Defense attorneys argue against victim rights requirement

The Missouri Supreme Court is weighing whether the state can require defense attorneys to give counseling information to the alleged victims of their clients. 

The court on Nov. 2 heard a challenge brought by the Missouri State Public Defender System to the Sexual Assault Survivors’ Bill of Rights. The 2020 law requires law enforcement officers, prosecutors and defense attorneys to notify survivors of their right to consult with someone from a rape crisis center during the interview or have a support person present. The officer or attorney is required to obtain a signed receipt from the survivor.

Public defenders, who represent the bulk of criminal defendants in Missouri, argue that the requirement interferes with their ability to zealously defend their clients. Jeff Esparza, an appellate defender who argued the case, told the court that “sitting here as a defense attorney, it makes me cringe a little bit that I have to walk into a room and give my client’s accuser a warning of that nature.” 

“The defense attorney is one the few people in the system that is dedicated to protecting the rights of the accused, and this statute requires that defense attorney to no longer be dedicated solely to that purpose,” he said.

Courts have enjoined the portion of the law that applies to defense attorneys, but the requirement for law enforcement and prosecutors remains in effect. 

Esparza argued that, while many other states require prosecutors and law enforcement to provide similar information to victims, Missouri would be an “outlier” in putting that responsibility on defense lawyers.

But Deputy Solicitor General Jeff Johnson argued that the legislature had a valid reason to include defense counsel, as they might seek to interview other alleged victims to serve as witnesses, and those people might not have had any contact with prosecutors or law enforcement. 

Johnson stressed that the law doesn’t require attorneys to use specific wording. But as he gave an example of how a proposed recitation of rights might go, Judge Mary R. Russell said “that sounds like compelled speech.” 

“It is speech incidental to the conduct of getting the testimony from the witness,” Johnson replied. But Russell pressed further.

“It’s specific speech that’s required to be given,” she said. “It sounds like compelled speech.”

Esparza also argued that the law appears to apply to more than just victims of sexual assault. Although the statute defines the term “sexual assault survivor,” much of the law’s text simply uses “survivor,” which has a statutory definition that encompasses victims of any crime.

“If someone picks my pocket and takes my credit card and uses it, am I a ‘survivor’ under that definition?” Chief Justice Paul C. Wilson asked. 

Johnson urged the court to read the term in context, arguing that lawmakers had clearly intended it to apply to sexual assault victims. But Judge Patricia Breckenridge said that might require the court to ignore the law’s language.

“Can we interpret it contrary to the plain language because we’re compelled to read it in context?” she said.

Although the arguments centered on the merits of the law, the defenders’ suit relied on a procedural attack on the bill in which the survivors’ bill of rights passed. It originally related to evidentiary collection kits but was expanded during the session to encompass provisions allowing telehealth forensic examinations of sexual assault victims and convening a task force to address victims’ rights. The suit alleges that the changes violated the Missouri Constitution’s requirements that bills stick to their original purpose, have a clear title and relate to a single subject.

The defenders asked the Supreme Court to strike down the bill, either in part or in its entirety. The latter outcome would require the court to revisit several prior cases where it had refused to take such a drastic action. 

Judge Zel M. Fischer repeatedly dissented to those decisions, most recently in 2013’s Missouri Roundtable for Life v. State of Missouri. He has argued that courts should not be in the position of picking and choosing what parts of an improperly passed law remain, and that either the whole law should remain in effect or the whole thing should be struck down.

It’s not clear if the judges who sit on the court today are more sympathetic to that view than prior judges were. Fischer did not ask any questions during the argument. 

The case is Fox et al. v. State of Missouri, SC98909.