Legal Opinion: victim impact statement system is flawed

The victim impact statement has become a familiar part of criminal trials. After the sombre formalities of the trial process, the injured party is finally shown as a human being rather than a piece of evidence.

It allows the court and society to see the effect the crime had on the person and their family and aids the judge in deciding on an accurate and fair sentence which reflects the damage done.

That’s the idea anyway. In reality the victim impact statement, at best, fools victims into thinking they can influence punishments and at worst allows for inconsistent and unfair sentencing.

Ireland introduced victim impact statements in 1993 in response to the victim's rights movement which gained momentum in the 1980s. Under the current system, victims of violent crime may choose, either in person or through a representative, to inform the court of the effect the crime had on them physically, psychologically and financially. If the victim is deceased, a relative or partner can make a statement on the effect of the loss of that person. The judge must take the statement into account in sentencing.

The current system is the subject of regular debate in legal circles but this rarely spills over into the public sphere; possibly because arguing for a limitation of a victim’s rights isn’t likely to win many admirers.

Harsher sentence

However, the problems are clear to see. First there is the issue of unevenness.

John and Mick are randomly assaulted on the street and their attackers are later convicted. John was already a vulnerable person; he suffers from anxiety and has no family. Mick is more psychologically robust and is able to rely on the support of loved ones in the aftermath of the attack.

Therefore, it is likely the crime had a far greater impact on John and as a result his victim impact statement is likely to be far more damning than Mick’s. Going by the legislation, this suggests John’s attacker should get a harsher sentence.

Both assaults were random. Should John’s attacker be further punished because, through the luck of the draw, his target was more vulnerable?

Or to look at it another way, should an attacker receive a lighter sentence because his target happened to be the type of person who can shake things off more easily than most?

The issue is magnified when the case involves the death of the victim, for example in cases of manslaughter or dangerous driving causing death.

Imagine a case of a family man who is killed by a drunk driver. His wife tells the court what a good father and partner he was and how he lived for his volunteer work and his local GAA club.

The same drunk driver might have also killed another man who is estranged from his family and has no one to make a victim impact statement about his death.

Should the sentence for both crimes be the same? Or is killing the family man a worse crime because someone was there to tell his story to the court? Is his life worth more? Ostensibly, the victim impact statement system suggests it is.

Emotional impact

The problem of inconsistency extends to how the statement itself is given. A victim can elect to read the statement themselves or have a garda or prosecuting barrister read it for them. The emotional impact of the victim addressing the court, often in a highly emotional manner, is vastly different to a third party dispassionately reading a statement.

Judges are supposed to disregard such emotionality but they are human. It is not entirely beyond the realms of possibility that some of them might, knowingly or otherwise, be swayed by a particularly moving address from a victim.

The victim impact statement also does a disservice to victims themselves by allowing them to believe they are having a significant input into the sentencing process when research suggests this is usually not the case. Most studies conclude the statements have little or no effect on the sentence given, despite the legislation requiring it to be taken into account.

This leaves us in a situation where victims are being misled into thinking they have an input into sentencing. And if they do have an input, that input is inconsistent from case to case, depending on circumstances. As it stands, the victim impact statement is either a misleading sop towards victim’s rights or a potentially grossly unfair influence on sentencing procedure.

It should be acknowledged that research in the area also suggests victim impact statements can have a valuable cathartic effect for victims and can offer a form of closure after the arduous criminal justice process. Any changes to the system could retain these benefits simply by allowing the person to give their statement directly after sentencing .

The court, including the accused, would be shown the human face behind the offence while avoiding unrealistic impressions on the part of the victims or improper influence on sentencing.