The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

2. History and Theory (cont'd)

2. History and Theory (cont'd)

2.2 Discussion (cont'd)

2.2.2 Victims’ Rights and Models of Criminal

Justice Struggling to find a proper theoretical model to provide a foundation for victims’ rights, Professor Roach in 1996 proposed a third model of criminal process. For decades, academic commentators extolled the descriptive and prescriptive virtues of Professor Herbert Packer’s two models of the criminal process. In The Limits of the Criminal Sanction (1968) Professor Packer outlines the assembly-line crime control model with its focus on the repression of crime in an efficient manner and the obstacle-course due process model with its focus on civil liberties and reliability of verdict as opposed to efficiency of process. Professor Roach proposed:

The crime control and due process models of criminal justice are no longer sufficient to describe the modern criminal justice system. A third model, the victim rights model, should be added to the mix. This model is complex and multi-faceted. It involves calls for more laws and prosecutions, greater sensitivity to the accused, such as battered women, who claim to be the true victims, a greater role for the victim in the accused’s trial and more services and support for victims. Providing the victim a role and support in the criminal trial has the potential to correct the closed and sometimes insensitive nature of both the due process and crime control models. On the other hand, there is a danger that crime victims will receive only a symbolic stake in the criminal process and that the use of the criminal sanction in their name will not improve their lives. There may also be divisive competition among victims for preference from policy makers. (Roach, 1996:21)

Unfortunately, Professor Roach’s formulation of a third model is rather nebulous; however, in 1999 he published the first and, thus far, only academic text on victims’ rights in Canada (Roach, 1999b). In this book, his third model is clarified and analysed in a more nuanced manner. He suggests that there are two formulations of the victims’ rights model of the criminal process — the punitive approach and the non-punitive or restorative approach. He describes the punitive approach as follows:

A punitive victims’ rights model resembles the crime control model by assuming that the enactment of a criminal law, prosecution, and punishment controls crime. Some victims’ advocates demonstrate the same enthusiasm for the criminal sanction that characterizes the crime control model. This may represent the capture of victims’ rights by professionalized interests in crime control or the domination of victims’ advocacy groups by those who have experienced the most serious of crimes. The nature of criminal justice politics, which are often mobilized by well publicized and horrible cases of violence, lead some to conclude that it is "unrealistic to expect victim advocacy to spearhead the movement toward re-integrative shaming". Victim advocacy is often focused on creating new criminal laws in the hope that they will prevent future victimization. Feminist reforms of sexual assault laws and new laws targeting the sexual abuse of children are designed not only to protect the privacy and integrity of victims, but to make convictions easier to obtain. Victim impact statements and victim involvement at sentencing and parole hearings are often directed towards greater punishment. Much more directly than due process, victims’ rights can enable and legitimate crime control. (Roach, 1999b:30–31)

He then described the non-punitive model of victims’ rights as follows:

A concern about victims does not produce an inescapable dynamic towards reliance on the criminal sanction and punishment. An alternative direction is away from the roller coaster of relying on an inadequate criminal sanction and countering due process claims, and towards the prevention of crime and restorative justice once crime has occurred. Both the processes of prevention and restoration can be represented by a circle. One manifestation of the circle may be the gated community with its own private police force. Another example would be successful neighbourhood watch or the self-policing of families and communities. Once a crime has occurred, the circle represents the processes of healing, compensation, and restorative justice. Normatively, the circle model stresses the needs of victims more than their rights, and seeks to minimize the pain of both victimization and punishment.

A non-punitive approach is not deferential to traditional crime control strategies and agents, but unlike the punitive model de-centers their importance. Families, schools, employers, town planners, insurers, and those who fail to provide social services and economic opportunities are also responsible for crime. The challenge is to jump traditional jurisdictional lines and not to diffuse responsibility too thinly. Crime prevention can be achieved through social development to identify and provide services for those at risk of crime. Early childhood intervention targeting disruptive and anti-social behavior and poor parenting skills may help prevent future crime as well as blur bright line distinctions between victims and offenders. At the same time, more immediate forms of crime prevention including target hardening, better lighting, information exchange among bureaucracies, and changing high risk activities also play a role. Public health approaches focus much more on the victim than do traditional criminal justice responses which attempt to deter and punish offenders. Unlike in the punitive model, there is little concern about blaming offenders or victims. Following a public health approach, the non-punitive model recognizes that offenders and victims often come from similar populations and that these populations are disproportionately exposed to harms other than crime. Crime prevention may evolve into a more comprehensive approach to safety, security, and well-being which does not make hard and fast distinctions between the risk of victimization by crime and other harms and risks.

Once a crime has been committed, the focus is on reducing the harm it causes through healing, compensation, and restorative justice. The circle can be closed without any outside intervention as crime victims take their own actions to heal and attempt to prevent the crime in the future. More prosaically, the circle of restoration may simply be a claim on an insurance policy which returns the money to the policy-holder invested in insurance premiums. When the victim does report crime, the circle can be represented by a process of restorative justice which allows the offender to take responsibility for the crime and attempt to repair the harm done to victims. This is often achieved through informal proceedings such as Aboriginal healing circles, family conferences, and victim-offender reconciliation programs in which all of the actors are seated in a circle. All of these interventions are united by their concern for the welfare of both offenders and victims, informal non-punitive approaches, and wide community participation. The key players in these circles should be the victim, offender, and their families and supporters — not police, prosecutors, defense lawyers or judges who may appropriate their dispute. Victims play the most crucial role and this gives them some of the power to decide whether to accept apologies and plans for reparation. In a punitive victims’ rights approach, however, they can only make representations to legislators, judges, and administrators who retain the ultimate power to impose punishment. (Roach,1999b:33–4)

Although the formulation of the punitive and non-punitive model of victims’ rights is informative, it is interesting to note that in this first ever academic book on victims’ rights in Canada, Professor Roach only devotes one chapter to victims’ rights. Many of the other chapters largely explore the issue of whether or not increased protection for victims is achieved at the expense of the accused’s rights. Whether the penal philosophy underlying victims’ rights is called retributive or restorative, there still exists a recurring refrain in the literature that complete realization of victims participatory rights will only serve to eviscerate the constitutional rights of accused persons (Acker, 1992). There is a sense that without proper constraints the victims’ rights movement will prejudice civil liberties. Professor Hall, an advocate for victims’ rights in the 1980s, expresses caution about the steady growth of victims’ rights in the 1990s:

Many years ago I, along with a small group of others, urged that victims of crime be given more considerate and compassionate treatment by criminal justice officials. Pleas were made to afford victims opportunities to be more significant actors in the criminal justice system. Many positive and sweeping changes described here and elsewhere have occurred in a relatively short period of time. While we should applaud the general thrust of these efforts, the time has come to signal the call for a proper balance between victim and offender.

It is axiomatic that crime victims are important participants in the criminal justice system and that they must not be the recipients of uncaring or insensitive treatment. However, with regard to criminal case dispositions, we must move cautiously and prudently in deciding the kind of information that we should solicit from victims for consideration by judges in imposing sentence. The victim impact statement is an appropriate conduit through which certain data should flow to court officials. The VIS contents, however, should be restricted to factual descriptions of harm suffered by the victim so that a reasonably accurate measure of the defendant’s culpability is obtained. Victim participation statutes calling for the victim’s opinion or recommendation as to case disposition are ill-conceived measures triggering far more harmful consequences that their meager benefits. They should not be enacted. Where legislatures have already approved such measures, they should be rescinded. (Hall 1991:265–6)

Despite the claims of well-intentioned lawyers, victim participation, in most circumstances, will not serve to erode the accused’s right to due process, nor will it transform the sentencing process into a ceremony of cruelty. There are sufficient statutory and constitutional safeguards to ensure that victims’ rights will not trump the accused’s rights. To date, only one area of conflict has arisen where the rights of victims appeared to irreconcilably clash with the rights of accused persons. Primarily in the area of sexual assault we find an irreconcilable clash between the victim’s right to privacy and the accused’s right to full answer and defence. With respect to the production of third party counselling records (R. v. O’Connor, [1995] 4 S.C.R. 411) and with respect to the rape shield law (R. v. Darrach, [2000] 2 S.C.R. 443; R. v. Seaboyer, [1991] 2 S.C.R. 577), the Supreme Court of Canada attempted to fashion a compromise solution; however, the truth remains that one can never perfectly balance the right to full answer and defence and the right to privacy. With the exception of this narrow but significant clash of interests, the recognition of victims’ rights has not been gained at the expense of the rights of the accused.

The fear of trampling upon fundamental constitutional rights relates solely to the growth of participatory rights for the victim and is not directed to welfare rights which are provided outside of the context of the criminal trial. As Professor Black has stated:

If victim participation disserves penal policy, if only by cluttering an already crowded stage with walk-ons, it does not really serve the interests of victims, nor those of the far larger class of potential victims — all of us. The truth is we punish criminals for reasons unrelated to the immediate interests of victims.

If victims need services, by all means let us provide them; afford them compensation and rehabilitation. But it is much easier for a legislature to concoct new "rights" than to fund new services. Few victims may exercise their rights anyway, but the politicians claim credit for the gesture of bestowing them. Courtroom rituals like victim allocution are sops. The self-styled victims’ rights advocates point with pride to these rights, but of no jurisdiction can it be said, as it can of Britain: "Victims’ support schemes are sensible, effective, and soundly constructed; they are now quite handsomely endowed by the State; and many victims of crime are well served. " Crime victims have been made the pawns of law-and-order campaigns — ironically so since their best interests are ill-served by other aspects of the get-tough package. (Black, 1994:239–240)

The last comment in the quotation reflects another growing concern in the literature of the 1990s. Putting aside any question of philosophical justification, many writers have expressed concern that the victims’ rights movement has been hijacked by a conservative, law and order platform (Mosteller, 1998; Henderson, 1998). Unwittingly, crime victims have been unduly influenced by conservative claims that an increasing punitive response to offenders is the only mechanism to curb victimization. Professor Fattah has noted:

Crime victims are not the first group whose cause is exploited by unpopular governments seeking a higher rating in public opinion polls, by opportunistic politicians seeking electoral votes, or by incompetent public officials trying to detract attention from their failure to control crime or to reduce its incidence. Showing concern for crime victims acts as a cover-up to the inefficiency of the system, and its inability to prevent victimization. Demanding that something be done to help and to alleviate the plight of victims masks society’s unwillingness to deal squarely with the problem of crime. In times of growing concern about crime, showing sympathy for the victim and committing a handful of dollars to victims’ programs and services relieves the pressure on politicians to confront social injustices, ethnic conflict, inequalities in wealth and power, and the frustrations of seeing too much and having too little. (Fattah, 1989b:57)

Not only has recent literature suggested that victims have become political pawns, but in addition, there has been a recent slew of very negative literature that has cast victims in a more sinister light. With Professor Alan Dershowitz’ coining of the phrase "abuse excuse" there has been a movement towards disparaging the claims of victims by viewing their claims as an endless clamour for entitlements which are not deserved. Professor Best notes:

The growing attention to victims has not gone unnoticed. Robert Hughes remarks: "As our 15th century forebears were obsessed with the creation of saints and our 19th century ancestors with the production of heroes. . . so are we with the recognition, praise, and when necessary, manufacture of victims. Contemporary critics complain that our society fosters crybabies, complaints, excuses, pique, busy-bodies, meddlers, ‘the moral prestige and political spoils of victimhood [and] whining rights in the victimization bazaar’; that the ‘route to moral superiority and premier griping rights can be gained most efficiently through being a victim’". (Best, 1999:138; see also Sykes, 1991)

Despite the critical claims listed herein, the vast majority of literature, especially American, advocates support for current victims’ rights initiatives. Since the 1960s virtually every jurisdiction has continued to explore and propose reform measures to improve the plight of crime victims. The short history of major American developments with respect to victims’ rights reform in the US is reflected in this brief summary:

In 1982, the US Presidential Task Force on Victims of Crime made 69 recommendations for governments, lawyers, mental health specialists and six other groups of Americans. These recommendations included a constitutional amendment to give victims, "in every criminal prosecution, the right to be present and to be heard at all critical stages of judicial proceedings". The Task Force reported after high profile hearings held with victims, victim advocates, researchers and the legal community.

In 1983, the US administration introduced the guidelines for all federal investigative and legal personnel. It required victims to be informed about all stages in the prosecution and mandated "consultation with the victim" in the criminal process. At the US Federal legislative level the 1982 Victim and Witness Protection Act provided for written "Victim Impact Statements", compulsory consideration of restitution, harsher penalties for threatening witnesses, state accountability for grossly negligent release of offenders, access by victims to criminals’ royalties and for legal personnel guidelines for victim and witness assistance. In 1984 the Victims of Crime Act provided funding for compensation and services to reinforce the earlier legislation. (Waller, 1985:9)

From this point in the mid-1980s the volume of victims’ rights legislation grew exponentially with the enactment of statutory Bills of Rights for victims, state constitutional amendments enshrining constitutional rights for victims and the contemporary debate raging about amending the American Constitution to recognise victims’ fundamental rights.

The history in Canada follows a similar pattern except that "the interest in crime victims in Canada came mostly from governments, whereas in the US it was a populist movement" (Roach, 1999b:281). Paul Rock recounted how victims’ rights were raised at the 1979 Federal-Provincial Conference on Ministers Responsible for Criminal Justice by the provincial ministers and this compelled the Federal government to enter the debate. Rock contends that the federal government recognition of the issue of victims’ rights was a key starting point but that the victims’ rights movement in Canada primarily grew as a result of three factors: a loose coalition of Canadian feminists organizations; Canadian victim assistance programs and the American victims’ rights movement (Rock, 1986).

The most significant development in Canada, as in the US, was a 1983 Federal-Provincial Task Force which made numerous recommendations with respect to the victim. Professor Waller outlines the recommendations as follows:

The Federal-Provincial Task Force made 79 recommendations to improve justice for victims. If implemented, they would make major improvements in emotional and practical assistance for victims. However, there were few relating to the criminal process. Those that did, focussed on more efficient property return, information about the trial date and outcome, and notification about release from custody. Recommendations were made requiring the consideration of restitution and an opportunity for the victim to make representations. An undefined Victim Impact Statement was to be included in the presentence report. (Waller,1985:12; see also Waller, 1990; Barfknecht, 1985)

Most jurisdictions around the world have proposed similar law reform measures and welfare measures in aid of victims. The uniformity of approach is partly a reflection of the fact that many countries are signatory to the 1985 United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuses of Power (see Chapter 4.0 of this report). This declaration is a statement of general principles and it contains few concrete details with respect to implementation. Stated at a high level of generality it is virtually impossible to criticize proposals of this nature for affording victims greater respect and dignity. The thrust of these principles was adopted by the Federal/Provincial/ Territorial Ministers responsible for justice.

CANADIAN STATEMENT OF BASIC PRINCIPLES OF JUSTICE FOR VICTIMS OF CRIME

In recognition of the United Nations Declaration of Basic Principles of Justice for Victims of Crime, Federal and Provincial Ministers Responsible for Criminal Justice agree that the following principles should guide Canadian society in promoting access to justice, fair treatment and provision of assistance for victims of crime.

  1. Victims should be treated with courtesy, compassion and with respect for their dignity and privacy and should suffer the minimum of necessary inconvenience from their involvement with the criminal justice system.
  2. Victims should receive, through formal and informal procedures, prompt and fair redress for the harm which they have suffered.
  3. Information regarding remedies and mechanisms to obtain them should be made available to victims.
  4. Information should be made available to victims about their participation in criminal proceedings and the scheduling, progress and ultimate disposition of the proceedings.
  5. Where appropriate, the view and concerns of victims should be ascertained and assistance provided throughout the criminal process.
  6. Where the personal interests of the victim are affected, the views or concerns of the victim should be brought to the attention of the court, where appropriate and consistent with criminal law and procedure.
  7. Measures should be taken when necessary to ensure the safety of victims and their families and to protect them from intimidation and retaliation.
  8. Enhanced training should be made available to sensitize criminal justice personnel to the needs and concerns of victims and guidelines developed, where appropriate for this purpose.
  9. Victims should be informed of the availability of health and social services and other relevant assistance so that they might continue to receive the necessary medical, psychological and social assistance through existing programs and services.
  10. Victims should report the crime and cooperate with the law enforcement authorities.

The literature of the 1970s and 1980s debated the proper role and function of the victim, and despite some remaining philosophical objections, a consensus emerged that affording rights to victims was a sound state policy. Article after article implored legislatures to develop fresh perspectives which would be responsive to the needs of victims. By the end of the 1980s law-makers around the world embraced victims’ rights in principle, and the question for the 1990s should have changed to one of exploring implementation of the principle. In reviewing the American experience, Professor Tobolowsky wrote:

Unlike the situation existing prior to the Task Force Work (pre-1982), the relevant inquiry is no longer whether victims should have participatory rights in the criminal justice process. The incredibly rapid adoption of constitutional and legislative victim rights provisions over the last fifteen years ensures that victims will have a participatory role in the criminal justice process. The relevant current focus therefore must be to ensure that these victim participatory rights are appropriate and meaningful in the context of the varied individual and societal interests involved in criminal prosecutions. (Tobolowsky, 1999:103)

The question that remains is whether the 1990s witnessed the concrete realization of these ideals or whether the Statement of Basic Principles remains an unrealized aspiration. With respect to the American experience, Robert Elias concluded that:

For all the new initiatives, victims have gotten far less than promised. Rights have been unenforced or unenforceable, participation sporadic or ill-advised, services precarious and underfunded, victims needs unsatisfied if not further jeopardized, and victimization increased, if not in court, then certainly in the streets. Given the outpouring of victim attention in recent years, how could this happen? (Elias, 1993:45)

The remainder of this report will explore whether Elias’ indictment of victims’ rights initiatives is well-founded, or whether law reform efforts around the world have actually begun to yield tangible results.