Friday 11 April 2014

Victim’s Rights (Part 1)

Victims' rights are legal rights afforded to victims of crime. These include the right to restitution, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.

Nowadays, in many countries, those rights are guaranteed to victims of crime. But there was a time when victims of crime were denied those rights.

While I was working as a process server in the 1970s, I was assaulted by an ex-boxer after serving his wife with a million dollar court claim. I laid a charge against him. When he was given the date of his second appearance in court, I was not informed that he had appeared several days earlier with a doctor’s note saying that he was suffering from a weak heart. The charge of assault was withdrawn by the prosecutor without first consulting with me.  The senior prosecutor later apologized to me for that oversight.  

During the colonial and revolutionary periods in the United States, the criminal justice system was victim-centric. In that time, crimes were often investigated and prosecuted by individual victims. In the 19th and early 20th centuries, however, the focus shifted so that crime was seen primarily as a social harm against society in general. The criminal justice system came to be seen as a tool for remedying this social harm, rather than an avenue for redress of personal harm, and the role of the victim in criminal proceedings was drastically reduced and in most cases, totally ignored.

The modern Crime Victims’ Rights Movement began in the 1970s. It began, in part, as a response to the 1973 U.S. Supreme Court Decision in Linda R.S. v. Richard D. in which the Court ruled that the complainant did not have the legal standing to keep the prosecutors' office from discriminately applying a statute criminalizing non-payment of child support. The court articulated the then-prevailing view that a crime victim cannot compel a criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” This ruling served as a high-water mark in the shift away from the victim-centric approach to criminal justice, making it clear that victims in the 1970s had "no formal legal status beyond that of a witness giving evidence in court.

In 1985, I was called upon by the United Nations to be a one of the speakers at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders that was being held in Milan, Italy in September of that year.

The United Nations Congresses (conferences) each now being called the Crime Prevention and Criminal Justice Congress are one of the main periodic conferences of the United Nations and these Congresses play a major role in international standard-setting and policy-making in crime prevention and criminal justice. The congresses bring together policy-makers and practitioners in the area of crime prevention and criminal justice, as well as parliamentarians, individual experts from academia and other sources, representatives from civil society and the media. I am classed by the United Nations as an individual expert because of my training and background as a criminologist.

My speech scheduled at that particular Congress in 1985 was about victim’s rights amongst other speeches I was to give. Alas, I had just returned to Milan after visiting several Italian cities and carelessly left my speech in the car I had rented and it was parked many blocks away when my name was called to address the Congress. I didn’t want to try playing it by ear so I signaled that I was going to pass.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the General Assembly on the 29th of November 1985.

It wasn’t until the year 2000 when prior to attending the United Nations Tenth Congress held in Vienna, Austria that I and other individual experts were called upon to present our papers on our proposals on how to improve the rights of victims of crime while attending that Congress. In my speech, I exposed many wrongs and various abuses inflicted on the victims with a view to rendering reparative justice. In 2005, the UN General Assembly adopted some of our proposals.  

Although people react differently to crime and do not all suffer serious or long-lasting effects, emotional reactions can affect everybody and a failure to respond or an inadequate response to such emotions on the part of the responsible authorities may exacerbate feelings of anger and fear. It follows that a peaceful and orderly resolution of conflicts depends upon showing compassion and respect for the dignity of victims by meeting their expectations.

Attempts to improve the position of victims in the administration of justice is an admission of the fact that national justice systems have often focused on the offender and his or her relationship with the State, to the exclusion of the rights, needs and interests of victims of those offenders.  It is for this reason that the primary concern should, in general, be to ensure that victims whose rights have been violated in one way or another feel that they are in the sphere of justice.

For this reason, it is extremely important to always bear in mind that in order to avoid further disillusionment on the part of victims of crime, everybody working in the criminal justice system must show respect and understanding for the victim’s concerns, needs and interests.

Thoughtlessness and lack of consideration will needlessly add to the victims’ pain, disappointment and the feeling that their feelings are actually ignored.  As stated in paragraph 5 of the UN’s Declaration of Basic Principles, victims of crime should be enabled “to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible”. 

According to the same provision, victims of crime “should be informed of their rights in seeking redress through such mechanisms”. This duty to inform, constitutes an essential part of the responsibilities that various law enforcement authorities should have towards victims of crime.

The response of the police during the victim’s first encounter may have a decisive impact on the victim’s attitude towards the criminal justice system as such. The role of the police is therefore crucial at this early stage of the criminal process.
The Declaration on Basic Principles provides little guidance on police conduct as such, although paragraph 4 makes the general statement that victims “should be treated with compassion and respect for their dignity”, a rule that is equally valid for the police. The only explicit reference to the police is contained in paragraph 16, according to which police personnel constitute one of the groups that should receive training to sensitize them to the needs of victims and guidelines to ensure proper and prompt aid id made available to the victims.

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information. It should also include  allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system and providing proper assistance to victims throughout the legal process.

According to the Council of Europe Recommendation on the Position of the Victim:

Police officers should be trained to deal with victims in a sympathetic, constructive and reassuring manner” – Part IA, paragraph 1; the police should inform the victim about the possibilities of obtaining assistance, [such as] practical  and  legal  advice,  compensation  from  the offender  and  state compensation” – Part IA, paragraph 2;  the victim should be able to obtain information on the outcome of the police investigation” – Part IA, paragraph 3; [and] in any report to the prosecuting authorities, the police should give as clear and complete a statement as possible of the injuries and losses suffered by the victim” – Part IA, paragraph 4.

It follows from these provisions that the most important aspect of the role of the police is to show due courtesy and respect to every victim and their families. They must also ensure that the victims feel that the offences are being seriously considered. To prevent a sense of frustration among victims or increased anger, fear and insecurity, police officers should avoid conveying the impression that the crimes are trivial or otherwise not being taken seriously. Certainly, respect, compassion and understanding for every victim should thus be the hallmark of police conduct at every stage, including a willingness to speak to the victims in their language so that  they will understand what is happening in their case. The police should also avoid using professional jargon that will only confuse the victims.

The police are particularly well placed to inform victims of crime of ways in which they can obtain assistance, compensation and other kinds of help. For instance, they can refer victims to specialized assistance agencies and should preferably provide the information in both oral and written form, since the victims may at this stage be too upset to remember all oral information given to them. Further, the police should reassure victims by emphasizing that the crime that has been committed against them is not tolerated and that they will do their best to investigate the victim’s case. A police officer that trivializes a crime in the presence of a victim is doing an injustice to the victim and giving the victim the impression that the police don’t really have an interest in solving the crime and bringing the perpetrator of that crime to justice. 

An important role for the police is to give to the victims various kinds of essential information regarding the judicial process. The continuous sharing of information that is of relevance to victims and their needs and interests is of fundamental importance in ensuring that they feel involved in the criminal proceedings, an aspect that has long been neglected in the criminal justice system. In particular, victims need to be adequately informed about the role they might play in the proceedings. Again, all such information should preferably be conveyed to the victim in both oral and written form. To this end, well-written guides could prove helpful. Of course if the community in which the victim lives has a victim’s services organization, they can be the ones to give the victims that information.

A failure to inform the victim about the result of the police investigation may undermine the victim’s confidence in both the police and the judicial criminal systems and the capacity to deal with crime and the effects of crime. Unfortunately some police forces are negligent in this aspect of the relationship between themselves and the victims they are dealing with.  Keeping the victim in the dark is almost as bad as doing nothing to apprehend the offender who committed the crime. 

Furthermore, unless the prosecuting authorities are in possession of a detailed and adequate account of the effects of the crime on the victim or victims concerned, they may not be able to adequately assess the seriousness of the unlawful act, which, again, may cause the victim to feel neglected and lose confidence in the judicial process.

The police must at all times show respect for, and courtesy towards victims of crime. The police should provide victims of crime with information about

available help, assistance and compensation for injuries and losses they have sustained as a result of the crime.

The police should share other relevant information with victims of crime, including information about the role that victims may play in the criminal proceedings. Further, the police should inform victims of the outcome of their investigation and provide the prosecution with detailed information as to the effect or effects that the relevant crime had and continues to have on the victims concerned.

By treating victims with respect and understanding, and by sharing relevant information with them, the police help to promote confidence in the criminal justice system.

In Part 2, I will deal with the role of the prosecutors, the lawyers, and the  judges.

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