p. 1076. Hearing the crime victim?

Thirty years ago someone broke into my home late at night, stealing and damaging some property. Months passed after I had reported the crime to the police, I eventually went to give evidence at the trial of the man accused of the burglary. In fact, I went to court twice, only to be sent home on both occasions, having been told that the matter had been ‘put over’—delayed for some reason that was never explained to me. On the third visit, after passing hours in the waiting area, a prosecutor came over, said, ‘You can go, the case has been resolved’, and disappeared before I could ask any questions. I never knew what had happened to the person charged, nor did I have the opportunity to describe the effect of the crime to the prosecutor or the judge. It didn’t seem right that the person most affected by the crime had so little information about—or input into—the criminal justice response.

Why were victims treated in this way? One explanation takes us back to the models of justice.

Finding a role for the victim

The adversarial model has historically paid little attention to the crime victim, who plays a greater role in inquisitorial systems of justice. For example, in Germany the crime victim benefits from a legal right to be represented at the trial—the victim becomes an p. 108↵official ‘party’ to the proceeding. In contrast, crime victims pose a problem for the two-party system of adversarial justice. Within the adversarial model of justice, a criminal trial is construed as a conflict between two equal adversaries—the State and the defendant—played out before an impartial adjudicator—the judge.

The victim often serves as the principal witness for the prosecution, and having served this function has no further role to play in criminal proceedings. The victim is not ‘represented’ by the prosecutor the way that the accused is represented by his lawyer. On this traditional model, the victim remains out in the cold. This side-lining of the victim led to widespread criticism of the criminal justice system (CJS), and much dissatisfaction on the part of crime victims. It was from this dissatisfaction with the CJS response that the victims’ movement emerged.

My experience at court was typical of the way that criminal justice responded to victims in the 1980s. Surveys of crime victims demonstrated that many crimes were never reported to the police, often because victims were apprehensive about how they would be treated. Studies also showed that victims and witnesses were ‘uncooperative’ with respect to prosecutorial efforts to bring offenders to justice because they were intimidated by the CJS or were uninformed as to what was expected of them.

Contact with criminal justice professionals made victims more, not less, critical of the CJS. The experience of being called to testify as a witness, cross-examination by lawyers, and the lack of contact with the prosecutor led to many victims becoming disillusioned. Part of the problem was the attitudes of police and prosecutors. These professionals were seldom positive or respectful. Families of homicide victims told me that they had received notification of the death of their loved one over the telephone—the police didn’t even send an officer to the family residence with the tragic news. If relatives of a murder victim have p. 109↵experienced such cavalier treatment, imagine how victims of less serious crimes were treated.

Contrast this with the experiences of another kind of victim: people injured in a road accident and subsequently admitted to hospital for treatment. Surveys of patients generally reveal dissatisfaction with delays in receiving treatment, but high levels of satisfaction with their care and the medical professionals once treatment began. For victims of criminal justice the opposite was the case: increased contact with criminal justice lowered ratings of satisfaction with the system and the people who operate it.

Today, much has changed. The additional attention paid and services offered to crime victims represent the most striking change in justice over this period. Most of today’s victim-related reforms began in the US and then spread to other common law countries. Crime victims now enjoy a range of services and rights. Victim−witness units exist in all Western CJSs and provide a range of services to crime victims—from first contact with the police through to the sentencing of the offender. Victims are notified when hearings are scheduled so that they do not have to wait in court unnecessarily. CJSs consider the welfare of the victim to a much greater extent, including adopting changes to the physical environment. In many courthouses, separate waiting rooms are provided for defence and State witnesses, unlike in the past, when victims and accused persons often came into close contact at the courthouse.

The role of the victim has been transformed from passive witness to active participant, with rights for input into proceedings. While still lacking full ‘standing’ as a party to the proceedings, victims in the US, Canada, England, or Australia, are consulted, informed, and allowed to provide input into criminal justice. To some, this evolution represents a threat to core values central to the adversarial model. Victims’ rights advocates, on the other hand, view the new privileges (and powers) of the victim as evidence of progress.

p. 110Most countries provide victims with the right to receive information about the status of the case in which they are involved (in the US, referred to as victim notification laws), the right to apply for and receive financial and psychological assistance, and input rights throughout the criminal process (such as in bail, sentencing, and parole hearings). Although most of these rights and benefits have been generally accepted, the right to provide input into sentencing decisions has proved controversial. Controversies revolve around the extent and forms of victim input, and its impact on the principles and outcomes of criminal justice proceedings.

In the US, victims’ input rights have also assumed a constitutional dimension. The Victims’ Rights Amendment is a proposed amendment to the US Constitution that would establish various rights for crime victims nationwide with remedies in cases of non-compliance by legal professionals. These rights include the right to speak during the course of legal proceedings, including bail, plea bargains, sentencing, and parole. As yet, the proposed Victims’ Rights Amendment has failed to gain the necessary number of states in support, but the public are clearly onside: 90 per cent of the public indicated they would support such an amendment. The principal argument against its passage has been that victim participation and input can be accomplished by enforcing existing laws.

Elsewhere, many countries have adopted ‘Victims’ Charters’, which attempt to ensure that victims receive assistance and are informed of their rights. For example, in England and Wales there is a Code of Practice for Crime Victims. This regulates the kinds of services that should be offered victims and ensures that their service rights are respected. A range of victim-oriented organizations such as Victim Support deliver services to crime victims and actively lobby the government on behalf of crime victims. Victim Support assists approximately two million crime victims every year. Finally, the importance of victim participatory rights is apparent from Article 68 of the Rome Statute of the International Criminal Court (ICC), p. 111↵which recognizes the security interests and participatory rights of victims and witnesses, and allows victims to provide input into sentencing decisions at the international level.

Categories of crime victim

What do crime victims want from the CJS? Let’s consider three general categories of victims. One group wants nothing to do with the CJS because the crime was a personal matter; or they have resolved it themselves; or they have been reimbursed for loss by their insurance company. These are the silent victims for whom the CJS is required to do little.

A second group seek information, compensation, and services, but not to participate: passive victims, whose needs the CJS is required to address. They want to be told about developments (such as when the case is coming to trial), when the offender is being sentenced, and when he is coming up for release from prison. The CJS responds to this group through victim services agencies. Victims are also provided with services—counselling for trauma perhaps, or compensation and assistance in making applications.

Receiving compensation may well be more important to the victim than ensuring the offender is punished. It may be reassuring, possibly even satisfying, to see the offender punished, but most of us placed in a similar position would rather receive adequate compensation for our losses. A key objective of criminal justice is therefore obtaining compensation for the crime victim. One way of achieving this is through the courts at sentencing. Compensation through criminal justice is controversial to some people who believe that the sentence should focus on imposing punishment, and not on compensating the victim.

When an offender is sentenced for a crime, the court may order him to compensate the victim for: personal injury; financial losses p. 112↵as a result of theft or criminal damage; loss of income (if the victim had to stop working as a result of the crime); and other expenses related to the crime. The offender is ordered to take steps to rectify some of the harm caused. Most countries operate criminal injury compensation schemes. In England and Wales, victims may apply for compensation under the Criminal Injuries Compensation Scheme. These schemes permit crime victims to receive financial compensation without waiting for the court to order the offender to provide it. All this makes a lot of sense to crime victims as well as to members of the public. Studies have shown that given a choice between achieving compensation for the victim and punishing the offender, the public and crime victims see compensation as being more important.

Simply providing information about case developments is not enough for some of these victims; they want to understand why decisions are taken by the legal professionals. Prosecutors make many of the decisions of greatest concern to victims. For example, the prosecution may have decided that it was not in the public interest to prosecute the suspect. This failure to prosecute may trouble the crime victim. Or the prosecutor may charge the accused with a less serious crime than the one the victim believes was actually committed. Or the prosecution may decide not to appeal a sentence which to the victim seems too lenient.

I recall a case of homicide in which the killing had taken place on an escalator in a busy shopping centre. CCTV footage in the news media of a knife-wielding assailant, along with witnesses’ statements to the press, gave everyone the impression that the accused had clearly intended to kill the victim—it seemed an open and shut case of murder. Imagine then the reaction of the victim’s family when the prosecutor agreed to a plea bargain: the accused pleaded guilty to a less serious crime—manslaughter—rather than murder. This meant the offender would serve two to three years in prison, not imprisonment for life. No explanation was offered, so the victim’s parents were left scratching their heads, convinced p. 113↵that justice had been denied their son. This case underlined the importance of giving reasons for decisions to victims and their families, particularly in serious cases such as this one. Traditionally, legal professionals have been reluctant to explain their decisions: judges point to their published judgments, and prosecutors usually offer no comment. That is now changing; CJSs are being required to become more accountable and part of this accountability means offering explanations.

Many CJSs now require their prosecutors to explain their decisions to the victim—such as whether the sentence imposed should be appealed. Some systems go even further and insist that prosecutors consult the victim before taking decisions. This requirement is seldom popular with prosecutors and you can see why. They are trying to discharge their duties and don’t want to be blown off course by a victim who may, if consulted, insist on a different course of action. There is also the danger of raising false expectations; the victim may feel that having been consulted, his opinion should decide the matter. When this turns out not to be the case, the victim may feel worse than if he had not been consulted in the first place.

The participatory victim

The third category of victim—the active victims—represents a greater challenge for the adversarial CJS. Active victims want to participate in CJS decision-making. They seek to express their views when the accused applies for bail, and want to offer an opinion when sentencing takes place, or when he applies for release from prison on parole. Victims’ advocates argue that the victim has a right to make representations at key stages of the criminal process. These are usually referred to as procedural rights—as distinguished from the service rights described earlier.

The problematic nature of allowing victims to provide input is obvious. If, at the request of the victim, the court denies bail to p. 114↵the accused, the prosecution has become a private rather than public matter—a case of one individual (the victim) against another (the alleged perpetrator). There are also problems in terms of expertise and fairness. Crime victims are unfamiliar with the criteria and grounds for granting bail or for releasing the prisoner on parole. Nor are they well informed about things like the appropriate sentence lengths for different crimes. If victims decide or even influence the decision at bail, sentencing, or parole, then fairness may fly out of the window. It would be unfair, within a system of State justice, to punish an offender according to the extent their victim wishes. This would mean some offenders might be treated lightly, having been lucky enough to rob a forgiving victim, while robbers who had been less lucky and robbed a more vindictive person might find themselves paying a disproportionate price for their crimes, simply because punishment was based on their victim’s reactions.

So what’s the answer? Should we keep the active victim firmly in the background, standing by to testify at trial and then to be dismissed? Adversarial criminal justice has evolved a compromise position. The principal vehicle to accommodate their desire for input is known as the victim impact statement (VIS). These statements originated in the US in the 1980s, and then proliferated around the Western world.

Victim impact statements

Victims are allowed to submit a statement which is then used to guide or inform decision-making throughout the CJS. The statement is supposed to contain legally relevant information about the case. It is usually a form which contains questions about the impact of the crime on the victim. The victim can also provide a description of the impact of the crime using their own words. Victims use the statement to provide details on the physical, psychological, social, and economic harm they have suffered as a p. 115↵result of the crime. This information will be used by the court at sentencing to help determine the seriousness of the offence.

For example, before the trial the victim might have information on the accused which is relevant to the bail decision. Did he threaten the victim with reprisals if the latter reported him to the police? Has he made threats in the past? A court contemplating release on bail will read the victim’s words, and consider the matter—along with submissions from the accused applying for bail. Similarly for sentencing: there the task of a sentencing court is to impose a sentence which reflects the seriousness of the crime, and for this purpose these statements provide unique insight into the crime. For example, prosecutors or judges may not fully understand the effects of various crimes until the victims describe their experiences in detail.

Critics of victim impact statements argue that similar cases end up being disposed of differently, depending on the persuasiveness of the victim. Some legal scholars argue that victim input violates the fundamental principles of the adversarial legal system, which do not recognize the victim as a party to the proceedings. Including victims would transform the trial between the State and the defendant into a three-way proceeding (State−victim−offender). Such practices, it was argued, belong only in civil law systems, not in adversarial legal systems. Some people contend that victims may exaggerate the harm they sustained—to get more compensation or to ensure the judge imposes a harsher sentence. Victims may take advantage of the opportunity to criticize the offender or make allegations of other crimes that have not been charged. In responding to these critiques the CJS has introduced some checks and balances: quality control on victim input.

First, there are limits on the kind of material which should go into the statement; this should prevent victims from including prejudicial or irrelevant material. Second, the prosecutor may review the victim impact statement to make sure the victim has p. 116↵not written something improper—for example, making unfounded allegations about the offender in the case. Third, the offender’s lawyer may decide to cross-examine the victim on the statement submitted to verify it is accurate: was the victim really off work for three months? Was the stolen watch really worth £500? In this way the CJS ensures that the victim impact statement contains useful information rather than just the victim’s opinion.

Are victim impact statements beneficial?

Since victim impact statements are part of the CJS in almost all countries and much research has accumulated, we can draw some evidence-based conclusions about their usefulness. Although only a minority of victims choose to submit a statement, those that do tend to find the experience beneficial. Victims who depose statements are less likely to feel excluded from the criminal process, and more likely to leave court with a sense of closure. The most compelling evidence comes from responses to the question, ‘Would you submit a statement again if you were victimized?’ This question has been posed to victims in several countries including the US, Canada, Australia, and the United Kingdom, and the result is consistent: most victims state that they would submit a statement in the event of future victimization. In some cases these statements also benefit the offender, who may not fully appreciate the harm he has caused until he hears directly from the victim. Research has shown that learning about the impact of crime on victims reduces the likelihood that the offender will re-offend.

Legal professionals are generally favourable to this limited form of input from the crime victim. Judges find the statements useful in terms of helping them understand the full impact—and hence seriousness—of the crime. The statement is particularly useful for crimes in which the impact on the victim was disproportionate or p. 117↵unusual, or involved a crime of violence, sex offences, or crimes in which property was stolen or damaged.

Defence lawyers are less positive about victim impact statements, perhaps because they are concerned that when the victim deposes a statement, their clients get treated more harshly. The statements can be quite emotional at times, and some have suggested that they may be overly influential as a result. The concern is probably misplaced; research shows that sentencing does not get tougher when the victim provides an impact statement. Judges are able to use the information contained in the victim impact statement without being influenced by its emotional tone.

If this all sounds very positive, it must be recalled that any criminal justice initiative, including victim impact schemes, can only benefit the CJS if criminal justice professionals deliver them effectively. In reality, police and other professionals charged with providing information about these schemes often fail to do so. In our research involving victims across England we found that less than one-third of crime victims recalled being offered the opportunity to complete a victim statement. So although a victim impact statement programme has been operating for over a decade in this country, only a minority of victims were informed of its existence and allowed to submit a statement. I doubt victims are treated much better in other countries with impact statement schemes operating. As with so many reforms, it is reliant on effective implementation.

Victim recommendations at sentencing and parole

Many US states permit (and some actually encourage) victims to recommend a specific sentence to the court. This is prohibited in all other jurisdictions on the grounds that victims are unlikely to have an accurate idea of the sentences imposed for different crimes. Practitioners and scholars generally oppose this practice on the grounds that it will lead to inconsistent and unfair sentencing. p. 118↵Victims also are allowed to participate in parole hearings. Again, there is a gap between the US and other countries. Across the US, crime victims are often allowed to attend parole hearings, and to offer their opinion on whether the prisoner should be released. In all other countries victims are allowed only to submit an impact statement for the parole board to consider. They may attend the parole hearing, but not necessarily to speak to the board.

As with sentencing, if victims are allowed to influence the outcome (whether the prisoner is granted parole), this would be unfair. The general position that has been reached with respect to victims is that they should not be asked their opinion on what should happen to the offender. Victim input should be legally relevant to the decision being taken. Thus if the victim has been threatened by the accused currently being held in pre-trial detention, the authority deciding whether to release him should be aware of that threat—and the accused should have an opportunity to respond to the victim’s allegation.

On the other hand, it is unlikely that the victim has relevant information for a parole board trying to decide whether to release the prisoner after he has served, say, eight years in prison. Normally, the victim has had no contact with the offender for years, and is not in a position to shed light on whether he represents a risk to the community. In terms of victim input then, the critical distinction here is between information and opinion. If the victim has information relevant to the decision, the parole board should listen to his submission. For example, the prisoner may have written threatening letters or in some other way contacted the victim. If the victim just wants to express an opinion (‘the offender should be sent to prison for years after what he did to me’) then this is not relevant to a State prosecution, and the victim’s view should not be expressed to the judge.

Much progress has been made in improving the criminal justice response to victims. The latest victim surveys show higher rates of p. 119↵satisfaction with criminal justice than ever before. Victims are significantly more likely to report having been kept informed about case developments and are more likely to obtain compensation than in the past. In addition, a number of opportunities for providing input have arisen. Has criminal justice introduced sufficient reforms to adequately meet the needs of crime victims? The answer depends upon your perspective. Some argue that criminal justice in the adversarial CJS has still not gone far enough. They argue that the system found in English speaking countries should be replaced by the European system noted earlier, in which victims are full participants in the criminal justice process. Other victims’ advocates claim that victims need more participatory rights throughout the CJS and that these rights need to be better enforced. Legal professionals counter that increasing the involvement and influence of the crime victim still further will distort the adversarial system beyond all recognition.

These changes to the status of the victim in the CJS are likely to stay; public support is stronger for victim-friendly reforms than for any other kind of innovation.

Another way that the victim has changed the face of criminal justice is through the growth of restorative justice (see Box 2). This is an alternative to criminal justice in which the emphasis is less on punishing the offender and more on restoring the social harmony which existed before the crime occurred. Victims are central to the many restorative justice programmes and initiatives that have sprung up around the world, particularly in Australia and New Zealand. These programmes are supported by the public, who see much merit in a scheme in which the offender makes amends rather than simply receiving a punishment.

In one test of the degree of public support for restorative justice, we gave a representative sample of the public two cases to consider involving young offenders who had broken into someone’s home and taken property worth £500 (US$800). We asked them whether the p. 120↵offenders should be sent to prison or given a community order as part of a restorative justice solution. One offender had expressed remorse for the crime and promised to pay the homeowners back for their losses. Support for incarcerating the offender was much lower for this case than for the same crime but without any offer of compensation for the victim.