Balancing the scales of justice: Clark woman advocating for victim’s rights with Marsy’s Law
Published 8:16 am Saturday, July 15, 2017
A serious crime occurs in Kentucky approximately every two minutes. Those accused of these crimes have more than 20 individual rights spelled out in the U.S. Constitution. The victims of these crimes have no constitutional rights. A proposed law seeks to change that.
The morning of Sept. 21, 2016, Latoya Rawlings’ life took a turn down a path she said she could have never fathomed. It was a path of trauma and hurt, but one that ultimately gave her a voice to advocate for others in her situation.
While at home with her then 3-year-old son, the 31-year-old Rawlings was allegedly raped and assaulted by an acquaintance.
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“He came into my home that morning,” Rawlings said. “He was wanting me to have sex with him that morning, but I wasn’t trying to. He said he was going to come back.”
Rawlings alleges her assailant returned that evening and became violent.
“He came to my son’s room and he grabbed my baby by the neck and said he would snap his neck if he didn’t stop crying. My son was screaming, ‘Help me! Help me! Let me go!’”
Rawlings said he then grabbed her by the throat, slammed her against a wall and threatened her life.
“He said he wanted $100 to go to Ohio,” she said. “All this went on for about an hour. I told him to just give me my things and we would go to the bank to get the $100 out. I wanted him to leave me and my son alone.”
The suspect kept Rawlings’ son in his hands throughout the ordeal, she said. He took a knife from the dishwasher and threatened them with it. He removed the battery from her phone, to avoid being tracked with the GPS unit on the device, Rawlings said.
“He led us out the back door, put my son in the back seat,” she said. “He drove us to the Central Bank ATM machine on Maple Street and told me to withdraw $150. I told him I didn’t have that much and he let me give him $100.
“He said he wanted to take us to Ohio with him because he didn’t trust me. I begged him to leave us here, though.”
In an attempt to calm the situation, Rawlings told the suspect to go in the house and have something to eat and drink.
“He was drinking some cranberry juice, and then looked at me and said, ‘You know what I want,’” she said. “He put my son in his room and took me to my room and had sex with me.”
Rawlings said her mother took her to the Winchester Police Department to file a report, and detectives obtained a warrant for the suspect, who Rawlings alleges was 35-year-old Darvin Johnson of Akron.
Johnson was arrested in March on the warrant and charged with kidnapping, first-degree robbery and first-degree rape.
He was indicted by the Clark County grand jury in June for first-degree rape, first-degree unlawful imprisonment, terroristic threatening, second-degree robbery and first-degree persistent felony offender. He is scheduled to appear in Clark Circuit Court again Aug. 17.
Rawlings’ account of events was documented in detail in police and court records, but Johnson remains innocent until proven guilty.
This story is about what happens next for victims of alleged crimes.
Feelings of re-victimization
It was after the incident Rawlings said she feels she was re-victimized by the criminal justice system.
“After this happened, I contacted the county attorney’s office several times to get more information,” she said. “I never got a returned call. I went to the office to try to discuss the case and he was supposed to call me back. He still hasn’t.”
Rawlings said she was interested in following along with the case, but had to do her own research in order to stay informed about the proceedings.
“I had to use the jail website to check to see if he was still in there, to find out a court date and then had to call the Commonwealth Attorney’s office to get a time for the court hearing,” she said.
Clark County Attorney Brian Thomas said Detective Tom Beall of the Winchester Police Department notified his office of the complaint against Johnson.
“Detective Beall created that complaint on Sept. 28, 2016, two days after the incident took place,” Thomas said. “The complaint detailed the entire incident and became effective on Sept. 28 until it was issued in March, when he was arrested.”
Once warrants are served, cases are given numbers and information regarding court dates is sent to the complainant, Thomas said.
Since Beall was the complainant in the case, he was the one notified of court dates and other information. Thomas said Rawlings name wasn’t listed on the jacket of information on the complaint.
Since the detective in this case was the person he needed to testify, Thomas said, Beall was notified of the court date. Although Rawlings was never notified by his office of the court date, Thomas said he wouldn’t have requested her to be in court during Johnson’s hearing.
Recounting the incident
Rawlings was, however, present for Johnson’s May 3 preliminary hearing in Clark District Court,.
“The county attorney was there, and they had Mr. Johnson in the courtroom,” she recalled. “The detective on the case was Detective Tom Beall. He wasn’t there, though. They had another detective just read from the paperwork. He didn’t know anything about my case. He couldn’t tell you the emotions I was facing when this all happened.”
After the detective’s testimony, Rawlings was asked to testify herself by Johnson’s defense attorney, something she was not prepared for.
“I had no clue I was even going to be testifying that day,” she said. “I was very angry, and, mentally, I was not prepared. In my state of mind, anything could have happened to me that day. I felt like I was going through it all over again. I was violated once by him, felt violated again when I had to do the rape kit and then, here I was being violated by the criminal justice system, because it had not been any help to me whatsoever. I felt like I was having to build my own case.”
Thomas said from his perspective, Rawlings’ testimony wasn’t necessary at this level, so he wouldn’t have called her to be in court that day.
“We also wouldn’t want to subject her to cross-examination because of the traumatic circumstances,” he said. “She was kidnapped and raped. The less times you have to get on the stand and talk about it to a room full of people, the better. From a prosecutorial perspective, her testimony wasn’t needed and from the other perspective, having her called up wasn’t good for her wellbeing.
“The suspect kept arguing that the reason they had sex was because it was consensual. She was called as a witness at that point by the defense attorney because she was in the courtroom. We typically advise sexual assault victims that, if they’re in the room, they can be called to testify.”
Thomas said, since felonies can’t be tried in district court, his office is charged with establishing probable cause to send the case to the grand jury. If the grand jury issues a felony indictment, the case moves to circuit court and prosecution is handled by the Commonwealth Attorney’s office.
“In these cases, the standard for probable cause is very low,” he said. “All that needs to be established is that a crime was committed and a certain individual committed that crime. We’re not seeking a conviction at this stage, we just need the information to send it to the grand jury, which is the proper avenue for these cases to be seen.”
Thomas said the standard for establishing probable cause is so low, in fact, the actual complainant doesn’t have to be the one to testify. Anyone could take an oath and read an officer’s complaint and the information could be used to send the case to the grand jury, he said.
Thomas said he believes his office did everything it is charged with in this case.
“We took the case, we evaluated it, talked with the detective who gave us the information we need,” he said. “We decided to have the officer testify, the defense attorney noted she was in court and because the officer’s testimony was different than Mr. Johnson’s, they decided to call her up.”
Supporting victim’s rights
It was this experience that prompted Rawlings to issue a letter to media organizations supporting Marsy’s Law for Kentucky. The complete letter can be found on page A4.
“I felt that I should have been notified of the court dates and whether I needed to be there or not,” she said. “If I was supposed to testify, I should have been prepared for that and known what to expect. Give me some fair warning.”
In the letter, she said she was left in the dark after the warrant was issued for Johnson’s arrest.
“First I was a victim of my perpetrator, now I am a victim of what appeared to be an unfriendly and imbalanced criminal justice system, with no one on my side,” she wrote. “That is why I support Marsy’s Law for Kentucky. Marsy’s law will aid in balancing the system by securing constitutional-level rights for victims, which already exist for the accused and convicted.”
Marsy’s Law for Kentucky is a campaign seeking to amend the state constitution to offer rights and protections to crime victims.
According to Marsy’s Law for Kentucky, the state is one of 15 that does not provide constitutional protections for crime victims.
“The accused and convicted have more than 70 constitutional protections,” Ashlea Christiansen, state director/counsel for Marsy’s Law of Kentucky, said. “Victims only have statutory protection. This creates an imbalance of justice. We want to tip those scales.”
Christiansen said by implementing Marsy’s Law into the Kentucky Constitution, crime victims would have an equivalent level of legal protection as those who are accused and convicted.
Marsy’s Law is named for Marsalee (Marsy) Nicholas, the sister of Dr. Henry T. Nicholas, the key backer and proponent of Marsy’s Law.
Marsy was a University of California Santa Barbara student who was stalked and killed by her ex-boyfriend in 1983.
Only a week after Marsy was murdered, Henry Nicholas and his mother were confronted by the accused killer at a grocery store after visiting Marsy’s grave. The family did not know he had been released on bail.
“The pain and suffering Marsy’s family endured after her death is typical for family members of murder victims,” according to Marsy’s Law for All, the nationwide campaign. “They were not informed Marsy’s murderer had been released because the courts and law enforcement, though well-meaning, had no obligation to keep them informed. While criminals have more than 20 individual rights spelled out in the U.S. Constitution, the surviving family members of murder victims have none.”
Marsy’s Law for Kentucky proposes a new section be added to the Constitution of Kentucky granting rights and protections to crime victims.
Versions of Marsy’s Law have already been passed in California, Illinois, North Dakota, South Dakota and Montana.
In Kentucky, the law is set to be considered by the legislature for the third consecutive session.
“Things are looking promising,” Christiansen said. “The first session it came to Kentucky in October with a session set to begin in January. We knew that was kind of late in the game. Surprisingly, it made it through the Senate and House committees it was assigned to, but it never made it to the floor for a vote in the House.”
During the most recent session, leadership in both the House of Representatives and Senate decided not to deal with constitutional amendments until the next session.
“They will revisit it in the 2018 session,” Christiansen said. “Leadership in both chambers say it’s in a good place to pass.”
For constitutional amendments to pass in Kentucky, they must pass the legislature and then go to a ballot for ratification by voters.
“Our hope is it will be on the ballot in November 2018 and the majority of Kentuckians will vote to approve it,” Christiansen said.
The question to be posed to voters will read, “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect and the right to be informed and to have a voice in the judicial process?”
Victims added every day
Reports from both state and federal law enforcement indicate violent crimes are a common occurrence.
According to recently released statistics from the FBI, Kentucky experienced 9,676 violent crimes in 2015, including 209 murders and non-negligent manslaughters; 1,492 rapes; 3,307 robberies and 4,668 aggravated assaults.
The Kentucky State Police Crime in Kentucky 2015 report indicates a serious crime occurs in Kentucky approximately every two minutes. Homicide offenses are committed every 24 hours, forcible sex offenses are committed every two hours, an assault is committed every 12 minutes, kidnapping and abduction offenses are committed every nine hours.
In Clark County, a crime is committed approximately every three hours, according to the report.
The report also found Winchester had 418 assaults, two homicides, six kidnapping/abductions and 30 forcible sex offenses in 2015.
In Kentucky, victims of these crimes have statutory rights throughout the criminal justice process, which are outlined in the Kentucky Crime Victim Bill of Rights.
This Bill of Rights outlines the prosecutor’s, defense attorney’s and attorney general’s role in the proceedings, including providing information about protective, emergency and medical services; obtaining assistance from a victim advocate; notification of when a person has been released from a detention or psychiatric facility; conditions of the accused’s bond and release; trial date and verdict; and changes in custody, among others.
Christiansen said the already standing Bill of Rights and Marsy’s Law bear significant similarities, but by making these laws part of the state constitution, it elevates them.
“Right now, if a victim’s rights are violated, the best that could happen would be an apology,” she said. “Under Marsy’s law, a remedy would be fashioned. The court would look at it, determine if the rights had been violated and a judge would determine if a remedy needs to be fashioned. For example, if a victim was not notified of a bail hearing, the judge might order for the hearing to be redone so the victim can be present.
“We don’t expect that to change the outcome, but the whole point of Marsy’s Law is for the victims to be heard.”
A voice for victims
Having a voice, Christiansen, is an integral part of a crime victim’s healing.
“I think it’s common sense, but just from my own experience as a sex abuse therapist and having been an attorney for victims throughout my career, what I hear time and time again is that when those who suffer the wrongs of others feel heard and respected by the system, they can heal and move forward.”
Additionally, Marsy’s Law sets standards of practice in dealing with victim’s of crime.
“Re-victimization at the hands of the system does happen,” Christiansen said. “I don’t think it’s intentional. I don’t think our system ever sets out to revictimize, but it happens. Latoya’s case is a great example. She was called to testify unexpectedly with no preparation. When someone has been through trauma, that could send them in a downward spiral.
“Technically, by law right now, victims should be notified of court hearing, but there’s no statute about who that should be.”
For Rawlings, having a voice is precisely why she is advocating for Marsy’s Law.
“If Marsy’s Law was in place, victims would have a part in the justice system,” Rawlings said. “We would know what was going on for us. We wouldn’t feel left out and living with so many unanswered questions.
“We, the victims, need a source that we can use to follow this process ourselves. We need to know that there is something out there working on our behalf.”