignity and respect throughout the entire process; the right to be informed of pleas or offers of agreements made to the defendant; and to be able to communicate with the prosecutor, among other things. It also allows victims to make a "victim impact statement" either in writing or orally using audio or other means. The passage of SB 3 was a huge moment in history for the state of Kentucky, as it became the first Southern state to adopt Marsy’s Law. Additionally, in November of 2018, Kentucky voters were able to vote on the state constitution amendment of "Victims’ Rights to Justice Victims’ Rights to Justice Amendment." Section 28 of the Kentucky Constitution was thus adopted in a vote, with the final tally being 60% Yes and 40% No, and it went into effect on January 1, 2019.
Marsy’s Law Provisions in Kentucky
Marsy’s Law, formally known as the Crime Victims’ Bill of Rights, was added to the Kentucky Constitution in November 2018. The amendment, now codified as Section 26a, provides several key provisions for the protection of rights of victims of crime. Below are some of the specific rights provided for under the new amendment.
• The right to due process and a meaningful role in the judicial process.
• The right to be free from intimidation, harassment, or abuse.
• The right to be heard, upon the request of the victim, at all critical stages of the criminal justice process, subject to court rules and procedures, including but not limited to any release decision involving the defendant, any plea proceeding, and sentencing and post-sentencing hearings.
• The right upon request to confer with the prosecuting attorney of the district in which the crime was committed and be timely notified of any decision or plea agreement offered or reached by the defendant.
• The right to receive notice of any court proceedings in which a right of the victim is implicated and to receive prompt notice of a change in the status of the defendant, including but not limited to release or escape.
• The right to notice of the impending release of the defendant and information regarding the custody status of the accused, which shall be provided to the victim upon the victim’s request.
• The right to be provided information concerning victims’ rights, as well as the telephone number and address for the appropriate authorities to contact for application.
• The right to provision of a secure waiting area during court proceedings away from the defendant and their family and friends.
• That the defendant, the defendant’s attorney, members of the defendant’s family, and any person acting on behalf of the defendant shall not initiate or cause the initiation of written or recorded communication with the victim or the victim’s family, unless the victim has consented to the communication in writing or on the record.
• The right to reasonable protection from the accused throughout the criminal justice process, including, but not limited to, providing timely notice to the victim of any hearing at which a bond reduction for the accused will be considered.
• The right to have the trial and all other hearings in the case closed to public attendance, except where the victim opens the proceedings to the public.
• The right to a speedy trial.
Victim Impact of Marsy’s Law
Since the adoption of Marsy’s Law in Kentucky, these rights have been incorporated into the Criminal Procedure Code. Their incorporation provides more structure to the law, but further still spells out in detail how these laws are enforced, and what limitations these laws may hold to the safety of victims of crime.
The first right provided in Marsy’s Law is the Right to Fair Legal Process. This right acknowledges the pain that crime victims have experienced due to the incident against them and it recognizes their input as being valuable and significant to the court process. § 421.570(1)(a). Statutory language notes that prosecutor’s are responsible for keeping victims informed of the legal proceedings, however, this is a rather loose standard allowing for significant oversight. The victim can petition the judge for resolution of the issue, and if the trial court has not complied with the procedures set out in subsection (g) and the right to fairness, it must correct that in a reasonable amount of time by sentencing or otherwise. § 421.570(3). The statute caps the damages awarded to the victims who have not received fair notice at $100 per incident, unless the trial court finds that there was willful, wanton, or reckless conduct of any party to the incident that denied the victim such notice. § 421.570(8), (9). The words only set out the minimum that can be recovered by the victims, since nothing in the statute prohibits broader relief from being awarded .
The second right provided is the Right to Protection from the Accused. This right prohibits the defendant from contacting the victim, however, at the same time, it also is dependent on the judge’s discretion as to whether or not the defendant is capable of contacting the victim while present. § 421.580(2)(f). Moreover, the statute also prohibits the defendant from having any contact with the victim even if the individual is in jail. § 421.580(2)(c). The idea is that the Defendant not cause more pain to the victim while being held or awaiting trial.
Code language also allows for victims to be present during the trial. The Right to Be Present During Proceedings operates on a standard of a need to know the date and time of the proceedings. § 421.590(1)(a). The victim also has the right to testify at all criminal proceedings, or to submit a written statement to be read before the Court. § 421.590(1)(b). And like all previous rights, this right to be present and to have an opportunity to speak is one intended to be flexible. "Preservation of the right to be heard as a victim does not require the victim to exercise such right at every critical stage of the proceedings." § 421.590(2). Strangely, although it carries language to inform the victim as to the dates and times of court proceedings, there is nothing in the statute that provides for an award of damages to the victim for a failure to notify them of proceedings. § 421.590(6).
Controversy and Criticisms
The issues surrounding Marsy’s Law in Kentucky are multi-faceted. In October 2019, the Fayette Commonwealth Attorney filed a motion seeking a declaration that Marsy’s Law violated the Kentucky Constitution by diminishing the victims’ rights already granted in the 1998 amendment and foisting on the court an additional standard for certain cases. Plaintiff-Intervenor contested the motion.
On November 20, 2019, Fayette Circuit Court Judge Kimberly Bunnell issued a decision striking down Marsy’s law as unconstitutional because it limited the rights of crime victims in Kentucky. Judge Bunnell stated "[r]equiring unanimous consent from a crime victim to enter a plea, to waive a jury trial, or to enter a probationary sentence is not Constitutionally permissible."
Leading up to the ruling, a group of civil liberties group filed a lawsuit against Kentucky Republican Secretary of State Michael Adams in support of claiming the amendment was unconstitutional. The ACLU, the ACLU of Kentucky, Voice of the Accused Protesters (RAP), Kentuckians for the Commonwealth (KFTC), "SayHerName" coalition, and Women Against Abuse Foundation (WAAF) filed an Amicus Brief supporting the argument for a declaration of the amendment as unconstitutional.
"Law enforcement leans on victims to pursue prosecutions, and victims are often left with little choice but to remain naïve to the myriad burdens they will face should they decide to speak in courtrooms," the ACLU said in the brief. We have seen this pattern of criminal prosecutions deferred; evidence lost, forgotten, destroyed, or mishandled; critical witnesses not interviewed; and cases altogether dismissed when victims falter or fail to work with law enforcement and prosecutors. Under these circumstances, it is clear that the stated desires of police, prosecutors, and crime victims are at odds."
Also according to the ACLU, supporters of Marsy’s Law failed to consult local groups about the proposed amendments until November 2015. "Victim services and advocacy groups were not consulted by Respect Kentucky until after the constitutional amendment was proposed. Many of those groups were unaware of the proposed amendment until after it had been passed by the General Assembly. When the proposed change to the state constitution was filed, Respect Kentucky immediately focused their campaign on garnering signatures for the state-level change rather than gathering the grassroots support for their initiatives."
Similarly, the Kentucky Association of Criminal Defense Lawyers stated that Marsy’s Law is poorly conceived and vague. Because there has never been a vetting or discussion about the details of the proposed changes, no one really knows how the criminal justice system will be impacted.
In contrast, many business organizations welcomed the changes brought on by Proposition 2. During the passage of Amendment 3, the National Federation of Independent Business (NFIB) helped provide signatures and fundraising to support its passage. When asked about his support for HJR 73, NFIB’s Kentucky Executive State director, Tom Underwood stated "[t]his is a small step for protecting victims of crime and a giant step for protecting our constitutional rights in Kentucky."
The debate over whether Kentucky state lawmakers attempted an anti-crime agenda at the expense of public safety continues, but there is a clear divide between advocates of Marsy’s Law and opponents of the proposed constitutional amendment. As Marsy’s Law continues to face resistance in Kentucky, revision and practical implementation of the law do not appear to be imminent.
Future Impact of Marsy’s Law in Kentucky
The future of Marsy’s Law in Kentucky is uncertain and will depend on the challenges making their way through the appellate system. Two cases are of particular interest.
In 2022, a group of Northern Kentucky Prosecutors filed suit seeking declaratory judgment and injunctive relief, arguing Marsy’s law violates Section 32 of the Kentucky Constitution by requiring automatic victim restitution as part of a plea agreement and fails to identify a "remedy" as required by Sections 2 and 8 of the Kentucky Constitution. When the trial court ruled in favor of the Commonwealth, the Northern Kentucky Prosecutors appealed.
In another case, state courts struck down portions of the law as unconstitutional. In 2022, the Hardin County Circuit Court ruled part of Marsy’s law unconstitutional because it undermined the constitutional guarantee to a fair trial. In 2023, the Kentucky Supreme Court upheld the trial court’s ruling.
If either or both of the Northern Kentucky cases are successful , amendments to Kentucky’s Constitution will likely be required to fill the void.
States that adopt or amend constitutional provisions like Marsy’s law are generally forced to education courts, police, and legislators on the provisions of those amendments. Lawmakers in Kentucky amended statutes to comply with Marsy’s law. For example, KRS 431.620, related to restitution, requires mandatory restitution for the return of all items unlawfully taken from victims granted restitution. This statute is somewhat different than the provisions of KRS 534.020, which provide detailed statutory framework for restitution.
Victim advocates know that the same Kentucky agencies that do not pay restitution are the same agencies responsible for adopting policies to explain that restitution can be required in almost every Kentucky criminal case. It will be difficult for advocates to train these agencies to understand and comply with laws to which they are not subjected (such as KRS 431.620) and that require more effort and involvement by prosecutors.