Episode 21 - Victims

Being the victim of a crime can be highly traumatic. Some argue that the criminal justice system can make the victim re-live that trauma all over again.

In this episode we look at how, historically, victims have moved away from being parties in a criminal case, to mere witnesses. This process of sidelining victim may be a necessary consequence of giving the State a monopoly over legitimate punishment but there may still be ways of making the victim's voice heard.

The Victim Impact Statement is one such device. Perhaps restorative justice procedures also help reintegrate the victim as well as the offender back into the community. Perhaps not.

For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au

Transcript

STEPHEN BOTTOMLEY

Have you ever been the victim of a crime, or know someone who has?  

It can be highly traumatising, and leave people disillusioned with the whole legal system.

If they are treated badly by the legal system, they will have less confidence in it.  And if word gets around, perhaps fewer crimes will be reported.

STEPHEN PARKER

In this episode we look at victims of crime.  It follows on from Episode 19 on Criminal Law, where we noted that victims are not actually a party to a criminal prosecution, and Episode 20 on Punishment, where we mentioned restorative justice, which involves the guilty party coming together with the victim in some way.

STEPHEN BOTTOMLEY

It's an important topic, not just for the people themselves, but for the legal system.  In democracies, legal systems depend on public confidence, and if that is eroded at the point where innocent people suffer most - being the victim of a crime - it brings the whole idea of justice into disrepute.

Despite numerous reforms in recent times across the world, which we will hear about, there still seems to be a major problem.

STEPHEN PARKER

In 2024, the Victims of Crime Commissioner in Victoria, Australia issued findings from a survey showing that 74% of victims said they were either never treated as a participant in the criminal law process or only treated as a participant sometimes.

They felt there were not a part of decision-making.  They did not have a voice.  They were given inadequate information.  And, crucially, 45% of them said they did not want to participate in the justice system again because the system causes further trauma, they did not feel safe participating and they lacked confidence in the justice system.

STEPHEN BOTTOMLEY 

Before looking at the numerous reforms and innovations taking place around the role, we need to understand how we got to here.  The historical context.

In simpler, more communal, kin-based societies, victims brought their complaint to whatever process the community had for resolving conflicts.  They were, in modern language, parties to the matter.  Their satisfaction was a key component in disposing of the conflict.

As centralised government structures came together and nation states were formed, we see the government or the ruler taking over the administration of justice and acquiring what is sometimes called a monopoly over legitimate violence.   The role of communities and victims is diminished.

STEPHEN PARKER

In the common law context, this occurred after the Norman Invasion of England in 1066.  William the Conqueror introduced the notion of The King's Peace.  The King was the protector of all society.   It was the monarch who "kept the peace".   Crimes were increasingly viewed as offences against the state rather than against individual victims.  It was the state, and only the state, that meted out punishment to the offender.

 True, the victim or complainant had a part to play in giving evidence, but that was that.  And so it continued until quite recently.

STEPHEN BOTTOMLEY 

Let's assume that all the barriers to a case getting into court have been overcome.  The victim has reported it.  The police have acted.  Charges are laid.  The prosecutor decides to go ahead and the matter comes to court.

And let's assume, to begin with, that the defendant pleads guilty, which statistically is by far the most likely step.  Guilty pleas are probably around 75% of serious cases, rising to over 90% of less serious ones.

The court will hear something about the statement the victim gave to the police.  And the prosecutor will refer to the harm caused to the victim when advising the court on an appropriate level of punishment.

But does the victim have a more direct voice, and even the chance to influence the outcome?

STEPHEN PARKER

The most common device now being used around the world is normally called the Victim Impact Statement.

These first occurred in the US in the 1970s and have spread to almost all jurisdictions in some form or other.  They allow the victim to describe what they went through when the crime was committed, and their view of the harm it has caused them.  

Some jurisdictions allow family members to give statements if the victim died, although that is controversial.  The eloquence of the family, or the fact that they were particularly close to the deceased, arguably should not be a factor in sentencing, although the making of the statement might help them in their mourning.

STEPHEN BOTTOMLEY

Victim Personal Statements were introduced in the United Kingdom in the 1990s, under what was called the Victims Charter.

 And in Australia they are now widespread.

STEPHEN PARKER

Studies have been done of the benefit or otherwise of Victim Impact Statements to victims.  And there is research on whether they are actually provided to courts in all cases where they should be.  According to systematic research in England and Wales, many victims report not being asked to provide a statement.  And their actual use, whether the victim remembers it or not, varies from court to court.

There is some evidence that Victim Impact Statements improve victims' perceptions of the criminal justice system.  There is a little evidence they reduce re-offending by the defendant, by bringing home to them the consequences of their actions, but this evidence is by no means conclusive.

STEPHEN BOTTOMLEY

However, there are some concerns about the actual idea of Victim Impact Statements.  

Should the law punish differently one criminal act from an identical one just because one has more impact on the victim than the other?  

Should the eloquence of the statement sway a judge?  One purpose of the state taking control of criminal proceedings is to remove emotion, and keep a desire for vengeance in check.

STEPHEN PARKER

In our episode on Punishment we also mentioned the rise of mandatory sentencing, or at least rules that restrict a judge's discretion in sentencing.  Victim Impact Statements run counter to this.  If the judge's hands are tied, what is the point of the statement?  Might it even lead to frustration or disillusionment if the victim feels the statement played no actual role?

STEPHEN BOTTOMLEY

A different way in which the victim is taken into account in criminal proceedings is restorative justice, which we mentioned in the previous episode.  Here, as part of the actual sentence, rather than as an input into the sentencing decision, the offender and the victim come together.

 A pioneer of thinking about restorative justice is the Australian criminologist, Professor John Braithwaite.  The essence of his argument is that crime hurts so justice should heal.

STEPHEN PARKER

The actual process varies from jurisdiction to jurisdiction but there are some common features:

• First, inclusion.  Victims, offenders and often community members come together in some way, to be part included in a process.
• Second, communication.  This is a way of the victim and the offender actually discussing what happened and what was the impact.
• Third, amends.  The offender is encouraged to take responsibility and make restitution for the harm caused.
• And fourth, reintegration.  The aim is to help both victim and offender to reintegrate into the community.

STEPHEN BOTTOMLEY 

This last point is a complex one.  Traditionally, criminal sentencing involves the idea of shaming the offender publicly, to demonstrate the community's condemnation.  However the effect of this can be to push the offender further away from the community, by stigmatising them, leading to higher rates of re-offending.  

Braithwaite introduced the idea of reintegrative shaming.  Restorative justice aims to find a way to show disapproval of the behaviour whilst maintaining some respect for the offender.

STEPHEN PARKER

However attractive restorative justice might sound, there are some practical problems.

Criminal justice systems are huge machines, churning through cases every day.  To expect restorative justice to be the normal outcome would be hugely complex to administer, and expensive.

There are concerns about offenders gaming the system, of faking remorse and not genuinely taking the process seriously, with the motive of an overall better outcome for them.

 Then there are concerns that it is not suitable for all types of offences.  This must clearly be right, but how do you decide which ones it is suitable for?  And the very process of deciding imposes costs and delays on procedures.

And there are concerns about power imbalance between offender and victim, for example in domestic abuse.  The victim might actually be coerced into an apparent resolution.

STEPHEN BOTTOMLEY

This leads to broader concerns that it might re-victimise the victim; making them go through it all again.  An argument for the state prosecuting crimes in the first place is that it puts a distance between the offender and the victim.

This is a theme we pick up now when we look at the victim's role if the defendant pleads not guilty.

STEPHEN PARKER

It is very likely that the victim will need to give evidence, and will be cross-examined by the defendant's lawyer.  This is often a difficult experience for the victim at the best of times, but if the nature of the crime is highly personal - typically a sexual assault matter - then the victim may be retraumatised simply by having to relive the event, or by having their own personal history examined in public.

STEPHEN BOTTOMLEY

Most jurisdictions have some measures in place to shield victims to some extent, but it is a highly controversial and complex area, where arguably some victims are further damaged in order to preserve rule of law values of procedural fairness and public justice.

STEPHEN PARKER

Many jurisdictions have support and compensation schemes for victims of crime.  They do not normally require the offender to have been convicted, or even identified, but they are mostly restricted to violent crimes.

STEPHEN BOTTOMLEY

This is good, but limited.  And what of the victims of identity theft and online fraud?  Their lives can be ruined, but unless they have a remedy against a financial institution or platform, they are on their own: a topic we will come back to.

STEPHEN PARKER

So there we have it.  Criminal prosecutions are a matter for the state not the victim.  Punishment is an expression of the community's condemnation of the behaviour.  The consequences of conviction can be very severe, so procedural and other safeguards are put into place.  By and large, the victim really is sidelined, and deliberately so.  Measures to make the victim more involved seems always to be attempts to graft them back into the process rather than put them at the centre.