Challenges of Effective Communication in the Criminal Justice Process: Findings from Interviews with Victims of Sexual Offences in Australia
Abstract
:1. Introduction
‘The few studies that were designed to specifically examine VIS use by sexually assaulted women are now outdated, did not originally include empirical data from victims, or combined victims’ use of the VIS with other forms of criminal justice participation, which made meaningful interpretation difficult’
Victims’ Right to Information
- Treated with compassion and respect;
- Informed of their role within the justice system, the progress of the proceedings, and of the disposition of their cases;
- Have their views presented and considered at appropriate stages of the proceedings (United Nations 1985).
2. Materials and Methods
2.1. Identifying Victim Participants
- Were receiving or had received support from a victim support or witness assistance agency;
- Had submitted a victim impact statement during the sentencing process; and
- Had retained a copy of their impact statement and the sentencing remarks for their trial.
‘We are inviting you to participate in this research because your support worker has identified you as somebody who has been a victim of a sexual offence, and who has submitted a victim impact statement to court. You can participate in this research even if you did not attend court in person for the trial or the sentencing hearing.’
2.2. Recruiting Victim Participants
2.3. Recruiting Justice Professionals
- Prosecutors, who work with victims in the conduct of prosecuting defendants (n = 3);
- Witness assistance officers, who work to support victims from within a prosecuting agency (n = 5);
- Victim support workers, who work to support victims, but who do not work for a prosecuting agency (n = 7).
2.4. Conducting and Analysing the Interviews
3. Results
‘Being more in the loop would be something that I would [have preferred]… I felt like I was told just “be here at this time, this is what is happening”, while all this stuff was happening in the background, and that was the stuff I wanted to know.’(August, South Australia)
‘I had no idea what the process was and I would have to ask what was next. They would tell me if I asked, but I had no idea.’(Rachel, Tasmania)
‘Even that he had pleaded guilty, and wasn’t trying to fight the charge, I wasn’t told for a while. I thought I was still potentially going to trial for quite a while…there were a few holes in the system that meant I was kept out of the loop.’(Laura, South Australia)
‘Had I not made the decision to go to every court hearing, [the justice process] would not have worked for me. Because I wouldn’t have had the information I was wanting and when I did get it, it would have been weeks and weeks down the track. It worked for me, because I was there for every step of the process and I therefore knew what was happening as it happened. It got to the point when Witness Assistance would be ringing me and asking me for an update on what was happening.’(Philippa, South Australia)
‘I attended until the end [of the sentencing process], merely to be kept thoroughly in the loop, because the time lapse and wait between hearings until the subsequent court date following adjournments, of sometimes weeks or months, were unbearable and the feedback that followed was a bare minimum.’(Jessica, South Australia)
‘We hear from people all the time about how they feel that they are invisible throughout the legal process, that they are not communicated with regularly, that they aren’t talked to about the purposes of the different court hearings and they often don’t know whether they are supposed to attend or not. Really basic stuff and they are being left out of the loop.’
‘[providing] lots of procedural information and lots of practical information about their involvement, their role. And the rules and the etiquette of the court … It’s really important that they understand their role in court.’(Samuel, Witness Assistance Officer, South Australia)
‘We explain the procedure. For example, where the judge will be, where the jury will be, where counsel will be. We show them the courtroom. We explain examination-in-chief and … cross-examination … and there are witness assistance officers who will take them down and show them the court and will be in regular contact with them.’(Michael, Prosecutor, Tasmania)
‘Normally what we would do is explain to them over the phone when the first appearance is happening in court and that we would get back to them and let them know what the plea is either at the first or second appearance. For an indictable matter, when it comes to the Supreme Court, [we would keep them updated about] what was happening.’
‘we had the unfortunate experience where a client was in the waiting room and opened up the newspaper and read about what had happened in court for her matter. No one had told her about it’.
‘It would have been good if someone had said, “don’t take it to heart. This is the norm. This is what happens”. Afterward, when I had said “I feel bad after hearing [the plea in mitigation]”, the detective said to me, “that’s just what they do; that’s what his lawyers are paid to do”. There wasn’t any warning about it. The court process was all very new to me and not well explained at all.’
‘[A plea in mitigation] is really confronting … [Victims] often will have in their mind that they are going to hear his sentence, but not factoring in how distressing it can be to hear people get up and speak of his good character. That’s something I would prepare them for. I would [explain] it’s just part of the court process … I have had clients feel distressed listening to it, so if someone wasn’t prepared for it, it would be really distressing.’
‘If they are going to attend [sentencing], I like to make sure that they know that a lot of it will be about the offender. Some victims go, not realising that they might do character references or they might talk about what a great person the offender is. I think that’s really hard for victims to hear those things.’(Suzanna, Victim Support Officer, ACT)
Barriers to Effective Communication with Victims of Crime
- (a)
- Who may make a victim impact statement;
- (b)
- That a victim impact statement may be made orally or in writing;
- (c)
- What information a victim impact statement must and may include:
- (d)
- how a victim impact statement may be used in court during a proceeding, including that—
- (i)
- A copy of the victim impact statement will be given to the offender;
- (ii)
- The victim may be cross-examined about the contents of the victim impact statement;
- (iii)
- The court must consider the victim impact statement in deciding how the offender should be sentenced.
‘I think it’s unfair to expect someone who is traumatised and going through the pressure of a court case to be able to advocate for themselves or even to be informed enough…to do that. I think that expectation is unrealistic and unfair.’
‘If I have learned anything from this process, it’s that nobody actually cares about the victim. I got a phone call out of the blue 15 months after he raped me, saying, “can you come to the DPP’s office.” No one got in contact with me after it happened…nobody did any follow-up [with me]…Throughout the 15 months, I had to make phone calls to follow up, and I was always put through to different people, because the others were on holidays or whatever. So, it was just bringing it all back every few months that I rang up to ask what was going on’(Victim, Tasmania).
‘I understand that they are busy. But I think it’s the little things. They assume that others understand the system enough to understand what is going to happen next. It’s easy to assume that if you have that knowledge, that other people will have the same knowledge of the system and how it works. I have a decent amount of common sense, but there were things that were worded in ways that weren’t clear and they assumed I would understand that if one thing happened, that other things would follow.’
4. Discussion: Evidence-Based Strategies for Communicating with Victims
4.1. Effective Verbal Communication
- Assess the recipient’s starting point, prior to giving information, by determining the amount of information or knowledge the recipient already possesses in relation to the subject matter, prior to providing any further information;
- Give information in small, ‘assimilable chunks’ (p. 24). The professional must ensure that information is given in small amounts, to enable the recipient to hear and process each piece of information before further information is provided;
- Check the recipient has understood the small chunk of information and use their response as a guide to how to proceed before providing any further information;
- Repeat information if the recipient has not understood;
- Reduce or eliminate the use of jargon;
- Ask the recipient what other information might be helpful.
4.2. Effective Visual Communication
‘They gave me an information sheet and booklets about the legal process. [These explained] what court is for what sort of offence, and about negotiations and sentencing. But I would have liked a little side bar of minor details about what happens there, because those are the things I didn’t know … Like where to sit or where the offender is sitting or who is going to go first. Those little details that add to the stress. I would have liked to be able to mentally prepare myself for it and remain as calm as I could. So, I think that’s what is lacking and is probably not hard to fix, because they are very small details.’(Victim, South Australia)
‘Yes. To know anything would have been helpful … I think as soon as you say that you want [the defendant] charged, they should give the flowchart to you. And then you would know how long it might take and when they might contact you next, and what would happen at court.’
4.3. Automated Victim Notification Systems
New Zealand recently introduced a similar text messaging system. England and Wales have introduced a ‘track my crime’ system where people log in and opt-in to receive alerts, and in Canada victims have access to a secure website to obtain information about offenders who harmed them .
5. Conclusions
‘[Victims] feel uninformed, they don’t understand the process, they feel out of control within the process in terms of how long it takes, what happens and what their role is within it. I think it’s a real problem. I think it re-traumatises the vast majority of victims who have experienced sexual assault, by the nature of how the process operates.’
‘If someone could have told me ‘this is probably what is going to happen, this is probably the path that it’s going to take’, that would have been a really good heads-up … getting my head around that sort of stuff is a task … A cheat sheet would have been great.’
Author Contributions
Funding
Acknowledgments
Conflicts of Interest
References
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Victims’ Informational Rights | Types of Information that Victims Are Entitled to Receive |
---|---|
The justice system The right to receive information about the justice system and trial process | Information about:
|
The progress of the case The right to receive information about the progress of the case | Information about:
|
August | August and the offender had been drinking, together with other friends. August fell asleep at a friend’s house. During the night, August awoke on three occasions and each time felt fingers inside her vagina. She was still intoxicated and found it difficult to speak and move. On one occasion, she took hold of the offender’s wrist while he was penetrating her vagina with his fingers and he apologised, but did not stop. It was when she heard the apology that August realised who was sexually assaulting her. Some days after the offence, the offender texted August to apologise. The offender ultimately pleaded guilty to one count of rape. After the offender’s arrest, August said she would have preferred to have had more contact from the Director of Public Prosecutions (DPP). August also said she would have preferred to be more generally informed of what was going on in terms of the trial process. August was informed of the option to complete a victim impact statement by the police officer who investigated her case. The officer gave August a booklet when the matter was first listed for trial, but she was not given any further guidance about the process. About a month before the offender was due to be sentenced, her witness assistance officer provided August with an information brochure with more information and her rape crisis counsellor helped her finalise the wording of her statement. |
Laura | The offender was a taxi driver who was driving Laura home. It was approximately 3am and Laura was quite intoxicated. When the taxi neared Laura’s house, she asked the driver to stop. He ignored her request and kept driving. The offender then stopped the taxi and indecently assaulted Laura, including touching her breasts, kissing her and biting her lip. The offender then drove the taxi further. He pushed his hand under Laura's clothing and touched her vagina. He also took Laura's hand and placed it on his exposed, erect penis. Laura then got out of the taxi. The offender followed Laura after she got out of the taxi, asking that she pay the fare, which she refused to do. The offender ultimately pleaded guilty to one count of indecent assault. However, Laura was not kept up-to-date about the situation. She felt she ‘just needed more clarification … I could tell they really cared. But I would have had six weeks of less stress if I had known about the guilty plea earlier’. |
Philippa | Shortly before midnight one night in 1991, the offender broke into Philippa’s home. The offender demanded money and Philippa told him where her money was. The offender told Philippa to be quiet and that he had a knife. The offender then moved Philippa into the lounge room and she got her purse. At that stage, Philippa was able to see the offender. He had a shirt wrapped around his head, concealing his face. He pushed Philippa back into the bedroom and pushed her on the bed. He pulled Philippa’s clothing off, including her underwear. He placed some bedding over her face and raped her digitally and vaginally. During the incident, he also threatened to orally and anally rape her. Philippa reported the rape immediately. She could describe some of the offender’s features, but not his face, because of the disguise. In 2013, due to improvements in DNA technology, a match was found with the swab taken from the Philippa shortly after the incident. As a result, the offender was arrested in 2013. Philippa described having been provided with little information as the court proceedings progressed; consequently, she attended each court hearing, in order to keep abreast of the matter, and felt she would not otherwise have had any knowledge of what was happening. She noted that: ‘You can’t control the process. The next best thing to having no input is to at least know what is going on. If you’re informed, it makes it bearable’. |
Jessica | The offender was Jessica’s ex-husband and they had an amicable relationship. He would visit her house from time to time, to assist with handyman tasks. Around the time of the offences for which he was convicted, he stayed at her home for about a week to undertake these tasks. Each night, he drugged and orally raped Jessica. She filmed this using a hidden camera, because she had woken groggy and with suspicious substances on her body on other occasions that he had stayed at her house. When Jessica told her ex-husband that she had recorded the offending acts, he reported himself to the police. Her was charged with 12 counts of rape, but ultimately pleaded guilty to 12 counts of aggravated indecent assault, which were representative of a total of 49 separate acts. Jessica chose to attend as much of the court proceedings as she could, as a means of keeping aware of what was happening. She said she felt like a nuisance having to regularly contact the DPP to ask what was happening: ‘I chose to attend on the final four occasions because waiting a month, two months, three months between hearings, and wondering when they are going to ring me, or wondering if I am a nuisance ringing them, did lead me to feel I had become a passenger on someone else’s journey’. |
Rachel | Rachel’s ex-husband pleaded guilty to two counts of aggravated sexual assault, one count of attempted rape and three counts of assault against her. The crimes were committed during a single episode of sexual violence. They had recently separated, after 11 years of marriage. The offender was upset about the separation and wanted to reconcile with Rachel. One night, they began to engage in sexual activity, but Rachel asked the offender to stop, which he did. Rachel went to another room and the offender followed her. She explained to him that having sex did not feel right to her. The offender then pinned her down and assaulted her before sexually assaulting her. Rachel kicked him off, but he again pushed her to the bed, choked her and attempted to rape her. The offender then let Rachel go and she left the house and called the police. The offender admitted his offences. Rachel did not hear anything from the authorities from that point onwards, unless she phoned to enquire about the case. She said: ‘I had very little to do, because it wasn’t my case. I just gave the statement and they went off and did it all…The minute I rang the police, it was taken out of my hands’. |
Eve | Eve met the offender through a dating website and arranged to meet for a drink at a pub. They then decided to go back to Eve’s house. When they got there, Eve made it clear that the offender was not welcome to stay and he said he had organised for a friend to pick him up after a few hours. They kissed consensually, but Eve repeatedly told him that she was not interested in having sex. The offender held Eve down on the couch and raped her. Afterwards, Eve said ‘you raped me’ and the offender agreed that he had done this. Eve reported the rape to the police while the offender was still in her house. The police arrived and questioned the offender. The DPP didn’t contact Eve for 15 months after the rape. She called every so often for an update, but always spoke to a different person, who was not familiar with her case, so she was forced to re-tell her story each time. About three weeks before the trial, the DPP’s office called Eve and told her the trial was coming up. She had not heard anything else from the DPP, but then spent up to three days a week with the prosecutor, discussing her evidence. She said: ‘If I have learned anything from this process, it’s that nobody actually cares about the victim. I got a phone call out of the blue, 15 months after he raped me, saying “can you come to the DPP’s office?” No one got in contact with me after it happened. I went to the hospital, got the rape kit done and that’s it’. |
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Davies, R.; Bartels, L. Challenges of Effective Communication in the Criminal Justice Process: Findings from Interviews with Victims of Sexual Offences in Australia. Laws 2020, 9, 31. https://doi.org/10.3390/laws9040031
Davies R, Bartels L. Challenges of Effective Communication in the Criminal Justice Process: Findings from Interviews with Victims of Sexual Offences in Australia. Laws. 2020; 9(4):31. https://doi.org/10.3390/laws9040031
Chicago/Turabian StyleDavies, Rhiannon, and Lorana Bartels. 2020. "Challenges of Effective Communication in the Criminal Justice Process: Findings from Interviews with Victims of Sexual Offences in Australia" Laws 9, no. 4: 31. https://doi.org/10.3390/laws9040031