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Crime victims’ right to privacy in sexual crimes Comparative analysis between Europe and U.S.A

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We thank Keiron – la Casa dei Penalisti for this article.

Contribution of Chiara Biglieri

Over the years, crime victims’ rights field has grown in importance. As such, many governments have introduced more instruments available to crime victims in order to equalize the parties’ positions during the pre-trial, trial and post-trial phases. First of all, we will need three definitions. A victim is a person harmed (or potentially harmed) by a criminal act. This implies that the legally defined category of “victim” is circumscribed by what acts are considered as a crime. Through this definitional method, the crime victims’ category is constantly evolving. As regards the definition of sexual crimes, a number of different offenses fall into the sexual crimes’ category. Generally speaking, they involve illegal or coerced sexual conduct against another individual. Last, the right to privacy consists in protecting personal information from public scrutiny.

The Treaty on the Functioning of the European Union (TFEU) considers crime victims’ rights as a topic where the European Parliament and the Council can issue directives of minimum harmonization. However, European bodies’ interest on victims’ protection dates much earlier: the first European legislative act on the subject was drafted back to the beginning of the 1980s. This interest can be actually found in the activities of supranational organizations – both universal, such as the UN, and regional, such as the Council of Europe and the European Union – which have carried out and still continue to play an important role of solicitation towards national legislators, for centuries uninterested in crime victims.
What is the rationale that justifies this European harmonization? As for the more general reasons of a political-criminal nature, it is the need to strengthen and harmonize the tools for protecting victims in European countries. This is extremely urgent because of the constant increase of the number of crime victims in the European area – often coming from countries other than the one where the crime was committed – as a natural consequence of the removal of internal borders and the creation of a unique space where European citizens can move freely. As for more specific legal basis of harmonizer interventions on victims’ protection, they must be identified in the principles of free movement of people and equality of citizens of the European Union. Indeed, the absence of minimum standards can lead to a violation of these fundamental principles. On the 15th of March 2001 the European Union Framework Decision on the standing of victims in criminal proceedings was adopted. For the first time, a “hard-law instrument” concerning victims of crime was available at a supranational level. Thus, these codified rules concerning the legal position of victims are binding in the domestic legal system of the member states.

The American system also has a long history in trying to involve victims more in criminal proceedings. Indeed, during the colonial and revolutionary periods, the United States criminal justice system was focused on victims, who were able to investigate and prosecute crimes as well. This interest was lost between roughly 1900 and 1970s: the criminal procedure law was based on the idea that the one who is harmed by a crime is the state, rather than a single person. The modern Crime Victims’ right movement began more than 40 years ago: the legal impetus for this movement can be found in the 1973 U.S. Supreme Court decision in Linda R.S. v Richard D., 410 U.S. 614. The Supreme Court’s narrow holding was that a crime victim cannot compel a criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another”. The Supreme Court suggested a remedy for this saying that “Congress could enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute”. From this case on, the modern Crime Victims’ Rights Movement has aimed to improve the role victims can have in criminal proceedings. Nowadays, thirty-three states have amended their constitutions to include crime victims’ rights and the remaining have passed specific legislations on the topic.
In relation to federal level, the first legislative act was the Victim and Witness Protection Act in 1982, followed by other laws which have been helping in giving recognition to the rights of crime victims. The landmark was definitely the Crime Victims’ Rights Act (2004) which granted eight specific rights. However, judicial cases have been a main resource in developing crime victims’ rights as well. An example can be found in Payne v. Tennessee, 510 U.S. 808 (1991), where the U.S. Supreme Court explicitly recognized crime victims as nameless non-players in criminal justice system and praised the Victims’ rights Movement as the possibility to give a public sense of justice to those people. 

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Regarding the right to privacy, in Europe, it is considered as a fundamental right and it is protected by two main sources: the original European Convention on Human Rights and Directive 95/46/EC. This right has been considered in order to be granted to crime victims’ right thanks to Directive 2012/29/UE. The article of main concern is 21, which requires member states to ensure that competent authorities may take appropriate measures to protect crime victims’ privacy and that they may take all the lawful measures that may lead to the identification of a child victim. Furthermore, this article states that member states should also encourage the media to take self-regulatory measures with the aim of privacy’s protection. Criminal trial’s publicity could cause many difficulties in protecting the private lives of the offended person. For this reason, the competent authorities can adopt the necessary measures to guarantee the victims’ private lives with reference to the personal data, image and information that allow its identification, particularly when the victim is a minor. In addition, this directive requires media to adopt a code of ethics in this regard.
Focusing on Italy, the Directive was implemented by a legislative act n. 212/2015, which amended eight articles of the Criminal Procedure code (art. 90, 134, 190-bis, 351, 362, 392, 398 and 498), coined four new articles (art. 90-bis, 90-ter, 90-quater, 143-bis) and two implementing provisions (art. 107-ter and 108-ter of the provisions of the Code of Criminal Procedure). According to the Government’s report, the ‘lean’ nature of this act is explained by the fact that many of the provisions of the Directive were already present in the Italian legal system, which, therefore, would appear to substantially comply with the provisions of the European Union. As regards the precautionary microsystem, certainly a step forward has been reached with the introduction of art.282 bis and 282 ter, useful tools for protecting victims of sexual crimes. Article 282-ter is clearly aimed at widening the protection space of the victim of violent and persecutory acts in the face of possible situations of contact with the aggressor, creating a protective screen around the “weak party”. Through art. 282-bis of the Code of Criminal Procedure, in a context characterized by the cohabitation between the victim and the abusing person, the central core of caution consists in imposing the suspect to leave the family house, which corresponds, albeit indirectly, to a prohibition of approach. Both these tools must be accompanied by essential prescriptions in order to reconcile the need for safety and protection of the victim with those of the suspect.
In relation to hearing procedures, at European level, the problem consisted in the conditions in which the victims can be heard during the actual trial phase. Testifying in criminal proceedings about facts and circumstances related to the intimacy of the person and connected to the violence suffered is always a difficult and psychologically heavy and traumatic experience. This is especially true if the person called to testify is a particularly vulnerable person exposed to influences and external conditioning more than others.
In these cases, the adoption of special “protected” methods of taking evidence as to place, environment, time and concrete ways of proceeding with the examination, not only does not conflict with the proceeding’s needs, but it also contributes to ensure the authenticity of the proof itself.

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Regarding the U.S. system, this right is not explicitly stated in the U.S. Constitution, but some amendments and statutory laws provide some protections’ tools. Concerning this right in relation to crime victims, the Crime Victims’ Rights Act states that “a crime victim has the following right: the right to be treated with fairness and with respect for the victim’s dignity and privacy.” Indeed, privacy is a primary concern for victims because of fear of harassment or retaliation from offenders who may learn their names or addresses. This protection is realized through different methods. First of all, victims’ identities are protected through: 1) prohibition against compelling testimony relating to personal information in open court; 2) exclusion or limited disclosure of victims’ identifying information in criminal justice records; 3) protection from release of addresses and phone numbers provided for notice purposes.

Another example in other trial’s phases regards some additional limits in order to minimize contacts between defendant and victim, regarding defendant’s examination of a victim’s physical property or his ability to conduct a psychological or physical examination of the victim. All those measures help victims to feel safer and more protected because they reduce the opportunities to see again their tormentor.

Another tool is the victim/counsellor privilege. These laws enable counsellors to maintain the confidentiality of information given to them by the victims, even if they are called to the stand as witnesses. Many laws also give an additional and broader protection to counsellors’ written records (such as memoranda or working papers). These privilege laws are limited to specific kinds of victims, those who have been subjected to sexual assault, domestic violence, stalking or human trafficking. Another important tool consists of the possibility to access to “Address Confidentiality Programs” where victims of sexual crimes can substitute an alternative address in place of their actual one in order to keep their whereabouts private. All the victim’s first-class mail is routed to the substitute address and then forwarded to the actual address. Thirty-six states have promoted these programs with specific laws which differ from state to state. Most states require that the victim (or a parent if the victim is a minor) has recently relocated to an address unknown to the perpetrator. All these programs work effectively only in conjunction with other safety strategies.

As it is evident, these two systems are very different. The European approach consists in a series of abstract guidelines which can be transposed by member states in different ways. Both systems offer different ways to protect crime victims’ right to privacy in sexual crimes. Indeed, those crimes are considerable as the most impressive on victims’ minds and the most likely to lead the victim to a secondary victimization’s feeling if they are not dealt with in a proper way. The main difference lays in how the protection takes place and works.
As regards the Italian crime victims’ right to privacy, it is easily said that the European Directive’s transposition wasn’t complete and that plenty of articles should be added in order to fully assure this right to crime victims. One of the most useful improvements that should be done consists in giving to crime victims the possibility to limit information’ disclosure during the criminal proceedings. Italian criminal procedural system requires a signed complaint in order to actually start the whole proceeding, because the defendant needs to know who is charging him and what he is accused of. The reason behind this can be found in the right to a due process, which is one of the main principles of Italian criminal law system. However, the Italian approach offers a processual protection in how the hearing is held. Through this method, the victim will be able to testify in a more friendly zone, not in front of the defendant and supported by phycologists if needed.
According to who is writing this article, a measure that should and can be introduced in the Italian criminal system is the Address Confidentiality Program. Indeed, this tool wouldn’t disrespect the right of due process because the defendant would still be able to know who the other person is but won’t know where he/she is actually living. Also, the victim would feel safer and keener on reporting the crime. A similar tool has already been introduced for “collaboratori di giustizia”, former members of criminal organizations who collaborate with a public prosecutor by delivering information in order to receive shorter sentences.
As regards the American system, a stronger protection is given to crime victims during the actual trial phase. Indeed, the victims can choose not to disclosure their personal information and not to have their personal information kept in judicial reports. Through this mechanism, there are more possibilities to encourage crime victims to report what they are going through because they will feel safer. On the other hand, the American criminal law system lacks another important protective tool which can be found in the “protected” hearing mode which is used in Italy. Through this measure, there could be an improvement in protection during the trial in order to limit physical contacts even more.

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