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I. Summary

I applaud the way our nation embraced the survivors of the September 11 attacks. But the cab driver who got shot in Baltimore on September 11, 2001, or the [family of the] waitress in Sioux City, Iowa, who was raped and killed on that same day, are entitled to be supported just like the survivors of September 11. Right now in the United States, they aren’t.1

Many people have strong interests in the functioning of the criminal justice system: victims of crime, witnesses, those accused of committing crimes, and society at large, which requires the fair and effective administration of justice. In recent decades, both internationally and inside the United States, there has been a growing demand that greater attention be paid to the interests and rights of victims of crime as well as to ensuring their access to justice.

Unfortunately, the public debate on this topic too often casts the rights and interests of victims and defendants as a zero-sum game in which safeguards for defendants’ rights—such as the presumption of innocence and the right to a fair trial—come at the expense of victims, and improvements in the treatment of victims impinge on defendants’ rights. While there can be tensions between the legitimate interests of victims and defendants, a criminal justice system based on human rights standards can safeguard the rights of both while advancing justice and the rule of law.

Several international human rights instruments—including treaties binding on the US as well as detailed best practice guidelines—provide standards for upholding victims’ rights and interests. These standards are discussed in detail in this document; we summarize them in the paragraph below.

First and foremost, all victims of crime should have their status recognized by the state. Such recognition should be forthcoming whether or not alleged perpetrators are identified or arrested. Human rights standards demand that victims be treated with compassion and with respect for their human dignity throughout the criminal justice process, and that no group or category of victims should suffer from discrimination. Victims of crime should be able to have access to and participate in the criminal justice system through procedures that provide them with information, notice, and an opportunity to be heard without prejudice to the rights of the accused. Human rights standards recognize that victims should be protected and assisted in all appropriate instances, and they should have access to specialized help in dealing with emotional trauma and other hardships caused by their victimization.2

This report reviews current US law and practice against international human rights standards. It draws on interviews with victims of crime, victims’ rights advocates, and attorneys, as well as an assessment of international standards and US domestic law. While US jurisdictions, both federal and state, have made significant progress in recent decades, much more can be done to ensure that victims’ rights and legitimate interests are upheld.


II. International Standards on the Rights and Interests of Victims of Crime

Many international human rights instruments address or touch on victims’ rights, including legal instruments such as the International Covenant on Civil and Political Rights (ICCPR),3 legally binding on the US federal and state governments, as well as the Convention on the Elimination of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC). Other international instruments provide guidance on how best to protect and promote victims’ rights and meet their needs in domestic legal systems, most notably the 1985 United Nations (UN) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the “Basic Principles for Victims”) adopted by the UN General Assembly, which details international consensus on best practices in relation to victims of crime.4 In the analysis that follows, this report largely draws on the Basic Principles for Victims, the most comprehensive international treatment of the subject currently available.

The UN General Assembly and the UN Economic and Social Council have also passed several resolutions that articulate the importance of the rights of women and children who are victims of crime.5

Treaty Provisions

Several provisions in the ICCPR, which the US has ratified and thereby bound itself to,6 are relevant to victims of crime. They include:

  • Rights to be protected from harm, which impose obligations on the government to have effective criminal laws that prohibit certain behavior, act as a deterrent to committing offenses, and ensure that those who do commit crimes are brought to justice through effective investigation and, where appropriate, prosecution. For example, Article 6.1 of the treaty requires that the right to life be protected by law; Article 7 imposes an obligation to protect individuals from inhuman treatment, including domestic violence; and Article  17 imposes obligations to protect the person, home, and family from unjust attack;

  • Rights to be recognized by and treated equally before the law and a right of non-discrimination (Articles 2, 3, 16, and 26);

  • Rights to a remedy and to access to justice, including a fair and public hearing in non-criminal claims (Articles 2 and 14); and

  • Due process rights that are integral to the criminal system (Articles 9, 10, 14 and 15).

    • The US has also signed, but not ratified, CEDAW and the CRC. As a signatory, while it is not legally bound to implement the specific provisions of those treaties, the US must not act to defeat their object and purpose.7

    CEDAW requires that there are measures, including in the criminal justice system, to ensure that women are protected from discrimination, exploitation, and harm.8 The CRC also requires that particular measures be in place to protect children from various forms of harm caused by criminal acts, and to ensure access to rehabilitative services where necessary.9

    Guiding Instruments

    The UN’s Basic Principles for Victims was “designed to assist governments and the international community in their efforts to secure justice and assistance for victims of crime and victims of abuse of power.”10 There have been a large number of follow-up conferences and activities that governments have organized on the basis of the Basic Principles for Victims.

    For example, the UN Economic and Social Council has monitored the implementation of the Basic Principles for Victims by adopting its own resolutions recommending steps for governments and the United Nations to take in ensuring rights for victims of crime.11 Stemming from the Economic and Social Council’s series of resolutions, which have included calls for continued research and technical assistance, the United Nations secretary general and the United Nations Crime Prevention and Criminal Justice Programme have produced a guide for policymakers on implementing the Basic Principles for Victims,12 a handbook for victims on use and application of the Basic Principles for Victims,13 and a toolkit for professionals on assessing police, prosecutorial, and judicial policies and practices relating to victims and witnesses.14 At least two countries, France and Canada, have implemented the Basic Principles for Victims in domestic legislation.15

    Governments in Europe have also taken steps to ensure that minimum standards are drawn up to protect the rights of victims of crime and guarantee their access to justice. On March 15, 2001, the European Council, a body of the European Union, issued the European Union Framework Decision on the Standing of Victims in Criminal Proceedings, which is legally binding on the member states of the European Union.16 The Framework Decision includes provisions similar to most of the Basic Principles for Victims.17

    Some commentators on the Basic Principles for Victims have noted that “twenty years after its adoption … the principles contained in this Declaration have been poorly implemented in national legislation and policies.”18 Nevertheless, there is significant evidence that governments throughout the world, including the United States, have gone a long way to protect the rights of crime victims in their domestic legislation and practices.



    1 Human Rights Watch telephone interview with victims’ rights advocate Renny Cushing, founder and executive director, Murder Victims’ Families for Human Rights, Cambridge, Massachusetts, August 28, 2007. Mr. Cushing’s father, Robert Cushing, was murdered in 1988.

    2 United Nations (UN) Office on Drugs and Crime, Victims and Witnesses: Criminal Justice Assessment Toolkit (New York: United Nations, 2006), p. 1.

    3 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. The United States became party to the treaty on September 8, 1992. Ratifications and Reservations for the ICCPR can be viewed at http://www.unhchr.ch/pdf/report.pdf (accessed August 18, 2008).

    4 UN General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General Assembly Resolution 40/34, November 29, 1985, para. 1 (hereinafter “Basic Principles for Victims”). The Declaration was adopted as a part of the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, August 26 – September 6, 1985.

    5 UN Economic and Social Council, Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, Resolution 2005/20, July 22, 2005; UN General Assembly, Declaration on the Elimination of Violence against Women, Resolution 48/104, December 20, 1993; UN General Assembly, Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Resolution 52/86, February 2, 1998. This latter resolution gives detailed procedural recommendations in para. 7:

    “Member States are urged to review, evaluate and revise their criminal procedure, as appropriate, in order to ensure that:

    (a) The police have, with judicial authorization where required by national law, adequate powers to enter premises and conduct arrests in cases of violence against women, including confiscation of weapons; (b) The primary responsibility for initiating prosecutions lies with prosecution authorities and does not rest with women subjected to violence; (c) Women subjected to violence have an opportunity to testify in court proceedings equal to that of other witnesses and that measures are available to facilitate such testimony and to protect their privacy; (d) Rules and principles of defence do not discriminate against women and such defences as honour or provocation do not allow perpetrators of violence against women to escape all criminal responsibility; (e) Perpetrators who commit acts of violence against women while voluntarily under the influence of alcohol or drugs are not absolved of all criminal or other responsibility; (f) Evidence of prior acts of violence, abuse, stalking and exploitation by the perpetrator is considered during court proceedings, in accordance with the principles of national criminal law; (g) Courts, subject to the constitution of their State, have the authority to issue protection and restraining orders in cases of violence against women, including removal of the perpetrator from the domicile, prohibiting further contact with the victim and other affected parties, inside and outside the domicile, and to impose penalties for breaches of these orders; (h) Measures can be taken when necessary to ensure the safety of victims and their families and to protect them from intimidation and retaliation; (i) Safety risks are taken into account in decisions concerning non-custodial or quasi-custodial sentences, the granting of bail, conditional release, parole or probation.”

    6 The United States stated in connection with its ratification of the ICCPR that the treaty is not “self-executing.” Nevertheless, the laws of the US and its states as well as their implementation must be consistent with the ICCPR. This follows directly from article 6, sec. 2 of the US Constitution, which states that “all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land.” As a matter of international law, reservations to treaties may not contradict the object and purpose of the treaty at issue. Vienna Convention on the Law of Treaties, adopted May 22, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980, signed by the US on April 24, 1970, art.19(3). The UN Human Rights Committee, responsible for interpreting and monitoring compliance with the ICCPR, has stated that reservations or interpretive declarations should not “seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law.” UN Human Rights Committee, General Comment 24 on Reservations to the ICCPR, para. 19, U.N. Doc. CCPR/c/21/Rev. 1/Add. 6 (1994).

    7 Vienna Convention on the Law of Treaties, Article 18, concluded May 23, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980. Although the United States has signed but not ratified the Vienna Convention on the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice." Assistant Legal Advisor for Treaty Affairs at the US Department of State and US Secretary of State, “Report to the President,” Department of State Bulletin, vol. 65, October 18, 1971, p. 685; Theodor Meron, “The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination,” American Journal of International Law, vol. 79 (1985), p.283. The US government has also accepted that it is bound by customary international law not to defeat a treaty’s object and purpose. “Albright Says U.S. Bound by Nuke Pact; Sends Letters to Nations Despite Senate Vote,” Washington Times, November 2, 1999 (describing the Clinton administration’s acceptance of obligations under the Comprehensive Test Ban Treaty despite the Senate’s failure to ratify).

    8 See in particular Articles 2, 6 and 15.

    9 See in particular Articles 6, 11, 12, 16, 19, 34, 35, 36, 37 and 39.

    10 Basic Principles for Victims, para. 3.

    11 UN Economic and Social Council, Resolution 1986/10, May 21, 1986; UN Economic and Social Council, Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Resolution 2000/15,  July 27, 2000; UN Economic and Social Council, Plan of Action for the Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Resolution 1998/21, July 28, 1998.

    12 UN Office for Drug Control and Crime Prevention, Guide for Policymakers on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York: United Nations, 1999).

    13 UN Office for Drug Control and Crime Prevention, Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York: United Nations, 1999) (hereinafter “Handbook for Victims”).

    14 UN Office on Drugs and Crime, Victims and Witnesses: Criminal Justice Assessment Toolkit (New York: United Nations, 2006).

    15 Carolyn Reese, “The Implementation of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in France,” The Victimologist, vol. 4, no. 1 (May 2000) (citing four laws adopted on July 22, 1992, which reformed the French Penal Code); Canadian Resource Centre for the Victims of Crime, “Rights,” http://www.crcvc.ca/en/rights.php (accessed August 26, 2008).

    16 Council of the European Union, “Framework Decision on the Standing of Victims in Criminal Proceedings,” 2001/220/jHA, March 15, 2001, http://legislationline.org/legislation.php?lid=5696&tid=155 (accessed August 26, 2008).

    17 Jan Van Dijk, “Victims’ rights in International Criminal Law,” paper presented at the International Conference on Actions for Crime Victims, Rome, January 19-21, 2006, http://www.tilburguniversity.nl/intervict/news/06-01-19-paper.pdf (accessed August 26, 2008).

    18 M.S. Groenhuijsen, International Victimology Institute, “Implementing and Complying with the UN Basic Principles of Justice for Victims of Crime and Abuse of Power,” January 2006, http://www.narcis.info/research/RecordID/OND1314809/Language/en/ (accessed August 28, 2008).


    September 2008

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