Misplaced Victim Statements?

Is a father who is killed and leaves behind a wife and three children a worse case than a homeless man who is disowned by everyone and is killed the same way?

Early death is always shocking. That is because it is unexpected, even though we know death is inevitable. It is perhaps more offensive for us in our comfortable Australia, where the regularity of early death is much less than in some places where I just visited – Sri Lanka and Africa.

None of this takes away from the tragedy of those who were seriously injured and who were killed in that Hunter Valley bus crash in June last year. Justice is each one receiving what he or she deserves in the light of the law, and certainly, the driver from that crash is now receiving his. As the presiding judge for the case was reported to say, “Justice is what this sentence is about … Justice for the offender and justice for the victims… and their families. However, justice is not about revenge but it is about accountability, deterrence and punishment.”

This sentencing justice process reflecting justice in this case will be over three days. It seems there will be a large number of Victim Impact Statements, given the amount of death and injury that occurred.  At the time of writing, the reports are indicating what one might expect – an outpouring of grief, anger and loss. All those responses make sense. Unexpected death is shocking and reshapes the structures of our lives. For some, they find it hard to imagine what the form of life will be like given their loss. That is deep soul pain.

All these people need and deserve the best kindness that can be given to them. As part of the ‘family of humanity’ we hope that they are loved, cared for and wisely supported through such a time. As the old saying goes, surely we would want for them, in terms of care, what we would hope for ourselves in such a situation?

But are Victim Impact Statements part of this process? What exactly is their purpose in this justice and healing journey? Are they to be some kind of catharsis, which sometimes does and does not work? Are they an intentional of their trauma management? Some of the latest trauma research would say this is not necessarily helpful or needed (see Bonano’s The End of Trauma). This research does not suggest that someone does not grieve another’s passing, but that the separation does not need to define their life.

Is having the guilty person sit and listen to these statements part of the accountability part of justice? I never met a prisoner who slowed down their broken habits thinking about the pain it might cause others – and by the time addicts come to this realisation, they are normally in a very black hole.

Or maybe the process is part of the punishment? I am not sure, and when I log onto the Victim Impact Statement part of the Office of the Public Prosecutor, I cannot see a reason for these statements. I can see what it is, and how a person can make one, but not why. I was surprised to read that a person making a statement can be cross-examined, but the site notes that “The defence has a technical right to cross-examine you about your statement, but this almost never happens and they would have to let the prosecution know before and any objections can be dealt with by a re-write of the relevant part.”

Such a right to cross-examination seems to indicate that what is said might be taken as some kind of relevant evidence. Does that mean these statements might impact sentencing? And does that mean more reported emotional pain makes a person ‘more guilty’, in the sense that they owe a greater debt, or to put it another way, deserve a greater punishment? If that is not the case in law, it seems that appears to be community expectation as I listen to the commentary around this case.

Again, this question in no way is bringing into doubt the reality of the tragedy, nor to question the reality of those directly impacted by this tragedy. But it does make the question at the start relevant – if a homeless man, or group of people, had been run over in some way, and there was no one to make a Victim Impact Statement, would their death be considered less serious in some way (i.e. deserving less punishment in sentencing)?

As Theodore Dalrymple expressed it: “Is the crime of murder to be reprehended in proportion to the social utility of the victims?” If the answer is ‘No, each death caused by another is of equal import under the law’, then are not victim statements, done before sentencing, a moral and legal irrelevancy?

We must continue to care for those experiencing such unexpected loss. But unless there is a clear answer to the kinds of questions above, then it seems that here in Australia, it is another indicator that we are continuing to move towards different levels of dignity according to categories of worth. And once again, it would be the most marginalised who suffer the most.