Fiona Tait B. App Soc Sci / MCrim (Research) USyd

 

*This study was conducted by Fiona Tait in fulfilment of a Master of Criminology degree through the Department of Criminology at the University of Sydney, supervised by Professor Julie Stubbs (UNSW) and Associate Professor Rita Shackel (USYD). 

 

 

Acknowledgements

 

I wish to thank all the victims of crime (VOC) who participated for their kindness and generosity. I remain profoundly touched by their experiences, humbled by their suffering and awed by their beneficence and resilience despite the harms they have suffered. Their bravery in coming forward, and the candour of their responses, have provided a deeper understanding of the NSW victim impact statement experience, leading to findings, recommendations and the development of resources that may assist future VOC engaging with the NSW VIS process. I also thank the many victim service professionals (VSP) who gave their time to assist the study, and who work tirelessly to assist VOC to the best of their ability, despite being often overworked and under-resourced. This research would have been far more difficult to perform without the considerable support of Lee Purches - NSW Witness Assistance Service, Marianne Curtis, Mandy Young and Louise Lenard  - NSW Department of Justice. Of the many victim support services who assisted the study, particular thanks go to Martha Jabour - Homicide Victims Support Group, Pauline Nunn and Lindsay Bonouvrie - Mission Australia Court Support Service and Robyn Cotterell-Jones -Victims Of Crime Assistance League.

 

Finally I would like to thank my supervisors, Professor Julie Stubbs and Associate Professor Rita Shackel, whose advice, wisdom and encouragement were invaluable. I remain indebted to both for their responsiveness and focused reviews of the progress of the research. 

 

Executive Summary

 

This study sought to determine the nature of the Victim Impact Statement (VIS) process as experienced by victims of crime (VOC) in NSW and whether the VIS was used by all eligible victims, or whether VIS take up was associated with particular variables including victim characteristics, nature of the crime, criminal justice processes, and cultural and societal norms.  The study was also interested to understand how VOC perceive the purpose of VIS, their reasons for making or not making a VIS, and the nature of the therapeutic benefits VIS provide. Between 2010 and 2011, 66 VOC approached the study to participate.  In-depth interviews were subsequently conducted with 56 family and primary VOC and 35 victim service professionals (VSP) using  semi-structured questionnaires specially designed to elicit both quantitative and qualitative data. 

 

The study contributes to existing research by providing a comprehensive picture of how the NSW VIS process is experienced by VOC and understood by victim service professionals (VSP), revealing benefits and limitations of the VIS process. The study presents a rigorous in-depth analysis of the nature of therapeutic benefits of the VIS, describing not only what the benefits are but also why they occur. Further the study provides important insights into the difficulties that VOC face when considering whether or not to make a VIS.  The findings of this study are useful for victim support services and those in criminal justice to better understand the needs of VOC and target their support. Importantly it presents a first hand understanding of the nature, challenges and risks of the VIS writing experience and provides data regarding how systemic processes of VIS impact VIS experience, and the types of assistance VOC use and require during the VIS process.

 

Findings confirm that the VIS is a useful therapeutic mechanism. It offers VOC the opportunity to reconstruct the traumatic story from their perspective, to assess their harms, and to make meaning of their suffering in order to restore their connections to those close to them and to the wider community through the experience of their story being heard and validated within a public, sanctioned forum. Interestingly, most participants who reported dissatisfaction with sentencing outcome or their experience of the criminal justice process viewed their presentation of their VIS as worthwhile. 

 

Analysis of data from the broad cross-section of victims of various serious crimes in NSW interviewed shows that motivations to make a VIS and expectations for it’s consequential effect are complex, affected by specifics of the crime, relationship between the offender and victim, micro and macro characteristics, experiences and needs of the victim. VIS are further influenced by the processes and relationships VOC encounter en route to and during the final presentation of their VIS at sentencing proceedings. 

 

Findings show VOC eligible to make a VIS are confused about: 

• the purpose of the VIS

• what content is admissible and inadmissible

• why a VIS is edited

• media access to, and media use of the VIS

• where and how the VIS will be positioned and presented within sentencing proceedings

• what consideration of the VIS at sentencing means

 

 

Further, when deciding whether or not to make a VIS, some VOC are challenged by:

• trauma

• access to VIS information and support, especially in Local Court matters

• the enormity of encapsulating their harms within the VIS

• their levels of literacy and language

• issues of culture, gender, religion, perceived status, intellectual and physical ability

• fears regarding retribution from the offender/offenders family/their community

• feelings of shame

• fear of personal exposure

• fear of media exposure

• the possibility that they may be cross-examined on their VIS

• fear of court

 

 

 

Overview

 

The VIS is a highly considered document.  At every stage in the process, from the decision to make a VIS, its composition, and the manner of final presentation, VOC are forced to negotiate and evaluate multivariate complex personal and process issues.  On a personal level, while informing the Court of the crime’s impact, and hoping to affect sentence are reasons some VOC make a VIS, other reasons are often equally or more important to them.  These include: 

 

• presenting the personhood of the deceased in death matters, or personhood of the primary victim to the court

• informing the offender and/or their family of the crime’s impact 

• raising public and political awareness regarding the human cost of particular crimes

• redressing the balance and equity in criminal justice proceedings 

• being an opportunity for personal catharsis 

• demonstrating personal strength and resilience – ‘victimised not victim’

• performing one’s civic duty and democratic right

• assisting the authorities engaged in the prosecution process. 

 

However, various factors inhibit VOC from making a VIS.  Some VOC have no desire to continue their engagement with the criminal justice process beyond conviction. Some are too traumatised to be able to consider a VIS, while others gain empowerment and a sense of personal autonomy from the opportunity to choose not to make a VIS. Many do not wish the offender to know the nature of their suffering, fear of retribution from the offender or their family/community, or fear that exposure of their harms will further empower or satisfy the offender. Contemplation of the VIS is further complicated for VOC who are in a current relationship and/or share children with the offender, or those who retain protective, compassionate, conflicted or ambivalent feelings towards them. 

 

VOC report concerns regarding how they will be perceived, based on their experience or perception of normative value judgments of personal status and self-worth, to include culture and ethnicity, gender, literacy, language, age, religion, sexual preference, mental and physical ability, relationship with the offender and previous experience of criminal justice processes.  Fear of cross-examination, feelings of shame and concerns regarding personal exposure through publication of the contents of the VIS by media can also inhibit VOC from making a VIS or affect VIS content.

 

In terms of process, VOC can be dissuaded from making a VIS if they find it difficult to access or comprehend VIS information, if they feel their desire to make a VIS is unsupported by those close to them, victim support services, or those engaged in the prosecution of the matter, if the content of their VIS is curtailed - in particular during charge negotiations, or if the time to produce the VIS is limited. In terms of service provision, many VOC participants expressed gratitude for the support and kindness they received from the police, victim support and criminal justice personnel.  However, it appears that availability of services, the nature of the crime and victim characteristics are factors affecting the level of assistance and support VOC receive.

 

Consistent with other studies, this study found a general confusion in participants’ understanding regarding the exact purpose of VIS. Most VOC viewed it functionally in terms of VIS having some consequence or causal effect, be it affecting sentence, affecting the emotional understanding and future behaviour of the offender, or affecting wider public and political awareness. This confusion in marrying the informative function of VIS in sentencing proceedings to an outcome was also held by some in victim support agencies, and those working within the criminal justice system (VSP). Some VSP viewed the VIS as tokenistic, believing it to have no tangible value, based on their understanding that VIS had no actual consequence in terms of the sentencing decision of the court.  Others viewed the VIS as having an effect on sentencing decisions, viewing it as a practical tool, of use to the prosecution.  Overall, VIS was viewed by VSP as measure to enhance VOC satisfaction with the sentencing process as a result of the inclusion of the victim’s voice. Some saw this opportunity to participate as meaningful for their clients, however any therapeutic benefits of VIS was seen more as a by-product of the process, rather than a function.

 

Editing the VIS

 

Over 50% of VOC study participants reported that their VIS was edited. VIS edits performed however were not solely as result of VOC wittingly or unwittingly including inadmissible content that needed to be removed prior to presentation.  Editing of VIS, occurring in two stages, was often reported as being idiosyncratic, eclectic and inconsistent, largely based on a second-guessing on the part of victim support or prosecution services of what may or may not be deemed admissible within the bounds of the legislation by the defence, or judiciary. VOC were not always consulted or counselled regarding VIS editing. The enormity of the emotional and psychological challenges VOC negotiate when deciding to make and then compose their VIS is important to understand as it explains the resultant anguish when such carefully conceived and meaning-loaded documents suffer mismanagement through systemic inconsistencies in VIS editing processes, VIS supports, protocols and acknowledgement within the court. For example findings show the therapeutic benefits of VIS, whether orally presented or handed up are significantly enhanced when accompanied by some form of judicial acknowledgement and validation, and can be similarly diminished when VIS appear dismissed or ignored by the Judge. 

 

VIS take-up

 

The study found that victims suffering serious personal crimes prosecuted in the higher courts most usually present VIS.  Far fewer VIS are made in Local Court matters. Most oral VIS are made by family victims in Death Matters, with women in general making more VIS than men.  It appears that fathers make far fewer VIS on behalf of deceased daughters than deceased sons, in comparison with mothers who make VIS for deceased children of either gender, and the content presented within family VIS in general reflects stereotypical norms of gender of the author, and their biological relationship to the deceased. All family participants in the study had chosen to make a VIS.  Within the primary VOC sample, physical assault and historical child sexual assault were the most common offences presented by male participants, and domestic violence and sexual assault, the most common offences presented by female participants. Of 29 primary participants eligible to make VIS, 72% made a VIS and 28% decided not to.  Seven of the eight non-VIS makers (88%) were female victims of sexual assault or domestic violence; all knew their offender. Of the non-VIS makers, just over a third were Local Court matters where participants, including the male participant, stated they would have made a VIS if requested or allowed by their prosecutor.  Within the study, over 60% of non-VIS makers were distinguishable by their accent or ethnic background as being other than white Australian. By comparison, 13% of participant VIS-Makers identified as not being of Anglo/European descent or not born in Australia (7% identifying as Aboriginal and 5% as Maori or Chinese).

 

In terms of ethnicity and country of origin overall, within the VOC sample those of white Anglo/Australian descent are over-represented while those of non–Anglo/Australian descent are under-represented as VOC in relation to statistics reported in current NSW victimisation studies (ABS 2013). Whilst it is possible that findings are an artefact of the sample and study design, results suggest that there is a difference between the demographics of the VIS maker and the general victim of crime, and that gender, socio-cultural status and personal understandings of self worth impact VIS take-up. As such, findings appear to support earlier criticisms that the VIS favours VOC who speak the language of the dominant culture and/or possess a confidence derived from knowledge of the dominant culture’s procedures and norms. Meaning those best able are more likely to make a VIS and more likely to successfully access information and support if required.

 

 

The therapeutic benefit of writing and presenting a VIS 

 

Writing a VIS is described as a highly emotional, and for some, a psychologically challenging and triggering experience.  Family victims tend to take longer to write their VIS than primary victims.  Many VOC draft their VIS in isolation, which was a concern to some VSP, especially for vulnerable and traumatised victims and those who had suffered historical or protracted crimes of physical and sexual abuse. Writing the VIS is reported as cathartic by many VOC, however this is not its lasting therapeutic benefit. Data show the fundamental therapeutic benefit of VIS is that it requires VOC to engage in a process that challenges them to acknowledge the crime, evaluate it’s consequences as they experience them at the time, in the present and in the future. Essentially, the VIS allows VOC to reconstruct their trauma story and, in doing so, choose how they wish their victim hood to be understood intrapersonally and interpersonally. Contemplation, composition and presentation of the VIS, channels VOC into a therapeutic process of personal grief work, facilitating the opportunity to make meaning, reconstruct the self and reconnect to society through the acknowledgement and acceptance of their changed state, sanctioned by the Court.  This process can be transformative, and its therapeutic effect, robust and lasting, even for VIS makers who felt their VIS had been unfairly edited or ignored by the Court, or those reporting disappointment with criminal justice processes or sentence outcomes. Findings show that those describing the experience of writing and presenting their VIS as most difficult also find it most rewarding. 

 

Significance of the findings

 

It is hoped that findings revealing the emotional challenges VOC endure to prepare their VIS will inform those charged to vet them, hear them and acknowledge them. In understanding the importance to VOC of judicial acknowledgement, it is anticipated that this research may lead to a discourse within the judiciary regarding appropriate responses to VISs, while upholding the rights of the offender. Findings show that the legislation regarding the VIS remains unclear, causing those supporting VOC to second guess what the defence and judiciary might deem as appropriate content. As the VIS of family victims can now be considered in sentencing, a review of the guidelines for dealing with the VIS would be timely, to avoid family VOC, and indeed primary VOC, being further traumatised by overzealous editing or by the mismanagement of their expectations regarding the influence of their VIS on sentencing. Overall, the findings suggest that VOC and VSP are confused about the duality between the functional use of VIS to the court and its therapeutic value to VOC, further complicated by personal assumptions of what the tangible consideration of a VIS actually means.

 

It is hoped that these findings will lead to further targeted research, contribute to current VIS discourse, and assist those who support VOC and those handling and responding to VISs within sentencing proceedings to better understand the systemic and process challenges that VISs present, the varied motivations behind VIS presentation and their therapeutic importance.

 

 

 

RECOMMENDATIONS: To improve VIS process*

 

*These recommendations arise from the research findings. It is understood that their implementation would require some funding and co-operation from the Department of Justice and the Office of the Director of Public Prosecutions.  Changes to Court procedures and the law is a matter for the NSW Law Reform Commission and the NSW Government.   

 

• A central information line for VOC to call regarding VIS questions, with staff educated in emotional and systemic challenges facing VOC considering VIS.

 

• A VIS video/s available online outlining VIS purpose, content and presentation and addressing specific concerns raised by the study.

 

• VIS information sheet available at Local Courts.

 

• Standard protocols for the presentation of oral VIS in Supreme, District and Local Court.

 

• Standard protocol for judges and magistrates to orally acknowledge an oral or tendered VIS in summation prior to sentencing.

 

• Facility to present oral or tendered primary or family VIS in matters where offender is found not guilty due to mental illness/diminished responsibility.

 

• Education regarding presentation of VIS at the Local Court for police/police prosecutors/defence/magistrates.

 

• Education regarding the complexities and emotional challenges VOC endure to make a VIS for those prosecuting, defending and judging matters.

 

• Information and access provided to VOC wishing to apply for financial aid in order to attend sentencing to make a VIS, if their personal finances prohibit them from doing so.

 

• Standardised protocols regarding information given by victim support agencies to VOC regarding VIS.

 

 

RECOMMENDATIONS: For research

 

• Collection of VIS statistics in all NSW courts in matters meeting criteria for the presentation of a VIS - to include:

 

    • demographic details of VOC

    • nature of matter

    • if death matter, VOC relationship to deceased

    • whether sentencing post-trial or guilty plea

    • VOC relationship to offender, if any

    • VIS presented orally, tendered or not presented

    • judicial/magistrate response to VIS

    • media access to VIS

    • sentence details.

 

Rationale: At present no statistical detail regarding VIS is kept.  Individual agencies such as WAS and NGO victim support agencies keep some data regarding their clients making VIS, but there is no systematic data collection.  For this reason, it is not possible to state how many VIS are made in particular courts, nor who they are made by and in which matters.  As the study findings suggest particular VOC making VIS in particular circumstances, statistical data is needed, to ensure all VOC wishing to make a VIS have the access and support to do so.

 

• Content analysis of VIS from initial draft through edit process, if any, to final VIS presented at court.

 

Rationale: Findings suggest the editing of VIS is inconsistent.  A content analysis of VIS as they are edited with rationale for edit/s analysed against the legal guidelines may assist clarification of VIS guidelines regarding VIS content. 

 

• Qualitative study based on in-depth interviews with offenders in prison regarding the impact of the victim impact statement on their understandings of the consequences of the crime for the victim, the level of responsibility they acknowledge for those consequences whether foreseen or unforeseen, and whether they have made any behavioural change since hearing/reading the VIS. The study would also incorporate the offender’s understanding of the purpose of VIS.

 

Rationale: Findings show that offenders rarely acknowledge VIS during their presentation. Anecdotal evidence suggests that the VIS provides offenders with insight and an opportunity to consider their actions. This research would inform debates regarding the restorative justice value of the VIS.

 

 

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