Courting controversy two decades on

More than 20 years on since the Victims’ Rights Act 2002 enforced them in law, debate continues over the place of victim impact statements in the legal system. Frances Chin reports.

When Bex Sloan shared her victim impact statement in court it was both ‘‘powerful and surreal’’.

Her abuser, former dance teacher Stayz Te Atamira Raukawa, was in the courtroom – the first time she had seen him in person for years.

‘‘When you’re abused you are forced into silence, so to be able to finally speak and explain to both the judge and your abuser the true impact it has had on your life, that is the powerful part,’’ Sloan says.

To some, victim impact statements are an effective, albeit hobbled by censorship, way for the courts to include people affected by crime. To others, the statements are part of a worrying trend away from the key principles of justice – the word ‘‘victim’’ suggesting a presumption of guilt.

The Victims’ Rights Act notched up 20 years in 2022, so have the resulting impact statements improved the justice system?

Before 2002, the Victims of Offences Act 1987 outlined the rights victims had in law, including their access to welfare, legal needs, and the right to make a statement in court.

However, these rights were not enforceable by law until the Victims’ Rights Act 2002, which placed a legal obligation on agencies to implement them.

Victim Support spokesperson Dr Petrina Hargrave says that before the introduction of victim impact statements, it was common for victims to be ignored and the effect of the crime to go unrecognised.

The statements were the only formal opportunity victims had to have a voice in court.

‘‘Having a voice is one of victims’ most important justice needs, and it’s universal – whether you’re a victim of burglary or attempted murder, it’s empowering to have public recognition and acknowledgement of how the crime has impacted you. It’s hard to move on if you are silenced.’’

However, Te Matakahi Defence Lawyers Association co-chair Elizabeth Hall says that in terms of bail, name suppression, giving evidence and sentencing, the views of the complainant have been something the courts were always interested in, so the Victims’ Rights Act 2002 hasn’t really changed the criminal process overall.

Barrister Michael Bott says while the new legislation gave victims the mandatory right to be heard, it has also allowed ‘‘victim’’ as a label to be used all the way through the court process, even before the defendant’s guilt had been established.

‘‘To use those sorts of labels, and allow those things to come in, can distort your perspective, your sense of fairness, and skew your ability to look at the evidence and other options.’’

Censorship

Censorship has long been cited as an issue with victim impact statements. Sophie Elliott’s father, Gil Elliott, said that his at the trial of his daughter’s killer had

been heavily censored before he could speak. Elliott, in an interview with the New Zealand Herald, said censorship was ‘‘just another way the justice system puts victims down’’ and called for a law that would give victims more freedom in reading their statements – which eventuated in the Victims of Crime Reform Bill.

Despite the bill widening the scope of what victims may include in their statements, victims’ advocate Ruth Money says censorship continues to be a major constraint, with acceptable content differing region by region.

For example, in some courts, victims were allowed to call the accused ‘‘a monster’’, saying something along the lines of, ‘‘I will never forgive you for what you did’’. In other regions, this would be taken out completely.

‘‘I have sat in rooms where Crown prosecutors have got out black markers and written really thick black lines through things that victims have drafted,’’ Money says.

Hargrave says while the statements allow victims to ‘‘take back’’ their narratives and express the impact of what had happened to them, it is common for victims’ statements to be redacted.

This could make victims feel like they were reading a watereddown version of the impact the crime had upon them.

Sloan says it is still ‘‘unfair’’ that there are constraints around what victims could share. ‘‘After everything a victim has been through, to have someone tell you you can’t say ‘this or that’ is disappointing.’’

What should they be called?

Hall says the use of the term ‘‘victim’’ in victim impact statement carries with it an implication of events taking place the way the complainant claimed.

‘‘The terminology we use, the words we use, reflect our underlying beliefs. Our word choice speaks volumes about what we hold dear and what we believe. Defence lawyers believe in the principle people are presumed innocent until they are proven guilty.’’

Bott, a Wellington barrister, agrees, saying the word ‘‘victim’’ should be used only at the sentencing stage of the legal process, as it is just too ‘‘emotionally laden’’.

The word also carried psychological baggage, in that being labelled a victim and always being reminded of the term was the same as picking at a scarred-over wound, in some cases stopping people from

moving forward psychologically and healing.

‘‘And I see that because, [if] something awful happens to a person, to live it every day and remind someone of it regularly doesn’t enable them to move forward psychologically and heal.

‘‘So there’s a balance to be had between being sensitive to the needs of people who are victims, and helping them heal.’’

Are they effective?

Bott says the statements are effective in that they can be moving and bring home the enormity of harm that had been caused. However, their use could often pick at a wound that was on the way to healing. ‘‘There has to be a balance.’’

Hall says while the victim impact statement process is often used by people who are angry and hurt, many of the statements are ‘‘compassionate and empathetic’’.

She felt the media mostly only published statements said by people who desired tough sentences. ‘‘You get many [victim impact statements] that are heartfelt, meaningful, devastating, when they talk about the impact on everybody in the whole process.’’

Money, a tireless victims’ rights crusader for more than 10 years, says she does not believe the statements are effective, due to the lack of consistency around what could be censored.

She believes there needs to be an official way for victims to be more involved in the trial process.

Poor communication from the courts made them feel revictimised and increased their anxiety and stress about the process.

Bex Sloan says that after sharing her statement she did not feel ‘‘better’’, but has no regrets. In her case, the judge had said he had been really moved by her words and she liked to believe it played a part in Raukawa’s sentencing.

While the experience was confronting, being finally able to share the impact of her former teacher’s offending on her life had been powerful, she says.

‘‘It was seven years ago now, but looking back I am glad my abuser knew how much his actions

impacted my life.’’

‘‘Having a voice is one of victims’ most important justice needs, and it’s universal.’’