The importance of victim impact statements in criminal law

The Supreme Court of India, in its 2018 judgment in Mallikarjun Kodagali (Dead) v. State of Karnataka & Ors acknowledged the lack of a victim-centric approach in Indian criminal jurisprudence.

Aggressive and intimidating cross-examinations, ruthless confrontations and the unpleasant court-room atmosphere often leave the victim disturbed and dissatisfied, even if the trial is concluded in their favour. To combat this, the Delhi High Court in 2020, in the case of Karan v. State of NCT of Delhi, directed the District Legal Services Authority (DLSA) to submit a Victim Impact Report (VIR) in consultation with the victim to assist itin curating the judgment while sentencing the accused person. However, till date, there has not been any incorporation of this practice in the Indian criminal justice system.

The statement made by a victim of a crime, whether in writing or orally, elucidating upon the harm, loss, effect and impact accruing from the crime committed upon them after the conviction of the accused, is referred to as a victim impact statement. These statements provide critical information to an adjudicator about the emotional, physical and financial agony that a victim/their family member has gone through or is experiencing owing to the crime. Such statements provide an avenue for victims of a crime to effectively participate in the criminal justice system and make them feel heard.

This article aims to analyse the concept of victim impact statements as it exists in various criminal justice systems across the world as an institutionalized practice and identify the benefits of the same.

Evolution of victim impacts statements

One of the objectives of any impartial criminal justice system is access to justice that is tailored to the best interests of both the victim and the society at large, to safeguard ‘victim justice.’ This goal was further incorporated in the United Nations Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power, 1995. It postulated that victims should be able to present their views and concerns at appropriate stages of proceedings, besides having other basic rights, including compensatory rights, protection rights and the right to be treated in a fair and dignified manner. This generated a global discussion on increasing the involvement of victims in the criminal justice system and providing them an avenue to voice their concerns, while acknowledging that in most modern day criminal justice systems, victims have been reduced to the “forgotten man” or “best witnesses” who only ought to be compensated for the loss that they have suffered from a crime.

Thus, the concept of victim impact statements (VIS) gained momentum in various justice systems across the world. It is generally a platform for victims to express in their own words as to how the crime affected their lives,  how challenging the criminal justice procedure was for them owing to their passive and limited roles in the justice system, coupled with possible secondary victimisation that they are subjected to during the process. This concept has been incorporated in the criminal justice systems of several countries including Canada, Australia, United Kingdom and all fifty states of the United States. In fact, the United States Supreme Court, in the famous case of Payne v. Tennessee, also upheld the validity of VIS and recognised its importance for delivering “true justice.”

How is VIS different from other statements recorded during a trial?

The differentiating element of a VIS from all other statements during a trial is that this statement is only taken after the conclusion of a trial, upon conviction. These statements do not provide an account of the crime or any details from that day except the impact or effect it has had on the victim. VIS is taken at the time of sentencing of the accused and provides an opportunity for the victim/survivor to narrate their ordeal to be able to best assess how to craft the sentence of the accused - whether the survivor believes that they would instead feel relieved if the accused person were to spend more time in prison or in providing community service, or some other kind of sentence. 

Such statements serve a dual purpose: First, to understand the effect of the crime on the victim and determine how they can receive commensurate reparation for the crime. And second, to develop possible safeguards, protection mechanisms, rehabilitative schemes and policies so as to ensure that future victims of the same crime do not have to undergo the same struggles.

VIS is not subject to cross-examination as is the statement of the victim at the time of trial. This also saves the victim from secondary victimization and makes the justice process more victim-friendly and justice-driven as identified by the US Supreme Court. in the case of Williams v. People of State of New York.

Need for inclusion of VIS in criminal justice systems

The moral justification for including VIS is to recognize the dignity of the victim by acknowledging the loss that they have suffered owing to the crime. This is crucial from the viewpoint of victim sensitization and improving their participation in the investigation and trial processes. Even though this may not actually impact the executive or judicial process, it does have the potential to help the victims overcome the feeling of helplessness and to empower them. VIS provides an opportunity for victims to confront their offender in a safe space, often providing psychological relief to them. Studies show that VIS helps victims redefine their identity and gather various aspects of the traumatic event that disrupted their lives, making VIS a means of therapeutic jurisprudence.

The penological perspective focuses on the victim’s testimony being necessary for efficient and effective sentencing to facilitate retribution, incapacitation, deterrence and rehabilitation of the offender. Incorporation of VIS in the justice system has also been found to improve the sensitivities of judges to the ‘human cost’ accruing from the commission of an offence. The scope and importance of VIS are vast and also help in the reformation of the criminal or offender in some cases by assisting them to understand the implications of the crime that they have committed and providing critical information to the judges that may be necessary to devise appropriate measures for their reformation or punishment. This was also acknowledged by an offender in the Canadian case of R v. EGK [2001] in which it was noted,

“...although he [the offender] knew he had caused [the victims] harm, he did not realize how much until he read the [impact] statements.”

VIS also assists legal practitioners in understanding the impact of various crimes and learning about the forensic, mental and physical damages resulting therefrom. Studies also indicate that jurists who have been exposed to VIS are more sensitive to the effects of atypical crimes as well. For example, jurists become more cognizant of victims of burglary, being more cautious of their privacy and security post the trauma of the crime.

VIS also assists jurists in identifying typical categories of victims of a crime and the intersectional effect of crimes on such victims. For example, judges are more sensitive to and cognizant of the social stigma on rape victims from marginalized communities and the effect of the crime on their limited means of livelihood. In this context, a judge from Australia remarked:

“Once a defence attorney said, 'There is no evidence for that.' 'But,' I said, 'This is common sense; we judges know what are the normal expected consequences of crimes.”

Another judge partaking in the same study conducted to understand the effect of VIS on legal practitioners in South Australia also remarked that:

“If it was not for the VIS I would have thought he (the victim) could just take a shower and get the whole thing behind him. The VIS makes us, in individual cases, more educated.”

VIS also provides a platform for a much larger counter-hegemonic discussion and encourages rhetoric in public spaces for victims to create/stimulate larger societal change based on their experience. It also provides an opportunity to judges to obtain crucial information about the crime and the experience of the victim to be able to create appropriate mechanisms for preventing any further crime.

When the story of two former gymnasts who were allegedly sexually assaulted by Larry Nassar, a former doctor for USA Gymnastics and Michigan State Athletics, was publicized, over 150 other victims also gathered the courage to speak up about their assault by the same perpetrator. Such was the impact that in this case, Judge Rosemarie Aquilina, while sentencing the perpetrator to 175 years in prison, remarked that she was “shaken to [her] core.” She also permitted any victim who wished to speak, as well as parents of victims, to narrate vivid details of the abuse they or their children faced, the impact that it had on their lives, and the effect that it continues to have on them till date.

In this case, the victims differed based on age, background, education and employment status, and the length and extent of the abuse. In this case, the comments made by the victims were admittedly therapeutic to the survivors and made them believe in the justice process. At the same time, they also provided Judge Aquilina with an opportunity to understand the different impacts of the crime on the victims and the longevity of such implications, just as she also considered the mitigating circumstances and defenses of the accused person.

The effect of VIS in trials such as the one described above was analyzed by feminist scholars who not just analyzed the disruptive potential of speeches given by survivors, but also the need to legitimize the same as below:

“By claiming a space of centrality and dominance, demanding to be heard, and speaking out against perpetrators, survivor rhetoric dramatically defies traditional expectations regarding who can speak to whom, when, and about what topics.”

Such kind of collective rhetoric not only mobilizes other survivors of sexual violence, but also creates a safe space for them to believe that they shall not be disbelieved by society and that their voices shall gain affirmation through those of others. The inclusion of VIS is a direct threat to patriarchal notions of society, which are so powerful to even label statements of survivors as mad, or evidence of hysterical behavior of women and so on through their hegemonic discourses. This amplifies the significance of VIS in the legal framework in order to protect survivors against hegemonic narratives and provide a strong voice of collective rhetorics for shared outrage.

Conclusion

VIS provides a platform for victims to feel heard from a therapeutic perspective and enhances their participation in a criminal trial. In countries where VIS forms part of the process, a positive impact has been reported in the quality of justice delivered. It takes the criminal justice system beyond just being punitive and reformative for the perpetrator and provides space for the affected victims to also heal and voice their ordeal in their own words. Therefore, the inclusion of VIS in the process ensures giving more meaning to a criminal trial and giving effect to “justice not only being done, but also being seen to be done.”    

Priyanka Prasanth is an advocate practicing in Delhi and currently working as a Catalyst for Change Fellow at Migration & Asylum Project (MAP), an initiative of The Ara Trust.