The use of impact statements, minimum sentences and victims’ privacy interests: a therapeutic exploration

Abstract

By submitting or presenting an impact statement, reflecting on the different kinds of harm caused by the commission of a crime against them, victims are also allowed the opportunity to participate in criminal justice procedures. In South Africa, its use has been endorsed through appellate judgments, legislation, and a Victims’ Charter. Though the precise role, value, weight and inconsistent use of victim impact statements have often been debated, no possible human right violation had, until recently, been highlighted. However, in the axe-murder case of S v van Breda (SS17/16) [2018] ZAWCHC 87 (7 June 2018)) the prosecution indicated that, in protecting the right to privacy of the surviving victim, no impact statement would be presented during sentencing. This paper explores the argument raised by the state and, in the event of an impact statement infringing on an adult victim’s privacy, what the likely psychological consequences are. It is contended that, while it is widely used, and often considered essential, as one factor to determine the absence or existence of substantial and compelling circumstances, it also reveals extremely intimate detail about victims and may be perceived to infringe on their privacy. Victims should at all times be informed of the route this information might take into not only the public domain, but also more pertinently the divulgence to the accused per se. They should be empowered to take an informed decision in this regard. Based on an individualistic approach, the particular victim’s well-being should be respected and advanced.

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