SHOULD VICTIMS HAVE A SAY IN THE CRIMINAL JUSTICE SYSTEM?
My submission to the Victoria Law Commission (VLC) seeks to discuss the Victim’s Role in sentencing and seeks to answer two questions which is followed by a discussion. The questions that are answered below are -
- Should victims be allowed to express in their victim impact statement an opinion about what sentence an offender should receive?
- Should victims be allowed to make submissions at sentencing hearings?
Since the two questions are closely related and knitted and offer very little difference, both of them will be answered in one go with different sub-headings.
These opinions and remarks are purely personal in nature and do not reflect anyone else’s views on the matter. All the opinions mentioned below have been backed by references related to interviews, studies and academic journals. I hope my recommendations and remarks are found useful by the VLC and are incorporated into the system.
SHOULD VICTIMS BE ALLOWED TO EXPRESS IN THEIR VICTIM IMPACT STATEMENT AN OPINION ABOUT WHAT SENTENCE AN OFFENDER SHOULD RECEIVE? &,
SHOULD VICTIMS BE ALLOWED TO MAKE SUBMISSIONS AT SENTENCING HEARINGS?
No, I strongly believe that victims should not be given powers to include opinions about the length and nature of sentence an offender should get in their victim impact statement (VIS). The victim may submit the details of the ordeal (mental, psychological, social and economic) they faced during and post crime via the VIS but giving an opinion on the sentence would challenge some elementary factors which are elaborated below.
CHALLENGING THE SANCTITY AND STRUCTURE
I believe, that opinions being included in the VIS will not only infringe the structure of the system (which is discussed below) but will also question the very basic motive of the VIS which is to the provide victims with a voice and a platform through which they can share their horrors to the court and not to ask for opinions related to the sentence.
Asking for the victim to give opinions on the nature and tenure of the sentence would hugely affect the sanctity of the case. A trial has to be free and fair, and should not be influenced by foreign factors, and both, the victim and accused are entitled to a fair trial. Fairness in a trial does not mean seeking revenge on behalf of the victim, it means to follow the laid procedures for the court, maintaining the dignity and privacy of the victim, keeping the victim informed about the ongoing process.
The victim in most of the cases are ill –informed about the laws, sentences and the functioning of the courts. They (victims) do not have the legal knowledge and would likely seek to avenge the crime (or seek revenge) by asking for severe punishments which will usually be disproportionate to the harm and crime committed.(Pillsbury, 1989 p.655) And this is what is ensured by the judges and courts who deliver an appropriate, rationale, proportional and quantum sentence. Seeking revenge for a crime brings me to the next subject of the nature of courts put in place in Victoria state which is discussed below.
RETRIBUTION VS REVENGE?
First of all, the involvement of victims in a criminal case disrupts the very basic nature of criminal litigation and proceedings, as these are cases which are fought between the offender and the state, which has the solemn duty to prosecute ‘on behalf’ of the victim. Bringing in the victim by asking their opinion would change the basic judicial structure as it would recognise victims as a third party to the case. (Victoria Law Reform Commission, 2015)
The Law reforms commission of Victoria (2015) has, in the past ruled out any submissions in the victim impact statement, terming it ‘inadmissible’. The participation of victims in the sentencing procedure would not only challenge the structure of the same but will also be opposed to the retributive courts which are adversarial in the model.
I believe that by bringing in the victim’s opinion into the sentencing procedure, the courts would abandon the retributive style of justice and incline towards restorative justice. The retributive justice system has adapted the Kantian philosophy of respect, (Kant, 2004) which states that every member of the society including the offender and immoral humans should be respected and giving harsh and tormenting sentences would reduce them to the state of animals. The restorative system also works in a similar way, by condemning the criminal act and deliberately inflicting pain which is in proportion to the crime, on an offender. (Pillsbury, 1989 p.659) Punishments under the retributive justice system are aimed to set straight the criminal by condemning the crime and not the criminal in person thus making the system depersonalised. (Pillsbury, 1989 p.660)
By allowing the victim to give opinions on the sentence, I strongly believe that the court will be giving a free hand to the victim to avenge the crime who would seek the harshest punishment thus making the case personal and shifting from the pivot point from maintaining the uniformity in sentencing to seeking revenge on an individual basis. (Schuster & Propen, 2010 p.7) It is the job of the judges to deliver justice in a depersonalised way and with all the feelings suppressed. Uniformity of sentencing is maintained by the judges by following the 2 pillars of sentencing, which are Motive and Harm caused to the victim. (Pillsbury, 1989 p.662) I think that by giving victims the opportunity to give opinions, the judges might get influenced by the opinions and not follow the principles of sentencing before giving out the verdict.
I also believed that by giving the victims an opportunity, the court will allow tokenistic activities. This means that the court will allow the affected and marginalised (here, the victims) to take matters in their own hands by giving opinions on the tenure and sentence. This act of tokenism will not only jeopardise the case but will also, as discussed above disrupt the judicial structure.
PSYCHOLOGICAL FACTORS INFLUENCING
This part will discuss the psychological factors attached if victims are allowed to give opinions on the sentence and takes into consideration results and facts risen from two studies/experiments conducted on different groups.
It has been found that VISs give a mental soothing to the victim and delivery of the VIS to the courts carry therapeutic benefit which helps in the recovery of the victims from the trauma, post crime. (Lens et. al 2014 p.20) It has also been noticed that sentences don’t give victims the satisfaction that VISs can give when quoted by the judge during the delivery of the verdict. (Schuster & Propen, 2010 p.77) Sharing the ordeal and agony brings down the trauma and has been classified as ‘perceived benefits’.(Lens et. al 2014 p.20)
As Susan Bandes (1996) said, “VISs are narratives that have to be suppressed.” Scholars argue that VIS bring emotions and highly personal statements rather than facts which are of no use to the court proceedings. (Schuster & Propen, 2010 p.77) It has also been brought to notice that witnesses and other shreds of evidence provide more information and are much more credible than a VIS in many cases(Schuster & Propen, 2010 p.97), for additional information (that people think that will be revealed in the VIS) can easily be obtained from police and other various reports including the victim statement which makes the VIS an overlapping document for existing facts.
Another plausible reason why I am against the inclusion of opinions in the VIS is that victims might not ask for the best and the most deserving sentence for the victim. (Schuster & Propen, 2010 p.97) This could be possible due to sociological, psychological and legal factors. It is found in studies and tests that victims while giving opinions might not think rationally due to the trauma, stress, threat of post-incident violence. Many times, victims in restorative courts have been influenced by non-objective considerations and have asked for either too lenient or too harsh punishments. (Victoria Law Reform Commission, 2015) A classic example of this could be of victims of domestic violence giving opinions on the sentence who commonly ask the restorative court to send the offender back with rehabilitation and skipping the incapacitation and retribution part. Or what will if the victim was not loved or perhaps hated by his/her near ones and hateful or disdain things would be written in the VIS (maybe they could mention his/her drug addiction) and ask for a lenient sentence?
Findings from the first experiment (Greene, 1999 p.334) in which mock jurors were interviewed indicate that a majority of them will choose death sentence to life imprisonment after hearing VIS with opinions of victims on the sentencing. There are other factors also which can influence the capital sentence like the way it is presented, the weight of the opinion, background of the victim etc. It was found during the experiment that information about background and the victim mattered and though it did not have a direct impact on the sentence, it can significantly influence the minds of the mock jurors, compelling them to give death sentences to life imprisonment. It was noted that the family members who had written ill about the victim had less liking and respect from the mock jurors which also played a role in the sentencing aspect, this was termed as the “spill-over effect” by the researchers.
In the second interview (Erez & Rogers, 1999 p.231) which based on the interviews of judges and prosecutors, it was found that many suggestions and opinions have been incorporated from the VIS into to the sentencing. 1/8th participants accepted that the severity of the sentences have changed with the inception of a victim impact statement and is further impacted when opinions on sentencing are stated in them. Some participants even state that their view/opinion on the case changed after hearing the VIS, showing a lack of emotional control over professional conduct.
The above two experiments clearly show that the VIS has an indirect connect with the severity of the case and the document (along with other minor factors) can influence the judge, which could lead to a sentence desired by the victim.
I believe that these personal statements when read out in the court influences the judges’ mind and bringing in victim’s opinions can further influence the sentencing. It is a widely established fact that VISs don’t directly influence the sentencing process but influence the judge’s mind to give out sentences as desired by the victim. Judges must avoid putting undue faith in benign emotions which could deviate the judge from the set guidelines for sentencing. In a case of sexual assault, (Schuster & Propen, 2010 p.100) the judge gave an upwards of 80 months when asked the reason for this upward sentence, he claimed that he was moved by the emotional appeal of the victims via the VIS. Judges thus have to maintain composure, be dispassionate, stoic and untouched by the emotions while delivering the verdict as a reaction to an emotional appeal would undermine thecourt’s authority. (Bandes, 1996 p.364)
CONCLUSION
I have tried my best to answer the questions, whether opinions on sentencing should be allowed in the victim impact statements by the victims or not and, whether they (victims) should be allowed submissions during the court hearings or not. In my submission, I went against the motion, by giving my opinions which were backed by academic publishing and past experiments. In the concluding remarks, I would like to re-establish the fact that by allowing the victims to recommend on the severity of the sentence the court is not only getting into tokenism but also giving a free hand to the victim. This not only changes the motive of VIS but also taints the sanctity of the case. By recognising the victim into the court sentencing procedure, the court is making them (victims) a third party to the trial which goes against the conventional structure of a criminal case. The victims while delivering their opinions would seek to avenge the crime, which beats the motive of the retributive justice system.
In the second part, I analysed the psychological factors attached to the VIS and how it influences the judges to give out the sentences desired by the victims. This was backed by 2 interviews and experiments conducted on judges, mock jurors and prosecutors. The mock jurors also claimed that they would prefer a harsher sentence in a capital sentencing if the VIS is read out along with the opinion of the victim. In the two interviews, it was found that VISs do not have a direct impact on the judgement but they can influence the judges and prosecutors.
I, hereby rest the case for you to examine and analyse.
Regards,
Kushal Kumar Sinha.
REFERENCE LIST
Bandes, S, 1996, ‘Empathy, Narrative, and Victim Impact Statements’, The University of Chicago Law Review, Vol. 63 file:///Users/kushalsinha/Downloads/SusanBandesEmpathyNarrati.pdf
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Samuel H. Pillsbury 1989, ‘Emotional Justice: Moralizing the Passions of Criminal Punishment’ , 74 Cornell L. Rev. 655 file:///Users/kushalsinha/Downloads/SamuelHPillsburyEmotional.pdf
Schuster ML, Propen, A, 2010 ‘Understanding Genre through the Lens of Advocacy: The Rhetorical Work of the Victim Impact Statement’, Written Communication 27(1) 3–35 https://journals-sagepub-com.ezproxy.lib.monash.edu.au/doi/pdf/10.1177/0741088309351479
Schuster ML, Propen, A, 2010 ‘Degrees of Emotion: Judicial Responses to Victim Impact Statements’, Law, Culture and the Humanities 6(1) 75–104 https://journals-sagepub-com.ezproxy.lib.monash.edu.au/doi/pdf/10.1177/1743872109349104
Victoria Law Reform Commission, 2015, ‘Role of victims in sentencing ’, chapter – 9, viewed 10 May 2019 https://www.lawreform.vic.gov.au/content/9-role-victims-sentencing
