In the criminal process, the defendant is central. His or her position is surrounded by legal guarantees. He or she is not obliged to cooperate in his or her own conviction. It is a fundamental principle that every defendant receives a fair trial.
Criminal law is public law which means that the government is in charge. The prosecution litigates against the accused.
Position of victims
In violent or sex crimes, there are also victims. How much real attention is there for them in criminal law? In recent years, the legislature has taken initiatives to strengthen the position of the victim in the criminal process. An important example is the introduction of the right to speak. Also significant for victims is the introduction of a statutory advance payment scheme that ensures that compensation is advanced by the government if the convicted person fails to pay the compensation.
Despite these initiatives, it is noticeable in practice that the nature of the criminal process between prosecutor and accused is difficult to reconcile with the rights of a third party, the victim.
Presence of defendant during exercise of right to speak
Now there is debate about whether the accused can be required to listen to the victim at the sentencing hearing.
There is a bill that seeks to regulate, among other things, an appearance requirement for incarcerated suspects in serious sexual or violent crimes. The proposal encounters objections from the judiciary. A recent opinion by the Judicial Council strongly discourages the introduction of an obligation to appear. It argues, among other things, that a defendant ‘cannot be compelled to hear a victim impact statement addressed to him’ and that the right to speak ‘is not intended to give the victim the opportunity to lecture and “punish" a suspect in advance”.’
It is telling that judges take the position that a defendant cannot be forced to be present when the victim exercises his right to speak and hear a statement addressed to him. In my opinion, the legislator is right to think that this should be possible. It is hard to see why hearing a victim's statement is at odds with the presumption of innocence. After all, the same applies to hearing the indictment.
It is formally true that a victim who exercises the right to speak addresses the judge and not the accused. It is also true that not all victims appreciate the presence of the accused at the hearing. Nevertheless, many victims do find it important for the accused to hear what the crime has done to him or her. It is an essential part of processing suffering inflicted by another person. For this group of victims, it is a slap in the face that the accused - by not appearing - (again) does not care about their interests.
Influence of victims?
The Council for the Judiciary points to the alternative that the prosecution, in communicating with the victim, asks whether the presence of the accused during the exercise of the right to speak is appreciated, and partly on that basis decides to ask the judge for an order for personal appearance.
If the obligation to appear is not established by law and this alternative were to be adopted, it would be better to give the victim a decisive vote in this regard. The accused would be required to be present at the hearing because the victim desires it. Such an arrangement would create a feeling for victims that they have a decisive voice in the criminal process on a single but important point for them. That sense of empowerment could help in processing the suffering.
For more information about this blog, please contact the author, John Beer.