This module is a resource for lecturers
Topic three: The right of victims to an adequate response to their needs
An important consideration applying to victims' needs, in general, is the fact that victims' needs change over time. Some needs exist immediately after the offence, such as for instance the need to secure property: when a door has been broken open by a burglar, it may be very important for the person living in the apartment to get it fixed as a first step so that they can sleep that night. Other needs, such as the desire to make one's voice heard during criminal proceedings, arise during the criminal justice process. It should be noted that other needs may arise even after this process has been completed.
The United Nations Declaration matches these victims' needs with a range of rights, including the right to respect and recognition, the right to protection; access to justice and a fair treatment; assistance and support; and redress for the negative effects of crime in form of restitution and compensation.
Respect and Recognition
Under the heading access to justice and fair treatment, the United Nations Declaration states: " Victims should be treated with compassion and respect for their dignity."
In fact, the first and most fundamental need for victims is recognition. Human dignity is a fundamental right. Treating victims with compassion and with respect for their dignity is a fundamental aspect of providing victims with justice. For many victims, it is important that they are recognized as a victim, and that their suffering as the result of a wrongful act against them is acknowledged.
Victims should be treated with dignity and respect in all interactions with the police or investigating authorities, legal professionals, judicial staff and others involved in the judicial process: procedures and communications should be "victim sensitive" and those interacting with victims should seek to act with empathy and understanding for their individual situation. The same applies in terms of the way in which victim support or social services should treat victims. Examples of disrespectful treatment include setting a trial date without consulting the victim first so that it may be impossible for the victim to attend; not providing the victim with privacy during an examination; or questioning the victim in an inappropriate or blaming way. Respectful treatment is particularly important for vulnerable victims, including for: children; victims of sexual and gender-based violence; victims of domestic violence; the elderly; and disabled persons, for example. It is equally important that indirect victims, including family members, are treated with respect.
All professionals in regular contact with victims should receive training on victims' rights and be given the appropriate tools to carry out individual needs assessments to determine the needs and status of individual victims.
The United Nations Declaration uses the term "victim" in a factual sense, to reflect the harm caused by the crime or abuse of power. Some individuals and groups representing those individuals who have been subjected to crime and violence prefer to use the term "survivor", particularly in cases regarding serious physical or sexual violence. For some, the term survivor imparts a sense that the person is an active agent of his or her own healing process, perhaps, at times, contrasted with a sense that the term victim denotes that the individual is passive, or has little control or agency in the aftermath of a crime or abuse of power. At the same time, the term victim clearly delineates that the full responsibility of the act lies with the offender/s, which is important for many victims, who may face victim-blaming or self-doubt. These are some of the possible views that are individually held by persons affected by crime. Individuals should be able to choose the term that they feel most comfortable with. While the United Nations Declaration uses the term victim, these apply equally to individuals who may choose to identify as survivors.
The United Nations Declaration contains a range of provisions to match these needs with obligations of governments to provide responses and rights to victims.
Victims have a range of protection needs. The United Nations 1985 Declaration calls on States to implement measures to "minimize the inconvenience for victims" in the judicial and administrative process, to " protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation."
Victims need to be protected in their privacy. Their experience should be treated with confidentiality by all stakeholders involved. One can easily imagine that for a victim reading about the ordeal of the offence in a news report may be a form of revictimization. This requires legislation and codes of conduct for the media, as well as mechanisms for accountability for breaches.
Criminal justice professionals also bear obligations regarding the protection of victims. As the United Nations Declaration clearly states, victims need to be protected from further criminal acts, including retaliation and intimidation. Victims may be at ongoing risk, or may perceive that they are at ongoing risk, from both the offender and also the friends and supporters of the offender, or those potentially copying the offence. For victims of repeat or chronic violence, including domestic violence, security may be a primary concern. In fact, victims may not feel able to report such crimes if they perceive that their protection cannot be guaranteed.
Victims' protection requires that thorough risk assessments be conducted. The police play an important role in carrying out such assessments, as do correctional services once offenders are sentenced. Victims need to be protected against the risk of recurrent victimization or revictimization. In several countries, protocols on risk assessment have been developed in response to specific types of crimes, such as, for instance: stalking; domestic violence; and sexual offences (Hart and Kropp, 2000).
Assessing the risk of recidivism, i.e. the risk of whether an offender will repeat his or her crime, is complex, and requires a screening of both the factors that could potentially increase the risk of reoffending, as well as risk reduction strategies. The absence of risk factors does not mean, in all cases, that an offender is free from the risk of reoffending. While an individual's future behaviours cannot be predicted with certainty, a shared assessment conducted by a range of professionals, including law enforcement officers, psychologists, correction officers etc. and adequate and responsive risk mitigation strategies can minimize the risk of reoffending (Bonta, Blais, and Wilson, 2014). For further information on the needs of prisoners, see Module 6 on Prison Reform.
The victim also needs to be protected from secondary victimization, which is the harm that can be caused by those who respond to the victim, including in the pursuit for justice (Campbell and Raja, 1999; William, 2012). Adverse responses may arise within institutional settings, both within the criminal justice system and other settings including health care settings, and secondary victimization may occur through the media, or through the inadvertent actions or comments of friends, colleagues, etc. Taken together, these contexts present the risk that victims may be retraumatized by the attitudes or modes of questioning that may arise once their status of being a victim becomes known. For example, in police, judicial, and health settings a victim's credibility may be questioned, they could be blamed for their behaviours, and their reactions of anger or anxiety may be misinterpreted. Secondary victimization can also take place when the media does not protect the victim's identity or information and, instead, media coverages focuses unduly on the victim's action/s or inaction/s, rather than those of the wrongdoer. Redressing the risks of secondary victimization requires an understanding of victims' needs, and the impact of crime, at both the community and professional level. Examples of secondary victimization include, for instance: treating victims with disbelief; victim blaming; or inappropriate and insensitive behaviour or language by those in contact with the victim. Medical examinations can be highly traumatic for victims of sexual violence, for example.
Victims frequently experience secondary victimization during the criminal justice process. To avoid harm caused by, for instance, repeated and insensitive interviewing or having to face the offender in the same waiting area before trial in court, it is important to ensure protection of victims throughout criminal investigations and court proceedings. This protection is essential for particularly vulnerable victims such as children. It is also important to adequately train criminal justice practitioners on how to respectfully deal with victims and to teach them about victims' needs resulting from the impact of crime. In fact, scholarship on this subject has identified that training and guidelines in multisectoral institutions that work with victims has the potential to reduce the risk of secondary victimization (Rarley and Hessic, 2017).
Support and Assistance
United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)
Provisions on Assistance (paras. 14-17)
"Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.
Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.
Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.
In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 (i.e. the non-discrimination clause) above."
Victims are generally in need of support and assistance, and this is often fundamental to their recovery. Victims may need emotional, psychological, financial, legal or practical assistance. The provision of early support can help to prevent bigger and more complex problems that victims may face in the future. A minor trauma that was prevented from becoming Post-Traumatic Stress Disorder (PTSD) could mean that the victim did not go on to experience depression, substance misuse, loss of employment and debt, for example.
Victims often need longer term support, including (and depending on the severity of the crime) help with training to commence new employment or help moving home (particularly relevant to victims of stalking or domestic violence). There are a range of actors that can and should provide support, including in particular, actors within the criminal justice system, victim assistance services but also professionals from the health and education system and from faith-based organizations.
Access to Justice and fair treatment
United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)
Access to justice and fair treatment (paras. 4-6)
"4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to the needs
of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;
(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims."
In terms of rights in the context of the criminal justice system, the victim's right to access to justice and fair treatment is a central obligation by governments towards victims of crime.
Access to a procedural form of justice and fairness of proceedings implies the equitable application of justice procedures to both victims and offenders equally, including on the following key dimensions:
- Making your voice heard: the opportunity to be heard.
- Timeliness: ensuring that proceedings unfold in an efficient way that respects the victim's need for closure.
- Respect and dignity: the preservation of dignity and self-respect in interactions with law enforcement officers, prosecutors, judges, attorneys, and court staff.
- Neutrality: an unbiased decision-making process.
- Trust: a process that inspires trust of both the victim and the offender.
- Understanding: enabling the victim and the offender to fully comprehend the case, the process and its outcomes, including any court orders.
- Helpfulness: communicating and implementing the belief that justice system actors have an interest in the needs and personal situation of both the victims and the defendants.
One particularly important procedural right of victims is the right to information. This right implies that the victim should be informed at the earliest stage and throughout the criminal justice process, including on procedures, the victim's role (if any) in these procedures, reports on progress (explaining any delays), and outcomes of criminal proceedings. Victims should be provided with information about where they can get further assistance including protection, support, legal aid and compensation. It is important to ensure that victims understand the information that is given to them and they should be provided with a contact person with whom to discuss or clarify the information provided.
Procedural justice can be strengthened by specific measures, including for instance:
- training to criminal justice system stakeholders on trauma-informed practices and cultural competency;
- creating safe spaces for victims whether at the police office, at the prosecutor's office or at the court house;
- victim's advocates that help victims navigate processes;
- written materials available in multiple languages, and interpretation services for victims with limited language proficiency; and
- emotional support and referral mechanisms that help victims to access services, including medical and psychological assistance, and social supports.
Compensation and restitution
Victims of crime may encounter a variety of losses as a result of the crime.
The United Nations 1985 Declaration stipulates in Article 8 that "offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred due to the victimization, the provision of services and the restoration of rights." In some countries, victims can ask the offender to make restitution for the loss as part of the criminal trial, while elsewhere such restitution is awarded separately from the trial, for instance as part of civil proceedings (Wemmers, 2017).
Article 12 of the United Nations 1985 Declaration specifies that ' when compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization."
From the text of the United Nations 1985 Declaration it is clear that it is the primary obligation of the offender, rather than the State, to redress the impact of crime vis-à-vis the victim. However, there are many circumstances when this is not possible, or does not occur in practice. This includes all cases where the offender is not identified (Miers, 2014), or when the victims could claim damage to the offender(s) but he or she do not have the necessary funds. Moreover, civil litigation may often be time consuming, costly and the outcome is uncertain.
The United Nations 1985 Declaration encourages the establishment, strengthening and expansion of national funds for compensation to victims and indeed, compensation schemes have been set up by several States (Wemmers, 2012) and can take different forms, depending on States' provisions. For instance, in some countries reporting of the crime as part of the criminal justice process is necessary if victims seek to benefit from a victims' compensation scheme, while in other countries victims who decide not to report the crime may also benefit.
It has been argued that efficient and tailored compensation schemes can be cost effective, rather than a burden for the State (Miers, 2014), because they can reduce costs that may be associated with the long-term consequences of crime. Instances where the impact of crime is left untreated, as in cases of severe trauma which compromise an individual's capacity to continue working, can come at a high cost not only for the affected individual but for society as a whole.
In 2004, and subsequently in 2012, the European Union adopted two legally binding directives on compensation and victim's rights, reaffirming and implementing the rights of victims to compensation, including the right to obtain a decision on compensation by the offender. However, significant challenges remain. In particular, very few victims of cross-border cases make use of the possibility to file applications to foreign compensation funds through the sister organizations in their home countries at European level. Furthermore, these funds apply eligibility criteria that vary significantly between jurisdictions, often limiting the possibilities for victims to claim compensation. Globally, the situation is even worse as, in many countries, compensation schemes for victims of crime remain a distant ideal. It has been argued that "improving this situation globally would seem one of the main challenges of the victims' rights movement in the present century" ( Letschert and Groinhuisen, 2011).
Moreover, State compensation schemes have been criticized for being heavily regulated, and lacking the flexibility to provide redress in a timely manner. Often, victims need financial assistance in the immediate wake of the crime: for example, in a burglary case in which the offender broke into a house to steal goods, victims not only face a material loss but also need to put in new locks and doors and maybe also an alarm system. Accordingly, it is important that victim compensation schemes ensure that victims are provided with the necessary funds in a prompt and unbureaucratic way.