As victims, I think weâre clearly misunderstood. (FG1 P2)
Introduction
Over the past 50 years, the criminal justice system has seen a major change in the role that victims play in the justice process; a change that has elevated their status from that of a âforgottenâ party to that of being recognised for the fundamental role they play in the criminal justice system (Doak and OâMahoney 2006; Erez et al. 2020). This elevation has manifested through the provision of state-funded financial assistance, support schemes and counselling services, registration and notification schemes, victim impact statements and victim representation on sentencing advisory councils, parole boards and other release authorities. It can also be seen through the establishment of victimsâ consultative councils and the introduction of dedicated Victims of Crime Commissioners who act as independent and central points of contact for victims of violent crime who have experienced difficulties in dealing with the justice system and government agencies (Freiberg 2003). More fundamentally, this change in status has challenged the traditional adversarial paradigm of criminal justice, which was regarded as involving just two partiesâthe prosecution, acting on behalf of the state; and the accusedâwith the court acting as independent, impartial arbiter. In line with concepts developed in the latter half of the twentieth century, such as restorative justice, therapeutic jurisprudence and theories of dispute resolution, such change has fuelled questions over the traditional approaches and responses to crime, and led to amendments in the way that the criminal justice system has responded to major social problems (Erez et al. 2020; King and Wright 2017).
Despite these changes, in common law jurisdictions, victims do not have âpartyâ status, nor do they have the status of an intervener (Blondel 2009, p. 239).1 Police and prosecutors are required to act in the public interest, not in the interests of victims (Blondel 2009, p. 239; Kirchengast 2016, p. 106). And while victims may have an interest or right to be consulted in relation to some decisions, this is often a matter of courtesy, and only sometimes a matter of law. Over recent years, victims have sought to play a more active role, with a greater voice and influence in the course of eventsâa change that has had the effect of increasing their expectations of other parties in the criminal justice system, particularly the police and prosecution agencies (Centre for Innovative Justice 2019, p. 17). Theories of non-adversarial justice have also contested long-held assumptions that the interests of victims and those of accused persons are necessarily antithetical and that an increase in the rights of one party must mean a concomitant decrease in the rights of the other. Indeed, there is increasing evidence that fostering and improving victim participation in the criminal justice process can promote ânon-punitive, moderate and parsimonious interestsâ (Manikis 2019, p. 2018) and that it is possible to balance the interests of both the victim and the accused (Erez et al. 2020, p. 329). It is within this realm of increased victim input and involvement into the traditional criminal justice process that this study sits.
This Pivot is based on a study that expands on our previous research into plea negotiations, in which we interviewed 48 prosecution and defence practitioners from both the public and private sectors, and judicial officers at all levels of the court (Flynn and Freiberg 2018a). In undertaking that study, we noted that what was conspicuously missing were the voices of the victims of crime, an omission that we sought to remedy. In this Pivot, we aim to privilege victimsâ voices and lived experiences of plea negotiations, and to report on victimsâ perspectives on the plea negotiation process in Victoria. As Englebrecht (2011, p. 133) observes, it is âvaluable to understand how crime victims view their own participation and role in the criminal justice systemâ. Shapiro (2001, p. 240) further notes that researchers, and justice theorists in particular, âmust start asking victims of injustice for input into the âpuzzlesâ we ought to pursueâ. Indeed, âwhile the public may well have a legitimate interest in the administration of justice, it is the victim who will have experienced the effects of crime in a very real and tangible wayâ (Doak and OâMahoney 2006, p. 159). In this regard, not only do the insights provided by victims warrant the attention and responses of researchers and policy makers, but their voices should also be used to inform and shape research and legal change.2 It is hoped that this research will contribute towards achieving this goal.
We recognise that there are differences of opinion as to the definitions of, and references to, âvictimsâ. Some argue for the term âvictimâ, âsurvivorâ or âvictim-survivorâ, while others prefer âtargetâ, âcomplainantâ and so on. The participants in our study referred to themselves as âvictimsâ. This was their preferred term and is therefore the term we use throughout this Pivot. We also recognise that the participants in this Australian study represent a particular subset of victims, primarily those who have experienced victimisation involving serious, mostly interpersonal crimes. The views are therefore not intended to be representative of all victims or victim groups, but they do represent the voices and lived experiences of those who participated in this study.
This chapter begins by discussing the changing role of victims in the criminal justice system, with a particular focus on plea negotiations. It then explores the sparse existing literature on victims and plea negotiations, before outlining the study methodology and structure of the Pivot.
Plea Negotiations and Guilty Pleas
The traditional adversarial paradigm of criminal justice has been brought into question by the stark reality that the contested trialâthe iconic image of traditional adversarialismâis a rare event. The vast majority of criminal cases in Australia, and elsewhere in the common law world, are resolved through pleas of guilty, with estimates regarding the number of guilty pleas varying from 70 to 95%. In the Australian state of Victoria, the Office of Public Prosecutions (OPP) (2019, p. 12) reported that in the 2018â2019 financial year, 91.9% of prosecutions in the higher courts resulted in a guilty outcome, with 77.6% of all matters finalised by a guilty plea. The rate of guilty pleas across Australia has sat at around this level for a number of years (Flynn and Freiberg 2018a, p. 9).
Research suggests that one of the main causal factors influencing the high rate of guilty pleas is the use of plea negotiations, which can be understood as a process whereby an accused person pleads guilty in exchange for agreed concessions from the prosecution (Bushway et al. 2014; Flynn 2016; Flynn and Freiberg 2018a; Royal Commission into Institutional Responses to Child Sexual Abuse [RCIRCSA] 2017). Plea negotiationsâalso referred to as plea bargaining or negotiated resolutionsâare now an accepted element of the criminal justice system in Australia and some 60 jurisdictions around the world (Langer 2021). They have long been the subject of numerous and extensive studies, most of them undertaken in the United States (US) (Alschuler 1995;...