Marsy's Law leaving 'unintended consequences' on public information
Err on the side of caution.
That's the message from Mitchell City Attorney Justin Johnson to local police as departments around the state struggle to interpret a clause in the newly passed Constitutional Amendment S, also known as Marsy's Law, that prevents law enforcement from disclosing victim information in certain circumstances.
"There are parts about it that I don't have issue with, but I think there are too many unintended consequences that go along with it," Johnson said.
South Dakota voters approved Amendment S on Election Day by a margin of 59.57- 40.43 percent, and Marsy's Law took effect last week.
The law provides constitutional rights to victims of all crimes, including the right to provide a statement about the impact the crime has had on the victim, the ability to converse with prosecutors, notification of an accused person's release or escape and notification of their new rights, among several others.
But a right to prevent the disclosure of information has some law enforcement agencies holding back information, like names of people involved in vehicle crashes, that was readily available to the public before the election.
"(Victims have) the right to prevent the disclosure of information of records that could be used to locate or harass the victim or the victim's family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records," the amendment says.
Johnson said the definition of "confidential or privileged information" is unclear and could include a person's name or even a description of his or her vehicle.
"Basically, we can't proceed with disclosing any information or records that can be used to locate or harass the victim," Johnson said. "We're erring on the side of caution and saying we can't disclose that until the victim agrees to have that information disclosed."
But the law could have a bigger impact on more serious crimes, like a bank robbery, Johnson said, as a bank could refuse to let police release its name, which could limit the effectiveness of an investigation.
The state Department of Public Safety has stopped providing accident reports online, but amendment sponsor Jason Glodt said the state is still releasing reports and has only shut down the automated system. Glodt, of Pierre-based GSG Strategies, said he expects to resume running in the "very near future."
As for identifying information, Glodt doesn't believe vehicle description, or even names in many cases, should fall under the non-disclosure category. Instead, Glodt said the victims' addresses should not be released.
"It's just a matter of not including addresses in future accident reports or personal information that would help offenders locate victims," Glodt said. "That's a very simple solution and shouldn't be an issue at all."
'A million responses'
However, Glodt said information that qualifies for non-disclosure should be determined on a case-by-case basis.
Glodt offered the example of a rape victim in a small town who was identified by the media as a 15-year-old girl. As the only 15-year-old girl in the rural town, she was immediately identified and was harassed until she attempted suicide, Glodt said. With Marsy's law in place, the girl could tell law enforcement not to disclose her age or any other identifying information.
Vehicle crash victims could also keep their names private if they can prove the release of their name or information is necessary to prevent offenders from locating or harassing them, Glodt said, but he has not found a single incident in other states where that has happened.
So far, law enforcement offices throughout the state have expressed concern about the new law. Yvonne Taylor, executive director of the South Dakota Municipal League, under which the South Dakota Police Chiefs' Association is an affiliate, said law enforcement agencies and city attorneys across the state are unsure how to respond to the law, and many are using extra caution.
"I think everybody will err on the side of caution until they're sure that they're on firm ground," Taylor said.
According to Taylor, not everyone believes the new law is best for victims, as extra work associated with minor offenses could distract from victims of serious crimes who need more attention.
"I think the concern probably is that it's going to, in the end, maybe even end up being worse for victims because it clogs up the system a bit with minor crimes, probably at the expense of the resources that were already being used to deal with the more serious crimes," Taylor said. "It spreads already-too-thin resources even thinner, and perhaps not to the best use on behalf of the victims."
And the changes could be particularly hard on the state's smallest departments that don't have the funding to hire more help.
"I guess (they'll do) just the same thing they've done with everything else that's come down the pipe. They manage to handle it somehow," Taylor said. "But at what point does stretching mean breaking? I don't know."
Davison County State's Attorney Jim Miskimins said he has met with Mitchell police, the Davison County Sheriff's Office and Johnson to discuss the amendment, but until the state Attorney General's Office or the South Dakota Supreme Court make a clarification about the law, enforcement may be inconsistent from agency to agency.
"You've got a million different law enforcement agencies in the state. You're going to have a million responses on how to initially try to comply with Marsy's Law," Miskimins said.
Attorney General Marty Jackley has authorized the creation of 100,000 victim-notification cards, and he said the use of the state's newly implemented Statewide Automated Notification System will be expanded. But Sara Rabern, spokesperson for Jackley's office, said each agency has its own policies and no explanation has been issued by the Attorney General's Office.
Another point of confusion within Amendment S is the way the law defines a victim, Miskimins said. According to the amendment, a victim is any person who suffers physical, psychological or financial harm as a result of a crime. The definition also includes the victim's spouse, parent, grandparent, child, sibling, grandchild or guardian.
While it's difficult to predict how Marsy's Law will affect future cases, Miskimins said this definition could affect Amber Alert investigations — in which a child is kidnapped — if the child is taken by a non-custodial parent. Since the child's grandparents could be considered victims, they may be able to hide information from law enforcement, violating the best interests of the child.
"It's the law of the land, and we always have and will continue to do the best we can in our office for victims," Miskimins said. "It is difficult to predict every scenario that might arise where Marsy's Law is going to have an impact. It's a complex piece of law. We're going to do our best, but it will certainly be a challenge."
Johnson said local officials are trying to work with victims to see if they'll waive the non-disclosure right. If they don't, authorities are developing a system to redact information from records, but Johnson said the new rules will bog down the process.
Glodt said similar laws have been passed in almost every other state, and they have not burdened the court system or resulted in significant cost increases. Glodt attributed this to most victims of minor crimes typically deciding against taking advantage of the rights guaranteed by the law.
"What other states have seen is it's extremely rare that victims of minor crimes or misdemeanors invoke their rights. It gets a lot of attention, but the reality is we're not going to overburden the system by spending time and resources on victims of minor crimes," Glodt said.
South Dakota already had victims' rights in place in its statutory laws, which guaranteed victims of violent crimes, some simple assault cases, stalking and intoxicated driving crashes rights to most of the provisions in Marsy's Law, except the guarantee to receive a card with a listing of rights, the right to confer with the prosecuting attorney and the non-disclosure rights.
Marsy's Law also does not explicitly provide rights for victims to be prepared as a witness for trial or to provide input if a sex offender is to be removed from the state registry, which are provided in the statute. But Glodt said these were generally covered in the new amendment, and the amendment was necessary because constitutional rights are more impactful than statutory ones.
"That's something that the Department of Justice has said consistently through the years, too, that state efforts short of constitutional rights of victims have fallen short because those statutory rights are too often unenforceable, not taken seriously and easily overlooked," Glodt said. "They're often treated as mere guidelines."
While Johnson said the law has unintended consequences and has urged police to be more cautious with victim information, Glodt doesn't believe the law will ultimately reduce transparency in the process at all.
"There will be some growing pains, as with any new law, but I think they're minor," Glodt said. "I think we all can agree that information that can be used to locate people when they don't want the offender to know who or where they are because they fear for their life is something we should all be concerned about."