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

6. Concluding Remarks

6. Concluding Remarks

The literature on victims’ rights in the 1990s paints a picture of an exponential growth in the ‘victim industry’ with little indication of progress being made in ameliorating the plight of the victim. This is why a recent book has characterized the modern crime victim as ‘all dressed up with nowhere to go’ (Elias, 1993:26). A recurring theme in the literature has been the symbolic endorsement of the concept of empowering victims while, at a practical level, legal professionals develop strategies to neutralize the symbolic gains achieved at the political level. True victim participation will require structural reform of the adversarial system, and structural reform is threatening to the vested interests of legal professionals.

Nothing constructive can be accomplished until the political objectives of the movement are co-ordinated with the constraints of an adversarial criminal process. For example, in 1994 the Standing Committee on the Administration of Justice in Ontario considered the enactment of a Victims’ Bill of Rights similar to statutory enactments in other provinces. The Committee concluded that the government should focus its efforts on identifying deficiencies in the process and determine which services and remedies should be established. The Committee indicated that the government’s position on a Bill of Rights was negative because of fears of creating expectations that could not be met:

A victims’ bill of rights typically sets out the kinds of services a victim may ask for and contains no government commitment to make those remedies and services available. Victim’s bills of rights such as those available in other provinces may often mask an absence of resources for victims. A close look behind such bills may reveal they’re little more than a cover for failure to provide adequate programs and services. (Standing Committee, 1994:31)

A little over a year later, a Victims’ Bill of Rights was proclaimed in force in Ontario despite the failure to conduct any studies on the needs of victims and the impact that victims’ participatory rights would have on the criminal process. Political considerations have taken precedence over an informed approach to the proper integration of the victim into the criminal process. Political aspirations, which can shift with the winds of public opinion, cannot serve as a solid foundation for legal reform. The point is that it is easy for political actors to make promises and establish institutions but without a proper understanding of the issue, based upon proper research, these promises are doomed to failure.

It is somewhat ironic that the highly professionalized justice systems of Europe have legal mechanisms that facilitate greater victim participation in the process. The irony of this inversion of expectations is that common law regimes are founded upon a tradition and history of private prosecution and community involvement (e.g., the jury), whereas continental inquisitorial systems of criminal justice have traditionally frowned upon lay involvement. The fact that these highly professionalized systems can accommodate true victim participation should have led legal scholars and criminologists to study and evaluate the features of continental justice which serve to facilitate true participation. However, as with most areas concerning victims’ rights, there is little original research of an empirical nature.

We have created an edifice of victims’ rights legislation without comprehensive research being conducted into:

  1. the needs of victims;
  2. the relationship between victim satisfaction and victim participation;
  3. the impact of professional resistance; and
  4. the impact of the criminal process on victims’ psychological functioning.

Very few Canadian studies have been conducted with the exception of Department of Justice Canada studies in the 1980s. Presumably these studies fueled the law reform efforts of the past two decades, but little, or nothing, has been done to determine the impact of these law reform efforts on victim satisfaction. Public policy has been built upon assumptions and stereotypical views of crime victims, and even if many of these assumptions turn out to be true, there still remains the question of why the wide-ranging legal reforms of the 1980s and 1990s have not served to placate the fears and concerns of crime victims. Symbolic recognition of the moral obligation to assist those who are victimized has been established around the globe, but effective implementation of law reform measures has failed.

At a 1990 meeting to address the implementation of the U.N. Declaration, Professor I. Waller listed the various questions which, in his view, should be addressed in assessing the level of compliance with the principles contained in the Declaration. These questions are listed below. In reviewing this list it will become apparent that in most jurisdictions the answer to these questions still remains the subject of debate, and the inability to answer these questions is evidence of what has or has not actually been accomplished by the victims’ rights movement. Professor Waller’s questions are as follows:

A consensus was reached many years ago that crime victims have been unjustifiably excluded from the criminal process, yet debate continues as to the most effective and balanced approach to the reintegration of the victim into the process. A great deal has been achieved in pursuing this goal; however, it appears that we have reached a crossroads in this quest. Symbolic recognition of the rights of crime victims has been secured and the question is whether or not we are content to leave the state of victims’ rights at this abstract level with the hope that symbolic recognition will eventually lead to a modified prosecutorial ethos in which victims’ needs and interests are specifically addressed by public officials. Victims’ rights are far too important to relegate them to mere abstract statements of principle and the time has come to translate symbolic recognition into a practical and meaningful law reform agenda.

Victims’ rights tend to be associated with a conservative, crime control agenda, and this association is borne out by some of the American reforms that have served to erode an accused’s constitutional rights. However, this erosion is neither natural nor inevitable, and can easily be prevented. The current disdain with which the public views the criminal process should compel lawmakers to consider deep structural reforms that will include an increased participatory role for the victims of crime. Putting a human face on the sentencing process will help in combating the legitimacy crisis that currently plagues North American criminal justice.

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