The Community Law Reform Committee of the Australian Capital Territory was established in June 1990. The purpose of the Committee is to assist the Government to identify areas in need of reform, anticipate emerging social and legal issues and assess the practical impact of various proposals and laws on the people of the ACT. The Committee's Office and Secretariat are at 3rd floor GIO Building, City Walk, Canberra City ACT 2601 (Tel (06)2070546, fax (06)2070538).
Crime is not simply an incident which begins a contest between the State and a defendant, between a prosecutor and a [defence] attorney... Crime is first of all an encounter between a victim and an offender. It is an unexpected personal crisis in the life of one person brought on by another, and it undermines the victim's view of the world and other people. The state soon steps in and the wheels of the criminal justice system begin to turn. But crime is first an intensely personal experience with far-reaching consequences.[1]
1. The 'reinstatement' of the victim into the criminal justice system has received increasing attention in Australia and overseas. Much of the momentum for this change began in South Australia in the early- to mid- 1980s, largely due to the work of Mr Chris Sumner, the South Australian Attorney-General. New South Wales, Victoria and Tasmania have also undertaken important work regarding the rights of victims.
2. The ACT has not been exempt from the increasing concern that justice could be more effectively delivered to victims of crime. In the Legislative Assembly, that concern has been bipartisan. On 13 December 1990, the ACT Community Law Reform Committee was given a reference by the then Attorney-General, Mr Bernard Collaery, to examine the role of victims within the criminal justice system and to report on what measures, if any, should be adopted to improve the delivery of justice to victims of crime. That reference was followed, on 13 March 1991, by the unanimous adoption by the Legislative Assembly of a Declaration of Victims' Rights, on the initiative of the then Shadow Attorney-General, Mr Terry Connolly.
3. An issues paper was completed in March 1991. The Committee engaged in extensive consultation with groups who work closely with victim of crime, such as Victims of Crime Assistance League (VOCAL) and the Rape Crisis Service, and with victims and their families. That consultation produced a broad range of ideas, all of which were given careful consideration by the Committee in formulating its recommendations.
4. This report contains the Committee's recommendations for the improved delivery of justice to victims of crime. Some of the measures suggested will require administrative implementation, others legislative action. The report begins by considering the historical and theoretical background to the Committee's recommendations. It then considers the effects of criminal victimisation and how those effects influence what a victim needs from the criminal justice system. The report then discusses important initiatives designed to ensure that justice is delivered with greater efficacy to victims of crime. Measures recommended include:
- the implementation of victim impact statements within the Territory;
- a victim-offender Process of Attempted Reconciliation program;
- the appointment of a Victims of Crime Coordinator; and
- an improved Criminal Injuries Compensation Scheme.
6. English criminal law, from which the Australian system has developed, has experienced the steady replacement of a victim-centred system with a system in which the state is a main player. The Anglo-Saxon system of law provided for monetary payments by offenders to victims, or the victims' kin, as reparation for injuries caused by crimes. Payment was according to a carefully drawn up set of tariffs. The word bót signified reparation paid to the victim for damage or injury, whether criminal or tortious. It was used in conjunction with other words so that man-bót was compensation for a victim slain. The wer was a pecuniary compensation for any injury or the value set on a victim's life, varying with his or her rank, under the Anglo-Saxon laws. The wergild was the price of homicide or other enormous offences, paid partly to the Crown for the loss of the subject, partly to the lord whose vassal he or she was, and partly to the party injured or the next-of-kin of the party slain.[2] In the early middle ages, besides the bót paid to the victim, the offender also had to pay a wíte. The wíte was a penalty paid by an offender to the king or landlord who convened the court and helped bring about a reconciliation between the victim and offender.[3] In the twelfth century, the wíte was increased at the expense of the bót until the king or the landlord took the entire sum from the offender leaving the victim with nothing.
7. Although the system of monetary payment by the offender to the victim continued under the Norman and Anjevin kings, the sums of money demanded were
to all seeming enormously large, if we have regard to the economic position of the great mass of Englishmen. ... Indeed there is good reason to believe that for a long time past the system of bót and wíte had been delusive, if not hypocritical. It outwardly reconciled the stern facts of a rough justice with a Christian reluctance to shed blood; it demanded money instead of life, but so much money that few were likely to pay it. Those who could not pay were outlawed, or sold as slaves. ... At any rate to ask the villanus of Henry I's day to pay [[sterling]]5 as an atonement for his crime is to condemn him to outlawry.[4]
It follows that at least by the reign of Henry I the system of compensation payable to a victim in respect of a crime was largely illusory. In theory, some regard was paid to the rights of victims of those crimes for which reparation was ordered. Under that theory, the victim who survived would receive some compensation. If he or she was slain, his or her relatives should have received the compensation.
8. The late Anglo-Saxon, Norman, and Plantagenet Kings steadily encroached upon the then existing legal system until they extended their supreme jurisdiction so that eventually it covered all crimes and all people in all places in the realm and thus made the 'King's peace' universal. It is enough to refer to two statements which indicate the place which Roman Law had in the making of English Law and its impersonal effect.
9. Chesterton, in his Short History of England, put the matter succinctly.
Henry of Anjou, who brought fresh French blood into the monarchy, brought also a refreshment of the idea for which the French have always stood: the idea in the Roman Law of some things impersonal and omnipresent.[5]
10. John Austin put the matter at greater length.
Civil Injuries and Crimes are distinguished by Blackstone and others in the following manner. Civil Injuries are private wrongs and concern individuals only. Crimes are public wrongs and affect the whole community.
...
All offences affect the community, and all offences affect individuals. But though all affect individuals, some are not offences against rights and are therefore, of necessity, pursued directly by the Sovereign, or by some subordinate representing the Sovereign.
Where the offence is an offence against a right, it might be pursued (in all cases) either by the injured party, or by those who represent him. But, ...it is often expedient that the pursuit of it should not be left to the discretion of the injured party or his representatives, but should be assumed by the Sovereign, or by the subordinates of the Sovereign. In this difference of procedure, and not in any distinction between the tendencies of the acts, lies the distinction between Crimes and Civil Injuries. An offence which is pursued at the discretion of the injured party or his representative is a Civil Injury. An offence which is pursued by the Sovereign or by the subordinates of the Sovereign, is a Crime.
In many cases (as in cases of Libels and Assaults) the same offence belongs to both classes. That is to say, the injured has a remedy which he applies or not as he likes, and to the Sovereign reserves the power of visiting the offender with punishment.[6]
11. These remarks are designed to do no more than to give a very slight jurisprudential and historical background to the question of the rights of victims. What is clear is that for many centuries the concern of central authority has been with prosecution of crimes rather than the welfare of the victim. Only two exceptions exist to this general exclusion of victims. The first exception is a very limited class of cases of which libel and assault, the latter being usually common assaults not occasioning bodily harm of any great degree, are examples. These cases lie at the borderline between civil and criminal law, because the victim is able to personally pursue the criminal matter. The second exception is where the victim acts as a witness.
13. Modern criminologists began to notice victims as a general class in the 1960s. Not only were the behaviour and motivation of the offender studied, but all the circumstances of and participants in the crime were examined. This shift of focus gave rise to the study of victimology. The concerns of victimology are more victim orientated issues such as: victim characteristics and their relationship to the causes of crime; fear of crime and crime prevention; the impact of crime on victims; victims' roles and responsibilities; and victims' needs for protection, support and compensation.[7] The concern is beginning to approach that of the emphasis placed on the rights of offenders.
14. The idea of 'victims' rights' is an alluring one. Henderson points out that it involves the use of two powerful symbols. The first is that of the victim, who has been painted as being a non-provoking, innocent individual affected by street crime over which he or she had no control. The second is that of a 'right', which, Henderson notes, tends to raise suspicions of oppression or deprivation.[8] The term 'victims' rights', she continues, has 'come to mean some undefined, yet irreducible right of crime victims that 'trumps' the rights of criminal defendants'.[9] She warns against accepting such an approach without question, as the very use of such powerfully symbolic terms tends to quash any criticism of the reforms proposed under its name. Henderson asks - who could be anti-victim?
15. While it is important that proper attention be given to victims within the criminal justice system, it is also important not to inadvertently allow the quest for victims' rights to adversely affect other legitimate rights, interests and philosophies. Christopher Corns, then a lecturer in criminal justice at La Trobe University, encapsulates the debate concerning the question of the balancing of competing rights in an article, 'The Other Side of Victims' Rights'.
From the early 1980s a number of Australian State governments, and to some extent the Federal government, have addressed a range of issues relating to the rights of crime victims. ... In short it can be said that the 'victims movement' is now firmly established in Australia and rapidly expanding.
However, whether the debate surrounding this movement has been balanced is another question. ...[10]
16. Corns went on to say that Justice Vincent of the Victorian Supreme Court had expressed a number of concerns about the way in which issues relating to the rights of crime victims had been developing in Australia and were perceived by the community. He used as an example the victims' movement's portrayal of crime as a phenomenon involving only an offender on the one hand and a victim on the other. His Honour stressed that such a portrayal failed to consider the broader social, economic, and political context in which crime takes place and which contribute to criminal offending. His Honour was also concerned that the victims' movement is conducive to a more retributivist approach to criminal justice in the form of heavier and more violent sentences as well as an increased 'law and order' mentality leading to further state intervention.
17. Justice Vincent stated that he applauded the motivations which lay behind the South Australian reforms and shared the concern for the plight of crime victims. He also pointed out that society must not lose sight of broader structural questions, such as the basic purposes of the criminal justice system. The ultimate challenge facing policy makers, and indeed the whole community, was not, he said, so much how to redress perceived injustices for crime victims but rather how that redress could occur without adversely affecting the rights and position of accused persons and, in the end, the community itself.
18. Commenting on the issues raised by Justice Vincent, Corns suggested that the political response to victims' issues involved two dimensions. The first of these was that a number of reforms could be implemented which would not affect the rights of the accused or offender. He cited improved counselling or welfare services for victims, a more co-operative and sympathetic attitude by the police or other authorities, improved court facilities such as separate waiting areas and the provision of basic information relating to the progress or outcome of the case. Such reforms are relatively uncontroversial and the major limitation on their implementation is availability of funds and political will.
19. There is, however, a second group of reforms which do have the potential to affect adversely the rights and position of the accused. Corns suggested that a victim impact statement could result in a more severe sentence than would have been imposed had the statement not been given. He considered that a victim's submission to a Parole Board could affect the date and conditions of the release of an offender. Funding of increased compensation payments might be by a levy on all offenders as occurs in South Australia.
20. Corns submitted that the second group of reforms raised the ideological tensions referred to earlier. He said that these types of reforms would require that governments choose between competing social values, interests and philosophies. Policy makers ought to be required to defend and justify any reform that would reduce the rights of offenders or result in a harsher treatment of offenders. Although the reform might improve the position of the victim, this is not necessarily a sufficient justification for it.
21. This report concludes the discussion initiated by Mr Corns by quoting directly from his article:-
There is no reason to believe that both criminal offenders and their victims do not accept that crime is indeed a complex phenomena [sic] and should be seen within the broader socio-economic arrangements. However, victims are not particularly interested in exploring possible precipitating causes of criminal behaviour. Their concern essentially relates to how the community and the State respond to their victimisation.[11]
23. Law and procedures already include features designed to assist victims of crime. For example:
- A criminal injuries compensation scheme has operated for nearly 10 years through the Criminal Injuries Compensation Act. Amendments to the Criminal Injuries Compensation Act were enacted in 1991 to increase the amount of compensation available to victims of crime to $50,000.[12] In the ACT cumulative awards of compensation have been made available by some courts, so that awards of more than $50,000 are possible if there has been more than one prescribed injury arising out of different circumstances.
- In 1986 the Children's Services Act 1986 (ACT) removed the old law which made it an offence committed 'by the child' for that child to be subject to neglect or control (sections 52 and 55 of the Children's Welfare Ordinance 1957 (ACT)). This was replaced by victim orientated provisions which protect children in need of care (sections 5, 139, 171 and Part V of the Children's Services Act.
- Provision was made for reparation orders under section 437 of the Crimes Act 1900 (ACT).
- Community service orders for juveniles can now be tailored in some cases (i.e. where the matters have been swiftly dealt with) to enable the offender to repair the harm done to the victim (section 47 of the Children's Services Act )
In relation to crimes that mainly affect women:
- Rape laws were reformed in 1985 (Part IIA of the Crimes Act).
- Domestic violence legislation (Domestic Violence Act 1985 (ACT)), considered to be the most comprehensive in Australia, was introduced. This legislation is an attempt to provide more options and avenues of assistance to the victims of these crimes. In particular, victims can seek protection orders from the Magistrates' Court. These orders, being a civil remedy, can be obtained much more easily and quickly than criminal remedies and can be tailored to the particular conduct of the violent party. The 1990 'keep the peace' amendments extend this type of protection to non-domestic victims who may seek this type of order (Magistrates Court (Amendment) Act 1990 (ACT)).
24. However, these laws and procedures do not operate within any overall, coherent policy relating to victims. Rather, they represent attempts by past and present governments to address specific problems as they arose. They demonstrate the range of issues affecting the various and different types of victim.
25. In addition to legislative measures designed to assist victims of crime, community groups such as the Domestic Violence Crisis Service, the Rape Crisis Centre and VOCAL offer considerable support to victims of crime. A secondary effect of their operations has been the very important one of educating the community more fully as to the needs of victims.
26. Many recent options for reform of the criminal justice process have been developed (and in some jurisdictions, adopted) from a victims' rights perspective. A statement of victims' rights and an explanation of the administrative and legal consequences of those rights form an attempt to integrate victims' experiences and needs into the criminal justice system. In assessing the viability of these options several factors need to be considered. These include:
- the impact on others' rights, notably those of the alleged offender; and
- the extent to which the proposals actually respond to victims' needs and expectations.
... persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operating within member States, including those laws proscribing criminal abuse of power.[14]
This report will not deal with victims of the criminal abuse of power beyond noting that it is conceivable that people could become victims of abuse of power if, for example, they are convicted of crime, and sentenced to imprisonment, as a result of concocted evidence. It is hoped that such cases would be very rare indeed. The Committee considers they would best be dealt with on an ad hoc basis with appropriate counselling and with just and generous compensation being made available with minimum delay and with as little formality as possible to people victimised in this way.
32. The category of the 'associated victim' (for example a neighbour) is a valid category. Its members may have needs that ought to be addressed by any criminal justice system which seeks to deal with the rights of victims of crime.
33. However, it is plain that within the category of associated victim, there are so many people who sustain some form of harm that it would not generally be reasonable for any law to address. This approach would seem to the Committee to accord with the general approach that the common law takes to questions of 'foreseeability' and 'proximity'.
34. A person not dependant financially or psychologically on the person directly affected by those acts or omissions defined as crime does not necessarily come within the scope of this report, even though he or she may suffer harm when those acts or omissions come to his or her attention.
35. The Committee believes the very broad category of income tax payers, rate-payers, insurers, consumers, and the like should not be considered to be victims of crime for the purposes of this report. It accepts that not accepting members of that category as victims of crime might be seen by some to lack logic. It believes, however, that those people are able to look after themselves. Governments can readily include in rates and taxes a component designed to meet the losses caused to the public by fraud, theft and the like. This results in 'load sharing' as does payment by consumers of insurance premiums. Admittedly, not all consumers adequately insure against crime against their property. Nevertheless, the availability of a method of load sharing puts the general public into a different position from those victims of crimes caused physical damage the consequences of which it would be unreasonable to expect them to have insured against. Insurers, of course, are in the business of attempting, for adequate consideration, to spread the load of property losses over a wide spectrum of the community.
36. Other victims who do not come within the scope of this report are those financially or psychologically dependant upon or closely related to an offender in prison and the offenders themselves. The Committee believes that the provision to be made for such dependants should be different from that made available to victims of crime as already defined.
37. There is another category of victims of crime that, although not coming within the scope of this report, should be considered. This consists of people introduced to addictive substances as a result of the criminal activities of others. It is true that the use of such substances is itself a crime, but even though some people may engage in crime to feed their addictive habits, it seems to be beyond doubt that they are truly victims of crime. It is suggested that in due course consideration ought to be given to their plight, noting that some attempt has been made already in the Territory to deal with it by means of the Drugs of Dependence Act 1989 (ACT). The debate on use of addictive substances continues and it appears the views of the wider community have not yet crystallised.
38. Victims of Crime are, therefore, confined to those people covered by the definition previously supplied in this report.
Being a victim of crime is destabilising. We depend on the goodness of strangers and friends just to function in the world. A crime, whether it is a burglary, a mugging or violence is like a private earthquake. Can the ground which looks so secure be trusted? And how come everyone else doesn't notice the tremor?[15]
40. The effect of crime on its victims, including the extent of psychological impact, has only in recent years attracted much attention. Yet it is the effect of crime on victims that largely determines the needs of victims (which society may or may not meet) and the expectations victims may have of the criminal justice system.
41. The nature and extent of destabilisation of the personality that occurs as a result of crime has been the subject of much research in recent years. American experts Drs Fischer and Wertz, on the basis of phenomenological analysis of crime victims' experiences, said:
Being criminally victimised is a disruption of daily routine. It is a disruption that compels one, despite personal resistance, to face one's fellow as predator and oneself as prey, even though all the while anticipating consequences, planning, acting, and looking to others for assistance. These efforts to little avail, one experiences vulnerability, separateness, and helplessness in the face of the callous, insensitive, often anonymous enemy. Shock and disbelief give way to puzzlement, strangeness, and then to a sense of the crime as perverse, unfair, undeserved. Whether or not expressed immediately, the victim experiences a general inner protest, anger or rage, and a readiness for retaliation, for revenge against the violator.
As life goes on, the victim finds him/herself pervasively attuned to the possibility of victimisation - through a continued sense of reduced agency, of the other as predatory, and of community as inadequately supportive. More particularly, one continues to live the victimisation through recollections of the crime, imagination of even worse outcomes, vigilant suspiciousness of others, sensitivity to news of disorder and crime, criticalness of justice system agents, and desire to make sense of it all.
But these reminders of vulnerability are simultaneously efforts toward recovery of independence, safety, trust, order, and sense. One begins to get back on top of the situation through considering or taking precautions against crime, usually by restricting one's range of activities so as not to fall prey again. During this process, the victim tries to understand not only how a criminal could have done and could again do such a thing, but also how he or she (the victim) may have contributed to the criminal's action. Also, one's intermittent readiness for retaliation provides a glimpse of one's own potential for outrageous violence. The victim is thus confronted with the paradoxical and ambiguous character of social existence: the reversible possibilities we all share, such as being agent or object, same or different, disciplined or disruptive, predator or prey. One may move from this encounter to a more circumspect attitude toward personal responsibility.
However, the person's efforts toward such an integration of the victimisation are not sufficient. The environment must over time demonstrate that the victim's extreme vigilance is no longer necessary. And other persons must respond with concern and respect for the victim's full plight, including his or her efforts toward sensemaking. All three components are essential for recovery of one's prior life as well as for development of a fuller sense of responsibility, reciprocity, and community. But no component is guaranteed. The absence of any of them eventuates in a deepened victimisation of isolation, despair, bitterness, and resignation.[16]
42. Drs Irene Frieze, Sharon Hymer and Martin Greenburg have considered this issue at some length. They noted first how 'opportunity plays a role in victimisation. They referred to the Fischer and Wertz findings and went on to state that researchers have attempted to systematise the reactions of victims following crime into phases, assigning each phase a name. They said that although the exact components vary, most researchers agree that reactions to criminal victimisation follow a predictable sequence.
43. The first is the immediate reaction - the impact-disorganisation phase - characterised by numbness or disorientation, denial and disbelief with feelings of loneliness, depression, vulnerability and helplessness. The elements of this stage have also been described as including an initial reaction of shock, disbelief, temporary paralysis and denial followed by a second stage characterised by frozen fright in which the victims feels a pseudo-calm detachment from others and shows regressive behaviours. Amongst the most immediate reactions to violence are anxiety, accompanied by sleep disturbances and nightmares. Other physiological reactions include diarrhoea, headaches, an increase in psycho-somatic symptoms and aggravation of any previous medical problems. Such immediate visceral responses may diminish with time but if treatment is not instituted, or if people supposed to be in supportive roles are hostile or unavailable, the responses can become long-term. This stage can last from hours to days.
44. Researchers studying the reactions of victims of rape, burglary, domestic violence, and robbery, as well as those of victims of other traumatic events, found surprising commonality in the reaction of all these types of victims.
45. The first stage is followed by a phase which has been labelled the 'recoil' stage. Typically, this stage lasts from three to eight months and during it the victim may experience swings in feelings from fear to anger. Feelings may also alternate between sadness and elation and between self-pity and guilt. Rape victims sometimes show shifts in feelings that range from feeling confident about their abilities to cope to feeling quite incompetent. These victims sometimes have changing fears during this stage between fear of the rape itself to fears of future attacks.
46. Loss of identity and self-respect can also follow victimisation. Feelings of loss, rejection by others and humiliation are also common. Victims may experience rage. In instances when the victim has incurred physical injury, the victim experiences not only rage but also grief and depression at the loss of normal physical functioning. Severe depression is not uncommon in rape victims.
47. Other behavioural reactions observed during this phase include insomnia, uncontrollable crying, agitation and restlessness, increasing use of drugs and deterioration in personal relationships. Victims of both property crimes and violence often express need for retaliation soon after the crime has been committed.
48. The victim re-experiences the traumatic event in the form of obsessions and/or recurrent dreams and nightmares. These are often accompanied by feelings of numbness along with dissociation from the content of the thoughts. The victim may show decreased interest in social and/or sexual relations.
49. The major fears expressed by victims are fears of being alone or abandoned, recurrence of the event, and death. Anger and frustration assume the form of blaming someone or blaming fate for the victimisation. Some victims also show guilt and remorse over their hostile thoughts or impulses. Many report feelings of shame and disgust at being helpless and out of control. Krupnick and Horonwitz (1981)[17] noted that the most prominent themes expressed by victims of personal injury and by assault victims are fear of repetition of the event and feelings of responsibility, along with rage at the source of the trauma.
50. Given these strong and sometimes conflicting reactions, the victim may be especially responsive to social support during this phase. Depending on the person's coping skills and social support systems, a personal reorganisation that is either adaptive or maladaptive can occur. Most victims experience a gradual dissipation of symptoms within six months of the traumatic event. For other victims however, there is a latent period of days or weeks during which the person seems normal, followed by a delayed post-traumatic reaction.
51. Although many crime victims are believed to resolve the trauma of victimisation within six months to one year, other crime victims experience chronic stress with reactions recognised as a general stress reaction, or post-traumatic stress disorder. This disorder has well known symptoms.
52. Long-term reactions occur during the final phase or stage known as the 'reorganisation' phase. As the anger and fear diminish the victim enters that stage and can resolve the trauma of the victimisation by establishing more effective 'defensive-vigilant' behaviours, and by revising his or her values and attitudes to readjust to everyday life. Successfully coping with victimisation can promote growth in victims. However, long-term reactions can also be problematic. After a year, rape victims were more depressed and reported less pleasure in their daily lives than women in a control group who had not been victims. A sizeable number of rape victims did not feel that they had recovered from the attack four to six years after it had happened. Decreased sexual activity, flash-backs, physical pain during sex and difficulty in experiencing orgasm were symptoms mentioned by victims several years after being raped.
53. Those providing care and support to victims frequently mentioned low self-esteem, depression, guilt, fear and relationship difficulties as the most common long-term problem experienced by those victims. It is, therefore, in this final phase that the victim might blame himself or herself for a lack of attention to danger. There is evidence that most of the decrease in anxiety and other fear reactions occur in the first few months.
54. A number of explanations for these commonly experienced reactions to victimisation are proposed in the literature. All the proposed explanations relate specifically to the stress of being criminally victimised. They differ, however, in what they regard as being the source of the stress. One theory is that stressful reactions occur because the self is violated. Other explanations focus on feelings of inequity, vulnerability to additional victimisation and of perceiving oneself as deviant.
55. It is said that victims react to the distress and anxiety of victimisation in a similar way as they react to other forms of stress. For example, younger women experienced more immediate symptoms following victimisation. Female burglary victims who had been separated from their husbands by death or divorce were especially likely to experience acute stress as a result of burglary of their homes.
56. It has been noted that in crime victimisation, the central source of stress is the violation of the victim's self. Rape and murder or attempted murder constitute the most serious violations, but violation of the security of the home, often considered an extension of one's self, is also stressful. Accepting what has been just said as correct, the Committee believes it is to be expected that the reactions of victims of rape, burglary, domestic violence, robbery, and other traumatic events will show a high degree of commonality.
57. Victims often feel a sense of inequity. What has happened to them is 'not fair'. Not surprisingly, the victim believes that the perpetrator simply should not be allowed to act in the way they have. They tend to feel angry and distressed and have a need to improve their outcome, for example, by obtaining an insurance payment, retrieving stolen property, or by some form of compensation. The counsellor appears to have a role to play in reducing inequity by re-evaluating the victimising experience. This seems necessarily to involve a reassessment that allows the victim to view the circumstances of the victimising crime from a more detached and objective viewpoint.
58. Victims lose their sense of safety or invulnerability. But they also tend to see themselves as attracting in some way the crime to which they have been subjected. They may attribute their being victimised to their failure to act appropriately or to factors arising from their own characters. In relating the crime to these factors many victims tend to perceive themselves as being different from other people, a difference which may arise from self-blame. It can also result in loss of self-esteem as the victim begins identifying with other stigmatised individuals to whom he or she would have reacted with aversion and pity prior to the crime.[18]
60. The lack of a precise role (or roles) for the victim, other than as a prosecution witness, belies the victim's actual importance to the criminal justice system. Firstly, victims perform a vital gate-keeping function, determining which matters, other than crimes causing death, will be dealt with by the system. Victims do not report all criminal acts to the police. In 1983, for example, although the vast majority of car thefts were reported, only 43% of robberies, 34% of assaults and 25% of sexual assaults were reported.[19] Victims who do not report crimes presumably cut their losses or attempt to obtain a remedy by action taken personally, and in doing so by-pass the criminal justice system altogether.
61. It is important to bear in mind that many crimes are not reported by victims because of fear. This fear may be of physical violence or of the court processes involved in the prosecution of crimes. It may also be due to other factors, more difficult to identify. The psychological make-up of victims varies so much that it would be impossible to define accurately the nature of the fear that governs inaction. Failure to report a crime might also be due to factors such as family loyalty, readiness to forgive no matter how serious the crimes, perceptions that the crime is a private matter, that State-imposed punishment is inappropriate, that the police can or will do nothing or, finally, because the victim has told a person other than the police.[20]
62. The victim is clearly important to the successful and efficient working of the criminal justice system. When crimes are reported, it is victim information alone which leads to the majority of convictions, particularly for crimes of violence. Advocates of victims' rights argue that this efficiency will only be maintained if the co-operation of victims is retained, but that this will only occur if victims feel that their needs and interests are satisfactorily met by the system. The criminal justice system risks losing the future co-operation of victims of crime, and that of their friends and relatives, if these needs are not met.
64. VOCAL was formed in 1988 by a group of people from the ACT and the surrounding region who had suffered victimisation. The assistance VOCAL provides to victims of crime includes:
- Support from people who understand through experience the anguish criminal victimisation can cause;
- Outreach service to victims who are unable or do not wish initially to attend meetings;
- Court support, in the form of information about the court process and support during and after the hearing; and
- Provision of information to victims about individuals or organisation who can provide counselling and legal services.
65. VOCAL also has taken a role in promoting public awareness of the plight of victims as well as in assisting the authorities in identifying and remedying difficulties for victims in the criminal justice system of the ACT.
66. The Victims of Crime Assistance League in Victoria provides an information centre for victims, a referral centre to relevant professional services (including counselling, legal and medical services), a 24 hour telephone support service and volunteer training.
67. The Victims Of Crime Assistance League for the Hunter Region is the only group operating in New South Wales. It is operates solely on the basis of donations and volunteer support. It provides general support services, gathers information of concern to victims of crime, promotes the consideration of victims' issues within the community and promotes improving the criminal justice system.
68. The Victims of Crime Association (Queensland) provides an information resource centre, a facility for self-help groups, a referral centre for crime victims, court support for crime victims, volunteer training and a 24 hour telephone support service.
69. The Victims of Crime Service (South Australia), established in 1979, was the first victim support group in Australia. VOCS provides professional counselling and support, information about victims' rights, support groups for the victims of specific crimes, information seminars, security advice and a court companion service in Adelaide, Whyalla and the south-east of South Australia. It also promotes community understanding of crime and victimisation.
70. The Western Australian Victim Support Service (VSS) is a recently expanded service, replacing a pilot project in July 1992. It has attracted a good deal of political support. This has meant that VSS has been able to employ professional staff, including counsellors, an Administrative Officer, a Police Liaison Officer and a Receptionist. Like VOCAL in the ACT, it provides services to victims and aims to increase community and political awareness of victims' issues and deficiencies in the criminal justice system.
71. The Victim Support Groups in New Zealand consist of 54 groups throughout the country. They form a crisis intervention service, victims being contacted within 24 to 48 hours of the crime being reported. To obtain details of victims, the coordinator of each group is given limited access to police records. Volunteers are on call in most areas 24 hours a day, seven days a week and police contact them by telephone or pager when a crime is reported. Police provide the groups with 90% of all work, other victims being referred by the Housing Corporation, the Fire Service and St Johns Ambulance. Some victims make contact themselves.
72. The victims' self-help groups provide an important support network for those who have been victimised. This type of support network should, however, be supplementary to a supportive and understanding criminal justice system. The role of victim assistance groups should be to assist the victim of crime to recover from the distress caused by the initial criminal act. These groups ought not be forced to assist recovery from additional trauma caused by a criminal justice system which does not adequately recognise and respond to the needs of victims of crime.
(a) the care ideology,
(b) the resocialisation or rehabilitation ideology,
(c) the retribution or criminal justice ideology, and
(d) the radical or anti-criminal justice ideology.[21]
74. The care ideology is based on a view that the care of crime victims is a welfare responsibility of the government, similar to the care of the aged, sick, unemployed and other disadvantaged groups. Emphasis is placed by service providers on alleviating injuries and hardship rather than on the failure of the state to properly protect the victim from harm in the first instance.[22]
75. The resocialisation or rehabilitation ideologies focus on offenders and their rehabilitation, rather than on the victim. The assistance given to victims by these services are of secondary importance to the service providers. Restitution and some mediation programs (for example, the Family Group Conference in New Zealand) are examples of services based on these ideologies. The main justification for the existence of these services is that they offer offenders the means to reintegrate into society. Victims are a means to this end: any benefit they receive is a useful by-product of the program.[23]
76. The retributive or criminal justice ideology is based on a view that the victim should be compensated according to the seriousness of the crime and that the victim should be given a more prominent position in the criminal justice system. Examples of services based on these ideologies are criminal injuries compensation and victim impact statements.[24]
77. Proponents of the radical, or anti-criminal justice, ideology believe that the needs of victims of crime can best be met, not by modification of the current criminal justice system, but by 'setting up an entirely different one, based on civil law principles'.[25] They see the criminal justice system as being completely unsuited to the resolution of 'interpersonal wrangles'.[26]
79. It is widely recognised that because the victim has no defined role or status in the case, beyond that of the provision of information, officials at all levels of the criminal justice system have a tendency to forget the victim's interests in fulfilling duties of a higher official priority: the capture of the offender, the formulation of the prosecution case, and the speedy and efficient progress of the case through the courts. The frequent failure of justice officials to give appropriate priority to the interests of victims can contribute to victim dissatisfaction.
80. The victims' interaction with the criminal justice system unavoidably coincides with his or her most acute reactions to the offence. Some argue that because the criminal justice system does not accommodate the victim's particularly vulnerable state at this time, many victims, for a variety of reasons, feel that the system penalises or victimises them. This failure to accommodate is often a result of lack of thought rather than intentional. Factors leading to these victim perceptions include:
- failure to provide information to the victim concerning the process;
- insensitivity on the part of criminal justice officials;
- causing inconvenience to the victim in the conduct of further investigations involving him or her;
- lengthy delays and waiting periods (for example, in courts and for the return of property); and
- the traumatic and often humiliating experience of cross-examination with little or no warning of what to expect.
81. Two prominent Canadian victimologists, Dr Irving Waller and Dr Micheline Baril have identified five principal 'needs' required of the criminal justice system to allow victims 'to restore their sense of worth and get on with their lives'. Waller and Baril have said:
Information about the offender and the offence can contribute to a victim's understanding and eventual acceptance of the crime.
Support from the community as well as from family and friends is crucial to help the victim deal with feelings of isolation and vulnerability. Community support can be shown through victim assistance and compensation programs, as well as through the helpfulness and concern of criminal justice personnel whose actions can minimise the trauma of participation in the criminal process itself.
Recognition of harm. It is important to the victim that the criminal justice system recognise the harm done through the imposition of an appropriate penalty. It is also important that the offender recognise, and acknowledge, the harm done to the victim. This is important to assist the victim in coming to terms with the fact of his or her victimisation.
Reparation for the harm, which can include financial compensation or other action by the offender designed to make redress, constitutes a concrete acknowledgment of the harm done, and may also be important to restore the victim's sense of self-worth.
Effective protection from re-victimisation or retaliation is crucial to alleviate the victim's feelings of vulnerability. This is particularly important where the victims know, or have a continuing relationship with, the offender. Victims also express concerns about the protection of other members of the community. [27]
- The duty to give people specially affected by the decision a reasonable opportunity to present their cases; and
- The duty to listen fairly to both sides and reach a decision untainted by bias.
83. While it is acknowledged that the application of those principles is of fundamental importance in judicial proceedings and has been so for thousands of years,[28] there are difficulties in applying the principles to the resolution of proceedings in criminal courts. The principal difficulty arises because the proceedings are not simply a matter between victim and offender. The State has a significant interest in them.
84. In the Committee's view, the principles must be applied as far as is possible. It is this view which has led the Committee to the conclusion that victim impact statements should in all appropriate cases be made by a victim if he or she is willing to accept the burden of making such a statement or, as would generally be the case, making two such statements, the one shortly after the crime and the other shortly before its resolution, namely at the sentencing stage, in the appropriate court.[29] Equally the application of the principles must give to an offender (by this time either convicted or acknowledging his or her guilt) the opportunity to cross- examine the maker on the statement.
Australian and overseas studies have highlighted an alarmingly large percentage of victims who are dissatisfied by the way in which the police handle complaints made to them by victims of crime. The 1987 Report of the New South Wales Task Force on Services for Victims of Crime found that 45.2% of victims who responded to their survey were dissatisfied with police handling of their complaints, compared to a 33.2% satisfaction level. No equivalent ACT survey has been done but such dissatisfaction elsewhere may indicate a trend which needs to be further examined in the ACT.
A 1987 report prepared by the South Australian police identified certain needs of victims of crime which should be met by a police force concerned with the interests of those individuals. It identified the needs of the victim on the day of the offence to be:
- ease of reporting the crime to the police (e.g. victims should know which branch to call, the call should be promptly answered by an experienced police officer);
- prompt response by the police;
- sympathetic attitude of responding police, particularly in the case of injury or sexual assault; and
- the ability of attending police to properly assist the victim (e.g. having some knowledge of services required and where those are available).
The report identified the needs of the victim post crime to include:
- continued sympathetic handling by the police;
- the provision of information with regard to the progress of the investigation;
- information concerning what is expected of the victim;
- respect for the victim's privacy;
- involvement in the decision whether to proceed;
- consideration of the convenience of the victim in the conduct of further investigations requiring the victim's assistance;
- prompt conduct of the investigation and hearing;
- the swift return of all property.
The report of the New South Wales Task Force on Services for Victims of Crime nominated the attitudes of police and prosecutors and the provision of information as being important determinants of victim satisfaction. The report later suggested that the victim should be informed of:
- the results of the investigation of the complaint;
- the person/s proceeded against;
- particulars of the charge/s preferred against the alleged offenders;
- the bail determination;
- the details of court adjournment and hearing dates, excluding those adjourned to a date for mention only; and
- the outcome of proceedings.
Such information is usually provided to victims only when they are required to play a further part in the investigation or proceedings, rather than as a matter of routine.
The importance to the victim of being kept informed was also recently identified in a study conducted by the South Australian Office of Crime Statistics and published in April 1990. This found that 87.1% of victims felt that any trauma associated with being reminded of the crime was outweighed by the perceived benefits of being kept informed.[30]
In response to the matters set out in those paragraphs, the Committee considers that all these matters should be addressed by police officers and, eventually, by prosecuting officers.
87. In cases where investigation has taken a long time it seems reasonable that progress reports, which need not necessarily be detailed, be made to the victim by the relevant authorities. The standard for information provision is addressed by the Committee in the Declaration of Victims' Rights proposed in this report. In matters where the alleged perpetrator of the offence is quickly identified and charged, it seems appropriate that the victim should be advised of major developments such as arrest, applications for bail and the nature of the charges to be preferred.
88. The Committee believes all victims should have the opportunity to be present at hearings and to observe that justice is done in their case. It is usual for victims to give evidence early in a hearing and, therefore, there is nothing to prevent them from remaining in court if they wish. It is to be noted that victims frequently seek leave to depart the court after having given evidence.
90. It is very frequently the case that witnesses in criminal cases have no idea what is required of them when giving evidence and thus do themselves less than justice. The Committee recommends that victims who are to be witnesses should receive information concerning what will be required of them as witnesses but such information should never amount to their being influenced in any way as to what they should say. The Committee recommends that a video be prepared about the process of preparing oral evidence. It could act as an adjunct to a pamphlet similar to the South Australian pamphlet 'Tell it like it is' which has been prepared to assist children giving evidence but could readily be extended to the wider target group.
93. The South Australian Declaration of Victims' Rights, at paragraph 12, refers to the entitlement of a victim to have his or her need or perceived need for physical protection put before an authority, to be advised of the outcome of all bail applications and to be informed of any conditions of bail which are designed to protect the victim from the accused. Obviously there are many offences in respect of which bail is sought where there is no possible risk of injury to the victim or witnesses. But victims may have special insights or information as to their fears which ought to be considered. The Committee is of the opinion that the following is an appropriate provision in this regard:
Where a victim demonstrates or perceives a need for protection from physical violence or harassment by an alleged offender he or she should be entitled to have that need placed before a court considering an application for bail. The victim should be advised of the outcome of all such bail applications and particularly of any conditions of bail which are imposed with a view to the protection of the victim (or potential witnesses for the prosecution).
95. The sentencing judge has a very good opportunity to assess any risk to the victim arising from early or immediate release of the offender. It seems unlikely that if there were any immediate risk to the victim the offender would be released forthwith on sentencing. It seems to the Committee, however, that it would be appropriate for a victim who is concerned about the danger to himself or herself because of the early release of the offender, to set out those concerns and the reasons for them in a victim impact statement so that the concerns could be properly considered by the sentencing judge.
96. The Committee believes that there are any number of authoritative decisions which set forth explicit criteria for sentencing and the reasons for sentencing and that, without exception, reasons for sentencing are handed down at the time an offender is dealt with.
97. The Committee does not favour a system which would allow recourse by a victim to an appellate court where he or she feels that proper procedures are not followed. It sees this only as unnecessarily increasing the complexity of criminal proceedings. It also sees no necessity for it even under the present system having regard to the material taken into account on sentencing and where, indeed, VISs are apparently sought fairly routinely by courts.
99. The position was put that victims should be entitled to be made aware of the date upon which the offender is to be released from custody. The rationale for this suggested requirement was to remove the risk of psychological damage to the victim should he or she come across the offender during the course of his or her daily routine without having been warned that such an encounter was possible. The Committee considers that it is reasonable that victims of violent crime should be advised of the release date of the offender so that they may be forewarned of the possibility of such an encounter.
100. There are enough cases reported where a victim has been the subject of further criminal behaviour on the release of an offender to make understandable the fear of many victims as to what might happen after that release.
101. The Committee has no statistics on the percentage of offenders who commit offences against their victims after their release but it is prepared to accept that, except in domestic violence cases, only a small percentage commit these second offences. However, when they occur, they are likely to attract considerable media attention, highlighting the view that the criminal justice system has failed. The Parole Board of the Australian Capital Territory has on occasion received submissions from victims of crime at the time the offender might be released. It takes great care to address any fears expressed with a view to establishing a suitable basis for future relations between the victim and offender. Due regard is given to the rights of the about-to-be-released offender in this process.
103. The Committee considers that the Territory ought enact a declaration based the South Australian declaration of victims' rights but with certain modifications. That declaration as so modified appears in full in the summary of recommendations. The Committee suggests that the Territory Government could consider amending the Declaration of Victims Rights which was adopted in 1991 to accord with the model suggested in this report and to become in due course part of the law of the Territory.
104. Most of the matters set out in that declaration can be dealt with administratively. Indeed the second reading speech of the Attorney-General for South Australia, the Hon. Chris Sumner, included the following:-
These principles will be forwarded to all relevant government departments with instructions to ensure that practice and procedures in departments comply with the principles. [The Government Departments] will also be required to bring to [the Attorney-General's] attention any deficiencies of the law from their standpoint.[31]
105. However, the Committee considers that the Declaration of Victims Rights of the Australian Capital Territory should be enshrined in legislation to ensure that those charged with the responsibility for putting the principles espoused in the Declaration into effect have clear guidelines. Any breach of the guidelines which come to the attention of the Victims' Coordinator should be reported to Government and the relevant agency for appropriate action. Draft legislation is appended to this report at Appendix 'F'.
.
.
.
.
.
.
.
.
.
.
.
.