CHAPTER FIVE; VICTIMS’ NEEDS AND RIGHTS ( download the VPA of

2014)
In the aftermath of crime different victims have very different needs. Victims’
needs can be practical and material, emotional and social, and can encompass any
or all of the following: reassurance and counselling; medical assistance; financial
and practical assistance to secure property; information about case progress;
guidance about what to expect in court; the chance to express how the crime has
affected them; assistance with filling out a form for State compensation;
information about the release date of their offender.
Needs can be both immediate and long term, and can range from practical
assistance such as repair of doors and windows after a burglary, through to
counselling over a period of months. Once victims decide to report a crime and
actively become engaged with the criminal justice system, they are confronted with
a series of requests that place further demands on them. If a case goes to trial
victims have to face the prospect of being in the presence of their offender in court,
and of undergoing potentially harsh questioning at the hands of a defence lawyer.
They may also face intimidation at the hands of the defendant’s family and friends.
Victims feelings and concerns develop as they pass through the pre-trial, trial, and
post-trial stages of their case. As a reflection of this, what victims say they want,
and what they actually need, changes as their situation develops.
Victims’ needs reflect the nature of their victimisation and are shaped by their
personal characteristics and circumstances. While we can assume that victims of
sexual assault are more affected by their victimization than victims of car theft,
there can be great variation in how victims are affected by similar crimes.
Factors such as the degree of violence involved, the presence of third parties, and
the nature of care and support offered after the crime, all impact on the victim’s
physical, mental and social recovery. The nature and degree of post-traumatic
stress disorder (PTSD) experienced by victims in the aftermath of crime depends
on a range of variables that reflect the crime itself and a host of other factors.
Personality, coupled with previous experience of victimisation, and the
circumstances surrounding a criminal incident, work together to influence the
impact of crime. Whether someone can be considered a nervous or resilient
character, whether a crime was particularly brutal in nature, and other events
surrounding a crime, such as recent bereavement or loss of employment, are some
of the factors influencing the impact of crime. In combination, these factors
influence the impact of both personal and property crime on victims (Maguire,
1980).
The degree of physical and social power individuals possess is key to
understanding their experience of crime, and how they (and others) perceive their
own vulnerability as potential victims .

Physical power affects the impact of crime on victims, and the extent to which
they can be expected to make a full and speedy recovery after an assault. In this
regard, when comparing different groups of people, some are obviously more
physically vulnerable than others: women compared with men; the disabled and
infirm compared with the able-bodied; children compared with adults; and the
elderly compared with younger able-bodied adults. But within each group there is
great variation in physical strength that correspondingly impacts on an individual’s
ability to recover from crime. In turn, the same degree of violence can have very
different consequences for different victims; a baby can die from a hard punch,
while a young fit man may suffer only bruising.
Social power impacts on how individuals experience victimisation, and how they
come to terms with victimisation, as both physical and nonphysical harm. Intra-
familial and institutionalised abuse preys on the social powerlessness of certain
groups who do not have the means to confront abusers in positions of power over
them. For example, while the elderly are less likely than young men to be victims
of violent crime in public places, they are more vulnerable to violent and/or sexual
victimization in private places such as the home and institutionalised care because
of their combined lack of physical and social power.
These broad categorisations can be variously added to as they are crosscut by other
influential factors. For example, mental ability or state-of mind, reflecting a
particular mental history and circumstances, can help to determine how people
cope in the short and long term post victimisation. Obviously, those suffering from
depression and mental disability might not be expected to cope as well as others.
But the ability of the mentally disabled, among other vulnerable victims, to cope in
the aftermath of crime is cross-cut by those factors already mentioned – such as
social power/powerlessness, as provided by work, and by family and support
networks. While general categorisation of victims according to physical and social
attributes can help determine need, it can also result in stereotypes that neglect the
needs of victims who are considered as being able to cope.
While the very young, the very old, and female victims of sexual assault and
domestic violence need special recognition as vulnerable victims and witnesses,
mainstream victimological research has also begun to recognise the vulnerability
and experiences of particular categories of male victims. Just as all women cannot
be constructed as ‘victims’, so all men cannot be constructed as aggressors,
offenders, and as indifferent to their own vulnerability and victimisation.
As a reflection of the shifting emphasis on ‘who’ can be constructed as vulnerable,
male rape is now acknowledged as a crime which, like male on female rape,
reflects abuse of power and has consequences for determining need amongst a
hitherto neglected group of victims.
Victim rights
The 1999 UN Handbook on Justice for Victims (UNODCCP, 1999) and the 1999
UN Guide for Policymakers (UNODCCP, 1999), published some years after the
1985 Victims Declaration to which both documents refer, set out to provide
victims and policy makers with a list of appropriate standards of service provision.
To this end both documents go some way towards addressing the gap between
evocation of rights and implementation of victim centred justice in practice using
‘best practice’ guidelines.
The victims’ rights addressed include the following:
 the right to receive support and assistance; information and referrals to
supportive services, including victim compensation, support groups,
housing, safety planning, and counseling, among others
 notification of the status of the case, and status and location of the
offender ,the right to receive information concerning the pre-trial and trial
process, the outcome of the trial and the subsequent release of the offender;
 protection from intimidation, harassment, or harm -the right to receive
protection in appropriate circumstances, including instances where the
victim is afraid to testify or fears intimidation by the offender.
 participation in justice processes (right to participate in the pre-trial and trial
proceedings), including the use of victim impact statements before
sentencing and at parole release hearings to describe the emotional, physical,
and financial losses resulting from victimization.
There are four possible forms that such participation may take. The first form is
decision-making control, in terms of which criminal justice agencies would be
obliged to ‘ascertain and apply the victim’s preference in the particular case’. Due
to its potential to undermine prosecutorial control of the proceedings, and to
interfere with defendants’ due process rights, this form is unlikely to be adopted in
many jurisdictions. The second form, consultation, involves imposing obligations
on criminal justice agencies to ascertain and consider victims’ views ‘about the
appropriate course of action at a particular stage of the process’ without according
victims the power to determine outcomes (Edwards, 2004, p. 975). Victim
consultation is employed in certain pre-trial procedures, such as decisions to
continue or discontinue prosecutions. Edwards’ third and fourth forms of victim
participation are information-provision and expression. The former refers to the
need of criminal justice agencies ‘to receive information from or about the victim’,
whereas the latter involves ‘the victim wanting to provide information or
communicate feelings’ to such agencies (ibid, p. 976). Victim Personal Statements
are commonly regarded as performing these two functions.
 the right to compensation/ restitution and other legal/financial obligations
(such as child support) that help victims recover financial losses resulting
from crime.
The introduction of State compensation to victims of violent crime can be
interpreted with respect to four key rationales that States may adopt individually or
in combination:
1. The ‘legal duty’ of the State to compensate crime victims for its failure to
prevent crime;
2. The ‘moral duty’ of the State to assist victims on humanitarian and welfare
grounds;
3. A form of ‘loss distribution’ along the lines of social insurance from taxpayers’
money;
4. As a ‘benefit to the State’ because it affords political credibility to those who
introduce and administer State compensation schemes.
 The right to freedom from discrimination in the exercise of the above rights
Balancing victims’ and offenders’ rights
The adversarial nature of criminal justice in most jurisdictions provides the
background to debates concerning the need to balance victims’ and defendants’
rights. Victim centred developments are outlined with an eye to the balance of
interests that now faces criminal justice agencies, such as the probation service, as
its remit is extended to include consideration of the needs and rights of both
offenders and victims. There is need to examine how victims can be successfully
included in a criminal justice system that is traditionally constructed on the basis of
conflict between offender and State, with victims excluded from this process.
Initiatives to assist victims to give their best evidence at trial, such as use of live
television links between the court room and an adjoining witness room, need to be
interpreted for what they bring to the trial process and, in particular, the
presentation of evidence. It is not useful to view such initiatives as primarily a
threat to defendants’ rights and the traditions of the court room.
Alternatively, a working partnership needs to be achieved between due process in
law (the essence of which is to protect the rights of defendants and offenders) and
victim-centred justice/crime control (the essence of which is to promote the rights
of existing and potential victims). In recognising victims’ freedom to participate at
some level in the criminal justice process, but not in decision-making concerning
offenders, the rights of suspects/defendants need not be eroded. For example,
providing victims with information, such as the release date of their offender, does
not affect offenders’ rights, but it does inform victims and satisfy society that
victims’ interests are being taken into account. In comparison, asking victims to
comment on whether an offender should receive bail, in the form of a victim
statement, has potentially negative consequences for some offenders, and arguably
does little to help victims beyond satisfying the needs of some individuals for
retributive justice.
In this regard, Sanders and Young (2001) advance a justice model whereby
inclusion of victims does not impinge on defendants’ rights or freedoms. They call
this the ‘freedom model’. The model can accommodate the rights of both victims
and offenders, providing, that is, that application of victims’ rights does not
impinge on the freedom of offenders beyond what has been ordained in a court of
law. The subjective opinions of victims, for example with respect to sentence
severity, are not valid in this model because they have different consequences for
different offenders according to the retributive nature of the individual victim.
Sanders and Young, in outlining their ‘freedom model’, are searching for a justice
model that is both participative and inclusionary for victims and offenders. They
note that the old rehabilitative model of justice, based on reform of the offender,
existed without active participation of offenders on whose behalf decisions were
made. And, in the same way, traditional justice models exist with victims as
outsiders with no participatory rights. In contrast, giving due weight to both
offenders and victims in the criminal justice process, without impinging on either
party’s freedoms, can help us move towards a participative and inclusive justice
model.
Arguments in Favor of Victim Personal/Impact Statements (Justifications for
victim participation)
Historically, the crime victim was the forgotten entity in the criminal justice
process. Victims took on passive roles as observers. They were not given an
opportunity to voice their opinions or concerns regarding the crime and how the
crime impacted their lives. The early 1970s saw a mobilization of action on the
part of feminists and rape victims who became the first victims’ rights organizers,
often under the theme of “Take Back the Night.” Victims’ rights issues began to
appear in law journals proposing that court-reforms be developed to promote the
needs of victims and their families. The 1970s can be remembered as the decade
when activists developed shelters for battered women, opened rape crisis centers,
and established crisis hotlines.
Since the 1970s, victim advocates have argued that the scale of justice is tipped in
favour of the defendant because the criminal process focuses more on the provision
of rights to the defendant than to the victim. The US President’s Task Force on
Crime Victims in 1982 acknowledged the imbalance of rights afforded victims and
defendants in the criminal process and proposed to remedy the imbalance by
supporting the use of victim impact statements. The Task Force, policymakers, and
court officials highlighted the imbalanced scale of justice in their argument for
increasing the rights of victims in the criminal process. Victim impact statements
were first introduced in Fresno, California, as part of pre-sentence investigations.
 These statements allow victims to describe the physical, emotional, and
economic effects of the crime beyond the visible harm they may have
experienced. Victims typically describe the emotional and financial harm
they experienced as a direct result of the criminal act.
 Victim impact statements also allow victims an opportunity to outline what
they believe is an appropriate punishment for the crime.
Victim impact statements were developed to improve the treatment of crime
victims by the criminal justice system, to restore dignity to victims, and to allow
victims’ input into criminal justice procedures.
A VPS comprises a written statement containing details of the physical, emotional,
psychological and financial impact of the crime on the victim. It may be made by
any person who has been the subject of a criminal act by another person. Eligible
victims often include ‘bereaved relatives or partners in cases of homicide or
serious sexual or physical assault [and] parents, where the primary victim is a
child’.

One of the most compelling arguments in favor of victim impact statements is that
such statements may have a positive impact upon court dispositions, leading to an
increase in the use of restitution and compensation orders. Victim impact
statements, at the very least, provide victims with the opportunity to voice their
feelings concerning how the crime impacted them socially, physically, mentally,
and financially. Such statements will let court officials know that the victim is a
real person with substantial interest in how the case is processed. Supporters argue
that VIS reflects the community input into the criminal justice system; they remind
authorities that behind the State is a real person who has been harmed; and if they
are not allowed this will confirm the victims feelings of helplessness and
powerlessness, adding to their psychological trauma.
It is difficult for a judge to evaluate the seriousness of a defendant’s conduct
without knowing how the crime has burdened the victim and the danger imposed
by the defendant. The victim’s family members should have the opportunity to
speak and inform the jury about their loss and how the crime has affected their
lives and juries should have the opportunity to hear testimony that gives meaning
to the victim’s life. Recognizing the victim as one whose statements are important
will increase the victim’s confidence in and satisfaction with the justice system
while simultaneously reducing any sense of powerlessness over the effects of the
crime. Victim impact statements promote positive attitudes from victims and their
families about the criminal justice process as well as enhance victim
empowerment. This contributes to reducing secondary victimisation and thus
ultimately victims’ co-operation with the system. Such cooperation is vital for the
proper functioning of the criminal justice system.
Some have argued that it is a matter of basic fairness - the courts hear from almost
everybody else during sentencing.
The acknowledgement of victim impact statements during the sentencing phase
also increases the court’s awareness of the loss the victim or/and the victim’s
family has suffered as a result of the crime; increases victim restitution and
compensation; increases accuracy and proportionality in sentencing; and increases
the jury’s compassion about the family’s loss.
Therapeutic jurisprudence emphasises the importance of victim input in
contributing to the catharsis and closure deemed necessary to promote the healing
of victims. Procedural justice theory, however, takes the view that providing
victims with an opportunity to ‘tell their stories’ accords them ‘process control’
and concomitantly increases their satisfaction with the criminal process, regardless
of the eventual outcome. The view has also been expressed that VPS legitimate
victims as parties to criminal proceedings (Goodey, 2005, p.166).
Apart from such victim-centred considerations, VPS are also alleged to benefit the
criminal justice system. The information they contain is said to assist criminal
justice agencies to understand the impact of the crime on the victim and thus to
influence their decision making. In addition, consideration of harm to victims
promotes ‘accurate or effective sentencing outcomes’. On the basis of research into
the use of Victim Impact Statements in South Australia, Erez and Rogers
concluded that, in cases where such statements have affected the sentences
imposed, they have contributed to sentence accuracy and proportionality rather
than to increased punitiveness (1999, p. 235). The absence of increases in sentence
on account of VPS has been ascribed to the tendency of victims ‘to understate,
rather than overstate’ the effects of the crime.
 Some opponents of VIS assumed that the effect of VIS would be to increase
penalties because it was thought that crime victims would necessarily be
vindictive, and thus either exaggerate the effects of the crime upon them or
make unfounded allegations against the offender. Well known English
academic Andrew Ashworth has thus described this use of VIS as victims in
the service of severity. Criminologists and other criminal justice
professionals argued that the victim’s anguish as revealed in the VIS will be
exploited as a back door means to increase penalties and therefore social
control, thereby adding to the conservative law and order agenda. Defence
lawyers and civil libertarians argued that VIS engendered a subjective
approach to assessing appropriate penalties, thus undermining the objectivity
of the court on such an important issue as a person’s liberty. They asserted
that similar cases would be disposed of differently depending on the
education, awareness, resiliency, and vindictiveness or forgiveness of
individual victims. VIS would thus increase the unpredictability of the
 outcome, detracting from the proper functioning and purpose of the criminal
justice system, which is to decide on the guilt or innocence of the accused
and, if he or she is guilty, an appropriate penalty. Such decisions must be
made with objective fairness so that there is a degree of consistency in the
prosecution and punishment of offenders.
 Opponents of VPS have also focused on their incompatibility with the
traditional aims of sentencing and, consequently, with defendants’ rights, as
well as on their limited practical value for victims. Ashworth has expressed
the concern that the use of VPS may lead to sentences being imposed on the
basis of harm that was unforeseen by the offender. In addition, he has
questioned whether it is ‘right that a particular offender should receive a
more severe sentence because his victim suffered abnormally serious after-
effects, or that another offender should receive a much lower sentence
because his victim was counselled successfully and apparently recovered
quickly’ (1993, pp. 505–6). VPS may make the sentencing process more
arbitrary than it already is and may accordingly infringe the defendant’s
right to a fair trial (Walkate, 2007, p. 117).
 Opponents also raise concerns that VPS do not, in fact, inure to the benefit
of victims. Ashworth has argued that research into the English pilot projects
using VPS demonstrates that many victims who made such statements
‘found that their hopes about the influence of their statement were dashed’
because it had a negligible effect on the charge or the sentence (2000, p.
198).
Regardless of their merits or shortcomings, recent research has indicated that VPS
have little effect in practice. Tapley has shown that victims are not regularly or
consistently given the opportunity to make VPS, despite their entitlement to do so
(Walklate, 2007, p. 120). Erez has ascribed this lack of practical effect to resistance
from legal professionals (2000, p. 178). However, Sanders has argued that the use
of VPS in traditional common law systems is an inappropriate means of achieving
victim participation (2001, p. 457). It is thus not surprising that they have little
practical effect. Appending victims’ input to the sentencing stage rather than
providing for their participation at the pre-trial and trial stages facilitates the
expression of views that do not empower victims procedurally or prevent
secondary victimisation .
However, as Erez has pointed out, in adversarial systems as currently conceived,
Victim Impact Statements constitute the only way in which ‘victims can articulate
their suffering, identify their concerns, and express the way their lives have been
affected by the crime’ (2004, p. 499).
A number of studies based on mock juries have been conducted to examine the
victim impact evidence in capital sentencing. Some of these studies have revealed
that victim impact statements may lead the jury to perceive the victim as an
upstanding community member rather than someone of questionable character. In
mock trial studies, when jurors heard victim impact statements that described the
victim as a respectable and sterling member of society as opposed to someone with
a questionable reputation, they rated the respectable victim as being likeable,
decent, and valuable; felt more compassion for the victim’s family; believed that
the emotional impact of the murder on survivors was greater; and rated the crime
as being more serious. Thus, the harm information presented by the victim’s family
concerning how the murder affected their lives influenced sentencing judgments of
mock jurors more so than the demeanor of the witnesses.
Victims’ right to make impact statements at the sentencing phase of the trial,
however, has not been as popular with the public and criminal justice officials as
has their right to restitution, counseling services, and information updates about
their cases. The right to have a voice in the sentencing decision continues to be a
debate.