(1) The bill of rights for victims and witnesses is:
- (a) Victims and witnesses have a right to be informed as to the level of protection from intimidation and harm available to them, and from what sources, as they participate in criminal justice proceedings as designated by Section 76-8-508, regarding witness tampering, and Section 76-8-509, regarding threats against a victim. Law enforcement, prosecution, and corrections personnel have the duty to timely provide this information in a form which is useful to the victim.
- (b) Victims and witnesses, including children and their guardians, have a right to be informed and assisted as to their role in the criminal justice process. All criminal justice agencies have the duty to provide this information and assistance.
- (c) Victims and witnesses have a right to clear explanations regarding relevant legal proceedings; these explanations shall be appropriate to the age of child victims and witnesses. All criminal justice agencies have the duty to provide these explanations.
- (d) Victims and witnesses should have a secure waiting area that does not require them to be in close proximity to defendants or the family and friends of defendants. Agencies controlling facilities shall, whenever possible, provide this area.
- (e) Victims may seek restitution or reparations, including medical costs, as provided in Title 63M, Chapter 7, Criminal Justice and Substance Abuse, Title 77, Chapter 38b, Crime Victims Restitution Act, and Section 80-6-710. State and local government agencies that serve victims have the duty to have a functional knowledge of the procedures established by the Crime Victim Reparations Board and to inform victims of these procedures.
- (f) Victims and witnesses have a right to have any personal property returned as provided in Sections 77-24a-1 through 77-24a-5. Criminal justice agencies shall expeditiously return the property when it is no longer needed for court law enforcement or prosecution purposes.
- (g) Victims and witnesses have the right to reasonable employer intercession services, including pursuing employer cooperation in minimizing employees’ loss of pay and other benefits resulting from their participation in the criminal justice process. Officers of the court shall provide these services and shall consider victims’ and witnesses’ schedules so that activities which conflict can be avoided. Where conflicts cannot be avoided, the victim may request that the responsible agency intercede with employers or other parties.
- (h) Victims and witnesses, particularly children, should have a speedy disposition of the entire criminal justice process. All involved public agencies shall establish policies and procedures to encourage speedy disposition of criminal cases.
- (i) Victims and witnesses have the right to timely notice of judicial proceedings they are to attend and timely notice of cancellation of any proceedings. Criminal justice agencies have the duty to provide these notifications. Defense counsel and others have the duty to provide timely notice to prosecution of any continuances or other changes that may be required.
- (j) Victims of sexual offenses have the following rights:
- (i) the right to request voluntary testing for themselves for HIV infection as provided in Section 53-10-803 and to request mandatory testing of the alleged sexual offender for HIV infection as provided in Section 53-10-802;
- (ii) the right to be informed whether a DNA profile was obtained from the testing of the rape kit evidence or from other crime scene evidence;
- (iii) the right to be informed whether a DNA profile developed from the rape kit evidence or other crime scene evidence has been entered into the Utah Combined DNA Index System;
- (iv) the right to be informed whether there is a match between a DNA profile developed from the rape kit evidence or other crime scene evidence and a DNA profile contained in the Utah Combined DNA Index System, provided that disclosure would not impede or compromise an ongoing investigation; and
- (v) the right to designate a person of the victim’s choosing to act as a recipient of the information provided under this Subsection (1)(j) and under Subsections (2) and (3).
- (k) Subsections (1)(j)(ii) through (iv) do not require that the law enforcement agency communicate with the victim or the victim’s designee regarding the status of DNA testing, absent a specific request received from the victim or the victim’s designee.
(2) The law enforcement agency investigating a sexual offense may:
- (a) release the information indicated in Subsections (1)(j)(ii) through (iv) upon the request of a victim or the victim’s designee and is the designated agency to provide that information to the victim or the victim’s designee;
- (b) require that the victim’s request be in writing; and
- (c) respond to the victim’s request with verbal communication, written communication, or by email, if an email address is available.
(3) The law enforcement agency investigating a sexual offense has the following authority and responsibilities:
- (a) If the law enforcement agency determines that DNA evidence will not be analyzed in a case where the identity of the perpetrator has not been confirmed, the law enforcement agency shall notify the victim or the victim’s designee.
- (i) If the law enforcement agency intends to destroy or dispose of rape kit evidence or other crime scene evidence from an unsolved sexual assault case, the law enforcement agency shall provide written notification of that intention and information on how to appeal the decision to the victim or the victim’s designee of that intention.
- (ii) Written notification under this Subsection (3) shall be made not fewer than 60 days prior to the destruction or disposal of the rape kit evidence or other crime scene evidence.
- (c) A law enforcement agency responsible for providing information under Subsections (1)(j)(ii) through (iv), (2), and (3) shall do so in a timely manner and, upon request of the victim or the victim’s designee, shall advise the victim or the victim’s designee of any significant changes in the information of which the law enforcement agency is aware.
- (d) The law enforcement agency investigating the sexual offense is responsible for informing the victim or the victim’s designee of the rights established under Subsections (1)(j)(ii) through (iv) and (2), and this Subsection (3).
(4) Informational rights of the victim under this chapter are based upon the victim providing the current name, address, telephone number, and email address, if an email address is available, of the person to whom the information should be provided to the criminal justice agencies involved in the case.
Child Rights in Utah
For the majority of cases, victims of a crime have the same rights regardless of their age. However, there are some key differences in the rights that victims under the age of 18 hold in comparison to adult victims. The purpose of this article is to help you understand the central rights for child victims found in Chapter 37 and Chapter 38 of the Utah Code. Your child or a chil under your guardianship are fully entitled to the protections outlined in this article, and you should reach out to a victim advocate if you feel that any of these rights have been violated during the criminal justice process.
Chapter 37 – Victims’ Rights
The first place that outlines the rights of child victims is in Chapter 37 of Title 77 of Utah’s Code. In this chapter, a child is defined as any person “who is younger than 18 years of age.” These laws give children rights to protection, information, privacy, and absolution from responsibility during the judicial process. First, children have the right to protection from physical and emotional abuse during their involvement with the criminal justice process. Second, law enforcement and prosecutors have a duty to ensure that child victims are informed of any available community resources that could help them, including counseling; law enforcement and prosecutors are also required to give child victims access to said services throughout the criminal justice process. Third, children have the right to keep all interviews related to a criminal prosecution to a minimum; interviews that are conducted must be done by persons trained to perform such interviews and should be done by persons sensitive to the needs of the child.
Once an investigation has been initiated, child victims have the right to keep any interviews conducted at a Children’s Justice Center (including video and audio recordings and transcripts of those recordings) confidential. While there are some clearly outlined exceptions, recordings or transcripts of these interviews should only be distributed, released, or displayed with a court order describing to whom the material may be released and any other reasonable restrictions needed to protect the privacy of the child victim. At the conclusion of legal proceedings in which the recordings or transcripts are used, the recordings and transcripts in the court’s file should be sealed and preserved.
Finally, children are not responsible for inappropriate behavior adults commit against them. They also have the right to not have allegations made or questions posed to them that would imply responsibility for said behavior. Beyond the rights outlined here, child victims and witnesses are also entitled to all other rights granted in chapter 37 of the Utah Code, which can be found in our article about Victim Rights in Court.
Chapter 38 – Rights of Crime Victims Act
If a child victim is 13 years of age or younger, any examination or cross-examination will be conducted in age-appropriate language. An advisor may also be appointed by the court to assist the child with understanding any questions asked. Additionally, the court may allow the victim’s parent or other immediate family member to act as a representative of the victim. As a representative, that individual may exercise the same rights that the victim is entitled under chapter 38. In some cases, the court may designate a person who is not a member of the immediate family to represent the victim’s interests.
In short, there are some additional rights in place for child victims to ensure that they not only understand the criminal justice procedure but are kept safe throughout the process. While some information disclosed to confidential sources can be more easily accessed by a parent or guardian, they still have privacy protections under the law for personal and confidential information.
Utah’s Constitution as a Source of Victim Rights in Utah
In criminal law cases, two parties are typically represented: (1) The defendant, who is the person accused of a crime, and (2) the state, who bring the charges against the alleged criminal. Crime victims are those who have suffered because of the crimes of another. In the American court system, victims are not considered a party in criminal law cases.1 Victims have traditionally played an evidentiary role in these cases, where their testimonies and experiences are used by the state to incriminate perpetrators.
Protections for victims have thankfully been put in place by federal and state laws to ensure they are treated well throughout this process. Victim rights laws vary, depending on which state or court a case is brought in. These laws are invaluable because these protections prevent both perpetrators and the state from taking advantage of victims. Because victims are a limited-purpose party3 criminal case, they do not have the same capacity to present their concerns, their hopes, and their voice in court. The state and perpetrator are naturally afforded this convenience because as a party, they have ample opportunities to assert their voice. Victims rights laws afford victims protections that they otherwise would not have, and these laws are immeasurably needed across the United States.
Victims rights laws in Utah stem from the Utah Constitution and Utah Code of Criminal Procedure.2 Victims rights laws were introduced to the Utah Constitution in 1994.4 Under the Constitution, crime victims are afforded rights in three categories: to be treated well throughout the case, to be properly involved in the case, and to have fair consideration of evidence in a criminal case.
(1)(a) To be Treated Well Throughout a Case
Under the Utah Constitution, crime victims have the right to:
“Be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.”5
But what do these rights actually mean? State v. Lopez explains that this means that victims have the right to be treated “reasonably, even-handedly, and impartially.” 6 Victims must be treated in accordance with these standards throughout the case. Further, victims must not be subjected to treatment that may “injure, damage, or disparage” them or that is “persistently annoying.”6. In a criminal case, victims cannot be treated in any manner that fits these descriptions.
(1)(b) To Properly Involved in a Case
The Utah Constitution provides crime victims the right to:
“Upon request, to be informed of, be present at, and to be heard at important criminal justice hearings related to the victim, either in person or through a lawful representative, once a criminal information or indictment charging a crime has been publicly filed in court…”7
What do these rights mean? Firstly, crime victims must request these rights through a prosecutor (the attorney representing the state), and the prosecutor is obligated to honor these requests. Crime victims may request to be informed by the prosecutor what is happening and occurring in the trial. Crime victims may also request to be present at and even speak at different stages of the trial, assuming that that stage of the trial relates directly to the victim. The crime victim may be in person at a trial, dependent on covid restrictions, or virtually through programs such as Webex. A crime victim may also have a lawful representative, such as a legal guardian, present at a trial or speak. However, these rights do not apply until the crime charges have actually been properly filed.
(1)(c) To Have Fair Consideration of Evidence in a Criminal Case
The Utah Constitution gives crime victims the right to:
“…[H]ave a sentencing judge, for the purpose of imposing an appropriate sentence, receive and consider, without evidentiary limitation, reliable information concerning the background, character, and conduct of a person convicted of an offense except that this subsection does not apply to capital cases or situations involving privileges.”8
What does this mean for crime victims? All crime victims are to have a judge over the case that the victim is involved in. That judge is to receive and consider reliable information about the perpetrator’s background, character, and conduct, and the judge is not to limit evidence of the perpetrator’s background, character, and conduct. However, two specific situations, a judge need not abide by these standards. The first situation where this does not apply is a capital case, which means the perpetrator is charged with the death penalty. The second situation is where the perpetrator properly raises a privilege, which means a defense enumerated by Utah law, such as self-defense.
(2) Limitations of These Rights
These rights do not extend to all circumstances. The Utah Constitution states:
“Nothing in this section shall be construed as creating a cause of action for money damages, costs, or attorney’s fees, or for dismissing any criminal charge, or relief from any criminal judgment.”9
Essentially, this means that a victim may not allege wrongdoing or violation of these rights for any of these reasons. A victim may not appeal a ruling on a criminal case for violation of the aforementioned rights solely to obtain damages, or money for injuries, from the perpetrator.10 Nor may a victim do so to obtain money for other costs or attorney’s fees or to overturn a ruling.
(3) Where These Rights Apply
These rights do not apply in all types of cases. For example, these rights cannot be asserted in a case for violation of a business contracts. The Utah Constitution provides:
“The provisions of this section shall extend to all felony crimes and such other crimes or acts, including juvenile offenses, as the Legislature may provide.”11
Victims rights under the Utah Constitution extend to felony crimes and other crimes, including juvenile crimes. However, victims rights laws do not extend to civil offenses, such as an initial trespass on a neighbor’s driveway.
(4) Enforcement of These Rights
The Utah Constitution delegates the Utah Legislature the authority to enforce and expand these rights.12 It reads:
“The Legislature shall have the power to enforce and define this section by statute.”
This provision allows Utah’s Legislature, which is comprised of the Utah House of Representatives and the Utah Senate, to apply, enforce, and define what the rights in the Constitution mean. Utah’s Legislature has done this through Utah Code of Criminal Procedure §§ 77-37-1 – 77-38-405.
- Though victims cannot bring charges against a perpetrator in a criminal case, a victim may bring charges against a perpetrator civilly. The primary difference between civil and criminal law is that criminal cases are brought by state officials against perpetrators to protect the government and protect a community. On the other hand, civil cases are between two private individuals.
- Each state across the United States has what is called a code of criminal procedure. This code contains the different rules, standards, and regulations that must be kept during a criminal trial. Although victims rights laws from the criminal law will not be discussed in this article, you can read more about it here:
- State v. Brown provides that under Utah Code § 77-38-11(2)(a)(iii) crime victims have a formal role in the court as a limited-purpose party. 342 P.3d 239 (Utah 2014). Because crime victims are a limited-purpose party, they may file motions, request relief, and more. However, crime victims do not have the full rights that a traditional party has.
- U.C.A. 1952, Const. Art. 1, § 28. To read the entirety of the thFor the exact language of victims rights laws in the Utah Constitution, please visit https://le.utah.gov/xcode/ArticleI/Article_I,_Section_28.html?v=UC_AI_S28_1800010118000101
- U.C.A. 1952, Const. Art 1, § 28 (1)(a)
- State v. Lopez, 474 P.3d 949 (Utah 2020), quoting U.C.A. § 77-38-2. For more information on the importance of Lopez, please visit…
- U.C.A. 1952, Const. Art. 1, § 28 (1)(b)
- U.C.A. 1952, Const. Art. 1, § 28 (1)(c)
- U.C.A. 1952, Const. Art. 1, § 28 (2)
- Generally, damages are obtained through civil cases, not criminal cases.
- U.C.A. 1952, Const. Art. 1, § 28 (3)
- For more information on how the Legislature has expanded the constitution, please read Utah Code of Criminal Procedure §§ 77-37-1 – 77-38-405.
- U.C.A. 1952, Const. Art. 1, § 28 (4)