Judge Kevin Newsom, of the U.S. Eleventh Circuit Court of Appeals. Courtesy photo

The U.S. Court of Appeals for the Eleventh Circuit split Tuesday over the rights of more than 30 women—"girls really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein."

Epstein died in his prison cell last year. The decision blocks efforts to hold his accomplices to account.

"The facts underlying this case, as we understand them, are beyond scandalous—they tell a tale of national disgrace," Judge Kevin Newsom wrote for the majority. "Over the course of eight years, between 1999 and 2007, well-heeled and well-connected financier Jeffrey Epstein and multiple coconspirators sexually abused more than 30 minor girls, including our petitioner, in Palm Beach, Florida and elsewhere in the United States and abroad. Epstein paid his employees to find minor girls and deliver them to him—some as young as 14. Once Epstein had the girls, he either sexually abused them himself, gave them over to be abused by others, or both. Epstein, in turn, paid bounties to some of his victims to recruit other girls into his ring."

Courtney Wild, a South Florida woman who has testified she was abused by Epstein starting when she was 14, asked the court to undo a secret nonprosecution agreement made in 2007 that shielded not only Epstein but co-conspirators who participated in abusing her and others. In a petition for a writ of mandamus, she alleged federal prosecutors violated the Crime Victims' Rights Act of 2004—"in particular, her rights to confer with the government's lawyers and to be treated fairly by them," Newsom said.

"Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein's hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition," Newsom said in a 53-page opinion. "We hold that at least as matters currently stand—which is to say at least as the CVRA is currently written—rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It's not a result we like, but it's the result we think the law requires."

By "we," Newsom meant himself and Senior Circuit Judge Gerald Tjoflat. Tjoflat agreed so strongly that he wrote a separate six-page concurrence debating Senior Judge Frank Hull's 60-page dissent.

Hull said the Crime Victims' Rights Act is "not as impotent as the Majority now rewrites it to be." She said she would remand the case to the U.S. District Court for the Southern District of Florida to "fashion a remedy" for "proven CVRA violations."

The heat of the fight was over whether victims have rights under the law before an indictment is filed.

"It's obvious that our dissenting colleague doesn't particularly like our reading—namely, that CVRA rights don't attach before the initiation of criminal proceedings. (Which is fine—as we've already confessed, we don't particularly like it either.) But she offers no intelligible alternative of her own," Newsom said.

Wild's attorneys said they will appeal further.

"For all the reasons given in the 60-page dissenting opinion, we strongly disagree with today's ruling—which leaves victims like Ms. Wild without any remedy, even for victims like her who have been 'affirmatively misled' by federal prosecutors," said professor Paul Cassell of the University of Utah College of Law. "We will be seeking rehearing en banc before the full Eleventh Circuit."

Cassell and Bradley J. Edwards of Edwards Pottinger in Fort Lauderdale represent Wild.

"This is very important, not just to Courtney Wild but to thousands of other crime victims who are stripped of any rights before an indictment is filed," Cassell said.

Nathan Kitchens, Jill Steinberg and Byung J. "BJay" Pak of the U.S. Attorney's Office for the Northern District of Georgia represent the state, taking over after Florida prosecutors recused. They declined to comment on the opinion Tuesday.

Hull said the appeal "presents legal questions of first impression" regarding the Crime Victims' Rights Act—which grants a statutory "bill of rights" to crime victims.

"In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever," Hull said. "Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights—the right to confer with the government's attorney and the right to be treated fairly—that were repeatedly violated by the U.S. Attorney's Office in the Southern District of Florida."

Hull took issue with Newsom's assertion that the law prevents the court from upholding the rights of the victims.

"Our criminal justice system should safeguard children from sexual exploitation by criminal predators, not re-victimize them," Hull said. "The Majority concludes that our Court is constrained to leave the victims 'emptyhanded,' and it is up to Congress to 'amend the Act to make its intent clear.'"

Her answer: "Not true. The empty result here is only because our Court refuses to enforce a federal statute as Congress wrote it."