Hardly a month goes by, it seems, without another news story about a wrongly convicted inmate being freed as a result of DNA testing. According to the Innocence Project, 266 people have been exonerated in U.S. history. The ordeals of these exonerees are heartbreaking.
But what about the victims in these cases? We have to start thinking about society's responsibilities to them.
Victims commonly react with shock to the news of exoneration. One Texas victim told us she was "confused, angry, and terrified" when she learned the wrong man had been convicted of raping her 20 years ago. "How could this happen?" she asked.
This victim lapsed into a depression, fearing that the wrongly convicted man would kill her, as he had threatened to do when he was tried. "Every day seemed like a struggle just to survive," she said. "Only this time, you have to deal with the guilt that you helped put the wrong man in prison."
Working with such victims creates enormous challenges for prosecutors and advocates. Some victims have moved, married, had children, and never told their loved ones about their victimization. Learning about an exoneration may cause victims to feel unsafe and deeply resentful of the criminal justice system that failed them. Some victims even tell authorities never to contact them again about their case.
Chris Jenkins, an advocate in the Dallas County District Attorney's office, recommends creating a carefully considered protocol for contacting and supporting victims.
District Attorneys' offices must decide when to contact the victim. Should it be when the defendant requests the test? When the state agrees to allow the test? When the test establishes the guilt or innocence of the convicted individual? On the one hand, why alarm the victim about the test request because the test may later confirm the defendant's guilt? But the victim may find out through an automated victim notification system like Victim Information and Notification Everyday (VINE), that the offender has been moved to another location for the test. For that reason, prosecutors and victim advocates may want to consider contacting these victims before they are notified to explain why the offender is being moved.
Prosecutors and advocates must be prepared to answer victims' questions about the law and forensic DNA. Victims usually want to understand the process of DNA testing and what happens after an exoneration occurs. They want to know whether the investigation will be reopened and what are the chances—often after many years—of apprehending and convicting the real offender.
In sexual assault cases where the statute of limitations on prosecuting the crime has been reached, victims must deal with the state's inability to prosecute the real offender, even if the individual is identified and apprehended. The sense of injustice such victims feel can be overwhelming.
When offenders apply for exoneration, victims need to know their options and rights. First, they need to understand they can refuse to be involved with the case. They also need to know their notification rights and what victim services are available after notification and testing.
Throughout the testing process, authorities must strive to protect victims' privacy. In one Dallas case described by Chris Jenkins, the police needed a DNA sample from a victim, but the victim did not want her family or her employer to know about the case. So a detective flew to the city where the victim lived and met her at the security office of her local airport. The District Attorney's office obtained what was needed, while still protecting the victim's privacy.
Finally, authorities should treat victims in exoneration cases as the victims of a newly committed crime, regardless of whether the crime can be prosecuted. These victims need support, advocacy, and full access to their rights. They may need victim compensation for counseling to help them cope with the psychological trauma exoneration (and renewed fear of the real offender) may cause.
They should not have to face these challenges by themselves.
Because exonerations are likely to continue or perhaps increase in the future, society must redouble its efforts to support the victims of these crimes. Justice requires no less.
Mai Fernandez is executive director of the National Center for Victims of Crime. Its online DNA Resource Center includes interviews with victims and forensic experts, a Webinar series, news articles, and conference presentations on forensic DNA also offers a range of information on forensic DNA for victims, victim service providers, and the public. Among the interviews is a conversation with Debbie Jones, a Texas victim advocate and the victim in a Texas exoneration case.