Rape Victims and Prosecutors: The Inevitable Ethical Conflict of De Facto Client/Attorney Relationships

Each lawyer, judge and second year law student understands that the prosecution's client is the state. The core role of the prosecutor is to represent the interests of the government and only indirectly to represent the interests of individual citizens. In her most blunt incarnation, the victim of a crime is relevant to a prosecutor only as a witness and as a symbol of the threat the defendant poses to society. Crime victims - particularly victims of sexual assault - historically have seen judges as too indifferent to their concerns, defendants as too powerful in the balance of power in the courts, and prosecutors as too insensitive to their needs. Although the current focus of the victims' movement has been to try to educate judges and limit defendant rights, it has also been supportive of prosecutors. This latter alliance is not surprising as victims generally see the prosecutor as the most directly accessible player in the criminal justice system However, this alliance of convenience is unraveling as victims are beginning to understand that their real interests are too often subjugated to the prosecutor's legal and ethical duties as imposed by the role of public prosecution. Perhaps the primary reason for the reassessment of this relationship of convenience is the inevitable conflict between a prosecutor's duty to seek justice and the real civil legal needs created by a rape victim's traumatic experience. Although they portray themselves as the champions of victims, prosecutors too often are forced to be the primary agents of victim disappointment within the criminal justice system. When cases fall apart and are dismissed, it is the prosecutor who is responsible for dealing with the victim. When a victim's interests diverge from those of the prosecutor, her special complaining witness status is often abandoned and she is then treated as a mere witness. When victims provide exculpatory information regarding the crime, prosecutors are legally and ethically bound to disclose that information to the defendant. If a victim's presence is needed at a hearing either to provide testimony or simply for emotional impact, prosecutors generally subpoena them to guarantee their presence. When a prosecutor decides on a plea offer, a victim may be consulted, but her opinion weighs less than the prosecutor's independent case assessment. In short, the very powers granted to prosecutors because of their unique public purpose give rise to conflicts with individual victims. These conflicts are exacerbated when a rape victim is led to believe that the prosecutor is her personal attorney. This impression of direct representation is thoroughly reinforced by statutory duties imposed on prosecutors by recent victim-protective legislation. The solution is to disclose this inevitable conflict and formally warn unrepresented sexual assault victims of the limited role prosecutors can play in addressing their personal legal needs. In this article I propose a set of five warnings which would outline the particular ethical limitations inherent in the relationship between prosecutors and victims of sexual assault: (1) The District Attorney represents the State and s/he and I do not represent you; (2) If you choose, you can hire an attorney to represent your legal interests; (3) Nothing you tell me is privileged, confidential or private; (4) Some things you tell a prosecutor may have to be revealed to the defendant; and, (5) It is the District Attorney's decision whether and how often you must come to court. By sharing such warnings at the initiation of the relationship, victims can be spared serious legal conflicts and increased trauma in their criminal system contacts. Such truthful disclosures will advance the interests of victims in the criminal justice system and improve the ethical conduct of prosecutors.