The Texas Prosecutor, March-April 2018

A Michigan case puts national spotlight on victim impact statements

Earlier this year, Michigan Judge Rosemarie Aquilina of the Ingham County Circuit Court allowed more than 150 women, all sexual assault victims of USA Gymnastics team doctor Larry Nassar, to deliver oral impact statements as part of the sentencing phase of Nassar’s trial. (He had pled guilty to seven counts of criminal sexual conduct and has since been sentenced to 40 to 175 years in prison.) For over a week, victim after victim filed into the courtroom to offer her statement. As each statement was given, it provided strength and confidence for the next victim to speak, creating a movement of sorts. The national news media picked up on this march of girls and women through the courtroom and even transcribed some of the statements for wide dissemination. It started a national conversation about Nassar’s crimes as well as his victims.
    Allowing so many victims to speak in court has gone beyond any hearing I was ever involved in, and it may be unprecedented in a case involving “only” seven charges from seven victims. Obviously, to allow so many victims to give statements took a lot of planning and preparation by the prosecution, court system, and everyone involved. My hat’s off to the judges, prosecution teams, and victim assistance coordinators for setting aside the time and finding it in their hearts to allow so many of Nassar’s victims to give oral impact statements.
    With news of this plea and so many victims delivering statements making headlines, I thought this issue’s Victim Services column could discuss how oral allocutions work in Texas. They’re a little different from how Michigan operates. In Michigan, a victim has a right to appear and make an oral impact statement at the defendant’s sentencing. If the victim is physically or emotionally unable to make the oral impact statement, she may designate any other person 18 years of age or older who is neither the defendant nor incarcerated to make the statement on her behalf. (This other person need not be an attorney.)
    Many factors in the Nassar case prompted Judge Aquilina to allow numerous victims to give oral impact statements: Nassar’s guilty plea, a plea agreement to allow the statements, his prior sentence of 60 years in federal court for child pornography charges, and the pure horrific nature of the crimes. I think everyone involved wanted to send a statement to stop violating children.
    The law is a little different in Texas. Here, there are two kinds of victim impact statements: a written version (often abbreviated VIS, which is short for Victim Impact Statement) and oral allocution. When I was a victim assistance coordinator (VAC), I would explain that victims have a right to do both. The written statement, once completed and returned, follows the offender’s file during each stage of the criminal judicial process. If the offender is sentenced to prison and reviewed for parole in the future, a victim’s VIS could significantly impact whether the offender is released on parole. I would explain how very important it is to return the VIS to our office so a victim’s “voice” can be passed along during each stage of the case.  
    The oral impact statement (also called allocution) is a time set aside in court for victims to verbalize how a crime has impacted them. Its purpose is to promote healing and closure, and it is a chance to directly address the offender in open court. I would tell victims that delivering an oral allocution is one of their rights as crime victims, and I would ask if they were interested in giving such a statement (so I could notify the prosecutor prior to the court date). After a victim told me she wanted to give an oral allocution, I worked with her on the statement and explained the guidelines as set out in Texas Code of Criminal Procedure Art. 42.03 §1(b). I would have the victim write down what she was intending to say so we could go over it beforehand; this gave our office an idea what was on the victim’s mind, revealed how much time to allow for the statement, and made sure she would comply with the guidelines, namely, to talk about the victim’s views about the offense, the defendant, and the effect of the offense on the victim. Acknowledging how proud I was of them for having the strength and courage to give an oral impact statement, I promised to sit with victims until they stood up to deliver the statement.
    Oral VISes are an excellent way to let victims have a voice in the court process. Although victims might also be called to testify during the trial on the crime itself and what physically happened to them, their witness-stand testimony almost never allows victims to tell how their perpetrators’ actions have impacted their life emotionally. During an oral impact statement, victims may discuss how the crime has been weighing on their minds. Because the statement happens after sentencing, the victim is not subject to cross-examination. Also, the victim, relative, or guardian may not ask the defendant questions while making the statement, and the court reporter may not transcribe the statement.
    As beneficial as oral VISs are to victims, we need to make sure if an oral VIS is given, a written VIS form is also completed.  
    According to TDCJ’s Victim Services Division FY17 Annual Report, 88,484 VISs were provided to crime victims by Texas counties; 13,590 were returned by crime victims to Texas counties, and only 3,170 were received by TDCJ with the offender’s commitment papers. As you can see, there are challenges in completing, returning, and forwarding VISes to TDCJ.  One challenge on the prosecutor-off side of things may include that offices have not developed and established VIS processing, follow-up, and collaboration procedures to ensure VISs are handled properly. (An interesting read about VIS return rates in Texas can be found in a study TDCJ did on the topic. Find it at https://www.tdcj.texas .gov/documents/VIS_County_Observation_Study.pdf.)
    We in Texas prosecutor offices may take a few lessons from the Nassar trial to try to improve our VIS procedures. I challenge each prosecutor office to become familiar with the VIS processes and procedures to ensure higher rates of returns, along with extending offers of oral allocution to victims who are interested.

National Crime Victims’ Rights Week
Each April, communities throughout the country observe National Crime Victims’ Rights Week (NCVRW) by hosting events promoting victims’ rights and honoring crime victims and those who advocate on their behalf. This year, NCVRW will be observed April 8–14 with a theme of Expand the Circle: Reach All Victims. Check out the Office for Victims of Crime (OVC) website at https://ovc.ncjrs.gov/ncvrw/ for additional information.  
    If your community hosts an event, we would love to publish photos and information about it in this journal. Please email me at [email protected] to send information about and photos of your event.

In-office VAC visits
We at TDCAA realize the majority of VACs in Texas prosecutor offices are the only people in the office responsible for developing victim services programs and compiling information to send to crime victims as required by Chapter 56 of the Code of Criminal Procedure. VACs may not have anyone locally to turn to for advice and at times could use assistance or moral support. That is where I come in.
    My travels across Texas have recently taken me to Coryell, Wharton, Leon, and Limestone Counties to assist VACs with in-office consultations. Thanks to each of these offices for allowing me to support their victim services programs! I thoroughly enjoy my job and know how helpful it is to have someone to turn to when victim services-related questions surface.  
    If you are a new VAC and would like to schedule an in-office, one-one-one visit, please email me at [email protected]. I am also available for inquiries and support.