Written By Briannie Kraft
In September of 2016, two former gymnasts came forward accusing Larry Nassar, a former doctor for USA Gymnastics and Michigan State Athletics, of sexually assaulting them during their treatments with him. Over the next several months, more than 150 victims came forward with similar stories of abuse by Nassar.
Nassar pled guilty to assaulting seven girls on November 22, 2016, and he proceeded to sentencing earlier this month. From January 16th to 24th, more that 150 statements were read aloud by either victims or parents of victims. Judge Rosemarie Aquilina, who remarked that this case had “shaken [her] to [her] core,” presided over the proceeding, ultimately dealing Nassar a 175-year prison sentence.
This issue of victim statements in criminal cases was first addressed by the Supreme Court of the United States in 1987 in Booth v. Maryland. There, the Court did not allow victim impacts statements to be made at any point during the criminal process, holding that it was a violation of the Eighth Amendment, posed potential bias concerns, and lacked relevancy to the guilt of the defendant.
In 1991, however, the Supreme Court overturned its Booth rule in Payne v. Tennessee. Veering from immediate precedent, the Court decided to allow victim impact statements only at the sentencing stage of a criminal proceeding. As the “victims’ rights” movement was sweeping across the nation, one of the motivating factors for this change was to give victims of crimes a place in the criminal justice system.
Victim Statements as Healing
During Nassar’s sentencing proceeding, Judge Aquilina allowed statements to be made by nearly any victim wishing to speak. Over the course of a week, the Court heard more than 150 victims and parents give vivid accounts of the abuse they, or their children, had suffered, as well as the effects it did and does have on their lives.
In both the scientific and legal fields, experts opine that victim impact statements are a positive contribution to victims’ healing processes, as the statements offer victims an opportunity to confront their abuser in a safe and procedurally-protected place. Research conducted by Mothers Against Drunk Driving (MADD) helps to illustrate this point. MADD found that 62% of victims were “satisfied” with the criminal justice system, if they were allowed to present an oral victim impact statement. Meanwhile, 75% of victims, who were not given the opportunity to give any form of a victim impact statement, were “dissatisfied” with the criminal justice system. The study concluded that victim trauma was reduced when victims were “taken seriously and believed[,]” as well as when victims were kept up-to-date with regard to their case.
In this case, a prime example is the first woman to go public with Nassar’s abuse. Rachael Denhollander, one of Nassar’s victims, shared the importance of victim impact statements, saying, “Once I started to see that this process was therapeutic – just because of how much you have to talk about it – I wanted to take every chance I could to liberate myself.”
Victim Statements as Information
Beyond the healing affect they can offer victims, these statements, in the context of sentencing, can also provide sentencing judges with a fuller picture of the harm the defendant caused victims (and/or others). As it is in society’s favor that judges make well-informed decisions, victim impact statements are one way by which a judge may be more fully prepared for sentencing. In this case, for example, Judge Aquilina heard statements from victims who ranged in age, time of abuse, length and extent of abuse, and background, in addition to hearing from some of the parents. Such a range of victim impact statements provides, in theory, a fuller illustration of the extent and effects of Nassar’s crimes. Moreover, as defendants are permitted to plead their case and mitigating circumstances to the court during the sentencing process, victims seek a similar opportunity.
In contrast, however, courts also take into account that there are “instances where the admission of a victim impact statement is unduly prejudicial against the defendant.” The means in which statements are delivered, and the number of statements presented, are two of many considerations judges take into account with regard to the assessment of prejudice. In Nassar’s case, there is controversy surrounding the volume of statements permitted at sentencing, as well as the impact of those statements.
According to Stephen Gillers, a professor of law at New York University, what was “unusual [in Nassar’s case was] that the number of victims who [were] willing to speak [gave] the judge more than 100 opportunities to [say what she thought about the case].” Judges are supposed to be neutral and detached magistrates. Here, at one point Judge Aquilina stated to the victims, “Your words are a sign you are are healing, and taking your power back…and he will fall, and you will rise. You and your fellow sisters are enabling him to remain behind bars for the rest of his natural life.” This was just one example among many of Judge Aquilina sharing her thoughts about Nassar and the victims throughout the sentencing proceeding.
Judge Aquilina cited People v. Waclawski, a 2009 Michigan Court of Appeals case, as support for the volume of victim impact statements.
“[Michigan laws] grant individuals who suffer direct or threatened harm as a result of a convicted individual’s crime the right to submit an impact statement both at the sentencing hearing and for inclusion in the PSIR; however, the right is not limited exclusively to the defendant’s direct victims. Instead, ‘a sentencing court is afforded broad discretion in the sources and types of information to be considered when imposing a sentence . . . ’ (citation omitted). Moreover, this broad discretion does not infringe on a convicted individual’s due process rights, because the evidence was not taken into consideration in determining the defendant’s guilt.”
On a national scale, however, the aforementioned arguments –– on one hand, the healing and source of information, on another hand, the impact and volume of statements –– have initiated a larger, national conversation on such actions within a sentencing proceeding. Moving forward, perhaps we will see these matters addressed in more state and federal sentencing courts matters. For now, in this case, it is possible that Nassar will appeal.
Booth v. Maryland, 482 U.S. 496, 499 (1987).
Payne v. Tennessee, 501 U.S. 501 808, 822-24, (1991).
Payne v. Tennessee, 501 U.S. 501 808, 834, (1991) (See J. Scalia, Concurring).
People v. Waclawski, 286 Mich. App. 634, 691-692 (2009).
The Daily: Thursday, January 25, 2018, The New York Times (Jan. 25, 2018) (downloaded using iTunes).
Scott Cacciola, Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge, The New York Times (Jan. 23, 2018).
CNN Staff, Read Judge Rosemarie Aquilina’s powerful statement to Larry Nassar, CNN (Jan, 24, 2018).
Eric Levenson, Larry Nassar Sentenced to 175 Years in Prison for Decades of Sexual Abuse, CNN (Jan. 24, 2018).
Joshua Barajas, Sexual Abuse Survivors Confront Former USA Gymnastics Doctor: ‘Little girls don’t stay little girls forever,’ PBS New Hour (Jan. 24, 2018).
Josh Hafner, The Judge in the Larry Nassar Trial: Incredible Quotes to Victims and their Abuser, USA Today (Jan. 24, 2018).
National Institute of Justice, Victim Impact Statements (Dec. 4, 2007).
Paul G. Cassell, Walter C. reckless-Simon dinitz Memorial Lecture: In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611, 621-29 (2009).
Annett van Der Merwe, Therapeutic Jurisprudence at the Conference of the International Association of Law & Mental Health in Paudu, Italy: Addressing Victims’ Harm: The Role of Impact Reports, 30 T. Jefferson L. Rev. 319, 397 (2008).
Trey Hill, Victim Impact Statements: A Modified Perspective, 29 L. & Psychol. Rev. 211, 216 (2005).
Kenji Yoshino, The City and the Poet, 114 Yale L. J. 1835, 1877 (2005).
Photo courtesy of ABC News.