Myths and Facts about Amendment S

As with any issue, there are myths regarding Amendment S, Marsy’s Law for South Dakota, which are important to address and correct. Current statutory victims’ rights in South Dakota do not provide victims with the strong, enforceable, equal rights they need and deserve. With Marsy’s Law, all South Dakotans will be guaranteed the constitutional right to be heard, to be notified and to be free from harassment should they find themselves a victim of crime. We invite you to read the following information to dispel any myths or misinformation regarding Amendment S and learn the facts about this important step for victims’ rights.

Myth: Amendment S will result in significant cost increases for counties, prosecutors, and the state.

Amendment S will not result in any significant cost increases and this is already proven by the states that have passed Marsy’s Law or similar laws. The new Statewide Automated Victim Information and Notification system (SAVIN) is already in the process of being implemented in all sixty-six counties. In fact, greater awareness and expanded use of the SAVIN system could actually reduce the burden currently on victim advocates and prosecutors.

Myth: Amendment S will actually hurt victims of violent crime because it will require prosecutors to divert time and money from victim services for the most serious cases to fulfill the obligations that it imposes on the system for minor crimes.

FACT: Absolutely not true. No prosecutor or victim advocate will ignore a rape victim to focus on a misdemeanor crime. Other states prove this argument wrong and it is nothing more than fear-mongering.    

Myth: Amendment S will place a burden on prosecutors and the state to meet notification requirements for all victims.

FACT:  Notifications will be accomplished through the SAVIN system.

Myth: Amendment S will let family members claim victim status to obtain private information that victims of sexual assault do not want them to see.

FACT:  Not true. To qualify as a “victim,” one must be harmed in order to have victim rights such as access to court reports. In fact, victims will have enhanced rights to privacy and dignity to keep such reports from being made public or given to others.

Myth: Amendment S will expose the state to new liability and lawsuits.

FACT:  Not true, the State retains its traditional sovereign immunity.  Marsy’s Law does not create any cause of action for damages against the State. The two main remedies under Marsy’s Law are 1) if the right is about to be violated, “stop” – which comes in the form of continuances of hearings or quashing of subpoenas or denials of requests; or 2) a “re-do” of proceedings if the right was violated (although anything to which jeopardy has attached cannot be done over – so no 2nd trials). The cost from victims seeking “do-overs” is de minimis. Oregon has constitutional rights similar to Marsy’s Law which have been in place since 2008 and they have only had three appellate cases on the issues presented in it. California and Illinois, where Marsy’s Law has passed, have had zero.

Myth: Marsy’s Law will be abused by people who claim to be victims, but are not.

FACT:  Not true. People would have no more opportunity to falsely claim victimhood under Marsy’s Law than they do under current laws. Marsy’s Law has been in effect for nearly eight years in California and they have not experienced such abuse. If someone were to make a false claim of victimhood, the court could make a finding that they are not victims and that would stop them from invoking any rights under Marsy’s Law. There is absolutely no data to show increasing victims’ rights increases the instance of false victim claims.

Myth: Marsy’s Law will give victims the right to refuse an interview, deposition or other discovery request making it more difficult to prosecute a domestic violence case.
FACT:  Not true. Defendants don’t have a right to such information now. The same language has been in the Arizona Constitution for over 25 years and it hasn’t been a problem. If victims know they can’t be interrogated or forced to provide information, they will be more likely to report crimes. Victims deserve a right to privacy.