Victim impact statements

November 14th, 2009

Justice Minister Simon Power responded instantly and sensibly to the launch of the SST campaign to allow victims to give the Court their views on sentencing.

More sensibly than the new President of the Law Society. The latter could have said something like "I commend the quick response of the Minister of Justice, and I hope that the law change is thorough enough to start reassuring victims that the justice system cares as much about them as it does offenders". Instead he focussed on the threat that victims will risk arrest for contempt of court until they are no longer gagged.

There are many ways to ensure that a right to comment does not degrade the court process (bearing in mind that all this occurs after the guilt of the offender has been determined). I comment on some of the safeguards at the end of this post.

The Victim Impact Statement provisions were well meant, but in 1990 a case meant in effect that they could do little more than confirm the "loser" position of the victim, in front of the convicted offender. Instead of being part of the community’s reassurance to victims that society now stood beside them, it sucked them into reinforcing the message of the offender’s power to hurtm and their relative powerlessness, even after the conviction.

A 2007 academic paper by Peter Sankoff and Lisa Wansbrough gives a good background to the issues.

A Court of Appeal case this year (R v H [2009] NZCA 77) confirmed that the 2002 law changes did not change the way the courts should treat these statements. The Appeal judges said the High Court was wrong, for example, to allow the victim to say that the offending rapist was "cynical, predatory and manipulative in the extreme", of a rapist who groomed a young girl who came to live with his family.

I’ve waited for this campaign for a long time, since my amendments were rejected by the Select Committee on the Sentencing Bill, and then by the House, in 2002. I tried to ensure that victims had at least as much right to express themselves as that Act gave to the offender and his family and whanau.

Compare the law’s tender care of the offender in section 27 of the Sentencing Act with its grudging discretionary permission to victims in section 17 and 18 of the Victims’ Rights Act.

For the Justice officials who will report to their Minister, here are some suggestions for the amendment, which better be urgent:

a) allow victims to express opinions on the same matters that the convicts’ family are permitted to comment on, and in particular to tell the court;

1. What they think the penalty should be, whether that is to ask for leniency, for severity, or for any particular kind of sentence;

2. What they believe to be the truth about any hurtful claims raised by the defence or other defence conduct during the trial;

b) Alternatively it might just remove the restrictions on what victims can say, subject to defamation law (with the judge able to limit the usual privilege for court reporting so that it will not protect reporting of unfairly damaging victim claims or allegations about matters not dealt with in the court proceedings)

c) Allow the court to limit the time for an oral statement (given the endless patience of the courts for dopey defence claims and cross-examination, it should be up to 30 minutes, say 3000 words);

d) Allow the court to limit the number of victims who can present oral statements in any trial ( I think the risk of repetition and grandstanding would be limited if it could be confined to say 3).

e) Allow the court a discretion to stop and to confine to writing a victim who degrades the proceedings with repetitive foul language or other uninformative abuse, going beyond what it is reasonable to expect of victims having regard to their need and right to denounce the convict and the release of emotion after the long passivity of the trial.

It gets perhaps too far into detail, but the law should ensure that victims have rights :

1) To argue that the sentence be increased to reflect any lack of remorse or indifference to compounding the hurt shown in the defence conduct of the case. This should have been the change after the Weatherston case, instead of ending the defence of provocation;

2) To ask the court to order specific reparation or compensation;

3) To draw attention to any disgraceful conduct and attitude during the trial of the convict’s family and supporters, when the court considers any submissions from them on sentence.

Filed under Criminal Justice, Law reform projects

Comments

Many people are very surprised to learn that victim statements are routinely heavily censored. Now we know why the relatives of murder victims sound so restrained and accepting at sentencing hearings – they haven’t been allowed to say what they think. It is sad that the legal profession have quietly gone along with this travesty.