Victims of Crime Research Digest

Victim Impact Statements:
Lessons Learned and Future Priorities

By Julian V. Roberts, Professor of Criminology, Faculty of Law, Oxford University[1]

Introduction and Overview

Since first appearing in the United States in the 1970s, the use of Victim Impact Statements (hereafter “VIS”) has proliferated across all common law jurisdictions. They constitute the primary means by which crime victims provide input into the sentencing process. VIS are also used in some civil law countries such as Holland, and proposals to use them have been made in other continental jurisdictions such as Belgium. In Canada, VIS were introduced into the Criminal Code in 1988 through Bill C-89. They have since become an important component of the sentencing process. The original legislation was amended in 1999 when a number of substantive amendments were made to the statutory regime. Victims acquired the right to submit impact statements at federal parole hearings in Canada in 2001. Appendix A summarizes the enabling legislation and subsequent amendments. This article summarizes the most important findings from the relevant socio-legal research. It reflects a systematic review of the most recent research conducted in Canada and elsewhere. Since this jurisdiction has conducted more research on the issue than any other country, much of what the international community has learned about the utility of VIS comes from the experience in Canada.[2] The article is divided into two parts: Part 2 - Lessons Learned and Part 3 - Outstanding Issues and Research Priorities. References are provided for the most recent publications in this rapidly-expanding area;[3] for earlier reviews of the literature the reader is directed to Roberts (2003) and Young (2001). Finally, the review excludes the considerable literature on the use of Victim Impact Statements in capital cases in the United States (see Callihan [2003] for a bibliography of this literature).

Lessons Learned

Only a minority of all victims submit impact statements

One important lesson is that the mere introduction of a Victim Impact Statement regime will not result in widespread use of the statements; only a minority of victims appear to wish to submit such a statement at sentencing. The VIS is thus different from other sources of information at sentencing such as a Pre-Sentence Report which is relevant to the majority of sentencing decisions. This does not mean that the VIS is less important as a source of information for sentencers, but simply that a significant number of victims, for a variety of reasons, seem to be content to remain out of the sentencing process or to be satisfied with the Crown placing crime impact information before the court. The same is true at parole hearings where VIS are still relatively rare,[4] and appear only in the most serious cases (Prairie Research Associates 2004). However, for the minority of victims who do submit a statement, the VIS is clearly an important way of expressing themselves to the court and participating in the sentencing process.

Few victims request oral delivery of the statement, but those that do so find it beneficial

As a result of the 1999 amendments, crime victims in Canada have a right to deliver a VIS orally if it has been prepared in accordance with an officially designated program. For a variety of reasons, only a small minority of victims avail themselves of this opportunity (Roberts and Edgar 2006). However, research involving individuals who do orally deliver Victim Impact Statements suggests that they benefit greatly from the experience. It is important, therefore, to ensure that victims are aware of this right, even if only a small number of people will ultimately exercise it. In all probability, the number of victims electing to deliver their statement orally will grow in future years as the concept becomes more embedded in the criminal justice culture.

Obstacles to the systematic use of statements

An obvious barrier to higher rates of participation is that courts may face practical difficulties in terms of contacting victims. It is sometimes difficult to contact the crime victim when sentencing is imminent. The result is that the sentencing hearing often proceeds either without a statement or even without the court knowing whether the victim has been apprised of his or her right to submit a statement and present it orally in court. This problem has existed since the earliest research into the functioning of VIS in Canada (Department of Justice Canada 1990). Although matters have improved considerably with the proliferation of victim support services, judges still acknowledge difficulty in establishing whether the victim has had an opportunity to submit a statement (Roberts and Edgar 2006).

Other obstacles[5] that have been identified include the following:

Most victims who submit a VIS, report being more satisfied with sentencing

Do VIS promote victim satisfaction with the sentencing process?[7] This is perhaps the most frequently researched question in the field. A small minority of victims who submit a statement report being dissatisfied; however, the more frequent response is one of satisfaction. Most victims appear to believe that submitting a statement is a positive way of participating in the sentencing process. A good illustration comes from the latest evaluation of the Victim Statement Scheme piloted in Scotland. When asked after their case had concluded, almost nine victims out of ten expressed the view that the decision to submit an impact statement had been the right one. Moreover, almost two-thirds reported that making a statement had made them feel better (see Leverick, Chalmers and Duff 2007; Chalmers, Duff and Leverick 2007). The most recent research conducted for the Department of Justice Canada found an equally positive response: four out of five victims who submitted a VIS were pleased that they had done so (Prairie Research Associates 2004; see also Miller 2007).

Research has shown that VIS are more likely to be submitted when:

It is important to avoid creating expectations that cannot be fulfilled

VIS have the potential to arouse expectations that cannot be fulfilled within an adversarial model of criminal justice. If victims are led to believe that their statements will result in an appreciably harsher disposition or that their “sentence recommendations” will be adopted by the court, they may well be disappointed when this expectation is not fulfilled (e.g., Hinton 1995). Indeed, resentment of the sentencing process may ensue. This was one of the causes of dissatisfaction amongst crime victims according to research reported by Meredith and Paquette (2001). For this reason it is very important that victims understand the essentially communicative rather than instrumental nature of the regime (see Smanzia and Gracyalny 2006).[8] In most—but by no means all[9]—jurisdictions, victims are discouraged or prohibited from making recommendations for specific sentences. Despite this, courts in Canada and elsewhere still report seeing victim “submissions” at sentencing. This underlines the importance of educating the victim about the appropriate use of the statement. It is important to note, however, that the most recent research suggests that while statements still contain victims’ sentencing recommendations, this occurs less often than in the past. Prairie Research Associates (2004) found that only approximately one quarter of the victims interviewed held the view that their statement would influence the sentence ultimately imposed.

The mode of delivery of any VIS program is important to its success

One of the most important lessons emerging from the research literature is that the way in which VIS are administered will have a critical impact on the utility of the statements for victims and courts. Considerable variability exists with respect to the administrative arrangements. Although no systematic research review has compared different means of providing the statement form and ancillary information, when the VIS is provided to the victim in person, and with adequate background information, submission of a statement is more likely.

It is important to educate victims about the purpose and nature of VIS

The most often-cited criticism of the VIS is that it can have an adverse effect on crime victims who, having been encouraged to believe that they may directly affect the sentence, are disappointed when their sentence recommendation is either edited out by the Crown or discarded by the court. This indeed occurs from time to time and underlines the importance of providing crime victims with a clear idea of the purpose of the VIS. Knowing that the VIS is not designed to give the court specific dispositions to consider may diminish the interest of some victims in submitting a statement, but it is essential that they have an accurate idea of the role of the victim and the purpose of the statement. For this reason, the impact statement form should provide clear instructions regarding the purpose of the VIS and the role of the victim at sentencing. In addition, the victim should have the opportunity to discuss the statement’s purpose with a legally trained professional, preferably the Crown with carriage of their case. Failing this, victim services workers should ensure that victims fully understand why they are provided with the opportunity to submit the statement to a court. Research has also shown that more consideration must be given to how the information is imparted to victims who may be suffering from trauma (Miller 2007; McDonald 2000).

Studies reveal that the VIS sometimes includes extraneous material

It is sometimes the case that victim impact statements include inappropriate material such as information that is prejudicial or antagonistic to the defendant. Better education of victims along with forms that provide more information and clarity are needed to maximize the amount of relevant information and minimize the amount of extraneous or prejudicial material included in VIS. Both defence and Crown counsel interviewed as part of the Department of Justice research initiative in 2004 reported that extraneous or irrelevant material was the most important problem with VIS (Prairie Research Associates 2004).[10]Miller (2007) found a lack of clarity regarding the expressive purpose of the VIS. When irrelevant material is contained in the statement, Crown counsel must edit the document or judges may disallow parts of the statements (Prairie Research Associates 2004). This may be distressing for victims. Finally, some commentators have advocated development of better evidentiary standards which would need to be met before the VIS could be entered as evidence (see Hill 2005).

Judges report that VIS are useful, particularly in cases involving violence

Introducing VIS without encouraging legal professionals to consider the statement at sentencing is unlikely to have beneficial effects. It is noteworthy that the statutory framework in Canada directs courts to consider the statements at sentencing. Most of the research on VIS has explored the utility of the statements from the perspective of the victim—as reviewed above. However, it is equally important to determine the extent to which VIS serve the interests of justice. Canadian research conducted over the past decade has clearly demonstrated that VIS are useful to sentencers. Quantitative surveys and qualitative studies of judges and prosecutors in Canada and elsewhere have shown that both groups see a role for VIS in the sentencing process (see Roberts and Edgar 2006; Prairie Research Associates 2004; Cole 2003; D’Avignon 2001). The most recent research involving judges found that approximately four-fifths of those interviewed reported using victim impact statements at sentencing (see Roberts and Edgar 2006; Prairie Research Associates 2004).

This line of research sustains the following conclusions:

There is little evidence that VIS have adverse effects on the sentencing process

A number of adverse effects have been attributed to the use VIS at sentencing. Empirical research across many jurisdictions has generally found that little evidence exists of such effects. For example, in the UK, Morgan and Sanders (1999) reported that VIS rarely, if ever, influence charging practices by the prosecutor, nor did they influence sentencing outcomes or result in much lengthier sentencing hearings. The impact of VIS on sentencing practices has been evaluated by means of a number of research designs, and the results generally support the conclusion that sentencing patterns do not become more severe or less consistent following the introduction of these statements. For example, Erez, Roeger and Morgan (1994) conducted a comprehensive “pre-post” analysis of sentencing statistics before and after the introduction of a VIS scheme in Australia and found no change in the severity of sentencing patterns.

It is important to avoid “banalization” of the concept of victim impact

A number of scholars have warned that the VIS may be, and in some contexts has been, assimilated into the routine of the criminal justice system (e.g., Erez and Laster 1999; Young 2001). If victims approach the task of completing the statement the way that they complete an insurance claim form, the exercise will carry little psychological significance. It is important, therefore, for the criminal justice system to ensure that the VIS is distinguished from other administrative requirements associated with a judicial proceeding.

Outstanding Issues and Research Priorities

Conduct a “Best Practices” service delivery review

The most common method of placing victim impact information before a court is by means of an impact statement form. A variety of forms exist which provide varying degrees of information about the statement and guidance with respect to the best way to describe the experience of victimization. In addition, across Canada there is considerable variation in the way that victims are informed about their ability to submit a statement. No review has been conducted to determine a “best practices” model which could then be offered to all jurisdictions to consider adopting. If the same generic model was used across the country there would be greater uniformity of treatment of crime victims with respect to this important issue. A review of this nature would profit from examining forms and protocols used in other countries. It is significant in this respect that victims in a number of jurisdictions (including Canada) describe the information that they receive about VIS to be incomplete and/or unclear (e.g., Prairie Research Associates 2004). Some jurisdictions provide more information to victims than do others. For example, in New South Wales, crime victims are given a very comprehensive package.[11]

Explore the impact of the VIS on the offender

As noted, Victim Impact Statements were introduced to enhance victim satisfaction and to ensure that the nature of the offence was accurately conveyed to the court at sentencing. More recently, interest has focused on the impact of the statements on the offender. A limited research literature exists on “Victim Impact Panels” in the United States (e.g., Rojek, Coverdill and Fors 2003; Fors and Rojek 1999). These panels consist of groups of offenders meeting groups of victims. The offenders hear presentations from the victims with respect to crime impact. There is some evidence that participating in these exchanges lowers the likelihood that the offender will re-offend. This suggests that hearing—or reading a VIS—may have some impact on the offender, but the issue has yet to be explored by empirical research.

The need to document attitudes and training of legal professionals

The role of criminal justice professionals is critical to the success of any victim impact statement regime. A number of research projects have explored the attitudes of criminal justice professionals such as Crown counsel and victim support personnel (e.g., Prairie Research Associates 2004; Miller, 2007). It is important, however, that training of these professionals include a component dealing with victim input generally and in particular the VIS. It does not appear as though any survey of criminal justice training has been undertaken in this area, but anecdotal evidence suggests that such a survey would be useful.

The need to know more about the impact of VIS at parole hearings

Most of the empirical research exploring the use and utility of VIS has focused on the sentencing stage of the criminal process. Far less is known about the use of VIS at parole hearings (see Gaudreault [2003] for a qualitative study of crime victims in the correctional system). Victim participation in parole hearings is less frequent than at the stage of sentencing.

Conclusions

Perhaps the most important lesson to be learned about the VIS is that it is not a panacea that will fulfill all victims’ expectations of sentencing. However, if the regime is administered appropriately, if victims are provided with enough information about the VIS and provided with sufficient contact with criminal justice professionals, the concept has considerable merit. One way of summarizing the experience with VIS to date is that both the benefits and disadvantages of the statements have been overstated by advocates and critics alike. With respect to the former, it is clear that only a minority of victims submit a statement, although for these individuals the benefits appear to be considerable. With respect to the latter, none of the dangers ascribed to VIS by critics—such as lengthy sentencing hearings, more punitive or inconsistent sentencing—have emerged in any jurisdiction that has introduced this reform.

Almost a decade ago, a leading criminal law journal published a critical commentary on the use of Victim Impact Statements at sentencing (Sanders et al. 1999). Since then the steady accretion of research findings has addressed many of the criticisms of these statements and it seems clear that the VIS has been embraced by most western nations. There is a growing consensus amongst scholars and practitioners around the world that the benefits of allowing victim input at sentencing clearly outweigh any dangers associated with their use (e.g., Chalmers, Duff and Leverick 2007; Garkawe 2006; Erez 2004). We have witnessed a slow evolution in common law jurisdictions, away from the position that prosecutors provide adequate representation of the interests of victims, to one in which victims themselves place crime impact information before the court at the time of sentencing.