Abstract
Remember when the introduction of victim impact statements (VIS) was going to destroy criminal justice as we know it? Rhiannon Davies and Lorana Bartels have written a sober assessment of the debates. Their excellent book examines the use and usefulness of VIS from an Australian perspective with a particular focus on sexual assault matters. Australia is a good country in which to conduct a comparative review of how VIS are working as each of the Australian states and territories enacts its own crimes legislation and manages its own criminal justice system. These are all common law jurisdictions with a broadly similar socio-economic makeup but with just enough diversity in political responses to crime victims for the critical analysis Davies and Bartels make.
The authors use socio-legal methods for their research, combining legislative analysis, content analysis of sentencing remarks and interviews with victim survivors and justice professionals. The data are drawn from four jurisdictions – Victoria, South Australia (SA), Tasmania, and the Australian Capital Territory (ACT). Davies and Bartels approach their analysis with a victim-focused and a therapeutic jurisprudence lens. First, the authors aim to understand ‘the nature and consequences of sexual victimisation’ and because they assert VIS were introduced to ‘alleviate […] retraumatisation’ (p. 13). Second, they argue that therapeutic jurisprudence is a ‘richer’ way to consider its law reform agenda (p. 14). They offer recommendations for change from these perspectives.
The book opens with Emily Doe and brief information about the ‘Stanford rape case’ she survived. Her searing VIS went viral. The author later shed the ‘Emily Doe’ moniker by writing a memoir under her own name, Chanel Miller (Know My Name, 2019). By making her VIS a public statement and speaking more publicly since, Miller joined a growing network of women who not only refuse to shoulder blame and shame, but who also claim spaces to speak of their demands for justice. It is a bold and interesting move from Davies and Bartels to link present highly constrained and individualised approaches to VIS with public voices such as that from Miller. Although they do not bring in #metoo and #letherspeak, the implication is of survivors’ voices bursting from institutional strait jackets.
The point is emphasised with each of the six main chapters ending with a snapshot of one of the six victim/survivor respondents interviewed by Davies and Bartels. August, Laura, Phillipa, Jessica, Rachel, and Eve each gave voice to the impact of sexual victimisation on them and to their experiences of the criminal justice process. Each of them submitted a VIS and four chose to read it themselves in court. None of the six women interviewed gave strong positive evaluations of their involvement in the criminal justice process. Their assessments varied from most negative ‘horrific’ (Eve) to feeling ‘a nuisance’ (Jessica) and most positive in seeing professionals ‘really cared’ (Laura). These evaluations of criminal justice by victims have been reiterated again and again in research as Davies and Bartels acknowledge in their introduction. Decades of research into victims’ justice needs have been synthesised as five key elements: participation, voice, validation, vindication, and offender accountability (Daly, 2014). With this background, VIS emerged as ‘a mechanism for victim input into sentencing decisions’ in common law countries (Erez, 1991: 7). How open is this opportunity and how free the voice, are questions that Davies and Bartels address.
In doing so, they helpfully review studies examining if VIS unfairly increase sentences, cause court delay, introduce superfluous or inflammatory information into the sentencing process, re-traumatise victims, or whether submitting a VIS improves victim satisfaction (Ch. 2). The varying research foci, as Davies and Bartels point out, not only arise from arguments against providing a role for victims other than as a prosecution witness, but also from argument whether the role provided by VIS should be procedural and/or substantive. From these debates, a conceptual binary emerged that VIS were (or should be) expressive or instrumental in purpose and outcome.
As Davies and Bartels go on to examine, the confusion about victims’ role and the purpose of VIS amplified by this binary is then manifested in the legislative instruments giving effect to VIS. Uncertainties are embedded in what victims are allowed to include as content, how the VIS may be presented, what is admissible, and rules for cross-examination. The authors’ consolidated analysis will be valuable for researchers and reformers alike as it reveals just how tightly controlled is participation and voice. The authors’ unique analysis of 100 sentencing transcripts then identifies if, how and how often judicial officers acknowledge and respond to VIS and find almost uniform acknowledgement (p. 88). However, the authors also find substantial variation but no discernible pattern to judicial acknowledgement. It is at this point that the authors’ therapeutic lens becomes strained as they readily acknowledge (p. 91). Their content analysis of sentencing remarks poses ‘benefit’ as a proxy for ‘therapeutic’, specifically the ‘level of acknowledgement’, but without definitions of or scales for ‘level’ or ‘benefit’. Instead, they use victim interview data as a framing device. Although it is not an entirely helpful analysis, the approach shows that, for a therapeutic lens to gain purchase, more clarity on definitions and measures is required.
The authors make a more grounded examination of how justice professionals manage the tension between the instrumental and expressive purposes of VIS. Interviews with 15 professionals – prosecutors, witness assistants, and victim support officers – reveal that each place differing and sometimes conflicting emphases on those aspects of the VIS they discuss with victims. Davies and Bartels use a ‘multi-functional model’ developed by Canadian scholar, Marie Manikis, to systematically analyse the professional interviews. The Manikis model – and Davies and Bartels’ adaption of it – confronts the either/or debate by allowing both instrumental and expressive purpose. Although there are likely to be quibbles with some aspects of the adapted model, it is a simple and elegant approach.
What is astonishingly clear from both the victim and professional interviews is the continuing failure to provide case-relevant and timely (or any) information in a routine and systematic manner to people as victims. The problem was identified in 1985 in England by Shapland, Willmore, and Duff (1985). Successive inquiries in Australia, Britain, and elsewhere confirmed that victims were simply not informed about what was going on with the case in the criminal process. In the present research, all six of the victims interviewed express surprise at being kept out of ‘the loop’. Perhaps, offering an opportunity to victims to submit a VIS is a gesture of acknowledgement designed for symbolic effect while studiously avoiding any disruption to the institutional arrangements and priorities that victims have persistently criticised.
Davies and Bartels have written a very useful text for researchers and reformers alike. They assemble an impressive analysis of Australian legislation and case law and make an important contribution to understanding judicial engagements with VIS and their content. The therapeutic framework they use is less convincing. The empirical evidence does not find that victims are motivated to engage with criminal justice for therapeutic outcomes. Therapeutic jurisprudence is a framework retrospectively applied to the experience of secondary victimisation. Identified needs for participation, voice, validation, vindication, and offender accountability are first-order requirements for victims. If these primary needs (or interests) are met, then there may be secondary therapeutic effects. But the point is to directly address what victims have persistently said they want. An emphasis on a therapeutic frame to victims’ justice needs instead can soften the demands that victims make for justice, can serve to produce the emotional subject so feared by those antagonistic to a victim role, can reward representations of ‘deserving’ victims and can divert victims once again to waiting rooms.
None of these concerns mean that victims’ therapeutic needs should be ignored. But Chanel Miller spoke to say ‘stop’. She called for respect, to be heard, for accountability and for precedent. She did not speak as a ‘vulnerable victim’. Her demands were/are foundational to justice. The ‘incoherence’ that surrounds VIS (Edwards, 2003) emerges from a failure to engage directly with these first-order interests, as well as a persisting failure to address the structural exclusion of victims as independent actors.