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62
CASSELL ET AL.
[Vol. 104]

CVRA, it intended to protect crime victims throughout the criminal justice
process—from the investigative phases to the final conclusion of a case.”3
Senator Kyl contested the Department’s analysis of the statute and, in
particular, its use of statements from him during Congress’s consideration
of the CVRA.

This Article sides with the CVRA’s cosponsor and concludes that
crime victims’ CVRA rights attach before formal charging. Both the
CVRA’s plain language and its legislative history lead inexorably to this
conclusion, as every court that has considered this issue has concluded.
This Article also contends that, as a matter of sound public policy, crime
victims should have rights before the formal filing of criminal charges.

This Article proceeds in four parts. Part I frames the issues under
discussion by defending the importance of extending rights to crime victims
during criminal investigations. Part I also provides background on victims’
rights and gives a concrete illustration of a case in which the question of
pre-charging rights for crime victims has arisen—specifically, the Jeffrey
Epstein sex abuse case before a federal court in Florida. In that case, girls
victimized by Epstein have argued that they should have been consulted
about a federal nonprosecution agreement; Department attorneys have
responded that because prosecutors never filed charges, government
officials had no formal obligations to inform the girls.

Part II reviews the CVRA’s purpose, text, structure, and legislative
history. This review establishes that the CVRA extends rights to crime
victims before formal charges are filed.

Part III critiques OLC’s position that the CVRA extends rights to
victims only after prosecutors have lodged charges in court. The
Department’s proffered arguments do not withstand close scrutiny,
particularly in light of the fact that the CVRA covers federal agencies
involved in the “detection” and “investigation” of crime,4 and specifically
authorizes crime victims to file CVRA motions in situations where “no
prosecution is underway.”5

Part IV then proposes a specific approach for determining when crime
victims’ CVRA rights attach. This Part explains that the rights should
attach when federal law enforcement or prosecuting agencies have
identified a federal crime and a particular victim with sufficient precision
that they would send a “target” letter to a criminal defendant in similar
circumstances. If prosecutors have sufficient information to provide notice

3 Letter from Jon Kyl, U.S. Sen., to Eric H. Holder, Jr., Att’y Gen. (June 6, 2011),
reprinted in 157 CONG. REC. S3608 (daily ed. June 8, 2011) (statement of Sen. Jon Kyl).
4 18 U.S.C. § 3771(c)(1).
5 Id. § 3771(d)(3).

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