chapter eighteen victim’s rights chapter eighteen victim’s rights rape is the only crime in...

Chapter EighteenVictim’s Rights

Chapter EighteenVictim’s Rights

Rape is the only crime in which the victim becomes the accused and, in reality, it is she Rape is the only crime in which the victim becomes the accused and, in reality, it is she who must prove her good reputation, her mental soundness, and her impeccable who must prove her good reputation, her mental soundness, and her impeccable propriety.propriety.

— — Freda Adler, 1975Freda Adler, 1975

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Restitution• Symbolic Restitution• Victim Compensation• Victim Impact Statement• Victim Service Provider

Key terms to understand for this chapter…

KEY WORDS



OBJECTIVES

After completing this chapter, you should be able to…

• Discuss restitution in historical perspective.• Explain how a victim’s compensation program works.• List the various benefits that victims of crime may

receive from state compensation programs.• Explain the various types of restitution available.• Explain the purpose of victim impact statements and the

issues involved in their use by the courts.• Define and explain the various victims’ service

providers available.



• Understanding how we respond to offenders is an important part of the criminal justice process.– we must also understand how the victim of a crime fits

within this system

• A newly emerging trend is that of victim interaction in the criminal justice system.– during the late 1960s, victims of crime began volunteering

in various victim assistance programs, and speaking out about their treatment in the criminal justice system

– states and the federal government reacted by establishing commissions to study crime and its consequences

Historical Perspective



• The federal government responded by establishing the Law Enforcement Assistance Administration (LEAA).– this agency provided funds to law enforcement for purposes,

including establishment of victim and witness programs.

• In 1975, the LEAA called a meeting in Washington, D.C., of victim advocates to discuss methods of increasing victims’ rights.

• A consequence of this meeting was formation of the National Organization for Victim Assistance (NOVA). – today, NOVA is considered by many to be one of the leading

victim rights organizations in the world

Historical Perspective



• In late 70s & early 80s, the movement foundered. – lack of funding by the federal government caused many

victim organizations & service providers to cease operation

– issues such as professionalism and training caused increasing divisiveness within the movement, which began to splinter into specialized groups that focused on specific issues

• While there was tension among service providers because of diminishing funding & disagreement about specific goals, there was also progress in other areas of the victims’ movement during this period.

Historical PerspectiveGains and Losses



• Sexual assault/domestic violence organizations, such as the National Coalition Against Sexual Assault, were established to address specific needs of those victims.

• Parents of Murdered Children (POMC) was founded by Robert and Charlotte Hullinger in 1978,

• Mothers Against Drunk Driving (MADD) was founded by Candy Lighter in 1980.

• These organizations continue to have an impact on victims’ rights and the victims’ movement.

Historical PerspectiveGains and Losses



• From 1982 - 1986, victims’ organizations began to use media to increase public awareness of victim issues.

• In 1982, President Reagan appointed a Task Force on Victims of Crime, which published a report that has since become a platform for victims’ rights.– in 1984 Congress passed the Victims of Crime Act (VOCA)

• The Office for Victims of Crime (OVC) was created in the Department of Justice to implement the task force’s recommendations. – OVC provides grants to states for programs with direct

services for victims of all crimes

Historical PerspectiveIncreased Public Awareness



• From 1984 to present, the victims’ movement has been characterized by an increase in the professionalism of its advocates and providers. – in earlier years, the victims’ movement was marked by

strong, dynamic leaders with vision and determination

– it has expanded beyond the ability of any one person’sability to influence its direction

– it is now a national movement with a tremendous influenceon local, state, and national politics

• Public awareness of victim issues and victim advocates have become an acknowledged force in modern politics.

Historical PerspectiveIncreased Professionalism



• The 1982 Report of the President’s Task Force on Victims of Crime made key points regarding restitution.– the report recommended legislation requiring judges to order

restitution for property loss & personal injury in all cases

– unless the judge explicitly finds restitution is not appropriate

• It went on to point out that while restitution is a proper goal to be pursued, it has limitations.– it cannot be ordered unless a perpetrator is caught & convicted

– even if ordered, an offender often has no resources to pay

– perpetrators who can pay may take years to pay the balance

– in the interim, the victim is left to bear the cost of the crime

Restitution



• As a result of this report and other factors, a number of laws have been enacted addressing issues of restitution. – one of the reasons these laws have been enacted may be

the change in perception regarding restitution

– society began to view restitution not as a way to punish,but as a method of bringing justice to victims

• Other authorities argue that laws mandating restitution have been passed as “politically correct.”– with little or no thought given to their effect, and resulting

in a system that does not deliver on its promise of making victims whole

Restitution



• Victims become more disillusioned with the system when they learn the court order mandating the offender to pay restitution carries no weight or authority.

• Even the definition of restitution causes conflict. – the victim may view restitution as a way to regain financial

loss and punish the offender

– the court may see it as a method of instilling responsibilityin the offender

– the agency charged with collecting restitution may view itas simply one more task for an overburdened department

Restitution



• Traditionally, restitution is a court-ordered payment of compensation by a defendant to the victim for injuries suffered as a result of the defendant’s criminal act.

• By the late 30s, several states passed laws that allowed restitution, viewing it as part of the correctional process.

• In the 70s & 80s, the victims’ movement argued that restitution should be viewed as protecting victims from financial hardship rather than punishing an offender.

• The modern concept of restitution system serves avariety of purposes in the administration of justice.

Restitution



• Restitution can now be ordered for a wide variety of criminal acts, including sex crimes, child sexual abuse, telemarketing fraud, and domestic violence.– also for lost wages, child care & expenses involved in

attending court hearings

• The most common form of restitution is financial, requiring the offender to make payments directly tothe victim of the crime.

• Financial community restitution requires the offender to make payments to a community agency such as a restitution center, which then pays the victim.

RestitutionTypes



• Individual service restitution requires the offender to perform a service for the victim. – an offender might be required to repair or replace property

he/she damaged during the commission of the crime

• Community service restitution requires the offender to perform some beneficial service to the community. – in this type, sometimes referred to as symbolic restitution,

society serves as the symbolic victim

• Some states authorize restitution fines, which are deposited in the state crime victim compensation fund. – and then become part of the fund’s operating expenses

RestitutionTypes



• Restitution may be tied to different aspects of sentence, and is frequently imposed at the earliest possible time.– many plea agreements call for restitution, and payment

as a condition of probation is very common

• Many states now require inmates to work while incarcerated, for which they receive a minimal amount.– several states have required that a portion of that amount,

no matter how small, be set aside for victim restitution

• States are implementing policies of restitution as a condition of parole, and laws providing that restitution also be considered a civil order for remuneration.

RestitutionTypes



• Restitution is a complex process involving a number of different professionals in the criminal justice system.– unfortunately, usually overworked and underbudgeted

– many of them claim collecting & disbursing restitution is someone else’s job

• This leads to poor communications and diminished accountability within the criminal justice system and, poor consultation and communication with victims.

• Judges may impose insufficient or excessive restitution orders, because there may not be one single agency coordinating or controlling restitution.

RestitutionProblems



• Many victims feel dissatisfied with the process. – some believe the amount imposed insufficient

– others feel powerless as they are to be directed from oneagency to another in search of answers

• Occasionally, multiple perpetrators are involved in one crime against a single victim. – if one of the perpetrators is granted immunity to testify, the

victim will not be able to receive restitution from him/her

• Some crimes involve one perpetrator & multiple victims. – deciding which victim should receive a perpetrator’s

limited funds can create great difficulties

RestitutionProblems



• Victims often suffer physical injury, emotional and mental trauma, and financial loss as a result of a crime.– financial loss to victims can cause additional stress as they

worry about paying hospital bills, physical recovery from their injuries, and their ability to return to work

• Crime victim compensation programs exist to provide assistance to victims & reduce some of these stressors. – these programs exist in all fifty states & D.C.

• They can help victims preserve their financial stability and dignity and thereby assist in the recovery process.

Compensation



• The VOCA, Crime Victims Fund is supported by revenues from federal offenders, based upon fines, penalty assessments, and forfeited appearance bonds. – while deposits fluctuate, the total amount deposited in the

fund from its inception to 2004 was more than $3.1 billion

• Some of this money is available to the Administrative Office of the US Courts, which established and administers a centralized National Fine Center. – this center receives all the fines, assessments, and penalties

and collects money from those who failed to pay on time

• VOCA has special assessments for individual crimes.

Compensation



• Victim compensation is direct payment on behalf of a victim for crime-related expenses such as medical bills, mental health counseling, funeral costs & lost wages.

• Victim assistance includes crisis intervention services, counseling, transportation to court, temporary housing, advocacy, and criminal justice support.

• VOCA has a “Son of Sam” provision that requiresroyalties from literary rights or other profits derivedof a crime to be deposited in the Crime Victims Fund.– and held to satisfy any civil judgment a victim may obtain

Compensation



• California established the first compensation program in 1965, and within three years, five other states created similar programs.

• Every state administers a crime victim compensation program through a central agency, with a median annual payout per state of approximately $2 million.

• Agencies are organized & funded statewide, with administration, claims investigation, and decision making handled by each state’s headquarters.

• Most are small agencies employing a handful of staff.

CompensationProgram Operation



• Not all victims are eligible for state compensation. • In general, states limit compensation to victims who

suffered injuries as a result of the criminal conduct of another and to survivors of homicide victims.

• Most of the states allow the parents of deceased victims to collect compensation.

• A majority of states disallow some classes of persons from eligibility, such firefighters and police officers from receiving victim compensation awards. – they are eligible for programs such as worker’s compensation

CompensationEligibility



• Some states exclude convicted prisoners from filing claims while incarcerated, or serving probation/parole.

• VOCA requires states to provide compensation to nonresidents victimized within a state as well as to persons who are subject to federal jurisdiction.– such as Native Americans

• Residents of one state who are victimized in another state are eligible in their home state if the state where the crime occurred does not allow those victims compensation.

CompensationEligibility



• In the past, domestic violence victims were summarily denied compensation.

• Many states denied claims because of belief the victim contributed to injuries by staying in the relationship.– or an award would benefit the wrongdoer if he/she was

still living with the victim

• Similar to changes in attitude toward victims of drunk driving, altered perception of domestic violence victims resulted in a change in policy in many states.

• The great majority of states now include domestic violence as a compensable crime.

CompensationEligibility - Domestic Violence



• A new series of rights is emerging in our judicial system, which confer upon a victim or relatives of deceased victims opportunity to speak out or be heard during various phases of the criminal justice process.

• One of the most controversial “rights” bestowed upon victims is the victim impact statement, which presents the victim’s point of view to the sentencing authority– providing sentencing authority with all relevant information

is not a new phenomenon in the criminal justice system

• For many years, courts have accepted information regarding the defendant prior to the sentencing.

Victim Impact Statements



• Traditionally, presentence reports have been used by judges to determine proper punishment for defendants.

• The report, normally prepared by a probation officer, details the defendant’s background, education, and criminal record.

• Victim impact evidence is now admitted in sentencingfor a variety of criminal acts, including family violence.

• The law on admissibility and use of victim impact statements is based on use of this evidence duringdeath penalty cases.

Victim Impact Statements



• Use of victim impact evidence during the sentencing phase of a criminal raises serious constitutional issues.

• The Supreme Court initially addressed use of victim impact statements in a sentencing jury’s determinationin Booth v. Maryland, a murder case.– the trial judge in Booth allowed the jury to consider an

impact statement detailing the family’s and the community’s respect and admiration for the victims as well as the impactof the murder on the victims’ family

• The Court, in reversing the death sentence, held it impermissible to allow the jury access to such evidence.

Victim Impact StatementsConstitutional Issues - Booth v. Maryland



• South Carolina v. Gathers followed the rationale of Booth and held unconstitutional the death penalty based on inflammatory prosecutorial remarks.

• In Payne v. Tennessee, the court completely reversed itself and allowed to stand a death sentence that was based in part on evidence in a victim impact statement.

• Thus, the Supreme Court overruled Booth and Gathers to the extent they prohibited introduction of evidence or argument regarding the impact of the crime on the victim, families, and community.

Victim Impact StatementsConstitutional Issues



• In addition, the Court’s decision clearly stated that the decision regarding the admission of such evidence was the prerogative of the individual states.

• The decision generated controversy in the academic world when a series of articles appeared condemning the Court for both allowing victim impact evidence and appearing to repudiate its acceptance of stare decisis.

• Although the dissent and certain individuals within the academic community may condemn the majority’s opinion, it is now clearly the law of the land.




• Fundamental fairness accepts the concept that due process is a general command that requires states to provide the defendant with a fair trial

• Victim impact evidence is now an accepted part of the judicial process.

• The ability of a victim of family violence to inform the court of the impact of the offender’s acts on his or her life can only benefit the victim and continue to educate the public regarding the dynamics of violence.




• Historically, the victim has been a forgotten part of the criminal justice process.

• The victims' rights movement in the US began in the late 1970s.

• In 1982, President Ronald Reagan appointed a Task Force on Victims of Crime.

• In 1984, the VOCA was enacted.

Important topics for this chapter…

SUMMARY



• The Final Report of the Task Force recommended that an order of restitution be required in sentencing an individual convicted of a crime against an individual.

• Today, restitution can now be ordered for a wide variety of criminal acts.

• Most states have some form of victim compensation program to reduce the trauma of victimization.

• Victims have the right to present an impact statement in a criminal trial during the sentencing procedures.

Important topics for this chapter…

SUMMARY(cont.)

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