12 - Share Your Grief but Not Your Anger: Victims and the Expression of Emotion in Criminal Justice

Summary

Introduction

This chapter focuses on the growing trend towards using the criminal justice system as a venue for the expression of emotion by crime victims and their families. In the United States, Canada, the United Kingdom, Australia and New Zealand, crime victims and their families are being given the opportunity to address the court, to confront the defendant and to weigh in on how the case is being conducted. These innovations pose difficult questions for adversary systems, in which the trial has long been viewed as a two-way battle between the government and the accused. In order to define and regulate the increasingly powerful role of the victim, it is first necessary to determine what goals the victim's participation is meant to achieve.

The legal context places the questions of this volume in sharp relief. Choices about who is permitted to express emotion in particular venues, and about what emotions may be expressed, have concrete consequences. In the criminal justice system, for example, the decision to afford victims a venue for expression has been linked to increased severity of sentence and increased likelihood of a death sentence. Ideally, a choice with such weighty consequences would be based on a considered judgement that permitting such expression will advance legitimate goals. Yet although the emotions of crime victims, and of murder victims’ family members (hereinafter survivors), have been afforded an increasingly powerful role in the criminal justice system in the past several decades, the justifications offered for that increased role have been poorly articulated and inconsistent. Without a coherent understanding of what role the communication of victim emotion is meant to serve, it is difficult to determine what form the communication ought to take, and what limits should be placed on the communication. It is also difficult to determine, as an empirical matter, whether the communication is serving any legitimate purpose in practice, or whether it is in fact interfering with important criminal justice goals.

In the adversary system, the traditional view is that by representing the state, the prosecution adequately represents the interests of victims as well. Recently victims have been given increasing participation rights, but the rationale for providing that access has not been well articulated.