AUSTRALIAN INSTITUTE

OF CRIMINOLOGY

trends
No.33 &
Victim Impact issues
Statements in crime and criminal justice

Edna Erez
A neglected aspect of our criminal justice system has been the impact of
crime on victims. But during the last decade much progress has been made
both overseas and within Australia.
In 1985 the General Assembly of the United Nations formally approved
a Declaration concerning fair treatment and assistance for victims of crime
and victims of abuse of power. However, the role of the victim in the
criminal trial and sentencing process has provoked controversy in a
number of quarters.
This Trends and Issues was prepared by a recent Visiting Scholar to the
Institute. Dr Erez describes the Victim Impact Statement (VIS) - a
significant initiative which embraces concerns about the rights of victims in
a manner consistent with existing legal principles. The VIS is an organised
and structured method of ensuring that the court is aware of important
information concerning the effect of the crime on the victim. It has been
adopted in South Australia and in many jurisdictions in the USA and
Canada. The VIS is a simple way of integrating victims into the criminal
justice process. It should be considered for adoption by all Australian
jurisdictions.
Duncan Chappell
Director

Victims: the 'Eliminated' Persons

ntil recently victims of crime have been considered the 'forgotten

ISSN 0817-8542
(Schafer 1968) has resulted in a criminal justice process in which the
victims play only a secondary role. They report crimes to officials who
ISBN 0 642 16615 3
decide whether to prosecute the case, how to proceed, and what type of
punishment to recommend (where applicable). In adversary legal systems,
such as Australia, England or the USA, the role of the victim in court
proceedings is a passive one - that of an observer or, at best, a witness. As
a witness, the victim has to remain outside the court until summoned to
testify. During the brief time in court, the victim/witness is limited to
answering questions from the prosecutor or the defence attorney. Victims
have no formally recognised role in the trial of their offender, and no Australian Institute
mechanism to voice their concerns and feelings regarding the crime and its of Criminology
impact on them. The prosecutor presumably represents the GPO Box 2944
Canberra ACT 2601
Australia

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 Australian Institute of Criminology
victims and their interests. Private insensitive criminal justice
The Need for Change
prosecution has been virtually practitioners, most of which have been
abandoned and the public prosecutor addressed through various programs
has monopoly over the criminal justice (Erez 1989b). But the most important The perception that the criminal law is
process. Victims have no power to grievance mentioned by victims was unresponsive has led to demands
compel prosecutions, nor 'standing' to their lack of 'standing' and voice in the being made to reintegrate victims into
contest decisions to dismiss or reduce proceedings. As one victim who the criminal justice process, or
charges, to plea bargain (reduce testified before the Presidential minimally, to provide them with a
charges or sentence in return for a Committee established to study the mechanism for presenting the way in
plea of guilt by the offender), or situation of victims in the USA which the crime has affected them,
challenge the sentence imposed on expressed it 'Why didn't anyone and their concerns or wishes regarding
their offender. consult me? I was the one who was the crime and the disposition of the
This concept of crime as an kidnapped, not the state of Virginia' offender. These needs have been aptly
offence against the state, and its (President's Task Force on Victims of expressed by the US President's Task
attendant administration of justice, Crime 1982, p. 9). Research in several Force on Victims of Crime which
have resulted in a host of economic countries has shown that victims have asserted that:
and psychological problems for crime a more general wish than punishment
victims, and most importantly in or compensation: '... their wish for (v)ictims, no less than defendants,
perceptions of injustice. National respect and appreciation - their are entitled to their day in court.
movements concerned with recognition as an important and Victims, no less than defendants,
ameliorating the victim's plight have necessary participant in the criminal are entitled to have their views
emerged in numerous countries, justice system' (Shapland et al. 1985). considered. A judge cannot
including Australia. Initially the The 1990 report of the Compensation evaluate the seriousness of a
movements' efforts to achieve reforms Tribunal in Victoria also documents defendant's conduct without
focused on the economic and that for victims, being heard is as knowing how the crime has
psychological difficulties resulting important as being compensated. burdened the victim. A judge
from the crime. Programs for The presumption that the cannot reach an informed
compensation from the state and prosecutor represents the victim is determination of the danger posed
restitution from the offender were contradicted by many victims' by a defendant without hearing
instituted to alleviate the financial experiences. If the public interest from the person he has victimized
difficulties associated with comes into conflict with that of the . . . (1982, pp. 76-7).
victimisation. Psychological victim, the former prevails. Public
counselling and other services to treat interest considerations often have The international community also
the distress resulting from the crime nothing to do with the strength of the recognised the need to integrate
were also provided. As the process victim's case or the level of injury victims in criminal justice
has continued, concern for victims' sustained. Issues such as the proceedings. The United Nations in
rights expanded into areas beyond its defendant's utility as a state witness in the Seventh Congress on the
initial focus and has centred recently another case, correctional concerns Prevention of Crime and the
on victims' reintegration into the related to the offender, or the priority Treatment of the Offender assembled
criminal justice process (Erez 1989a). given to certain types of cases, may in 1985 in Milan, adopted a
The demand for increased victim determine whether a defendant will be Declaration concerning victims of
participation in the sentencing process prosecuted (Goldstein 1982). Once crime and abuse of power. Part A of
was associated with studies which the offender is charged there are no the Declaration, which addresses
documented victims' alienation from guarantees that the judiciary will access to justice and fair treatment of
the system. Studies of victims before become aware of the full impact of the crime victims, specifically mentions
the law have suggested that victims' crime upon the victim. Prosecutors do 'allowing the views and concerns of
grievances are as much with the not always disclose the details of the the victim to be presented and
procedures of the criminal justice crime and its impact on the victim to considered at appropriate stages of the
system, particularly their lack of the sentencing authority. In particular, process' as one component of fair
involvement in the decision making where the accused pleads guilty, the treatment of victims. This Declaration
process, as with the supposed injustice prosecutor may be inclined to was formally approved by the General
of the outcome. summarise or not reveal the extent of Assembly of the United Nations in
There were other complaints such the harm sustained by the victim, December 1985.
as delays, unnecessary continuances, dependent on the pre-trial negotiations
risk of intimidation by offenders, lack between the prosecution and the
of information concerning the process defence (Corns 1988).
and the status of the case,
uncomfortable waiting rooms, and

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 Australian Institute of Criminology

Overseas Legislative Victim Impact Statements. The material will be put before the court
Australian Law Reform Commission by prosecutors, although including it
Responses (1988) raised some objections to the in a pre-sentence report prepared by
VIS and the relevance of victim probation departments remains an
Several avenues of victim integration preferences concerning the disposition option. This law, which took effect in
in the criminal justice process have for sentencing decisions. The January 1989, allows only written
been adopted by various countries. In Commission asserted that information statements concerning the impact of
the USA, in most of the states and at about the impact of the crime on the the crime on the victim, but not the
the federal level, and in parts of victim is brought to the court's right of allocution or victim statement
Canada, this right has been granted attention by the prosecution or the of opinion concerning the offender or
through the use of a Victim Impact defence, and proposed to retain the a proposed sentence. Collecting and
Statement (VIS). A VIS is a statement current practice. The Victorian summarising information on the
made by the victim and addressed to Sentencing Committee (1988) has also crime's effect on the victim has
the judge for consideration in decided against allowing victims' become a part of the normal duties of
sentencing. It usually includes a input via the VIS (see Arguments the investigating police officer.
description of the harm in terms of against the VIS over page). The New
financial, social, psychological and South Wales Task Force on Services
physical consequences of the crime. In for Victims of Crime (1987) Arguments in Favour
some jurisdictions a VIS also includes recommended awaiting decision on of the VIS
a statement concerning the victim's that issue until evaluations of
feelings about the crime, the offender programs currently operating in other The demands to allow victims some
and a proposed sentence, referred to jurisdictions are completed. form of participation in the criminal
as a victim statement of opinion. In contrast to these negative or justice process, particularly input into
In the USA, two models express cautious state responses, the sentencing decisions, have inspired
the current possibilities for victims' Australian National Committee on heated debate. Supporters of the
involvement in the sentencing process. Violence has recently recommended victim's right to participate have
The first model requires or allows the that the VIS should be introduced in presented various moral, penological
preparation of a written VIS that is all jurisdictions, subject to inclusions and practical arguments in its favour.
introduced at the sentencing hearing, of safeguards against abuse by either The effectiveness of sentencing will
typically as an attachment to the pre- the Crown or the defence (National increase if victims convey their
sentence report. The second model Committee on Violence 1990, p. 181). feelings, and the process will become
expands on the first by granting the South Australia is the only state more democratic and reflective of the
victim the right to allocution an oral that has integrated victims into the community's response to crime (Rubel
statement by the victim at the time of criminal justice process through 1986); victim participation will
sentencing. The party responsible for (written) input into the proceedings. In provide recognition to the victim's
preparing the victim impact 1985 the government of South wishes for party status and individual
information varies, ranging from Australia formulated and endorsed 17 dignity (Henderson 1985). It will
probation departments, to prosecutors' principles on victims' rights, one of result in increased victim cooperation
offices, to victim service agencies (in which (no. 14) states that the victim with the criminal justice system,
Canada, the police prepare and update shall: thereby enhancing system efficiency
the VIS). The VIS also differs in be entitled to have the full (McLeod 1986). The provision of
content and form, ranging from simple effects of the crime on him or information on the harm suffered by
checklists in some states, to lengthy her made known to the the victim will increase
descriptive statements, both oral and sentencing court either by the proportionality and accuracy in
written, in others (McLeod 1988). As prosecutor or by information sentencing, and remind judges, juries
plea bargains are the most common contained in a pre-sentence and prosecutors that behind the 'state'
way to dispose of cases, many states report; including any financial, is a real person with an interest in how
have passed laws that allow or social or physical harm, done to the case is resolved (Kelly 1987).
mandate victim participation and input or suffered by the victim. Any Fairness also dictates that when the
in plea bargaining (Kelly 1990). other information that may aid court hears, as it may, from the
the court in sentencing offender, the offender's lawyer, family
including the restitution or and friends, the person who has borne
The Australian Situation compensation needs of the the brunt of the offender's crime
victim should also be put before should be allowed to speak (Sumner
In Australia, federal, state and the court by the prosecutor ... 1987).
territorial law reform committees have In 1988 South Australia passed the From a psychological viewpoint,
considered the issue of victims' input Criminal Law (Sentencing) Act a criminal justice system that
into sentencing via the concept of according to which victim impact provides no opportunity for

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 Australian Institute of Criminology
victims to participate in personality attributes of the victim' may result in victims being subjected
proceedings would foster (Grabosky 1987, p. 147). to unpleasant cross-examination
greater feelings of helplessness Prosecutors object to victim input (Victorian Sentencing Committee
and lack of control than one that in sentencing because they fear that 1988). A related argument is that
offers victims such rights their control over the cases will be mandating the VIS may itself be
(Kilpatrick & Otto 1987, p. 19). eroded and the predicability of traumatic for victims, and that victims
Victim involvement and the outcomes reduced. Defence lawyers may not wish the offender to be fully
opportunity to voice concerns is naturally view increased victim aware of the harm caused to them
necessary for satisfaction with justice, involvement as hindering the defence. (Australian Law Reform Commission
psychological healing and restoration Concerns over delays and additional 1987).
(Erez 1990). expenses for an already overburdened Other objections to victim input
Some argue that victims' input may system if victims are allowed to are based on ideological grounds.
advance the various goals of participate are also mentioned Opponents of the participatory right
sentencing: retribution is enhanced (Australian Law Reform Commission express the concern that rights gained
when the extent of the harm caused to 1987). Some further argue that victim by the victims are rights lost to the
the victim is disclosed so that the input would add very little useful or defendant, that bringing the victim
punishment meted out can be novel information which is not already back into the process means a
measured against the level of harm available to the court. reversion to the retributive, repressive
caused. Victim participation enhances Others suggest that the criminal and vengeful punishment of an earlier
deterrence because it increases law already takes into account the age. These reforms would shift the
prosecutorial efficiency, which in turn harm done to the victim in the primary goal of criminal justice
increases the certainty of sanction. definitions of crime and mitigating or administration from meeting the
Incapacitation is advanced if the aggravating circumstance. Moreover, concerns of the state to meeting the
victim has a special knowledge about as the law requires foreseeability of concerns of the private individual,
the defendant's potential for future the effect of the crime on the victim, thus returning criminal prosecution to
criminal activity. Victim participation only effects on the 'normal' victim are the days when it was little more than a
might also promote rehabilitation as to be considered (Victorian branch of tort law (Abrahamson
the offender confronts the reality of Sentencing Committee 1988). 1985). Some argue further that
the harm caused to the victim (Talbert Concerns have also been raised victims' anguish has been exploited or
1988). about the effect of the VIS on victims' mistranslated into support for the
health and welfare. Some have conservative ideology, and the attempt
suggested that one of the dangers is to to bring the victim back into the
Arguments Against create expectations among crime process is seen as yet another way to
the VIS victims that are not or could not be accomplish the goal of harsher
met (Fattah 1986). It has been argued punishment (Henderson 1985).
The objections to victims' input in that instituting formal procedures for Opponents of victim integration in the
sentencing centre mostly on legal victims' input may be counter- criminal justice process often portray
arguments concerning the appearance productive: the opportunity for input the victim as a vindictive individual
of justice and actual justice, and some in sentencing may create or heighten whose main objective in providing
practical concerns (Erez 1990). Some the expectation that this input will be input will be to ensure severe
argue that allowing victims' input will considered in sentencing decisions. punishment of the offender.
undermine the court's insulation from Because judges are sometimes
unacceptable public pressures (Rubel precluded from considering a victim's
request, those who believe that their Related Research and its
1986), or will result in substituting the
victim's 'subjective' approach for the opinions have been ignored may Implications
'objective' one practised by the court become embittered and resentful
(Victorian Sentencing Committee (Henderson 1985).
1988). Others are concerned that allowing Are victims punitive?
Conceivably, similar cases could victim input will aggravate victims'
Research has questioned many of the
be disposed differently, dependent psychological well-being as they
assumptions underlying the arguments
upon the availability of a VIS to the relive the crime experience. Because
against the use of the VIS, and has not
judge. Allowing victims to express consideration of the VIS material by
confirmed the fears expressed by
their wishes concerning the offender the court may increase the severity of
those who object to allowing victims'
will also inject a source of punishment, the offender must be
input into the sentencing decisions.
inconsistency and disparity in given the right of challenging the
The message from studies in several
sentencing dependent on 'the factual basis on which the escalation
countries is that first-hand experience
resiliency, vindictiveness or other of penalty occurs (dispute causes,
of crime as a victim does not, in
extent of harm and prognosis). This

4
 Australian Institute of Criminology
general, fuel a desire for heavy victims' input creates or exacerbates court was also likely to ignore the
sentences (Walker & Hough 1987, p. problems (Hillenbrand & Smith victim's desire for a probation
10). Furthermore, victims have not 1989). Although some prosecutors in sentence over imprisonment (Walsh
been found to be more punitive than one busy New York jurisdiction 1986). Another study which examined
the general public. Recent studies reported logistic difficulties in all types of felony offences (Erez &
abroad (for example Zimmerman et al. acquiring the VIS, they generally Tontodonato 1990) found that victim
1988) as well as in Australia viewed this practice in a positive light. retributiveness or requests for
(Indermaur 1990) suggest that public This opinion was also shared by incarceration do not influence the
attitudes tend to be more punitive than judges. Further, all the judges reported court's choice of sentence when all
the actual sentencing practices of the no challenges from the defence, and relevant factors are taken into
courts. all but one stated that the VIS did not consideration. The decision whether to
Victims also do not view slow down the adjudication process. grant probation or impose a prison
themselves as vengeful (Gardner The one dissenting judge stated 'So  sentence is explained primarily by
1990). Less than 10 per cent of is worth it' (Henley et al. legal consideration such as severity of
victims report a crime in order to see forthcoming). When the information the offence or prior convictions of the
an offender punished (US Dept of for the VIS is collected and updated defendant. This study, however, found
Justice 1988). Studies that examined by a person who can reasonably verify that the presence of the VIS in the
the content of the VIS in various its credibility, and is given to the court file does increase the likelihood
jurisdictions in the USA confirm that defence on a routine basis, challenges of a prison sentence. Thus, the
only a fraction of victims in felony from the defence are likely to be availability of the details of the crime
cases request that the offender be minimal, if at all (Henley et al. and its impact on the victim, rather
incarcerated or punished severely forthcoming; Sumner & Sutton 1990). than the victim's specific retributive
(Erez & Tontodonato 1990; Walsh Most of the judges and prosecutors requests, influence the likelihood of a
1986). Quite often victims merely in another study thought that victims' probation sentence. Once a prison
want restitution or compensation input in the form of the VIS improved sentence is imposed, the VIS does not
(Shapland et al. 1985; Gardner 1990), the quality of justice by influencing significantly affect the length of prison
or help and counselling rather than restitution awards and sentence type sentence.
punishment for their offender, even in and length (Hillenbrand & Smith A recent survey of judges
cases where the offender was a 1989). This is in line with research in concerning the effects of the VIS
stranger (Kosaki 1984). England that suggests that a key confirms that judges designate
The 'retributive' element in some variable in making a compensation 'objective' information (for example
victims' preferences about sentencing order was whether it was mentioned in the physical and financial impact of
may reflect lack of knowledge about court proceedings. This could have the crime) to be more useful in
alternative dispositions. Often victims occurred in the course of the sentencing decisions than 'subjective'
who recommend imprisonment do so prosecution making its case, as a types of information (for example
because they are not aware of any result of an application by the victim social effects), particularly the victim
other options, such as community or simply as a reminder to the court of statement of opinion (Hillenbrand &
service, treatment disposition or even its power (Shapland et al. 1985). As Smith 1989).
restitution. Victims also tend to prosecutors may not be aware of Lastly, the victim's presence in the
receive recommendations for victims' preferences, or for various court rather than the use of the
disposition made by the prosecution or reasons fail to convey them to the allocution right has some effect on the
even the defence (Henderson & court, allowing victims to express length of sentence. Typically, the
Gitchoff 1981). Fears that victim their wishes in a VIS may guarantee victims who come to the sentencing
participation in sentencing would that the sentencing authority becomes tend to be involved in many phases of
result in harsh pleas (in cases of plea aware of these requests. the trial process, thus providing a
bargaining) have also not been constant reminder to the judge that the
realised (Kelly 1990). Does the VIS have a substantial victim is a person who has suffered
impact on sentence outcome? substantially (Erez & Tontodonato
Does the VIS create or 1990).
Research on the impact of victims'
exacerbate problems for the The finding of no effect of the
input on sentence outcome suggests
criminal justice system? allocution right is not surprising:
that it has only a limited effect. A
Research in jurisdictions that allow study of victims' requests in Victim By the time the victim comes to
victim participation indicates that Impact Statements submitted in sexual the court, a well prepared
including victims in the criminal assault cases found that the court was probation report having been
justice process does not cause delays most likely to recognise the desires of received by a well prepared
or additional expenses (for example the victim when they were consistent judge leaves little reason for
Heinz & Kerstetter 1979), and very with the court's own view of an modification of an intended
few court officials believe that appropriate sentence. Further, the decision. A victim's emotional

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 Australian Institute of Criminology
appeal to the court cannot carry victims' satisfaction with justice unnecessary, repeated and insensitive
more weight in place of facts (Hagan 1982). questioning; they do not relate to
and criteria (Villmoare & Neto Studies of victims who participated eliciting information which the victims
1987, p. 37). as subsidiary prosecutors or who view as important for a 'just' sentence.
The sentencing stage is more acted as private prosecutors (as
ritualistic in nature and input at this several continental justice systems Implementation of the VIS
juncture is not likely to be considered, allow) reveal that their satisfaction Despite an enthusiastic endorsement
as the decision has already been made. with justice is higher than those who of the victims' right for input, in
In this sense, the allocution right only did not actively participate in the practice this right is not fully
constitutes a symbolic aspect of victim proceedings (Bienkowska & Erez implemented. Several studies in
integration, whereas the opportunity 1991). different jurisdictions in the USA have
for a written VIS is a more realistic Although victims' distress levels found that little is done to inform
and efficient approach to enable a are not directly influenced by aspects victims of their right to provide input,
victim's input to influence the of procedural justice such as the VIS, or to elicit this information. These
sentencing decision (Erez & input in this form is nonetheless studies estimate that no more than a
Tontodonato 1990). important for victims' distress as it quarter of the victims fill out a VIS,
The conclusion that emerges from influences the type of sentence (Erez and only 6-9 per cent exercise the
these combined findings is that judges & Tontodonato 1990) and whether a right of allocution (Villmoare & Neto
use their discretion and judgment in request for restitution becomes known 1987; Henley et al. forthcoming;
considering victims' input and and awarded, which in turn influence Hillenbrand & Smith 1989; Erez &
requests. The VIS and the information perception of equity by the victim. Tontodonato 1990). Studies in
it contains is only an additional, Few studies, thus far, have jurisdictions which use Victim Impact
though relevant, item used by the systematically examined the effect of Statements indicate that often victims
judge in meting out a sentence. It by participation in the criminal justice do not know what a VIS is, or claim
no means results in substituting the system on victims' distress. Further, that they did not fill out a VIS when in
'subjective' approach of the victim for these studies were mostly limited to reality they had (Erez & Tontodonato
the 'objective' one required by the law rape victims and their results are forthcoming). The latter may occur
and practised by the court. inconclusive (Lurigio & Resick 1990, because in the aftermath of the crime,
pp. 60-1). No research has victims are questioned by numerous
Does the VIS affect victims' specifically examined the effect of persons or agencies and get confused
distress and satisfaction with filling out a VIS on victims' distress. about the purpose of particular
justice? Indirect evidence however, suggests interviews (rather than traumatised
Research on the effect of victim that victims may be interested in about retelling their story). This may
participation via the VIS and providing input for the purpose of be prevented by explaining to victims
satisfaction with justice indicates that 'justice', even at the supposed cost of the purpose of the interview and its
filing the VIS is associated with reliving the crime. A study in function in sentencing decisions.
increased satisfaction with the Australia found that victims, The failure to elicit information for
outcome. However, for a small particularly of serious crime, the VIS or notify victims of this right
proportion of victims, filing a VIS expressed interest in receiving may be explained in several ways:
may heighten their expectations to information concerning the case at all feelings by court officials that the VIS
influence the outcome, and when they stages of the process, even at the seldom contains novel or more
feel that their input had no effect on expense of being reminded of the detailed information than they would
the sentence, their satisfaction with crime and its impact (Gardner 1990). have had otherwise; scepticism by
the sentence is decreased (Erez & Most victims also expressed the prosecutors about the extent to which
Tontodonato forthcoming). This feelings that, for the purpose of judges consider victims' input, or
problem may be prevented by sentencing, the court should have prosecutors' reluctance to have the full
describing a realistic range of information on the impact of the crime impact become known, so as to
sentences and explaining to victims on their emotional state, family and jeopardise a negotiated plea; practical
the considerations judges apply in lifestyle, and their concerns for safety, problems in acquiring the VIS; or
sentencing decisions. Recent research in addition to the medical and traditional ideological resistance to
in Australia confirms that most financial consequences (Gardner viewing victims' input as a legitimate
victims are interested in understanding 1990, p. 48). The combined effect of factor in criminal justice decision-
the considerations used by the courts these findings suggests that victims making. The latter will probably be a
in sentencing (Gardner 1990, p. 48). will be willing to provide what they major barrier to overcome in the
Better understanding of the criminal consider vital information for implementation of the victims' right to
justice system often contributes to sentencing, even at the expense of be heard. The low percentage of
reliving the crime. Victims' complaints victims who exercise the right to
about being questioned pertain to speak (compared to the submission of

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 Australian Institute of Criminology
a written VIS) is probably due to . . Ultimately, with the victims' Because victim participation and
victims' preferences to convey their best interests in mind, it is better input into sentencing decisions
feelings through an informal interview to confer no rights than 'rights' challenge traditions and established
with a sympathetic probation (or other without remedies (Kilpatrick & patterns within the criminal courts,
criminal justice) officer rather than Otto 1987, p. 27). legislative reforms often amount to lip
through recitation in an open court service; they typically lack remedies
(Villmoare & Neto 1987). for non-compliance. Victims' rights,
In South Australia the problem of Conclusion such as the VIS, then become well-
a court not receiving information kept secrets that only few victims
concerning the impact of the crime on The VIS as a mechanism for victims' know about, or make use of, to their
the victim has still not been input into sentencing decisions is an advantage (Kelly 1990). Victims'
adequately overcome in cases where important reform in the direction of input continues to be dependent on the
an offender is arrested and pleads making the criminal justice system personal initiative or goodwill of the
guilty at the first court hearing. It has 'victim oriented' (Sumner 1987). It is a relevant court official. If Australia is
been suggested that prosecutors benign way of providing victims with to develop an effective mechanism for
should apply for an adjournment to the right for input and satisfying their allowing crime victims a meaningful
provide an opportunity to ascertain the need to be part of the process, without input into sentencing, there will need
impact. However, there is a concern jeopardising the basic principles of the to be a profound change in the system
that the courts may not be prepared to adversary system or compromising the or a stronger legal backing of this
grant adjournments for the sole rights of the accused. important right.
purpose of preparing the VIS. As the The VIS contributes to procedural
courts have set a precedent by and substantive justice. It provides
adjourning cases for receiving a pre- victims with an important component
sentence report for the offender's sake, of procedural justice, 'the opportunity
it has been argued that justice requires to present their case to the authorities
a similar opportunity be afforded to before a decision is made' (Tyler
victims (South Australia Police 1990). 1988). Because the effect of the crime
It seems that implementation will on the victim is a legally relevant
continue to be problematic as long as consideration in sentencing practices
providing the VIS is dependent on (Sumner & Sutton 1990), providing
officials' beliefs in the importance or the VIS to the sentencing authority
utility of Victim Impact Statements, also enhances substantive justice: it
their goodwill and diligence in ascertains proportionality in
eliciting them, and the existence of sentencing. Eliciting VIS materials in
organisational incentives for a reliable and systematic manner will
furnishing this information to the increase both accuracy and
courts. The laws requiring submission consistency of sentences. The benefits
of the VIS (Section 7, South to be gained by introducing the VIS in
Australian Criminal Law all jurisdictions will undoubtedly
(Sentencing) Act 1988 is a typical outweigh the costs, if any, of
example) often explicitly state that the providing victims with the right to be
validity of a sentence is not affected heard.
by non-compliance or insufficient Reports from jurisdictions that
compliance concerning the VIS. This have introduced the VIS suggest that
reality has led some to comment that victims' input does not raise practical
victims' 'rights' are only privileges that or legal problems. Yet, there is a
operate at the mercy of the police, persistent belief to the contrary,
prosecutor or the judge and that there particularly among the legal
is a need to reform the reforms (Kelly professionals. In the majority of the
1990). cases tried in our courts it is neither
difficult to identify the victim, nor
Promising victims rights that are accept his or her reporting of the harm
not delivered may involve a sustained. The implementation of the
certain danger: providing rights VIS does not transform sentencing to
without remedies would result in a three-way contest; the input is only
the worst of consequences, such one additional factor for the judge to
as feelings of helplessness, lack of consider in a sentencing disposition.
control and further victimisation .

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 Australian Institute of Criminology
----------- 1990, 'Victim Participation in the Sexual Assault Cases', Journal of Criminal Law
Criminal Justice Systems', in Victims of Crime: and Criminology, vol. 77, pp. 1126-41.
References Problems, Policies and Programs, eds A.J. Zimmerman, S., Alystyne, D. & Dunn, C. 1988,
Lurigio, W.A. Skogan & R.C. Davis, Sage, 'The National Punishment Survey and Public
Abrahamson, S.S. 1985, 'Redefining Roles: The Newbury Park, California, pp. 172-87. Policy Consequences', Journal of Research in
Victims' Rights Movement', Utah Law Review, pp. Kilpatrick, D.G. & Otto, R.K. Crime and Delinquency, vol. 25, pp. 120-49.
517-67. 1987,'Constitutionally Guaranteed Participation in
Australian Law Reform Commission 1988, Criminal Proceedings for Victims: Potential Effects
Sentencing, Report No 44, AGPS, Canberra. on Psychological Functioning', Wayne Law
Review, vol. 34, pp. 7-28.
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