The Expressive Function of #VictimsLaw: Developing a Substantive and Enforceable Framework of Rights and Remedies in Response to Local Need and the Emerging forms of Victimization
| Author | Tyrone Kirchengast |
| DOI | http://doi.org/10.1177/25166069211054603 |
| Published date | 01 October 2021 |
| Date | 01 October 2021 |
| Subject Matter | Original Articles |
The Expressive Function
of #VictimsLaw:
Developing a
Substantive and
Enforceable Framework
of Rights and Remedies
in Response to Local Need
and the Emerging forms
of Victimization*
Tyrone Kirchengast1
Abstract
All too often, the law fails victims because it is placatory and unenforceable.
The law fails to provide real support and redress when victims need it. Recent
international attention has moved to consider the benefits of a victims’ law, one
that provides for recognition, dignity and respect for victims by enhancing vic-
tim agency through a type of justice which is both substantive and enforceable.
It aims to provide higher levels of transparency and accountability of public
officials, including the police, prosecution and courts. Such a law builds upon
previous attempts at enforceable rights by ascribing a more comprehensive
human rights framework compatible with the fair trial process, by granting
victims the right to be informed, present and heard within the investigative and
trial process more broadly. This article will consider the feasibility of a victims’
law by examining what it offers the recently addressed or emerging forms of
victimization. Three examples trending on the #victimslaw hashtag are selected
for analysis—domestic and gendered violence; modern slavery and servitude;
and coercive control, cyber-abuse and harm. The extent to which a victims’
law provides a meaningful way of ratifying international standards and norms
Original Article
Journal of Victimology
and Victim Justice
4(2) 103–118, 2021
2021 Rajiv Gandhi National
University of Law
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DOI: 10.1177/25166069211054603
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* This article was developed out of a plenary address to the Seventh International and Eleventh
Biennial Conference of the Indian Society of Victimology, University of Madras, Chennai, 28 February
to 1 March 2020.
1 Sydney Law School, The University of Sydney, NSW, Australia.
Corresponding author:
Sydney Law School, The University of Sydney, NSW 2006, Australia.
E-mail: tyrone.kirchengast@sydney.edu.au
104 Journal of Victimology and Victim Justice 4(2)
against domestic law and policy is assessed against the needs of those most
vulnerable victims of abuse and neglect.
Keywords
Criminal law and procedure, law and legal, rights and remedies, rights frameworks,
victim rights, victimization, victims’ law
What’s in a Name? Victims’ Law Decoded
The term victims’ law has been more recently used to describe a consolidated
source of law or even multiple sources of law, an Act or Acts of parliament and
attendant case law, which cover the substantive and procedural laws that comprise
an important expression of victim rights, interests and powers.2 There has been a
recent call for greater expression of a victims’ law, most notably by the Victims’
Commissioner for England and Wales,3 but also by other proponents seeking to
advance the cause of the expression of victims’ rights into the twenty-first century.4
To this end, the hashtag #victimslaw now populates social media alongside posts
advocating for rights’ frameworks that recognize discrete forms of victimization
that persist within the community. This includes a renewed push for better
recognition and protection for victims of long-standing offences, such as domestic
violence and sexual assault, increased worldwide realization of the plight of the
mass diaspora and the harms of modern slavery, human servitude and trafficking,
in addition to more recent technology-based offences, such as cyber-abuse and
online harm. These offences have been selected for discussion in this article for
their currency as examples of the push for a victims’ law, pursuant to the use of
the #VictimsLaw hashtag. There are, of course, many other existent and emerging
modes of victimization, and the law must play a role in setting the standards by
which we, as an international community, respond to such harms. In many
respects, we must not miss this moment of opportunity to develop and make more
formal the rights that we as an international community have been pressing so
hard for. The call for victims’ law is thus an important development around which
new rights and services may be marshalled.
Arguments in favour of developing a victims’ law5 present an important
opportunity in the history of the development of adversarial systems of justice to
inculcate a body of law or laws that specifically enshrine the rights of victims in
2 As to the importance of developing victim interests into law, see Sosa, L., Niemi, J. & van der Aa, S.,
Protection Against Violence: The Challenges of Incorporating Human Rights’ Standards to Procedural
Law, 41(4) Hum. Rights Q.. 939–961 (2019).
3 See recent calls of the Victims’ Commissioner for England and Wales reform the Victims’ Code,
https://consult.justice.gov.uk/victim-policy/consultation-on-improving-the-victims-code/.
4 Davis, R., Anderson, J., Howley, S., Dorris, C., & Whitman, J., No More Rights without Remedies:
An impact evaluation of the NCVLI victims’ rights clinics (Rand.org, 2012). See infra note 31.
5 Such calls for a victims’ law are growing as per the social media hashtag #VictimsLaw.
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