Dr Ian Marder
    Secondary victimisation can be prevented if we understand victims' needs and invest in services and approaches to best meet these, writes Dr Ian Marder of the School of Law and Criminology.

    Time after time, we see victims of crime express dissatisfaction with their experiences of criminal justice. These experiences can range from causing them annoyance or inconvenience, all the way to producing acute harm and trauma, potentially exceeding that which was caused by the crime.

    The experience of Natasha O'Brien has brought this problem into sharp focus here in Ireland. She described her experience of court as worse than the original violence - a grave indictment, given that she also expressed having felt that she might die during the attack.

    What is 'secondary victimisation'?

    Sadly, this experience is far from unique. Similar experiences are detected in every country that I’ve seen victims’ interactions with criminal justice being explored. This is called ‘secondary victimisation’ – harm emerging not from the offence, but from one’s experience of interacting with criminal justice. It is a key concept in victimology, a field in which I teach and research.

    Victims can experience secondary victimisation in several ways. For example, many people know that victims can be cross-examined in court in aggressive, humiliating or cruel ways. This can have devastating effects on a person’s wellbeing and reduce their willingness to give evidence in the future. Victims’ experiences ‘on the stand’ led to Ireland and many other countries introducing special measures aimed at protecting vulnerable, intimidated or child victims while giving evidence. Ireland also has other rules relating to victim cross-examination.

    But a victim providing evidence in a court in Ireland only happens when a person suspected of the offence is identified, charged and pleads not guilty, and the victim is asked to give evidence. We know that huge numbers of offences are either never resolved, resolved through interventions that are used instead of court, or are resolved in court through guilty pleas or using evidence other than that which a victim provides. This means that most victims don’t testify at a trial.

    In many such cases, a victim of crime may still interact with criminal justice. They might start by reporting the crime to the police and engaging with the police during an investigation – or receiving word that an investigation will not occur, or is unsuccessful. If a person is charged, then a victim may still interact with prosecutors or judges even in the case of a guilty plea.

    Victims may seek information, updates or support, attend sentencing or other hearings, or give a victim impact statement. Where a person is convicted and sentenced to imprisonment or a form of community sentence, victims may have interactions with the Probation Service, Irish Prison Service or Parole Board (see here for information about their responsibilities towards victims and here for the rights of victims in Ireland generally).

    It is crucial to recognise that every interaction a victim has with the criminal justice system – from reporting a crime in the first place to, for some, being told about the offender’s release from prison years later – has the potential to cause secondary victimisation. For many, a significant challenge is the uncertainty that emerges during the delay between reporting and waiting to hear if a person will be found and convicted. Many are unable to move on with their lives when waiting, sometimes for years, for their case to conclude.

    Insufficient resources are typically allocated to giving victims regular updates and ensuring their needs are met in the meantime. This is especially problematic in sexual offences, with a recent report finding that systems issues, and occupational knowledge, culture and behaviour, were two of the biggest factors causing delays in these cases.

    Court is not for helping victims

    The truth is that Ireland's criminal justice system does not exist to meet victims’ needs and ensure they recover. In our adversarial system, the victim is not a party to the case. The State prosecutes the suspect on behalf of the community. By its design, victims are an afterthought. As Norwegian criminologist Nils Christie argues, the official response to the offence could be among the most important things in a victim’s life, but this is 'stolen’ by the State as it excludes victims (and indeed the suspect and community, too) from expressing their real needs and having these met.

    This is why efforts to integrate victims’ rights into criminal justice are challenging: it requires them to be ‘shoehorned’ into a process that isn’t designed for them. The Victim Impact Statement is an important example, as many victims can feel disappointed by the lack of clarity as to its purpose.

    A challenge is that we assume the sentence is always the most important thing for victims. It may be counterintuitive to some, but victim satisfaction with criminal justice is more closely linked to their treatment and services available than to the sentence. Natasha O’Brien herself has said she was ‘not criticising the actual sentence given, I am criticising the way it was given and the reasons for giving it, and the insensitivity in which he (the judge) handled me’.

    Research supports the idea that things like participation, validation, voice, vindication and offender accountability-taking can be more significant for victims’ justice interests than sentencing outcomes. This reflects the importance of ‘procedural justice’. In short, ‘victims appreciate receiving caring, fair (procedurally just) and respectful treatment from criminal justice professionals’, according to a report on the highest quality international research on victims' interactions with criminal justice, by UCD researcher Deirdre Healy.

    Moreover, their treatment is a ‘much more important precursor of satisfaction’ than case outcomes. While professionals are beginning to receive training relating to victims, we remain quite far from cultures and systems that recognise their needs.

    A separate ‘track’ for victims?

    Ultimately, a ‘victims’ track’ is needed to ensure that there is as much emphasis on victims’ needs as there is on prosecution and sentencing. This ‘track’ is not about what will happen to the person who committed the offence, but about providing publicly-funded therapeutic services, emotional and practical support for victims during a trial, public compensation, and other services. It would provide what is needed independently of what happens in the track which deals with the suspect.

    It will be interesting to see if the new statutory domestic, sexual and gender-based violence agency Cuan, might consider this as part of its research, policy and service development functions. An advantage of this separation of tracks would be to improve victims’ rights without diminishing the rights of suspects – not that victims’ and suspects’ rights are, even now, diametrically opposed.

    In the absence of such a substantial reform, we can do much to improve victim’s experiences and meet their needs. Recent increases in funding for some victims’ services are significant, but mask the fact that overall investment remains small, compared to levels of need. Victims require quick access to high quality, bespoke services, which may differ depending on offence type or personal characteristics, such as age and gender.

    People often have co-occurring needs, requiring access to services in mental health, substance abuse, debt, housing, loneliness, and others. Restorative justice is another under-utilised service in Ireland for which there is strong evidence suggesting it brings victims satisfaction and justice and aids their recovery, even in serious offences.

    Victims’ needs matter

    We will almost all be a victim of crime at some point in our lives. Ensuring victims’ needs are met is important to us all. Providing proper victim support can even prevent crime, given links between childhood trauma and offending later in life.

    As an EU member, Ireland had to legislate for victims' rights after a related Directive was adopted in 2012, and may need to legislate again if the Directive is revised as currently planned. But there’s nothing stopping us going further than the EU Directive, especially in terms of investing in services and communicating victims’ needs to professionals and the wider public. A single-minded focus on sentencing will benefit nobody. Instead, we should focus on what evidence says about victims’ needs and recovery, and align our approaches and systems accordingly.

    This piece originally appeared on RTÉ Brainstorm