Victim impact statements and the modern role of the victim

Victim impact statements are reports provided to the court before the offender is sentenced. They outline the effect of the offending on the victim, including details such as the physical, psychological, and financial suffering the victim has experienced as a consequence of the offending. They are currently used in Australia, Canada, Ireland, the Netherlands, New Zealand, South Africa, the UK, and the US (see e.g. Garkawe 2006; De Mesmaecker 2012; McGovern 2013; Lens et al. 2015; Manikis 2015; Miller 2015; Erez, Jiang, & Laster 2020; van de Merwe & Mitchell 2020; Windsor & Roberts 2020). Accordingly, our findings have broad implications for all countries that use — or are considering using — victim impact statements as part of their criminal justice system.

While impact statements were introduced as early as the 1980s in some US (Erez 1990), Australian (see e.g. Erez, Roeger, & Morgan 1994), and Canadian (Walberg-Hegan 1997; Young, 2001) jurisdictions, they were not legislated for in England and Wales until 2001 and in Scotland until 2003 (Chalmers, Duff, & Leverick 2007; Garkawe 2007). The introduction of impact statements at sentencing reflects the modern conception of the victim within the criminal justice system, wherein their role is no longer limited to that of simply witness for the prosecution (Victorian Law Reform Commission 2016). This shift arose from a ‘genuine and deeply rooted realisation that victims have a legitimate interest in the way that criminal justice is administered, in terms of substance, processes and outcomes’ (Doak 2008: 243).

The recognition of the interests of the victim cannot, however, override the defendant’s right to a fair trial, which Mason CJ and McHugh J of the High Court of Australia recognised in Dietrich v The Queen as ‘a central pillar’ of the criminal justice system ((1992) 177 CLR 292: 298). In X7 и Australian Crime Commission (2013) 248 CLR 92, French CJ and Crennan J held that this ‘extends to the whole course of the criminal process’ (2013: 116), including sentencing. As a result of the requirement to both adhere to fundamental criminal justice principles for the offender and promote the interests of the victim, impact statement schemes were described by Sully J in Rv FD; R v FD; R i/JD [2006] NSWCCA 31 as an ‘attempt to balance interests that are not easily balanced’ (2006: [97]). Arguably, the introduction of such statements has steered the criminal justice system into ‘unfamiliar territory where the ideological lines are far from clear’ (Garland 2001: 4), although Manikis has recently argued that ‘the rhetoric of “balancing rights” or “balancing interests” of the accused with those of victims reinforces a zero-sum game perception of criminal processes’ (2019b: 208; see also Kennedy, Easteal, & Bartels 2012).

As a result of this perceived tension, the introduction of victim impact statements at sentencing has not been without detractors, who are concerned that they may conflict with the ‘central pillar’ of the defendant’s right to a fair trial (see e.g. Erez 1999; Sanders et al. 2001; Roberts & Manikis 2011; Booth 2015). However, the issue of fairness to the defendant arises only if judicial officers rely on the information in the statement when determining sentence. It is therefore critical to determine the purpose for which victim impact statements are intended to be used.

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