What are the possible purposes of victim impact statements?
Roberts (2003) has explained that the goals of victim impact statements
are primarily to:
- • increase victims’ and society’s satisfaction with the criminal justice system;
- • increase offenders’ awareness of the harms they have caused;
- • promote healing and closure for victims; and
- • apprise sentencing judges of the harms suffered by victims, which could be taken into account in determining sentences.
These goals reveal the two potential underlying purposes of impact statements, namely, as:
- • instrumental tools, used by judicial officers in determining the sentence, where the impact statement can influence the sentence imposed; or
- • communicative or expressive tools, which allow victims to achieve healing and catharsis by sharing with the court, offender, and public the harm caused to them by the offending (Roberts & Erez 2010; see also Erez 2000; Hindis 2020).
Manikis (2015: 56) has described the fundamental divergence between these two approaches as a ‘conflict’, while Tait suggested that the ‘potential probative value of the VIS to inform sentencing decisions is perhaps its poisoned chalice’ (2015: 7).
The instrumental approach views impact statements as a tool for the judicial officer to assess the actual harm caused by the offending and, by taking that harm into account, determine the sentence to be imposed. This information about harm could enhance the retributive aims of sentencing (Booth 2005) and assist the judicial officer in determining relevant aggravating factors. If victim impact statements are used instrumentally, the fundamental principle of the offender’s right to a fair trial requires that impact statements be treated as evidence and comply with the rules relating to evidence and proof. This is because, as noted by the majority of the High Court in R v Olbrich, ‘the process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined’ ((1999) 199 CLR 270: 270). Consequently, if used instrumentally, the content of impact statements must be limited to information that meets the standard of proof in the event of a challenge from the defence, and offenders must have the opportunity to challenge that information, for example through objection and submissions from the bar table (Booth 2011) or cross-examination of the victim (Edwards 2009).
In contrast, under an expressive approach to impact statements, Manikis has explained that the statement:
understood solely as having an expressive function is not intended to affect the nature or quantum of the sentence ... since its role is not to adduce evidence but rather to express emotion, there is no real need to ensure the factual reliability or the relevance of the information ... Typically, this will allow more flexibility in terms of the content of the statement as well as in what methods of delivering the statement are permissible.
(2015: 92)
When viewed expressively, an impact statement has no effect on the sentence imposed on the offender. Instead, it is seen only as a therapeutic tool, which should ideally assist the victim by providing a cathartic experience. As Sully J noted in R v FD; R v FD; R v JD, impact statements provide victims with
a forum in which they can make a public statement in words of their own choosing in order to have the emotional catharsis of ensuring that their grief and loss has not been ignored altogether or expressed in what they see as an inadequate way.
’ ([2006] NSWCCA 31: [100])
Accordingly, an expressive impact statement framework enables victims to share whatever information they choose, without being constrained by the rules of evidence and proof or fear of being questioned via cross-examination.
The expressive purpose may appear at first glance to be the more therapeutic approach, from a victim-focused perspective, since it seems to align more closely with the originating aims of impact statement schemes, namely to increase victims’ involvement in, and improve their experience of, the justice process. However, if impact statements are used expressively, and victims are permitted the freedom to include any information they choose within their statement, without that information being verified via cross-examination, then it follows that judicial officers must ignore impact statements in determining sentence and must make it clear that they have done so. If this is not done, there is a danger that sentences may appear to be tainted by possibly irrelevant material. Yet, as will be discussed below, recent research reveals that victims derive great therapeutic benefit from judicial acknowledgement of their impact statements at sentencing. Consequently, if judicial officers cannot acknowledge impact statements when sentencing, then an expressive approach may also be anti-therapeutic from a victim-focused perspective.
The divergence between these two approaches, and the consequential outcomes for victims and offenders, raises questions of whether one purpose should be preferred or whether elements of both can be implemented in impact statement regimes. This is an important question, because the rules and requirements of any impact statement regime must be informed by the purpose of such statements (Markin 2017). One would therefore expect that victim impact statement legislation would contain clear direction in this regard. Yet, as will be discussed in Chapter 3, there is no explicit indication as to which purposes actually underlie impact statement regimes in Australia and the implied indicators are confusing and sometimes contradictory (see Booth 2015). This lack of clarity frames much of the analysis and discussion throughout the remainder of the book. Ultimately, Chapter 5 will argue that it is possible for a properly constructed and principled victim impact statement regime to balance instrumental and expressive approaches, in order to prioritise a victim focus, without jeopardising fairness to the offender.
