Cases are resolved in the courts in two main ways: trials and plea bargains.
Trials
Victims’ rights groups have had a number of significant wins for victims’ rights if a trial occurs. In the case of sexual assault and harassment, the victim’s sexual history is not allowed to be discussed. This is important because historically a victim’s entire sexual history was potentially brought up to prove that the victim was somehow deserving of, or otherwise asking for, the assault. Payne v. Tennessee (1991) allowed victims’ impact statements to be include in the sentence phase. This was put into law with the passage of the amendment of the Federal Rules of Criminal Procedure in 1992, allowing for the victim’s statement to be presented in the presentencing phase of death penalty cases. In addition, a growing body of research indicates that the courts find victims more credible if they are emotional about their experiences (Ask & Landström, 2010), including children (Landström, Ask, Sommar, & Willén, 2015), which is problematic, particularly for those whose response to victimization is to shut down emotionally, thereby undermining their role and credibility in the courts.
Understanding is growing in how victims respond to victimization, including why some people do not remember accurately and the psychological factors that play into this. Historically, it was assumed that if a victim could not remember, a crime might not have occurred at all. Today, we know that psychological factors can impact the ability of someone to remember a crime. These psychological factors must be accounted for when victims are giving testimony.
In addition, there are issues with domestic violence victims. Domestic violence, which will be discussed more in future modules, is one area where the court’s role is mixed. Although the courts play an important role in helping protect victims from offenders, a risk of secondary victimization remains a barrier for victim participation in the CJS (Przekop, 2010). Secondary victimization might include including having to repeatedly testify in court and the potential loss of child custody to the batterer. Abusive fathers are more than twice as likely to seek sole custody of their children, and courts award sole or joint custody to these fathers in 70 percent of all custody cases, leading to abusers having some form of control over the victims. The court can even become a weapon of abusers when victims have little voice in the process (Ward, 2016).
In addition to adults, children both as witness and victims can be sensitive issue for the courts. During the last 30 years, significant changes have been made in how children are treated in the courts in response to the growing number of children being called to testify. Research has shown children were less likely to be believed by judges, jurors, and prosecutors, partially because children’s recollection of their victimization is often contradictory and confusing (Ceci & de Bruyn, 1993). This is especially true for younger children, whose understanding of the world and their vocabulary is much different than that of adults. The ability to give a clear order of events can be difficult for these children. This has lead the courts in all 50 states to drop the rules against leading a witness when the child is below 10 years of age, especially when the type of crime occurs in private, like sexual or physical abuse. Shield laws, which allow children to testify behind a one-way mirror or on video, and the hearsay exception for therapists (which allows others to describe what the child has said to them), have improved the situation for children in the courts. There is also an increased use of therapy animals to help victims, particularly children, during their testimony. This provides some anxiety-reducing effects and allows them to be more effective at giving their testimony, even if there is a possibility of it having some negative influence on the case (Nascondiglio, 2016). There is also a call to educate children about the court
when they are going to testify as a way to reduce anxiety and improve their testimony accuracy (Watkins, 2014).
Charles Lindbergh is shown on the witness stand in the courtroom at Flemington as he told his story about the dramatic kidnapping of his 22-month-old son on March 1, 1932. Image: Lindbergh takes the stand during trial. Authored by: World Telegram staff photographer. Source: https://commons.wikimedia.org/wiki/File:Charles_Lindbergh_testifying.jpg. License: CC-0
Therapy dogs and other animals are becoming more commonly used not only in courts, but also as a therapeutic tool for traumatized individuals, including those with PTSD, which sometimes results from experiencing a crime. Image: FEMA Therapy dog. Authored by: Robert Kaufmann. Source: https://commons.wikimedia.org/wiki/File:FEMA_-_20641_- _Photograph_by_Robert_Kaufmann_taken_on_12-20-2005_in_Louisiana.jpg License: CC-0
Plea Bargain
The vast majority (90 to 95 percent) of all criminal cases, whether it is at the federal or state level, results in a plea bargain. A plea bargain is where the defendant will plead guilty to a particular charge in return for some concession from the prosecutor—often a reduction in the seriousness of the charges or dropping other charges. Plea bargaining avoids a lengthy criminal trial for the courts and the risk of conviction of more serious charges for the defendant at trial. This process is negotiated between the attorney for the offender and the prosecutor, with little to no involvement of the victim. Plea bargaining deprives the victim of the ability to confront their
offender and see the process of justice take place, but it also helps avoid reliving their trauma and the revictimization that can occur from that process.
Since the mid-1990s, there has been a trend of consulting with victims in the process of negotiating plea bargains. Currently, seven states have granted constitutional rights to victims to participate in plea bargaining in some form (Jones, 2014). Several of these states allow the victim to be heard during the negotiation process, although even states like California (the national leader in crime victims’ rights) require that victims actively seek out these opportunities (Jones, 2014). Most allow the victim to comment on the final plea deal; however, trends in the courts, including legal challenges and shifts in victims’ rights laws, show movement toward greater inclusion of victims in the process.