Crime, Victims and Justice
Write an essay comparing crime, victims and justice
The last several decades has witnessed a shift in both the role as well as the status of victims in the criminal justice system. According to Flynn (2011, p.73), the gradual shift has arisen from the need to accord greater recognition and consideration to the experiences of victimization. One of the proposed legislative reforms that has been made to improve the victimization experience is part 4 and 26 of the Victims and Other Legislation Amendment Act 2018, inter alia, that the courts are to receive the entirety of victim impact statement (VIS) irrespective of any objections of the existence of inadmissible material. Notably, Erez (2000, p.165) defines VIS as a victim input in criminal justice proceedings in the form of oral or written statements during sentence hearing. VIS allows the victim of a crime to express; in their own words, what they personally, as well as their families and those close to them, have experienced due to the crime in question, thus, judges should demonstrate how they have incorporated the needs of the victims in their judgements. The incorporation of this legislation reform arose from the Commission tasked by the Attorney General to both report and review the role and place of victims in the process of criminal trial.
Rationale for Reform
The need for reform requirement that courts specify the parts of the VIS that they did or did not take into account during sentencing is justified by the need to incorporate victims of crime into the criminal justice system. Integrating VIS leads to the recognition of participatory rights and presents diverse therapeutic benefits to both the victims as well as the offenders (Erez 2000, p.167). Additionally, Flatman and Bagaric (2001, p.241) argue that through victim impact statements, and the demonstration of how they have affected the sentence, judges will be able to demonstrate how the consequences of the crime with which they are concerned in sentencing have influenced their decision. Also, the reform ensures justice for the offenders because judges, being human beings, may go overboard to impose disproportionate penalties to offenders because of the manner in which they were touched by the VIS. Moreover, as Flynn (2011, p.75) holds that the use of VIS is justified on the basis that crimes should not be seen as offences against the state but rather as perpetrated against some people who become victims. Also, reform to the requirement for judges to specify the extent to which they have been influenced by VIS can lead to a proper evaluation of the proportionality of the sentence of the crime in question.
Arguments for the Reform
Those supporting the reform argue that victims cannot be passive participants in the criminal justice system; on the contrary, they should take an active role in influencing sentencing since they are affected by the crime. For instance, Clark (2010, 27) argues that the courts need to move beyond the process of reducing victim trauma in the justice system to directly addressing how their judgments are responsive to the individual justice needs of the victims and survivors. Similarly, Doak (2005) supports the amendment by asserting that injecting a victim’s perspective into sentencing could lead to transparency in the outcome of a criminal case. Through the victim’s participation in the criminal process, the justice system is legitimized when it engages interested and aggrieved parties in the resolution of a dispute, thus, demonstrating how VIS has been incorporated into the judgement is a justifiable amendment.
Requiring judges to specify how the VIS has been used in the determination of a sentence and how the needs of the victims have been addressed leads to an increased use of restitution and orders that seek to address the harms caused to the victims. According to Bandes (2016), such a reform is vital because it reminds the courts and the judges that the victim is an individual whose suffering is a unique loss to the society and to his/her family; thus, the sentence should demonstrate such statements. Moreover, incorporating the VIS in the judgement delivered and specifying how this has happened allows for the psychological healing and closure for the victims and promotes sentences that reflect the suffering endured by the victims and humanizes them (Iliadis and Flynn 2018, p.551). As such, proponents argue that judges should be required to state how they have considered or not considered the VIS and how sch a consideration has ultimately affected the final sentence that they have made.
Arguments against the Reform
Those against the amendment argue that requiring the judges to specific how the VIS have been incorporated in a judgment will only lead to an increment in the severity of sentencing based on the emotional state of the victims as well as their exaggerated claims of harm. Bandes (2016) states that VIS consists of emotionally charged testimonies that would divert the attention of the court from the responsibility of the defendant to the crime to focusing on the character and identity of the victim. Moreover, Johnson and Morgan (2008, p.128) reject the amendment by stating that the triers of fact should not be influenced by the VIS to base their sentencing decisions on the emotions of the victims as opposed to the facts of the case. As such, those against the amendment recommend that the VIS should not be used as evidence but rather should only serve as context; consequently, the judges should not be coerced into incorporating them in sentencing.
Some critics of the amendment have argued that the sentencing process should only be based on the facts of the case and not on the need for judges to satisfy the needs of the victim. For instance, Flatman and Bagaric (2001, p.243) assert that when judges demonstrate that they have considered the needs of the victim; based on the VIS, then there is a higher likelihood of the victims having a heightened fear of reprisals from the offender’s family and associates, which then makes the amendment counterproductive. Similarly, Erez (2000, p.167) argue that such an amendment overemphasizes the victim’s harm as opposed to offender culpability and thus, violates the traditional principles of sentencing that do not penalize the offenders for unseen events and results. These arguments have been set forth to make sure that the amendments are not passed into law as they present an injustice to the defendant. However, the benefits that the amendments present to the victim and the justice system are much more than any potential adversities; thus, the amendment is desirable and appropriate.
Bande, S 2016. What Are Victim-Impact Statements For? The Atlantic. https://www.theatlantic.com/politics/archive/2016/07/what-are-victim-impact-statements-for/492443/
Clark, H 2010. ‘What Is the Justice System Willing to Offer?’: Understanding Sexual Assault Victim/Survivors’ Criminal Justice Needs. Family Matters, (85), p.28.
Doak, J 2005. Victims’ rights in criminal trials: prospects for participation. Journal of Law and Society, 32(2), pp.294-316.
Erez, E 2000. “Integrating A Victim Perspective in Criminal Justice Through Victim Impact Statements.” Chapter 8 In Integrating A Victim Perspective in Criminal Justice; International Debates. Ashgate, pp. 165-184.
Flatman, G. and Bagaric, M 2001. “The Victim and The Prosecutor: The Relevance of Victims in Prosecution Decision Making.” Deakin L. Rev., 6, p.238.
Flynn, A 2011. Bargaining with justice: Victims, plea bargaining and the Victims’ Charter Act 2006 (Vic). Monash UL Rev., 37, p.73.
Iliadis, M. and Flynn, A 2018. “Providing a check on prosecutorial decision-making: An analysis of the victims’ right to review reform.” The British Journal of Criminology, 58(3), pp.550-568.
Johnson, I. M., & Morgan, E. F. (2008). Victim Impact Statements–Fairness to Defendants? In Controversies in victimology (pp. 127-144). Routledge.