Adversarial Justice and Victims' Rights

Reconceptualising the Role of Sexual Assault Victims

Mary Iliadis

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9780429536953
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Adversarial Justice and Victims' Rights explores the extent to which reforms that offer victims enhanced rights to information and participation across England and Wales, Ireland and South Australia can address sexual assault victims' procedural and substantive justice concerns.

The rights, status and treatment of sexual assault victims has emerged as a significant 21st-century concern, occupying the forefront of legal commentary on international policy agendas. Informed by the voices of 26 high-level criminal justice professionals, legal stakeholders and victim support workers, and a quantitative dataset, this book considers whether legal representation can address some of the problems of the prosecution process for sexual assault victims in Victoria and, indeed, in other adversarial jurisdictions that employ similar legislative frameworks. While acknowledging the value of victim-focused reforms, the book contends that cultural changes to the ways in which sexual assault victims are perceived and treated are necessary in order to improve victims' experiences of the legal process. Reconceptualising the role of sexual assault victims from 'witnesses' to 'participants' will also increase the likelihood that victims' rights and interests will be considered alongside those of the state and the accused. Situating its findings within broader debates about the role, rights and treatment of sexual assault victims in adversarial justice systems, the book outlines prospects for the transfer of policy and practice between jurisdictions.

Adversarial Justice and Victims' Rights will be of great interest to academic and policy stakeholders engaged in criminology, law and socio-legal studies, as well as students researching sexual violence and victims' access to justice.

1 Introduction

The status of the victim is simply that of evidentiary cannon fodder, of witness or claimant, not of citizen with participation rights and obligations.

(Braithwaite 1993: 36)

The criminal justice system’s treatment of women who allege rape has not significantly improved, and in some respects may be worse than before [victim-focused] … reforms were enacted.

(Bronitt 1998: 42)

[Victims] are denied any form of proactive participation in the trial since their interests are deemed to fall outside the remit of the criminal trial as a forum for the resolution of the dispute between the state and the accused.

(Doak 2005: 299)

Originally the adversarial system position[ed] victims … outside of a house, looking through a window and watching a black knight [the defence] and a white knight [the prosecutor] clash with one another and fight in a conflict.… [With] victims’ rights initially, we open a window so that the victim – and this is where we get the information rights – could hear what was going on and gather some information. Now we have given victims some procedural rights, such as the right to participate in charge bargaining to the extent that they must be consulted. There is no obligation, though, to do anything other than to consult, and there are differences about people’s understanding of what consultation is. We have given victims the right to make impact statements [and] … the right to make submissions at a parole board. So we have effectively opened the window and allowed them to step inside and where [there] are key points we think they should be heard, we invite them to be heard.

(James, leading victims’ rights advocate)

The rights, status and plight of crime victims have emerged as a significant 21st-century concern, occupying the forefront of legal commentary on international policy agendas. Consensus has emerged around the need to further consolidate the rights of victims to advance their standing and access to justice, although questions prevail as to how victims’ rights can be secured in a system based on adversarial exchange between the state and the accused. Conceptions of fairness within adversarial justice systems are premised on the protection of an accused person’s due process rights, against the might of the state, which prosecutes in the public interest. Criminal procedure thus sets out the rights of the accused and, until recently, the procedure has said very little about the rights of victims. Even so, procedural rights protections afforded to accused people are largely focused on eliciting aspects of probative evidence from vulnerable victims, including victims of sexual violence. This has led to an appetite for reform that better promotes the protection, interests and rights of victims alongside those of the state and the accused – a perspective Lord Steyn describes as ‘a triangulation of interests’ (emphasis added, Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91, 118).

Over the past three decades, victim-focused reforms have commonly centred on the particular needs of vulnerable and at-risk victims, including victims of sexual offences, and the imperative to better support and protect their interests against adversative court processes. Recognition of the unique needs of sexual assault victims espouses the broader aims of adversarial systems, ‘where attaining justice is traditionally associated with equality, fairness and respect for individual rights, encompassing those of both the victim and accused’ (Iliadis & Flynn 2018: 551). The integrity of criminal prosecution processes, as noted by Kirchengast, Iliadis and O’Connell (2019: 2), more broadly relies upon ‘victims’ confidence that the reporting of offences will not cause further secondary harm, or exacerbate existing harm’. Indeed, research has consistently shown that consideration of victims and their interests promotes the shift in a victim’s status from ‘peripheral to integral’ (ibid. 8), enabling victims to feel like ‘important constituents in the justice system’ (ibid. 2).

This book considers how three different victim-focused reforms operating across England and Wales, Ireland and South Australia can meet the participatory and procedural justice¹ needs of sexual assault victims, while maintaining the integrity and adversarial character of criminal justice. Each reform under examination offers victims enhanced information and participation rights and seeks to advance the interests and standing of victims in the criminal justice system. This book explores the extent to which each reform meets victims’ procedural justice needs from the criminal prosecution process, specifically in relation to the elements of information, validation, voice and control, which are discussed later in this chapter.

The three reforms under focus include the Victims’ Right to Review (VRR) scheme in England and Wales; independent legal representation (ILR) for sexual assault victims in Ireland under section 34 of the Sex Offenders Act 2001 (Irl); and the powers of the South Australian Commissioner for Victims’ Rights (SACVR) to provide ILR to victims in circumstances where their rights, interests or privacy are compromised or not adequately represented in legal proceedings. While the reforms analysed in England and Wales and South Australia are theoretically available to all crime victims, each reform is analysed in relation to sexual assault victims and the extent to which it may enable victims to feel they have attained procedural justice, and perhaps even enhanced substantive outcomes.

By focusing on reforms that advance victims’ information and participation rights, the book also considers more contentious proposals for reform pertaining to whether there is scope for and merit in introducing ILR for sexual assault victims throughout Victoria’s² criminal prosecution process to enhance victims’ standing in proceedings. In doing so, the book explores whether ILR can help to address some of the key problems identified by the critiques of the prosecution process for sexual assault victims in Victoria (which are discussed in more detail later in this chapter and in Chapter 2), and, indeed, in other adversarial jurisdictions that employ similar legislative frameworks. At the same time, this book considers whether a stronger case for enhancing sexual assault victims’ rights in Victoria may be made based on clearly defined information or participation rights that do not grant victims ‘party’ status to proceedings, such as those rights available to victims in England and Wales, Ireland and South Australia.

It is well documented in the literature that victims of crime experience difficulties negotiating access to justice within adversarial systems as their voices in proceedings are constrained due to their role as a witness (Braun 2019; Doak 2005; Holder 2018). As explored later in this chapter, however, such difficulties are often heightened for victims of sexual offences due to the nature of the offending and its protracted harms. Prospects for reform have consequently sought to address the unique needs of sexual offence victims through offering appropriate protections and supports that strengthen their evidence and confidence in the criminal justice system. The imperative to further support and protect victims, and to advance their standing and access to justice, is reflected in transnational directives. For example, the Council of Europe’s Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence requires that ‘measures … be adopted to protect the privacy’ of complainants (Article 56(1)(f)), including ‘protection … from intimidation, retaliation and repeat victimisation’ (Article 56(1)(a)). It also requires Member States to enact legislative changes to enable victims ‘to be heard, to supply evidence and have their views, needs and concerns presented, directly or through an intermediary, and considered’ (Article 56(1)(d), Council of Europe 2011). These provisions are encouraged alongside the need to ‘provide victims with appropriate support services so that their rights and interests are duly presented and taken into account’ (Article 56(10)(e), Council of Europe 2011). Within the current adversarial framework, however, there are increasing concerns around the contempt for sexual assault victims’ rights and interests, especially insofar as their ‘witness’ status does not sufficiently safeguard them from unduly hostile criminal proceedings.

Disregard for victims in adversarial justice systems was not always present within the criminal justice process. Historically, victims of crime maintained an active role in determining and administering justice (Braun 2019; Holder 2018). This practice was commonplace in England and Wales, and replicated in other jurisdictions bound by similar legislative frameworks, such as Australia (Holder 2018: 5). By the 20th century, however, victims of crime were perceived as ‘instruments for institutional ends’ and criminal justice became situated within a public realm controlled by agents of the state (ibid.). The rationale underpinning this shift – which espoused public and open justice ideals and protection of an accused person’s rights to a fair and impartial trial – limited a victim’s role to that of a mere witness to proceedings (Booth & Carrington 2018; Doak 2005). Victim interests have therefore been positioned as secondary to those of the state and the accused, and their views are not legally represented unless within ‘a passive context, [either] as [a] police informant or as [a] witness for the prosecution’ (Kirchengast 2013: 569).

Since the late 20th century, however, crime victims have questioned how ‘justice’ is ‘constituted and considered’ (Holder 2018: 5). Knowing that the system relies on victims to report crime and cooperate as a witness for the prosecution, victims and victim advocates have critiqued their general exclusion (Holder 2018). Feminist advocates and victims’ rights groups have also challenged the social, legal and political contexts that shape responses to victims, particularly victims of sexual offences, which has led to significant shifts in how victims are perceived and included in the criminal justice system as a result (Doak 2005; Iliadis 2019; Kirchengast, Iliadis & O’Connell 2019). These changes have manifested in improvements to the social and service rights of victims through enhanced access to information, compensation schemes, Victim Impact Statements (VISs)³ and protective measures, such as the use of video testimony and restrictions on the sorts of questions that can be asked of sexual assault victims when testifying in trials (Doak 2005: 294; Iliadis & Flynn 2018: 553; Kirchengast, Iliadis & O’Connell 2019: 9).⁴

Such changes are considered to contribute positively towards the victim’s sense of achieving procedural justice, providing them with the opportunity to feel like ‘integral players … rather than mere bystanders’ in the prosecution process (O’Connell 2012: 1). For sexual assault victims in particular, these reforms provide a mechanism to potentially reduce the likelihood of experiencing secondary victimisation, also referred to as the ‘second injury’ – whereby ‘the psychological impact of victimisation can be considerably exacerbated by … the criminal justice system’ (Doak 2008: 51; see also Ellison 2007; Jordan 2001). As noted by Doak (2008: 54), affording credence to victims’ rights and needs is ‘not only within the victim’s interest, but also in the public interest’ to ensure ‘that victims feel able to enter into the criminal justice system’ without fear of the legal process. Significantly, the movement towards acknowledging victims’ rights and interests has required a reconceptualisation of the ‘traditional’ legal process, in that consideration must be given ‘to preserving all trial participants’ rights … not just [those of] the defendant’ (Gans et al. 2011: 381).⁵ The emergence of victim-oriented reforms has thus been regarded as a way to better acknowledge and include victim interests, alongside those of the accused and the state. At the same time, however, victims’ rights and interests continue to be reflected in conservative adversarial reform that has focused on enhancing the provision of information to victims, and, to a more limited extent, victim participation, and this has raised questions over the extent of the positive impacts the reforms have had on victims to date as they continue to occupy the status of a witness to proceedings.

Adversarial justice

The adversarial criminal justice system is a key feature of common law jurisdictions (Brienen & Hoegen 2001).⁶ This system, as Flynn and Hodgson (2017: 6) contend, seeks to uphold the notions of fairness, equality and respect for individual rights. A core feature of the adversarial criminal justice system is that crime is contested between the state prosecutor and the accused – both of whom present their cases and define the issues for the jury to consider (Gleeson 2001 cited in Doggett v The Queen 2001: 1). The burden of proof⁷ is placed on the state prosecutor, who pursues the investigation and prosecution in the public interest, and witnesses, including those who allege crime, give oral evidence in court⁸ and are subject to cross-examination (Booth, Kaye & Wangmann 2019; Victorian Law Reform Commission [VLRC] 2016). Within this context, the judge assumes a relatively passive role and is not involved in investigating the alleged offence(s), deciding what charge(s) are...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Foreword
• Acknowledgements
• List of abbreviations
• 1 Introduction
• 2 Tracing the interest in victims, victims’ rights and sexual assault law reform
• 3 Procedural justice
• 4 Providing a check on prosecutorial decision-making: an analysis of the VRR reform
• 5 Separate legal representation for victims under section 34 of the Sex Offenders Act 2001 (Irl)
• 6 Victim participation through the SACVR
• 7 The prospect of ILR for sexual assault victims within Victoria’s criminal prosecution process
• 8 Concluding comments
• Appendices
• References
• Index