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.

From Bondage to Freedom

By Robert L. Carpenter

There is a story in the Old Testament that tells us about the children of Israel while they were in Egypt. There were literally millions of men, women, and children living in Egypt under Pharoah’s rule and reign. Generations of families had been born and died in Egypt.

Egypt was a place of bondage and slavery for the Israelites. Night and day all they did was serve Pharaoh, who was a ruthless, arrogant and selfish dictator. Their life was not their own.

Also, Egypt was a place of depression. Many of the Israelites felt like they would never be able to leave Egypt and it depressed them. Although they knew they did not have to be in Egypt, and although they knew that there was a better place for them somewhere out there, they were manipulated to think that they would always have to remain in Egypt. Consequently, many became depressed.

Egypt was also a place of poverty. Nothing that they earned, which was virtually nothing, was theirs. Pharaoh could, at any given time, take what they had earned and restrict what they could have in their possession. Egypt was a horrible place of overwhelming despair. It was not the place that they were destined to be.

One significant point that I ascertained from this story was that the children of Israel were only a day’s journey from their “Promised Land.” The Promised Land was a place of freedom. The Promised Land was a place of prosperity. The Promised Land was a place of new beginnings, but because the Israelites became comfortable in their discomfort, it took many years before they crossed over into the Promised Land. As a matter of fact, many generations of families died in Egypt and were not even given a proper burial.

There are multiplied millions of women in America who are right now in their own personal Egypt. They are in a place of bondage. They are in a place that they know they aren’t supposed to be. They are in a place of poverty. They are in a state of depression, just like the children of Israel. Their “Pharoah” has convinced them that they cannot have freedom. Their Pharaoh has convinced them that they cannot make it to their “promised land.” Their Pharaoh has told them that their quality of life will not improve. They have been manipulated and forced to believe that there is no way out. They have been told this is the way it is.

However, it only takes a day to change from bondage to freedom. It only takes determination to get out of Egypt. It only takes a revelation of knowing what they deserve in life. It takes a day to move into the Promised Land, which is a place of celebration, newness of life and prosperity.

Time’s up! It’s time to let our women know they don’t have to remain in bondage. Get the kids. Stop the generational cycle. Stop the madness and move from bondage to freedom today!

Society in Motion: How Victim Rights Are Becoming Human Rights

Image by US Mission Geneva via Flickr

By Randy McCall

Ok, so what's this all about?

Over the last few decades, we've seen a vast sea change in how governments and legal systems viewed victims of crime. In many countries around the globe, the days when victims of crime were viewed as little more than witnesses for the state, to be ignored until called into court, interrogated by lawyers, and then dismissed into limbo, are long gone.

Instead, government statements supporting the rights of crime victims are being broadcast on almost a daily basis. More and more countries -- though not all, by any means -- are providing rights and protections for victims enshrined in legislation on a regional, national level.

National law enforcement services, the courts, and even the correctional services, are moving to provide these legal rights to those who become victims of crime.

Not only are victims of crime being granted these legal rights, but also victims of abuse of government power. International organizations, including the International Criminal Court, are putting legislative safeguards into place in order to ensure victims of the abuse of power have access to the same rights and services as victims of crime do, when brought before an international tribunal.

So you say, but why is this happening?

The answer is be easy; the rights of crime victims are starting to be viewed as human rights. Rights which are considered so elemental and basic that not to provide them would be considered a gross violation of the basic human condition.

Ok, so how did we get to this point?

Prior to the 1960's, the criminal justice systems in most nations were concerned with ensuring the accused with a fair an impartial trial. In order to achieve this, the accused was granted a host of rights within the justice system. On the other hand, the victim of a crime had no rights; they were considered witnesses for the prosecution, and were supposed to be grateful to the State for whatever form of prosecution or punishment the State decided upon.

During the 1960's there started an awaking of social consciousness to the plight of crime victims. Crime victim rights groups, objecting to the treatment forced upon them, formed in countries around the world. Academics in the fields of criminology, psychology, social work and victimology started studying the effects of crime on the victims, proving that providing them with certain information and legal protections were vital in aiding them in recovering from the effects of both the crime and the journey through the justice process. Lawyers, politicians and legislators began to realize that entire sections of their population were being exposed to mistreatment by the very justice system which was sworn to protect them.

The movement towards identifying the rights of victims as human rights began around the same time, spurred by these simultaneous and interlinked developments. There are three documents which are considered to form the basis for identifying human rights. These are the United Nation's:

• Universal Declaration of Human Rights (1948)
• International Covenant on Civil and Political Rights (1966)
• International Covenant on Economic, Social and Cultural Rights (1966)

Full of legalese which can be very dense and, at times, open to interpretation, there is one human right which is spelled out clearly in all three documents: that all citizens have a right equality before the law and the courts, as well as in social and cultural rights. No one group can be granted more rights within the law than another without violating this principle. The fact that those accused of crimes had many legal rights, while the victims had few-to-none, became a central point of contention from which the international community started considering the rights of crime victims as potential human rights.

This drive continued, culminating in 1985 with the passage by the United Nations of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which clearly laid out the definition of victims of crime and the abuse of power, and what rights they should be granted by their governments

In short, the Declaration said that victims had right to:

• Access to justice and fair treatment (within the law and
  
• Restitution for their losses (from the accused)
  
• Compensation for their injuries (from their government)
  
• Assistance from their society (social, psychological, medical)

The Declaration became the basic template upon which many countries have modeled their national victim rights policies. Several associated documents were issued by the UN to help governments and legislators understand the intent of and processes by which, these rights could be established in their countries. These were the:

• Guide for Policy Makers on the Implementation of the UN Declaration of Basic Principles of Justice for Victims of Crime
• Handbook on Justice for Victims on the use and application of the Declaration of Basic Principles of Justice for Victims of Crime
  

So, given these UN documents, and the fact that so many countries have come to accept and use these policies, surely this means that we can say victim rights are now truly human rights?

Sadly, not yet. Some governments refuse to see the rights of crime victims under the law as a human right. The passage of a simple piece of legislation could remove these rights. Some jurists and legislators argue that the granting of rights to victims in the courts will remove some of the rights from the accused, or will give the victim undue influence in the court, eliminating the accused's right to a fair and impartial trial.

But, doesn't the UN Declaration mean countries have to grant these rights?

The Declaration, as it was written and passed, is only a statement of position or principles and is not legally binding on the members of the UN. In other words, it does not fully and legally provide that the rights of victims of crime are indeed human rights, on an international scale. While individual countries have granted these rights to their citizens, there is nothing in this document which provides that all signatories will.

To achieve this goal, the UN would have to pass a full Convention (e.g. the Convention of the Rights of the Child), which binds all UN members to establishing these rights for their citizens.

Is anything like this being worked on?

Fortunately, yes! Such a Convention for Victims of Crime is being actively developed, spear-headed as a joint project by the International Victimology Institute (INTERVICT) at Tilburg University (the Netherlands), and the World Society of Victimology (WSV), an international non-governmental organization devoted to promoting academic research and victim rights and advocacy on a global scale.

INTERVICT maintains a background and history of the draft convention, as well a copies of the latest version of the Draft Convention on Justice and Support for victims of Crime and the Abuse of Power in English, French and Spanish, which you can read. When passed, it will finally and fully confirm the rights of victims of crime as human rights, which cannot be dismissed, diminished or taken away.

If you're interested in this project, you should contact either Intervict or the WSV for information.