On Friday, convicted sex offender and disgraced U.S. Gymnastics physician Larry Nassar was attacked by an angry father of three of his victims in a sentencing proceeding in Michigan. According to media accounts, the father asked the judge for permission to have five minutes alone with Nassar, and the judge informed him that is not how the justice system works. The father then lunged toward Nassar and was promptly crushed to the floor by court security and removed to a holding cell. He later apologized, and the same accounts indicate he will not face charges. Writers on social media applaud the father’s actions.
In Utah, both under Article 1, Section 28 of the state constitution and statutes enacted in accordance with that provision, the victim or victims of a crime have the absolute right to speak at the time of sentencing. That right is not without limits. Under §77-38-4, the law expressly states that nothing in the Victims’ Rights Act, “…shall deprive the court of the right to prevent or punish disruptive conduct nor give the victim the right to engage in disruptive conduct [and the] court shall have the right to limit any victim’s statement to matters that are relevant to the proceeding.” Thus it is left to the discretion of the judge to determine when a line has been crossed into “disruptive conduct."
This is how these provisions work on a weekly basis throughout the trial courts in the state of Utah. There are few moments in a criminal proceeding more intensely emotional than a sentencing for a crime against a person. The defense attorney often speaks first. He or she is under an ethical mandate to fight as hard as possible to minimize the harm to the person about to be sentenced.
Our legal system is predicated upon the belief that one must zealously advocate for an accused in a criminal case to protect the rights of people who may be accused in the future and in order to serve the constitutional mandate that all persons, no matter how low or high their status in society, shall receive due process of law.
Next, the judge will ask the state if there is any victim or representative of the victim who wishes to speak. The defendant and his attorney step aside but are in close physical proximity to the speaker, separated by usually one bailiff. In person crimes, the speaker may be a victim who has lost a loved one to a violent act, or a person who has suffered sexual abuse for years at the hands of someone like Nassar.
In that moment, anger or sorrow or a mixture of both are justified and understandable. I have seen people get so close to the defendant in their anger that they spit on them as they yell. I have heard derogatory language. But this is not written in opposition of their right under our state constitution and laws to be heard. I have also seen the father turn and bow and say “I forgive you” to the man, who in a fog of mental illness, killed his daughter. I have seen the adult children who lost their mother to a drunk driver hug the driver, forgive her and ask the judge for leniency.18 comments on this story
Having the right to be heard at sentencing is healing. As you might imagine, it heals different people in different ways. But it would be wise to remember that the person being sentenced, no matter how horrible the crime, is a person as well. Physical violence against that person endangers the perpetrator of the violence, the other persons in the courtroom charged with protecting the participants, the innocent people awaiting hearings in the generally small courtrooms throughout the state and crosses the line into the “disruptive conduct” forbidden by law. The purpose of a sentencing in a civilized society is to impose a just punishment, not to exact vengeance. More violence simply perpetuates the pain and sorrow of the original offense. We value victims. We should also value respect for each other and the hope for redemption.
Ed Brass is a criminal defense attorney, graduate of The Ohio State University and University of Utah College of Law and has been a member of the Utah State Bar since 1977.