March 03. 2018 8:36PM

Marsy's Law: 'Privacy' a sticking point for some

New Hampshire Sunday News

Gov. Chris Sununu, state lawmakers and others supporting a constitutional amendment to protect victims' rights gather in January 2018. (Dave Solomon/Union Leader)

There are seven states that specifically protect the privacy rights of crime victims in their constitutions.

Supporters of Marsy's Law want to make New Hampshire the eighth.

CACR 22, which affords crime victims constitutional rights, has broad bipartisan support, including from Gov. Chris Sununu. The lengthy amendment begins: "A victim of a crime shall have the following rights which shall be protected in a manner no less vigorous than the rights afforded to the accused: to be treated with fairness and respect for the victim's safety, dignity, and privacy...."

Some states have found the "privacy" piece has been problematic.

In South Dakota, which passed Marsy's Law in 2016, voters will decide later this year whether to amend the Constitution again to clarify that a victim has to invoke the right to privacy in order to prevent the disclosure of records, confidential or privileged information. The new version also asserts the right of law enforcement to share information with the public for the purpose of solving a crime.

Albert "Buzz" Scherr, a professor at the University of New Hampshire School of Law, said including the word "privacy" in New Hampshire's amendment would create numerous complications. "It's problematic primarily because it would be the only mention of the word privacy in the New Hampshire Constitution," Scherr said. The term is too broad, he said.

He said New Hampshire courts have long recognized a victim's right to privacy. And the state already has a victim bill of rights in its statutes, which gives crime victims "the right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process."

Scherr and Justice Carol Ann Conboy, who recently retired from the New Hampshire Supreme Court, have proposed a simpler constitutional amendment. It begins: "A victim of crime has the right to be treated with fairness and respect for the victim's safety and dignity..." It would give victims the right to fair notice of court hearings and the right to be heard at such proceedings.

Michael Moore is a county prosecutor in South Dakota, where voters will decide later this year whether to pass changes to Marsy's Law. He contends the most important part of the Constitutional amendment is its privacy protection for crime victims.

"They did not choose to be part of the system," he said. "The defendant chose to be part of the system; he committed a crime. The victim didn't."

Moore said he thinks states with Marsy's Law will actually see more crimes being reported "because victims feel they do have some rights and they do have privacy."

But Scherr contends that a constitutional amendment is "a cumbersome way to fix problems."

If there's a problem with a law, he said, legislators can fix it in the next session. But he said, "If unintended consequences develop or real problems develop, it's really hard to fix it when it's already in the constitution," Scherr said.

That's why in South Dakota, the new version of Marsy's Law would authorize the Legislature "to enact substantive and procedural laws to further define, implement, preserve, and protect the rights guaranteed to victims."

Instead of the lengthy amendment proposed in CACR 22, Scherr said he and Conboy would rather see a brief statement giving victims constitutional rights, and leaving it up to the courts to balance those rights as they always have.

The Constitution is "a cherished document," Scherr said. "We want to be thoughtful about what we do and we want to put things in there ... that are not fixable any other way."

Amanda Grady Sexton is director of public affairs for the New Hampshire Coalition Against Domestic and Sexual Violence; she's also state director for the Marsy's Law campaign here.

She said New Hampshire's version of the Constitutional amendment does not have the problematic language about disclosure of records. And while it's longer than some measures adopted elsewhere, she said, "We have seen (in) states that chose short declarative statements that it left too much up to interpretation in the courts."

"What we have done is use best practice and the culmination of 35 years of documented case law that shows us how descriptive you need to be," she said.