The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

4. Victims’ Rights Around the World

4. Victims’ Rights Around the World

4.1 Introduction

Earlier this century, common law and civil law jurisdictions were considered mutually exclusive paradigms for administering justice. With the development of comparative law studies this century, many common law jurists started to explore the unique features of the civil law, ‘inquisitorial’ system of criminal justice to determine if this mode of justice could address some of the shortcomings and failures of adversarial justice. Consistent with the trend is a burgeoning body of comparative literature on victims’ rights with a view to determining the most effective and efficient manner of implementing these rights.

For the most part, the victims’ rights reforms around the world are remarkably uniform. Of course, there are variations on the theme, but putting aside the unique "adhesion" procedures in most European countries (a process whereby the victim becomes a secondary prosecutor in the criminal process), all jurisdictions have adopted some form of victims’ rights model (including compensation schemes, victim assistance programs, or participatory rights through victim impact statements and victims’ Bills of Rights). As would be expected, the Commonwealth jurisdictions present the most relevant data for the purpose of comparison with Canada. The similar common law heritage, the use of administrative guidelines as opposed to legislation to promote victims’ rights and the discretionary sentencing regimes all contribute to an identity of legal culture which facilitates comparative analysis. The American experience shares the same common law heritage but there are differences in legal culture and legal process (especially the rise of determinate and presumptive sentencing) which may prevent drawing helpful conclusions from this experience. Many American commentators have expressed regret over the unduly politicized nature of the victims’ rights debate (Henderson, 1998; Mosteller, 1998), and the prolific outpouring of literature on a Federal constitutional amendment for victims has rendered much of this literature irrelevant from a Canadian perspective.

The European experience is clearly premised upon the most dissimilar legal culture; however, some of the unique components of the civil law tradition may serve to dispel some of the reservations and concerns expressed by legal professionals in common law jurisdictions regarding the increase in victim participatory rights. Many lawyers would argue that whether or not victims’ rights have received international recognition as a human right, the adversarial trial process will collapse if victims can override prosecutorial decisions or if victims are allowed to participate in trial proceedings. To counter this doom and gloom prognosis, it is instructive to look at the European experience. First, most European jurisdictions allow for some form of judicial review of prosecutorial decisions. For example, in the Netherlands and Greece a victim can have a court review a prosecutor’s decision not to proceed with a prosecution. Second, most jurisdictions have followed the lead of France in creating an action civile in which the victim can attach his/her civil claim to the criminal prosecution and thus participate as an equal with legal representation and the right to cross-examine. Even when the victim does not have an independent, civil cause of action, some jurisdictions allow the victim to participate as a ‘secondary’ prosecutor. For example, in Germany the nebenklage procedure allows victims of serious violent crime to participate at the trial with a state-funded lawyer. To date, none of the criminal justice systems of these jurisdictions have collapsed under the weight of victim involvement and the German experience with the nebenklage procedure demonstrates that very few victims actually take the opportunity to participate as a ‘secondary’ prosecutor. For the most part, European crime victims are content to leave carriage of the prosecution to public officials, but the fact that they know they can participate, if the need arises, appears to lead to greater satisfaction with the process.

European crime victims can, and do on occasion, participate in criminal trials, and this should counter the dire prediction that victim involvement will lead to chaos within the justice system. It is not fear of collapse but fear of institutional adjustment that compels most legal professionals to fight against any further incursions into the process by victims. It must still be recognized that there are certain structural and constitutional components of our adversarial trial system that would not allow for a simple transplant of the European conception of victim as secondary prosecutor. For example, the constitutional division between criminal law (federal) and civil law (provincial) would not readily permit for the attachment of a ‘parasitic’ civil claim onto an existing criminal prosecution. Furthermore, the European process is judge-driven (i.e., the judge, and not the lawyers, presents the case) and the introduction of another lawyer into this process to represent the victim does not necessarily lengthen or complicate trials as European lawyers do not have as large a role to play as their Anglo-American-Canadian counterparts. There is a legitimate concern that in our adversarial system, with its focus on lawyers and the value of rigorous advocacy, the introduction of a represented victim into the process could serve to lengthen a trial process which already appears bloated and inefficient.

The reason why victim law reform has taken similar forms around the world is due to the fact that most of the reform was predicated upon the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (a document co-sponsored by Canada). Further uniformity was achieved in Europe with the passage of the 1983 European Convention on the Compensation of Victims of Violent Crime and the 1985 Recommendation R(85) (The Position of the Victim in the Framework of Criminal Law and Procedure) of the Committee of Ministers of the Council of Europe (Muller-Rappard, 1990). In many ways this latter policy is simply the European counterpart of the North American Victims’ Bills of Rights. The convergence of victims’ rights reform around the world is underscored by the 1998 publications of a United Nations Guide for Policymakers on the Implementation of the United Nations Declaration and the United Nations Handbook on Justice for Victims (both documents are available on the International Victimology Website — www.victimology.nl/rechts.htm). These implementation guides recognize some regional variation in the establishment of programs for victims, but, for the most part, the documents suggest the establishment of fairly uniform practices.

Although this report will focus upon the common threads among the jurisdictions, it is important to keep in mind the significant differences. In particular, there appears to be a larger and more developed volunteer infrastructure in place outside Canada for the provision of victims’ services and rights. Victim Support in England and the National Organization for Victim Assistance in the US (Maguire & Shapland, 1997; Young, 1990) are examples of non-governmental agencies that make a significant contribution to the provision of victims’ rights and services. Victims’ rights associations do exist in Canada, e.g., CAVEAT (www.caveat.org), Canadian Resource Centre for Victims of Crime (www.crcvc.ca), MADD Canada (www.madd.ca), but compared to volunteer agencies in other jurisdictions, these Canadian counterparts make only a modest contribution to the provision of services and rights. In drawing comparisons between Canada and other jurisdictions, it is unclear to what extent the prominence of private agencies in other jurisdictions serve to confound the comparative analysis.

With respect to the available literature for this part of the report, it must be noted that the bibliographical listings are not intended to be exhaustive. Unlike the Canadian review, less reliance was placed upon the collection and review of government reports, and with respect to European literature, the report is restricted to literature available in the English language. As mentioned earlier, the American literature is not only voluminous but it is endlessly repetitive. Accordingly, not all available American material is listed and the bibliographical listings attempt to primarily capture leading articles and a selective sample of the literature on various topics which have attracted an endless outpouring of academic commentary.

4.2 Discussion

4.2.1 The American Experience

The prolific nature of American academic writing in the area of victims’ rights revolves around two key issues:

  1. victim impact statements in capital cases (Boudreaux, 1989; Hellerstein, 1989; Bendor, 1992; Clarke & Block, 1992; Ewing, 1992; Fahey, 1992; Sperry, 1992; Cornille, 1993; Loverdi, 1993; McLeod, 1993; Sebba, 1994; Vital, 1994; Luginbuhl & Burkhead, 1995; Mullholland, 1995; Dugger, 1996; Phillips, 1997; Logan, 1999); and,
  2. the value of enshrining victims’ rights in the Constitution (Calcutt, 1988; Eikenberry, 1989; Dixon, 1991; Wegryn,1993; Cassell, 1994; Scott, 1994; Weed, 1995; Barajas & Nelson, 1997; Koskela, 1997; Caissie, 1998; Mosteller, 1998; Henderson, 1998).

It is these topics which have led to the conflation of law and politics and has led to victims’ rights being perceived as another political platform for law and order priorities instead of being perceived as a matter of legal principle. The short history of victim impact statements in the US underscored the political ideology that has dominated debate. In 1987, the US Supreme Court ruled that victim impact statements were not admissible in a capital sentencing hearing because they were inflammatory, irrelevant to the issue of the offender’s moral culpability and not capable of meaningful rebuttal by the accused [Booth v. Maryland, 107 S. Ct. 2529 (1987)]. Four years later, the Court reversed this decision in a rhetorical flourish that included statements such as: "Justice, though due to the accused, is due to the accuser also" and "by turning the victim into a faceless stranger at the penalty phase of a capital trial [our earlier decision in 1987] deprives the state of the full moral force of the evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for first degree murder" [Payne v. Tennessee, 111 S. Ct. 2597 (1991)].

This rapid volte-face can only be explained by the "hydraulic pressure" of public opinion and political aspirations to effectively serve crime victims. Although the academic literature contains irresolute debates over the proper penological theory to justify victim evidence, it is clear that the Supreme Court’s reversal was not predicated upon this literature or an evolving penological perspective. The Supreme Court of the US paved the way for victim impact evidence to be introduced on the delicate issue of whether to order the death penalty, and since then, victim impact evidence has been entered in many trials with little restriction and little guidance from the judiciary. Victim impact evidence is also introduced at parole hearings across the country and initial indications suggest that release upon parole was less likely when the victim tendered an impact statement (Bernat et al., 1994). The current American situation with victim evidence in capital cases is summarized in the following, rather disconcerting statement:

Some eight years after Payne was decided, it is now readily apparent that victim impact evidence is here to stay, and, indeed, will likely come to enjoy even broader use in capital trials. At the same time, it is also clear that the increasing use of the emotionally potent testimony is occurring in a context almost entirely free of procedural controls and substantive limits, raising the specter of a return to the era of unfettered decision making condemned over 25 years ago by the Supreme Court in Furman v. Georgia. Death penalty jurisdictions, eager to give a "voice" to otherwise silenced murder victims, have exhibited a glaring inability (or unwillingness) to address the most basic questions associated with victim impact evidence, including: Who should be qualified to testify? What are the legitimate bounds of "impact"? What is the basic purpose of impact evidence? And how should it bear on jurors’ death penalty decision? The absence of answers to these basic questions has, on a regular basis, led to the admission of highly prejudicial and plainly improper evidence in capital prosecutions nationwide. (Logan, 1999:176)

Commentators have always been alert to the political dimensions of victims’ rights reform (McCoy, 1993), but the transparency of the political infiltration of the debate can be found in the voluminous writings on the value of a victims’ rights constitutional amendment. An amendment to the 6th Amendment of the American Constitution (the trial rights of the accused) was proposed in 1982 by the President’s Task Force on Victims of Crime which would have guaranteed the victim "the right to be present and to be heard at all critical stages of the proceedings". Despite the failure to entrench victims’ rights within the American Constitution in the 1980s, recent years have seen victims’ rights groups succeed in having enacted amendments to 29 state constitutions and in introducing such an amendment in Congress in 1996. The following amendment was raised for consideration in Congress in 1996 (and there have been countless revisions since):

VICTIMS’ RIGHTS CONSTITUTIONAL AMENDMENT (SENATE JOINT RESOLUTION 52)

Section 1

To ensure that the victim is treated with fairness, dignity, and respect, from the occurrence of a crime of violence and other crimes as may be defined by law pursuant to section 2 of this article, and throughout the criminal, military, and juvenile justice processes, as a matter of fundamental rights to liberty, justice, and due process, the victim shall have the following rights: to be informed of and given the opportunity to be present at every proceeding in which those rights are extended to the accused or convicted offender; to be heard at any proceeding involving sentencing, including the right to object to a previously negotiated plea, or a release from custody; to be informed of any release or escape; and to a speedy trial, a final conclusion free from unreasonable delay, full restitution from the convicted offender, reasonable measures to protect the victim from violence or intimidation by the accused or convicted offender, and the notice of the victims’ rights.

Section 2

The several States, with respect to a proceeding in a State forum, and the Congress, with respect to a proceeding in a United States forum, shall have the power to implement further this article by appropriate legislation.

In introducing this proposed amendment, President Clinton stated:

When someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in. Participation in all forms of government is the essence of democracy. Victims should be guaranteed the right to participate in proceedings related to crimes committed against them. People accused of crimes have explicit constitutional rights. Ordinary citizens have a constitutional right to participate in criminal trials by serving on a jury. The press has a constitutional right to attend trials. All of this is as it should be. It is only the victims of crime who have no constitutional right to participate, and that is not the way it should be. Having carefully studied all of the alternatives, I am now convinced that the only way to fully safeguard the rights of victims in America is to amend our Constitution and guarantee these basic rights — to be told about public court proceedings and to attend them; to make a statement to the court about bail, about sentencing, about accepting a plea if the victim is present, to be told about parole hearings to attend and to speak; notice when the defendant or convict escapes or is released; restitution from the defendant; reasonable protection from the defendant and notice of these rights. (Remarks by the President at announcement of Victims’ Rights Constitutional Amendment, June 25, 1996, The Rose Garden)

The political nature of this debate is transparent, and, accordingly, this report will not outline the various arguments made in support, or in opposition, to constitutional amendments and victim impact statements. Instead, this report will briefly assess the current status and effectiveness of legislation which provides participatory rights and, to a lesser degree, welfare rights.