The following report has been undertaken by James Catley on behalf of the Attorney General. The report addresses the proposed amendments to the Victims of Crime Act 2001 (SA) for which the Attorney General will have responsibility. The proposed amendment will give the Commissioner for Victims’ Rights and/or the alleged victim of a sexual offence the specific power to be legally represented in criminal proceedings. The report will employ three methods of research; case studies, research studies and jurisprudential studies.
The recommendations made will be based upon policy considerations, philosophical arguments and the way in which the amendments may work in practice. It is evident from the statements made by the premier that the proposal aims to protect, empower, and satisfy victim’s internationally recognised human rights. Furthermore, the proposal intends to ensure that the needs of the victim are at the heart of the criminal justice system, especially the victims of sexual offences. A number of legislative tools are currently in place to ensure that victims internationally human rights are protected and recognised.
In 1985 the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power to which Australia is now a signatory. These principles protect a victim’s privacy and safety, and ensure that they are to be treated with respect and dignity, irrespective of age, gender, race or religion. Although the declaration is not binding many of the states and territories in Australia have given statutory recognition to these principles and the rights of victims in the criminal justice system.
In South Australia the Victims of Crime Act 2001 (SA) provides a number of tools to protect the rights of victims which include: * Consultation in relation to certain decisions; * Entitlement to be present in court; * Entitlement to have impact of offence considered by sentencing court and to make submissions on parole; * Ability to request consideration of appeal; and * The appointment of a Commissioner for Victim’s Rights.
Despite the enactment of this legislation, it is questionable as to whether these tools sufficiently protect the rights of victims and meet the principles outlined in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The criminal justice system is an adversarial system which involves the government on one side against the defendant who is accused of a crime on the other. Through the prosecutor the government has a responsibility to protect the interests of society as well as the rights of the defendant however, the place of the victim in this system is unclear.
A number of the tools mentioned above ensure that the prosecution communicate with victims both as witnesses, and parties affected by the committal of the crime. Despite this, their obligation is to protect the interests of society rather than the interests of the victims in their personal capacities. A question must be asked, how does this system work to protect the rights of the victim? In a number of international jurisdictions it is now clear that this adversarial system does not sufficiently protect the rights of victims. This is most evident in relation to sexual offences where victims act as witnesses during trial.
In the United States a witness is not afforded the right to legal representation and thus, may not be aware of their legal rights during the different stages of proceedings. For example, in a Massachusetts case a rape victim was asked by defence counsel to discuss the contents of a privileged counselling conversation. Neither the judge nor the prosecutor objected to this question or advised the victim that she was under no obligation to declare the information. Unaware of her rights the victim answered the question which resulted in the defence questioning her credibility as a witness.
Once this information is revealed, it is possible for the defence to construct an argument as to why the information is relevant. If the victim had been allowed personal legal representation her rights would not have been violated when the question was asked by the defence counsel. In more extreme cases the defence may employ strategies in cross-examination which use sexist gender stereotypes to question the credibility of the witness. The controversial American rape case of William Kennedy Smith is an example where the absence of legal representation allowed the exploitation of the victim’s rights.
In order to assert that Smith had not roughly assaulted the victim as she had claimed, the defence displayed her “sexy-styled” lacy brassiere which was still intact. Consequently, the brassiere was then used to imply to the jury that a woman who wears a brassiere of this nature would have consented to sexual intercourse. With legal representation the victim would have been aware of her right to privacy with regard to the brassiere, and may have directed the judge to exclude the sexist and gender-biased comments made to imply that consent was given.
The victim was not afforded this benefit and as a result the strategy employed by the defence proved successful when the case was acquitted. It is clear that in an Adversarial system such as the United States a victim’s access to legal representation has been the deciding factor in the protection of their rights. In order to fight defence tactics that exploit sexist stereotypes and a victim’s right to privacy, victims must be granted access to personal legal representation at both the preliminary and trial stages of the case.
An important question then arises, do we sufficiently allow for the protection of victims rights in South Australia? The Victims of Crime Act 2001 (SA) currently affords the right to representation through the Commissioner of Victims Right’s who may appear in person or, through legal counsel. This right may be exercised for victims of sexual assault when an application is made to disclose details of a protected communication that happened in a therapeutic context, as well as when a person is seeking a suppression order.
This may work well in some cases however, in many cases the victims’ rights are violated before they are even aware that they have been violated. The principles outlined in the Victims of Crime Act 2001 (SA) require public officials to avoid breaches in the rights of defendants, for example, unnecessary intrusions into privacy. Despite this, the courts do not owe a duty to tell the victim of their rights and victims may unknowingly agree to waiver them. Without legal representation throughout the different stages of trial it is hard to see how this adversarial system protects the rights of victims of crime.
In 1998 a study was undertaken by The Dublin Rape Crisis Centre which analysed the legal proceedings in the fifteen member states of the European Union and their impact upon victims of rape. The study looked at the difference between the adversarial and inquisitorial systems in the member states and their impact on the experiences and satisfaction of rape victims. The study noted that participants of adversarial systems experienced feelings of humiliation and detachment, and were more stressed testifying in court than those of inquisitorial systems.
The difference in experiences was largely attributed to defense counsel tactics which undermined the victim, the hostile nature in which the proceedings were conducted and most importantly, the lack of legal representation. By contrast, the participants in the inquisitorial system recalled a much better experience and less hostility towards public officials and the legal profession. This was directly linked to the ability to have legal representation and the less hostile method of witness examination which was controlled by the judge.
This is not to say that the adversarial system is wrong or that the inquisitorial system is to be preferred, but rather the lack of legal representation in the adversarial system appears to more easily allow for the rights of a victim to be ignored. Before any recommendations can be made, the effect of amending the Victims of Crime Act 2001 (SA) to allow the Commissioner for Victims’ Rights and/or the alleged victim of a sexual offence to be legally represented must carefully be considered. If the amendments were to be made, in what capacity would the legal representative be able to act and what affect would this have on the accused?
There are obvious issues in giving the victim and their lawyer the ability to affect the trial and have input into prosecution decisions. Prosecutors are in a better position to control the trial because of their impartiality. Victims on the other hand are not impartial and by being brought in as a third party to the trial may hinder the process without providing any new insight for the decision maker. The criminal justice system is designed for the punishment of the guilty and the acquittal of the innocent. The government has a responsibility to protect the public interest and protect values such as certainty and objectivity.
By giving too much control to a third party the government will face issues in maintaining these core values and protecting the rights of the parties, namely the accused. The victim’s right to legal representation may come at the expense of the rights of the accused and consequently upset the balance of justice in the court. In allowing victims more power, it may become a case of two against one where the accused is fighting against both the prosecutor, and the victim. In turn, this will undermine the strength of the defense, thus affecting the presumption of innocence and swaying the case in the favour of the prosecution.
This is to be avoided at all costs however, this cannot in itself, be sufficient reason to say that victims should not be afforded legal representation. As will be mentioned in the recommendations of this report, these issues may easily be overcome by placing restrictions on the effect that a victim and their lawyer can have on the proceedings of a trial. If the right to legal representation was afforded to victims some may not be able to afford their own lawyers to protect their rights during the trial. This issue of eligibility for legal aid services then arises.
Should the current factors that affect the eligibility for general legal aid services extend to legal representation for victims of sexual offences? Despite the obvious costs involved there may be a number of reasons to show that legal services should be available to victims irrespective of factors such as income. Firstly, the use of legal representatives may allow for easier management of the system. There is opportunity for legal representatives to work with the prosecution without interfering in proceedings and with the rights of the accused.
The presence of a legal representative can aid in negotiating decisions such as pleas and the whether or not to prosecute. Also the legal representative may be able to explain decisions and better inform the victim of the process. The victim may not be satisfied when the accused is acquitted however, they may be more accepting when the news is delivered by their own lawyer rather than the prosecution. This may not only have the effect of alleviating some of the responsibility of public officials, but may also increase victim satisfaction with the system.
This may save both time and money for the prosecution in dealing with the victim and allow for them to input more resources into fighting the case. It appears that this would be a beneficial scenario for both parties. The findings of this report strongly support the right for victims of sexual offences to be allowed legal representation throughout the prosecution process. The current statutory provisions and rights afforded to victims do not ensure that the principles outlined in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power are observed.
The current system too easily allows for a victim’s privacy to be ignored resulting in treatment that lacks respect and dignity. It is recommended that amendments be made whereby victims of sexual offences are allowed the right to legal representation through legal aid services. It is also recommended that restrictions be applied to the role of the legal representation and the ability they have to affect a trial. The legal representative may: * Only be heard on matters directly affecting the victim; * Monitor use of hostile cross-examination tactics; Be present when the victim is giving evidence; * Object to questions put to the victim by both the prosecution and the defence; * Inform the victim of their rights throughout the process; * Assist in the use of a victim impact statement; and * Assist in the application for compensation. Furthermore, the legal representative may not: * Ask for additional witnesses to be called; * Cross-examine the accused or any of the witnesses; * Make submissions on points of law; and * Address the court on the question of sentence. ——————————————– [ 1 ].
Victim Support Australia Inc, The Role of Crime Victims in the Criminal Justice System (2007) [ 2 ]. Victims of Crime Act 2001(SA) s 9A. [ 3 ]. Ibid s 9B. [ 4 ]. Ibid s 10. [ 5 ]. Ibid s 10A. [ 6 ]. Ibid s 16. [ 7 ]. Peter Sankoff, ‘Is Three Really a Crowd? Evaluating the Use of Victim Impact Statements Under New Zealand’s Revamped Sentencing Regime’ (2007) New Zealand Law Review 459. [ 8 ]. Wendy J. Murhpy, ‘The Victim Advocacy and Research Group: Serving a Growing Need to Provide Rape Victims with Personal Legal Representation to Protect Privacy Rights and to Fight Gender Bias in the Criminal Justice System’ (2001) Vol 11 No. Journal of Social Distress and the Homeless. [ 9 ]. Commonwealth v Neumyer (1999) 48 Mass. Ct. App. 154. [ 10 ]. J. Murhpy, ‘The Victim Advocacy and Research Group: Serving a Growing Need to Provide Rape Victims with Personal Legal Representation to Protect Privacy Rights and to Fight Gender Bias in the Criminal Justice System’ (2001) Vol 11 No. 1 Journal of Social Distress and the Homeless. [ 11 ]. Ibid. [ 12 ]. Victims of Crime Act 2001 (SA) s16 (3) (e). [ 13 ]. Michael O‘Connell ,“Victims’ Rights: Integrating victims in criminal proceedings” 2011. [ 14 ]. Victims of Crime Act 2001 (SA) s14. 15 ]. The legal Process and Victims of Rape, The Dublin Rape Crisis Centre 1998 [ 16 ]. Ibid. [ 17 ]. Ibid. [ 18 ]. Ibid. [ 19 ]. Natalie Simpson, Allowing the voices of victims to be heard, Liberty Victoria [ 20 ]. Jonathon Doak, ‘Victims’ Rights in Criminal Trials: Prospects for Participation’ (2005) 32 Journal of Law and Society 294, 316. [ 21 ]. Eligibility for Legal Aid, Legal Services Commission [ 22 ]. Larry Wilson, ‘Independent Legal Representation for Victims of Sexual Assault: A Model for Delivery of Legal Services’ (2005) 23 Windsor Y. B. Access Just 249. [ 23 ]. Ibid. [ 24 ]. Ibid.