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E. Rights of Victims

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Historically American criminal law ignored the victim. To the extent that the victim had a role, it was limited to that of an ordinary witness. Indeed, rape victims had less standing than ordinary witnesses since their testimony had to be corroborated. In some jurisdictions, judges cautioned the juries that the rape victim's charges had to be considered skeptically or at least critically because of the propensity of some women to fabricate such charges. In the last two decades there have been major reforms in the law of rape, and these sexist rules have been eliminated. Indeed, many states have passed 'rape shield laws' which prevent the defense, with limited exceptions, from adducing testimony about the rape victim's prior sexual behavior.

Today, an active crime victims' rights movement lobbies for legislation, communicates its views to prosecutors, and monitors court proceedings. Many states have passed laws that permit the victim to make a Victim's impact statement' at the sentencing stage of the proceedings. In some states there are also laws providing that restitution to the victim be the first claim on the convicted offender's funds, even before the criminal fine is paid. Some states give the victim a right to be informed about plea bargaining.

Finally, many jurisdictions have established 'victims services agencies' which provide counselling and material aid, and assist victims through each stage of the criminal justice process. Victims have always had a common law right of action in tort against the person who injured them, but this right has been of little practical use because so many criminals are indigent.

Victim impact statement is a written or verbal statement made as part of the judicial legal process, which allows a victim of crime the opportunity to speak during the sentencing of their attacker or at subsequent parole hearings. In some instances video taped statements are permitted.

One purpose of the statement is to allow the person or persons most directly affected by the crime to address the court during the decision making process. It is seen to personalize the crime and elevate the status of the victim. From the victim's point of view it is regarded as valuable in aiding their emotional recovery from their ordeal. It has also been suggested they may confront an offender with the results of their crime and thus aid rehabilitation.

Another purpose of the statement is to inform a court of the harm suffered by the victim if the court is required to, or has the option of, having regard to the harm suffered by the victim in deciding the sentence.

In cases of crimes resulting in death, the right to speak is extended to family members. In some jurisdictions there are very different rules on how victim impact statements from family members may be regarded. This is because it is seen as unprincipled that different punishments for death are given according to the how much the victim is missed, or conversely that someone's death is relatively less harmful if they have no family. In the circumstance of death, some jurisdictions have described victim impact statements from family members as 'irrelevant' to sentence but not 'unimportant' to the process: they are valued for restorative purposes but cannot differentiate punishment for causing death.

In general terms, the person making the statement is allowed to discuss specifically the direct harm or trauma they have suffered and problems that have resulted from the crime such as loss of income. Some jurisdictions allow for attaching medical and psychiatric reports that demonstrate harm to the victim. They can also discuss the impact the crime has had on their ambitions or plans for the future, and how this also impacted their extended family.

Some jurisdictions permit statements to express what they deem to be an appropriate punishment or sentence for the criminal.

Some jurisdictions expressly forbid any proposal or suggestion on punishment or sentencing. Among other reasons, this is because the sentencing process is solely the domain of the judge who consider many more factors than harm to victims. Allowing suggestions on punishment or sentence can create a false hope of the eventual sentence and undermine the notion of restorative justice.



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Читайте в этой же книге: Text 2 Civil law and common law | TEXT 3 the transformation of english legal science | Part II | Part III | TEXT 7 JUDGES PART II | TEXT 8 JUDGES PART III | Text 10 the decline of common law | A. State Substantive | B. Federal Criminal Law | A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged. |
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