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University of Technology Sydney Law Research Series |
Last Updated: 16 May 2017
*This is the pre-peer reviewed version of the following article which has been published in final form at (2014) “The Restorative Capacities of Victim Impact Statements: Analysis of the Victim-Judge Communication Dyad in the Sentencing of Homicide Offenders” 2(3) Restorative Justice: An International Journal 302-326.
The restorative capacities of victim impact statements: analysis of the victim-judge communication dyad in the sentencing of homicide offenders
Tracey Booth, Associate Professor University of Technology, Sydney
Abstract
Victim impact statements (VISs) are said to introduce restorative elements into the sentencing hearing for the benefit of victims. Roberts and Erez (2004) argue that a key restorative feature of VISs is their potential to generate reciprocal communication between judge and victim: victims have the opportunity to speak about the impact of the crime and the court has the opportunity to acknowledge the harm suffered and validate victims’ experiences. Drawing from the findings of a small qualitative study of VISs in homicide sentencing hearings in NSW, this paper examines the communicative potential of VISs. While the institutional context of VISs in common law jurisdictions constrains their communicative capacities, nonetheless oral VISs provide victims with a valuable opportunity to speak and be heard. Furthermore, while there was little direct communication between judge-victim, this study reveals that VISs provide a context in which other, more indirect communications can occur.
Keywords
Victim impact statements, restorative justice, sentencing, communication, judicial demeanour
Victim impact statements (VISs) are the primary vehicle for victim participation in the sentencing hearing in common law jurisdictions. Although there are variations between jurisdictions with regard to such matters as the definition of ‘victim’, the formal nature of the document and the mode of presentation, typically a VIS is an account of harm sustained by a victim as a result of crime. In the case of homicide offences, the VIS provides details of the impact of the deceased’s death upon members of the deceased’s family (‘family victims’). Research and anecdotal evidence indicate that presentation can take a variety of forms including: written statements, statements read aloud to the court by victims or their representatives (oral VISs), photographs, paintings, letters, diaries, scrapbooks, videos, DVD’s, and funeral eulogies (Booth, 2001, 2012; Kennedy, 2008; Logan, 2008; VSA, 2009).
The functions of VISs in the sentencing process are generally articulated in instrumental and/or expressive terms. From an instrumental perspective, VISs are said to be useful sentencing tools that provide information to assist decision-makers to formulate more proportionate and accurate sentences. In addition or alternatively, VISs are said to serve expressive purposes because they provide the mechanism through which victims can recount their experiences and express their feelings about the crime to both the court and the offender (Cassell, 2009; Roberts & Erez, 2004, 2011). Erez argues that VISs were originally conceived to serve expressive functions that were victim-focused and aimed to redress the exclusion and marginalisation of victims in the sentencing hearing as well as improve their courtroom experiences (Erez, 2004).
There are scholars who argue that the expressive capacities of VISs, especially oral VISs, can bring restorative elements into the sentencing hearing (Erez 2004; Roberts & Erez 2004, 2010; Hoyle 2010; Erez et al 2011). According to Roberts and Erez, the communicative function of VISs has significant restorative potential. Not only are victims provided with a voice with which to communicate to the court but VISs can facilitate reciprocal communication between judge and victim (2004: 231). In response to VISs, the court has the opportunity to acknowledge victim harm which is “not simply a message of sympathy but recognition that these victims have been wronged” (Roberts & Erez, 2004: 231). Furthermore, through direct speech with victims, the court also has the opportunity to validate victims’ experiences and this might also have a beneficial therapeutic impact for some victims (Roberts & Erez, 2004: 231).
The potential for such reciprocal communication as generated by VISs has yet to be explored in any depth in the literature. While Szmania and Gracyalny analysed 40 VISs from family victims read aloud to a US sentencing court using Roberts and Erez’s (2004) communication model, their study focused on the content of those statements and, to a limited extent, their intended audience. The researchers did not address judicial responses to the VISs nor dyadic courtroom communication between victim-judge. Indeed, until recently little work had been done in relation to the dynamics of VISs, and especially oral VISs, in the courtroom (Shapland & Hall, 2010). Firsthand accounts of VISs in sentencing hearings have generally come from journalists’ reports. Some researchers have analysed court transcripts (Logan, 2008) or a digital video recording of a sentencing hearing (Szmania & Gracyalny, 2006). Exceptions are recent studies from the United States (Propen & Schuster, 2008, 2010; Schuster & Propen, 2010) and the UK (Rock, 2010). Rock’s study examined the submission of VISs in the sentencing of three homicide offenders in English courts and provides a rich description of the preparation, content and making of VISs from the perspective of the family victims involved.[1] Schuster and Propen’s study in Minnesota comprised interviews with 28 sentencing judges, 16 victim advocates and observation of 17 sentencing hearings involving matters of family and sexual violence, homicide and identity theft. Their work provides valuable insight into VISs as a genre and the impact of VISs on judicial decision-making, and emotion work of sentencing judges (Schuster & Propen, 2010).
These studies however, do not analyse the victim-judge communication dyad in the courtroom as generated by VISs. The aim of this article is to contribute to this gap in the literature and enhance our knowledge of the restorative capacities of VISs in the sentencing hearing. It will do so by analysing the findings of a small qualitative study of family victim participation in the sentencing of homicide offenders in the New South Wales Supreme Court. Researching this particular group of victims provides a valuable opportunity to generate rich insights. First, while crime victims are clearly not homogeneous, significant commonalities in victims’ experiences of victimisation and the conduct of the sentencing hearings in the one court is likely in the context of this discrete group of victims. Second, research shows that VISs are more likely to be submitted in serious cases of violence, sexual assault and homicide (Roberts & Manikis, 2011; Victim Support Agency, 2009). Therefore sentencing hearings involving family victims are more likely to elicit the restorative communications as anticipated by scholars.[2]
This article is divided into four parts. The first part considers how VISs in the sentencing hearing might be regarded as ‘restorative’. Methodological details of the study are provided in part two. Analysis of the findings related to the communicative capacities of VISs from the perspective of victim and judge will be addressed in the next two sections. Perhaps not surprisingly, the institutional context of VISs in common law jurisdictions necessarily constrains the communicative capacities of VISs although oral VISs provide victims with a valuable opportunity to speak and be heard. While there is little direct judge-victim communication of a ‘restorative’ nature, a striking finding of this study is that nonetheless in the hearings observed, the VISs created a context for judges to communicate acknowledgement and validation victims’ experiences in other more indirect ways.
The aim of this part is not to explore or critique restorative justice but to understand how VISs in sentencing proceedings might be considered to have restorative elements. The concept of restorative justice and its reach in criminal justice are contested issues (Daly, 2011: 4). While a precise definition of restorative justice is elusive, here it is conceived broadly in terms of process, values, aims and outcomes, an umbrella under which a variety of practices and processes sit (Braithwaite & Strang, 2001; Strang, 2002; Shapland et al, 2006; Dignan, 2007; Walklate, 2007b; Hoyle, 2010). Its essence is the recognition that conflict generated by crime affects the State, the offender, the victim, their communities and the wider community and all should have a role in its resolution (Christie 1977; Strang, 2002; Hoyle, 2010). Restorative values include: fairness, restoration/ healing, inclusivity, collaboration, respect, dignity, support, safety, democracy, empowerment, accountability, responsibility, and reparation (Strang, 2002; Dignan, 2007; Hoyle, 2010). Procedural fairness is said to be a key component of restorative events (Shapland et al, 2006: 512) and important features of a restorative approach to conflict resolution include dialogue, emotion, respect and dignity, reparation and apology (Walklate, 2007b; Shapland et al, 2006; Hoyle, 2010).
The nature of outcomes sought by restorative practices is problematic. The language of ‘restorative justice’ suggests some sort of ‘restoration’ but in the context of victimisation by crime, especially homicide, the notion of being ‘restored’ to a particular position or situation is problematic. According to Daly, the ‘restorative’ aspect of restorative justice is better viewed as a “nominal concept’’ that reflects a set of activities and by extension outcomes (Daly, 2013: 27). In this light then, victim-centred outcomes of restorative events can include: victim experiences being heard, acknowledged and validated by the court; offender accountability and responsibility for the crime; and material and/or ‘symbolic’ reparation such as apologies (Daly, 2011; Szmania & Mangis, 2005).
In contrast to the ‘inclusive and collaborative nature’ of restorative justice (Hoyle, 2010: 2) with its focus on ‘promoting mutual respect, empathic exchanges and restoration of relationships’ (Hoyle, 2010: 40), traditional criminal justice processes can be characterised as offender-focused, punitive, and unable or reluctant to deal with victims’ needs and concerns (Hoyle, 2010; Szmania & Mangis, 2005). While victims are excluded and rendered powerless in traditional legal processes, a restorative approach recognises and includes victims as key participants (Shapland, 2006; Goodey, 2005). Victims are given a role and encouraged to speak about their experience and the harms caused by the crime; the concomitant expression of emotions by victims is regarded as ‘natural’ as they speak, unlike traditional legal processes that work to ‘disparage and control such emotions’ (Shapland et al, 2006).
There are theorists who argue that VISs can bring restorative elements into sentencing hearings because they are mechanisms by which victims are given a voice in the process and acknowledged and recognised by the State as affected by the crime (Erez, 2004; Roberts & Erez, 2004; Hoyle, 2010; Shapland & Hall, 2011). For Roberts and Erez (2004, 2010), a large part of the ‘restorative value’ of VISs is their communicative function. Through their VISs victims speak about their experiences, their feelings and are heard by the other participants in the process (Erez, 2004). Szmania and Gracyalny (2006) studied 40 VISs submitted in the sentencing hearing of a serial killer in the US and found that many victims used their VIS to communicate with the judge and the offender as well as with a larger community including law enforcement officials, the public and the media.
Roberts and Erez extend the communicative function of VISs beyond the voice of the victim to the response generated by those statements arguing that the expressive capacities of VISs can facilitate reciprocal communication between the judge and the victim (2004: 231). In response to VISs, the court has the opportunity to communicate state recognition of victim harm which is ‘not simply a message of sympathy but recognition that these victims have been wronged’ (Roberts & Erez, 2004: 231). If the judge speaks speak directly to victims, the court also has the opportunity to validate victims’ experiences (Roberts & Erez, 2004: 231).
Scholars such as Hoyle and Dignan are more circumspect in relation to the restorative qualities of VISs (Dignan, 2007; Hoyle, 2010). Hoyle describes VISs as ‘restorative practices’ and part of a court-based restorative response that recognises the unique status of the victim whereby victims are brought into the sentencing process (Hoyle, 2011: 15). But in contrast to the ‘dynamic and relational’ dialogic processes of restorative justice where people talk to each other and interact, she argues that VISs do not facilitate dialogue in the courtroom (Hoyle, 2011: 14; see also Dignan, 2007: 311). Rather, VISs are delivered as monologues; during the process court officials and victims rarely talk to each other and victims and offenders do not speak to each other at all (2010: 15). It is because of this absence of dialogue that Dignan declines to characterise VISs as restorative processes altogether (Dignan, 2007: 311).
The analysis draws on findings from the author’s qualitative study of victim participation in the sentencing hearings of homicide offenders in the NSW Supreme Court. The victims in this study are members of the deceased victim’s family (‘family victims’), in the sentencing of homicide (murder and manslaughter) offenders. Section 26 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA), defines a family victim as being a member of the deceased’s ‘immediate family’ and sets out exhaustively the categories of family relationships that constitute the ‘immediate family’.[3]
Since 1997 family victims in NSW have been entitled by legislation to submit a written VIS to the sentencing hearing. In 2003, the legislation was amended to provide family victims with the opportunity to read their VISs aloud to the sentencing court either personally or by a representative. Unlike many other common law jurisdictions, there is no prescribed VIS form and nor is there an agency designated to prepare VISs for family victims. Section 26 of the CSPA limits the content of the statement to the impact of the deceased’s death on the family. In contrast to other common law jurisdictions (Kirchengast, 2011; Roberts & Manikis, 2010) VISs from family victims are of no relevance in the determination of penalty in NSW. Although a sentencing court must receive a VIS properly submitted by a family victim,[4] the court must not take account of that VIS in the determination of penalty “unless it considers that it is appropriate to do so”.[5] The current view of the NSW Court of Criminal Appeal is that it is not appropriate to take account of VISs from family victims in the determination of penalty for homicide offenders (R v Previtera (1997) 94 A Crim LR 76; for contrasting views of the Court’s position see Booth, 2007 and Kirchengast, 2011).
A key objective of the study was to produce a rich and rounded picture of victim participation in the sentencing of homicide offenders and, in doing so, explore the expressive capacities of VISs. Data was gathered through observation of 18 sentencing hearings of homicide offenders in the NSW Supreme Court during the period 2007-2008, semi-structured interviews with 14 family victims and a narrative analysis of 24 VISs read aloud to the court in the hearings observed. Of the 18 hearings, seven offenders had been convicted of murder, 10 offenders convicted of manslaughter and one offender convicted of being an accessory after the fact to murder. Observations were recorded in field notes and transcribed within a few hours of the hearing. These notes were supplemented with digital copies of the transcripts of 16 of the 18 hearings and also 24 of the 30 VISs read aloud in those hearings. Fourteen family victims were interviewed between April 2007 and October 2008, 11 of whom had submitted a VIS to the NSW Supreme Court in a homicide matter. A grounded theory model using a constant, comparative approach was adopted as a basis for analysis of this data (Charmaz 2006). In this article, the hearings (and VISs presented in those matters) are identified by a number allocated to each matter according to the chronological date of the hearing – 1 to 18; references to interview participants are by pseudonym.
3.1 Overview of the form and nature of the sentencing hearing
Criminal legal proceedings in common law
jurisdictions such as NSW are adversarial in nature. Within this legal
framework, an offence
is committed against the wider community or the state
rather than against the individual victim; the central aspect of this model
is
the prosecution of the offender by the State to the extent required by the
public interest (Ashworth, 1993). A feature of the
modern adversarial legal
system is the exclusion of the victim: the victim is not a party to the
proceedings and is unrepresented
whether by the prosecution or privately. The
private interests of the victim are subsumed under the public interest umbrella
and
the victim’s role is limited to that of prosecution witness.
Unlike most civil jurisdictions, the sentencing hearing is a separate
process from the guilt phase of a criminal matter. Essentially,
it is the task
of the sentencing judge to evaluate the seriousness of the offence, locate the
offence on the range of seriousness
for that crime and determine the appropriate
punishment according to law. The Crown and the defence present evidence and make
submissions
with respect to the appropriate penalty to be imposed in the
circumstances. Legislation has qualified the conventional adversarial
model by
giving victims a role in the sentencing through the submission of
VISs.
Adversarial norms shaped both the topography of the courtrooms and
the form and practice of the sentencing hearings observed (Tait,
2001). The
space in each courtroom was configured in a series of “clearly demarcated
and hierarchical zones” (Mulcahy,
2007). In this study the main zones of
the courtroom are identified as the central performance zone, the public gallery
and peripheral
zones comprising the dock and the jury box. The business of the
hearing took place in the central performance zone: the front and
centre section
of the courtroom where the judge and legal representatives were situated.
Victims were located outside and behind
this zone in the public gallery at the
back of the courtroom. Consistent with adversarial conventions, the victims were
not parties
nor legally represented and by virtue of their location in the
public gallery, they were physically excluded from the action until
called to
the central performance zone to read their VIS.
3.2 Submission of victim impact statements
VISs were submitted
in all hearings observed and a total of 38 written VISs were received by the
court in the 18 matters. A striking
feature of this aspect of the fieldwork was
that in the vast majority of cases, family victims also chose to present their
VISs to
the court in oral form (n=30); only eight VISs were not read aloud to
the court in six matters. Thirty of the 38 VISs were read aloud
to the court in
13 of the 18 matters: 22 by family victims personally, six by a victim
representative from the Homicide Victims Support
Group (HVSG), one by the Crown
Prosecutor and one by the judge. The following section considers the
communicative capacities of
these VISs.
A key communicative function of VISs is to
provide victims with a ‘voice’ in the hearing. Through VISs, victims
are said
to have an opportunity to express their feelings and describe the harm
they have suffered as a result of the offence. The communicative
potential of
VISs to provide this voice will be analysed in two stages: first, the scope of
that voice – the legal and institutional
constraints on what victims can
express - and second, the nature of that statement in the courtroom.
4.1 The scope of the victim voice
The starting point for
this analysis is the legal frame within which family victims prepare and submit
VISs (Bandes, 1996: 384).
New South Wales’ law does not prescribe a form
or template for VISs; the statements are intended to be written in the
victim’s
own words and structured according to personal style. But VISs
are not ‘free writes’; the law confines the content of
VISs to the
impact of the deceased’s death on the deceased’s family and
prohibits the inclusion of ‘offensive,
threatening, intimidating or
harassing’ material’.[6]
The statements analysed in this study addressed a range of harms suffered by the
family victims including emotional wellbeing, mental
health, physical health,
family relationships, social life and hardships that related to finance,
employment, housing and education.
All VISs analysed described victims’
feelings in relation to this harm and told stories of a loved family member,
heartbreak,
suffering and loss.
Despite the legal requirements, the individual approach to the production of VISs generated statements that were highly subjective and idiosyncratic in nature varying considerably in length, format, writing and style. Roberts and Erez (2004) have argued that such freedom means that the victim-authored statements reflect “the true voice of the victim”. The study findings suggest however, the VISs in NSW are products of multiple voices rather than just the sole voice of the victim-author. The interviews revealed that involvement of family and friends was commonplace and several interviewees had assistance from victim support workers in writing their statements; such support was also referred to by several victims observed in the courtroom. Two institutional constraints also had a significant impact on the ‘authenticity’ of the victim voice in their VIS, (and constraints over which victims had no or very little control) – Crown ‘filtering’ of VISs prior to the hearing and amendment in the courtroom by the sentencing judge.
By virtue of NSW prosecutorial guidelines, family victims are required to submit their draft VIS to the Crown before the hearing. It is the Crown’s task to ensure that the VISs comply with the law. By a ‘filtering’ process, VISs are reviewed and frequently amended before reaching the courtroom. VISs of many interview participants were amended at this stage. For instance, Fiona was told to rewrite that section of her VIS where she described her son’s killers as ‘a bunch of murdering bastards’. She said: ‘I wasn’t happy but I had to change it otherwise I wasn’t going to be allowed to read it out’. Similarly, in the hearings observed, many victims expressed anger that their VISs had been modified. The deceased’s mother in hearing 5 told the court that her family’s VISs were edited to make them ‘ACCEPTABLE. What [offender] did was not acceptable, but I have had to be careful what I say. Due to protocol, I am not permitted to say what I really feel. This is so unjust’ (VIS 5A).[7]
The second institutional constraint on the scope of the victim voice is the capacity of the sentencing court to reject or amend VISs during the hearing (Booth, 2011, 2012). While a striking feature of the fieldwork was in fact a marked lack of legal debate regarding the VISs submitted, defence objections to VISs or parts of the statements were made in two cases (hearings 2 and 16). Following legal argument, the VISs were rejected by the court altogether in hearing 2,[8] and parts of two statements deleted in hearing 16.
A key finding of this study however, is that many VISs read aloud to the court referred to a range of matters inadmissible according to the law including the killing, characteristics of the offender, the penalty and the shortcomings of the criminal justice system. Nonetheless, despite the legal and institutional constraints on the scope of their voice, a striking feature of this study was the high number of VISs submitted and the large proportion of those statements read aloud to the court. Thus, despite the constraints, the expressive capacities of the VIS were welcomed by the victims observed. This claim is reinforced by the further finding that 12 of the 14 victims interviewed said that they would advise victims to submit a VIS. According to Josephine, victims should submit a VIS because:
[i]t gives them a way of letting their voice out there, their feelings. Throughout the whole case we couldn’t say anything so it is nice when you have something that’s yours, say your piece, show them who he was as a person.
4.2 The nature of victim impact statements in court
The study found marked differences between the communicative capacities of written and oral VISs and this section addresses each form in turn. Written VISs are those statements tendered to the court in writing and not read aloud. Oral VISs are those statements that are read aloud to the court by the victim or his or her representative.
4.2.1 Written victim impact statements
Written VISs were tendered to the court by the Crown together with other documents. In three matters, the judge acknowledged receipt of and read the written VISs while sitting on the bench. Otherwise, judges put the VISs to one side with the other written material tendered presumably to be read after the hearing was completed. Subject to the exception below, written VISs were not read aloud to the court and nor were the family victims acknowledged. Thus, from the victims’ perspective the written VISs had limited communicative capacity. First because the victims were not acknowledged and recognised in open court and second because victims only communicated with the judge – the content of the statement was not communicated to the court and other participants.
There was an indication of variable judicial practices however. In hearing 5, the judge told the Crown that it was his practice to ask the Crown to read VISs aloud to the court if the victim did not do so. In that case it was not an issue because the family victims read their own statements aloud. Again, in hearing 16, the defence tendered a written VIS from the deceased’s sister that the judge himself elected to read aloud to the court in the absence of the victim-author.[9]
4.2.2 Oral victim impact statements
In contrast to written VISs, oral VISs were a striking component of the hearings observed. When the court was ready to hear the statement, the family victim was called from the public gallery and invited to come to central performance zone. Like other courtroom rituals there were elements of ceremoniousness associated with the presentation of oral VISs in the courtroom: the formal invitation into the central performance zone, silence as they read; and the formal attention of the other participants. The presentation of oral VISs differed significantly however from other oral testimony. In NSW, VISs are not sworn documents (such as affidavits or statutory declarations) and the family victims (or representatives) were not sworn or affirmed before reading the VISs aloud. Several judges explicitly stated that victims were not witnesses and by implication, VISs were not ‘evidence’ in the hearing. The ambiguous role of victims in the legal proceedings (Edwards 2004) also led to some confusion amongst the legal professionals as to the appropriate ‘space’ in the courtroom from which the victim could read his or her statement. In the vast majority of cases victims were seated in either the witness box (n=9) or the jury box (n=2). In two hearings though, the judge directed the victim to read their statement as they stood near the bar table facing the judge.
Further, the content of VISs was not presented to the court in the traditional question/answer format of evidence. Instead of being questioned by lawyers, victims read their written statements aloud to the court in an uninterrupted narrative or monologue form. Not surprisingly, many family victims also communicated their feelings of distress, anxiety and, sometimes, anger – shedding tears as they read, holding their VISs with hands that trembled and speaking with quavering and/or raised voices. The VISs varied considerably in length ranging from approximately five to 25 minutes per statement. The total time given to VISs in each matter usually did not exceed 40 minutes although, in hearing 5, five VISs took 90 minutes to complete. Although several VISs were lengthy, or presentations delayed by the victim’s distress, family victims were not hurried to finish reading their statements.
The space from which family victims read their VISs was closely controlled and monitored by the judge. Whether seated or standing, victims were unable to move around; hand gestures were also limited because victims were reading from the statements held in their hands. Nevertheless, victims could direct their words and feelings to particular participants in the courtroom by the use of verbal or non-verbal cues. The verbal cues in the majority of VISs observed were ambiguous however because the words used did not indicate whether the VISs were addressed to anyone in particular (n=15). This is likely due to the fact that the law does not make clear to whom the VISs should be addressed. The legislation is silent on this point and the information package provided to victims by the Attorney-General’s office does not expressly identify an audience of the VISs beyond references to the victim informing ‘the court’. Of the other nine statements: one was addressed to the judge specifically (VIS 5B);[10] three expressly addressed the judge at different stages; two were addressed to the offender directly (VIS 11A, 11C); and three addressed remarks to a generic ‘you’.
Non-verbal cues used by victims as they read their statements suggest however that regardless of language used, many family victims were indeed addressing remarks to other participants – usually the judge or the offender. For instance, on at least seven occasions victims were observed looking directly at the offender as they made remarks clearly linked to the offender. In hearing 10, one victim looked at and directly addressed the offender after he had finished reading his VIS: ‘You’ll suffer [offender]’. Even if not looking at the offender family victims might still have been speaking to the offender. One interview participant, Susan, said that although she did not look at him,[11] she spoke ‘loudly and clearly’ because she wanted the offender to hear her and understand her brother’s death was ‘a big loss for family’. These findings are also consistent with Rock’s finding that family victims in his study variously addressed the judge, the offender and the wider world (Rock, 2010).
Whether or not the VISs were directed to a specific audience, the presentation of oral VISs did not establish a dialogue between the victim and the judge; in fact there was no discussion between victim and judge (or any other participant) in relation to content of the VIS. Once the victims finished reading their statements, they returned to their place in the public gallery or left the courtroom altogether and the hearing turned to other matters.
Judges are responsible for upholding public
confidence in the administration of justice and charged with the responsibility
of conducting
a fair hearing not only from the perspective of the parties
involved in the hearing but also from the perspective of the community.
Judicial
conduct is guided by common law principles and ethical guidelines and shaped by
values such as reason, rationality and neutrality
(Roach Anleu & Mack,
2005). Because family victims are not parties to the matter or represented in
the hearing, the presentation
of VISs is largely unmediated by lawyers or other
personnel and judges are required to deal directly with bereaved victims, the
expression
of their emotions and the emotions generated by VISs in the courtroom
(Booth, 2012).
As we have seen, institutional constraints on the presentation of VISs in legal proceedings limited the communicative capacities of VISs in relation to communication from victim to judge. Similar constraints also limited the reciprocal communicative capacities of VISs in relation to communication from judge to victim. When the VISs were presented, the sentencing judges did not speak to the victims directly about the content of their statements or their experiences of victimisation as a result of the crime; any direct communication that occurred between the judge and victim was confined to the mechanics of presentation of the oral VISs. However, a significant finding of this study was the nature and extent of indirect communications between judge and victim. This section will address judge-victim communication under three headings: judicial demeanour dealing with victims in the courtroom; indirect communication techniques; and sentencing judgments.
5.1 Judicial demeanour
Sentencing judges were able to
communicate recognition of victim harm by their demeanour in their dealings with
victims. Judicial
demeanour was assessed in this study using a ‘holistic
analysis’ that takes account of verbal and non-verbal behaviours
including
tone of voice, gestures, facial expressions, words and actions (Mack and Roach
Anleu, 2010: 148). Drawing from the typologies
of judicial demeanour developed
by Mileski (1970-1971), Ptacek (1990) and Mack and Roach Anleu (2010), four
types of judicial demeanour
were identified in relation to all VISs presented to
the court:
Sentencing judge’s responses differed according to whether the VISs were read aloud by family victims personally or by their agents. Given these different responses, a sentencing judge could exhibit multiple demeanours at the VIS stage in one hearing depending on how and by whom the VIS was presented to the court.
Four judges had a welcoming demeanour in six cases dealing directly with
family victims. Welcoming judges demonstrated a variety of
empathic responses
conveying respect and sensitivity for victim needs and concerns. Empathy
involves reading both verbal and non-verbal
cues and being sensitive to the
affective state of the situation (Eisenberg and Strayer, 1987: 5-6). According
to Goldberg, empathic
responses by judges in the courtroom include asking
questions to indicate interest, acknowledging not only the facts but the
emotional
responses of crime victims to court events and acting in a
“trustworthy, credible manner” (Goldberg, 2005: 10). Particular
actions such as speaking clearly, making eye-contact, referring to participants
by name and active listening enhance an empathic
response in the courtroom
(Goldberg, 2005).
Through a variety of empathic responses to victims,
welcoming judges acknowledged the personal status of the family victims and
responded
sensitively to their affective state. Speaking clearly and often
addressing family victims by name (Mrs X, Mr Y), these judges took
steps to put
victims at ease such as providing glasses of water and tissues, and in some
cases encouraging them to relax and take
their time while they read their VISs.
Welcoming judges also demonstrated active listening by appearing attentive
(Wood, 2012: 75).
This was achieved by a variety of means including: watching
the family victim as he or she read and following the written VIS as
it was
read. In hearings 5 and 18, Judge E also took action to better see the victims
as they read. In hearing 5, he moved the lamp
on the bench that was blocking his
view and, in hearing 18 he physically changed position on the bench so that he
could more clearly
hear the victim speak.
Seven judges had a courteous demeanour in eight matters. All agents presenting VISs were greeted with a courteous demeanour and, in four cases the sentencing judges dealing with victims also had a courteous demeanour. Courteous judges were less personally involved and less engaged with the victims than welcoming judges. In these cases, generally either the Crown or court officials readied the victim or their agent for presentation of the statements. If judges spoke to the victims directly, their comments tended to be minimal such as “you may start when you’re ready Mrs X. Like welcoming judges, courteous judges appeared attentive although rather than watching the victim read their VIS they tended to follow the written statement before them.
Two sentencing judges, one welcoming the other courteous, were required to defuse victims’ anger directly. In hearing 5, the deceased’s mother spoke in irate tones as she told the court that she was angry because her VIS had been edited to make it ‘acceptable’. The welcoming judge responded by saying that if there was anything more she wanted to say ‘and it could not be said in open court’ then she ‘could write it down and send it to my associate and I will read it’. This response appeared to mollify the victim who nodded her head and resumed reading her VIS aloud. In hearing 10, while reading his VIS the deceased’s brother raised his voice and said that his “fucking heart had been ripped out”. In response Judge K said “take a breath Mr [X]”.
A businesslike demeanour was usually confined to dealing with written VISs although two judges, also wore such demeanour when agents presented VISs to the court. These judges did not look at the readers or acknowledge the agents or the family victims in the courtroom. Only one judge was observed with an annoyed demeanour (hearing 16) but expressed his annoyance with those who had helped the victims write their statements rather than the family victims themselves.
5.2 Indirect communication
Indirect communications are
actions and/or words on the part of the judge that indicate recognition of the
harm victims had suffered
and victims’ interest in the proceedings though
there is no direct dialogue or other interaction between the judge and victim.
Such actions included: making matters of evidence more visible to the audience,
clarifying sentencing law and exhibiting sensitivity
to particular victim
concerns. Such types of’ communication occurred during the course of at
least one third of the hearings
observed (n=6).
Oral VISs were presented in all cases where indirect communication was observed. Moreover, such communication appeared to be responsive to, or otherwise linked to matters raised in the VIS. In three matters, the sentencing judges took steps to make matters of evidence that would have been of particular interest to the deceased’s family more visible to those in the courtroom. Thus, in hearing 16, the defence took the unusual step of tendering a written VIS from the deceased’s sister and the judge then read that statement aloud to the court. Similarly in hearing 18, the judge arranged for a letter written by the offender to the court to be read aloud.
The sentencing judge in hearing five also appeared to respond directly to the content of the VISs when he used his authority to have an agreed statement of facts read aloud to the court.[12] In that case, the oral VISs had revealed the victims’ anger at legal processes and specifically their lack of understanding of what had actually happened or how the deceased would be portrayed given the lack of trial. The judge asked the Crown whether the deceased’s family had received a copy of the facts and when she said they had not, the judge wanted the statement read aloud to the court: ‘I am unhappy about matters of crucial importance being the subject of documents in a criminal trial.’. The judge then explained to the court how the statement was formulated by the parties and said:
Everybody who has an intimate knowledge of some part or other of a case will feel that the agreed statement of the facts leaves something out. That’s because of the particular perspective that someone who is connected with the case has. However it is not possible for every case to become a Royal Commission of inquiry about either the victim or the accused.
When the Crown read the statement of facts aloud everyone in the courtroom heard that the provocative conduct and mental illness of both the deceased and the offender had been significant contributing factors to the criminal events. The judge’s actions appeared to be a direct response to the concerns of the victims that had been expressed in their statements.
In three matters the judge took time to clarify sentencing law expressly for the benefit of the victims who were in the public gallery (hearings 1, 5 and 12). For instance, in hearing 1, where the offender had pleaded guilty to murder it was clear from the evidence and discussion between the legal representatives during the proceedings that the offender’s culpability was reduced because of a significant on-going mental illness. The following extract from the transcript demonstrates the judge’s efforts to communicate indirectly with the deceased’s family so that they should understand the basis on which the offender would be sentenced.
J: The deceased's family should understand, of course, that there are all sorts of murders in the law but everybody treats a murder the same, particularly when it's a murder of a family member, but there's a difference in sentencing a young man who has clearly got a mental illness and a young man who's a thug. So they should understand that the court has to be more lenient and more merciful with this young man than it might have been with someone else who killed their son. I'm just trying to indicate that they should understand that this is not the worst of murders because of the fact that the offender has a mental illness. Although that doesn't really make it any easier for them, I understand that, they have still lost their child, but they have to understand there is a difference in culpability and the way the court reacts to particularly a young man who has a severe mental illness and problems of immaturity involved.
C: Certainly some of the matters your Honour has raised I have discussed with the family and they understand that's the perception.
J: I'm not indicating anything, it's murder and another young life has been taken for no purpose whatsoever.
C: That's right, your Honour, it's a terrible waste but I think they understand the particular circumstances of this case.
J: I hope they do and all I can ask is that they do appreciate it's a difficult sentencing exercise because of those matters and the court will do its best.
The sentencing judge in hearing 16 responded directly to the content of
the VISs though not contemporaneously with the presentation
of the statements.
During the hearing sometime after the VISs were completed, the judge asked
counsel whether he should take account
of the effect of the criminal conduct in
‘depriving the deceased’s daughters of being able to say goodbye to
their father’
because this was a ‘very significant part of their
loss’ and ‘it just affected me when I heard his daughters say
that
– it is a big part of grieving’. These remarks made it clear to the
court (and the deceased’s daughters) that
the judge had listened to the
VISs and was responding directly to victim concerns.
During the course of hearing 8, the sentencing judge demonstrated sensitivity to the interests and concerns of the deceased’s family. For instance, during a discussion of the evidence, the judge said to counsel: ‘As I recall it and forgive me if I’m repeating things that the family probably won’t want to hear, but the bodies were cremated weren’t they?’ Again, later in the hearing when setting a date for judgment the following exchange took place.
J: Ms Crown, extended family of the [deceased], Mrs [X] are you going back to England next Sunday, is that right?
C: Mrs [X] is.
J: And I take it not intending to return?
C: That's right.
J: I will list this matter before me at 2 o'clock next Friday for judgment...If for some reason, it would have to be for some very good reason Mrs [X] I am not in a position to publish judgment next week I will make sure the Crown parties are informed but I am giving you my assurance, subject only to ill health, that a judgment will be published before you leave this country.
Mrs X: Thank you ma'am.
This was the only matter observed where the
judge interacted directly with the family victim when they were in the public
gallery
and consulted with the deceased’s family about the convenience of
a court date and also.
5.3 Sentencing judgments
The sentencing judgment delivers
both the penalty and reasons for the decision. The judge reads it aloud to the
court at a short hearing
that occurs usually within weeks of the completed
sentencing hearing. While the sentencing judges observed did not directly engage
with victims and the content of their statements in the courtroom, most judges
used their judgments to acknowledge the victims and
in some cases through
comment on their VISs submitted during the hearing, validate their experiences.
Researchers have found that
validation in this manner is important for victims
(Roberts and Manikis, 2011). Indeed all interview participants had copies of the
sentencing judgments in ‘their’ cases and four participants
commented favourably on the judge’s comments about
their VISs. For
instance, Josephine was pleased that the sentencing judge’s judgment
indicated he had recognised the importance
of the deceased to his family and
what kind of man he was: ‘it was nice that he had listened and remembered.
Because when you’re
up there it’s not like anyone’s
listening’.
Section 28(3) of CSPA requires sentencing judges to acknowledge receipt of the VISs and perhaps make further comment if considered appropriate. To varying degrees all judgments commented on the VISs submitted noting particularly the loss, anguish, sorrow and/or suffering caused to the deceased’s family as a result of the killing. References to the VISs ranged from a brief paragraph comprising two sentences to three lengthy paragraphs taking almost a whole A4 page; over half of the sentencing judgments (9) devoted more than one paragraph to the VISs received. Although the comments regarding the VISs tended to be more cursory in maters where only written statements were submitted, nonetheless it was the VIS that provided the important catalyst in those cases for recognition of the family victims in sentencing. For instance in hearing 14, the court acknowledged the written VIS as follows:
A victim impact statement was tendered on behalf of members of the deceased’s family. They held him in very high regard and have suffered as a result of his death. The sympathy of the court goes out to them.
The ‘status’ or identity of victims and personal interests of victims were reinforced in most of the judgments where oral VISs were submitted. Thirteen judgments identified the nature of the relationship between the victims and the deceased and, furthermore victims who submitted VISs were referred to be name in eight of those judgments. Sympathy was also extended explicitly to the deceased’s family by the court in eight judgments.
Several judgments went further and commented on the content of the VISs and the family victims’ experiences of loss thus validating the victims’ experiences. For instance in hearing 10 the sentencing judge said:
Those statements provide eloquent testimony to the love which her family had for the deceased. Despite her young age, it is clear that the deceased had a calming and restraining influence upon her brothers and provided support for her mother. She had a strong relationship and bond with her brother’s children and those children have suffered deeply as a result of her death. The statements refer to the loss which [deceased’s child] has experienced in having lost a loving mother and being forced to live his life without ever knowing her. These statements afford clear evidence of the value of the life of the deceased and the grief her death has occasioned to all her loved ones.
Similarly, in hearing 8, the Court said that the family victim had:
[d]escribed her sister as an irreplaceable family member and her and her husband as valued citizens stolen from her. I am satisfied that this has occasioned her the deepest grief and has been productive of deep and enduring trauma which has shattered her family and caused a breakdown in her marriage.
The Court also commented upon the content of the oral VIS in hearing 15 as follows.
Mrs [family victim] statement was a moving reminder of the tragedy brought into the life of a mother who loses a son. What was particularly moving, and heartening, was Mrs [family victim] acknowledgement that the offender has had a hard life, as did her son. That remark exhibits a measure of strength and good grace, which I hope will stand well for Mrs [family victim] in her grief.
VISs were also used by a few judges to reinforce the gravity of the offence and its consequences to the offenders, thus validating the seriousness of the loss suffered by the deceased’s family. For example, in hearing 11, the court said:
One of the purposes of reading victim impact statements publicly in the sentencing proceedings is to bring home to the Offender and others who might act in a similar way, the appalling consequences of the Offender’s actions extending beyond the death of Mr [X].
Again, in hearing 3, the judge said that while ‘there are limitations as to the use the court can put such statements they do help to bring home the loss offences such as that presently under consideration create’.
A distinctive feature of at least ten of the sentencing judgments was the use of emotive language when discussing the VISs. Unlike the neutral affect and language displayed by the judges during the hearing, the language of the sentencing judgments revealed more emotional responses to the content of the statements again validating the seriousness of family victims’ loss and suffering. The deaths were described as ‘tragic’ and/or ‘a terrible experience for any parent’. VISs submitted were ‘moving’ and ‘eloquent’ revealing the ‘profound consequences’, ‘heartache’, ‘deep enduring trauma’, ‘anguish’, ‘devastation’ and the ‘deepest grief’ occasioned by the deceased’s death. For example, in hearing 5, the court said that the VISs:
[e]xpress in moving terms the dreadful loss they have suffered from the death of their loved one...his tragic and untimely death will be a cause of continuing grief and loss, which can never be assuaged. Least of all by anything that the court can do.
Perhaps not surprisingly, those judgments with the most extensive discussion of VISs and victims’ loss were those matters (hearings 5 and 10) where the family victims had been angriest in the courtroom.
Conclusion
As a small in-depth study of victim participation in homicide sentencing in the NSW Supreme Court, the extent to which the results can be considered to be of more general application is limited. However, we have much to learn about the restorative capacities of VISs from this group of victims and this research makes an important contribution to a very sparse literature on the dynamics of Vis in the sentencing hearing as well as the victim-judge communication dyadic.
Clearly VISs introduced restorative elements into the sentencing hearings observed. The incorporation of VISs in sentencing recognises victims as affected by the crime and its resolution. By submitting a VIS the victims in this study were included in the sentencing process and provided with a voice to communicate their feelings and the impact of the crime on their lives to court and the wider community. Moreover, in the absence of a standard form, victims expressed themselves through highly individual accounts designed to persuade the court variously of the value of the deceased, the brutality and violence of the offender and the scale of the family’s loss. While the scope of the victim’s voice was constrained by legal and institutional restrictions both before and during the hearing, victims were afforded a degree of leeway in what they said in the courtroom.
The communicative capacity of VISs did vary considerably depending upon form. Written VISs had no discernible impact on the proceedings; they were submitted with other documents, not read aloud and the victim authors not acknowledged by the court. The restorative capacity of these statements was very limited especially if the victim was seeking such restorative outcomes as to communicate with others apart from the judge and/or hoping to be acknowledged in some manner in open court. Consistent with research however, the vast majority of family victims in this study presented their statements in oral form, either personally or by their agent. In reading their statement aloud to the court, victims were visibly included in the process, given space to emote, and provided with scope to communicate with a wider audience.
Opportunities for reciprocal communication from judge to victim were restricted. Presentation of VISs did not generate a discussion between the victim and the judge; sentencing judges did not respond to the content of VISs nor seek to validate the experiences of the victims. But while all judges observed maintained affective neutrality and did not respond directly to the contents of the statements, this study reveals that VISs did provide a context in which other, more indirect communications could occur. Through such means as demeanour, making matters of evidence clear to all in the court, providing explanations of the law and the sentencing process and showing some sensitivity to concerns of the victims, many of the judges acknowledged and responded to interests and concerns of victims. Furthermore, in their sentencing judgements, the vast majority of judges took the opportunity to remark on the VISs, acknowledge victims’ experiences and thereby validate the loss suffered by the family victims in the course of imposing penalty. Thus, in their judgments judges communicated with victims in manner that could not be done during the hearing.
VISs represent an important opportunity for victims to be included in and communicate to the sentencing hearing. Furthermore, VISs provide a context for indirect communications from judge to victim that provide victims with valuable information, acknowledge and validate victims’ experiences of victimisation and afford victims dignity and respect in the process. Appropriate judicial training is required to raise awareness and reinforce the importance of these issues.
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[1] ‘Family victims’
are family and friends of the primary victim who has been killed as a result of
a homicide offence such
as manslaughter or
murder.
[2] Email communication
with Edna Erez.
[3] A family victim
is defined in section 26 Crimes (Sentencing Procedure) Act 1999 (NSW) as
a member of the deceased primary victim’s immediate family which
means:
a. The victim’s spouse
b. The victim’s de facto partner
b1. The person to whom the victim is engaged to be married
c. Parent, grandparent, guardian or step-parent of the victim
d. Child, grandchild or step-child of the victim or some other child for whom the victim is guardian
e. Brother, sister, half-brother, half-sister, step-brother or step-sister of
the victim.
[4] Section 28(3)
Crimes (Sentencing Procedure) Act 1999
(NSW)
[5] Italics have been
added. Section 28(4)(b) crimes (Sentencing Procedure) Act 1999
(NSW)
[6] Reg 10(6) Crimes
(Sentencing Procedure) Regulation
2010
[7]
‘Acceptable’ was written in upper case in the original
version.
[8] In this case the
offender had been convicted of being an accessory after the fact to murder. The
court found that the victims did
not qualify as victims under the law because
the deceased did not die as a result of the offender’s offence. Section
28(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a
family victim may submit a VIS where the deceased had died “as a result of
the offence”.
[9] This was a
highly usual case because under Prosecution guidelines, the Crown is supposed to
tender VISs to the court. In this case
however, the deceased’s sister
sympathised with the
offender.
[10] In letter form,
the VIS commenced “Dear Sir” and then posed the question: How does a
man tell another
man...”.
[11] Susan told me
that she didn’t know that she could look at people in the courtroom as she
read her statement and if she looked
up, she only looked at the
judge.
[12] An ‘agreed
statement of facts’ is agreed by the parties to represent the facts and
circumstances of the offence upon
which the court is to sentence the offender
(Della-Vedova v R [2009] NSWCCA 107).
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