Adrija Ghosh

Introduction

The website of the much criticised ‘Committee for Reforms in Criminal Law’ (see here, here, here, and here)  —  instituted in May, 2020 to recommend wide-ranging reforms to the criminal laws in India — lists ‘victim justice’ and ‘balancing the rights of the victims vis-à-vis the accused’ as two of its guiding principles. It is not surprising therefore, that the committee has been considering the introduction of Victim Impact Statements (VIS) as part of the sentencing stage in a criminal trial. While the questionnaire on procedural reforms, issued by the Committee, includes questions pertaining to victim participation at various stages of the criminal justice process (including bail, suspension or remission or commutation, and parole), in this article, I concern myself with only one specific question: “Should Victim-Impact Statements be considered at the time of sentencing?

What are Victim Impact Statements?

A VIS may be loosely defined as a statement made by the crime victim about the emotional, psychological and physical harms suffered, and financial loss or damage sustained as a result of a crime. The bid to introduce VISs in sentencing generally emerges from the sense of frustration that victims experience due to their passivity as actors within the criminal justice process and on account of secondary victimisation. However, the ambivalence of the role of the victim within an adversarial model of criminal justice has contributed to a lack of clarity as to the aims and purposes of VISs. 

The adversarial criminal justice system imagines two parties, namely, the defendant, and the State. This means that the victims are not given a decision-making role in a criminal trial, unlike in a privatised model of prosecution, whereunder a crime was treated as a private matter and the redressal of harm, i.e., initiation of the criminal proceedings, and punishment, was within the control of the victim or their kith and kin. However, the criminal justice process requires the assistance of victims as witnesses and providers of information. This form of participation is delineated by the needs of the system, meaning that victims participate to the extent that they can provide information that is required for efficient prosecution and punishment. This may also be facilitated by a VIS, which can serve as a statement of facts about the personality of the victim and the harm suffered by them, for the purpose of determining the length of sentence. On the other hand, VIS schemes may imagine a more expressive role for victims, offering an opportunity for catharsis and closure. However, this form of extensive participatory role, with no restrictions on the kind of narrative that a victim can share, may interfere with a system’s adherence to important processual safeguards and the broader goals of a criminal trial.

VISs are defined, prepared and used differently in various jurisdictions. A VIS may be brought directly to court, or may be made available to the court through a police officer, probation officer or the prosecution, who may interview the victim and prepare the VIS. Broadly, VISs are of two types, instrumental and expressive. A VIS is instrumental when it is used to determine the sentence that the accused must serve, based on an assessment of the degree of the accused’s culpability, for which purpose the VIS is deemed relevant as a statement of harm suffered by the victim. VISs can be further categorised as dispositive and non-dispositive, meaning that they may be determinative on the question of sentence or may only be consultative or used in an information-gathering sense. On the other hand, a VIS is expressive and non-dispositive when it has no effect on the quantum of punishment but is aimed at the victim reaping therapeutic benefits from participating in the trial, in a capacity other than that of a witness. This model requires the criminal justice system to only allow the victim to participate and there is no separate obligation to take the statement into consideration when determining the appropriate sentence.

Justifications for Introducing Victim Impact Statements at Sentencing

The goals of VISs and their normative basis are fairly ambiguous. Broadly, however, the justifications for victim participation in sentencing may be categorised as moral, penological, practical, and discursive. The moral argument in favour of victim participation is premised on the recognition of the dignity of the victim. Further, it has been argued that the victims’ inputs provide relevant information that allow sentences to be crafted appropriately, such that the penological goals of retribution, incapacitation, deterrence, and rehabilitation are met. Improvement of the efficiency of the criminal justice system, as a result of victim satisfaction contributing to enhanced victim cooperation in investigation and prosecution, and the psychological and therapeutic benefits stemming from the expression and recognition of the harms that a victim has suffered, have been forwarded as the practical benefits of victim participation in sentencing. The communicative function and radical potential of a VIS, allowing for the introduction of counter hegemonic narratives and powerful rhetoric in a public space, by giving room to hitherto silenced voices, has also been recognised.

Instrumental Model: Irreconcilable With the Goals of Victim Satisfaction and Determinate and Proportionate Sentencing

a. An instrumental conception of VIS contradicts the goal of victim satisfaction

A VIS, in its instrumental conception, even when non-dispositive, treats the victim instrumentally, i.e., as a means to an end. This ‘end’ is the improvement of sentencing outcomes, based on a system’s preferred penological or sentencing goals — retribution or fairness (determination of morally deserved, equitable, and proportionate punishment based on an assessment of seriousness of the offence, dependant on the harm suffered by the victim); incapacitation (determination of length of incarceration based on information supplied by the victim about the danger posed by the accused); deterrence (making the criminal justice system more efficient as a result of greater victim cooperation), or rehabilitation (possible in some cases, where the offender is confronted by the reality of harm caused to the victim by the crime).

This does not appear to be an improvement over status quo, where the victim is treated as a source of information and testimony for the purposes of investigation and prosecution. Within the instrumental model, the victim’s participatory rights are recognised as long as they are ‘useful’ to the criminal justice system for the purpose of determining the gravity of the crime. As such, victims run the risk of re-encountering the sense of alienation faced at trial. Requiring victims to furnish only such information as may be useful for the purpose of effective sentencing — through instructions regarding the allowable content of a VIS or restrictions on the mode of delivery or by virtue of public officials performing a gatekeeping function — assigns control to other actors within the criminal justice system, instead of focusing on the victim’s needs and interests.

Moreover, if the broad rationale underlying the use of VISs instrumentally is the improvement of sentencing outcomes and the VIS is treated as a statement of facts regarding the crime’s effect on the victim, it must be subjected to evidentiary scrutiny in the interest of procedural fairness. In the absence of such scrutiny and corroboration, the same cannot provide the factual basis for sentencing without denuding the rights of the accused. However, ‘narratives of pain’ are inherently unverifiable, not only leading to concerns about the diminution of the rights of the accused, but also raising doubts about the ability of VISs to maximise victim satisfaction. Subjecting VISs to cross-examination or requirements of proof may run at cross-purposes with the goal of increasing victim satisfaction or accrual of benefits to victims, and may result in secondary victimisation due to the lack of an independent voice and the resultant feelings of exclusion. Victims, instead of emoting, will have to or may be forced to restrict their statements to harms that can be objectively proven and demonstrated. This will in turn make VISs as clinical as witness testimony. Thus, victims’ demands will have been co-opted by the system to further its own interests.

b. An instrumental conception of VIS may lead to arbitrariness in sentencing

It is true that criminal law takes into account the general level of harm (even when unforeseen) when first, classifying offences, such as the attempt-crime divide or the difference between ‘involuntary manslaughter as a result of reckless driving’ and ‘reckless driving not resulting in death’; and second, when prescribing graded punishments, such the treatment of rape resulting in death or permanent vegetative state as an aggravated form of rape inviting higher punishment, despite the lack of the intention to cause death.

However, this a priori determination of punishment based on harm resulting from a crime is qualitatively different from the consideration of harms expressed in VISs. VISs express harms that are “emotional, adventitious, and causally remote” and often, long-term. Impact statements which are generally prepared contemporaneously at the stage of sentencing, do not deal with culpability (determined by the defendant’s state of mind, i.e., intent, knowledge, or foreseeability, as gleaned from circumstances of the crime). Rather, they pertain to consequential, unintentional, and unforeseeable harm, based on the victims’ personal characteristics and considerations unrelated to the circumstances of the crime. The latter explicate the seriousness of victimisation, which is not just a function of the crime but also a function of the victim’s own circumstances and access to support services. However, proportionality (even if considered in the retributive sense) only requires the seriousness of the crime to be considered, not the extent of victimisation.

Even if this danger of disproportionate sentencing outcomes has not materialised in reality, as some would suggest, the fear of arbitrariness has not been dispelled. An instrumental conception of VIS assumes that the gravity of a crime is dependent on the harm caused to the victim. Consideration of individual or particular harm to a victim, for the purpose of arriving at the appropriate length of sentence increases capriciousness in sentencing. Every victim will have a different idea about the length of sentence that an accused morally deserves for the harm suffered by them. Victims’ statements may also differ in terms of their perceptions of or reactions to the same level of harm. Even unequal communication skills of victims may illegitimately influence sentencing outcomes. An instrumental VIS may also lead to an examination of the relative blameworthiness or comparative worth of a victim. For instance, a sex worker’s statement may be assessed in an entirely different light than that of any other victim of rape. The assessment of the level of harm caused to the victim is therefore, inherently fraught with ambiguities, and no objective standards exist for measuring harm in emotional and psychological terms. Consequently, the sentence imposed by a court becomes dependent on who the victim is, and how resilient the victim has been in dealing with the impact of the crime. These are circumstances that are often matters of chance. Thus, “the prejudicial tendency of such evidence outweighs its probative value”. This prejudice need not only be understood in terms of severity or length of sentences.

Existing empirical research only suggests that the introduction of VISs has not resulted in an increase in the severity of sentences. However, there does not seem to be any evidence against the argument that VISs may make sentencing capricious (as opposed to severe), i.e., based on extraneous and irrelevant considerations, including status-based factors (caste, class, race, socio-economic background etc.) relevant to both accused and victims.

Expressive Model: Putting the Cart before the Horse?

Empirical research is inconclusive on the ability of VISs to maximise satisfaction with the criminal justice system and provide therapeutic benefits to victims. Individual-level characteristics affect preferences with respect to the criminal justice process. Further, there are bound to be cultural variations in therapeutic benefits. For instance, in India, where a culture of silence, stigma, shame, and victim blaming determines the experience of rape survivors, delivering a VIS may be a very different (and difficult) prospect than elsewhere. Such experiences, even within the same jurisdiction, will be mediated by the race, caste and class of the victim. This also affects the communicative and discursive potential of VIS statements, which is determined in great part by the ‘worth’ of the victim(s) in question and the politics of privilege and exclusion. The reaction of the actors in a courtroom, especially that of the judge and the press, will not be the same for every victim. It has therefore, been argued that the benefits of an expressive model may only accrue to ‘ideal-type’ victims. Hence, it must not be assumed as a matter of course that the introduction of a VIS scheme will ensure universal victim satisfaction with the criminal justice process and emotional recovery for all.

Supporters of the expressive purposes of the VIS argue that a VIS recognises the dignity of the victim and contributes to procedural fairness, by providing all parties affected by a crime an opportunity to be heard. Victims, hitherto sidelined, finally find their experience validated. This argument however, soon becomes one about the perception of fairness (see here for a detailed discussion) and not about actual procedural fairness. In light of this, the problem of subverted expectations must be reckoned with. Given that victim satisfaction is chiefly linked with their perception of the ‘fairness’ of the sentence, any therapeutic benefits are thwarted when victims find that they have no control or influence over the actual sentence. It has been argued that this may be addressed by providing greater clarity regarding the nature, scope, and aims of VISs and by eschewing confusing messaging around the purpose of such statements. Intuitively, this may shift the focus from the fairness of the sentence to that of the process. In such a case, managing victims’ expectations by explaining the realistic range of punishment, the principles underlying and the factors influencing the sentencing process, etc., become administrative tasks that criminal justice officials would be required to perform.

However, having a truly cathartic and therapeutic experience requires actors involved to offer more than just this. This should lead us to wonder if therapeutic benefits should at all be sought within the institutional context of a criminal trial, as presently conceptualised. A criminal trial (including the sentencing hearing) is an administrative process designed to identify the offender, determine legal responsibility, and the extent of culpability. It is overseen by officials trained only in these respects. Private expressions of grief in a public trial, where the main aim is to punish an offender, are incongruous. It may be better to seek these therapeutic benefits by expressing one’s grief before a person trained to respond and help.

Thus, the assumption that an expressive VIS scheme is warranted, and that the goals of the same may be achieved in a criminal trial is faulty. In that sense, we might be putting the cart before the horse by inquiring into ways of accommodating the expressive aims of VISs within the existing design of the criminal justice process. We must enquire into other, more effective methods of achieving the said goals of victims’ participatory rights.  

Conclusion        

Placing the innocent victim (and not the State) on the opposite side of the scale in an adversarial model, and thus, invoking the rhetoric of balance is a useful strategy for the purpose of drawing attention to the purportedly privileged or exalted position occupied by the rights of the accused at the expense of those of the victim. We must problematise such seemingly innocuous and progressive suggestions for reform that invoke the rights of victims in response to the perceived injustice of a purportedly lopsided criminal justice system. Not only do some such reforms eat away at the procedural rights of the accused, they also increase the danger of the proponents of the ‘crime control’ model of criminal justice (characterised by an emphasis on public order, restrictions on individual rights and liberties, and expansion of the State’s coercive power) co-opting the genuine concerns of crime victims for furthering a punitive agenda.

Participatory rights at the stage of sentencing and parole can take a punitive turn. While at its heart the demand for victims’ participatory rights is not always meant to be punitive, it can easily become so; especially when there is limited clarity on the goals of and rationale for victim participation. As demonstrated above, the goals of emotional recovery and therapeutic benefits do not sit well with the information-gathering and consultative role envisaged by an instrumental VIS scheme. Further, the goals of an expressive model may also be better achieved in alternative fora. This article therefore, has attempted to highlight these tensions and demonstrate how the call to involve victims within an adversarial model of criminal justice may be a more fraught conceptual debate than it would appear at first glance.

Adrija Ghosh is a Consultant (Research) at Project 39A