Victims’ Rights in The Criminal Justice System Research Paper

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The concept of victims’ rights has come to bear considerable influence on the formation of criminal justice policy on both the domestic and international platforms. While commentators have long accepted the desirability of rights for accused persons, it is only in more recent times that a discourse concerning the rights of victims has emerged. Prior to exploring the evolution and extent of such rights, it is worth noting at the outset that the tendency of policymakers and politicians to adopt language couched in the terminology of victims rights’ often departs from the notion of a legal right, in the sense that it can be enforced through the justice system. In other words, while certain benefits or dispensations may be framed as rights on paper, they frequently lack any enforcement mechanism and may not be considered binding on courts or other public authorities.

History And Development

There are diverse and varied accounts which document the ascendancy of victims’ rights within the criminal justice system (see generally Kearon and Godfrey, 2007). Many such accounts begin with reference to Christie’s (1977) critique, in which he argues that the State effectively stole the conflict from its primary protagonists and resulted in the evolution of contemporary criminal justice system being normatively and structurally built around a contest between the state and the accused. For many centuries, victims were “underestimated, ignored and undervalued” (Walklate 2007: 11). It was not until the latter part of the twentieth century that the interests of the victim began to impact upon the shape of criminal justice reform in any meaningful way.

A growing awareness of victimization and its consequences emerged in the years following the Second World War. The postwar era was marked by a “shifting understanding of accountability and citizenship” (Walklate 2001: 204), which was evidenced in the shift towards welfarism, concern for vulnerable members of society, and the emergence of civil society. Although criminal justice policy was not a widely contested political issue during this time, it was within this climate of emerging social rights that a loose association of groups and individuals became involved in campaigning for victim-specific issues (Mawby and Walklate 1994). The feminist movement, in particular, played a key role in highlighting aspects of hidden victimization stemming from domestic violence, rape, and sexual assault across many countries, including the USA, Australia, and the United Kingdom (Dignan 2005; Wolhuter et al. 2009). Increased attention to the plight of children also showed that child abuse was much more prevalent than had been once thought and was a form of hidden victimization. In the United Kingdom, for example, several high profile cases came to light concerning the abuse of children in the care of social services, or where social services had failed to intervene (Mawby and Walklate 1994).

The 1980s and 1990s witnessed a dramatic growth in the number of specific interest groups in many different countries, including the USA, the United Kingdom, Australia, and New Zealand. These organizations included those campaigning for the registration of sex offenders, incest survivor groups, relatives of murdered and missing children, relatives of victims of drunk driving, and those concerned with combating racism, homophobia, and discrimination generally. While such groups were generally unconnected and pursued their own specific agendas, the net effect of their efforts was to highlight the plight of weaker and more vulnerable members of society on many different levels under existing legal and political frameworks (Mawby and Walklate 1994).

Notwithstanding this fragmentation, the victims’ movement was becoming gradually more coherent. Despite their differing agendas and policy objectives, Karmen (1992: 159) argues that, from an international perspective, the movement reinforced a fivefold basic critique of the criminal justice system:

(1) That criminal justice personnel – the police, prosecutors, defence attorneys, judges, probation officers, parole boards.. . were systematically overlooking or neglecting the legitimate needs of crime victims until they all began their campaign; (2) that there was a prevailing tendency on the part of the public as well as agency officials to unfairly blame victims for facilitating or even provoking crimes; (3) that explicit standards of fair treatment were required to protect the interests of complainants and prosecution witnesses.. . (4) that people who suffered injuries.. . ought to receive reimbursement.. . (5) that the best way to make sure that victims could pursue their personal goals and protect their own best interests was by granting them formal rights within the criminal justice system.

The victims’ lobby in the USA has been traditionally perceived as being much more proactive and rights focused than its European equivalents, and the movement grew rapidly during the latter part of the 1970s into the 1980s. The National Organization for Victim Assistance (NOVA) was founded in 1975 and has since been involved in a campaign of national advocacy, championing the victim’s cause and exerting pressure on federal and state authorities. Although many European countries also witnessed the formation of more consolidated national organizations, these tended to focus on meeting the needs of individual victims rather than leading political campaigns to enhance their rights. In the United Kingdom, local associations came together to form Victim Support in 1979, and the organization rapidly expanded its operations during the 1980s and 1990s and secured a twofold increase in Home Office funding (Dignan 2005). The organization now performs the role of a quasi-public body in championing victims’ rights and supporting victims in their capacities as witnesses in court. Similar victim assistance organization evolved in Germany (1976), Ireland (1983), and the Netherlands (1985) (see generally Hall 2010).

As crime victims became more visible, western governments became increasingly concerned with being seen to address their needs as well as the wider problems stemming from the perceived fear of crime. As Geis (1990: 260) describes, “[t]he plight of the crime victim is dramatic and determinable. Their relief is feasible. It has strong political, social and personal appeal. Any of us, at any time, could become a crime victim.” In Garland’s (2001) view, such politicization stems from the wider collapse of penal welfarism and the subsequent need for governments to redefine the role of the criminal justice system. Concerns have, however, been expressed in some quarters that governments throughout the western world are increasingly willing to use the crime victim as a front so that they are perceived as doing something about crime (Garland, ibid.). In this sense, official rhetoric may be used as a mask to introduce policies that are primarily aimed at securing the interests of the state as opposed to victims (Jackson 2003). Such a trend has arguably resulted in governments embarking upon piecemeal and hurried approaches to statutory reform in the name of the victim, in order to maximize the political appeal of certain policies and, arguably, to increase conviction rates. Koffman (1996), for example, has warned that piecemeal measures couched in the language of victims’ rights make it appear that the government is addressing concerns over apparently rising crime while avoiding having to incur the major outlay of expenditure that would be required for more far-reaching reviews of the criminal justice system or major programs of reform.

The 1990s and 2000s witnessed a drift away from a needs-based or welfare-orientated approach to victims’ issues, and a rights-based discourse dominated the policy agenda in the following years (Wolhuter et al. 2009). Many jurisdictions began to produce minimum standards for victims in the form of charters, codes of conduct, or statements of rights. In the United Kingdom, the first Victims’ Charter was published in 1990. The Charter consisted of a set of aspiring principles, while the second edition of the Charter, published in 1996, committed the government to benchmarking existing practices through a set of standards which victims could legitimately expect in relation to criminal justice services. Specific standards were laid down in relation to the role of the police, Victim Support, compensation, prosecution, and conviction/ release of an offender. However, its provisions remained unenforceable through the courts, and the implementation of these standards was largely dependent upon the discretion of individual criminal justice agencies (Koffman 1996). Similar charters were launched in New Zealand (1987), Australia (1993), and Ireland (1999).

In the USA, many states amended their constitutions to give effect to victims’ rights, while others opted to entrench rights through specific legislation. At the federal level, Congress passed the Victim and Witness Protection Act 1982, which sought to guarantee fair treatment for victims and witnesses in criminal courts, and the Victims of Crime Act 1984 established the Crime Victims Fund, comprising federal fines and bond forfeitures to support state victim compensation and local victim assistance programs. Since 1980, all 50 states have adopted over 1,000 pieces of legislation enshrining victims’ rights within their legal systems, including Bills of Rights (Doak 2008).

The beginning of the twenty-first century heralded further advances for victims, with governments seemingly more willing to introduce legislative reforms and revise charters in order to give effect to more radical rights. In the USA, the Crime Victims’ Rights Act 2004 (forming part of the Justice for All Act) conferred victims with eight specific rights, these being the right to protection from the accused, the right to notification, the right not to be excluded from proceedings, the right to speak at criminal justice proceedings, the right to consult with the prosecuting attorney, the right to restitution, the right to proceedings free from unreasonable delay, and the right to be treated with fairness and respect for the victims’ dignity and privacy. In contrast to legislative attempts elsewhere, the rights contained in the legislation are justiciable in the sense that victims are given legal standing to petition the federal (though not the state) courts in the event that any of the above rights have been breached.

In the United Kingdom, the Victims’ Charter was replaced by a statutory code of conduct pursuant to the Domestic Violence, Crime and Victims Act 2004. The new code of practice conferred victims with statutory rights to support, protection, information, and advice in relation to all the major criminal justice agencies. If victims feel the code has not been adhered to by any criminal justice agency, they can file a complaint in the first instance, with the respective agency, and then, via their Member of Parliament, with the Parliamentary Ombudsman. In addition, the legislation has created the office of an independent commissioner for victims to promote the interests of victims and witnesses. Exercising an oversight role, he or she is also responsible for reviewing the code on a regular basis and encouraging good practice. However, the limited extent of the powers conferred on the commissioner underlines concerns that the code fails to provide for any effective enforcement mechanism. Section 34 of the Act provides that a failure by any agency to abide by a duty contained in the code “does not of itself make [any person] liable to criminal or civil proceedings.” There is thus no freestanding right for victims to enforce the code through the courts: the judiciary is generally unable to give it legal effect. Manikis (2011) criticized the complaints process on the grounds that it was overly complex and largely inaccessible for many victims. Hall (2010) reported that the lack of effective enforcement mechanisms is a common limitation found in most charters, with the US Crime Victims’ Rights Act constituting the most robust system of protection.

The International Context

The ascent of victims’ rights within domestic criminal justice systems has been mirrored – and indeed partly driven – by developments on the international platform. Williams and Goodman (2007) suggest that this is particularly true of European jurisdictions, which took their cues from international benchmarks as opposed to Anglo-American countries, where the victims’ movement had been more proactive in nature.

The first major development came in 1985, when the United Nations issued the Declaration of Basic Principles for Justice for Victims of Crime and Abuse of Power, which defined crime prevention as a victims’ rights issue, and enshrined victims’ rights to access to justice, fair treatment, information, assistance, and access to informal dispute resolution methods. Since then, a range of UN instruments, including the Basic Principles for the Treatment of Prisoners, the UN Convention against Transnational Organized Crime and the Standard Minimum Rules for Non-custodial Measures, and the Vienna Declaration on Crime and Justice, have required that the rights of victims to be taken into account in various ways.

On a regional level, crime victims have also been subject to a range of protections. In Europe, both the Council of Europe and the European Union have also been involved in standard setting. In 1983, the former organization was responsible for formulating the European Convention on the compensation of victims of violent crimes which lays down minimum standards for the provision of state compensation to victims of crime. Signatory states to the Convention are required to ensure that victims suffering serious bodily injury or impairment of health receive compensation for at least the loss of earnings, medical and funeral expenses, and the loss of maintenance to any dependents. The Convention was followed in 1985 by the adoption of Recommendation 85(11) on the position of the victim in the framework of criminal law and procedure, which contained guidelines aimed at protecting victims of crime and safeguarding their interest at each stage of the criminal procedure as well as calling on signatories to examine the possible advantages of mediation and conciliation. Since then, the Council of Europe has published many more recommendations, setting down a range of standards in relation to the provision of support, protection, and assistance for victims and witnesses (see especially Rec 87(21), calling on member states to adopt a range of measures to develop assistance and support programs for victims, and Rec 06(08), which stipulates that states should assist victims in obtaining compensation from the offender through both criminal and civil proceedings).

The European Union has also been active in standard setting. In 1999 the commission issued a communication to the European Parliament entitled Crime Victims in the European Union: Reflections on Standards and Action. This document contained 17 proposals grouped under five main headings: prevention of victimization, assistance to victims, standing of victims in the criminal procedure, compensation issues, and general issues (information, language, training) and called on all member states to implement fair and effective legislation in these areas. Following its adoption by the European Parliament, in March 2001, the Justice and Home Affairs Council adopted the Framework Decision on the Standing of Victims in Criminal Proceedings.

The Framework Decision is particularly significant because, in contrast to the various declarations, recommendations, bodies of principles, and other soft law pronouncements of international bodies, the Framework Decision is legally binding and, as such, is directly applicable in all member states of the European Union. More recently, the commission has proposed that the Framework Decision be replaced by a new directive. The Directive establishing minimum standards on the rights, support and protection of victims of crime replicates much of the original wording of the Framework Decision. Given that the objectives of the Framework Decision were not wholly realized, concerns have been expressed that the new Directive will similarly fail to meet its own objectives and will not really add anything new in terms of concrete measures to protect victims (Doak and Taylor 2012).

The Substance Of Victims’ Rights

Victims’ rights are commonly classified as falling within two broad groups. First, victims may possess service or social rights, which encapsulate those specific entitlements which the state makes available to victims in the aftermath of a crime. Secondly, victims may be afforded procedural rights, which entail some form of participation within criminal procedure itself. In addition to this conventional taxonomy, it can be noted that victims are also entitled to the same human rights as everyone else in society, which may (depending on jurisdiction) be entrenched through a constitution or legislation act and enforced through the courts.

Service Rights

The first group of rights to which victims may be entitled has been variously labeled service or social rights. These cover matters such as access to practical support and counseling and the provision of information about the case as it passes through the criminal justice system. The past three decades have witnessed a growing body of evidence which suggests that the lack of information is one of the greatest sources of dissatisfaction for victims and witnesses (Wolhuter et al. 2009). The European Framework Decision sought to address this deficit through stipulating that victims must be given access to any information relevant to the protection of their interests, which should include the types of support and services or organizations available for victims, places and formalities for reporting an offense as well as the ensuing procedures, conditions for obtaining protection, conditions for access to legal or other advice and aid, requirements for receiving compensation, and arrangements available for nonresidents. However, a particular difficulty in providing for such a right in practice is that criminal justice agencies tend to have discrete responsibilities at different stages of the criminal process. This means that information is not readily shared between the different agencies, and it is not always clear which agency bears the burden of sharing which part of the information with the victim (Dignan 2005).

The European Framework Decision also commits member states to ensuring that “victims are treated with due respect for the dignity of the individual during proceedings” and that “victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.” There is, however, considerable leeway as to how terms such as due respect, dignity, and treatment best suited are interpreted, let alone realized in practice (Doak 2008).

While such service rights may prove often expensive or burdensome from an administrative perspective, they are not generally contentious since they only touch upon the passive or indirect role of the victim. Two further major service rights are more radical in nature and have been the subject of significant critique, these being the provision of compensation for criminal injuries and the use of special measures to support vulnerable victims and witnesses while testifying.

Compensation

Many international instruments now recognize that victims of crime ought to be able to exercise a right to receive compensation in the aftermath of violent crime that has caused death or bodily injury. Examples include the European Convention on the Compensation of Victims of Violent Crimes, Council of Europe Recommendation 06(8), and Article 9 of the EU Framework Decision. However, provision for criminal injuries compensation was one of the first service rights acquired by victims many years before such needs were recognized by international benchmarks.

New Zealand was the first to develop such a scheme in 1963, followed by the United Kingdom the following year. Schemes were created in California and New York in 1965 and 1966, respectively, while New South Wales became the first Australian jurisdiction to launch a program in 1968. Schemes are now widespread throughout Europe, Australasia, and North America, with a number of developing countries including the Philippines and Colombia also operating similar programs.

While schemes vary considerably in terms of scope and reach, they usually provide compensation to victims of violent crime, either using a tariff-based approach or assessing each case on its individual merits. Some such schemes have come under criticism for failing to guarantee access as a right to all victims; payments are usually made on an ex gratia basis and are only available to those who meet strict eligibility criteria. While compensation is paid by the state, it can be noted that criminal courts in many jurisdictions have the power to order offenders to make compensation payments to victims directly for any loss or damage resulting from the offense.

One of the criticisms that is most frequently levied at state compensation schemes is the fact they appear to distinguish between deserving and undeserving victims. Most schemes, including that in the UK, only pay out in those cases where the victim is free from blame, thereby promoting the dangerously inaccurate concept of the ideal victim and precluding deviant victims from accessing any recompense (Miers 2000). Only those victims who strike a chord with society’s view of the innocent victim are deemed to deserve state support; bad victims are cast aside by the system (Freckleton 2004). The ideal victim will be happy to cooperate fully with the criminal justice system and the police. Failure to report an offense promptly, failure to make a statement, failure to participate in an identity parade, and failure to attend court have all been cited as grounds for refusing compensation (Spalek 2006).

Despite the widespread proliferation of state compensation schemes, many jurisdictions will seek to prioritize mechanisms that purport to achieve reparation directly from the offender. Such mechanisms, however, are prone to two major shortcomings. First, as noted above, they can only be used where the offender is actually identified. Secondly, most offenders do not have the means to make substantial compensation payments to victims. In the United Kingdom, there are two main avenues for victims to achieve reparation directly from the offender: these are through a legal action in tort through the civil courts or through a compensation order issued by a criminal court.

Since 1973, courts in England and Wales have been empowered to order the offender to pay compensation as part of a sentence for any personal injury, loss, or damage resulting from the offense. Originally introduced as an ancillary penalty, from 1982, courts were given the power to award compensation orders as penalties in their own right. While it is still the norm for them to be awarded in conjunction with other penalties, the court may make a compensation order either instead of, in or addition to, any other penal sanction. Similarly, the German adhesion procedure, distinct from subsidiary prosecution described above, also makes it possible for civil damages to be claimed within the criminal action.

Special Measures

The past two decades have witnessed considerable efforts to reduce secondary victimization in the courtroom, which had become widely documented in adversarial jurisdictions (see generally Ellison 2001). Common measures adopted to alleviate the stress of testifying include the use of screens, televised links, and prerecorded video evidence. Jurisdictions differ in terms of which witnesses may benefit from such measures. Although many schemes were originally introduced with the specific aim of protecting child witnesses, some have been extended to include, inter alia, complainants in rape and sexual assault cases, witnesses in fear of intimidation or reprisal, elderly and disabled witnesses, and witnesses suffering from psychiatric or developmental disorders.

Vulnerable witnesses in inquisitorial jurisdictions have generally not had to contend with the same degree of secondary victimization as their counterparts in adversarial trial systems (Ellison 2001). However, screens and video links are becoming more commonplace in continental systems, with trial judges generally being able to exercise a broad discretion as to what general steps might be taken to accommodate or protect vulnerable witnesses (Doak 2008). Other common measures that may be adopted include the use of written evidence taken in advance of the trial, holding some or all of the trial in camera, or imposing restrictions on media reporting (Doak, ibid). Some countries also make special provision for complainants to be questioned in the absence of the defendant. For example, Spain provides that the offender can be expelled from the court if he behaves in a way that upsets the victim by behaving in an inappropriate manner (Brienen and Hoegen 2000: 875), and the Dutch courts may make provision for a threatened witness to testify anonymously, subject to strict conditions (Ellison 2001).

Procedural Rights

Procedural rights entail some form of participation by the victim in criminal procedure. As such, they raise much deeper questions concerning how far the victim’s interest ought to be accommodated in what is often perceived to be a contest between the State and the accused. International standards have tended to shy away from laying down explicit requirements in terms of stipulating that victim participation ought to be enshrined as a generic benchmark, and the concept of participation does not feature at all in any of the Council of Europe’s recommendations. Those instruments that touch on the issue tend to do so in a relatively vague or non-prescriptive manner. For example, Principle 6(b) of the UN Declaration on Victims states that the judicial process should allow “the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused.” Likewise, Article 3 of the EU Framework Decision grants victims a “right to be heard and supply evidence.” Neither instrument, however, offers specific details as to how such rights are to be realized in practice or as to what stage(s) of the process they are to be applied.

Yet, most jurisdictions from both the common and civil law traditions do make provision for some form of participatory rights. The common-law system of England and Wales, for example, still permits victims to commence and conduct private prosecutions. This procedural right is mostly alien to civil law systems, although for various reasons, it is rarely resorted to in practice (not least because of costs and access to evidence). If victims feel disenfranchised by a decision not to prosecute, it may instead be possible for them to challenge the decisions of public prosecutors by means of review. This means of challenge is found in many continental European systems. Review will either lie with a superior authority, as in Denmark, Luxembourg, and Norway, or a court, as in Germany, Portugal, and the Netherlands (Brienen and Hoegen 2000).

Participation In The Trial Process

The ability of victims to actively participate in the trial process is generally limited, and international standards do not lay down any requirement that victims ought to be considered parties to proceedings. However, it can be noted that Article 68 of the Rome Statute confers victims with a general right to participate in proceedings at the International Criminal Court. Victims may choose their legal representatives, who have the right to present their views and make submissions to the court when their interests are likely to be affected. Such views and submissions may be made at all stages of the court proceedings with only the limitation that it would not be prejudicial or inconsistent with the rights of the accused.

By contrast, victims have little opportunity to participate within domestic criminal trials in common-law jurisdictions. Victims in England and Wales have no right to be present at the trial, no right to legal representation, no right to question witnesses, and no right to present evidence. Other adversarial systems have relaxed their rules in this regard. In the USA, a number of individual states have already adopted amendments to their constitutions and have created a special office of “victim advocate” to enforce provisions contained in their constitutional amendments. For example, a victims’ service advocate was added to the New Mexico Office of the Attorney General in 1999 to provide assistance to victims of violent crime and their families. Some states make provision for the victim to rely on the presence of a legal representative at court. Washington State provides that victims of violence and sex crimes have the right to have an advocate present at any prosecutorial or defense interviews with the victim and at any subsequent judicial proceedings. Similarly, Illinois confers a constitutional right on victims to have the presence in court of “an advocate or other support person of the victim’s choice” (Section 8(1), Illinois Bill of Rights). In these cases, however, the right is confined to the mere presence of a legal representative as opposed to any actual involvement.

Other US states now take a more radical approach and permit victims to hire their own attorneys to represent them at various parts of the criminal process, and certain states go further and permit victims’ counsel to intervene in rape and sexual assault trials. Wisconsin, West Virginia, and New Hampshire allow complainants’ representatives to make representations when questions governing the admissibility of sexual history evidence are being considered by the court. South Carolina Statute 16–3–1510 is even broader, insofar it permits representations from a victims’ advocate in any type of case where the defendant alleges improper or illegal conduct on the part of the victim as part of his or her defense.

The inquisitorial jurisdictions of continental Europe have been historically more relaxed about concept of victim participation in the trial, with a number of jurisdictions permitting the victim to assist the prosecutor as a subsidiary counsel. Germany, Austria, Malta, Norway, Sweden, and various eastern European countries operate some form of subsidiary prosecutor schemes, which allow victims an active role in both pretrial decision-making and within trials themselves. The procedure will generally allow them to submit evidence, comment on representations made by the prosecution and defense, and express their opinions on key decisions taken. In Germany, victims of certain serious offenses or the relatives of a murder victim may act as a subsidiary prosecutor (Nebenkla€ger). By declaring his solidarity with the prosecution, the victim derives certain active participatory rights. These include a right to be present at all stages of the process, to put additional questions to witnesses, to provide additional evidence, and to make a statement or to present a claim for compensation. In this sense, the victim’s lawyer can be an important ally to the public prosecutor, who nonetheless retains the burden of preparing and presenting the prosecution.

An alternative model which allows for the exercise of victims’ procedural rights is commonly referred to as the adhesion or partie civile procedure. Participation of the victim as an independent civil party bears some similarity to the subsidiary prosecution model, although it has a distinct advantage in that it acknowledges the victim’s status as a separate party to the trial. The procedure is widely utilized in France and Belgium, where the victim must formally demonstrate his or her intention of becoming a party to the proceedings by initiating an independent action before the juge d0 instruction (constitution de partie civile) at any stage in the proceedings.

Victim Participation In Sentencing

Participation within sentencing procedure is more commonplace than participation within the trial proper. Many criminal justice systems now make provision for victim impact statements to be admitted as part of the sentencing procedure. Two common justifications are offered. First, such statements are said to have a functional purpose through giving the court a better picture of the physical, emotional, or financial harm suffered by the victim as the result of an offense. Alternatively (or in addition), victim impact statements are commonly said to provide a communicative or expressive function, insofar as they provide the victim with a means to exercise voice within sentencing hearings (Roberts and Erez 2004).

Schemes vary somewhat in their nature, and legislation often fails to stipulate precisely how victim impact statements ought to be taken into account by the court or the degree of weight that ought to be attached to them (Roberts and Manikis 2010). Such matters are generally left to the judiciary in common-law settings (Roberts and Manikis, ibid.). The content of victim statements may also differ substantially. For the most part, statements are restricted to explaining the impact of the offense on the victim, though some schemes permit victims to lay down specific penal demands. Different methods are also used to tender the statement. These may be appended in written form to the judge’s papers (as in England and Wales) or may form part of a presentence report compiled by probation or social services. Alternatively, statements may be tendered orally in court by the prosecutor, victim, or victim’s lawyer (see generally Booth and Carrington 2007).

Research has revealed that, in general, victim statements only have a minimal impact upon sentencers. In their interviews with judges in Scotland, Chalmers et al. (2007) found that many found it difficult to isolate the effect of the victim impact statement from the vast array of other factors that were built into the sentencing equation, though the researchers do note a number of incidents where judges were minded to “consider a sentence of a different nature from the one they were initially minded to impose” (at 376). Similar findings have been reported elsewhere (see Roberts and Erez 2004).

Substantive Rights

In addition to the service and procedural rights discussed above, crime victims – as citizens – are also entitled to rely on substantive human rights provisions which may be triggered in the aftermath of an offense. Human rights law has developed rapidly in recent times. Although for many years primarily associated with victims of state crime or abuse of power, it is now becoming frequently recognized that its provisions may also be significant for victims of ordinary or non-state crime (Doak 2008).

For example, various international treaties require states to put in place legislative frameworks together with practical measures to protect individuals from serious forms of crime that threaten their life or physical integrity. Article 2 of the Convention Against Torture provides that “each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,” and Article 25 of the United Nations Convention against Transnational Organized Crime states that “[e] ach State Party shall take appropriate measures within its means to provide assistance and protection to victims of offenses covered by this Convention.” Preventative obligations are particularly commonplace in circumstances where particularly vulnerable parties are perceived to be at heightened risk. Children, those at risk from domestic violence and those at risk from intimidation or repeat victimization, have all been subject to some form of special recognition within international instruments.

Under the European Convention, very specific demands are placed upon signatory states. These include a duty to put in place preventative measures to ensure that non-state parties do not breach the human rights of others, and the European Court has made clear that states must not only refrain from taking life but must also take steps to protect life against threats from third parties (see e.g., Osman v United Kingdom (1998) 29 EHRR 245 and Edwards v United Kingdom (2002) 35 EHRR 19). It has also been held that the State has a duty to take positive steps to protect the rights of victims under Article 3 (prohibition against torture and inhuman or degrading treatment) by ensuring that they are afforded adequate protection under the criminal law (see A v United Kingdom (1999) 27 EHRR 611; MC v Bulgaria (2005) 40 EHRR 20). Similar approaches have been adopted by the Inter-American Court of Human Rights (see, e.g., Velasquez Rodriguez v Honduras (1989) 28 ILM 291; Jessica Gonzalez v. United States) (Case 1490–05, Report No. 52/07, 2007). Where a witness is in fear of intimidation or reprisal, the European Court has also accepted that evidence may be given anonymously in exceptional circumstances, providing sufficient counterbalancing measures are in place (Doorson v Netherlands (1996) 22 EHRR 330). Articles 3 (prohibition against torture and inhuman or degrading treatment) and 8 (right to privacy and family life) may also be relevant to victims if called on to testify at court. It has been suggested by Doak (2008) that the treatment experienced by victims of rape and sexual assault under cross-examination in adversarial courtrooms could raise potential issues under both of these provisions.

Controversies: Victims’ Rights And Defendants’ Rights

The idea that the rights of victims and offenders are strictly oppositional is reflected by frequent resort to the metaphor of balance in political rhetoric and official publications (Hall 2009; Jackson 2003). In the UK, a number of commentators have drawn attention to the fact that a number of policy initiatives, launched in the name of victims, have done very little to assist them while actively encroaching upon the rights of the accused (Jackson 2003, 2004). Some commentators have been keen to stress that it does not necessarily follow that the interests of victims and offenders will always conflict (Hall 2009, 2010; Klug 2004; Walklate 2007); Doak (2008) cites the provision of information, support at court, and the provision of good facilities as examples of recent improvement to victims’ services which carry little or no impact on the rights of the accused. Indeed, there are a number of scenarios in which the victim and the defendant will share mutual concerns, such as the desire for a prompt and efficient trial process and to be provided with information about procedure.

However, concerns about recent initiatives designed to increase the procedural rights of victims have been expressed (Ashworth 2000; Coen 2006), and both domestic and international case law are replete with conflicts between the rights of victims and offenders. For example, a victim may well object to a decision not to prosecute, to release a suspect on bail, to pursue a particular line of questioning in court, or to impose a community sentence. John Spencer (1994) has argued that the fair trial standards laid down in the Convention are not absolute, and a fair trial does not mean a trial which is free from all possible detriment or disadvantage to the accused. A similar view was expressed by the Strasbourg Court in Doorson v Netherlands (supra, see para 70).

A number of commentators have argued conceptualizing victims’ rights as human rights provides a framework whereby competing rights can be assessed (Doak 2008; Klug 2004; Wolhuter et al. 2009). There are relatively few attempts, however, to devise very specific frameworks where this can be done. Sanders et al. (2010) propose a quasi-utilitarian freedom model, which basically states that where competing sets of rights or values are in conflict, those that safeguard the freedom of others to the greatest extent should prevail. Other models of note include Cavadino and Dignan’s (1997) integrated restorative justice model (Cavadino and Dignan 1997), Doug Beloof’s victim participation model (Beloof 1999), and Kent Roach’s non-punitive victims’ rights model (Roach 1999). Others have suggested utilizing theoretical models to resolve rights-based conflicts is not necessarily a fruitful exercise and that such conflicts can realistically only be on a case-by-case basis (Doak 2008).

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