Putting victims at the heart of the criminal justice system
Dr Kim McGregor
Chief Victims Advisor to Government
Tēnā koutou katoa
Following a request from then Chief Executive Ray Smith, last year I worked on projects within Corrections aimed at improving its communications and interactions with victims of crime. It was part of a wider consultation I undertook with a range of executives, senior officials and teams working on victim issues. During my time with Corrections I was impressed with several employees who I would call “victim champions”.
This article is about my role as the Chief Victims Advisor to Government, the ongoing struggle to put victims at the heart of the criminal justice system, the importance of the Victims’ Rights Act (2002) and the Victims’ Code (2015) and how we can improve systems and communications to victims.
Chief Victims Advisor to Government
I am honoured to be the first Chief Victims Advisor to Government. I also have an enormous responsibility to do the very best to provide a voice for victims within government as many NGOs and other victim champions have campaigned for decades for victims to be heard at the highest level.
The role of the Chief Victims Advisor was established in 2015 as part of a joint ministerial focus on reducing family violence and sexual violence victimisation, and improving victims’ engagement and experiences in the criminal justice system.
The role differs to that of a Victims’ Commissioner as it does not directly advocate on behalf of individual victims. However, I ensure that victims’ issues are heard as widely as possible throughout all levels of government. A key value of the role is in its independence. It is one of the few positions in government dedicated to incorporating victims’ voices into decision-making processes.
A key element of the role is the opportunity to provide information and advice from the “flax roots” and current research directly to ministers. While my role is part-time, I have the benefit of a research budget and two full-time government officials supporting me.
Although I’ve been in the role for three and a half years, I’m not new to either victims’ issues and advocacy or working with ministers and government agencies. I’ve spent three decades in the NGO sector consistently advocating for more funding and expanded services for victims. And I’m pleased to say there has been a recognisable commitment from government to improve services and support for victims. I am particularly hopeful that Hāpaitia te Oranga Tangata – the Safe and Effective Justice reform programme will help us to improve our justice system to become much more responsive to victims’ needs.
The importance of victims’ rights
Over the past millennia, the rights and responsibilities for the compensation, investigation, and prosecution of personal wrongdoing in Western jurisdictions has shifted from victims to the State. It is important to remember this shift when focusing on a government’s responsibilities to victims and the fundamental basis of victims’ rights.
More recently there has been increased recognition that victims of crime and their families, especially those who suffer serious harm, should be provided with services that address those harms and they should not suffer further from their participation in the justice system.
However, many do suffer further harm because our offender-centric, adversarial system largely sidelines victims. Victims are relegated to the status of a witness to the crime they have experienced. The system was neither set up to consider their needs, nor does it provide victims with inbuilt support or representation. Unlike the accused, victim complainants do not have their own lawyer to guide them through the foreign and potentially hostile system. Defendants have their right to silence, while the victim-witness can be put on the stand and cross-examined – sometimes for days.
An initial flax roots victims’ movement emerged in the 1960s and 1970s, with groups including Victim Support, Rape Crisis, and Women’s Refuge. A key focus of their advocacy was improving the support, voice and reparation for victims in the criminal justice system.
The 1980s were an important decade for the legal recognition of victims of crime in New Zealand. We co-sponsored the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which encouraged lawmakers here to implement these principles.
Victims in New Zealand got their own piece of legislation in 1987, and the current Victims’ Rights Act was enacted in 2002.
In 2009, the Ministry of Justice carried out a review of victims’ rights. The review found victims of crime were confused by criminal justice processes and found itdifficult to access information. Victims were also generally unaware of their rights and how to access support services. In response to the review, an amendment to the Victims’ Rights Act (2002) was enacted in 2014. The purpose of the amendment was to:
- strengthen the existing legislation to better provide for victims
- widen the rights of victims of serious offences
- provide more opportunities for victims to be involved in criminal justice processes
- ensure victims were better informed of their rights.
In addition, the amendment aimed to improve the responsiveness and accountability of government agencies towards victims of crime. Another key change was that the law required the Ministry of Justice to publish a separate “Victims Code of Rights”. This separate document crystalised the themes and entitlements in the legislation.
The Victims’ Rights Act (2002) and the simplified version of the Act, the Victims’ Code (2015) describe the eight key principles that guide the way providers should treat victims:
- SAFETY – services should be provided in a way that minimises potential harm and puts safety first
- RESPECT – providers should treat victims with courtesy and compassion, and respect cultural, religious, ethnic and social needs, values and beliefs
- DIGNITY AND PRIVACY – providers should treat victims with dignity and protect their privacy
- FAIR TREATMENT – providers should respond appropriately to a victim’s needs and provide services in a timely way
- INFORMED CHOICE – providers should understand the victim’s situation and tell the victim of the different ways they can get help
- QUALITY SERVICES – providers should work together so the victim and whānau receive quality services that meet the victim’s needs
- COMMUNICATION – providers should give information in a way that is easy to understand and is effective
- FEEDBACK – providers should let the victim know how they can give feedback or make a complaint.
The Act and the Code also outline the rights of victims of crime in the criminal justice system or the youth justice system. While the eight principles of treatment apply to all victims, the rights described below only apply to victims who have reported to the police or are before the courts.
- are to be given information about programmes, remedies and services
- are to be given information about the investigation and criminal proceedings
- have the right to make a victim impact statement
- have the right to express their views on an offender’s application for name suppression
- have the right to speak in Māori or use New Zealand Sign language in any legal proceedings (an interpreter should be provided)
- have the right to have any property held by the state as evidence given back as soon as possible.
Victims of serious crimes also have the right:
- to be informed about bail and express their views
- to receive information and notifications after sentencing
- to have a representative receive notifications
- to make submissions relating to parole or extended supervision orders.
The Victims’ Code also explains how victims can make a complaint to the relevant service provider or agency about not being treated in accordance with the principles and rights in the Victims’ Code.
Despite the best intentions of governments that are genuinely striving to improve systems and responses to victims, some victims, including families of homicide victims, rape survivors and survivors of family violence, have complained that they felt they were the ones on trial. This is due to our adversarial system.
It is a view that continues to be held by the public. A 2016 Colmar Brunton “Public Perceptions” survey of more than 2,000 New Zealanders found that:
- only a quarter (25%) agreed that criminal court processes treat victims with respect
- only 12% agreed that bail decisions take appropriate account of public safety
- only 17% agreed reparation is usually collected and paid to victims of crime.
Overall, about half of those surveyed lacked confidence in the criminal justice system.
Everyone benefits when we put victims at the heart of the justice system
Lack of confidence in the criminal justice system has implications for us all. The system can only work if there is trust and confidence in its institutions, processes and people. Yet the system has a poor reputation amongst victims. That reputation is strongly influenced by how well victims are engaged in the process, how well informed and safe they are, and, how well their needs are met. This is true for all phases of the process – reporting, investigating, prosecuting, incarcerating and rehabilitating.
Victims are central to the successful operation of the justice system. Without victims coming forward, we cannot know what harms are being perpetrated in our communities and, therefore, we cannot address them. We need to listen to victims, and value and support them through the criminal justice system to ensure everyone has trust and confidence in our system. Then we will be able to build safer communities for all. But it’s not only victims who benefit from a responsive system. I believe the more trust and confidence victims have in the process, the better it will perform.
What we can do to better support victims?
An analysis of 28 papers from a range of countries including Britain, the United States, Canada, Australia, New Zealand, the Netherlands and Sweden, concluded that there are four key areas that work when supporting victims:
- Information and Communication – Timely and accurate information is vital to victims. A lack of information can act to aggravate a victim’s distress.
- Procedural Justice – The quality of service victims get from criminal justice professionals is often more important to victims than the outcome of their case. Perception of “fair treatment”, including knowledge of and access to entitlements, increases victims’ perceptions of the legitimacy of the justice system.
- Agency Co-ordination – Partnerships across the statutory, NGO and voluntary sectors can provide effective support for victims in terms of information sharing and reducing duplication and confusion for victims.
- Professionalisation of victim services – Often a single point of contact with a trained professional who has sufficient knowledge of the criminal justice system, as well as compassion and empathy, is an effective way to provide victims with both information and support.
Corrections staff can use these four key areas, in addition to the guidance of the Victims’ Rights Act and the Victims’ Code, when considering what is important to victims.
Finally, thank you to all of you who do your best to make sure victims in the criminal justice system get the information and support they need. I’ve met some amazing people working hard in Corrections to improve the system for victims. Thank you.
No reira, kia kaha, kia māia, kia manawanui. Tēnā koutou, tēnā koutou, tēnā tatou katoa.
Note: I am aware some people who have been victimised dislike the term victim, whereas others value the term as going some way to describing the harm they have experienced. Some people prefer the term survivor. I use the term victim mainly because it aligns with current legislative terms including the Victims‘ Rights Act, the Victims‘ Code, and my role of Chief Victims Advisor to Government.