Abstract
In Adversarial Justice and Victims’ Rights: Reconceptualising the Role of Sexual Assault Victims, Dr Mary Iliadis insightfully explores sexual assault victim–focused reforms from England and Wales, Ireland, and South Australia. These reforms help to meet the participatory needs of sexual assault victims while protecting established interests in the criminal justice system. She effectively contends that successful victims’ reforms properly reconceptualize victims not as mere witnesses in criminal proceedings but rather as participants with important interests deserving protection.
Dr Iliadis’ perceptive book consists of eight chapters. After a brief introductory chapter framing the problem of victims’ rights in sexual assault cases, Chapter 2 sets out sexual assault victims’ interests in criminal cases. The fundamental problem is that emerging victims’ rights create a ‘triangulation of interests’ between the State, defendants and victims. As more complete consideration of victims’ interests has emerged in recent years, triangulating among the competing concerns has become not only more complicated but more important.
Chapter 3 then provides a helpful theoretical framework for considering victims’ interests in sexual assault cases. The chapter clarifies that, for many victims, the focus is not exclusively on case outcomes but rather on fair processes leading to those outcomes. A focus on procedural justice for victims identifies four areas of interest: the need for information, validation, voice, and control.
Against this procedural justice backdrop, Dr Iliadis then provides several case studies of victims’ rights reforms illustrating how to advance procedural justice for sexual assault victims. These chapters rely on an interesting methodology for exploring the efficacy of criminal justice modifications. Rather than merely commenting on the letter of the law, Iliadis instead interviewed 26 high-level criminal justice professionals, legal stakeholders, and victim support workers. She then uses the interviews to assess the efficacy of the reforms in practice. This approach refreshingly conveys not mere starry-eyed optimism about how reforms might operate but rather some sense of the reforms’ real on-the-ground impact.
Chapter 4 appraises an important victims’ right in England and Wales – the victims’ right to review (VRR). Under a 2011 decision of the Criminal Division of the England and Wales Court of Appeal, a victim can seek review of a prosecutor’s decision not to prosecute. In theory, such a reform would be quite important to crime victims. Without an opportunity to challenge a decision not to prosecute, a victim might never have a criminal case in which to be a given a voice. In that sense, the reform has been successful. But that success has been limited because, in practice, it is a mere ‘in-house’ review that does not always and transparently provide victims an explanation for charging (and non-charging) decisions.
Chapter 5 takes the reader to Ireland to consider a reform entitling sexual assault victims to legal counsel when a defendant seeks to introduce evidence about a victim’s prior sexual history. Such a reform significantly expands victims’ ability to navigate complicated legal processes, by providing the guiding hand of counsel. But the reform’s impact has been restricted, because of representation is limited to prior sexual history issues. And, paradoxically, Dr Iliadis concludes that the reform may have helped to entrench defendants’ ability to admit prior sexual history by litigating – and thus perpetuating – rape myths.
Chapter 6 travels to South Australia, through an analysis of the South Australian Commissioner for Victims’ Rights (SACVR). This reform provided legal representation, though a commissioner, for victims in certain criminal proceedings. Here Dr Iliadis reports that most observers positively assessed the SACVR. The commissioner did not detract from other efforts to support crime victims while also providing a focused ability to step into particular cases where victims’ rights most urgently needed protection.
Chapter 7 is the final case study chapter and closely examines another Australian jurisdiction, Victoria. Dr Iliadis asks the study participants about whether the reforms discussed in the three previous chapters might be usefully imported into Victorian criminal procedures. With respect to independent legal representation for sexual assault victims, study participants were apprehensive about an unbridled right to counsel. Concerns included the possibility that separate legal counsel might create the perception that two prosecutors were pursuing a defendant – one for the State and one for the victim. But if a right to counsel were more narrowly cabined to issues such as admissibility of prior sexual history, participants were more supportive. And participants were generally enthusiastic about the possibility of a victims’ right to review, viewing that as a positive and appropriately incremental step towards meeting victims’ procedural justice needs.
In her concluding chapter, Dr Iliadis draws conclusions about how the needs of sexual assault victims can be addressed within adversarial criminal justice processes. She culls several interesting points from her case studies. The first is that crime victims’ rights must be fitted within a broader response to victims. For example, if reforms are improperly communicated, victims will inevitably view them as merely ‘sticking plasters masking the real issues’.
Another intuitive but interesting conclusion is that victim-related reforms are most successful when they are incremental rather than radical. Entrenched criminal justice actors are properly concerned about the interests of the State and the defendants. And the historical commitment to adversarial processes in the jurisdictions studied makes integrating concerns for victims more complicated than it might be the case in other systems. As a result, incrementalism offers the best prospect of overcoming objections and responding effectively to victims’ needs.
Perhaps Dr Iliadis’ most significant finding is the need for ‘triangulating’ sexual assault victims’ interests with the interests of the State and defendants. Historically, sexual assault victims (like other crime victims) have been viewed as mere witnesses for the prosecution in criminal cases. But as the study’s participants broadly noted, conceptualizing victims as playing such a limited role exacerbates feelings of alienation from the process and can lead to further victimization. Instead, sexual assault victims need to be conceptualized as full-fledged participants in the process. This change in view would better incorporate victims’ interests within traditional criminal justice structures.
Dr Iliadis’ book demonstrates not only a sophisticated approach to assessing the effectiveness of victims’ reforms (a well-crafted survey of knowledgeable criminal justice participants) but also some encouraging notes for future reformers. An overarching theme emerging from examining three different jurisdictions is that a reconceptualization of sexual assault victims’ role within adversarial processes is taking hold, however haltingly and incrementally. That victims might become true participants in adversarial criminal justice processes in the not-too-distant future is not a mere academic dream but something that the arc of history is already bending towards.
