What is it?
Many justice systems around the world acknowledge and protect the rights of criminal defendants in court proceedings. The rights of crime victims are also relevant in criminal proceedings and represent a crucial element in criminal justice systems. These rights are more commonly recognized in “hands-on” or contact child sexual abuse and exploitation cases than in cases involving only charges of image-based offending .
NCMEC's Position:
Victims of online child sexual exploitation, including CSAM offenses, should be informed of their right to engage private legal representation, the right to be heard, the right to victim services, the right to confidentiality, and the right to have their impact statements considered by courts sentencing convicted offenders. Courts should facilitate the involvement of a victim’s counsel whenever possible in legal proceedings.
Why does it matter?
Justice systems in various jurisdictions commonly frame criminal conduct as acts against the State, the People or the Government, even when an individual is victimized. The victim may serve as a witness, but the government ultimately has the power to decide whether to prosecute an offender and, if so, on what charges. Defendants often are provided with legal representation to assert and protect their rights, while children victimized by sexual crimes are not guaranteed similar support. Further, victims of online child sexual exploitation are rarely informed of their rights to engage with private counsel during a criminal proceeding and to seek restitution after a prosecution.
Ensuring resources to facilitate crime victims in securing legal representation would increase engagement, promote the protection and exercise of victims’ other rights, and provide more complete information to courts. Customarily, victims—like other witnesses—may be compelled to testify in legal proceedings. However, justice systems can better support survivors by empowering them to make choices about their participation, when possible, such as submitting a written victim impact statement during a sentencing hearing and preserving their privacy and confidentiality.
When a person is victimized by an offender, how the criminal justice system engages (or fails to engage) the victim and the victim resources the system provides (or fails to provide) can compound the trauma of the original offense or contribute to the survivor’s recovery and restoration.
What context is relevant?
In 1985, the United Nations adopted a Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which articulates principles of alignment for national legislation related to victims’ rights. In some jurisdictions, crime victims are afforded various rights recognized by law, but the list of rights and their application may vary widely.
For victims of federal crimes (not state or local offenses) in the United States, 18 U.S.C. § 3771 lists ten rights, including rights to be present in relevant public court proceedings; to be heard regarding release, plea, sentencing, or parole; full and timely restitution; etc. The Canadian Victims Bill of Rights applies to all victims of crime (federal, provincial, and municipal offenses) in Canada. Neither the U.S. nor Canada’s laws include references to facilitating legal representation for crime victims. This is common worldwide. While many countries permit legal representation for crime victims, few facilitate this process or provide such support at the government’s expense.
There is one notable exception in the U.S.—within the U.S. military criminal justice system, the government is required to “designate legal counsel…for the purpose of providing legal assistance to” eligible individuals (including military members and their dependents) who are victims of alleged sexual crimes (10 U.S. Code § 1044e).
The Nordic countries of northern Europe are also an anomaly in this matter. Beginning with Denmark in 1980—and eventually extending to Norway, Sweden, Finland, and Iceland by 1999—laws were enacted requiring government-funded lawyers for victims. Originally focused on providing representation to rape victims, those laws have since expanded to grant victims the right to a lawyer in cases of sexual violence and other serious crimes.
What have survivors said about it?
Survivors have noted that acknowledgement and protection of victims’ rights are important elements, alongside many others, of a trauma-informed approach to justice. Some have described feeling frustrated, if not offended, when governments pay for defendants’ legal representation yet withhold from victims the same type of support and do not otherwise help victims locate legal representation. Recognizing that prosecutors typically have an obligation to represent the interests of the government, some survivors feel left to fend for themselves when the government’s interests are focused on prosecuting an offender, rather than ensuring resources for victims. A court’s acknowledgement and consideration of a victim’s presence and perspective during proceedings, such as through a victim impact statement offered at sentencing, can help the survivor feel heard and aid in recovering from harm caused by the offender.
Often times the sense of whether 'justice happened' by victims depends far more on whether they experienced the feeling their voices were heard or considered than the actual outcome of the case. While being acknowledged by the courts may not always resolve everything for every victim, …being seen or heard by the justice system can promote a survivor's ability to recover from his or her victimization, whereas remaining unseen inhibits closure and reinforces the sense of isolation and shame of the victim.
- Survivor
What drives opposing viewpoints?
Opposition to expanding rights for victims in criminal proceedings may be based on concerns about victims’ rights displacing or eroding the rights of the accused. Some may argue that criminal proceedings are between the government and the accused, and victims should seek redress exclusively through civil proceedings. Additionally, some opponents may raise concerns that expanding victims’ rights in criminal cases may increase time and money needed to adjudicate such cases within systems that are already under-resourced and overburdened.