Victim Impact Statements
August 17th, 2011 at 11:00 am by David FarrarDanya Levy at Stuff reports:
The father of Dunedin murder victim Sophie Elliott says families should be able to say what they want in victim impact statements, and welcomes Government moves in that direction.
Justice Minister Simon Power yesterday introduced the Victims of Crime Reform Bill to Parliament.
It makes a range of changes, among them clearer guidelines around victim impact statements.
“As there are currently no guidelines governing victim impact statements case law has evolved around what cannot be said, including an outline of the offence and opinions or comment on the offender,” Power said.
“This has lead to the unacceptable situation where a victim is effectively censored so they don’t offend the offender.”
Gil Elliott’s statement on the impact of his daughter’s death had entire sections crossed out at the judge’s request, before it was read in court.
Elliott said it was censorship and another example of the justice system treating victims poorly.
Sophie Elliott, 22, was stabbed to death in her bedroom by former boyfriend Clayton Weatherston in January 2008. Weatherston was sentenced to life in prison in 2009, with a minimum non-parole period of 18 years.
Her father today welcomed moves to improve the statement process.
“I think it’s a very good idea,” he told Radio New Zealand.
It is a good idea, and an overdue one. However it is only in the last year or so as victims and their families have spoken out, have many of us realised that their statements are routinely censored.
Related posts:
- Victim Statements in Court
- A small but vital gain for victims
- He is not a victim
- Clayton Weatherston
August 17th, 2011 at 11:17 am
I’ve often wondered why Victim’s don’t just submit the touchy-feely PC Criminal-Hugging version to the Courts- But then on the day get up and say what’s really on their minds…
Vote:August 17th, 2011 at 11:21 am
It is probable that judges are concerned that the dignity of the court could suffer if ‘anything goes’ with victim impact statements, or worse still they could be accused of being unduly influenced when it comes to sentencing. I think that victim impact statements probably require some moderation (eg saying ‘I want to kill the b*****’ would be both unlawful and offensive). However the moderation would be better done by a moderator who can discuss the content and suggest ways of packing the punches without being offensive. A judge has not got the time for this sort of process and it is not appropriate for a judge to have a ‘dialogue’ with the victims anyway.
A further move could be to sentence the offender to a few hours in the pillory and give the victim or family a good supply of rotten fruit.
Vote:August 17th, 2011 at 11:24 am
“This has lead to the unacceptable situation where a victim is effectively censored so they don’t offend the offender.”
Has anybody ever actually argued that? Because it is truly an outrageous position. In fact it is dangerously close to the (presumably imagined) case of a murderer who killed his parents asking for mercy as he’s an orphan.
Vote:August 17th, 2011 at 11:28 am
Being family of a murder victim doesn’t entitle you to say whatever you like. A serious, credible system of justice has to step in to stop what amounts to nothing more than outright “Laws of the jungle”-esque revenge.
Also a judge will never take into account calls by the victims for a harsh sentence or victims’ views as to what is a generally acceptable range of sentence.
Vote:August 17th, 2011 at 11:45 am
@questlove: yes you wouldn’t want the nastiness of ones crimes to be commented on.
Vote:August 17th, 2011 at 11:49 am
A Just reform by a fine Minister of Justice…A great pity he is leaving.
Vote:August 17th, 2011 at 11:55 am
I have great sympathy for the Elliotts. Who wouldn’t?
Vote:But every time they are now wheeled out by the media or the ‘crats (pollies) I switch off.
I hold no brief for Wetherstone. He is sick!
But, irrespective of his Hyde-like character, Weathstone was/is entitled to due process – all the way to the Supreme Court (if they let him).
Let it go ghouls!
August 17th, 2011 at 12:04 pm
With respect to the victim’s families, impact statements require abridging to remove false and misleading statements, possibly defamatory statements, threats, and statements which are overly emotional or sensationalist. Judges will continue to exercise a degree of control over theses statements as a matter of course and good management.
Vote:August 17th, 2011 at 12:19 pm
Why even have victim impact statements if you cannot say what you want as a victim. Sounds like PC circle jerk, so the judicial system can say that NZ has the most Humane courts in teh world.
If someone stabs my daughter to death, I’m going to say everything or nothing at all.
Vote:August 17th, 2011 at 12:47 pm
questlove is right…although I am all in favour of uncensored witness statements, the reality is they will have no effect at all on sentence….which is actually all the more reason to allow victims to say (virtually) whatever they like. It is the one and only chance they will ever get to unburden themselves in front of the real perp and not a cushion they must imagine is him in some psychotherapists office. If that makes the court, in part, a place for therapy so what? We already have courts and the Waitangi Tribunal going to marae to listen to a bunch of “stuff” that is totally irrevelevant, and would never be allowed in an “ordinary” court.
Backster: You dont seriously think this measure was Power’s idea do you?
Vote:August 17th, 2011 at 12:59 pm
As I understand it, the victim’s impact statement is read only before the judge and only following conviction by a jury, so it does not affect the offender’s right to a fair trial but may influence the judge’s decision on final sentence.
This seems appropriate to me, as clearly the judge will be taking into account the victim’s stance. However, it should not be no holds barred, as the victim could well incriminate themselves with what they say. It’s certainly not censorship as in the court what the judge says goes, and the victim is welcome to say what they like outside that court (and could potentially face consequences for what they choose to say, just as we all do).
Certainly having better guidelines around the issue is welcome. I’m not sure about the idea of allowing children to submit drawings – as far as I’m aware the interpretation of childrens drawings is fraught with difficulty.
Vote:August 17th, 2011 at 1:18 pm
Actually, Victim Impact Statements are not routinely censored at all. That is because most people filling out the forms provided by the Police read what the pointers on what the law says they should talk about and adhere to the law. That is if they bother to even fill one out at all, which many victims do not.
This is a beat up. It is a beat up that will allow ‘victims’ of, say, a tresspass, or a relatively minor traffic accident, to stand in Court and abuse the defendant in vituperative terms, and, as David Garrett points out, for no end because such abuse will have little or no effect on sentence. Even worse, it will allow the victims to put poetry in their Victim Impact statement (have seen it, saw it ‘censored’, and a good thing, too).
The law is fine as it is. It allows victims to express how the offending has impacted them. That can be harrowing enough, at times. It does not allow for abuse, something that is completely unnecessary in a Court of Law. If this law is passed then the statements should no longer be called ‘Victim Impact Statements’ but instead ‘Statements of Animosity’. At least the description would then be honest.
Vote:August 17th, 2011 at 1:43 pm
If you look at the bill in it’s present form Victim Impact Statements still need to be submitted to the presiding judge for approval prior to they being read in court by the victim.
Vote:Not a lot changes.
Pesonally I don’t see the need for the change to the present system which by and large works.
August 17th, 2011 at 2:03 pm
FES is right about the beat up. It is a change based on the most extreme case (Sophie Elliot). I doubt there would be any sympathy for whatever Mr Elliot wanted to say to Weatherston – understandably in the circumstances. Frankly in that situation my only concern is that some decorum is kept in the Court proceedings – Weatherston can wear it for all I care.
But bad law is based on exceptions. As we have already seen by the abolition of provocation.
At one point is the line to be drawn? It is ok for a victim/family of a victim to use foul language, to make threats, to make unprovable statements or even to tell lies? Is that part of the the therapy that the system is seeking to provide for the victim?
Or should that open slather only be allowed for the worst of the worst? As I say no one is going to lose any sleep over Weatherston’s feelings but whatabout the careless driver causing injury or death? Should s/he be subjected to abuse for a mistake with horrendous consequences?
FES is right, statements are not routinely changed and they are often compelling and, rightly, very difficult for the offender to hear. Hell, they’re bad enough to hear as counsel.
I suspect these changes will do little to improve the process but only satisfy the thirst of the media for sensationalism.
Vote:August 17th, 2011 at 2:15 pm
Leftyliberal,
Victim impact statements are able to be completed by any victim of a criminal offence in either summary or trial jurisdiction and are not limited to jury trials. Mostly they are read silently by the judge, but the victim does have the right to read it to the Court. Most don’t. In fact, most victims are nowhere near the Court when the case against the defendant is finalised.
The legislation is very clear on what can/should be included, and I cannot see where there is a problem. See for yourself:
17 Victim impact statements in sentencing of offender
Vote:(1) The prosecutor must make all reasonable efforts to ensure that information is ascertained from the victim, for submission under section 21 to the judicial officer sentencing the offender, about the following matters:
(a)any physical injury or emotional harm suffered by the victim through, or by means of, the offence; and
(b) any loss of, or damage to, property suffered by the victim through, or by means of, the offence; and
(c) any other effects of the offence on the victim.
August 17th, 2011 at 2:23 pm
There are several issues, firstly, that sentences are not hard enough for the worst crimes. The worst Murderers can be out in under 15 years with good behaviour.
The newly emerging issue is that of youth crime. Children have progressively been granted more and more rights and they are committing some pretty heinous crimes now. Yet, when caught, they are given family group conferences.
The main reason I see for allowing victim impact statements is to try and compensate for light sentencing. People wouldn’t feel the need to make an impact statement if sentences were just.
Vote:August 17th, 2011 at 3:45 pm
DAVID GARRETT:….It doesn’t worry me whose idea it was the fact is that POWER has been the only Justice Minister in my long memory who has had the guts to try an sort out many of the anomalies in a Justice System heavily biased against victims and indeed Justice because his predecessors lacked the nerve to do so.
GPT;………The Weatherstone case does not stand alone as an example whereby the victim’s character has been falsely destroyed to mitigate the punishment the defendant will receive. As recently as a few months ago in the Killer Clowns http://www.stuff.co.nz/national/crime/5359911/Life-in-jail-for-Killer-Clowns murder case the Defence alleged the victim was a habitual drug addict as well as several other calumnies which the parents disputed. His Post Mortem showed he was completely clean of drugs. The parents were prevented from saying anything in their sons favour. This situation applies in many such cases, probably most of them.
Questlove;…You are probably right that a victim impact statement has no effect on a Judge’s sentence, but at least it could expose obvious inadequacies.
Vote:August 17th, 2011 at 3:54 pm
I saw a US sentencing hearing where the father of the murdered girl was able to stand in court and say the murderer deserved the electric chair. Quivering with rage eye to eye to the murderer he said.
Vote:“I want to see you fry. I want to see your eyeballs smoke and boil out of your head.”
I don’t know the outcome. But it was good he was able to say this.
August 17th, 2011 at 4:04 pm
Wreck, your 2.23pm comment is incorrect- the worst murderers must serve a minimum non-parole period of at least 17 years. That means that they are merely eligible to apply for parole at that point, not that they will be paroled. I would be very surprised if you found many sentenced to an MPI of 17 years or more getting out at the first parole hearing.
Backster, so in this case, where a defendant raised the issue of self-defence and, necessarily to the defence, ‘blackened’ the deceased’s name, you would have that ruled inadmissible and leave the defendant no defence at all? After all, the acquittal and ‘blaming of the victim’ obviously upset the family.
When will everyone realise that a criminal trial is about the guilt or innocence of the accused person, not a memorial service for the victim? Take that ‘Killer Clown’ trial- the defendants raised an issue that they obviously saw as relevant to their defence, after all, it does not seem to be disputed that the killing was in some way related to the deceased, "who wanted money returned after a drug deal went sour,". That was the Crown’s case, for goodnes sake. Where, then, is the need to ‘defend’ the reputation of the deceased? Isn’t the fact that he was involved in illegal drug taking or dealing pretty bad? Sometimes unpleasant facts need to be revealed or allegations need to be made in a trial. It is a fact of life. What Weatherstone alleged was unpleasant, although necessary to his defence, but it was rejected and I would be suprised if anybody accepted it as being true.
Anyway, backster, as a former cop you know full well that you would have been only too happy to besmirch a defendant’s name if you thought it would gain a conviction. It is called making an allegation. Why the double standard?
Vote:August 17th, 2011 at 4:14 pm
backster – you have linked to a sentencing article with no mention of what was or was not alleged and they way in which the trial was conducted. In my experience relying on news reports for the formulation of policy regarding the Justice system is fraught. As you prove with your conclusion that “this situation” (you have established no situation) applies in “many such cases, probably most of them.” You have given two examples with limited or no evidence and that establishes your view that the system is flawed?
I am also not sure whether you are referring to victim impact statements or admissibility of evidence. Defence must have grounds upon which propositions can be put providing some protection from completely frivilous claims. Remember that often a case turns upon one word over another – an allegation has been made and is to be tested in Court. It is pretty hard to defend yourself without pointing out that the complainaint is mistaken or lying and reasons for that.
That said I often wonder why it is necessary for the gory details of trials, and a victim’s life, to be breathlessly reported to the wider media. Was it really open Justice to know intimate details about Ms Elliot? Relevant to the case, sure, but to the public? Perhaps a case for suppression orders there rather than intefere with the right of a Defendant to a fair trial.
Vote:August 17th, 2011 at 4:30 pm
That is a fair point, GPT. If the media chose not to publish/broadcast the allegations made by Weatherstone against Sophie Ellliot, for example, then any attack on her reputation would not be at issue. Same with the ‘Killer Clown’ case.
There is a lot to think about on the role of the media in sensationalising criminal matters. The effect it has on actual justice is, in my view, deleterious.
Vote:August 17th, 2011 at 4:36 pm
@FE Smith — OK, 17 years. Still way too light.
I wonder, how many do actually get out after the first hearing. I’d hate to be on a parole board. I couldn’t sleep with freeing a criminal who goes on to kill people.
I prefer the US system, where life usually means life. Take the example of Clayton W, why should he ever be released when he has taken so much.
Vote:August 17th, 2011 at 4:47 pm
FE Smith: When I went to law school we were repeatedly told – by an amused Professor Gerry Orchard – that the one thing a criminal trial was NOT about was the guilt or innocence of the accused, but rather which side was able to persuade the finder of fact that its version was the most persuasive…
Was the late Professor wrong? Next you will be telling us that one of your clients was “found innocent” due to your superlative advocacy…
Vote:August 17th, 2011 at 4:52 pm
Wreck, very few. From memory, most people sentenced to more than two years imprisonment (which is when parole at one third kicks in, rather than the half time kick out of those getting 2 years or less) are denied at least once. Again from memory, I think most prisoners serve close to two thirds of their sentence. David Garrett will have better grasp of those figures than I will, however. But don’t forget that very few people who go up for parole are actually likely to kill, and even then the prisoner will get out eventually when their sentence expires. The only other option is to have preventive detention as the default sentence for everything!
With regards your last paragraph, you will get no argument from me, although not so much for the murder but the fashion in which he committed it and his overall probability of re-offending. But do you maintain the same premise when you consider, say, Gaye Oakes? Should she be spending the rest of her life in prison? That said, even most of the US allows parole in life sentence, just after a long time. You might be referring to specific ‘life without possibility of parole’ sentences?
Vote:August 17th, 2011 at 5:16 pm
DG – to be fair it’s a damn site easier to convince the finder of fact that your guy is not guilty if the facts are on your side.
As Greg King said (quoting Ablett-Kerr) – no matter how bad things get you still have a closing.
Vote:August 17th, 2011 at 5:29 pm
F.E SMITH and GPT:………..All you are doing is illustrating why I admire POWER for having the courage to stand up against the legal fraternity to do what he knows to be right.
Vote:It is true I have to rely on Press Reports to follow and assess a case. The Killer Clowns case seemed to be only comprehensively reported in the Taranaki paper and I followed it closely. There was no evidence that the victim was involved in Drug Dealing. The offenders were simply evil nutters. All the parents want is the right to refute these allegations and to deny them the right is a callous injustice. The parents did subsequently express their displeasure outside the court but without going through all the links I could not retrieve it.
August 17th, 2011 at 5:41 pm
Backster, it appears to have been the Crown case that the deceased in the ‘Killer Clown’ case was involved at least in drug purchasing, if not drug dealing. If he wasn’t, then the Crown would have led evidence rebutting that claim and the parents would not have needed to have an opportunity. Now, just tell me how you get past this:
"The Crown says Pandey-Johnson ordered the hit, carried out by Nuku and Fournier, because Mr Browne was applying pressure to be repaid for drug sales. "It was the souring of that business association that resulted in Dean Browne becoming the target," Mr Marinovich said."
Whatever his parents thought of the allegation, it was the Crown who were making it. I cannot see why they would need to rebut anything.
With regards Simon Power, he hasn’t stood up to the legal fraternity, he has ignored us completely. Just like the previous Labour government did. Despite the fact that we deal with this every day and tend to know what we are talking about. The changes that Power has made are, for the most part, wrong and harmful to a fair and impartial criminal justice system. Just because something is popular, or authoritarian, does not make it right.
Vote:August 17th, 2011 at 7:25 pm
> The legislation is very clear on what can/should be included, and I cannot see where there is a problem.
FE – I know I’m preaching to the choir, but…
The only problem is that we have a justice minister who is a populist, poll-driven wet – and unfortunately justice is too serious a business to manage in a poll-driven way (unlike, say boy racers or national cycleways).
His return to what he’s good at (conveyancing) can’t come soon enough.
Vote:August 17th, 2011 at 8:11 pm
True, dion, you will hear no argument from me on those points!
Vote:August 17th, 2011 at 11:35 pm
Yes but Backster your argument is that you “know it to be right” with the usual dig that the legal fraternity is yet to be based on evidence. Can you clearly articulate how changes to the way a VIS is prepared with remedy the perceived wrong in this case you have followed so closely. Or are of the view that a defendant should simply not be allowed to raise any evidence that may bring into question the complainant’s character? And for that matter it seems that the Crown led the evidence/made the suggestion that there were drug debts involved.
I don’t want to be rude about grieving parents but could it be that the parents would, understandably, prefer to remember their son in the best light? Hard to argue with that but if that is the case hardly a grevious injustice.
Vote:August 17th, 2011 at 11:51 pm
Maybe our problems could be solved if we renamed the Justice System to “Offender Assessment Department”.
Perhaps that’s why lay people don’t understand the legal system – we get misled by the term “justice”. Because the way things are done doesn’t always get justice for the victim.
If someone gets charged with rape, the poor victim has to go through the ordeal of a trial, being besmirched by the offender (“she’s a slut and wanted to be gang raped”), then is not be able to say how that offender ruined her life except in the most sanitised emotion-stripped way. Then the guy gets sentenced to ten years, he’s out before the victim turns 24. It’s terrible.
I think there are some crimes where proper punishment and retribution needs to occur. There are some nasty bastards out there, and even if their crime is small there are sometimes factors that obviously indicate some callous psychopathy and a risk of repeat offending and escalation.
I think that after a victim (or Crown on behalf of victim) has to prove beyond reasonable doubt the the offender is guilty, that the offender should prove beyond reasonable doubt that they do not deserve the maximum sentence and preventive detention.
Vote:August 18th, 2011 at 11:08 am
trstanb – lay people do not understand the system because they are feed nonsense like you have just said above.
The “sluts or nuts” defence is dead and buried and has been for decades. Leave of a Judge is needed to cross examine a complainant on previous sexual history and it is rarely granted.
All you have shown is you have a good grasp of emotive cliche, you clearly have no concept on how the system does or does not work as the case maybe.
Excellent idea for sentencing. An empty but inappropriate threat to kill or hurt – 7 years; an unwelcome slap on the bottom – 7 years; going into an enclosed yard or building (burglary) without taking anything – 10 years etc
Vote:August 18th, 2011 at 9:04 pm
Well the legal system better improve their PR, because I am sure my perceptions are shared with many.
Those last three examples regarding sentencing – those people would be in circumstances that they can prove that they don’t need the full sentence. But the guy who kills the pet in front of his family to intimidate them would have a bit more trouble arguing down his jail term.
Vote:August 18th, 2011 at 9:13 pm
Well the legal system better improve their PR, because I am sure my perceptions are shared with many.
Or maybe you, along with too many of our politicians, should do your research before promoting change.
Vote:August 18th, 2011 at 9:44 pm
What GPT said.
Tristan, you do need a better idea of what goes on before you give examples like that. GPT pointed out some misses, but let’s see:
"then is not be able to say how that offender ruined her life except in the most sanitised emotion-stripped way"
Which is not correct at all. The victim is more than entitled to describe how the prisoner (what we call a convicted person up for sentence) has ruined her life. There is no requirement that it be sanitised or emotion-stripped. Go look at my earlier comment above and you will see that a description of how the offending has affected the victim is exactly what is sought. What is not allowed is abuse, the hurling of which is what the supporters of these changes wish to see in Court. Whether that will actually be allowed is open to debate, given the wording of the amendment to the current section. I suspect there will be an outcry if the verbal abuse of defendants by victims is ever prevented.
Moreover, these changes won’t just apply to rape or murder. They will apply to all offending. So if you are involved in a minor traffic accident and are prosecuted, then the ‘victim’ will be able to attend court and abuse you. Good, eh?
"I think there are some crimes where proper punishment and retribution needs to occur."
Yes, and it does, but then you say
"There are some nasty bastards out there, and even if their crime is
small there are sometimes factors that obviously indicate some callous
psychopathy and a risk of repeat offending and escalation."
So we ignore the crime and simply sentence based on the person, eh? So if a person with a string of violence offences behind him is charged with, say, their first drink driving, they should automatically be imprisoned? Hmmm.
Then we have "the offender should prove beyond reasonable doubt that they do not deserve the maximum sentence and preventive detention."
Is that general or does it only refer to your previous paragrapgh? If it is general, then of course means that you want the maximum sentence and preventive detention for every single offence. If it is specific then you are asking for a person convicted of a specified offence to be sentenced to the maximum (so, technically, stealing a chocolate bar from a shop could lead to 10 years imprisonment) and then on top of that you want them to be subject to indefinite imprisonment unless the parole board thinks they are able to be let out, in which case they are on permanent parole?
Yeah, good one.
Vote:August 18th, 2011 at 9:51 pm
Well, we could guarantee that tristanb’s idea would reduce crime rates – once we had locked up about 50,000 people forever.
Vote:August 19th, 2011 at 1:03 pm
Haha, it’s good to have one supporter!
Here’s another example of a victim being dragged through the demeaning courts:
http://www.stuff.co.nz/national/crime/5472778/Schoolgirls-adult-lifestyle-a-secret-defence
Yes. That would be a good idea. That person is no good. The judgement should take into account his past behaviour (I thought it was meant to). After tons of money wasted on court, medical costs and police time on this guy, why should we let him get away with drink driving?
In terms of shoplifters being imprisoned for 10 years – you’d have to have a pretty useless legal representative if he could not argue that one down. But for the guy who steals the wheelchair of the crippled person in the street – I’d like to see him try and argue why he should not get ten years. I’d like to see the unprovoked guy who punches the stranger in the face argue why he should ever see freedom again.
Vote:August 19th, 2011 at 7:19 pm
“The judgement should take into account his past behaviour (I thought it was meant to).”
No, sentencing takes account of past behaviour, but only relevant past behaviour. Violence has no relationship to drink driving unless the previous violence shows alcohol is a problem.
“Here’s another example of a victim being dragged through the demeaning courts:”
Eh? So how do you propose to test whether she is telling the truth or not? Or would you simply accept her word for it and automatically convict the defendants?
“In terms of shoplifters being imprisoned for 10 years – you’d have to have a pretty useless legal representative if he could not argue that one down.”
What if they cannot get legal assistance? The next batch of legal aid ‘reforms’ have a general eligibility cut off of an income of $22,000 a year. Plenty of people plead guilty without the benefit of legal assistance, then when the Judge asks what they have to say on the matter, just say ‘nothing’.
But it seems that your main solution is to have about a quarter of the population or more locked up at any one time. Ah well.
Vote:August 19th, 2011 at 9:56 pm
It is a laudable aim to make court proceedings as easy as possible for complainants but not, as it seems to be argued above, at the expense of the right to a fair trial. For too many it seems a foreign concept that some charged people are innocent. As a Crown Solicitor said to me once “if I don’t lose around one third there’s something going wrong in the system”. (And before the yells of outrage start remember that 90% of charges are resolved by a guilty plea).
The logical conclusion to tristanb’s theories above are to lock up everyone until they prove the won’t commit a crime.
Vote:August 20th, 2011 at 12:28 am
The thing is, every previous crime is relevant to subsequent crimes. They all affect society negatively (which is why they are crimes). His previous violent offences show that he has little regard for other people, as does his drink driving. In lay terms, he might be known as a “feral scumbag”. He should be treated differently to the man who had one (literally) too many after work who drives home. The difference in penalty should be judged solely from the nature of the crime and previous crimes (i.e. the worker should not get off easier because he’s employed, but because he has lived a conviction-free life. And of course the worker still needs to be appropriately punished.)
Well, lock up every convicted criminal until they prove they won’t commit another crime in the near future. That should be the aim of the game: to reduce crime, not the matching up of penance per sin that we currently have.
That is why I don’t like the attitude some people have towards criminals who have served their sentence. They say: “Leave him alone, he’s done his time”. I say: a rapist who has served his 20 years is still a rapist. That 20 years does not absolve him. I would not respect him unless I get the impression he has changed and is repentant for his crime, and I wouldn’t expect anyone else to do so either.
Regarding questioning the character of the victim. If it’s fair game to paint your victim as promiscuous without evidence, then it should be fair game for the victim to claim the offender as violent and evil without evidence. But unfortunately we’re not allowed to mention “I’ve got a plan to rape a jogger and have a great alibi”, or “the guy’s mates Bob and Brad have already been convicted of gang rape”, because this is somehow prejudicial. It is unfair that the victim gets less protection that the offender.
I understand you two have a much better handle on what goes on in courts. Apart from maybe a tour of an empty court in high school, I’ve only seen them on TV. And I do realise that most of my thoughts are clouded by leading headlines implying injustice. But I do think that a shift towards judging all the person’s crimes is important; it’s not a maths equation where we’re balancing both sides, it’s about ensuring that bad people are removed from our community. One other thing is that the ruling judge should have to consider not just the fairness to the defendant, but also the fairness to society. The judge should feel responsible for the protection of his community, and to let a guilty man off for a serious crime should not be seen as acceptable.
Vote:August 20th, 2011 at 1:12 pm
“If it’s fair game to paint your victim as promiscuous without evidence”
Which is very wrong. You do need evidence. Either the defendants will be giving evidence themselves, or other evidence will be called. If the defendants give evidence of what is being alleged then corroborating evidence is not legally necessary (just like there need be no corroborating evidence of the allegation of rape- the evidence of the complainant alone is sufficient) but is wise.
Yes, we do have a much better handle than someone who has only TV knowledge. Which is what most people have, but for some reason the government thinks that is more than enough to radically alter the justice system that has taken centuries to get to this stage.
“One other thing is that the ruling judge should have to consider not just the fairness to the defendant, but also the fairness to society.”
Which is also wrong. The judge must ensure a trial is fair to a defendant and fair to the prosecution. A trial is an allegation by the prosecution against the defendant. Society does not come into it unless sentencing becomes necessary. And on the issue of previous crimes- if a person has a history of violence and then is accused of stealing a chocolate bar, would you allow the previous convictions to be used to show that the person is more likely to be guilty of theft? What relevance would they have? What if they occurred 20 years before the alleged theft?
I could go on with variations all day. Which is the problem, you see, because no case is ever exactly like another, but the public and the politicians want a ‘one fits all’ system. It doesn’t work like that, which is why we are so big on judicial independence, the independence of the defence bar, and the concept of judicial discretion.
“to let a guilty man off for a serious crime should not be seen as acceptable.”
Which just shows how little you know. While it is admirable that you want to contribute to the debate, you (and most people) start with very wrong assumptions about the system. Judges don’t let guilty people off just because they feel like it. There must be a very good reason, for example a lack of evidence (which means that you cannot be sure the person really is guilty) or police malfeasance (such as illegal searches). I would be very interested to know what instances you can point to in which a judge let an obviously guilty person go just on a whim?
Vote: