Victim Impact Statements: Some Concerns about Current Practice and Proposed Changes Chris Marshall Victoria University

of Wellington

One positive feature of recent law and order debate has been the growing recognition of the needs and rights of victims. After centuries of relegation to the status of being mere witnesses for the prosecution, victims are assuming an increasingly prominent and defined role in the justice process. The advent of such things as victims rights legislation, the provision of victims advisers in court, the funding of various victim support agencies, the development of a victim notification system to keep them informed of parole hearings and release dates of offenders, and the provision for restorative justice options within the justice system, all point to a heightened sensitivity to the welfare of victims. Recently Justice Minister, Simon Power, announced a raft of proposals to be introduced soon to Parliament to further strengthen the rights of victims and ensure government agencies are more responsive to their needs. These include the creation of a Victims Centre within the Ministry of Justice, the development of a Victims Code, improvements to the Victim Notification System, and several changes to the Victims Rights Act 2002 to enhance the participation of victims in the criminal justice process. Many of these proposals are to be welcomed. Especially commendable is the intention to increase the availability of restorative justice and to require the District Court to refer eligible cases for consideration of restorative justice unless there are specific reasons not to. More concerning, however, are moves to increase the scope of Victim Impact Statements (VIS) in the court process. Currently victims have the right to submit a VIS in a variety of ways, though it is usually in writing, and to request the opportunity to present the statement in open court. The judge has the discretion to deny this request and to edit the statement if there are concerns about its length or content. Under the new proposal, victims will have the right to use their own words in the VIS and to address the offender so that the offender may better perceive the impact of the offence on the victim. For

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serious offences (s.29 of the Victims Rights Act), victims will have an automatic right to present their VIS in court, though the judge retains the right to manage the process. Clearly there is immense value in giving victims the opportunity to describe the impact that the offence and the offender has had on their lives. It is extremely important for victims to know that their stories have been heard, their suffering acknowledged and their innocence vindicated. A VIS is one way of enabling this to happen. It is equally clear that if such statements to be meaningful, victims must be free to recount their experience in their own words. Understandably victims will feel disempowered or re-victimised if the judge heavily censors their statements, as occurred in some recent prominent cases. But the way the VIS currently functions in the criminal process is also laced with danger, and the proposed changes are unlikely to make things better. One troubling feature is the way a VIS can serve to demonise an offender in the public mind, especially in particularly graphic cases that attract high-level media attention. While the statements may evoke compassion for victims, which is positive, they may also stir up hatred, fear, anger and disgust towards the defendant, which is surely negative. Generating disgust towards specific persons or groups in society is extremely perilous. It is a known ingredient, for example, in the deliberate dehumanisation of opponents targeted for persecution or ethnic cleansing or systematic abuse (think of how torture victims at Abu Ghraib were stripped naked and placed on dog leashes as though they were non-human animals). To the extent it feeds feelings of disgust in society for the defendant by depicting him in as a sub-human monster, solely and wholly responsible for the evil perpetrated, a VIS can fuel a primitive lust for revenge in the wider community. This frequently leads to criticism of the court for failing to impose a punishment commensurate with the level of public loathing felt for the offender, which in turn places pressure on legislators to ramp up levels of punitive severity. Exaggerated media focus on selected aspects of victim statements, then, cumulatively has a coarsening effect on public civility and a deleterious downstream impact on sentencing practices. A second matter of concern is whether the VIS actually encourages genuine or lasting empathy for victims. As a brief snapshot in time, the VIS can

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never do justice to the complexity and variability of a victims experience. Nor does it allow the subjects unique identity and particularity to emerge. Instead, by using stock victim imagery and categories, the statements can pander to stereotyped distinctions between good victims and bad offenders. But reality is far more complex than this. Victimhood is not a proxy for virtuousness. For every good, decent, law-abiding victim, there are also bad, violent and law breaking victims, and endless shades in between. Most offenders, moreover, have first been victims themselves. It is also dangerous to extrapolate from a victims immediate experience to what all victims really want or need or what is best for them or wider society. There is a tendency for onlookers to misinterpret the anger and pain victims express as an intense desire for retribution and to assume that harsher penalties are the best way to satisfy their wants. As a result, victims deeper needs for counselling and understanding, for long term support and financial restitution, often get lost in the shuffle. Meanwhile media outlets and law-andorder lobbyists expropriate their stories for ulterior political agendas. A third concern about the VIS is its non-dialogical nature. According to Simon Power, a chief goal of the VIS is to enable victims to address the offender so that the offender may better perceive the impact of the offence on the victim. But if the statement is addressed to the offender, surely the addressee should have the opportunity to respond in some appropriate way to the victims comments. Otherwise, the statement is spoken at the offender or about the offender, but not to the offender. Moreover, by requiring offenders to remain silent in the process, current practice exacerbates negative judgments about them. Their silence, though involuntary, is often construed by onlookers, and experienced by victims, as added confirmation of their lack of remorse and basic human decency. None of this is to deny the validity of giving victims the chance to describe in detail the impact the crime has had on their lives and loved ones. It is crucially important that the justice process makes room for this to happen. But, in my view, restorative justice mechanisms provide a more constructive way to achieve this end. In place of the lop-sided public theatre currently surrounding the VIS, especially in high profile cases, it would be better to have a process where hearings are adjourned after conviction to allow victims, if they want to, to meet directly with the defendant in closed session to recount their experience and to allow the offender to reply.

Such a meeting should be considered part of formal court proceedings and must be competently facilitated, perhaps by the judge. Victims should be free to use their own words and speak truthfully of their personal experience, though they should be required to focus on the impact of the crime rather than on the wickedness of the offender. Subsequently they should be free to place their VIS on public record, if they want to. But the initial meeting should not be open to the general public or the media, so that an outpouring of vicarious venom does not swamp the positive benefits of personal engagement between the parties. Under Mr Powers proposed amendments, the judge will have the power to arrange an alternative way of presenting the VIS where multiple victims are involved in the case. But arguably an alternative method, based on restorative justice principles, would be preferable in the vast majority of cases. Dialogue is nearly always preferable to monologue, especially for a process intended to help an offender better perceive the impact of the offence on the victim.