Weighing victim impact statements

Anyone who has read anything about the case of Larry Nassar, who was sentenced to up to 175 years in prison this week for assaulting American female gymnasts and other athletes, can’t help but marvel at the strength of the young women who gave seven days of victim impact statements about the harm Nassar had done to them.

You can’t help but see their individual strength and feel part of their raw pain.

Victim impact statements are extremely powerful, unfiltered visceral statements of loss, which is why the media loves them so much. I’ve quoted from them myself and CBC — earlier in the week — actually had people involved in a Manitoba murder case sit and read their victim impact statements to the camera, posed against a sombre black backdrop.

That Manitoba case, by the way, involved the murder of 17-year-old Cooper Nemeth. In all, there were 96 victim impact statements made during the sentencing of 24-year-old Nicholas Bell-wright, some read, most filed in writing with the court.

Having that many victim impact statements was allowed as a result of legislative changes in 2015. The Canadian Victims Rights Act spelled out that, “Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered.”

I can see why they are important to victims.

Sometimes the statements are the only direct contact between someone convicted of a crime and those who are affected by the crimes involved. The only chance to look an offender in the eye and say, “this is the damage you did.” I can understand how cathartic that might be, and how it might be a crucial step in anyone’s healing process.

I can even understand how, in some cases, it might be critically important to rehabilitating the offender as well, as the impact of their action might finally sink in. (In Nassar’s case, he actually asked the judge to limit the number of victim impact statements, because he was finding it hard to get through them. The judge properly refused the request.)

But it’s how that information is to be considered by courts that makes me wonder a little.

A crime can be heinous even if the victim is unliked, or if a victim chooses, for their own reasons, not to give a victim impact statement at all. But judges are told that they have to take victim impact statements into account when drafting their sentences — what do they take from the absence of such statements?

It’s something that has troubled judges, too — even before the 2015 changes, which broadened the range of people who could file impact statements, judges were struggling with how to factor impact statements into actual sentences.

“It is not clear whether Parliament meant that judges must impose a more severe sentence than is usual for a particular crime if there is a victim impact statement, or a less severe sentence if there is not. Nor is it clear whether the more grievous the loss suffered by the victim, or the surviving family of the victim, the more severe the sentence should be,” B.C. Supreme Court Judge J.C. Bouck wrote in R vs. Labbe in 2001.

In another B.C. manslaughter case, the Queen vs. Eneas in 1994, an Appeal Court judge wrote, “To my mind, it matters not if the deceased is young, promising and much–loved, or old, deranged and despised by all who knew him. The law ought not to measure the value of a life taken, for to do so would diminish every person’s right to live out his or her appointed span.”

Since then, of course, the role of the statements has been strengthened: Criminal Code section

722.1 now says, “When determining the sentence to be imposed on an offender … in respect of any offence, the court shall consider any statement of a victim…”

“Shall” is a strong word. In Winnipeg last week in the Nemeth case, the judge actually asked whether it was possible to limit the number of victim impact statements, pointing out that he was supposed to bring “dispassionate objectivity” to the sentencing process. The judge was told by the Crown that the new rules meant the statements should be entered.

It’s a difficult balance. Justice and vengeance, after all, are two different concepts.

Victim impact statements are extremely powerful, unfiltered visceral statements of loss, which is why the media loves them so much.