• Lewis Waring

Victim Impact Statements Imperfect Solution - Anonymous

Historically, victims have been left out of the criminal justice system as actors, as the harm that has been done by a crime being committed is viewed as being committed against the state, not against the victim. Over the years, significant improvements have been made in victims’ rights through legislation such as Bill C-89, which amended the Criminal Code, allowing for victim participation through victim impact statements. Victim impact statements (“VIS”) detail the physical, social, psychological, emotional, financial, and medical impacts of a crime on the victim and those close to the victim. These impact statements are heard during the sentencing phase of the trial after a finding of guilt.

Proponents of VISs will put forward arguments, for example, the therapeutic benefit as well as the importance of the information to the sentencing judge, providing rehabilitation benefits to the defendant and improving sentencing overall. While these are all strong points, there are equally convincing counterarguments. There has been empirical evidence that suggests that there is little to no therapeutic or cathartic benefit to a victim completing a VIS. It has also been argued that the victim giving a monologue in court does little to benefit the victim. It is much more productive to facilitate discussion through voluntary mediation. This is also true for the idea of rehabilitating the defendant. Having an uncontested courtroom confrontation in the form of a victim impact statement does little for either party. The most beneficial way to encourage rehabilitation and understanding is to encourage voluntary mediation where the victims can ask questions and share the impact of the crime with the defendant in a more productive setting.

Regarding providing information to the sentencing judge, sentencing guidelines are set for specific offences to narrow the disparity in sentences for similar crimes committed by similar offenders and the harm caused by the offender is incorporated into those guidelines. Personal characteristics of the victims are rarely of importance with regard to sentencing. Continuing with improving sentencing, the criminal justice system is not intended to treat the victim and defendant equally. American Justice Stevens stated in his Payne v Tennessee dissent “[t]he victim is not on trial; her character, good or bad, cannot therefore constitute either an aggravating or mitigating circumstance”. Victims should present evidence on the same basis as the defendant to promote the appearance of justice. The victim being of good or bad character should have no impact whatsoever on sentencing.

Considering VISs in sentencing, it is important to be mindful of the issues that can arise. For example, prosecutors have used stacks of VISs to prove a point by showing how tied a victim is to their community and ultimately draw a harsher sentence. Where this raises issue is the possible difference in sentences between similar offenders with similar offences where one has an abundance of impact statements and another may have few or none. Does this mean the mere absence of impact statements garners a harsher sentence?

There are also a few barriers to the accessibility of victim impact statements, namely, a lack of understanding regarding the purpose of impact statements. The system has not assigned a particular criminal justice professional to address or explain particular rights to the victim. The Crown is supposed to ensure that victims are aware of their right to prepare a statement and the judge is meant to inquire as to whether sufficient time to prepare a statement. While these steps are likely completed, there is likely no one to provide an enhanced understanding and support in preparing the victim impact statement. This support is important as there are rules on what can be included within the impact statement. A number of impact statements are submitted including these prohibited statements, such as giving a suggestion for sentencing or denouncing the criminal justice system as a whole. The impact statement process can lead to unrealistic expectations as victims can go into the process expecting to be able to express themselves freely when that is truly not the case. It is also important to consider equitable issues to consider when impact statements are involved. There may be literacy or linguistic barriers, for example, children, individuals who are unfamiliar with English, or those who are illiterate.

Even though victims have legislated rights, that does not mean that those rights address the needs of the victim. There have been a handful of academics that have argued that these changes benefit the system more than the victims. In the United States, for example, when a prosecutor wants to increase their conviction rate or if they are running for office, they will turn their offices resources to working with victims as witnesses, not taking into account how the victim leaves their office or if they provided them with any help. It is purely to make the criminal justice system look good.

In Canada it has been argued that allowing for VISs in the sentencing process allows judges to hand down harsher sentences within the sentencing guidelines without making any significant changes to the system.

There is currently little beneficial involvement for victims within the criminal justice system. The current system fails to address their needs sufficiently and has significant equitable issues. Going forward it would be nice to see a push for more efficient and beneficial involvement for victims.

Check out the Robson Crim MLJ
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