Victim impact statement
A victim impact statement is a written or oral statement made as part of the judicial legal process, which allows crime victims the opportunity to speak during the sentencing of their attacker or at subsequent parole hearings. In some instances videotaped statements are permitted.
One purpose of the statement is to allow the person or persons most directly affected by the crime to address the court during the decision making process. It is seen to personalize the crime and elevate the status of the victim. From the victim's point of view it is regarded as valuable in aiding their emotional recovery from their ordeal. It has also been suggested they may confront an offender with the results of their crime and thus aid rehabilitation.
Another purpose of the statement is to inform a court of the harm suffered by the victim if the court is required to, or has the option of, having regard to the harm suffered by the victim in deciding the sentence.
In cases of crimes resulting in death, the right to speak is extended to family members. In some jurisdictions there are very different rules on how victim impact statements from family members may be regarded. This is because it is seen as unprincipled that different punishments for death are given according to the how much the victim is missed, or conversely that someone's death is relatively less harmful if they have no family. In the circumstance of death, some jurisdictions have described victim impact statements from family members as 'irrelevant' to sentence but not 'unimportant' to the process: they are valued for restorative purposes but cannot differentiate punishment for causing death.
In general terms, the person making the statement is allowed to discuss specifically the direct harm or trauma they have suffered and problems that have resulted from the crime such as loss of income. Some jurisdictions allow for attaching medical and psychiatric reports that demonstrate harm to the victim. They can also discuss the impact the crime has had on their ambitions or plans for the future, and how this also impacted their extended family.
Some jurisdictions permit statements to express what they deem to be an appropriate punishment or sentence for the criminal.
Some jurisdictions expressly forbid any proposal or suggestion on punishment or sentencing. Among other reasons, this is because the sentencing process is solely the domain of the judge who consider many more factors than harm to victims. Allowing suggestions on punishment or sentence can create a false hope of the eventual sentence and undermine the notion of restorative justice.
In civil cases, a victim impact statement may be used to determine how much is awarded to the plaintiff.
Defendants typically are not allowed to cross-examine victims at sentencing. Arguments for this are that cross-examination could detract from the goal of empowering victims, and that it would be unfair to allow defendants but not victims to give statements prior to sentencing without being subject to cross-examination.
The first such statement in the United States was presented in 1976 in Fresno, California, and was passed as law in California in 1982, because of Doris Tate's concern that any members of the Manson family cult that killed her daughter, Sharon Tate, in 1969 might obtain parole.
In 1982, the Final Report of the President's Task Force on Victims of Crime recommended that "judges allow for, and give appropriate weight to, input at sentencing from victims of violent crime." In 1992, the United States Attorney General released 24 recommendations to strengthen the criminal justice system's treatment of crime victims. The Attorney General endorsed the use of victim impact statements and stated that judges should "provide for hearing and considering the victims' perspective at sentencing and at any early release proceedings."
In 1991, the Supreme Court of the United States held that a victim impact statement in the form of testimony was allowed during the sentencing phase of a trial in Payne v. Tennessee 501 U.S. 808 (1991). It ruled that the admission of such statements did not violate the Constitution and that the statements could be ruled as admissible in death penalty cases.
By 1997, 44 of the American states allowed the presentation of victim impact statements during its official process, although until 1991 these statements were held as inadmissible in cases where the death penalty was sought.
The law varies in different states, and while most states allow statements to be made during the sentencing phase of the trial, Indiana and Texas allow for statements to also be made after sentencing.
The State of South Australia enacted law in 1988 specifically providing for Victim Impact Statements in the sentencing process, and other States followed with legislation that either provides specifically or generally for the tendering of victim impact statements as part of the sentencing process.
Among current issues with victim impact statements is their relative newness and a lack of research into their actual effectiveness against their theoretical goals. There are occasionally legal issues surrounding the admissibility of facts in a victim impact statement that are materially adverse to an offender.
In the State of Queensland, the Director of Public Prosecution guidelines require prosecutors to remove inappropriate or inflammatory material from Victim Impact Statements prior to them being submitted before a court to prevent any such issues.
In Finland, the victim has a right to recommend a punishment different from the one recommended by the prosecution.
Criticisms of the use of victim impact statements in court are that, if only a small portion of victims provide input, it could cause unwarranted sentencing disparities; and that proceedings could get contaminated with emotional arguments. It is sometimes argued that if the point of victim impact statements is solely to give the victim catharsis, then the statements should be given to the court after sentencing, so that they will not affect the outcome.
Another criticism of victim impact statements is that they do not allow for a dialog between victims and offenders, and therefore they leave victims feeling angry and disempowered. An alternative proposed by Kim Workman, director of Rethinking Crime and Punishment, would be to hold a private facilitated meeting between the offender and victim, at which the victim would be free to make their feelings known within acceptable limits, and the offender would have the opportunity to respond. The outcome of the meeting would then be reported back to the Court.
Another criticism of victim statements is that judges often have made their sentencing decisions prior to the sentencing hearing, and before the victim speaks, and therefore the statements are unlikely to impact the sentence. A proposed alternative is for the victim to give her input to the probation officer assigned to do the presentence investigation report in the weeks prior to sentencing.
Another criticism of victim statements is that defendants may be given harsher sentences if their victims experienced greater harm, regardless of whether they caused the extent of the harm to be so great.
- Victim Impact Statements and Ancillary Harm: The American Perspective, Paul G. Cassell and Edna Erez, http://responsesystemspanel.whs.mil/Public/docs/meetings/Sub_Committee/20140226_VS/Materials_Related/07a_VictimImpactStatement_Cassell_Erez.pdf
- Rikosuhritoimikunnan mietintö 19.6.2001
- Myers, Bryan (2004). "The Prejudicial Nature of Victim Impact Statements" (PDF) 10 (4). Psychology, Public Policy, and Law. pp. 492–515. doi:10.1037/1076-89184.108.40.2062.
- Victim Impact Statement information from the Department of Justice, Victoria, Australia
- Criminal Justice Intervention
- A Victim's Right to Speak, A Nation's Responsibility to Listen. Article from Office for Victims of Crime, sponsored by the United States Department of Justice
- Darkness to Light - Victim Impact Statement
- Article relating to variations in the right of victims to present statement between various U.S. States
- Lawlink, New South Wales