Enhancing Victim Justice: The Role of Procedural Fairness

Criminal acts can damage victims and result in harmful impacts. There are widespread impacts, including physical and psychological impacts. For some crimes, the impacts on the victim can be worse. For instance, the victims of physical abuse have possibility to do criminal as a result of their psychological distress (DeCamp, Zaykowski & Lunn 2018, p.669; Widom 1989, p.163). As the victims get violence, they will experience loss of faith that there is order in life and transfer their anger onto those who stood in their way (Kolk 1987, p.31; Halsey 2018, p.28). The impacts of crimes for victims are various and it depends on victims. For example, although the crime is similar, the crime effects on children were devastating than on adult (Arditti 2012). In order to prevent these impacts, victim needs need to be delivered to victims. Victim needs can be defined as the needs of victims in aftermath of a crime and during judicial process, which covering the needs to be recognised, supported and treated with respect, justice and case information, and compensation (Reding 2011). The necessity of victim needs is also acknowledged by United Nations through Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power that states victims should receive necessary medical, material, and psychological assistance from voluntary, community, or government (United Nations 1985). In Victoria, victim needs are recognised through Victim Charter Act which in Article 6 state that victims have a right to be treated with respect and dignity (Chief Parliamentary Counsel 2006).

Victim needs related to justice should include both judicial and non-judicial measures. Judicial measure related with criminal justice system process, such as treated with respect, law process information, and need to be heard in criminal proceeding (Wemmers & Cyr 2004). Non-judicial measure related with material reparation, such as compensation, and immaterial reparation, such as emotional support, apology, acknowledgement (Miers 2014, p.148; ten Boom & Kuijpers 2012, p.156). The victim needs that are required by victims are different depending on various factors, such as age, gender, socio-economic status and health, type and seriousness of crime, victim’s relationship with offenders, and victim’s interactions with authorities (Victorian Law Reform Commission 2015). For instance, victims from minority often needs in personal safety, such as protection against further victimisation (Maguire & Kynch 2000).

Victim needs are different for each victim. Some victims want punishment for the offender, while the others do not want it, instead they just want public acknowledgement, apology from perpetrator, preventing the abuse recurrence, or reconciliation with offenders (Wright 2002, p.654; Herman 2005, p.571; Naylor 2010). Even in similar crime, the needs of victim can be different. For example, in a domestic violence context, female victim could need job, temporary house, temporary removal, or repair relationship (Maguire & Kynch 2000). Considering the diversity in what victim want in terms of justice, justice response should be flexible (McAlinden & Naylor 2016, p.284). This notion come as everyone experiences victimisation differently, it needs a range of support services that offer accessible and flexible service in order to deliver right intervention based on what victims need most (Wedlock & Tapley 2016).

Procedural Justice to Deliver Victim Needs

Considering the victim needs above, one of the ways to deliver victim needs is through procedural justice approach. Procedural justice ensures that victim can get their rights recognised in the criminal justice process. Procedural justice is exercised by implementing regulation procedurally to increase quality of victim’s interaction with authorities and quality of procedures (Wemmers 2013, p.223). While the quality of interaction refers to how victims are treated by authorities with dignity and respect, the quality of procedures reflect to the fairness of formal rules and procedures, and decision maker neutrality (Tyler 2003). In Victoria, the using of procedural justice is arranged in Victim Charter Act and has been implemented through Victim Services which ensure that victims are treated with respect, get information about law process and their cases, and can tell their feelings through victim impact statement (Department of Justice and Community Safety Victims of Crime Victoria n.d.). Through implementing procedural justice in criminal justice system, it can lead to the fair treatment which allows victim to manage uncertainty and look for the reassurance from criminal justice authorities (van den Bos & Lind 2002; Burgess & Holmstrom 1983). The uncertainty, which is faced by victims when entering criminal justice process, can be removed since the victims get sufficient information from criminal justice officials regarding their case progress and law process (ten Boom & Kuijpers 2012, p.166). This condition can prevent secondary victimisation, which comes from distant reactions and negative attitudes from authorities, and it can make victims feeling rejected (Symonds 1980; Williams 1984). The secondary victimisation, which is caused by lack of recognition and support for victims, can lead to further harms as the dissatisfied victims can have depression, anger, and post traumatic syndrome disorder (PTSD) than victims who are treated fairly (Turner, Finkelhor & Ormrod 2006; Wemmers 2013, p.229). Procedural justice can prevent these problems by pursuing legitimate interests within legal process (Lind & Tyler 1988). The key factors of fair treatment are neutrality, trust, and victims opportunity to participate and to be treated with respect and dignity (Miller & Hefner 2015, p.149; Tyler 2000).

The using procedural justice can deliver several benefits. The procedural justice can increase victim’s satisfaction since people prefer procedures where they are treated with respect by trustworthy authorities, which can lead to fairness (Miller & Hefner 2015, p.142; Van Camp & Wemmers 2013, p.132). This condition makes the victims can accept the outcome, whether it is positive or negative, since they get it through fair procedure (Tyler & Folger 1980). Even when people get punishment by law, as a negative outcome, they are also being educated about nature of law and legal authorities (Tyler & Huo 2002). Then, procedural justice can increase legitimacy of law and encourage people cooperation with law officials. Procedural justice, which focuses on everyday rule following, can motivate people to become self-regulatory and follow law as their own internal values (Tyler 2006, p.317). Through procedural justice, authorities can share their moral values and it can makes people obey with rules (Blader & Tyler 2003). From procedural justice practice, it can be seen that it has immediate and long-term positive consequences (Tyler & Huo 2002). While the immediate impacts are victim’s satisfaction due to fair treatment and lessen the likelihood of conflict, the long-term impacts are promoting deference and increasing the legitimacy of police and courts.

Although procedural justice can deliver many benefits, it also has several weaknesses. Procedural justice cannot cover all various victim needs as criminal justice system is concerned priorities on offender punishment, not victim needs. Procedural justice can only address the impact or symptoms of crimes, whereas in order to ensure the safety, social, and psychological recovery, victim needs can be addressed by understanding source of the problems, and not just treat the symptoms (Halsey 2018, p.25). Thus, it needs flexibility to deliver justice for victims. For instance, some victims may not want to follow criminal justice process since it takes long time and much cost, and they also do not want the offender to be punished. Instead, they just want offender remorse. This kind of victim needs cannot be delivered by procedural justice as this approach could force the officials to stick with regulation strictly without concerning on victim’s condition. Conventional criminal justice process, from police response to judge sentence, can diminish victim’s role, weaken case strength, and lead to case dismissal (Alarid & Montemayor 2012, p.450). The presence of victim services in the procedural justice system also cannot deliver all victim needs too as it relates to criminal justice, such as court information or victim impact statement. Since victim needs are various and they cannot always be addressed through criminal justice process, the formal law process cannot always be implemented to victims in the same way in every condition. Therefore, the procedural justice can be ignored for the goodness of victims, and it can be replaced by restorative justice approach.