Victim Impact Statements: "Justice cannot be for one side alone, but must be for both"

By Randy McCall

The title of this piece is actually a quote from Eleanor Roosevelt. It came to mind a couple of weeks ago, when I was scanning the news and saw this article:
'Dry-eyed justice': Judge questions impact of victims on rulings

A ruling by New Brunswick’s top court that declares victims “cannot be allowed to hijack” a trial and chastens a judge so moved by tearful accounts of loss that he doubled an expected sentence is prompting debate over whether it is time to rethink the judicial system’s focus on victims’ rights.
The judgment has victims’ rights advocates warning their voices are being silenced, but has others applauding the court’s appeal for what the judge described as “dry-eyed justice.” Over the past two decades, victim impact statements have become dramatic and compelling features at most criminal trials.

From a totally detached and legal viewpoint, the judicial ruling makes sense: do we want a justice system where emotion overrules fairness and equitable treatment? Defence lawyers certain do not, and the general public understands that such a system would be inherently unstable and unfair. But how do victims feel?

While every victim I have ever talked to wants to ensure the perpetrator gets just punishment for their crime; the word they stress is "just". I've never met one who believed that their victim impact statement should so sway a judge or jury that the perpetrator would be given two, five or ten times the sentence which the law prescribes.

Let's be precise. Victims want to be treated like human beings: they want to be informed and consulted on the progress of the trial and any plea bargains; they wish to be heard, understood, and make a sometimes impassive and uncaring justice system realize the full impact the crime has had on their lives.

They want to see the perpetrator sentenced according to law of the land; they might wish for a maximum sentence, but they don't wish to see the justice system turned on its head.

Victim impact statements are the method by which they attempt to get across to the court the toll the crime has had on their lives.

In general, the courts heavily control what can and cannot be expressed in victim impact statements, how it can be said, and they certainly control when this statement is heard (only after the offender has been found guilty). All this is done to ensure fairness to the offender, and no judge should use a victim's statement to make a mockery of justice.

But, as the title of this piece says, justice can't be for one side alone. While it is just and fair that offenders be protected against overly emotional judges and sentences, there is an area where victims and witnesses are exposed to emotionally devastating treatment. In the name of the justice mentioned above, we need to see this corrected.

As everyone knows, crime victims are often witnesses as well, called before a court to be examined, and then cross-examined, under a set of arcane laws and rules they know little about.

While on the stand, and particularly when undergoing cross-examination by the defence, victims are open to a tactic commonly known as "aggressive cross-examination". Defence lawyers use verbal attack, haranguing and aggressive questioning of the victim in an attempt to cause them to make a verbal mistake, or utter any statement which the defence can then use to argue the victim is lying, was mistaken, or (and this is the worst) somehow deserved to be victimized.

Of course the prosecutor can object if the defence counsel goes too far, but the defence is often allowed wide latitude by the court, which wants to ensure the accused receives a fair trial, and to avoid having judgments overturned on appeal.

The issue here is not only the tactic in itself, but that the criminal justice system as a whole supports the use of such tactics. Many lawyers believe that the use of such a tactic is quite legitimate, supplying the accused with as full and complete a defence as possible... the basic thought seems to be: "If it works, great. If not, it was still worth a try".

Little thought is given to the psychological effects such a tactic might have on an already traumatized victim. Judith Lewis Herman said it best:

"If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law"

There are certain groups which most courts label as "vulnerable witnesses"; these are offered some protections and extra support. Normally this list includes children, the mentally ill, and victims of sexual assault.

All other adult witnesses -- no matter what their traumatic experiences or mental state, short of incapacity -- are legitimate targets for aggressive cross-examination.

To me, seeing a court system demand dry-eyed, unemotional sentences for the perpetrator, yet at the same time allowing... nay encouraging... the perpetrator's lawyers to verbally attack emotionally vulnerable witnesses to the point of breaking, displays a glaring inequality in the justice system.
The question then becomes, "what can be done about it"?

There is a developing school of criminal justice thought called Therapeutic Jurisprudence. This school of legal thought focuses on creating a criminal justice system which also takes into account the mental and emotional health of all who pass through it.

It examines the roles of lawyers and judges, and suggests they take an interest not only in the law and the rules of court procedure, but in the mental and emotional well-being of their clients.

I would call on criminal justice systems around the world to realize the possibility exists their court systems can deliver as traumatic a blow to the psyche of crime victims as the criminal did in committing the originating offence. Our legal system has developed over centuries, altering and adapting as new sciences technologies came along. It's time to apply the sciences of psychology and mental health to law as well.

In the name of the dry-eyed justice first mentioned above, I'd like to call on courts to begin re-considering their policies and procedures, and take into account the potential traumatic effects they expose victims and witnesses to.

Justice, fair treatment and physical and emotional safety should be guaranteed not only to the perpetrator, but to the victim / witness as well.

For those who are interested in background information on aggressive cross-examination or therapeutic jurisprudence:

• Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children
• Consultation Paper Vulnerable Witnesses in Civil Proceedings
• High Court of Nambia Vulnerable Witnesses Project
• Key Findings from Vunerable Witnesses Survey
• Propriety and Impropriety in Cross Examination
• Therapeutic Jurisprudence and Adversarial Injustice: Questioning Limits
• Transforming Aggressive Prosecution Policies: Prioritizing Victims' Long-term Safety in the Prosecution of Domestic Violence Cases
• Victim Participation and Therapeutic Jurisprudence: A Canadian Perspective
• Vulnerable and Intimidated Witnesses: A review of the literature
• Vulnerable Witnesses - Rights and Responsibilities

One Day We Shall Truly Overcome

By Pamela Chapman

I really don’t know what’s been going on with me lately. I don’t know if my heart has been so incredibly stirred up because I recently had Susan Murphy-Milano on my blog talk show where she discussed her ingenious Time’s Up:A Guide on How to Leave an Abusive and Stalking Relationship. She always moves me to conviction! Maybe I’m being riled up because of my one-month sabbatical to the Yucatan, or maybe because of what I’m seeing here. So what is it that I’m seeing? INJUSTICE! This is not the first time I’ve seen injustice but today I’m seeing more than ever. 

 

Let’s take a closer look at the word “injustice.” The definition of justice is: fairness, impartiality, righteousness, evenhandedness, and fair dealing. According to the Encarta English Dictionary, justice is fairness or reasonableness, especially in the way people are treated or decisions are made; system or application of law—the legal system, or the act of applying or upholding the law; to deal with somebody or something fairly. Merriam-Webster says that justice is the maintenance and administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments. The quality of being just, impartial and fair.  

In studying this word further, we must look at the words that were used to define it, such as righteousness, fairness, impartiality, and just. Due to the brevity of this piece, let’s just concentrate on “righteousness.” When I think of righteousness, I think of the righteousness of God. I think of that which is virtuous, that which is upright. I’m reminded of integrity, equity, straightness, and truth.  

That is what our legal system is supposed to represent, but it does not. What we see instead—particularly in domestic violence cases—is quite the opposite. We see the unfairness of our legal system. We see that if you don’t have money—large sums of money, to be exact—you don’t get justice. Everything that occurs in the justice system is about money: lawyers, coaches, counselors, and even mediators all cost money. Excellent attorneys, the ones who get convictions, cost a fortune. The male usually has and controls the money and leaves the woman at a disadvantage.  

In our legal system, we see prejudice. We see male perpetrators being slapped on the hand, by male judges, for their crimes especially if they are prominent figures or in the limelight. We see judges making biased decisions to give abusers and perpetrators custody rights when so many of these abusers have sexually violated their partners. You know, they have to be fair.  

We see the inequality when it comes to the rights of women and the rights of men. In my state, Colorado, if the police are called out in a domestic violence dispute, they must make an arrest. If a woman has decided to defend herself, it is more than likely that she will be the one going to jail. Officers often do not take the time—or to be fair, even have the time—to find the truth or search out the facts. She might wind up with a felony on her record.  

We see the hypocrisy of the system when detectives won’t even open missing-persons cases on women. We see women and children having little or no value in our justice system. We see our justice system acting as if justice is for all and as if justice is blind.  

I know that there are days when it seems like you are not making any difference. Some days it probably seems as if wickedness and the injustices of this world, not just in America, are prevailing. But may I leave you these few short words of encouragement and inspiration? Stand! “He will make your righteousness shine like the dawn, the justice of your cause like the noonday sun.” —Psalm 37:6 “And, He shall bring upon them their own iniquity, and shall cut them off in their own wickedness, yea, the Lord our God shall cut them off.” Psalm 94:23. 

Keep up the work of your great cause. Don’t give up and don’t give in. We will continue to join together and fight not only for the annihilation of domestic violence, but for justice in every murder case, for every missing person, and for every child who is abused and sexually violated. One day, we shall truly overcome. Just continue to stand!  

In love, light, and healing 

Pamela 

A Vision for Being Victim-Centered Until We Are Victim-less

By David Voth 

A good heart can make a difference in someone’s life. A good plan guides a good heart to make a difference in thousands of people’s lives. A plan for victim recovery is the precursor to the Promised Land of having no victims.

Put your long range wondering cap on. Look beyond the daily problems and words we use, victim, witness, survivor, or thriver, and imagine what it means to put victims first, at the center of our services and systems. Consider the idea that the master plan for a victim centered, and ultimately victim-less world, is twofold and multi-faceted. It involves the individual and systemic responses.

The Individual Response

There are four core needs of victims: safety, healing, justice, and restitution (financial recovery). Victims’ recovery process has common themes and stages, but also varies for each person – specific to their disability, language, culture, or literacy level. For example, victims benefit when they are assured that they are not alone, are believed, and have their immediate safety issues addressed. Some just want their money back. Personal support is everyone’s role -- family, friends, co-workers, parishioners, Victim Advocates, and neighbors.


Victim Outcomes

For programs responding victims, the four outcomes of safety, healing, justice, and restitution are the reason they exist. That includes providing protection orders, crisis counseling, system guide, and compensation assistance. However, even doubling these services with a new grant is not the goal. Success is when, in the end, the victim is safer, is healing emotionally, is receiving justice, and is able to pay their bills. Logic models with practice-based and research informed outcomes can help victims create an individual and sequential plan for their recovery, even in unprosecuted crimes. Victim-centered outcomes are also victim-driven.


Victim Services

However, outcomes are not the whole picture. A victim-centered response includes assuring Access (are services visible, accessible, acceptable, and available when needed?), Structure (are services provided with best-practice governance, partnerships, tools, staff, and the right services?), and Process (are victims treated ethically, professionally, uniquely, and sensitively?) If victims don’t know about you, you don’t have the needed services, or you do not treat or communicate with them well, then positive victim outcomes are limited to very few victims.

The Systemic Response

Crime is a violation of people and the fabric of society, not just a law. Going upstream to stop victimization involves obstructing undercurrents of sexism, power and control, racism, and privilege, while building dams of prevention and morality, and assuring a victim-centered justice system for those we fail to protect. We must believe and plan for the elimination of crime, just as Mothers Against Drunk Driving is striving to eliminate drunk driving, through technological, moral, and enforcement improvements.


Prevention Issues

One facet to eliminating victimization includes supporting the six levels of the “spectrum of prevention” advocated by the National Sexual Violence Resource Center. They are key to changing the societal response to crime. The solution includes 1) strengthening individual knowledge and skills, 2) promoting community education, 3) educating providers, 4) fostering coalitions and networks, 5) changing organizational practices, and 6) influencing policies and legislation. Research also tells us that being a victim once is a higher correlation to future victimization than age, gender, geography, or race. Prevention is key, and includes re-victimization.


Moral Issues

Building societal impediments to crime is like fighting the tide unless millions of consciences are also awakened. Crime is a moral issue. It is not an act of God, but a force of (human) nature. Our moral response to victims must be equal to the other customer of grace, the offender. A victim centered response includes offender culpability (from the outside) and responsibility (from in the inside). Since faith without works is dead, we must practically support victims in a spiritual and neighborly sense, including a seamless safety net for the abused, assaulted, and arsoned, with sanctuary, funding, rights, and services. It takes a spiritual village to name and turn back evil, even as we change hearts one person at a time.


Justice Issues

For years to come there will be victims caught in crime’s raging waters. So, from investigation, protection orders, and trials to offender releases, our laws and protocols must be focused on victim’s need for safety, healing, fairness, and financial wholeness. Every justice system delay and decision must include the balancing question, “How might this affect the victim’s safety and recovery?” For example in the financial recovery area, restitution laws and practices must preserve defendant’s assets before they are destroyed or unavailable for restitution, must comprehensively determine losses, and must prioritize payment to victims. The primary obligation is to the victim, before creditors, courts, or taxing authorities. “Justice for all” assures victim’s right to be informed, present, and heard while always being treated with fairness, dignity, and respect.

Our vision is to plan, research, and put into practice a world where victims’ needs are central at every point their lives might be affected, before and after the crime. We need a victim-centered individual and systemic response. If we can imagine it, someday we can live in it. Then, as we become victim-centered, the remaining systemic mountains can be moved to eliminate crime with new family, spiritual, and cultural values that prioritize true Shalom.

David L. Voth has been director of Crime Victim Services, a comprehensive victim advocacy program in Ohio, since 1985.  He has helped draft and testified on victim rights legislation in Ohio and Congress, and is author of the book, Quality Victim Advocacy: A Field Guide.

Breaking Through: Why is there still resistance to victim rights in the justice system?

Since so many countries have granted rights to crime victims, guaranteed in legislation, surely this means that each and every victim will receive the full benefit of these rights?

Unfortunately, no.

Rights for victims of crime and abuse of power has been a popular political issue for some time; after all, what office-holder would want to be seen as being against helping the injured and weak?

While the actions of politicians and governments have been welcomed, we need to recognize that simply enacting a law -- or legislating a right -- into existence does not mean it will be willingly accepted, completely embraced, actively promoted and fully funded by all the individuals, agencies and services it will affect.

While victims of crime receive sterling service from the vast majority of criminal justice system, there are constant reports from victims of both individuals and (at times) entire offices offering poor service or showing a lack of empathy. This resistance to supplying the information, services and support which law or policy requires that victims be given becomes the source of a form of re-victimization. The crime victim loses all sense of control and worth to officials of a seemingly uncaring criminal justice system, and certainly loses any sense of satisfaction with the justice system.

Resistance to fully accepting and implementing these relatively new rights is normally seen through several different behaviours. Each of these three commonly seen behaviours also has a different potential remedy (or set of remedies).

• Individual attitudes
  
• Political inertia
• Systemic resistance

We'll take a look at these one at a time.


Individual attitudes
When it comes to applying basic victim rights, such as the right to be informed of available social services, or the right to be kept informed of case development, much is left to up the individual police officer, detective, or prosecuting attorney. Their personal views on the importance of victim rights, and the impact workplace issues such as case load and funding, can greatly influence the manner in they comply with regional law or agency policy on the application of victim rights.

Let's face it, the criminal justice system is a high-pressure environment. A busy police officer may forget to inform crime victims of the availability of victim services. Harried detectives can overlook giving victims case updates. An underfunded prosecutor with a heavy case load may cut corners. These are situations which, while deplorable, are understandable. Yet, time and time again, victims of crime report that individuals within these agencies show not only occasional forgetfulness, but a shocking lack of understanding -- if not actual disregard -- for the rights granted victims by law and demanded by policy.

Victim Participation and Therapeutic Jurisprudence
"In a recent study on victims' experiences in the Quebec criminal courts, Wemmers and Cyr (2006) found that victims were not systematically informed about the services available to them. Most victims were not asked by police if they wanted information about victim support and most did not know where to go for help or information. This might not be an issue if the victims in this study were not affected by their victimization, but almost three-quarters of respondents were victims of violent crime and most victims said that they were affected by the crime. In all, 45% of the victims who participated in the study showed symptoms of PTSD."

In individuals, this disregard may be rooted in a lack of empathy (simply not understanding what victims are going through, and why these rights are important), a simple resistance to change ("we've never had to do this before"), or the individual may be suffering from professional burnout (they have seen so much pain they no longer wish to deal with it; this is a form of caregiver stress).

No victim should accept less than reasonable service and their full rights under the law. Don't be afraid to speak to a superior at the agency in question; they may be able to supply a reasonable answer as to why the incident in question occurred. Alternatively, they may not be aware of the behavior of the person in question. Often sensitivity training on victimization (its effects and why providing victim rights and services provide tangible results) can help overcome individual issues for staff finding it difficult to see why providing the services are important.

As mentioned, such behavior in a representative of the justice system can also be caused by burnout. If a staff person shows evidence of psychological stress or burnout, supervisors need to know; victims may not realize the seriousness of the traits being exhibited. The concern is for the mental health for the employee, as employees in this field can develop their own form of PTSD from their constant exposure to horrendous cases of victimization.

Never be afraid to speak up if you suffer poor treatment. You will be helping the agency in question learn to deliver better service to future victims, and you may well be helping agency staff.

However, where a number of individuals within an agency or service display the same traits, we are likely looking at an issue of systemic resistance, which we will cover shortly.


Political inertia
As I mentioned earlier, few politicians want to be seen as being hard on victims, or soft on crime. The granting of theoretical victim rights via legislation generates strong political capital for those involved, which is one reason it is so popular. The hard work comes in creating effective programs which ensure authentic and needed services to victims.

A major component in this is providing sufficient funding. This is where the next level of resistance comes into play.

In the world of government funding, with a finite amount of resources, there is always fierce competition for money, whether between government offices, the funded agencies, or simply different levels of government (local, regional, national)

It is not unusual to see politicians pass bills which, while sounding wonderful, do not provide access to the funds needed for the legislation to actual work.

Adding Insult to Injury: Investigation into the treatment of victims by the Criminal Injuries Compensation Board (Ontario, Canada)
"The primary reason for the Board’s colossal failure is that successive Ontario governments have been unprepared to fund the promises they have made to crime victims. The Province has proclaimed a grandiose program of support through the Compensation for Victims of Crime Act, but then imposed fiscal control so tightly that it has choked off not only the Criminal Injuries Compensation Board’s effectiveness, but its compassion as well. Today, the primary responsibility for this lies with the present government, and urgent action is needed."

Victims not informed they are eligible for compensation (UK)
"Two-thirds of UK crime victims are not informed that they are eligible for crime victim compensation. Even those who are informed often decide not to apply because the the bureaucratic application process…"

The remedy to this form of resistance can only be political action and lobbying by advocacy groups and the general public. Join a victim rights organization, take part in advocacy programs, write to your government representatives. If you see a problem in services, get active!


Systemic resistance
The final form of resistance to victim rights comes from groups or classes of people who, by training or by occupation, view the application of victim rights as threatening, or simply outside the scope of their work. Most often these are found in the court system.

By long tradition and training, members of the legal profession often view the criminal justice system as a dialog between two parties: the prosecution and the defense. The introduction of rights for a third party, in the form of the victim of crime with rights equal to the offender, is creating serious tension in today's court system.

Giving Crime Victims More of Their Say: A federal law has created tensions in the legal system (USA)
"But defense attorneys say that changing the adversarial system further would have dangerous consequences. Most problematic, they say, would be allowing victims more control over prosecutorial decisions. Victims can be biased, attorneys say, and they sometimes fail to understand how their case fits into the system as a whole.

...Defense attorneys are also wary of the influence that victims may have on plea agreements. And they point out that a victim's testimony, in bail or sentencing hearings, is not subject to the same cross-examination as is the testimony of other witnesses. Overall, they worry that inserting victims more broadly into the process pits the defendant against not one, but two, adversaries."

Judge: Defendant’s rights trump those of victims (USA)
"Attorney Herbert S. Moncier, who represents Sudderth’s mother in a wrongful death lawsuit against Whiteside, alleged Sudderth’s survivors’ rights were violated when prosecutors and Whiteside attorney Gregory P. Isaacs struck a deal that allowed Whiteside to be arraigned a day early and his bond cut without a hearing.

But (Judge) Leibowitz opined that while prosecutors are required under the victims’ rights law to notify victims of any changes in hearing dates, they are immune from penalty if they fail to do so. She also opined that a defendant’s rights trump victims’ rights."

If you have a few minutes, you can view an impassioned plea for the rights of crime victims in an uncaring justice system from Dr. Marlene Young and Dr. Irvin Waller, at a WSV press conference given at the 11th UN Congress on Crime Prevention and Criminal Justice 2005 (note RealPlayer plugin required).

Some in the legal community take the view that giving rights to victims equals taking away rights from the accused. Others are concerned that overly emotional victim involvement will unduly sway judicial sentencing.

High court cracks down on emotional testimony (USA)
"Three members of the U.S. Supreme Court today expressed concern about the growing use during death penalty trials of elaborate victim impact statements and video presentations."

There is no easy remedy to this form of resistance. Certainly the legal aspects of this debate can only be settled in the manner normal in the courts when dealing with new law; by case-by-case testing and review, until a body of formal and common precedent establishes the precise limits to which they courts will accept victim interaction.

Changing professional attitudes is another matter. Victim advocates and legal educators are coming to believe that attitudes and ways of thought in the justice system can be best influenced by working on the next generation of lawyers and jurists. How? By providing training to law students on victim rights, the effects of crime, and other sensitivity training.

In other words, working to change the criminal justice system from within, by working to change the attitudes of the next generation of jurists. This will take time, but is the most likely way to change the present two-party court model (accused and prosecution) to a three-party model (victim, accused and prosecution).

While highly unlikely to take place in the near future, it is to be hoped victim rights will eventually advance to match those of Japan (and a few other countries), where victims now have rights to directly take part in court proceedings, under specific conditions and limits.

We Didn't Start The Fire!

"Time's Up!" Editorial

No, we didn't start the fire, the fire of evil has been around since time began, burning all around us.  As we listen to the news and read updates on the Internet, every day crime seems to be getting more and more horrendous, creating more and more victims.  We, as caring people, can barely keep up with service programs and outreach to these victims.

We are being held hostage by fear, frustration and futility while our legal system churns criminals back out into the streets, sometimes because of minor technicalities of law.  Victims of crime, as we know, have little, if any, rights and are, in a lot of cases,looked upon as nothing more than a witness for the prosecution, taking the stand literally in their own defense, while a murderer, rapist or terrorist stalker sits in front of them.

We are held hostage by a media which spoon feeds us exactly what they want us to hear, that which is deemed politically correct, so that we all form the same opinions.  They show us all the violence and ugliness that confronts us each day until we become numb to bloodshed, guts and gore.  We learn of all the forthcoming doom and gloom, sinking ever so slowly into a state of depression, but, don't forget, during the commercial break we will learn of a new pill that will keep us from feeling so bad!  All the while the value of a human life has taken a nosedive.

As we seem to be spiraling downward towards the fires of hell, we hold out our hand, we reach for something to hold on to, something that will catch us like a safety net as we see the edge of the cliff looming oh so near.  We hold on to the only thing we can see that is looking back at us, and that is hope.

Hope for victims of crime seems to be something that passed them by as they suffer each day re-living trauma that happened to them, a trauma that they didn't ask for and, in most cases, took them by surprise.  A crime that to most of us is played out on the 6 o'clock news, but for them has been a life changing experience.  As we go about our daily lives, their lives have turned to turmoil.

What is it that a surviving victim wants?  Basic human rights would be a starting point.  The right to have hope that their feelings and emotions are not minimized and are taken into account as they travel through the justice system.  The right to have a system in place that would acknowledge them and assure them that the criminal involved will be dealt with swiftly, fairly, yet correctly. 

No, we didn't start the fire, but by collectively working towards the best interests of each other instead of selfishly hoarding our talents, we could possibly make a change.  Will we put out the fire of evil?  Not likely, but at least we could beat it back until it's just a controllable ember rather than a raging, out of control, destructive burn.

Peace