The document discusses the concept of victim impact statements, outlining their significance in the criminal justice system and the rights granted to victims across the U.S. It details how victim impact statements can influence sentencing decisions and the various ways victims can participate in the legal process, including the notification of rights and protection measures. Additionally, it highlights the history of victim rights legislation and the ongoing challenges victims face in having their rights upheld.

1. ASSIGNMENT
Discussion: Victim Impact Statement
According to the National Center for Victims of Crime (2012), a
victim impact statement, now allowed in all 50 states, provides
victims with a way to explain how a crime has impacted their
lives. This information can then be used by a judge “to help
determine an offender’s sentence” or by a parole board to
determine parole. In this Discussion, you will locate and
analyze a victim impact statement.
To prepare:
Search the Internet and locate a victim impact statement (video
or written).
Reflect on the background and relevant facts of the case for
which the statement was prepared.
In a minimum of
300 words
, briefly describe the background of the case, including:
Criminals involved
Victims involved
Crime committed
Apparent impacts

2. Other relevant information to provide context
Summarize the main points made by the victim in his or her
statement. If you were the judge in this case, how would this
victim impact statement influence your sentencing? Finally,
discuss whether you think victim impact statements are a
necessary part of a criminal case. Be sure to provide a link to
the video or site in your initial post
Reference
National Center for Victims of Crime. (2012). Victim impact
statements. Retrieved from http://victimsofcrime.org/help-for-
crime-victims/get-help-bulletins-for-crime-victims/victim-
impact-statements
Reading material
Daigle, L. E. (2018). Victimology (2nd ed.). Thousand Oaks,
CA: Sage Publishing.Chapter 5, “Victims’ Rights and
Remedies” (pp. 59–74)
Victimology, 2nd Edition by Daigle, L.E. Copyright 2018 by
Sage College. Reprinted by permission of Sage College via the
Copyright Clearance Center.
Chapter 5 Victims’ Rights and RemediesLet’s revisit Polly now
that it has been a few days since she was victimized. Remember
that Polly is a young undergraduate student who was accosted
by two offenders as she was walking home. Her school bag was
stolen, and she was assaulted. Unlike most victims, Polly called
the police to report what had happened to her. She had to have
10 stitches at the hospital. Clearly a victim, she was still

3. questioned by the police about why she was walking home alone
at night. She very well may have felt victimized by this
questioning—and we know that she had a hard time emotionally
after being victimized. She found it hard to get out of bed, and
she missed several classes—she even altered her schedule and
stopped going out alone at night.In Chapter 3, you considered
the toll this victimization took on Polly—on her emotions and
her lifestyle, and of course financially. As you know, Polly is
not alone in suffering these costs. Many victims experience real
costs and consequences. But how do victims deal with these
outcomes? Are they left to recover on their own, or are services
available to them? Whose responsibility is it to help crime
victims? What happens when crime victims do not get the help
they need and deserve? All these questions are addressed in this
chapter, and as you will see, a variety of rights and resources
are available to crime victims today.Victims’ RightsOnce
essentially ignored by the criminal justice system and the law,
victims are now granted a range of rights. These rights have
been given to victims through legislation and, in 32 states,
through victims’ rights amendments to state constitutions
(National Center for Victims of Crime, 2009). The first such
law that guaranteed victims’ rights and protections was passed
in Wisconsin in 1979; now, every state has at least some form
of victims’ rights legislation (Davis & Mulford, 2008). Despite
each state having laws that afford victims’ rights, they differ in
whom the law applies to, when the rights begin, what rights
victims have, and how the rights can be enforced. Common to
all these state laws, however, is the goal of victims’ rights—to
enhance victim privacy, protection, and participation (Garvin,
2010).Common Victims’ Rights Given by StateSlightly less than
half of U.S. states give all victims rights (Howley & Dorris,
2007). In all states, the right to compensation, notification of
rights, notification of court appearances, and ability to submit
victim impact statements before sentencing are granted to at
least some victim classes (Deess, 1999). Other common rights
given to victims in the majority of states are the right to

4. restitution, to be treated with dignity and respect, to attend
court and sentencing hearings, and to consult with court
personnel before plea bargains are offered or defendants
released from custody (Davis & Mulford, 2008). Other rights
extended to victims are the right to protection and the right to a
speedy trial. Importantly, some states explicitly protect victims’
jobs while they exercise their right to participate in the criminal
justice system. These protections may include having the
prosecutor intervene with the employer on behalf of the victim
or prohibiting employers from penalizing or firing a victim for
taking time from work to participate (National Center for
Victims of Crime, 2009). Some of these rights are discussed in
more detail next, and others are discussed in separate parts of
this chapter. To see an example of what rights a state grants, see
the box on victims’ rights in Virginia.NotificationThe right to
notification allows victims to stay apprised of events in their
cases. Notification is important for victims at various steps in
the criminal justice process. In some jurisdictions, victims have
the right to be notified when their offender is arrested and
released from custody after arrest, such as on bail. Victims may
also have the right to be notified about the time and place of
court proceedings and any changes made to originally scheduled
proceedings. Notification may also be given if the offender has
a parole hearing and when the offender is released from custody
at the end of a criminal sanction. Notification responsibilities
may be placed on law enforcement, the prosecutor, and the
correctional system. To make notification more systematic and
reliable, some jurisdictions use automated notification systems
to update victims (through letters or phone calls) about changes
in their cases. These systems are often also set up so that a
victim can call to receive updates. Some states have also moved
to allowing e-mail updates for notification purposes. For
instance, Maryland recently passed such legislation in 2014
(Basu, 2014). Victims of federal crimes can register to
participate in the national automated victim notification
system.Box 5.1 Victims’ Rights in VirginiaThe Victim Services

5. Unit provides the following services to victims of
crime:Advocacy on behalf of crime victimsNotification of
changes in inmate transfers, release date, name change, escape,
and capture Explanation of parole and probation supervision
processAccompaniment to parole board appointments when
requested by the victimOngoing support, crisis intervention,
information, and referralsTraining, education, and public
awareness initiatives on behalf of victims of crimeVictims can
register to be notified through Victim Information and
Notification Everyday (VINE).VINE is a toll-free, 24-hour,
anonymous, computer-based telephone service that provides
victims of crime two important features, information and
notification. Victims may call VINE from any touch-tone
telephone, any time, to check on an inmate’s custody status. For
inmate information, call 1-800-467-4943 and follow the
prompts.
Participation and ConsultationOne of the overarching goals of
the victims’ rights movement was to increase participation and
consultation by victims in all stages of the criminal justice
system. One way victims are encouraged to participate is by
submitting or presenting a victim impact statement, which is
discussed later in this chapter under “Remedies and Rights in
Court.” Another way victims may participate is by consulting
with judges and/or prosecutors before any plea bargains are
offered or bail is set. Consultation may also occur before an
offender is paroled or sentenced (Davis & Mulford, 2008).Right
to ProtectionVictims may also need protection as they navigate
the criminal justice process. Victims may be fearful of the
offender and the offender’s friends and family. Participation in
the criminal justice system may, in fact, endanger victims. In
response to this potential danger, many states include safety
measures in their victims’ rights, falling under the category of
right to protection. For example, victims may be able to get no-
contact or protective orders that prohibit the defendant from
having any contact with the victim. Victims may also be

6. provided with secure waiting facilities in court buildings.
Victim privacy is also protected ever-increasingly in states;
some disclose only minimal victim information in criminal
justice records—such as law enforcement and court records
(Davis & Mulford, 2008).Right to a Speedy TrialYou have
probably heard of offenders having a right to a speedy trial, but
did you know that about half of all states also provide victims
with this right? Although not as explicit as an offender’s right,
this right given to victims ensures that the judge considers the
victim’s interests when ruling on motions for continuance. In
other words, in states that give victims this right, decisions
about postponing a trial cannot be made without consideration
of the victim. Some states also explicitly provide for
accelerated dispositions in cases with disabled, elderly, or
minor children victims (Davis & Mulford, 2008).Rights Related
to EvidenceIn general, crime victims have the right to have any
of their property that has been taken as evidence returned to
them. In addition to this general right, recent attention has been
given to the storage and testing of evidence, particularly as it
relates to sexual assault and rape cases. In some states, victims
are protected from having to pay for evidence collected such as
a rape kit. They also do not have to pay for the testing of these
kits. Other states have passed legislation related to notification
of the status of their kits and whether a match has been
identified. California’s Sexual Assault Victims’ DNA Bill of
Rights (2003) provides victims of sexual assault the right to be
informed of the status of their kit and whether a match has been
identified. Similar legislation was passed in 2013 in Texas.
Texas grants victims the right to receive notice when evidence
is compared to DNA profiles stored in databases (National
Center for Victims of Crime, n.d.-c).Issues With Victims’
RightsAlthough victims’ advocates have hailed the adoption of
legislation and state-level amendments that give victims rights,
the adoption of victims’ rights has also come with problems.
There has been some resistance to states and the federal
government giving victims formal rights. Remember that

7. criminal law is written in such a way as to make crimes harms
against the state rather than the victim. Also think about how
the U.S. Constitution provides widespread rights to those
persons suspected of committing crimes. The U.S. Constitution
does not currently include any language that provides victims
with rights—but it does for persons suspected of committing
crimes. Although this omission has been identified by some as
deserving remedy, others argue that victims’ rights do not have
a place in our Constitution (R. Wallace, 1997). Concerns have
also been expressed that providing victims with rights will
create a burden on our already overburdened criminal justice
system (Davis & Mulford, 2008).Also problematic is what to do
when victims’ rights are not protected. What happens if a victim
is not notified? Who is responsible? Does the victim have any
recourse, legal or otherwise, when a right is violated? Many
states do not have specific enforcement strategies in place in
their victims’ rights legislation, although states that have
constitutional amendments generally have enforceable rights in
the event that a state official violates a victim’s constitutional
rights. Victims may also seek a writ of mandamus, which is a
court order that directs an agency to comply with a law
(National Center for Victims of Crime, 2009). For other
victims, although they are given rights on paper, there is little
they can do if their rights are not protected. To remedy this,
some states—such as California, in its passage of Marsy’s
Law—have passed legislation that is more comprehensive and
includes language that gives victims the right to enforce their
rights in court, called legal standing (National Victims’
Constitutional Amendment Passage, n.d.). Some states have set
up a designated agency to handle crime victims’ complaints
(NationalVictims may register with VINE for an automated
notification call when an inmate is released, transferred,
escapes, and to learn of an inmate’s parole status if the inmate
is parole eligible.Victims of crime can address the Parole Board
if they have any concerns regarding the release of an offender.
Victims have the option of voicing their concerns through

8. letters or through an in-person appointment with the Parole
Board.If victims would like a staff member of the Department
of Corrections, Victim Services Unit to accompany them to the
appointment, they can contact the Department of Corrections,
Victim Services Unit.Source: Virginia Department of
Corrections, Victim services. Retrieved from
http://www.vadoc.state.va.us/victim.Center for Victims of
Crime, 2009). Despite these developments, many state victims’
bills of rights specifically note that when victims’ rights are
violated, the crime victim does not have the ability to sue
civilly a government agency or official. Whatever the redress
allowed to victims, you can probably see that for victims, not
having their rights protected may feel like an additional
victimization and one that they can do little about—at least not
easily.Federal LawThus far, we have discussed common rights
that states grant to victims of crime, but the federal government
has also recognized the importance of protecting the rights of
crime victims. (See Table 5.1 for a timeline and brief
description of key pieces of federal legislation related to
victims’ rights.) In 1982, the President’s Task Force on Victims
of Crime published a report that included 68 recommendations
for how victims could receive recognition and get the rights and
services they deserve. These recommendations led, in part, to
the development of legislation that would grant victims their
first federal rights. The first such piece of legislation passed
was the federal Victim Witness Protection Act (1982). This act
mandated that the attorney general develop and implement
guidelines that outlined for officials how to respond to victims
and witnesses. Two years later, the Victims of Crime Act (1984)
was passed to create the Office for Victims of Crime and to
provide funds to assist state victim compensation programs. The
funds are generated from fines and fees and from seized assets
of offenders who break federal law. A critical step in victims’
rights also occurred with passage of the Child Victims’ Bill of
Rights (1990), which extended victims’ rights to child victims
and witnesses. Child victims and witnesses were granted rights

9. to have proceedings explained in language they can understand;
to have a victims’ advocate present at interviews, hearings, and
trials; to have a secure waiting area at trials; to have personal
information kept private unless otherwise specified by the child
or guardian; to have an advocate to discuss with the court their
ability to understand proceedings; to be given information about
and referrals to agencies for assistance; and to allow other
services to be provided by law enforcement. The Crime Control
Act (1990) and the Victims’ Rights and Restitution Act (1990)
were also passed, creating a federal bill of rights for victims of
federal crime and guaranteeing that victims have a right to
restitution. Specifically, victims of federal crimes were given
the right toTable 5.1 Federal Legislation Pertaining to Victims’
Rights Legislation Timeline Key ProvisionsVictim Witness
Protection Act (1982)Provided for the punishment of anyone
who tampers with a witness, victim, or informantRequired
notification, if victim provided address and telephone number,
for arrest of the accused, times of court appearances at which
victim may appear, release or detention of accused, and
opportunities for victim to address the sentencing
courtRecommended federal officials consult with victims and
witnesses regarding proposed dismissals and plea
negotiationsRequired that officials not disclose the names and
addresses of victims and witnessesVictims of Crime Act
(1984)Established the Crime Victims Fund, which promoted
state and local victim support and compensation
programsAmended, in 1998, to require state programs to include
survivors of victims of drunk driving and domestic violence in
eligibility for federal fundsChild Victims’ Bill of Rights
(1990)Children who are victims or witnesses are provided these
rights:Proceedings explained in language children can
understandA victims’ advocate present at interviews, hearings,
and trialA secure waiting area at trialCertain personal
information kept private unless otherwise specified by the child
or guardian An advocate to discuss with the court their ability
to understand proceedingsInformation provided about agencies

10. for assistance and referrals made to such agenciesVictims’
Rights and Restitution Act (1990)Provided victims with the
right tobe reasonably protected from the accused;receive
reasonable, accurate, and timely notice of any public proceeding
involving the crime or any release or escape of the accused and
to not be excluded from such proceedings;be reasonably heard
at any public proceeding involving release, plea, or
sentencing;confer with the attorney for the government in the
case;be given full and timely restitution as provided by
law;have proceedings free from unreasonable delay; andbe
treated with fairness and with respect for the victim’s dignity
and privacy.
Violent Crime Control and Law Enforcement Act
(1994)Violence Against Women Act (1994)Antiterrorism and
Effective Death Penalty Act (1996)Victims’ Rights Clarification
Act (1997)Provided $1 billion to programs designed to reduce
and respond to violence against women Increased funding for
victim compensation programs and established a national sex
offender registryMade restitution mandatory in violent
crimeExpanded compensation and assistance to victims of
terrorismGave victims the right to provide victim impact
statements during sentencing in capital and noncapital cases,
and the right to attend the trial of their offender was
clarifiedAllocated $1.6 billion to fight violence against
womenIncluded money for victims’ services and advocates and
for rape education and community prevention programsViolence
Against Women Act (2000)Provided additional protections for
immigrant victims of domestic violenceAuthorized funding for
rape prevention and education, battered women’s shelters, and
transitional housing for female victims of violence; addressed
violence against older women and those with disabilitiesJustice
for All Act (2004)Provided additional federal protections of
crime victims’ rightsProvided funding to test the substantial
backlog of DNA samples collected from crime scenes and
convicted offendersViolence Against Women Act (2013)Gave

11. tribal courts authority to prosecute offenders in their
communities even if not Native American Prohibited survivors
of domestic violence and sexual assault from being evicted from
federally subsidized housing programsRequired colleges and
universities to record incidents of dating violence, to implement
programs to prevent its occurrence, and to provide resources to
victimsProhibited discrimination of LGBTQ survivors of violent
crimes when seeking assistance from victim services and/or
protectionStrengthened provisions for immigrant
survivorsSexual Assault Forensic Evidence Reporting Act
(2013)Provided for the auditing of samples of sexual assault
evidence awaiting testingEnsured collection and processing of
DNA by law enforcement agencies was done in a timely fashion
and in alignment with established protocols and
practicesRequired the FBI to establish and publish protocols
and practices that identified how DNA evidence should be
collected for accuracy, timeliness, and effectivenessa. be
reasonably protected from the accused;b. receive reasonable,
accurate, and timely notice of any public proceeding involving
the crime or any release or escape of the accused andnot be
excluded from such proceedings;c. be reasonably heard at any
public proceeding involving release, plea, or sentencing;d.
confer with the attorney for the government in the case;e.
receive full and timely restitution as provided by law;f. be
assured of proceedings free from unreasonable delay; andg. be
treated with fairness and with respect for the victim’s dignity
and privacy.The acts also provide that the court ensures that
crime victims are afforded these rights.The 1990s also saw the
adoption of the Violent Crime Control and Law Enforcement
Act (1994), which included the implementation of the Violence
Against Women Act (1994) (VAWA) that gave more than $1
billion to programs designed to reduce and respond to violence
against women. It also increased funding for victim
compensation programs and established a national sex offender
registry (Gundy-Yoder, 2010). The Antiterrorism and Effective
Death Penalty Act (1996) was also passed, making restitution

12. mandatory in violent crime cases and further expanding
compensation and assistance to victims of terrorism. Victims
were given the right to provide victim impact statements during
sentencing in capital and noncapital cases, and the right to
attend the trials of their offenders was clarified via the Victims’
Rights
Clarification Act (1997).Victims’ rights were further expanded
in the first part of the 21st century. The Violence Against
Women Act (2000) was signed into law as part of the Victims of
Trafficking and Violence Protection Act of 2000. It
reauthorized some previous VAWA funding. This legislation
also authorized funding for rape prevention and education,
battered women’s shelters, and transitional housing for female
victims of violence and addressed violence against older women
and those with disabilities. This act also expanded the federal
stalking statute to include stalking over the Internet. The
Violence Against Women Act (2013) was reauthorized 13 years
later. Among other provisions, it expands housing protections
for victims of domestic violence in all federally subsidized
housing programs and protects victims of sexual assault, adds
additional protections for dating violence on college campuses,
and expands protection for LGBTQ survivors of violence from
discrimination so they can receive services. The Justice for All
Act (2004) strengthens federal crime victims’ rights and
provides enforcement and remedies when there is not
compliance. It also provides monies to test the backlog of rape
kits. Further attention has been given to the testing of rape kits
at the federal level. The Sexual Assault Forensic Evidence
Reporting Act (2013) (SAFER), which became law as part of
the reauthorization of the Violence Against Women Act,
amended the Debbie Smith Act (2004) to create grants to audit
the sexual assault kit backlog (the Debbie Smith Act provided
federal funding for state and local governments to address the
backlog of kits at laboratories). It also mandates that at least
75% of allocated funding must be used to reduce the backlog

13. and increase capacity of labs to process these kits through 2018
(National Center for Victims of Crime, n.d.-a).Despite the
provision and expansion of victims’ rights at the federal level,
there is still not a federal constitutional amendment. This lack
of adoption may be somewhat surprising because the National
Victims’ Constitutional Amendment Network and Steering
Committee was formed in 1987 and federal victims’ rights
constitutional amendments were introduced in both the House
and the Senate in 1996. Additional victims’ rights constitutional
amendments were introduced in 1997, 1998, 1999, 2000, 2003,
and 2004 (Maryland Crime Victims’ Resource Center, 2007).
Such an amendment has yet to be adopted.Financial RemedyIn
Chapter 3, you read about the substantial costs that victims face
after being victimized. Some of these costs are financial.
Victims may lose time from work, have hospital bills, seek and
pay for mental health care, need a crime scene cleaned, or lose
income from a loved one’s death. To help assuage some of these
costs, victims can apply for financial compensation from the
state, receive restitution from the offender, or seek remedy
civilly.Victim CompensationOne way victims can receive
financial compensation for their economic losses is through
state-run victim compensation programs. First begun in 1965 in
California, victim compensation programs now operate in every
state. Money for compensation comes from a variety of sources.
A large portion of funding comes from criminals themselves—
fees and fines are collected from people charged with criminal
offenses. These fees are attached to the normal court fees
offenders are expected to pay. In addition, the Victims of Crime
Act (1984) (VOCA) authorized funding for state compensation
and assistance programs. Today, the VOCA Crime Victims Fund
provides more than $730 million annually to states to assist
victims and constitutes about one-third of each program’s
funding (National Association of Crime Victim Compensation
Boards, 2014). Not only did VOCA increase funding for state
programs, but it also required states to cover all U.S. citizens
victimized within the state’s borders, regardless of the victim’s

14. residency. It also required that states provide mental health
counseling and that victims of domestic violence as well as
drunk driving be covered. In the 2-year budget deal struck in
2015, $1.5 billion was diverted from the Crime Victims Fund,
so it remains to be seen how the fund will continue to operate in
the future and how states will fund their programs (Sowyer,
2015).Not all victims, however, are eligible for compensation
from the Crime Victims Fund. Only victims of rape, assault,
child sexual abuse, drunk driving, domestic violence, and
homicide are eligible, because these crimes are known to create
undue hardship for victims (Klein, 2010). In some states,
victims must have experienced physical injury, whereas in
others, if they experienced serious emotional trauma from the
victimization, they are also eligible (Evans, 2014). In addition
to the type of victimization, victims must meet other
requirements to be eligible:Report the victimization promptly to
law enforcement, usually within 72 hours of the victimization,
unless good cause can be shown, such as being a child,
incarcerated, or otherwise incapacitatedCooperate with law
enforcement and prosecutors in the investigation and
prosecution of the caseSubmit application for compensation that
includes evidence of expenses within a specified time, generally
1 year from the date of the crimeShow that costs have not been
compensated by other sources such as insurance or other
programsEnsure they have not participated in criminal conduct
or significant misconduct that caused or contributed to the
victimizationVictims can be compensated for a wide variety of
expenses, including medical care costs, mental health treatment
costs, funeral costs, and lost wages. Some programs have
expanded coverage to include crime scene cleanup,
transportation costs to receive treatment, moving expenses,
housekeeping costs, and child-care costs (Klein, 2010). Other
expenses for which victims may be compensated include the
replacement or repair of eyeglasses or corrective lenses, dental
care, prosthetic devices, and forensic sexual assault exams.
Note that property damage and loss are not compensable

15. expenses (Office for Victims of Crime, 2012), and only two
states (Hawaii and Tennessee) currently pay for pain and
suffering (Evans, 2014). States have caps in place that limit the
amount of money a crime victim may receive from the Crime
Victims Fund, generally ranging from $10,000 to $25,000 per
incident. On average, the maximum victims can receive is
$26,000. Some states also allow for monies for catastrophic
injuries and permanent disability, ranging from $5,000 to
$150,000 (Evans, 2014).Although compensation clearly can
provide a benefit for victims, there are some problems with
current compensation programs. One problem is that only a
small portion of victims eligible for compensation actually
receive monies from these funds. In addition, even when people
do apply for compensation, there is no guarantee they will
receive benefits. Data from victim compensation claims in 2012
showed that about one- fourth of claims were denied (Office for
Victims of Crime, 2013). The programs also do not seem to
encourage participation in the criminal justice system. There is
little evidence that persons who receive compensation are any
more satisfied than others (Elias, 1984) or that they are more
likely to participate in the criminal justice process (Klein,
2010).RestitutionUnlike monies from crime victims’ funds,
restitution is money paid by the offender to the victim.
Restitution is made by court order as part of a sentence—the
judge orders the offender to pay the victim money to
compensate for expenses. Much like compensation programs,
expenses that may be recovered through restitution include
medical and dental bills, counseling, transportation, and lost
wages. Restitution can also be ordered to cover costs of stolen
or damaged property, unlike in crime victim compensation
programs. Restitution cannot be ordered to cover costs
associated with pain and suffering; it is limited to tangible and
documentable expenses.Restitution has its benefits. It is based
on the notion of restorative justice, which seeks to involve the
community, the offender, and the victim in the criminal justice
system. Paying restitution helps restore both the offender and

16. the victim to their precrime status. Problematic, however, is that
the offender must first be caught for restitution to be ordered.
Often, crimes go unreported and offenders remain free from
arrest. Even if an offender is arrested, it may be difficult for the
court to determine an appropriate amount for restitution. How
much money should be paid in restitution to a victim whose
mother’s engagement ring was stolen? The ring’s worth to the
victim may far outweigh the dollar amount a judge would
require the offender to pay in restitution. In addition, many
offenders lack sufficient funds to pay victims immediately, even
when court ordered. As a result, restitution may not be
met.Civil LitigationAlthough compensation and restitution
programs may significantly aid victims in recouping crime
victimization costs, not all economic costs may be covered.
Recall, too, that neither program addresses pain and suffering
costs (except for the two states that allow compensation for pain
and suffering). To seek redress for these uncompensated costs,
victims may pursue civil litigation against the offender. There
are some key advantages afforded to a plaintiff (the person
filing the lawsuit) in a civil suit. That person is a party to the
lawsuit and is allowed to make key decisions regarding whether
to accept a settlement—unlike in criminal court, where it is the
state versus the defendant (National Crime Victim Bar
Association, 2007). Persons can seek money for emotional as
well as physical harm.In addition, the burden of proof is
different in the civil justice system. Liability must be proved by
a fair preponderance of the evidence, not beyond a reasonable
doubt, which is the standard of proof in the criminal justice
system. If the court finds that the defendant is in fact liable,
then the offender is held financially accountable for the harm
caused to the defendant. Much like with restitution, however,
the likelihood of the victim actually receiving the money
awarded is tied to the offender being identified and the
offender’s ability to pay. Accordingly, it may be quite difficult
for the victim to recover damages awarded. Also, the costs of
entering into a civil lawsuit must be borne by the victim and can

17. be quite expensive. The victim may have to hire an attorney,
and civil lawsuits can sometimes drag on for years.Remedies
and Rights in CourtRights are also afforded to crime victims in
other phases of the criminal justice system. Although not
discussed in detail in this chapter, police are often the first
level of criminal justice with which crime victims interact. The
response that victims receive from them may shape how they
view the criminal justice system as a whole and may impact
their future dealings (or not) with the system should they be
victimized again. It seems that when police meet victims’
expectations, victims report high levels of satisfaction. When
victims’ expectations are not met, however, victims report
lower levels of satisfaction (Chandek & Porter, 1998). That is,
it is expectation in conjunction with what the police do that
impacts overall satisfaction with the police. In addition to the
police, the prosecutor and the courts also provide crime victims
with rights. These rights are discussed next.Victim Impact
StatementsAs previously discussed, the criminal trial involves
two parties in an adversarial system that reflects crime as a
harm against the state. As such, historically, victims seldom
played more than the role of witness in the criminal trial. Not
until the 1970s did victims receive rights that guaranteed them
at least some voice in the criminal trial process. One of these
rights was first adopted in 1976 in Fresno, California, and it
gave the victim an opportunity to address the court through a
victim impact statement (VIS). The VIS can be submitted by
direct victims and by those who are indirectly impacted by
crime, such as family members. The VIS is either submitted in
writing or presented orally (victim allocution).Photo 5.1. A
victim delivers her victim impact statement in court during
sentencing.
© iStockphoto.com/Rich LeggIn the VIS, the harm caused is
typically detailed, with psychological, economic, social, and
physical effects included. Depending on the jurisdiction, the
victim or others presenting a VIS may also provide a

18. recommendation as to what the offender’s sentence should be.
Take a look at Box 5.2, “Excerpt From Stanford Rape Victim’s
Impact Statement,” to see an example of a VIS. In this case, the
woman who was raped wrote a 13-page 7,000-word VIS and
read it during sentencing. Her assailant, although convicted of
three felonies—sexual assault of an unconscious person, sexual
assault of an intoxicated person, and sexual assault with intent
to commit rape—was ultimately sentenced to 6 months in jail
and 3 years of probation (Murdock, 2016). Not only may the
victim enter a VIS at sentencing, but most states allow for the
victim to make a VIS at parole hearings as well. In some cases,
the original VIS is included in the offender’s file and will be
considered during the parole process. In others, the victim is
allowed to update the original VIS and include additional
information that may be pertinent to the parole board. Less
common, the victim may be allowed to make a VIS during bail
hearings, pretrial release hearings, and plea bargaining hearings
(National Center for Victims of Crime, 1999). Importantly,
despite the victim’s wishes, the VIS is used only as information
and may impact the court’s decision, but not always. As noted
by the Minnesota Court of Appeals in State v. Johnson (1993),
although the victim’s wishes are important, they are not the
only consideration or determinate in the prosecutor’s decision
to bring a case to trial.There are many reasons to expect a VIS
to benefit victims. It gives victims a right to be heard in court
and allows their pain and experience to be acknowledged in the
criminal justice process. As such, a VIS may be therapeutic,
especially if a victim’s statement is referred to by the
prosecutor or judge and if the victim’s recommendation is in
accordance with the sentence the offender receives. In addition
to this potential therapeutic benefit, a VIS may also provide
valuable information to the court and criminal justice actors that
allows them truly to understand the impact criminal behavior
has on victims. It may help the judge give a sentence that is
more reflective of the true harm caused to the victim. Also, it
may prove beneficial to offenders to hear the impact of their

19. crimes. Hearing the extent to which their actions hurt another
person makes it more difficult for offenders to rationalize their
behavior.Despite these proposed benefits, not all victims use the
right to make a VIS. For example, recent data from Texas show
that only 22% of VIS applications distributed to crime victims
were returned to district attorneys’ offices. The type of
victimization for which a VIS was submitted was most
commonly sexual assault of a minor, followed by robbery (Yun,
Johnson, & Kercher, 2005).Nonetheless, the reasons that
victims in general do not make a VIS are varied. They may not
feel comfortable putting their feelings in writing or going to
court and making a public statement; they may fear the offender
and being retaliated against. Others may not be fully aware of
their right to make a VIS or not know how to go about using
this right. Although it is certainly a victim’s choice to make or
not make a VIS, it may have an impact on the sentence the
offender receives. Recent research shows that when a VIS is
made in capital cases, there is an increased likelihood that the
offender will be sentenced to death (Blumenthal, 2009).
Although a clear impact on noncapital offenses is not evident,
research suggests that when a VIS does impact sentencing, it
does so in a punitive fashion (Erez & Globokar, 2010).
Although speculative, the reason behind this influence may be
tied to the influence that hearing from the victim and his or her
family has on a jury member’s emotions. Research shows that
being exposed to a VIS may increase feelings of hostility,
anger, and vengefulness toward offenders (Paternoster & Deise,
2011). Other research has found that not all jury members
respond the same to a VIS. Rather, it is those who have a
tendency to approach emotions who are likely to respond with
hostility and, as a result, recommend longer sentences
(Wevodau, Cramer, Kehn, & Clark, 2014).A VIS may be good
for the victim, but it does raise the issue of equal justice for
offenders. Does an offender deserve a more severe penalty
because a VIS is made? Conversely, do victims not deserve to
have their offenders penalized as severely as others if they are

20. not able or willing to make a VIS? This issue underlies some of
the debate surrounding the use of the VIS. The constitutionality
of the VIS has been questioned, particularly in capital cases.
Current case law makes it constitutional for a VIS to be made in
capital cases. In Payne v. Tennessee (1991), the U.S. Supreme
Court found that how the victim is impacted does not negatively
impact the rights of the defendant—a VIS is a way to inform the
court about the harm caused. This decision allowed states to
decide whether to allow a VIS in capital cases.The positive
benefit for victims may be overstated in that making a VIS can
be traumatizing for victims (Bandes, 1999). Victims may also
be dissatisfied if their recommendations are not followed
(Davis, Henley, & Smith, 1990; Erez, Roeger, & Morgan, 1994;
Erez & Tontodonato, 1992). Furthermore, victims who make a
VIS may not be likely to use and participate in additional
criminal proceedings if they are victimized again, one of the
key considerations in granting victims’ rights (Erez &
Globokar, 2010; Kennard, 1989).Victim/Witness Assistance
ProgramsVictim/witness assistance programs (VWAPs) provide
victims with assistance as they navigate the criminal justice
system. These programs are designed to ensure that victims
know their rights and have the resources necessary to exercise
these rights. At their heart, however, is a goal to increase victim
and witness participation in the criminal justice process,
particularly as witnesses, with the notion that victims who have
criminal justice personnel assisting them will be more likely to
participate and to be satisfied with their experience.These
programs first began in the 1970s, with the first program
established in St. Louis, Missouri, by Carol Vittert (Davies,
2010). Although not sponsored by the government, Vittert and
her friends would visit victims and offer them support. Two
years later, the first government victim assistance programs
were developed in Milwaukee, Wisconsin, and Brooklyn, New
York. Not long after, in 1982, the Task Force on Victims of
Crime recommended that prosecutors better serve victims.
Specifically, the task force noted that prosecutors should work

21. more closely with crime victims and receive their input as their
cases are processed. It also noted that victims need protection
and that their contributions should be valued—prosecutors
should honor scheduled case appearances and return personal
property as soon as possible. To this end, VWAPs have been
developed, most commonly administrated through prosecutors’
offices but also sometimes run through law enforcement
agencies. At the federal level, each U.S. attorney’s office has a
victim witness coordinator to help victims of federal
crimes.Today, these programs most commonly provide victims
with background information regarding the court procedure and
their basic rights as crime victims. Notification about court
dates and changes to those dates is also given. They also
provide victims with information regarding victim compensation
and aid them in applying for compensation if eligible. A victim
who wishes to make a VIS can also receive assistance from the
VWAP in doing so. Another service offered by VWAPs is
making sure the victims and witnesses have separate waiting
areas in the courthouse for privacy. In some instances, VWAP
personnel will attend court proceedings and the trial with the
victim and his or her family.Box 5.2 Excerpt From Stanford
Rape Victim’s Impact Statement“One day, I was at work,
scrolling through the news on my phone, and came across an
article. In it, I read and learned for the first time about how I
was found unconscious, with my hair disheveled, long necklace
wrapped around my neck, bra pulled out of my dress, dress
pulled off over my shoulders and pulled up above my waist, that
I was butt naked all the way down to my boots, legs spread
apart, and had been penetrated by a foreign object by someone I
did not recognize. This was how I learned what happened to me,
sitting at my desk reading the news at work. I learned what
happened to me the same time everyone else in the world
learned what happened to me. That’s when the pine needles in
my hair made sense, they didn’t fall from a tree. He had taken
off my underwear, his fingers had been inside of me. I don’t
even know this person. I still don’t know this person. When I

22. read about me like this, I said, this can’t be me. This can’t be
me. I could not digest or accept any of this information. I could
not imagine my family having to read about this online. I kept
reading. In the next paragraph, I read something that I will
never forgive; I read that according to him, I liked it. I liked it.
Again, I do not have words for these feelings ...When I was told
to be prepared in case we didn’t win, I said, I can’t prepare for
that. He was guilty the minute I woke up. No one can talk me
out of the hurt he caused me. Worst of all, I was warned,
because he now knows you don’t remember, he is going to get
to write the script. He can say whatever he wants and no one
can contest it. I had no power, I had no voice, I was defenseless.
My memory loss would be used against me. My testimony was
weak, was incomplete, and I was made to believe that perhaps, I
am not enough to win this. That’s so damaging. His attorney
constantly reminded the jury, the only one we can believe is
Brock, because she doesn’t remember. That helplessness was
traumatizing.”Source: Stanford Rape Victim Statement, 2016.
Retrieved from
https://assets.documentcloud.org/documents/2854755/Victimstat
ement.pdfDespite the efforts of VWAPs, research shows that
some of the first of these programs did little to improve victim
participation. The Vera Institute of Justice’s Victim/Witness
Assistance Project, which ran in the 1970s, provided victims
with a wide range of services—day care for children while
parents were in court, counseling for victims, assistance with
victim compensation, notification of all court dates, and a
program that allowed victims to stay at work rather than come
to court if their testimony was not needed—to little success
(Herman, 2004). An evaluation of the project showed that
victims were no more likely to show up at court than those
without access to these services. It was not until the Vera
Institute developed a new program that provided victim
advocates to go to court with victims that positive outcomes
emerged. This program did, in fact, then have a positive
influence on attendance in court (Herman, 2004). Few of the

23. programs provide services identified in the research literature as
most critical; instead, VWAPs are largely oriented toward
ensuring that witnesses cooperate and participate in court
proceedings rather than that crime victims receive needed
services (Jerin, Moriarty, & Gibson, 1996).Family Justice
CentersFamily justice centers have recently begun opening
throughout the United States to better serve crime victims.
Because crime victims often need a variety of services, family
justice centers are designed to provide many services in “one
stop.” These centers often provide counseling, advocacy, legal
services, health care, financial services, housing assistance,
employment referrals, and other services (National Center on
Domestic and Sexual Violence, 2011). The advantages of
providing these services in one place are many—primarily,
victims can receive a plethora of services without having to
navigate the maze of health and social service agencies in their
jurisdiction.Restorative JusticeThe traditional criminal justice
system is adversarial, with the state on one side and the defense
on the other attempting to determine if the offender did in fact
commit a crime against the state. It is largely offender-
centered—the offender’s rights must be protected from
investigation to conviction—and the victim traditionally has not
been recognized as having a role beyond that of a witness,
because crimes are considered harms against the state.
Beginning in the 1970s, as discussed in Chapter 1, the victims’
rights movement sought to garner a larger role for victims in the
justice process and to ensure that victims are provided the
services they deserve from the state and community agencies.
Also during the 1970s, there was a movement in the criminal
justice system to get “tough on crime.” In doing so, more people
were sentenced to prison and for longer, and our correctional
system moved away from a rehabilitation model to a justice
model. No longer was the correctional system dedicated to
“fixing” offenders—rather, its main focus became public safety
by reducing crime. This reduction was thought to be achieved
through the use of tough criminal sanctions rather than

24. treatment for the offender. Although this experiment in
incarceration is not over, another movement less focused on
being punitive toward offenders within the criminal justice
system also emerged during the 1970s— the restorative justice
movement.The restorative justice movement formally began in
Canada in the 1970s, but some of its principles were in place
long before. Our first “systems” of justice did not define crimes
as harms against the state. As such, if a person was victimized,
it was up to him or her or the family to seek reparation from the
offender (Tobolowsky, 1999). It was essentially a victim-
centered approach. As crimes were redefined as harms against
the state (or the king), the system of justice that emerged was
more offender focused. Such a system was in place until the
1970s in the United States, when people began to advocate for
an increased role for the victim and for victims to receive rights
similar to those of offenders. The restorative justice movement
was an outgrowth of the attention given to the need for victims’
rights and pushback from adoption of a crime-control model
exclusively focused on punishment.The restorative justice
movement is based on the belief that the way to reduce crime is
not by solely punishing the offender or by adhering to a strict
adversarial system that pits the defendant against the state.
Instead, all entities impacted by crime should come to the table
and work together to deal with crime and criminals. In this way,
the restorative justice movement sees crime as harm to the state,
the community, and the victim (Johnstone, 2002). Accordingly,
instead of offenders simply being tried, convicted, and
sentenced without the victim and community playing more than
a cursory role, the system should develop and adopt strategies
to deal with crime that include all relevant parties. Instead of a
judge or jury deciding what happens to the offender, the
restorative justice movement allows for input from the offender,
the victim, and community members harmed by the offense in
making a determination of how to repair the harm caused by the
offender. In this way, justice is not just handed down and does
not just “happen”; it is a cooperative agreement. Simply stated,

25. restorative justice is a process “whereby parties with a stake in
a specific offence collectively resolve how to deal with the
aftermath of the offence and its implications for the future” (T.
F. Marshall, 1999, p. 5).What types of programs meet this
objective? Many of the programs in use today in the United
States and throughout the world were adapted from or based on
traditional practices of indigenous people, who, given their
communal living situation, often have a stake in group
members’ ability to collaboratively resolve issues (Centre for
Justice and Reconciliation, 2008). The most common types of
programs are victim–offender mediation or reconciliation
programs and restitution programs. Victim–offender mediation
is discussed shortly, and restitution was discussed earlier in this
chapter as a financial remedy for victims. Another program that
is restorative in nature is face-to-face meetings between the
victim and offender that do not involve formal mediation.
Family or community group conferencing is also restorative. In
this type of program, the victim, offender, family, friends, and
supporters of both the victim and offender collectively address
the aftermath of the crime, with the victim addressing how the
crime impacted him or her, thus increasing the offender’s
awareness of the consequences of the crime. Because supporters
of both sides are present, it allows additional people with a
stake in the process and outcome to give input. Victims and
offenders report high levels of satisfaction with group
conferencing (Centre for Justice and Reconciliation, 2008).
Restorative justice is also practiced through a peacemaking
circle or sentencing circle. A circle consists of the victim, the
offender, community members, victim and offender supporters,
and sometimes members of the criminal justice community such
as prosecutors, judges, defense attorneys, police, and court
workers. The goals of the circle are to “build community around
shared values” and to “promote healing of all affected parties,
giving theoffender the opportunity to make amends” and giving
all parties a “voice and shared responsibility in finding
constructive resolutions” (p. 2). The circles are also designed to

26. address the causes of criminal behavior. In sentencing circles,
the parties work together to determine the outcome for the
offender, whereas peacemaking circles are more focused on
healing.Victim–Offender Mediation ProgramsSome victims may
not wish to sit in the background and interact only on the
periphery of the criminal justice system. Instead, they may wish
to have face-to-face meetings with their offenders. As a way to
allow such a dialogue between victims and offenders, victim–
offender mediation programs have sprouted up throughout the
United States, with more than 300 such programs in operation
today. With the American Bar Association endorsing the use of
victim–offender mediation and what appears to be widespread
public support for these programs, victim– offender mediation
is likely to become commonplace in U.S. courts. Victim–
offender mediation is already widely used in other countries,
with more than 700 programs operating in Europe (Umbreit &
Greenwood, 2000).Mediation in criminal justice cases most
commonly occurs as a diversion from prosecution. This means
that if an offender and victim agree to complete mediation and
if the offender completes any requirements set forth in the
mediation agreement, then the offender will not be formally
prosecuted in the criminal justice system. In this way, offenders
receive a clear benefit if they agree to and successfully
complete mediation. Mediation can also take place as a
condition of probation. For some offenders, if they formally
admit guilt and are adjudicated, they may be placed on
probation by the judge with the condition that they participate
in mediation. In all instances, the decision to participate in
victim– offender mediation programs is ultimately up to the
victim. Most victims who are given the opportunity to
participate in victim–offender mediation do so (Umbreit &
Greenwood, 2000).Victim–offender mediation programs are
designed to provide victims—usually those of property crimes
and minor assaults—a chance to meet with their offenders in a
structured environment. The session is led by a third-party
mediator whose job it is to facilitate a dialogue through which

27. victims are able to directly address their offenders and tell them
how the crime impacted their lives. The victim may also ask
questions of the offender. To achieve the objectives of
restorative justice, mediation programs in criminal justice use
humanistic mediation, which is dialogue driven rather than
settlement driven (Umbreit, 2000). The impartial mediator is
there to provide unconditional positive concern and regard for
both parties, with minimal interruption. As noted by Mark
Umbreit (2000), humanistic mediation emphasizes healing and
peacemaking over problem solving and resolution. He notes
thatthe telling and hearing of each other’s stories about the
conflict, the opportunity for maximum direct communication
with each other, and the importance of honoring silence and the
innate wisdom and strength of the participants are all central to
humanistic mediation practice. (p. 4)One tangible outcome often
but not always stemming from victim–offender mediation is a
restitution plan for the offender, and in its developing, the
victim plays a central role. This agreement becomes enforceable
in court, whereby an offender who does not meet the
requirements can be held accountable.What happens after an
offender and victim meet? Do both offenders and victims
benefit? What about the community? It is important to evaluate
programs in terms of their effectiveness in meeting objectives,
and victim–offender mediation programs have been assessed in
this way. Collectively, this body of research shows many
benefits to victim–offender mediation programs. Participation in
victim–offender mediation has been shown to reduce fear and
anxiety among crime victims (Umbreit, Coates, & Kalanj,
1994), including post-traumatic stress symptoms (Angel, 2005),
and desire to seek revenge against or harm offenders (Sherman
et al., 2005; Strang, 2004). In addition, both offenders and
victims report high levels of satisfaction with the victim–
offender mediation process (McCold & Wachtel, 1998;
McGarrell, Olivares, Crawford, & Kroovand, 2000; see also
Umbreit & Greenwood, 2000). Victims who meet with their
offenders report higher levels of satisfaction than victims of

28. similar crimes whose cases are formally processed in the
criminal justice system (Umbreit, 1994). In addition to
satisfaction, research shows that offenders are more likely to
complete restitution required through victim–offender mediation
(Umbreit et al., 1994). More than 90% of restitution agreements
from victim–offender mediation programs are completed within
1 year (Victim–Offender Reconciliation Program Information
and Resource Center, 2006). Reduction in recidivism rates for
offenders also has been found (Nugent & Paddock, 1995;
Umbreit et al., 1994).As you can see, our system has changed
from victim-centered to entirely offender-focused and is now
bringing the victim back into focus. Crime victims are afforded
many rights in the criminal justice system. But, as you have
seen, it is sometimes difficult for victims to exercise these
rights, and they often have little recourse if their rights are not
protected. These issues will certainly continue to be addressed
as victims’ voices are heard and their needs
met.SummaryVictims were first granted rights in the law in
1979. All states give the right to compensation, notification of
rights, notification of court appearances, and ability to submit
victim impact statements before sentencing.Other states may
give the right to restitution, to be treated with dignity and
respect, to attend court and sentencing hearings, and to consult
with court personnel before plea bargains are offered or
defendants released from custody. Other rights will also protect
victims’ employment status so they can testify against their
offenders.
There has been some resistance to states and the federal
government giving victims formal rights. Although numerous
federal acts have been passed with victims’ rights in mind, there
still is no victims’ rights amendment in the U.S. Constitution.To
help assuage some of the financial costs of a crime, victims can
apply for financial compensation from the state, can receive
restitution from the offender, or can seek remedy in civil
court.A victim impact statement can be submitted by direct

29. victims and by those who are indirectly impacted by crime, such
as family members. In the victim impact statement, the harm
that was caused is typically detailed, with psychological,
economic, social, and physical effects included.Victim/witness
assistance programs provide victims with guidance as they
navigate the criminal justice system. These programs are
designed to ensure that victims know their rights and have the
resources necessary to exercise these rights. Another goal of
these programs is to increase the likelihood that a witness or
victim will interact with the criminal justice system.The
restorative justice movement is based on the belief that the way
to reduce crime is not solely by punishing the offender or by
adhering to a strict adversarial system that pits the defendant
against the state. Instead, all entities impacted by crime should
come to the table and work together to deal with crime and
criminals.To increase dialogue between offenders and victims,
victim–offender mediation programs have emerged throughout
the United States.Discussion Questions1. Do you think it is the
role of the criminal justice system to provide victims with
rights? How else could we ensure that victims receive help?2.
What rights does the state in which you reside provide to crime
victims? What rights do you think are most important?3. Why
would offenders be more likely to complete restitution in
victim–offender mediation? Could it be used for other types of
programs?Why or why not?4. What types of services would
Polly be eligible to receive? Explain.Key TermsAntiterrorism
and Effective Death Penalty Act (1996) 64 Child Victims’ Bill
of Rights (1990) 62civil litigation 66Crime Control Act (1990)
62diversion 72family or community group conferencing
71Justice for All Act (2004) 65notification 60participation and
consultation 61peacemaking circle 71restorative justice 70right
to a speedy trial 61right to protection 61sentencing circle
71Sexual Assault Forensic Evidence Reporting Act (2013) 65
victim compensation 65victim impact statement (VIS)
67victim–offender mediation programs 71Victims of Crime Act
(1984) 62victims’ rights 59Victims’ Rights and Restitution Act

30. (1990) 62Victims’ Rights Clarification Act (1997)
64victim/witness assistance programs (VWAPs) 69Victim
Witness Protection Act (1982) 62Violence Against Women Act
(1994) 64Violence Against Women Act (2000) 64Violence
Against Women Act (2013) 64Violent Crime Control and Law
Enforcement Act (1994) 64Internet ResourcesCentre for Justice
& Reconciliation: http://www.restorativejustice.orgThe
restorative justice movement is concerned with repairing harm
caused by crime. Centre for Justice & Reconciliation provides
information for criminal justice professionals, social service
providers, students, teachers, and victims. It includes links to
research as well as more general information. It also provides
information for restorative justice around the world.Guidelines
for Victim-Sensitive Victim–Offender Mediation:
https://www.ncjrs.gov/ovc_archives/reports/96517-
gdlines_victims- sens/ncj176346.pdfPublished by the Office for
Victims of Crime, this is a compilation of six documents that
cover issues related to restorative justice, including victim–
offender mediation and family group counseling. It provides
guidelines and criteria to enhance the quality of such restorative
justice initiatives and to make them more victim
sensitive.National Association of Crime Victim Compensation
Boards: http://www.nacvcb.org/links.htmlThis website provides
links to federal agencies and resources, national victim
organizations, national and state criminal justice victim-related
organizations, victim-related education links, state crime victim
compensation boards, federal and state correctional agencies,
victim service units, sex offender registries, and other
resources. It is your go-to website for links related to crime
victims.National Center for Victims of Crime Resource Library:
http://www.victimsofcrime.org/libraryThe center disseminates
information online for crime victims and people working with
crime victims or in the area of policy. In its resource library,
you can find information on victim impact statements; statistics
regarding the extent of various kinds of victimization; and
information on how to assist lesbian, gay, bisexual, transgender,

31. and queer victims, among other topics.
Holder, R. L. (2017). Victims, legal consciousness, and legal
mobilisation. In A. Deckert & R. Sarre (Eds.), The Palgrave
handbook of Australian and New Zealand criminology, crime
and justice (pp. 649–664). Cham, Switzerland: Palgrave
MacMillan. The Palgrave Handbook of Australian and New
Zealand Criminology, Crime and Justice, by Deckert, Antje,
Sarre, Rick (Eds.). Copyright 2017 by Springer Science & Bus
Media B V. Reprinted by permission of Springer Science & Bus
Media B V via the Copyright Clearance Center.
43Victims, Legal Consciousness, and Legal MobilisationRobyn
L. HolderThat victims construct crime is not a new conceptual
proposition. The interpretation the victim places on the event
has been presented as a moral one; whether as a crusade, panic,
or censure.1 To speak of the event as “a wrong” is cast as
moralising or hyper-moral. The impetus to turn to criminal
justice institutions for redress then becomes the peculiar action
of a private individual. Absent from these pictures is law and
consciousness of it. This chapter asks what law is to people
victimised by crime and how these meanings inform legal
mobilisation. It suggests that by connecting with legal authority
about everyday victimisation, victims do more than construct it
as a wrong: they make law.Making the victimisation event into
a law problem is not an obvious choice for members of the
public. The law is at once “strange and familiar”, accessible,
and remote (Ewick and Silbey 1998, 16). This chapter first re-
focusses on law and its different representations to then push it
to the margins by fore- grounding legal consciousness. The
understandings of law that “give meaning to people’s
experiences and actions” act as a counterweight to law-centric
visions (Ewick and Silbey 1998, 734). Through re-examining
literature on reporting crime, the chapter explores the spaces

32. between meaning-making and the actions people take. Taking
“seriously the idea that ordinary people can be legal actors”
(Marshall and Barclay 2003, 617) attends to what law offers and
how people interpret its relationship to their situated selves, an
assessment made by victims in part through the institutions of
police, prosecution, and criminal courts.R.L. Holder (&)Griffith
University, Queensland, Australia e-mail:
[email protected]
© The Author(s) 2017 649 A. Deckert and R. Sarre (eds.), The
Palgrave Handbook of Australian and New ZealandCriminology,
Crime and Justice, DOI 10.1007/978-3-319-55747-2_43650 R.L.
HolderFinally, the mobilisation of criminal law is discussed as a
practice influenced by cultural as well as legal schemas and as
emerging from people’s membership of a social and political
community of citizens.Law at the CentreLaw projects different
images within and to that community of citizens.2 Law’s “own
story” emphasises its centrality to liberal democracy through
the rule of law and its separation from that which is everyday
and unremarkable (Ewick and Silbey 1998, 83). It is a formal
presence and formal entity, comprising lofty adherence to rule
and principle and to immanent rationality. The authoritative
discourse of legal text, legal doctrine, and of professional legal
actors such as judges, lawyers, and legal academics is posed as
a reality of continuity, form, truth, and internal cohesion where
the law is its own master. Within this view, the law is
foundational to the consensus basis of a sovereign order.3 Here,
the law is command and its subjects are ordered, sanctioned,
and ruled.From this perspective, the impact of law and legal
practices is uni-directional but works in different ways.
Ordinary people4—citizens, complainants, defendants, and
litigants—are acted upon. If approaching law, they do so
cautiously. They are submissive before it. The law is taken to
transcend individuals and moments, and justness is presumed.
From this perspective, a key task is to improve access to the law
for it to do its work. If the law, legal procedure, and law’s
institutions are experienced in some frustration by citizens, this

33. does not weaken their authority. If approached by law, ordinary
people are most often portrayed as resisting, evading, and
recasting law and legality (Merry 1990). They are said to be
“against the law” and may be mulish, resentful, or defiant
(Ewick and Silbey 1998, 47–48). A task here is to restrain
law.However, viewing the law as self-governing detaches it
from its context. This is particularly so for criminal law. A law-
centric and state-centric posi- tion accentuates the threat and
control of sanction and renders ordinary people as external and
passive. Critics of legal centralism argue for an examination of
how people “understand and use law” (Merry 1990, 5). Such
enquiries may then answer “what kind of criminal law, serving
what ends and expressing what values, is appropriate for ...
citizens of a particular kind of polity.” This question makes a
very direct connection between “the law [and] those whom it
claims to bind as citizens” (Duff 2010, 3–5). It is an invitation
to look away from law’s centre and towards the everyday.
43 Victims, Legal Consciousness, and Legal Mobilisation
651Looking Away from Law: The Everyday and Legal
ConsciousnessIn everyday civic worlds, ordinary people act,
react, interact, and connect, they ignore, interpret, and
reconstruct, and they negotiate, manipulate, manage, mobilise,
and plan in a complex reality that is material and imagined (De
Certeau 1984). The everyday is riven with competing narratives
(Holmes 2009; Sarat and Kearns 1993). Multiple, often
overlapping, realities jostle, whether common “intimate
intrusions” of sexual and physical abuse (Stanko 1985) or the
“everywhere” of racial discrimination (Coles as cited in
Bumiller 1988, 70). The everyday comprises places, spaces, and
occasions where rules and laws are evaded, reinvented, and
discounted, as it is where they are made, remade, and respected
as habits5 of legality. Indeed, the consciousness of boundaries,
standards, possibilities, and mitigations does not require the
formal institutions of the state. These are submerged frames and
guides to social practices and interactions.As one of these

34. frames, the “discourse of law” provides language for meaning-
making and “shaping our taken-for-granted understandings of
the social world” (Albiston 2006, 56). Ewick and Silbey (1998)
suggest three approaches to the notion of legal consciousness.
One takes the beliefs, atti- tudes and actions of individuals and
social groups together to “determine the form and texture of
social life” (35). Liberal political and legal theory stress the
consensus forged around ideals of fairness and equal treatment,
and the law’s capacity to balance between ideals. A second
approach conceptualises law and legal consciousness as
epiphenomena because “a particular social and economic
structure is understood to produce a corresponding or
appropriate legal order, including legal subjects” (37). An
aspect of this perspective concentrates on the legitimating
functions of law within the social order. Finally, legal
consciousness is identified as a cultural practice. It is conceived
as “part of a reciprocal process in which the meanings [are]
given by indi- viduals to their world, and law and legal
institutions as part of that world, become repeated, patterned
and stabilised, and those institutionalised struc- tures become
part of the meaning systems employed by individuals” (39).
Here, human action and structural constraint are integrated and
law is produced.Legal consciousness studies examine the
manner in which “legal life and everyday social life are
mutually conditioning and constraining” (Hunt 1996, 179).
These constitutive theorists emphasise that “bottom-up”
engagement with law and legal institutions is influential on
law’s meaning. In this
652 R.L. Holderimagining, the law is more of a servant. The
perspective argues that under- standings of legality are
constructed and mediated through signs, signals, and
storytelling in a socialised discourse (Bruner 2002). These
narratives encode and position people, places, and events.
However, they tell many complex and contradictory stories;
stories which interact with other schemas: that of political

35. consciousness (McCann 1994), injustice frames (Marshall
2003), workplace ideology (Hoffman 2003), legal imaginations
(Daly 2003), legal norms (Zemans 1982), and local cultures
(Greenhouse et al. 1994). Legal consciousness works hand-in-
hand with rights consciousness (Blackstone et al. 2009). The
consciousness of rules and rights influences when, if, and how
people will turn away from or towards law.Law in Social
ContextStylised concepts of law emphasise its role and
functions differently (see Table 43.1). The state-centric view
accentuates the instrumental functions of law. It is
“authoritative rules backed by coercive force, exercised by a
legiti- mately constituted (democratic) nation-state” (Morgan
and Yeung 2007, 4). In this view, the law is a threat. According
to Morgan and Yeung (2007), as an umpire, law shapes
behaviour as well as giving expression to community standards.
Constitutive theorists suggest these versions of law in a social
context are insufficient. They emphasise law and legality as
things created and acted upon. They are manifestations of social
bonds and of the collective.Table 43.1 Law in social context.
Source Adapted from Morgan and Yeung (2007, 6). Text added
by the author is shaded. Permission to adapt the original is
gratefully acknowledgedLaw’s roleLaw’s expressive role: law
institutionalising valuesLaw’s constitutive role: law and society
as mutually constitutiveLaw as threatLegitimating
coercionLegality comprising of social practicesLaw’s image
Law as umpireReflecting shared or agreed morality of the
community of playersLaw as servantEnabling articulation and
deliberation on values and prioritiesLaw’s facilitative role: law
as an instrument for shaping social behaviourProscribing
conduct and threatening sanctions for violation to deter that
conductCreating and policing the boundaries of a space for free
and secure interaction between participantsEnabling cooperation
through defining and re-defining standards and normsMediating
indeterminacy of lived Imagining the real experiences43
Victims, Legal Consciousness, and Legal Mobilisation 653They
signal boundaries and ways to do things that are devised by

36. people in their diverse social contexts. Thus, a stylised concept
of law as servant incorporates ideas about legal consciousness
(Ewick and Silbey 1998), mediated practices (Crespi 1992),
law’s imaginative capacity (Geertz 1983), and law’s discursive
and definitional capability (Sarat et al. 1998).Thinking About
VictimisationThe perception and experience of victimisation,
unfairness, disadvantage, and discrimination enlivens all
aspects of the conceptual frameworks of law in its social
context. These injustices lie deep within legal consciousness
literature. They invite questioning and act to sharpen definition
to legality and rights (Shklar 1990). However, neighbour
problems, abusive partners, employment issues, and stranger
transgressions as everyday experiences are not automati- cally
scripted as law problems or even as problematic.6Actual
victimisation is not determinative of an assessment of
disadvantage, harm, or injury (Clare and Morgan 2009). The
formation of a consciousness of victimisation is itself rooted in
internal psychological and cognitive pro- cesses that constantly
interpret, reinterpret, construct, and reconstruct the bounds of
what is normal and understandable or even permissible and
expected. Considerations of what is culturally acceptable and
unacceptable, and therefore constitutes wrongful or unjust
behaviour, are historically and socially situated. There are also
different perceptions of what actually hap- pened (Baumeister et
al. 1990); different situational and social contexts (Greenberg et
al.1982; Vidmar and Schuller 1987); differential impacts of
race, gender, and relationship (Kaukinen 2004); and the
disorienting effects of victimisation itself (Herman 1997).
Diverse cultural and structural con- ditions reveal enormous
variety in the manner and style of handling inter- personal,
group, or social problems, disputes, and victimisations (Black
1984; Menkel-Meadow 2004; Miller and Sarat 1981).
Victimisation then is only part of a puzzle.Consciousness of
LawThe complex interaction between victimisation and
consciousness of it as problematic becomes clearer in studies of
victim decision-making. These show that the decision by a

37. citizen to mobilise law is not a simple or singular reaction to a
problem or event. Problem perception and labelling are
generally a
654 R.L. Holderprerequisite for legal mobilisation (Ruback et
al. 1984; Zemans 1982). Therefore, the consciousness of wrong
or harm can be considered on a con- tinuum from experience to
perception and finally recognition. Victimisation needs also for
the wrong done to the individual (or group) to be understood as
a social wrong. Legal consciousness is soaked in
contingency.People who have experienced victimisation draw on
all these frames to make contextual evaluations. Most common
are assessments of containment. Victims may say that an
incident was not serious or too trivial or unimportant.7 Gender,
nature of the offence, and other characteristics all affect non-
reporting (Clare and Morgan 2009). For those affected by
violent crime, especially domestic violence, the most common
reason for not reporting is privacy concerns, fear of reprisal,
and a desire to protect offenders.8 Crime surveys also expose
victim-based assessments of the receptivity, efficacy, and
sensitivity of justice agencies, and of police in particular, as
influencing non-reporting. The International Crime Victim
Survey found that a significant and substantial proportion of
respondents felt that police could not or would not do anything,
a factor that was at a higher level in main cities (Van Dijk et al.
2007). Between 25 and 40% of victims say they dealt with the
incident themselves.9 People may “lump it”, manage
themselves, or simply seek advice and take no further action
(Genn 1999).Deciding whether or whom to tell about an
incident is perhaps one of the most elementary help-seeking
decisions for victims of any type of crime to make. As an active
behaviour, help-seeking is a form of communication “directed
towards obtaining support, advice, or assistance in times of
distress” (Gourash 1978, 414). It constitutes single and multiple
sets of actions and is generally divided between informal
networks and formal helping agents (Pescosolido 1992). Actions

38. can proceed through discrete stages but may not be linear
(Willis and Gibbons 2009). Seeking help is highly related to the
nature of the problem and event, the characteristics of the help
seeker, and the availability and perceived efficacy of resources.
It is deeply influenced by socio-economic context (Kaukinen
2002, 2004). There is a clear pathway from seeking help in
family and friendship networks to formal helping agents such as
legal institutions (Blackstone et al. 2009).Defining something as
a problem; considering whether and how to deal with it; if and
what rule is inveighed; and contemplating the availability and
salience of law’s resources, are all thought processes that draw
on diverse cultural, social and situational “motives for action”
(Yngvesson 1993, 9). Across different countries with similar
and dissimilar legal systems, so wide- spread is non-reporting
that “legal inaction [is] the dominant pattern in
43 Victims, Legal Consciousness, and Legal Mobilisation
655empirical legal life” (Black 1973, 133). The law may infuse
the frames that victims draw on in problem definition but it is
remote as a resource.Legal MobilisationSomething must happen
to bring forward law as a possibility following vic- timisation.
The law in legal consciousness could be lost, if it was not for
legal mobilisation (Mezey 2001). How then to understand the
puzzle of its seemingly tenuous relationship to those who may
need it. Theorists pose a range of ideas about legal
mobilisation: that it is about facilitating govern- mental social
control (Black 1973), about invoking legal norms (Lempert
1976) and about involving the identification of redressable
injustice (Sen 2009). Others say that legal mobilisation is about
dispute transformation (Felstiner et al. 1981), about citizen
participation (Zemans 1983), about rational choice (Gottfredson
and Gottfredson 1988) and a part of strategic action (McCann
1994) as presented in Table 43.2.These theories of legal
mobilisation are intimately connected to ideas about the law in
social context. Law-centric and state-centric perspectives
presup- pose remedy as the primary objective. Constitutive

39. theorists foreground law’s reliance on human action to come to
life. Their approach emphasises the heterogeneity of peoples
situated in various ways to each other and to sources of power,
and, in consequence, its contingent salience and availability.
The law is, at best, a “structural opportunity” (McCann 1994,
239), albeit one impregnated with deep ambivalence.What about
those who do step into that ambivalent space? Reporting to law
enforcement as the first step in the mobilisation of a criminal
legal response is a selective, largely voluntary, and self-
motivated endeavour. Police and the court system may form part
of a community’s helping agents; may be viewed as a necessary
authoritative decision maker, or may even be seen the only
available resource. Across comparable countries, the decision to
report an incident of crime to a formal authority, such as police,
is made by about half or less than half of all crime victims
(Skogan 1984).10 Property crime is commonly reported—
usually for insurance purposes—but interpersonal offences are
less so.11 Reporting patterns differ over time. Reports to police
of sexual assault and other forms of assault have increased in
the USA since 1973 (Baumer and Lauritsen 2010),12 while in
the UK, the proportion of people who had contact with police
has fallen (Jansson 2008). The action of individuals and groups
in bringing “the problem” to authorities is foundational to the
functioning of the system. Absent the activation of law by
victims, it is lifeless.
656 R.L. HolderTable 43.2 Theories of legal
mobilisationTheorist Black (1973)Mobilisation concept Law
asMobilisersMotivationFeaturesLempert (1976)Legal norms as
regulatoryAligning to social normsAvoidance of future disputes
or problems; reaction to problems dependent on citizen
perceptionFelstiner et al. (1981)Dispute transformation
(naming, blaming, claiming)IndividualisticSearch for
remedyanotherMobilisation influenced by third partiesProcess
reveals uncertainty inZemans (1982, 1983)Form of political
participationSubjective and constrained, rationalist, evaluating

40. burdens and benefitsAssertion of perceived rights. Salience of
rights on one hand and sense of justification in asserting
themLegal and social norms act alongside situational factors;
analogous to other help-seeking and resource use
behaviourMcCann (1994)Constitutive and strategic assertion of
rightsInterpretive; conscious of self and contextStructural
opportunity not dictating actionLaw limited, partial and
contingent but also structures meaning. Law as one resource for
social changegovernmental social controlEntrepreneurial and
rational pursuit of own endsSelf-help informed by moral
standards of citizenryLaw as last resort.More likely use of law
where greater relational distance between persons, event
seriousness, community and institutional context, features of
parties and social context Mechanism for transferringdisputes
from one arena todispute transformation(continued)
43 Victims, Legal Consciousness, and Legal Mobilisation
657Table 43.2 (continued)TheoristMobilisation concept
SituationMobilisers Rational
choiceMotivationFeaturesGottfredson anddemanding of official
recognition & actionDesire for officially sanctioned retribution,
by general sense of social obligation, hope of restitution,
perceived solution to immediate crisis, or practical concernLaw
as authoritative resource for outcome focused though
discretionary action. Outcomes dependent on activities and
decisions of official legal actorsGottfredson (1988)Sen
(2009)Identification of redressable injusticeDifferent and
competing positions acceptedThe possibility and pull of justice
discursively defined and comprehensively realisedObjective is
the reduction of injustice and the importance of inclusive public
reasoning. Acceptance of partiality
658 R.L. HolderReasoning Legal MobilisationWhat reasons do
people give for turning to law? Researchers have examined
barriers and inhibitions and more recently turned to consider
incentives and pathways. Felson et al. (2002, 619) consider

41. reporting behaviour in the USA to be “rational in the sense that
victims are attempting to achieve something they value, whether
it be something practical or something they think they ought to
do out of civic duty or a sense of justice”.The orientation
towards “something of value” opens out the reasoning for legal
mobilisation to accommodate both instrumental and non-
instrumental concerns. Population surveys reveal clusters of
motives around normative reasoning, a sense of civic duty, and
desire to protect oneself and others. Of those who reported
crime to police in the UK, 43% did so because they felt that
crime should be reported, and 37% reported because they
wanted to see the offender punished (Allen et al. 2006). In the
USA, victims of rape and sexual assault, aggravated assault, and
serious violent crime express a higher degree of concern to
protect others than do victims of other violent offences such as
robbery or simple assault (Hart and Rennison 2003). These
findings are similar to those of the International Crime Victim
Survey showing a quarter of victims of violence offences
reported to police because they felt they should, and a third
because it was serious (Johnson 2005; Van Dijk et al. 2007; Van
Kesteren et al. 2000). Small-scale studies show complex
reasoning of justice goals for three objects of concern: victim,
offender, and the community (Holder 2016).The patterns of
empirical variation to legal mobilisation, discussed here through
victim decision-making, show victims of crime making
contingent choices about which of the resources available in the
community will assist them with their purpose(s) and goal(s).
They use, develop, ignore, and create “networks of action”
(Blumer 1969, 19). They seek guidance from a range of personal
and social supports. They do so according to different
circumstances and with different expectations. Victims make
judgments about whether and whom to access, why, and when.
They use their discretionary authority as citizens, become legal
actors, and bring the law to life.Legal Consciousness,
Mobilisation, and JusticeThe theoretical and empirical
discussion in this chapter presents people’s interpretation of

42. events and problems as deeply socially and politically situ-
ated. The meanings they make about victimisation are
influenced by the discourse of law and its embedded principles.
These ideas shape and guide,
43 Victims, Legal Consciousness, and Legal Mobilisation
659but do not direct action. Perceiving victimisation and
injustice; seeing the availability of law; making assessments
about law’s salience, efficacy, and relevance; and moving into
the possibilities created by law, all comprise part of the puzzle
of legal mobilisation.A conception of victimised citizens as an
agent in determining the frame and, at least in part, responses
and resolutions to an incident, event, or problem centralises
their role in civil society. So crucial are their actions that the
uninvolved or disengaged could be described as free riders.13
Acting to invoke the law and become a legal actor is but one
option open to them. In aggregate, these actions draw attention
through the law to the boundaries set by public policy. Victims
enact law and “create the possibility of change” (Marshall and
Barclay 2003, 618). They give flesh and meaning to the flat
letter of the law as an articulation of justice. The discursive
movement between peoples, laws, and law’s institutions fashion
and re-fashion social as well as political contexts. Legal
mobilisation by people and groups as victims constitutes
participation in local governance.Notes1. Paul Rock aligns this
terminology with radical criminology and the tendency to
dismiss the experience of crime (Rock 2007).2. A ‘political
community’ is understood to comprise numerous communities
where individuals hold multiple and shifting identities. A
political commu- nity is also commonly understood to be
bounded in a number of (contested) ways.3. The conception of
law that emphasises the role of sovereign authority is associated
primarily with Jeremy Bentham and John Austin.4. Cultural
theorist Nancy Thumim uses the term to distinguish between
those who have power, status, resources and knowledge, and
those who don’t (Thumim 2006).5. David Schwartz’s work on

43. Pierre Bourdieu’s sociology describes ‘habits’ as frames or
schemata that guide rather than mechanical actions (Schwartz
1997).6. These everyday problems may form a frequent part of
the daily work of lawyers and courts. The point I make is that,
from the point of view of the victimised, these common
problems are not automatically or frequently defined as legal
problems.7. These containment assessments are found in the
international crime survey across 20 countries (Van Dijk et al.
2007). Similar findings are contained in Australia’s crime and
safety surveys (and see Johnson 2005, discussing the Australian
component of the ICVS), in New Zealand (Mayhew and Reilly
2008) and the UK (Kershaw et al. 2008).
660R.L.
Holder8.InAustralia42%ofvictimsofdomesticviolencesaidthatthe
ydealtwiththe incident themselves, and 27% said they did not
regard it as serious (ABS 1995, 29–31). In the UK, 41% of
women and 68% of men who had experienced domestic violence
in the previous year did not report to police because they
thought the matter too trivial, or that it was a private family
matter (Kershaw et al. 2008; Walby et al. 2004). In New
Zealand, 56% of victims of a ‘partner offence’ dealt with the
matter themselves, 45% felt the incident was too trivial to
report, and 20% felt that police would not have bothered
(Mayhew and Reilly 2008). For the USA, see Felson et al.
(2002). Found in similar proportions in Australia (ABS 2005),
across countries in an international survey (Van Dijk et al.
2007), and in New Zealand (Mayhew and Reilly 2008).More
recent analysis suggests the proportions are lower. In the UK,
about 42% of all crime is reported (Kershaw et al. 2008). In the
USA, only 40% of non-lethal violence and 32% of property
crimes were reported to police between 1973 and 2005 (Baumer
and Lauritsen 2010). In New Zealand, just 36% of crimes are
reported to police (Mayhew and Reilly 2008).In Australia, 75%
of victims of a break-in will report to police, while 55% of
victims of assault will do so (ABS 2016). In the UK, 93% of

44. victims of thefts from vehicles and 76% of burglaries report to
police, while only 34% of assault without injury report
(Kershaw, Nicholas, and Walker 2008). In the USA, 46% of all
violent victimisations and 40% of all property crimes are
reported (Baumer and Lauritsen 2010).
Theseincreaseswereobservedforviolenceagainstwomenaswellasm
en,and stranger and non-stranger violence, as well as for victims
from all ethnic categories. The changes are also discussed in
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BiographyRobyn Holder is a Research Fellow at Griffith
University. Her research focusses on justice theory,
participatory justice, victims’ rights (nationally and
internationally), and law and society. She completed her PhD at
the Regulatory Institutions Network at ANU in 2013 after over
20 years experience in research, public policy, and law reform
in Australia and the UK.
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Video and audio