Last updated on 2016-11-29
The South Dakota Department of Public Safety and county and city police have stopped issuing information about traffic accidents, for fear that such disclosures may violate the new crime victims’ bill of rights that voters wrote into our state constitution this month. The provision zipping law enforcement’s lips is Clause 5 of Amendment S, popularly known as “Marsy’s Law,” now seated in Article 6, Section 29 of our state constitution:
The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records;
I suspect the thinking is that if a car has crashed, any fatalities may be victims of whatever traffic violation led to the injury or death. Public officials must thus check with the victim and the victim’s family before publicizing any identifying information.
But notice that Amendment S doesn’t deal strictly with how the state deals with crime victims. Just as the constitution protects free speech from infringement by the state or by other citizens, so does our constitution now protect these new victim rights from infringement by any party, public or private. If cops can’t release the names of crash victims, neither can journalists, bloggers, or even regular folks posting info on social media. Suppose you were a friend of the 39-year-old male who died Saturday in that car crash south of Highmore. Stricken with grief, you publish a quick memoriam to your friend on Facebook. Technically, you’ve just violated your deceased friend’s family’s constitutional right as crime victims to prevent the disclosure of information that could be used to locate or harass them.
Or consider this reporter’s nightmare, a scenario that I explained here on the blog back in August 2015 when Republican lawyer and strategist Jason Glodt first made his proposal public. Senator-Elect Reynold Nesiba (D-15/Sioux Falls) was arrested on November 14 (in a suspicious media spectacle that has conservatives and liberals wondering who leaked what to whom and why) on a charge of sexual contact without consent. Two days before Glodt’s amendment took effect, the media reported the victim’s age, sex, and house block number and street. That information, taken from the original arrest affidavit from Sioux Falls Police Department Detective Chris Schoepf, remains online as of this writing. That information could be used to locate or harass the victim. The Glodt amendment thus makes it illegal for any media outlet to continue to disseminate that information. The victim could demand its removal and could sue the journalists and media company responsible. Covering the crime beat objectively could become impossible, as reporters can only report about the accused and don’t dare present information about accusers who claim victim status.
Consider how Glodt’s amendment would have stifled journalism on a case of much greater public interest, the death of Richard Benda. When the former state economic development chief was found dead on his brother-in-law’s land in October 2013 with “a bullet hole in his side,” journalists pounced on the story, opening the floodgates of South Dakota’s EB-5 scandal. Had Glodt’s amendment been in effect in 2013, Governor Daugaard could not have issued a statement naming Benda as the dead man. Reporters would not have been allowed to disclose Benda’s name. If Benda’s ex-wife had wanted to keep the suicide a secret (and she refused to release the death investigation records), the EB-5 story might not have broken for weeks or months, plenty of time for concerned parties to quietly hide documents, coordinate stories, and come up with a more solid story making Benda the fall guy. Conceivably, members of Benda’s family could still assert Glodt rights over any documents that “could disclose confidential or privileged information” about Benda and deals he may have made during his world travels on behalf of South Dakota’s EB-5 program, thus stifling further journalistic investigation of a still unresolved scandal.
So far the press has focused on the impact of Glodt’s new rights for crime victims on local and state government. I would suggest the press should take a look at the implications of Glodt’s amendment for the press itself.
In the meantime, the deficit just got a billion bucks higher (remember when that was a big deal) with the passage of new funding apparatus that will fit right into this new law perfectly. States will get a windfall of money to fight opioid’s so we will be creating a problem where there may not be one, and no one will ever be the wiser. The perfect way to make create another crooked scheme https://www.statnews.com/2016/11/27/cures-act-deal/ This is a rainmaker for sure as each state gets a cut of a billion dollars, now!
Cory, maybe you pointed it out somewhere, but a state constitutional amendment does not overrule the US Constitution. The First Amendment and other provisions still apply even in South Dakota.
https://en.wikipedia.org/wiki/Supremacy_Clause
Yes, once again too many come late to the realization that the majority of South Dakota’s voters are stupid. Virtually all the law enforcement agencies, states attorneys, and the AG office recommended defeating the bill. Now it’s part of the state constitution.
It’s suppressed crime reporting. http://www.argusleader.com/story/news/crime/2016/11/28/police-say-they-cant-tell-public-where-crimes-occur-thanks-marsys-law/94568360/
Think about that – you no longer have a right to know that the gas station at the end of the block, where you buy your gas after work every Friday was held-up every weekend for the past 3 months. You no longer have a right to know that the neighbors to the left and right of you suffered home invasions, robbery, raping, and buggery. Co-worker harassed, beaten, or raped while at work? Sorry, can’t tell you. Reports on serial crimes? Nope, under f e a r of serial victim lawsuits. The effect may well be more serial crimes with more serial victims. Remember that one of the greatest dampers on crime is an informed, vigilant citizen who’s unafraid of the cops or bloated victim’s rights to report suspicious behavior.
You no longer have a right to know that xyz corporation dumped PCBs in your drinking water, well, because corporations are people too, and they could (will) blame a rouge employee, and / or otherwise may be seen as victims losing their livelihood.
The Orwellian combination of Trumpelstiltskin and Marcy’s Law staggers the republic.
Other regimes used and controlled the public release of information to control the public – only reporting crimes against the state such as protests, disobedience, etc. Yet here fools voted for it. I fear for my grandchildren. I am thankful they live in blue islands of sanity as we depopulate this regressive state one family and generation at a time.
@John, I have spoken to a county commissioner and listened to what was said. You will find that they disagree with your assessment because a right wing republican told another right wing republican, that told another you are incorrect on this matter. It starts with the fact that most of the smaller population counties have crappy judicial protection and they think that this will be the way to protect them. They have not even factored in the high cost yet, because they have little money and think the state will pay for this blunder. The county taxpayers should be made to pay for their dumbass thinking with higher property taxes.
@ Jerry; rest assured that our right wing brethren will receive their opinions every night from Hannity promptly at 7 pm. Agree, too, that the counties should pay all costs of Marsy’s Law since the county hosts the courthouse and most voted for this abomination of the public interest.
I wonder how Marsy’s law affects our sex offender registration requirement. Will there still be online access to information about people convicted of sex offenses?
Likewise, how does this affect the public’s access to court records in criminal cases? Must all files now be sealed?
If you’re arrested in SoDak the newspaper can give your name, age, sex and house number? That’s wrong and deserved to be changed. Sounds like gossip journalism still exists in the Land of Infinite Privacy Invasion. Maybe after you’ve been found guilty, but I believe a citizen is innocent until proven guilty in most of USA and letting any kook know where you live is beyond the pale.
Porter, The counties list your property if you are delinquent in paying your taxes as well as well as foreclosure information of ownership. Most counties publish a lot of stuff in their newspapers of record. Those may have to be examined as well to make sure they fall into the Orwellian system we seem to want. Even if you are found guilty, you have the right to appeal that verdict so when do they finally publish the event?
I am not sure about this but it would seem that the counties will have to hire a couple of compliance officers to make sure they are following directives as well or else who is liable for the failure of following the new rules?
Shaming people publicly is cheap entertainment for the low self-esteemed among you.
Porter, the idea of shaming people publicly was the idea in the first place of this law. It will have backfired on those that thought it would do something else.
Cory wrote: “If cops can’t release the names of crash victims, neither can journalists, bloggers, or even regular folks posting info on social media. Suppose you were a friend of the 39-year-old male who died Saturday in that car crash south of Highmore.”
That’s a pretty poor interpretation. Remember, rights are protections from government, not individuals. This victims’ bill of rights is an affirmation of protections ensured by the government to the victim. Journalists are still free to print what they want. But police agencies have realized they can’t un-ring the bell. If they publish information about a victim, it’s public record forever. Therefore, even though Marsy’s Law was intended to be “opt-in”, it very much isn’t.
I voted against Marsy’s Law, but I believe in a lot of the protections for victims it espouses. I think it’s rather juvenile to think South Dakotans are just idiots for saying “we think victims should be afforded protections.” The challenge is it’s not always apparent what consequences adopting a broad principle will have.
Wayne, are you sure Amendment S only ties the government’s hands? If you have a constitutional right and I violate it with a blog post, don’t you have legal recourse to demand that I remove the blog post or pay damages?
Bear, Amendment S won’t affect the sex offender registry. We can still identify and locate and harass convicts all we want.