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

4. Victims’ Rights Around the World (cont'd)

4. Victims’ Rights Around the World (cont'd)

4.2 Discussion (cont'd)

4.2.1 The American Experience

4.2.1.1 Participatory Rights in America

In the fifteen years since the issuance of the President’s Task Force on Victims of Crime, the federal government and all 50 state governments have enacted legislation in the nature and spirit of the Canadian Victims’ Bills of Rights. In essence, this legislation guarantees notification of key proceedings and outcomes, some right of consultation with the prosecutor and the right to be heard and be present at significant proceedings. As of 1997, 29 states have ratified "victims’ rights" constitutional amendments which are similar in design to the statutory listings of rights.

Of course, there are some minor differences in stated entitlements and some implementation differences between the various states. For example, some states require the police to notify victims of their rights, some states place the burden on the prosecutor and some states do not designate a public official responsible for notification. However, for the purposes of this report, the American jurisdictions will be considered as a monolithic entity.

Although the Canadian Bills of Rights and the American statutes are virtually identical, it must be recognized that some American jurisdictions have gone much further than Canada in articulating a set of rights and an enforcement mechanism. Most commentators consider Arizona to be the frontrunner in expanding the catalogue of victims’ rights, and to provide some flavor of the potential scope of an expansive legislative approach to victims’ rights (to be contrasted with the representative and limited Canadian listing set out in Chapter 3.0 of this report), the key provisions of the Arizona regime are included in their entirety below:

13-4405. Information provided to victim by law enforcement agencies

  1. As soon after the detection of a criminal offense as the victim may be contacted without interfering with an investigation, the law enforcement agency that has responsibility for investigating the criminal offense shall:
    1. Inform the victim of the victims’ rights under the victims’ bill of rights, article II, Constitution of Arizona, any implementing legislation and court rules.
    2. Inform the victim of the availability, if any, of crisis intervention services and emergency and medical services and, where applicable, that medical expenses arising out of the need to secure evidence may be reimbursed pursuant to 13-1414.
    3. If an arrest has been made, inform the victim:
      1. That a suspected offender has been arrested and that, on request, further information and notice of all proceedings in the case will be given to the victim.
      2. Of the next regularly scheduled time, place and date for initial appearances in the jurisdiction.
      3. That the victim has the right to be heard at the initial appearance.
      4. That the right to be heard may be exercised by the submission of a written statement to the court and advise the victim on how the statement may be submitted.
    4. If a suspected offender has not been arrested, inform the victim that the victim will be notified by the law enforcement agency that a suspected offender has been arrested at the earliest opportunity after the arrest and that, on request, further information and notice of all proceedings in the case will be given to the victim.
    5. If a suspected offender is cited and released, inform the victim of the court date and how to obtain additional information about the subsequent criminal proceedings.
    6. If the case has been submitted to a prosecutor’s office, provide the victim with the name, address and telephone number of the prosecutor’s office.
    7. Provide the victim with the names and telephone numbers of private and public victim assistance programs, including programs that provide counselling, treatment and other support services.
    8. In cases of domestic violence, inform the victim of the procedures and resources available for the protection of the victim pursuant to 13-3601.
    9. Provide the victim with the police report number, if available, other identifying case information and the following statement: "If within thirty days you are not notified of an arrest in your case, you may call (the law enforcement agency’s telephone number) for the status of the case."
  2. The law enforcement agency that has the responsibility for investigating the criminal offense shall provide all notices to the victim required under this section.

13-4408. Pretrial notice

  1. Within seven days after the prosecutor charges a criminal offense by complaint, information or indictment and the accused is in custody or has been served a summons, the prosecutor’s office shall give the victim notice of the following:
    1. The victims’ rights under the victim’s bill of rights, article II, 2. 1, Constitution of Arizona, any implementing legislation and court rule.
    2. The charge or charges against the defendant and a clear and concise statement of the procedural steps involved in a criminal prosecution.
    3. The procedures a victim shall follow to invoke his right to confer with the prosecuting attorney pursuant to 13-4419.
    4. The person within the prosecutor’s office to contact for more information.
  2. Notwithstanding the provisions of subsection A of this section, if a prosecutor declines to proceed with a prosecution after the final submission of a case by a law enforcement agency at the end of an investigation, the prosecutor shall, before the decision not to proceed is final, notify the victim and provide the victim with the reasons for declining to proceed with the case. The notice shall inform the victim of his right on request to confer with the prosecutor before the decision not to proceed is final. Such notice applies only to violations of a state criminal statute.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992. Amended by Laws 1992, Ch. 209, 10.

13-4419. Victim conference with prosecuting attorney

  1. On request of the victim, the prosecuting attorney shall confer with the victim about the disposition of a criminal offense, including the victim’s views about a decision not to proceed with a criminal prosecution, dismissal, plea or sentence negotiations and pretrial diversion programs.
  2. On request of the victim, the prosecuting attorney shall confer with the victim before the commencement of the trial.
  3. The right of the victim to confer with the prosecuting attorney does not include the authority to direct the prosecution of the case.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992. Amended by Laws 1992, Ch. 209, 16.

13-4423. Plea negotiation proceedings

  1. On request of the victim, the victim has the right to be present and be heard at any proceeding in which a negotiated plea for the person accused of committing the criminal offense against the victim will be presented to the court.
  2. The court shall not accept a plea agreement unless:
    1. The prosecuting attorney advises the court that before requesting the negotiated plea reasonable efforts were made to confer with the victim pursuant to 13-4419.
    2. Reasonable efforts are made to give the victim notice of the plea proceeding pursuant to 13-4409 and to inform the victim that the victim has the right to be present and, if present, to be heard.
    3. The prosecuting attorney advises the court that to the best of the prosecutor’s knowledge notice requirements of this chapter have been complied with and the prosecutor informs the court of the victim’s position, if known, regarding the negotiated plea.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992. Amended by Laws 1992, Ch. 209, 17.

13-4431. Minimizing victim’s contacts

Before, during and immediately after any court proceeding, the court shall provide appropriate safeguards to minimize the contact that occurs between the victim, the victim’s immediate family and the victim’s witnesses and the defendant, the defendant’s immediate family and defence witnesses.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992.

13-4433. Victim’s right to refuse an interview

  1. Unless the victim consents, the victim shall not be compelled to submit to an interview on any matter, including a charged criminal offense witnessed by the victim that occurred on the same occasion as the offense against the victim, that is conducted by the defendant, the defendant’s attorney or an agent of the defendant.
  2. The defendant, the defendant’s attorney or another person acting on behalf of the defendant shall only initiate contact with the victim through the prosecutor’s office. The prosecutor’s office shall promptly inform the victim of his right to refuse the interview.
  3. If the victim consents to an interview, the prosecutor’s office shall inform the defendant, the defendant’s attorney or an agent of the defendant of the time and place the victim has selected for the interview. If the victim wishes to impose other conditions on the interview, the prosecutor’s office shall inform the defendant, the defendant’s attorney or an agent of the defendant of the conditions. The victim has the right to terminate the interview at any time or to refuse to answer any question during the interview. The prosecutor has standing at the request of the victim to protect the victim from harassment, intimidation or abuse and, pursuant to that standing, may seek any appropriate protective court order.
  4. Unless otherwise directed by the victim, the prosecutor may attend all interviews. If a transcript or tape of the interview is made and on request of the prosecutor, the prosecutor shall receive a copy of the transcript or tape at the prosecutor’s expense.
  5. If the defendant or the defendant’s attorney comments at trial on the victim’s refusal to be interviewed, the court shall instruct the jury that the victim has the right to refuse an interview under Arizona constitution.
  6. For the purposes of this section, a peace officer shall not be considered a victim if the act that would have made him a victim occurs while the peace officer is acting in the scope of his official duties.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992. Amended by Laws 1992, Ch. 209, 24.

13-4436. Effect of failure to comply

  1. The failure to use reasonable efforts to perform a duty or provide a right is not cause to seek to set aside a conviction or sentence.
  2. Unless the prisoner is discharged from his sentence, the failure to use reasonable efforts to provide notice and a right to be present or be heard pursuant to this chapter at a proceeding that involves a post-conviction release is a ground for the victim to seek to set aside the post-conviction release until the victim is afforded the opportunity to be present or be heard.
  3. If the victim seeks to have a post-conviction release set aside pursuant to subsection B, the court, board of executive clemency or state department of corrections shall afford the victim a reexamination proceeding after the parties are given notice.
  4. A reexamination proceeding conducted pursuant to this section or any other proceeding that is based on the failure to perform a duty or provide a right shall commence not more than thirty days after the appropriate parties have been given notice that the victim is exercising his right to a reexamination proceeding pursuant to this section or to another proceeding based on the failure to perform a duty or provide a right.

Added by Laws 1991, Ch. 229, 7, eff. Jan. 1, 1992. Amended by Laws 1992, Ch. 209, 26; Laws 1993, Ch. 255, 52, eff. Jan. 1, 1994.

13-4437. Standing to invoke rights; recovery of damages

  1. The victim has standing to seek an order or to bring a special action mandating that the victim be afforded any right or to challenge an order denying any right guaranteed to victims under the victim’s bill of rights, article II, 2.1, Constitution of Arizona, any implementing legislation or court rules. In asserting any right, the victim has the right to be represented by personal counsel at the victim’s expense.
  2. A victim has the right to recover damages from a governmental entity responsible for the intentional, knowing or grossly negligent violation of the victims’ rights under the victims’ bill of rights, article II, 2.1, Constitution of Arizona, any implementing legislation or court rules. Nothing in this section alters or abrogates any provision for immunity provided for under common law or statute.
  3. At the request of the victim, the prosecutor may assert any right to which the victim is entitled.

This Arizona regime is the high-water mark in terms of legislative protection for crime victims and it may not represent an attainable standard for Canada. As in Canada, there are only a few American academic, evaluative studies of the impact of these participatory rights upon the criminal process and their relationship to victim satisfaction. Before turning to these reports, it must be noted that there exists an entirely different body of literature from which some inference can be drawn about the impact of victim rights law reform. Unlike in Canada, there is a growing body of American case law chronicling the battle of crime victims to convert their symbolic legislative recognition into practical action. Even though every American jurisdiction has granted some participatory rights to victims, the federal regime and 40 states expressly deny remedies for violations of these rights. Ten states allow for remedial action either by way of appellate review of public officials’ decisions, disciplinary action or damages for the intentional violation of rights. In the past ten years, victims have relied upon the courts to review state inaction with respect to participatory rights by requesting legal remedies when they exist or by attempting to fashion new remedies in the great bulk of jurisdictions which have denied legislative remedies.

To date, the most dramatic judicial construction of victims’ rights has been the Hance case in 1993 (Hance v. Arizona Board of Pardons and Paroles 875 P. 2d 824). In that case, the Arizona Court of Appeal set aside an offender’s release on parole because of the failure of state officials to notify the victim of the hearing. As indicated above, Arizona has the most extensive panoply of rights in the US and it has also provided for various statutory remedies. Although the case was the first of its kind in North America it was not a great leap of faith for the court as the legislature had already contemplated the type of remedy ordered by the court. Beyond this case there are only a handful of examples of court-ordered remedies for a victim/plaintiff. For example, in Myers and Daley, 521 N. E. 2d 98 (1987), the Illinois Appeal Court upheld an award of costs to a crime victim who needed to initiate a suit to compel the prosecutor to provide information about his case, and in People v. Stringham, 253 Calif. Rptr. 484 (1988), the Court of Appeal upheld a decision of a trial judge setting aside a plea bargain which the victim had rejected.

Despite growing court battles over the scope and enforce−ability of victims’ rights, victims have largely been unsuccessful in litigation. Due to the fact that most federal and state legislation does not provide remedial provisions, most courts have construed the Bills of Rights as being merely directive or permissive [e.g., People v. Thompson, 202 Cal. Rptr 585 (1984); People v. Pfeiffer, 523 N. W 2d 640 (1994); Dix v. Shasta, 963 F. 2d 1296 (1992); State v. Holt, 874 P. 2d 1183 (1994)]. The failure of state legislators to provide remedies and the failure of the courts to fill the gap has led many commentators to criticize legislative Bills of Rights as being an illusory reform. In fact, this is one of the major arguments made in favor of constitutional entrenchment as entrenchment would trigger judicially-created remedies. Even the US Department of Justice has recently confirmed that the absence of significant remedial provisions is a major factor in the perceived failure of victims’ rights reform:

Today, there are more than 27,000 crime-related state statutes, 29 state victims’ rights constitutional amendments, and basic rights and services for victims of federal crime. Nevertheless, serious deficiencies remain in the nation’s victims’ rights laws as well as their implementation. . . Even in states that have enacted constitutional rights for victims, implementation is often arbitrary and based upon the individual practices and preferences of criminal justice officials. . . Victims should have standing to enforce their rights, and sanctions should be applied to criminal and juvenile justice professionals who deny victims their fundamental rights. . . Victims report that criminal and juvenile justice officials at times disregard their statutory and constitutional rights, and that they have no legal recourse when their rights are violated. States should enact provisions that give victims measures to enforce their rights when they are disregarded. (US Department of Justice, 1997:ix)

One unique feature of American victims’ rights legislation is that some jurisdictions have established victims rights compliance projects to evaluate the success of integrating participatory rights into the criminal process (US Department of Justice, 1997). The compliance mechanisms range in scope and authority with Colorado officials having the authority to investigate claims of non-compliance and the power to order institutional change or adjustment, Minnnesota officials only having the power to recommend change and Wisconsin only allowing officials to discuss victim concerns with officials whose actions have been called into question. Victims’ Rights Compliance Projects appear to be an effective model for fostering institutional compliance with the stated objectives of Victims Bills of Rights, but formal evaluations of their effectiveness have yet to be completed. The Office for Victims of Crime, a division within the US Department of Justice, has recently issued a report evaluating the experience with compliance efforts in three states, and it has provided a useful checklist of issues which need to be addressed for establishing an effective compliance mechanism:

The creation of a victims’ rights compliance enforcement function affords state policymakers and administrators an opportunity to review and reassess the status of victims’ rights implementation, as well as the current delivery of victims’ services in the state.

An analysis of this sort may allow officials to assess how a compliance enforcement mechanism will interrelate with current delivery systems.

When state officials begin planning victims’ rights compliance enforcement mechanisms, they may want to consider the following:

  • which agency, individual, or body will accept accountability for the compliance effort;
  • what type of system — a strong state presence or a decentralized board or committee-driven structure — will work most effectively within the current political context of the state;
  • what will be the role and support of other groups active on victims’ issues, including various state and local victims’ advocacy groups and victims’ service providers, as well as criminal justice practitioners who have been active in incorporating the concerns of victims in their daily practice;
  • whether it is appropriate or viable to create remedies for agency violation of victims’ rights laws, to identify the scope and circumstances that would trigger remedies, whom and/or what may prescribe them, and if changes to current constitutional and/or statutory language are necessary to reflect these remedies;
  • whether the creation of a victims’ rights compliance system is viable under current budget constraints;
  • what, if any, alternative functions and responsibilities a victims’ rights compliance program should undertake, such as providing direct counseling to victims or training and technical assistance to promote victims’ rights outreach and education; and how evaluation tools and techniques can be built into the liaison program successfully. (Office for Victims of Crime, 1997:viii)

In terms of evaluative academic studies in the 1990s, the general thrust has been to demonstrate that victims’ participatory rights have not dramatically changed the legal landscape (Kelly & Erez, 1997; see also Davis & Smith, 1994). A study of 500 felony cases in Ohio revealed that victim impact evidence does not have a significant impact upon the sentence outcome — traditional aggravating factors, gravity of offence and prior record, are still the prime determinants of sentence. The study also confirmed earlier assertions that victims did not present themselves as unduly punitive or vengeful in their statements with only one third even requesting imprisonment or other harsh sanctions. Written victim statements filed with the court in advance of sentence had a greater impact on the choice of sentence than did oral statements provided at the hearing, and the author concluded that this may be a product of the judge having reached a firm conclusion before conducting the hearing such that statements introduced at the sentencing hearing fall upon a decision maker who has already reached a firm conclusion (Erez & Tontodonato, 1990).

Prior to the 1990s, there was a body of literature which found a correlation between victim participation and victim satisfaction. Davis and Smith reviewed this literature and found the evidence lacking. In conducting their own study of 293 victims in the Bronx, Davis and Smith found that there was no indication that victim impact statements led to greater satisfaction and recommended that:

Basic research is needed to ascertain the proportion of victims who want to participate more fully in the justice process and to determine who these victims are. It is necessary also to find out how many victims want to participate. Is it enough to keep them informed? To allow them to be in court during sentencing? To prepare written impact statements? To permit them to allocute? What victims want might or might not be compatible with the aims of the criminal justice system and the rights of the accused. However, until we understand what victims want, we cannot debate their proper role in the justice process intelligently. (Davis & Smith, 1994:11–12)

The relationship between victim satisfaction and victim participation can be affected by the dynamic between victims and the relevant justice officials. Henley, Davis & Smith (1994) found that despite expressed sympathy for victims, prosecutors and judges were "lukewarm" to the admission of these statements. These findings are consistent with conclusions drawn by Professor E. Erez in studying other jurisdictions (Erez, 1999). A survey of 1,300 victims from various states revealed that the rate of implementation of victims’ participatory rights did not significantly vary between states with "strong" victims’ rights laws and states with weaker legal protection. However, victims in the "strong" states did express greater satisfaction with both the process and outcome, but, "still, the comparative figures cannot conceal the fact that many victims, even in States where legal protection is strong, gave the system very negative ratings" (Kilpatrick, Beatty & Howley, 1998:6).

Professor Tobolowsky (1999) has provided a clear summary of the existing empirical evidence (including studies conducted before the 1990s) examining the implementation of participatory rights. With respect to the basic right of notification of case progress and outcome, she states:

Just as the extensive notification provisions have received only limited judicial interpretation, they have been the subject of only limited empirical research. Based on surveys conducted at approximately the time of the President’s Task Force, a few researchers concluded that their crime victim respondents sought more information as to developments in their cases. Respondents also indicated that the provision of such information would increase their satisfaction with the disposition in their cases and the criminal justice system generally. In a study of the results of an early victim assistance program in which victim liasons, inter alia, notified victims of court dates, however, other researchers found no significant differences between the control and the experimental program groups in the percentage of victims who felt that they "had been treated well in court" or "had been informed of the status of their case". Similarly, in a study to determine the effect of various forms of victim participation in the criminal justice process— including victim notification — on victims’ distress levels, researchers found that notification of court proceedings had no significant effect on victims’ feelings of distress soon after their victimization or subsequently thereafter. (Tobolowsky, 1999:46–48)

With respect to the right to be present at court:

Few researchers have attempted to assess the effect or impact of victims’ presence at criminal justice proceedings. One study focused on the effects of victims’ court attendance and knowledge of dispositions of their cases on their perceptions of their offenders and on sentences imposed generally. Researchers found that court attendance itself appeared to improve victims’ perception of sentencing outcomes generally, but had no impact on their perceptions of their offenders. Other researchers found that court attendance had a correlation with whether offenders received sentences of incarceration or probation and the length of the incarceration sentences imposed, but had no significant impact on victims’ satisfaction with the sentences imposed or with the criminal justice system generally. These researchers also found that court attendance had a limited positive effect on victims’ distress levels. Thus the results of this limited empirical research regarding the effects of court presence are somewhat inconclusive. (Tobolowsky, 1999:56–57)

With respect to the right to be heard or consulted regarding plea resolution agreements:

Despite the continuing expansion of victims’ rights to be heard regarding plea negotiations and agreements, researchers have devoted little attention to assessing the effectiveness of such rights. One of the few such efforts is a field experiment conducted over twenty years ago to evaluate the use of pretrial settlement conferences to which the judge, prosecutor, defence attorney, defendant, victim and investigating officer were invited. The research results provide support for policy advocates on all sides of the issue of the effectiveness of victims’ rights to be heard regarding pleas. From a systems standpoint, the conferences seemingly shortened the length of time it took to close cases, but did not cause significant changes in the proportion of cases litigated or defendants convicted. In terms of the dynamics of the conferences, they were dominated by the professionals with lay members mainly providing requested information. The sessions were attended by only one-third of the invited victims, but victims and other lay participants indicated modest gains in information and satisfaction with their treatment as compared to non-participants. Subsequent field studies generally confirmed these research results. Seizing upon various aspects of these studies, commentators again have advocated various mechanisms through which victims can provide expanded input regarding plea negotiations and agreements. (Tobolowsky, 1999:66–68)

With respect to the right to participate in the sentencing process:

At the outset, despite advocates’ and analysts’ portrayal of victims’ desire for greater participation in the criminal justice process, and especially the sentencing process, estimates of the extent to which victims have taken full advantage of their rights to be heard at sentencing have varied considerably. Based upon a survey of probation staff and prosecutors in thirty-three states, one researcher concluded that victim impact statements were prepared, on average, in over three-fourths of felony cases. Only eighteen to twenty-six percent of victims, however, were present at sentencing; approximately fifteen percent submitted authorized written statements independently of the victim impact statement included in the pre-sentence report; and nine to thirteen percent of victims reported having made oral allocution statements at sentencing. In a survey of victims in five states, other researchers found that while almost fifty percent of victims reported having been consulted about the sentences in their cases, only twenty-seven percent reported actually making a victim impact statement. Researchers conducting a local study found that fifty-five percent of the felony case victims submitted a victim impact statement, eighteen percent were present during trial or sentencing, and six percent exercised their oral allocution right at sentencing. This final figure is comparable to a state-based study concluding that oral or written allocution at sentencing was exercised in less than three percent of felony cases studied. Hypothesizing the reasons for the less than anticipated exercise of these victim rights to be heard, one researcher suggested an explanation: victim unawareness of the right due to lack of notification, discouragement or the absence of active encouragement by criminal justice personnel of their exercise, and actual victim choice of non-participation. The explanation of victims’ failure to take full advantage of their right to be heard at sentencing likely includes all of these factors. (Tobolowsky, 1999:81–83)

With respect to victim satisfaction and participation in the sentencing process:

Finally, especially in light of the limited changes in sentence outcome, the impact of the victim’s right to be heard on victim satisfaction must be considered. At the outset, survey results have varied as to whether victims even believe that their input has affected sentence outcome. As to victims’ satisfaction with their right to be heard or increased satisfaction with the resultant sentence outcome, research results are inconclusive. In a five-state survey of victims, half were not satisfied with their opportunity to provide input in the sentencing decision. In specific studies, however, the provision of victim input has not been found to result in any significant increase in victims’ satisfaction with the specific sentence imposed or with the criminal justice system generally. (Tobolowsky, 1999:89–90)

4.2.1.2 Welfare Rights

Turning to the provision of welfare rights through victim services, a recent study by Davis, Lurigio & Skogan (1999) has provided this overview of the needs of crime victims:

Two studies have examined in detail victims’ needs in the aftermath of crimes. The study by Friedman et al. (1982) of New York City crime victims who reported their crimes to police, tallied the proportion of victims who needed each of twelve different kinds of assistance, from borrowing money to receiving psychological counseling, to finding a temporary place to stay. They found that improving security (for example, repairing or upgrading locks and doors) and borrowing money were the types of help that victims needed most but were unlikely to receive from family, friends, or neighbors. A study of English crime victims by Maguire and Corbett (1987) came to similar conclusions with respect to the large percentage of victims who need help with improving security and making ends meet, but do not receive such assistance from their social networks. Other research has emphasized victims’ needs for such practical assistance as obtaining compensation for property losses and injuries, repairing damaged property, installing new locks, replacing stolen documents and credit cards, and finding transportation and child care (Shapland et al., 1985; Smale, 1977). Maguire (1985) found that the most common victim’s need was for information on insurance claims, compensation programs, crime prevention strategies and case progress. Furthermore, he suggested that victims’ needs were determined, in part, by the victimization experience. And, as Wemmers (1996:19) noted, ‘The extent to which [victims’] needs are perceived as a problem is also influenced by factors such as aid from family or friends and the skills of the victim’.

The importance of security assistance and emergency financial aid, which has been found in various studies, is interesting when contrasted with results of Roberts’ (1987) investigation of victim services programs. Roberts surveyed 184 victim assistance programs throughout the United States. He found that security and financial assistance were among the least common services that programs offered throughout the United States. Only 13% offered assistance with security and only 24% offered financial help. Moreover, Roberts observed that most programs did not intervene immediately but did so days or weeks after crimes had occurred. By that time, it might be too late to help victims resolve such urgent practical problems as repairing broken doors, windows and locks or buying groceries.

In summary, research suggests that victim services programs might be failing to meet important victim needs. Studies indicate that the counseling services emphasized by victim programs do not match the immediate, practical, and short-term security needs of many crime victims. (Davis, Lurigio & Skogan, 1999:104)

[Author’s Note: The references provided in this quotation are not necessarily included in the bibliographical listings found in this part of the report].

The above study was conducted with four victim service programs which were considered by experts to be "among the best victim services programs", and it was concluded that the programs "helped only a small proportion of respondents with most types of problems" (Davis et al.:102). This is best accounted for by the fact that 52% of the sample was not even aware of the existence of the programs. Those who did participate in the programs were generally pleased with the level of service but the majority of victims still looked to support from networks of family, friends and neighbours instead of assistance programs (Davis, Lurigio & Skogan, 1999).

A recent study of 893 justice officials in Florida found that the "criminal justice community is well situated to observe and respond to the needs of victims" (Lucken, 1999:143) with 85% of police, 60% of court officials and 50% of probation officers having made referrals to victim services. However, 53% of justice officials were uncertain about the efficacy of existing programs, and a clear majority (80%) were in favor of creating a centralized victim service centre. The survey data painted a picture of a "victim ensnared in a service referral maze that begins with an overburdened and admittedly ill-informed criminal justice system and ends with various social service organizations that are not designed to meet victim needs exclusively" (Lucken, 1999:147). In terms of the goal of integrating victims’ needs into the administration of criminal justice, the author of this study concluded:

The findings indicate that most victim services and assistance, with the exception of restitution/ compensation, cannot be, and have not been provided by the criminal justice system. They are instead provided by a collection of agencies that are part of a larger and fragmented social service network. Moreover, in attempting to access this network, victims have had to rely on a generally overwhelmed, unreceptive and uninformed criminal justice system. It is concluded that integration — understood broadly as "brought into membership in or partnership with" and narrowly as "awareness of" and sensitivity to victims’ issues, responsibility to victims’ needs and incorporating services into routine procedure — has not occurred. (Lucken, 1999:153)

This conclusion is consistent with a recent assertion made by the US Department of Justice that "today only a fraction of the nation’s estimated 38 million crime victims receive much-needed services such as emergency financial assistance, crisis and mental health counselling, shelter and information and advocacy with the criminal justice system" (US Department of Justice, 1997, Executive Summary:vii). The major complaint with respect to the victim-witness programs throughout the US has been lack of funding, lack of space and attrition of volunteers (Roberts, 1990) and it may be that the low level of delivery is simply a product of fiscal restraint and not a failure of the concept. Other commentators are not as condemnatory as to the past achievements and future prospects for the service field. The executive director of NOVA (National Organization for Victim Assistance) identified eight basic service elements:

  1. crisis intervention;
  2. supportive counseling and general advocacy;
  3. support during case investigation;
  4. support during prosecution;
  5. support after case disposition;
  6. crime prevention services;
  7. public education services;
  8. training of allied professionals. (Young, 1990:193–195)

In a survey of over 100 victim service programs, it was found that most programs were attempting to deliver all eight of these identified service elements. The most significant weakness in the programs related to inadequate training of the staff. The author also concluded that there is little guiding research into the effectiveness of various service programs (Young, 1990). Nonetheless, the author still expressed optimism seven years after the completion of this initial report:

It is clear that in the next decade, the field of victim assistance will continue to build on its successes. It is probable that victim services will be fully integrated into the criminal justice system, crisis services will be available in most communities, victims’ rights will be incorporated into the constitutions of most states (if not in the federal government), victimology (by whatever term it is called) will be a part of most educational curricula from elementary school through graduate-degree program, and victim assistance will become a recognized and respected profession. (Young, 1997:203)

4.2.1.3 A Note on Compensation

Before turning to the European experience, it is worth noting that one area of extensive academic commentary is the comparative analysis of compensation schemes around the world. In the literature we find elaborate evaluations of European schemes (Hertle, 1991; Villmow, 1991; Wemmers & Zeilstra, 1991; Merigeau, 1991; Rossner, 1991; Morgan, 1995) and comparisons between France and the US (Campbell, 1989), between Australia and the US (Kersh, 1994), between Europe and other European countries (Dunkel, 1985) and between Britain and the US (Greer, 1994).

For the most part the reviews are not positive. With respect to the US it is said that "a recent review of victim service and restitution programs across the country has revealed that many probation and parole agencies lack comprehensive restitution programs" (Franck, 1992:120). Similar criticisms are made with respect to the compensatory schemes in England (Greer, 1994; Villmow, 1991). The failure to achieve a successful and effective compensatory scheme is not a result of victim indifference as it is clear that victims have placed financial support as an important unmet need. In Germany, a pilot project in court-assisted compensation indicated that both offenders and victims were enthusiastic participants in this exercise in restorative justice.

The perceived failure of the American enterprise has led one commentator to recommend consideration of the French adhesion process in which victims can attach their civil claims to ongoing criminal trials (Campbell, 1989). As is often the case, failure in the implementation of domestic policy will lead to consideration of alternative modes of delivery found in other jurisdictions.