Since the basic reasons for compiling a Victim Impact Statement in both South Africa and America are the same both will be considered for this discussion. At first glance it appears that a Victim Impact Statement is valuable for the court for many reasons, it gives the court a chance to hear, personally, how the victim was affected by the crime committed, and to consider the chance that the offender may recommit a crime when released.
Often in cases of domestic violence or stalking a victim may continue to be a victim after the offender is released from prison and a Victim Impact Statement gives the victim a chance to outline reasons why they believe this a possibility or not. This in turn may assist the court in deciding on a sentence or whether or when the offender will be eligible for parole. It is a victims chance to tell the court and the offender how they were, and still are, being affected by the crime.
It is often noted, especially in South Africa, that the offender has more rights than the victim and therefore a Victim Impact Statement may give the victims of crime a renewed sense of hope in the criminal justice system. Victim Impact Statements help to make the processes within the Criminal Justice system more democratic and fair and balances the power of 'victim vs offender'. The Victim Impact Statement may give the victim a sense of empowerment when dealing with the emotional rollercoaster ride of a court case against the very person that harmed them in some way.
Victims all too often shy away from the process as it is known to be one of brutality for the victim, especially in cases of cross-examination, many victims feel the state does so much to protect the rights of the offender and none to protect the rights and interests of the victim. As stated by Combrinck et al (2002) It is necessary to balance two sets of interests: on the one hand, the rights of the person accused of criminal offences, and on the other hand, the interests of society and the rights of the persons who look to the State for protection from crime.
Certainly it would seem that the court would be more equipped to make a fair sentencing if both sides are heard? The offender is able to give an emotional plea, therefore it stands to reason that the victim should be afforded the same rights. Victim Impact statements also allow the court to consider the crime in more personal terms, it adds value to the 'human' factor of the criminal justice systems and may appeal to the court to consider empathy on the victims behalf when considering the severity of the crime committed.
"Proponents argue that Victim Impact Statements help prosecutors and judges experience the real impact of the crime and often result in sentences which better reflect the harm caused to the victim" (John Howard Society, 1997). It seems that the Victim impact statement not only acts as a tool to help the judge consider the severity of the crime, but gives the victim a sense of empowerment too, or does it? 9 The possible problem with the Victim Impact Statement lies in the victim's ability to suggest a sentence for the offender.
If the judge does not adhere to the sentence suggested by the victim, will the victim not feel failed by the judicial system? Often a victim, in being able to submit a Victim Impact Statement, may have high expectations resulting in disillusionment once sentencing has been passed. If a victim has suffered major psychological harm as a result of the crime and the sentence imposed is a light one, could the victim be subject to further psychological harm as they are so emotionally vulnerable already?
Their suffering too could be compounded by cross-examination regarding the Victim Impact Statement and open the victim to a secondary form of victimization, David Kgosimore points out that this "secondary victimization occurs when a defence lawyer operates in accordance with Lake's (1954:165) legal style of "battering and kicking the witness around not only to humiliate but also to subdue him/her" (cited: Unisa online: The Bill Of Rights in the Constitution of the Republic of South Africa). Perhaps a victim should detail this secondary victimization in their Victim Impact Statement to highlight the brutality of cross-examination.
"Opponents of the Victim Impact Statements argue that their use does little to further the traditional goals of sentencing: deterrence, incapacitation, rehabilitation and retribution" (Dugger, 1996). This stands to reason, a Victim Impact statement is made available to the offender and if the offender believes the statement had an impact on his sentence he may seek retribution in some way from his victim. 10 5. CONCLUSION Whether proponent or opponent of the Victim Impact Statement, it is still widely believed that just being able to write about or talk about the crime has psychological benefits for the victim.
Also since it is a choice, and if a victim has been briefed about the process properly, they are in a position to make an informed decision regarding their Victim Impact statement and this alone gives 'power' back to the victim. An evaluation of Victim Impact Statement demonstration projects in American states found that an overwhelming majority of the victims found the experience of completing the statements to be positive and would participate again (Giliberti, 1990).I hope the same is true for South Africa.
Code of Criminal Procedures. 2002. Article 56. 04(a). USA Accessed from: www. law. onecle. com/criminal-procedure/56. 03. html on 02/04/2006 Combrinck. H, et al. 2002. Bail in Sexual Assault: Victim's Experiences. Second Research Report: Pretoria Dugger, A. 1996. Victim Impact Evidence in Capital Sentencing: A History of Incompatibility. American Journal of Criminal Law, 23 375-404