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Academic and political interest in victims of crime continues to grow, and in recent years there have been variety of developments and proposals at national, regional and international levels designed to improve the criminal justice system's treatment of victims of crime. Victims need and rights have become regular topic of discussion in criminal justice and penal policy. The victim's movement that started couple of decades ago have achieved considerable success with some major changes in laws, in national, regional and international legislations in particular in the area of fair treatment restitution, compensation, Social assistance for victims of crime, and the extent to which victims should have a say in prosecution, bail or sentencing. This paper outlines the current framework of rights for victims of crime, also identifying their needs, The focus of this paper, however, is on the theory of victims' rights, reviewing the historical evolution of the concept and recent developments, The rights of the victim's falls into two categories service and procedural rights. While generally no one has problem with victims service rights but there have been lost of controversies and criticism on victims procedural rights specially issues relating to victims right of participation in the decision making process of the criminal justice system. The essay will start with looking at the evolution of victim's rights, outlining the contribution that victimology and victim movements have made to the theory of victims rights, than victims needs will be discussed and in the later part of the essay rights of the victims will be explained.
Definition of victims
The 1985 united nations declaration of basic principles of justice for victims of crime and abuse of power offers a definition of victims;
Victims means 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 operative within Member States, including those laws proscribing criminal abuse of power.Ref 19 tim newburn page 342
The emergence of victomology
'although victimization is as old as humanity itself until recently there was no much reference to victims and victimology, it was not until after the Second World War that the scientific study of crime victims emerged as an essential complement to criminology's well-established research on offenders'(1).When it was growing as a study there were three goals set for the victimology, fewer victims, search for methods to diminish harm to victims and calls for research on victimization, but than in 80's it took an other turn and the focus shifted towards improving the treatment of victims in the criminal justice system, with main focus on needs and rights of the victims.
'One of the most important developments in the field of victimology in the last twenty years has been the formal approval by the General Assembly of the United Nations on November 11, 1985 of the 'UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power'. Following that there were Victims Bills of Rights were passed by the legislative bodies in several countries. And that to say that it is not finish for victimology because still there is lot to be done specially in the countries that are less advanced than others and have still not done enough for the victims of crime'(2)
The factor that's contributed remarkably in the evolution of victimology was victimization surveys, by providing better estimates of the extent of crime and victimization. These surveys were conducted at a local, regional, national and international level. Worthy of notice among these surveys are the ones carried out on a regular basis, in England and the U.S.: the British Crime Survey, and the National Crime Survey (United States). Each of these surveys yields a wealth of information on crime victims. 'though there were lots of criticism on these surveys about there efficiency and it was argued that the large sums spent on national victimization surveys could be better spent either to fund much needed qualitative research or to add to the subsidies of poorly-funded victim assistance programs and victim services'(3)
Despite all this criticism on victimization surveys, and despite their limitations, they have allowed researchers to collect a huge amount of data on victims of crime that is extremely rich in variety and detail.
Rights of the crime victims
Andrew karman classifies victim rights more in terms of at whose expense they might be gained. He refers to two primary categories those gained at the expense of the accuse persons and those gained at the expense of the state, the latter category of victims rights includes rights to obtain information concerning criminal justice decision and process, to be treated with respect, sympathy. By criminal justice officials to call upon psychological and practical support and services in the period following the offence and to receive compensation from the state in cases of criminal violence.Ref 10 page 65 online book
Victim's first right in participation stage is his desire to be informed about the process of the case investigations, the criminal justice process, and plea-bargaining and bail decisions. The right to be informed does not create any due process problem for the defendant. Actually failure to disclose information prevents crime victim from filing claims for the compensation, taking precautions for protection if her assailant is released and seeking restitution or compensation. Hein online ref 9 page 499
In Britain the Home Office has made progressive attempts to improve the ways in which victim are kept informed by police and prosecutors, two victims charters were published in i990's and than in 2004 they were replaced by domestic violence,crime and victim act 2004, first the charter and than the act sets out minimum standards of service that victims and witnesses can expect from criminal justice agencies including services to ensure that victims received better information about case progress, that their views were obtained, and that they received proper facilities and assistance in court. Ref 17 page 474
If one can see in legislations and laws this right to get information looks like a straight forward right and one thinks that there will be no problem in giving that right to the victim but in practice the duty to provide information for victims and witnesses is identified as an area which clearly must be improved. It is noted, for instance, that witnesses are not kept fully informed of what is happening with a case, up to and beyond a court decision, and that warnings of court dates sometimes come too late.
Similar considerations attend suggestions that victims be given a say in bail decisions. Bail decisions before magistrate's courts offer a more obvious formal opportunity. For the victim to express a point of view.,Especially where a defendant is accused of an offence punishable with imprisonment the court need not grant bail if it is satisfied that the defendant would commit an offence or interfere with the victim. Since the defendants release could pose serious threat to a victim and her family the victim input through victim impact statements at this phase of this process should be considered. victims are often frustrated by the fact that thay are not consulted when a plea bargain is being madeRef 9 page 500 hein online
a number of state legislatures have also provided the victim with a right to be consulted about a plea bargain while the victims opinion is not binding the prosecutor should give it consideration before a final decision is made.
Plus better facilities as a witnesses
For the victims who are witnesses also there are further service rights provided these rights for witnesses are provided by victim support, it includes advice, information and support to help witnesses through the stress of a court appearance, it also insures that witnesses gets better facilities, such as separate waiting areas, pre-trial visits to the courts and helps witnesses make sense of the court process.
Second categories of victim rights are procedural rights. In these rights are the right to participate in the process of justice, including the right to express their preferences concerning the sentence to be imposed, to appeal lenient sentences and to be consulted about parole decisions.. These rights are quite controversial because many civil libertarian organisations claim that the right to involve in the decision making affects the rights of the accused and the convicted persons. Although there is criticism about the victims participating rights but there is a lot of support for these rights too specially all the victim movements, victim support organisations and victim themselves wants the judge to know what the crime meant to victim in order to make a fair decision about the charges and consequent punishments.
Because the victims injuries were caused by their offenders acts or omissions it may seem right that they should be represented.Ref 9 page 502 heinonline. such victims persist in thinking that a judge or prosecutor has to know what the crime meant to them in order to make a fair decision about the charges and consequent punishments.heinonline ref 4 page 59. proponents of a victims rights amendment apparently believe that increased involvement of the victim enhances the function of the judicial system by making the victim feel better about the process.heinonline ref 3 page 90. In this way, the victim may be entitled to tell the judge what he or she thinks should be done to the offender. The first and immediate criticism of this type of participation is that the victim's desire for vengeance conflicts with two princi-ples that apply even to retributive sentencing: proportionality and equality. http://www.jstor.org/stable/pdfplus/1228587.pdf ref 13 p 61 pdf. placing victims in the roleof quasi prosecutor or co council the victim right amendament represents a dangerous return to the private blood feud mentality. any attempt to use the constitution to enhance a victimms rights by placing the vicyims in direct conflict with the accused in court reverts to a process that history has shown to by pass than fully civilized.heinonline refernce 3 page 90
The victims movement thinks that defendant does appear to have an advantage in the criminal process: He has a lawyer, while the victim does not; he enjoys the protection of specific constitutional provisions, while the victim does not; he frequently is the focus of attention and concern-even if that attention and concern are entirely neg-ative in orientation-while attention paid to the victim is typically nonexistent or dependent upon the victim's usefulness to the prosecution. The perception that defendants are somehow advantaged is thus difficult to dispel. The reality, however, is that most defendants have little or no real advantage either substan-tively or procedurally. ref 13 p 68 pdfWe cannot justify participation rights to victims simply because they are rights enjoyed by defendants. The justification for granting certain rights to defendants may be inapplicable to victims. For example legal representation for the defendant is crucial to ensure that the he receives a fair trial. However legal representation for a victim cannot be justified on these grounds as the victim is not in apposition of inequality vis-a-vis the state. Ref 16 page 972 pdf 6
The first type of victim participation is expression. Through expression the victim selects the information that he wishes to make known to the court. The victim might want to provide the same information as the court requires but present it in emotional, subjective terms, to go into greater detail than the courts needs, and relate information beyond that required by the court.Ref 16 page 976 pdf 10 To give the victim a right to present arguments requires firstly the addition of the extra layer of administrative activity already referred to notifying the victim of the date, time and place of the bail hearing and of any postponements. Secondly it may be argued that the victim should be legally represented which may in turn impose a further charge upon the legal aid fund. Thirdly if the victims are to have a right to present arguments, it may be argued that magistrates should have a correlative and a reviewable duty to give reasons why they are un acceptable. And not only for the victims benefits the offender may have a justifiable complaint.Ref 9 page 501 heinonline
Such proposals are controversial both in theory and in practice, where they would generate considerable administrative and hence financial costs.Ref 9 page 483 heinonline
As a result of lobbying by some wings of the victims movement there has been a significant expansion of victims rights to influence decisions in respect of cautioning and charging decisions,plea negotiations, sentencing, parole and release. Ref 17 page 477
Since 1990 the probation service has been under an obligation to contact the victims of life sentenced prisoners and since 1995 victims of other categories of prisoners to ascertain if they have concerns about the conditions attached to the release of the offender.ref 17 page 477
Recent victim's rights proposals appear to be driven more by the retaliatory view of retribution than by the moral aspect of ret-ribution. The victim who participates in sentencing might fur-ther the ends of the retribution-as-vengeance theory by providing specific and graphic information about the crime-in-formation that will provoke outrage. Despite its popularity among victim's rights proponents, re-taliation has received relatively little support from philosophers or social scientists.262 Vengeance is uncivilized,263 and it cer-tainly cannot be said to appeal to the "higher nature" of man, yet the "romanticv ersiono f the vindictive theory . . . holds that the justification of punishment is to be found in the emotions of hate and anger, these emotions being those allegedly felt by all normal or right-thinking people.
The creation of legally enforceable rights
The Victim's Charter is a well-intentioned document which seeks to address some of the issues and problems faced by victims of crime2 . But its impact is severely limited by the absence of a supporting legislative framework. There is no legal duty or obligation imposed upon service providers to accord victims the treatment outlined in the Charter. It is a document of broad principles, rather than defined and enforceable rights. http://www.liberty-human-rights.org.uk/publications/6-reports/liberty-rights-of-crime-victims.pdf
An example of the uneasy relationship between Decision-Maker and victim;
The victim personal statement scheme
In Britain VPS were introduced under the victims charter 1996 inviting victims to state the physical, financial, psychological, social or emotional effects that offence had on them or their family.ref 17 page 477
Victims may want to include the victims need for extra support, if he wants to be told about the progress of the case if he feels vulnerable or intimidated how the crime has affected him and so on.Expressive role is predicted on the notion that victims may derive psychological and emotional benefits from involvement in process and procedures in which they are interested..Ref 16 page 977 pdf 11Since the defendants release could pose serious threat to a victim and her family the victim input through victim impact statements at this phase of this process should be considered.Ref 14 page 247 heinonline. in US the victim impact statement(vis) is the most common, it presents a written description of medical,financial and emotional injuries caused by the soon to be sentenced offender Ref 14 page 254 Hein online
VPS Scheme is unclear in its aims and justifications with the victim left inexorably as an ambiguous participant Ref 16 page 978 pdf 12 While the expressive role is envisaged by its advocates as assisting the recovery process, the restrictions on expression in the scheme(especially no expressions, no opportunity to speak directly to the court and no guarantee that what is said will actually affect the decision taken) may hamper the very therapeutic aims sought.Ref 16 page 979 pdf 13The VPS scheme is in danger of raising expectations amongst victims who perceive that they are being given an extensive consultative or information providing role when their role is actually being limited to that of expressor.
If crime victims have "rights," the right to recover from the wrongdoer is the most tenable individually based right. heinonline ref 3 page 93. Few would quarrel with the proposition that, in an ideal world, the person who does harm should compensate the victim. The area where there has been most growth, both at the international and national law levels, has been with respect to victim compensation.http://hrlr.oxfordjournals.org/cgi/reprint/6/2/203 3. The power to order restitution is often considered a sentencing alternative. A restitution order requires that criminal offender pay money or render services to victims in order to redress losses inflicted. Ref 14 page 258 Hein online. victims are also often entitled to awards of restitution from the defendant. when availble and feasible restitution can save the victim the time and the trouble of bringing a civil suit. heinonline ref 3 page 93 Compensation orders may now be made in respect of personal injury; losses through theft of, or damage to, property; losses through fraud; loss of earnings while of work; medical expenses; travelling expenses and pain and suffering. . Ref 17 page 479
Garofalo argued that mandatory restitution would deter criminals by raising the crime tariff, save money, and lead to reformation of some criminals.325 Thus Bentham and Garofalo suggest that even in the narrow sense of reparation, compensation to victims is not a good end in and of itself. It also must serve the public purposes of the criminal law, particularly those of deterrence and rehabilitation.http://www.jstor.org/stable/pdfplus/1228587.pdf ref 13 p 75 pdf
In Britain, The criminal justice act 1982 made it possible to order compensation as the sole penalty and required that the payment of compensation take priority over the fine. Ref 17 page 479 The criminal justice act 1988 further required courts to consider making a compensation order in every case of death, injury, loss or damage and give reasons for not doing so. Ref 17 page 479
some advocates of restitution have advocated using restitution as a fine-like punishment imposed instead of imprisonment, because restitution provides a direct method of reminding the criminal of the wrong and forcing an acknowl-edgement of moral responsibilityhttp://www.jstor.org/stable/pdfplus/1228587.pdf ref 13 p 78 pdf. Restitution arguably personalizes the sentence and in-creases the offender's awareness of responsibility and remorse, thereby aiding his rehabilitation. ref 13 p 78 pdf
Second the criminal justice act requires sentencers to give reasons if they do not award financial restitution from the offender, in the form of a compensation order, in any case in which an identifiable victim suffered loss, damage or injury. Hein online ref 8 page 38
Although considerable sums have been distributed to victims of violent crime the scheme has received persistent criticism. Though the scheme has received persistent criticism on a number of score. These include its low public profile (leading to proportionately more claims made on behalf of members of well informed organisations. Hein online ref 8 page 383. In England, David Miers (1983, 1990), quoted by Maguire and Shapland (1997: 218), argued that state compensation is essentially a symbolic act by governments to show their concern for victims, but has little real intent of translating into hard cash. end. With the exception of sexual victimization, most schemes do not provide funds to compensate the victim's emotional pain and suffering. As a result of all these restrictions a large number of victims do not qualify. Furthermore, many are deterred from applying by the lengthy bureaucratic procedures and the investigative process. http://www.erudit.org/revue/crimino/2000/v33/n1/004720ar.pdf end. As a theoretical matter, the civil courts are the proper forum for victims to claim damages. Restitution generally does not encompass broader tort concepts such as damages for pain and suffering.314 Nor do victim's rights laws expand restitution to include these broader damages. http://www.jstor.org/stable/pdfplus/1228587.pdf ref 13 p 75 pdf. It has been criticized for unduly limiting maximum awards, excluding consideration for the complexities of individual cases, failing to take full account of loss earnings, and removing parity between state compensation payments and civil awards. Ref 17 page 480.
To cite another example of victims rights pitted against defendants rights consider the difficulties for sexual assault victims who demand compulsory testing of rapists, these injured parties understandably fear the prospect of contracting HIV/aids so they need to know whether they were exposed to this disease by an infected assailant. Ref 12 page 376 online book
the womens movement articullated and publisized these feelings focusing on rape and how a women is twice victimized by the cjs in a rape trial. in responce many states enacted rape shield laws which fulfilled the victims desire and need to participate in the trial without being put on trial.ref 7 page 249
The establishment of a Commissioner for Victims - with more powers than those proposed by the Government
The British govt has published a domestic violence, crime and victims bill which will establish among others things an independent commissioner for victims and witnesses to investigate complaints from victims who are unhappy with the services they have received from the criminal justice agencies.Ref 16 page 962 pdf 2
Crime victim's needs
One great contribution that victimology had made to the victims study have been his identification of victims needs, and examination of how these needs can be met.
For many victims the fact that they were victimised occasions their first contact with criminal justice system and because of that, even they know what their needs are but they don't know where to get help from. They may have to deal with many different agencies and the sensitivity of these agencies will be important in preventing secondary victimisation. Victim's expression of need is determined in part by cultural back ground, expectations, and knowledge of what services may be available to them.
'While most attention has focused on emotional impact and psychological needs, victim also often need practical help, information and financial support', ref 19 page 431. In Britain when looking at the various initiatives that have been developed within the criminal justice system particularly since the introduction of the victim's charter in 1990 and than the second victim's charter in 1996, it seems at least in the first appearance that a more victim friendly justice system has been created. Ref 18
Respect, recognition and support
in terms of relatively immediate needs the most pressing are likely to include, needing to have property repaired or made secure, attention to physical injuries that require some form of attention, and emotional reassurance or comfort. Ref 19 page 354.Crime takes many forms and victims and their families react in many different ways. Many, who need time to talk through their experience, will welcome the offer of emotional support. They may also need assistance and support in sorting out the many complex issues that arise from crime. They may have to deal with many different agencies and the sensitivity of these agencies will be important in preventing secondary victimisation. Thus employers, insurance companies, health services, housing agencies, schools, social security and the media all need policies and procedures which recognise the effects of crime and the needs of victims, and their practice and training must reflect this. Health services also need to provide appropriate counselling services, particularly for children. The police response to victims reporting crimes is also important. For example, victims of rape should have access to a dedicated examination suite and a choice as to the gender of the examining doctor. The doctor should also be able to provide appropriate advice about health needs20achievements/~/media/C952D4C9E94E4DB0B1BA7128C199B8C5.ashx. Many, who need time to talk through their experience, will welcome the offer of emotional support. They may also need assistance and support in sorting out the many complex issues that arise from crime Ref 18
After a crime, victims will need a range of information. They will need information about home security and compensation and what services are available to them. If they have reported the crime, they will also want to know how this is being dealt with, and what opportunities they have to provide information. Information commonly sought by victims includes advice on crime prevention, insurance and compensation claims.' Crime victims not only need to be notified about events and proceedings in the criminal justice process, they also need to be informed of their legal rights. They need to know, for example, not only that the trial has been scheduled, but also that they have a right to discuss the case with the prosecutor. As expected, there were significant differences on this score between strong- and weak-protection States. It was much more common in the strong-protection States for crime victims to be notified of their various rights and of the availability of services. (See exhibit 2.) For example, almost three-fourths of victims in strong-protection States were informed of the availability of victim services'http://www.ncjrs.gov/pdffiles/173839.pdf
Victims who have suffered injury or loss as a result of a crime are entitled to compensation. Some will need advice about claiming on their insurance policy or obtaining a grant from the Social Fund or, if nothing else is available, help with applying to charitable trusts, all of which Victim Support can provide. Where a crime has been detected, an offender may be required to pay direct compensation either through the courts or, in the case of a young offender, through the restorative justice process. Victim Support believes that such compensation should be paid as a single payment by the court and recovered from the offender, rather than paid in irregular and sometimes incomplete instalments by the offender over a period of many months, as happens under the current system. Such compensation is intended to recognise on behalf of society the experience which victims have suffered and to help the victim to recover from it and to live as normal a life as is possible in the circumstances
Following a crime, victims are likely to have a need for protection, in terms of their property, their
physical safety, their psychological well-being or their privacy. After a burglary the chances of the same house being burgled again are high, so crime prevention advice will be important, along with provision of quick repairs and security measures, particularly for people in rented accommodation. In cases of domestic violence, racially motivated crime or harassment, victims have good reason to fear for their safety. Witnesses may also be concerned about their safety. Whether or not an offender has been detected or prosecuted, such victims and witnesses have a right to protection. Victim Support can guide people through the maze of provisions to ensure that they have access to the best help. In addition the way that other agencies work should take the safety needs of victims into account..
Support through the criminal justice process
For those victims who do experience the criminal justice process, it is vital that no secondary victimisation takes place as a result of unintentional but nevertheless insensitive treatment by criminal justice personnel, or by policies which do not take their needs into account. There is a need for openness as to whether restorative justice aims to reduce the effects of crime on the victim.
There are also various programs that provide special assistance to certain categories of victims, for example, victims of rape, child victims of sexual assault, victims of family violence, etc. Rape crisis centres and shelters for battered women are currently operating in many places. Overall, however, the two most important services provided to crime victims by victims assistance programs are information and moral support. end
Criminological understandings of victims needs is largely reliant on views expressed by victim themselves a source that is necessarily problematic, (Maguire 1991;403-406) ref 19 page 431 Educated, informed and resourceful individuals are better placed to seek out help, be it practical assistance, information or advice on future crime prevention. ref 19 page 431
For those victims who do experience the criminal justice process, it is vital that no secondary victimisation takes place as a result of unintentional but nevertheless insensitive treatment by criminal justice personnel, or by policies which do not take their needs into account
The other area of concern is that many needs that arise from victimization are beyond capacity of support organizations to provide or meet. Many victims and witnesses find that contact with criminal justice is a source of re-victimization. It is important that the victims of crime should be able to call upon practical support at a time when they may be traumatized by the offence.
Victim satisfaction with the police response has been a particular area of concern, since police officers are often the first point of contact that victims have with the criminal justice system, and so a poor experience here is likely to detrimentally impact upon perceptions of the wider system in general. Ref 18