Criminal-defense attorneys cannot be mandated to inform sexual-assault victims and/or survivors of their rights. Mandating such actions violate defense attorneys’ rights to freedom of speech as declared by the First Amendment of the U.S. Constitution according to a recent decision by the Missouri Supreme Court invalidating a Missouri statute. Fox v. State, 640 S.W.3d 744 (Mo. 2022).
In August 2020, legislation relating to victims of sexual offenses was enacted by Missouri Senate Bill No. 569. Included within this legislation was Missouri Revised Statute, section 595.201. Among other things, this section mandated criminal-defense attorneys to provide information regarding the rights that survivors of sexual assaults have before conducting interviews of them. In an action for declaratory and injunctive relief, the constitutionality of this provision was challenged. The challengers alleged that provisions within section 595.201 violated, “a defense attorneys’ right to freedom of speech under the First Amendment . . . [and the] Court's ability to regulate the legal profession under the Missouri Constitution” among other things. Fox v. State, 640 S.W.3d 744 (Mo. 2022). The circuit court determined that section 595.201 as applied to defense attorneys was constitutionally invalid and violated defense attorneys’ rights to freedom of speech.
In March 2022, the Supreme Court of Missouri, affirmed the circuit court’s decision. The court found that strict scrutiny applies to the provision, as section 595.201.2(4) does not “incidentally burden speech,” it “specifically compels speech.” Id. Since the requirements of the statute can be achieved through other means and are not limited to specific circumstances, the strict-scrutiny burden is not met. Thus, section 595.201 as applied to criminal-defense attorneys is constitutionally invalid, as it violates criminal-defense attorneys’ free-speech rights, infringing on their First Amendment constitutional protections. Criminal-defense attorneys practicing in other states should be aware of this ruling in preparation for similar laws within their states.
