This opinion piece reflects the point of view of the writer. Cameren Boatner is a reporting intern for the Student Press Law Center.
Students have a right to know when a crime occurs in their backyard – especially when the crime is sexual violence. But a law intended to protect victims is leaving the public in the dark.
In April 2019, I was a student journalist at Florida Atlantic University’s student-run newspaper, the University Press, when my editor at the time requested records for all sexual assault, harrassment and rape cases reported to FAU’s police department since 2017. An FAU football player had been accused of, but not charged with, sexual assault and it was our job to inform our campus about the individual allegations and provide context about allegations of sexual assault at our school.
But it took until November to get all of those records — seven months of waiting and pushing for access to what should be public information. Three months after the issue about the allegations against that football player, which was my first issue as editor in chief of the UP, came out. The police department’s reasoning for withholding the records for so long? They had to get the victims’ permission to release the records because of Marsy’s Law.
I regret not writing this story as a student. I wish I had told our readers the information the school kept from them for seven months.
The only reason we were able to run the story about the individual rape case by August was because our reporters were in contact with the accuser and she was on board with police releasing the records. But this left FAU students in the dark about the full extent of sexual violence happening on their campus. And mine can’t be the only college this is happening at.
Marsy’s Law is a victim’s rights law that is intended to notify crime victims when important developments in their case occur. This sounds great, and I don’t dispute the importance of keeping victims informed. But in states like Florida, overly vague privacy amendments have allowed the law to be interpreted too broadly at the expense of transparency, and it needs to be amended.
In Florida, Marsy’s Law gives crime victims the right to prevent their personally identifiable information from being released in public records. But there’s plenty of useful information in these types of records that doesn’t identify an individual, so records holders should be redacting identifiers like the victim’s name and address and releasing the rest. Instead, FAU withheld the whole record until they could reach the victims. In some cases, police agencies withhold even the location of the crimes, according to Frank LoMonte, executive director of the Brechner Center for Freedom of Information.
This is because Marsy’s Law is unclear as to what information should be redacted or withheld — and the only way to end the confusion for good is to amend the law to lay out exactly what it means.
“You can’t read any law in an absurd way that defeats the purpose,” LoMonte said, “If it’s going to be about making people safer from crimes, you don’t do that by keeping those crimes a secret. I can’t believe I have to say that.”
Marsy’s Law should be amended in states like Florida to clarify the privacy language. While I do think victim privacy is important to victims’ safety, the law should lay out for record keepers exactly what information must be redacted or withheld, and the timeframe in which you have to reach the victim before they are required to send the record redacted.
While I was eventually able to put together a cohesive issue, withholding those records for seven months hurt the story and my community’s right to know about a matter of public safety. If I was able to report all of those crimes when the August issue came out, students would’ve seen the full scope of sexual violence at FAU, not just one case. But I couldn’t wait on those records to publish the story because it was important that the issue come out before the beginning of the football season.
Because FAUPD and other police agencies interpret Marsy’s Law too broadly, student journalists can’t do their job to the extent their university communities need. If this is happening to you, publicize it. If you don’t, there’s no way the law is going to get any clearer.
The history of Marsy’s Law
Marsy’s Law was created in honor of Marsalee Ann Nicholas, a University of Santa Barbara student who was stalked and killed by her ex-boyfriend in 1983. The ex-boyfriend was released on bail without the Nicholas family’s knowledge, and he confronted Marsy’s mother just a week after her funeral.
Marsy’s Law was first passed in California in 2008 to make sure something like this never happens again — which I can totally get behind, and I think most people would as well. Here are some things Marsy’s Law requires, according to the Marsy’s Law For All website:
- To be treated with dignity and respect throughout criminal justice proceedings
- To be notified of his, her or their rights as a victim of crime
- To be notified of specific public proceedings throughout the criminal justice process and to be present and heard during those proceedings
In seven of the 14 states that have passed (or are voting on) Marsy’s Law, language about victim privacy was added to those drafts. I remember speaking with FAU’s public records custodian over the phone while I was waiting on the records, and even she said this part of the law was too vague. She told me that’s why the school was being so careful about releasing the information.
“Marsy’s Law really began its life as a victim notification law, which I think nobody would find controversial,” LoMonte said. “In fact, that’s the law in most states already. Privacy was just a throw in, and the Florida version happens to be an especially broad version.”
In a video on Marsy’s Law For All, the initiative’s website, Judge Paul Cassell said the law shouldn’t affect records becoming public.
“The only thing a victim can keep out of the public record is, perhaps in some circumstances, their name or their locating information such as their home address,” Cassell said. “Other than that, the records involving the crime and involving the case are generally available as they would’ve been before Marsy’s Law, and so the idea that somehow Marsy’s Law is somehow going to make it hard for people to learn about our criminal justice system simply isn’t true.”
He also said the media can largely cover the criminal proceedings, just the victim’s locating information and other “narrow” information is redacted. But this is just national guidance. When states get their hands on drafts of this law, things become much less clear-cut.
If it’s going to be about making people safer from crimes, you don’t do that by keeping those crimes a secret.
“That’s ideally how this law is supposed to work,” SPLC Senior Legal Counsel Mike Hiestand said. “There’s an attempt made to make the victims anonymous, but once they put their black magic marker on the paper, that’s when the records need to be released. Again, you’d still be missing out on some information, but you’d have the basic information. I think this judge is on to something, I think we need to get the clarity these record keepers need.”
SPLC reached out to multiple state Marsy’s Law organizations for comment, but they haven’t haven’t responded.
What other states have the privacy provision in Marsy’s Law?
Hiestand said that as more states add versions of Marsy’s Law to their constitutions, he hopes they’ll work to fix the “logistical and practical kinks,” that some states are already having. Here’s what Marsy’s Law looks like across the U.S.:
Wisconsin: “To have information or records protected that could be used to locate or harass the victim or that could disclose confidential or privileged information of the victim.” The amendment is on the ballot for an April 7, 2020 vote.
South Dakota: “The right, upon request, to prevent the disclosure to the public … of information or 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.”
North Dakota: “The right to prevent the disclosure of information or 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.”
California: “To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.”
Nevada: “To prevent the disclosure of confidential information or records to the defendant which could be used to locate or harass the victim or the victim’s family.”
Montana (overturned): to prevent the disclosure of information that could be used to locate or harass the victim or that contains confidential or privileged information about the victim
What can student journalists do about it?
“I don’t know if there’s any sort of magical fix when you’re dealing with reluctant record keepers who aren’t sure what the law says,” Hiestand said. He and LoMonte both recommended reporters write about their experience and tell their audience every time they’re denied a record on the basis of Marsy’s Law. There’s no way your state legislature will amend the law if they don’t see it as a widespread problem.
There’s certainly some police agencies that know this information isn’t covered by Marsy’s Law and they’re just taking advantage of it to withhold information that they’ve always wanted to withhold anyway
Hiestand said adding some clarity to the law would benefit both journalists and the agencies that keep the records.
“It would be giving some of that power back to the record keepers to allow them to redact the information instead of having to go to the victims,” Hiestand said.
I understand that these agencies don’t always have bad intentions — FAU was just trying to make sure no victim was harmed by releasing those records. But LoMonte said there are some police agencies that manipulate the law on purpose.
“There’s certainly some police agencies that know this information isn’t covered by Marsy’s Law and they’re just taking advantage of it to withhold information that they’ve always wanted to withhold anyway,” LoMonte said.
Another way to get the information you need is to keep a record of the police agencies across the state that are interpreting Marsy’s Law correctly.
“Because this is a state law and every agency should be interpreting it the same way, you have to show your police agency that they’re out of step with the rest of the state,” LoMonte said. “That’s going to be a good way to persuade them.”
I regret not writing this story as a student. I wish I had told our readers the information the school kept from them for seven months. That’s why I urge you to write about it if this is happening at your school.
Follow Cameren Boatner on Twitter @camerenboatner.
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