Criminal Justice / Mental Health Consensus Project

Consultation with Victim

POLICY STATEMENT # 8

Educate individuals who have been victimized by a defendant with a mental illness, or their survivors, about mental illness and how the criminal justice system deals with defendants with mental illness.

Victims in most jurisdictions have constitutional or statutorily defined rights. Generally, these involve the right to be informed of key events in the processing of the case, including charging decisions, plea agreements, and release decisions..[1]

Prosecutors or their agents have traditionally played a key role in the provision of victim support services, including explaining the often complex court processes to the victims of crime. This provision of support - explanations and education - begins as the charges are reviewed and filed, and goes on throughout the court process. It is important to stress that the victim of a crime committed by a person with a mental illness has no more rights than any other victim in a similar situation, but may have more needs. When the mental health status of the accused is relevant to the processing of the criminal case, the pain of the victim can be exacerbated by the even more confusing jargon, procedures, decisions, and even dispositions that might arise in the prosecution of that person.

It must be kept in mind that most crimes committed by people with mental illness are minor, and may involve no victim. Victims' issues, in general, are most relevant where the crime is a serious one, involving harm or risk of harm to the victim. The recommendation that follows is meant to address these types of crimes.

Recommendations for Implementation

a.		Assure that victim assistance offices have the expertise to meet the special needs of people who have been victimized by someone with a severe mental illness.

In recent years, great strides have been made in recognizing that victims of crime need assistance understanding both the legal process involved in the prosecution of their case and their rights as victims. Many jurisdictions have established victim assistance offices that provide services to victims of crime, usually violent crimes.[2] Staff from these offices typically act as a link between the prosecutor and victims, keep victims apprised of the status of the case, explain the court process to victims, and escort victims to court hearings.[3] This recommendation addresses how offices that provide victim assistance can better address the needs of persons who have been victimized by someone with a mental illness.

Information

In cases where the accused person suffers from a mental illness the victim needs to be aware of the ways in which the criminal justice and mental health systems converge. Defendants with a mental illness may be subject to different legal procedures, such as a competency screening to determine their ability to understand the charges and their fitness to stand trial. In addition, victims may know little about mental illness - its causes, its impact on behavior, and how best to treat it. Providing such information should be viewed not as minimizing the victimization experienced, but as help for victims in understanding why they were victimized - an important part of the healing process.

Confidentiality versus the Right to Know

The rights of victims to be informed about what is going on with their case must be balanced, however, against the medical privacy rights of the person with mental illness. It may be difficult for victims to understand that the privacy rights of the person who victimized them outweigh their rights to information. There are actions that should be taken, though, to assure that victims receive all the information to which they are entitled. Victims should be informed immediately and as a matter of routine of any actions taken that become part of the public record. These would include when the defendant is being released, whether on pretrial diversion, pretrial release, or as part of a sentence, with the condition to participate in mental health treatment; when a competency screening has been ordered; or when the defendant enters a plea of not guilty by reason of insanity.

In the overwhelming majority of victimizations caused by people with mental illness, however, releasing mental health information to the victim will not be an issue because the victim is already aware of the situation. It is estimated that 85 percent of those victimized by a person with a mental illness are either family or friends of the perpetrator.[4] These victims need assistance at yet another level. A typical reaction of a loved one who has been victimized by a person with mental illness is to try to obtain help for that person. After perhaps experiencing numerous victimizations without pressing criminal charges, these victims ultimately may turn to the criminal justice system out of fear or frustration. When doing so, they may feel torn by being the complaining witness against a loved one. When they wish to do so, they should be advised on such issues as how to contact the defendant's attorney, how to assist in getting a signed consent to the release of the defendant's mental health information, and who to contact in the jail to make sure that the defendant is receiving his or her medications. They may also require additional supportive services to help resolve issues of guilt in reporting their loved one.

In short, in addition to the general role of victim assistance to explain how the criminal justice system works and what victims' legal rights are, when the alleged perpetrator has a mental illness victim assistance should also be prepared to do the following:

explain the causes of mental illness and the impact it can have on a person's behavior
explain how the mental health system works, including confidentiality requirements
define terminology that the victim may encounter, such as "competency," "mental health court," and "Not Guilty by Reason of Insanity;" and
help family members or others who have been victimized by a loved one with mental illness deal with issues of guilt.

Victims with mental illness

It is important to note that, contrary to the public perception that people with mental illness are more likely to commit violent crimes, studies show that individuals with mental illness are actually more likely to be the victims of violent crimes than people without mental illness. Though this issue is, in large part, beyond the scope of this report, victims' assistance offices should consider developing the expertise to meet the special needs of victims who have mental illness. These crime victims often face a variety of challenges, including low employment, lack of affordable housing, and substance abuse.[5]

[1] See www.ncvc.org for more on statutes concerning victims rights.

[2] There are a number of different ways that victims can gain access to these services. The law enforcement agency investigating the crime should have referral information to victims' services. Listings for such services may appear in the telephone directory under either the local prosecutor's or the sheriff's office. These offices may also have web sites with information on how to access these services. The federal government also has taken steps to expand the availability of victims' services with the establishment of the Office for Victims of Crime (OVC) within the Office of Justice Programs of the U.S. Department of Justice. OVC provides funding to state and local victim assistance programs. Information about OVC is available at: www.ojp.usdoj.gov/ovc/

[3] While many of these offices are administratively located in the prosecutor's office, they can also be found in the local department of corrections, sheriff's department, police department, or probation office.

[4] Victims of Mentally Ill Offenders: Helping Family Caregivers and Strangers At Risk of Assault, New York University: Ehrenkranz School of Social Work's Institute Against Violence, December 2000.

[5] Hiday et al., "Criminal Victimization of Persons with Severe Mental Illness".