Victims

Therapeutic jurisprudence examines the impact of legal processes on all participants in the justice system whether victims and their families, offender, litigant, witness, juror, lawyer, court officer or judicial officer. It does not side with any particular group. It is interested in the effect of court and other legal processes on all those involved in them.

It has been increasingly recognised by the justice system that victims come to court with special needs. They often have suffered significant trauma from the incident that gave rise to the legal proceedings and often with a substantial impact on diverse areas of their lives. Particularly where the perpetrator and victim are or had been in a relationship, the resolution of the problems may require them to be involved in multiple legal proceedings - criminal, family and/or restraining order/apprehended violence order proceedings. The resolution of the legal ramifications of the incident that caused the trauma often involves negotiating a system that can feel alien and alienating. Victims are often at risk of secondary traumatisation at the hands of the legal process.

In recent decades, the justice system has sought to be more responsive to the needs of victims. It has developed a special system of courts to promote the protection of and support for a particular category of victims - victims of family violence. It has introduced victim impact statements and victim offender mediation processes. There are also victim support services available at many courts. Specialised services to support victims of family violence have been established in many areas.

Some jurisdictions have introduced legislation to provide for particularly vulnerable witnesses such as children to give their evidence via closed circuit television from a remote room. There has also been legislation in some jurisdictions to limit cross-examination that in the large majority of cases is more intimidating for victims than of evidentiary value to the court - for example, limitations as to cross-examination as to past sexual conduct of victims.

How do legal processes impact upon the wellbeing of victims? How far do they promote victim voice, validation and respect? Do the initiatives introduced to assist victims promote or inhibit their wellbeing? What more can be done in the justice system to reduce negative impact of legal processes and to promote more positive effects? Are there other justice system values to be considered in introducing new initiatives? These are areas of inquiry of therapeutic jurisprudence.

Resources

Barnett M and Hayes R, ‘The role of victims in NSW forensic patient proceedings’ (2009) 13 University of Western Sydney Law Review 7.

Braithwaite J, 'Restorative Justice and Therapeutic Jurisprudence' (2002) 38 Criminal Law Bulletin 244.

Garkawe S, 'The Effect of Victim Impact Statements on Sentencing Decisions' Paper presented to the 'Sentencing: Principles, Perspectives and Possibilities' conference, Canberra, 10-12 February 2006, http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2006/Sentencing%20Conference/Sen%20conf%20papers%202006/Garkawe.pdf.

Graycar R and Wangmann J, ‘Redress Packages for Institutional Child Abuse: Exploring the Grandview Agreement as a Case Study in 'Alternative' Dispute Resolution’ Sydney Law School Research Paper No. 07/50. Available at SSRN: http://ssrn.com/abstract=1001148

Henry NM, Disclosure, Sexual Violence and International Jurisprudence: A Therapeutic Approach (Doctoral Dissertation, University of Melbourne, 2005).

Hills AM and Thomson DM, ‘Should victim impact influence sentences? Understanding the community's justice reasoning’ (International Perspectives on Therapeutic Jurisprudence) (1999) 17(5) Behavioral Sciences & the Law 661.

King MS, 'Therapeutic Jurisprudence, Child Complainants and the Concept of a Fair Trial' (2008) 32 Criminal Law Journal 303.

Kirchengast T, 'Victim Influence, Therapeutic Jurisprudence and Sentencing Law in the New South Wales Court of Criminal Appeal' (2007) 10 Flinders Journal of Law Reform 143.

Naylor B, ‘Effective Justice for Victims of Sexual Assault: Taking Up the Debate on Alternative Pathways’ (2010) 33(3) University of New South Wales Law Journal 662.