Re-integrating the Victim into the Sentencing Process Victim Impact Statements as an Element of Offender Disposition

Research into the social and psychological processes associated with offender disposition and their effects on victims of crime reveals dissatisfaction at their not being more involved in the criminal justice process. Victims feel disenfranchised and disempowered as they come to play only a secondary role. The victim impact statement (VIS) is a viable mechanism for bringing the victim back into the sentencing process. This article examines the development of the concept, its rationale and various forms , principle arguments for and against its introduction and concludes that it is an important reform in the direction of making the criminal justice system more responsive by satisfying victims' needs to be part of the process.


Introduction
If the criminal justice system in a democratic society is to correspond with the actual feelings and demands of the community it serves, then sentencing of offenders must be such as to ensure that the community does not lose confidence in its courts and that support for them does not diminish.If this were to happen then .there is a risk that people will seek their own remedies outside the law.This suggests that proper consideration should be given to the needs and concerns of the victims of crime.A person's perception of whether or not he/she has been a victim of crime and wishes to participate in the criminal justice system is perhaps the most important decision that is made from the time the alleged offence is committed.Despite the importance of the victim's co-operation in the investigation and subsequent trial (if any), little, if any, attention has hitherto been given to victim satisfaction in their dealings with the criminal justice system.

Antecedents to Victim Participation in Sentencing
In the past, victims and their families or clan initiated any action to redress their victimisation -whether it was theft, injury or other harm.Victims or their kin also carried the process of redress to completion.Some have referred to this era of private vengeance as the "Golden Age of the Victim", 1 while others have questioned whether victims had any advantages pursuing justice on their own. 2 The decline in the penological importance of the victim paralleled the centralisation of power. 3As crime became a violation of the "King's Peace" (an offence against the State rather than the individual victim), initiation of criminal proceedings and the punishment process was taken from the victim's control and transferred to the State. 4This change resulted from economic factors, in that it provided an opportunity for the collection of moneys or fines for the King's treasury, 5 and political concerns, since it assured that punishment was not associated with undue leniency, as the offender who paid damages to the victim had escaped other types of punishment. 6his historical evolution of the penal system has resulted in a criminal justice process in which victims play only a secondary role.They report crimes to officials who decide whether to prosecute and what type of punishment to request or impose.The victim plays no formal role in the decision to charge or refuse to charge 7 , and the courts are reluctant to review prosecutors' charging decisions. 8he victim has no power to compel prosecution nor standing to contest decisions to dismiss or reduce charges, nor to challenge the sentence imposed. 9In court proceedings the victim is an observer or, at best, a witness.A fine, if imposed, is paid to the State.Private prosecution is non-existent, and the prosecutor has a monopoly on the criminal process. 10he victim is presumably represented by the prosecutor, who is supposed to pursue the victim's interests.However, prosecutors represent the interests of the State, first and foremost, and the presumption is contradicted by many victims' experiences.If the public interest comes into conflict with that of the victim, the former prevails.Public interest considerations often have nothing to do with the strength of the victim's case or the level of injury sustained.Such factors as the defendant's utility as a State witness in another case, correctional factors related to the offender, or the priority given to a certain type of offence may determine whether or not a defendant will be prosecuted, 11 and indeed, along with the degree of compliance with investigating authorities, have a bearing on the sentence.
This change in the concept of crime and administration of justice has resulted in a host of economic and psychological problems for victims, and, more importantly, in perceptions of injustice.Movements concerned with ameliorating the victims' plight and providing them with various rights have emerged. 12Initially, efforts to achieve reform focussed on the economic difficulties resulting from crime.In the United Kingdom, the United States and Australia, regimes of compensation from the State 13 and restitution from the offender 14 were instituted to alleviate the financial difficulties associated with the victimisation.In the United States, psychological counselling and other services to treat the distress resulting from the crime have been provided in various jurisdictions. 15As the process has continued, the battle for victims' rights has expanded into areas beyond its initial focus and has recently centred on victims' reintegration into the criminal justice process. 16The current impetus is for victim integration through the use of a (1995) Victim Impact Statement (VIS), a statement made by the victim and addressed to the judge for consideration in sentencing.It usually includes a description of the harm done in terms of physical, social, psychological and financial consequences of the offence.In some jurisdictions, a VIS also includes a statement concerning the victim's feelings about the offence, the offender and a proposed sentence.This demand for increased victim participation in the sentencing process has been the result of studies that have documented victims' alienation from the system .Studies of victims before the law have consistently demonstrated their frustration and disillusion with the criminal justice system.Complaints about delays, unnecessary continuances, uncomfortable waiting rooms, risk of intimidation by offenders and insensitive criminal justice practitioners are routinely associated with victims' experiences of the criminal justice system.17But the most important grievance mentioned by victims is their lack of standing and voice in the proceedings.Feelings of alienation develop as victims realise that their opinions and concerns are ignored and their requests for involvement are consistently denied.Furthermore, in many cases, victims are never informed about the status of the case or its outcome.Victims often have the misconception that being the victim in a particular case makes it "their case". 18The courts view victims as witnesses, while victims perceive themselves as parties. 19Indeed, it is difficult for victims to understand that they are not a party to the trial of their offenders and that they have no control over the process. 20This collective experience of victims has led to a perception that the criminal law is unresponsive. 21ictims' inability to voice their feelings or concerns has been identified as a crucial matter to be addressed if victims' satisfaction with the justice system is to be increased. 22Demands have been made for reintegrating victims into the criminal process or, minimally, of providing them with a mechanism for voicing their concerns and wishes concerning the crime and the disposition of the offender.These needs have been aptly expressed by the President's Task Force on Victims of Crime 23 which asserted that: ... victims, no less than defendants, are entitled to their day in court.Victims, no less than defendants, are entitled to have their views considered.A judge cannot evaluate the seriousness of a defendant's conduct without knowing how the crime has burdened the victim.A judge cannot reach an informed determination of the danger posed by a defendant without hearing from the person he has victimised .. . 24

Developments in Victim Participation in Sentencing
At the international level, the victim is implicit in the United Nations Conventions on, for example, genocide, war crimes and crimes against peace and mankind, traffic in women and children, and slavery.However, it was not until the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985, that the topic of victims was dealt with as a subject in its own right.The documents prepared for consideration by the Seventh Congress included a declaration of basic principles of justice for victims of crime and abuse of power prepared by the then Attorney-General of South Australia, Chris Sumner.These principles were derived from the report of a Committee of Inquiry into victims of crime in 1981, the finding of which ranged ranged across the following five major topics: • provision of more adequate information on crime and crime victimisation; • more effective co-ordination of victim initiatives; • improvement and extension of services for victims; • amendment to court procedures; and • compensation for victims. 25ter considerable debate, the declaration was adopted by the Congress and formally approved by the General Assembly of the United Nations in December, 1985.
South Australia immediately formulated principles, derived from the UN Declaration, which gave rights to victims at various stages of the criminal process.All relevant government departments in South Australia were instructed to ensure that their practices and procedures comply with the principles, which are included in a booklet prepared by the Attorney-General's Department 26 and which is given to each victim by the investigating police officer.These principles are set out in Appendix A. Whilst most of the principles have been established by administrative direction, principles 12 and 14 have received legislative sanction as follows: (1) Section 10 Bail Act 1985 (SA) which requires a bail authority, in determining whether an accused person should be released on bail to have regard to any need the victim may have, or perceive, for physical protection from that person; and (2) Section 7 Criminal Law (Sentencing Act) 1988 (SA) requires that the prosecutor must furnish the court with particulars of any injury, loss or damage suffered by any person as a result of the relevant offences.
Whilst the South Australian government has enshrined the VIS process in legislation, other States and authorities have been ambivalent on the issue.The National Committee on Violence 27 recommended that the VIS should be introduced in all jurisdictions, subject to the inclusion of safeguards against abuse by either the prosecution or the defence.The Australian Law Reform Commission 28 raised some objections to the VIS and the relevance of victim preferences concerning the disposition for sentencing decisions.The Commission asserted that information about the impact of crime on the victim is brought to the court's attention by the prosecution or the defence, and has recommended retaining this practice.The Victorian Sentencing Committee 29 has also decided against allowing victims' input via the VIS.The New South Wales Task Force on Services for Victims of Crime stated that "until the schemes operating can be properly evaluated the task force feels that no attempts should be made to implement such a scheme in New South Wales." 30In Queensland the Electoral and Administrative Review Commission 31 , whilst discussing the notion of victims' rights generally, does not make any recommendation in relation to the use of VIS in the sentencing process.The United Kingdom has rejected their use.
In the United States, on the other hand, VIS are permitted in most States and federally.Currently, two models express the possibilities for victim involvement.The first allows the preparation of a written VIS that is introduced at the sentencing hearing, typically as an attachment to the pre-sentence report.The second expands on the first by granting the victim the right to allocution -an oral statement by the victim at the time of sentencing.The party responsible for preparing | the VIS information varies, ranging from probation departments, prosecutors' of-I fices, victim service agencies or the police.The VIS also differs in content and | form, ranging from simple checklists in some States to lengthy descriptive state-; ments, both oral and written, in others. 32As plea bargains are the most common I way of disposing of cases, many States have passed laws that allow or mandate victim participation and input in plea bargaining. 33New Zealand introduced legislation in 1987 allowing the use of VIS as part of the sentencing process.Canada introduced comparable legislation in 1988. 34

Rationale for Victim Participation
The arguments for bringing the victim back into the sentencing process centre on moral, penological and practical concerns rather than legal considerations.Some have suggested that because the aim of sentencing is public condemnation of the criminal act, then the sentence may be more effective if it is conveyed by the victim, who has personal involvement in the case and has suffered directly from it, whereas a non-involved entity such as "the public" will be less effective in performing this function. 35Victim participation also renders the process more democratic and thus makes the sentence imposed more reflective of the community's response to crime. 36Some argue that the victim is the most appropriate person to represent the community in its attempt to convey the social abhorence of the crime.In this respect, the victim is the embodiment of the public desire to have input into the sentence, 37 and victim participation in sentencing may help to achieve an important goal behind the denunciation involved in punishment, namely the placation of the public. 38ome observers empathise with victims' demands for party status because the justice system to a large extent makes them feel like a party. 39For instance, it gives victims the power to initiate the process and views their testimony as the most crucial, so that if it could be refuted an acquittal would result, 40 and the prosecutor functions as their surrogate or proceeds in their place and on their behalf. 41Bringing the victim back into the decision-making process concerning the offender's disposition is also viewed as a symbolic act on a moral level, or recognition of the "individual dignity" of the victim. 42ther issues considered in the reintegration of victims into the process are practical and include improvement of the criminal justice process, increase in victims' co-operation and better prospects for psychological healing.Some have argued that victims' dissatisfaction with and alienation from the system has made them reluctant to co-operate with the criminal justice process. 43Victims who have been dissatisfied with prior system interaction will be hesitant to participate again. 44tudies of the non-reporting of crime have suggested that a major deterrent to reporting crime is victims' negative expectations about their treatment by the criminal justice system. 45Court decisions in the United States have also mentioned this rationale for demanding improved treatment of victims.By allowing victim participation, criminal justice system personnel hope to increase their consumers' satisfaction, encourage involvement and co-operation and thereby enhance system efficiency. 46ictim participation may also contribute to improvement of the process and to "real" justice by increasing accuracy at the sentencing stage.According victims the right to participate will result in more information provided to the decision maker. 47The President's Task Force on Victims of Crime™ mentioned this consideration in its assertion that a judge cannot reach an informed decision without hearing the person victimised.Furthermore, the sentencing stage is more relaxed and less formal than the trial and thus provides a better atmosphere for the victim to perform this fact-disclosing function.He/she does not have to contend with the pressures of cross-examination and the formality of evidentiary rules. 49he "just deserts" model of justice specifically views the concern for victims in the criminal justice process as an integral part of the "fairness" component. 50It has also been argued that relying on victims to convict the offender and simultaneously ignoring their concerns, wants and needs is an unacceptable practice. 51thers have argued that a sentence imposed without information from the victim is one sided and that "... simple fairness dictates that when the court hears, as it may, from the offender, his or her lawyer, family and friends, the person who has borne the brunt of the offender's crime should also be allowed to speak". 52The i victim's presence and participation in court proceedings also remind judges, juries and prosecutors that behind the State is a real person with an interest in how the case is resolved. 53Participation and input may also be necessary for victims' psychological healing.Providing victims with participatory rights can reduce their perceptions of inequity relative to the offender, thereby reducing the potential for further psychological harm.

M McLeod The Authorisation and implementation of Victim Impact Statements
In contrast, failure to offer victims these rights results in increased feelings of inequity, with a corresponding increase in crime related psychological harm.Victimisation often produces feelings of helplessness and lack of control, which are aggravated by the criminal justice experience. 54These feelings can be reduced by giving victims an opportunity to voice their feelings, concerns and wishes. 55The sentencing of the offender should provide a cathartic process for the victim.If these benefits are not realised, then the psychological harm to the victim detracts from the benefit achieved by sentencing the offender. 56inally, some have argued that victim participation in sentencing advances the various goals of sentencing, though each goal is enhanced by a different type of participation: • Retribution is enhanced when the extent of the harm caused to the victim is disclosed so that the punishment meted out can be measured against the level of harm caused;

Objections to Victim Participation
The objections to victim participation in the sentencing process are based mostly on legal grounds and stem from the conception of crime as a public matter and of the State as representing or replacing the victim. 58This conception is promoted because it contributes to de-emphasising the conflict and stabilising the public order. 59Further, it has been held that allowing victims to participate in sentencing may undermine the insulation of courts from unacceptable public pressures, 60 or will result in substituting the victim's subjective approach for the objective one practised by the court. 61ajor objections to victim input in sentencing centre on arguments concerning the appearance of justice and actual justice. 62Judges and defence counsel equate sensitivity to victims' problems with lack of fairness to the defendant. 63Prosecutors, who supposedly represent victims, have objected to victims' participation in the process because they fear that their control over the case would be eroded and the predictibility of outcomes reduced, and defence counsel view increased victim involvement as hindering the defence. 64oncerns about delays and additional expenses if victims are brought into the process are often raised by court officials. 65It has been argued that victim participation would add little that is useful to most cases and would impose irrelevant information and requests on a system that is already overburdened. 66The Victorian Sentencing Committee 67 has suggested that the criminal law already takes into account the harm done to the victim in the definitions of crime and mitigating or aggravating circumstances.Moreover, they suggest that as the law requires foreseeability of the effect of the crime on the victim, only effects on the "normal" victim should be considered.
The American Bar Association, in a discussion of witness/victim legislation, concluded that victim impact statements will most likely result in higher sentences. 68n this respect, major objections have been raised against one part of the VIS particularly, the victim statement of opinion (VSO), which may be the most inflamatory and prejudicial evidence that the victim could provide. 69Other commentators have raised concerns about the possibility of an increase in sentence disparity and arbitrariness if victims are included in the sentencing process. 70This concern was one of the rationales for rejecting the use of the VIS in capital cases in the United States. 71oncerns have also been raised about the effect of the VIS on victims' health and welfare.It has been suggested that one of the dangers of the VIS is to create expectations among crime victims that are not or could not be met. 72Victims' "recognition" may not be realised because practical and other considerations may prevent judges from implementing victims' wishes.In fact, it has been argued that instituting formal procedures for victims' input may be counterproductive because if victims find out that their opinions are unimportant or are ignored in sentencing decisions, then they may become more embittered and resentful. 73Others are concerned that allowing victim input will aggravate victims' psychological wellbeing as they relive the crime experience.Because consideration of the VIS material by the court may increase the severity of punishment, the offender must be given the right to challenge the factual basis on which the escalation of penalty occurs.This may result in victims being subjected to unpleasant cross-examination. 74 related argument is that mandating the VIS may itself be traumatic for victims, and that victims may not wish the offender to be fully aware of the harm caused to them. 75ther objections to victim participation have been based on ideological grounds.Opponents of the participatory right express the concern that rights gained by the victim are rights lost to the defendant, and that bringing the victim back into the process means a reversion to the retributive, repressive and vengeful punishment of an earlier age. 76These reforms would shift the primary goal of criminal justice administration from meeting the concerns of the State to meeting the concerns of the private individual, thus returning criminal prosecution to the days when it was little more than a branch of tort law. 77It has also been suggested that victims' anguish has been exploited or mistranslated into support for the conservative ideology, 78 and has been used to produce a structure of criminal law and procedure that closely resembles the "crime control model" so antithetical to (1995) liberal thought. 79Opponents of victim integration in the criminal justice process often portray the victim as a vindictive individual whose main objective in providing input will be to ensure severe punishment to the offender.One empirical examination of victim activism provided some support for the punitive model of the victims' rights movement; however, the authors did state that it is not clear whether victimisation caused the retributive attitudes or the victimisation was used as an excuse for retributive ideology. 80

Research Findings on Victim Participation in Sentencing
Research has questioned many of the assumptions underlying the arguments against the use of the VIS, and has not confirmed the fears expressed by those who object to allowing victims input into the sentencing decisions.

Punitivenes of Victims
The message from studies in several countries is that first-hand experience of crime as a victim does not, in general, fuel a desire for heavy sentences. 81Furthermore, victims have not been found to be more punitive than the general public.
Recent studies abroad 82 as well as in Australia 83 suggest that public attitudes tend to be more punitive than the actual sentencing practices of the courts.Victims do not view themselves as vengeful. 84Less than 10% of victims report a crime in order to see an offender punished. 85Studies that examine the content of the VIS in various jurisdictions in the United States confirm that only a fraction of victims in felony cases request that the offender be incarcerated or punished severely. 86Quite often victims merely want restitution or compensation 87 or help and counselling rather than punishment for the offender, even in cases where the offender was a stranger. 88he retributive element in some victims' preferences about sentencing may reflect a lack of knowledge about alternative dispositions.Often victims who recommend imprisonment do so because they are not aware of any other options, such as community service, treatment disposition or even restitution.Victims also tend to receive recommendations for disposition made by the prosecution or even the defence. 89Fears that victim participation in sentencing would result in harsher pleas in cases of plea bargaining in the United States have also not been realised. 90

Problems for the Criminal Justice System
Research in jurisdictions that allow victim participation indicates that including victims in the criminal justice process does not cause delays or additional expenses, 91 and very few court officials believe that victims' input creates or exacerbates problems. 92A recent survey of a busy New York jurisdiction indicates that both judges and prosecutors see the practice as positive. 93And when the information for the VIS is collected and updated by a person who can reasonably verify its credibility, and is given to the defence on a routine basis, challenges from the defence are likely to be minimal, if at all. 94Most of the judges and prosecutors in another study thought that victims' input in the form of a VIS improved the quality of justice by influencing restitution awards and sentence type and length. 95his is in line with research in England that suggests that a key variable in making a compensation order was whether it was mentioned in court proceedings.This could have occurred in the course of the prosecution making its case, as a result of an application by the victim or simply as a reminder to the court of its power. 96As prosecutors may not be aware of victims' preferences, or for various reasons fail to convey them to the court, allowing victims to express their wishes in a VIS may guarantee that the sentencing authority becomes aware of these requests.

Impact on Sentence Outcome
Research on the impact of victims' input on sentence outcome suggests that it has only a limited effect.A study of victims' requests in VIS submitted in sexual assault cases found that the court was most likely to recognise the desires of the victim when they were consistent with the court's own view of an appropriate sentence.Furthermore, the court was also likely to ignore the victim's desire for a probation sentence over imprisonment. 97nother study which examined all types of felony offences 98 found that victim retributiveness or requests for incarceration do not influence the court's choice of sentence when all relevant factors are taken into consideration.The decision whether to grant probation or impose a prison sentence is explained primarily by legal considerations such as the severity of the offence or prior convictions of the accused.This study, however, found that the presence of the VIS in the court file does increase the likelihood of a prison sentence.Thus, it is the availability of the details of the crime and its impact on the victim, rather than the victim's specific retributive request, that influences the disposition.Once the prison sentence is imposed, the VIS does not significantly affect the length of the sentence.
A recent survey of judges in the United States concerning the effects of the VIS confirms that judges consider objective information (eg: the physical and financial impact of the crime) to be more useful in sentencing decisions than subjective types of information (eg, social effects), particularly the victim statement of opinion. 99astly, the victim's presence in the court rather than the use of the allocution right has some effect on the length of sentence.Typically, the victims who come to the sentencing tend to be involved in many phases of the trial process, thus providing a constant reminder to the judge that the victim is a person who has suffered substantially. 100 The finding of no effect of the allocution right is not surprising:

Victim Distress
Although victims' distress levels are not directly influenced by aspects of procedural justice such as the VIS, input in this form is nonetheless important for victims' distress as it influences the type of sentence 107 which, in turn, influences the perception of equity by the victim.Few studies thus far have systematically examined the effect of participation in the criminal justice system on victims' distress.Further, these studies were mostly limited to rape victims and their results are inconclusive. 108No research has specifically examined the effect of filling out a VIS on victims' distress.Indirect evidence, however, suggests that victims may be interested in providing input for the purpose of "justice", even at the supposed cost of reliving the crime.A study in Australia found that victims, particularly of serious crime, expressed interest in receiving information concerning the case at all stages of the process, even at the expense of being reminded of the crime and its impact. 109ost victims also expressed the feeling that, for the purpose of sentencing, the court should have information on the impact of the crime on their emotional state, family and lifestyle, and their concerns for safety, in addition to the medical and financial consequences. 110

Conclusion
The VIS as a mechanism for victims' input into sentencing decisions is an important reform in the direction of making the criminal justice system more victim oriented. 111It is a benign way of providing victims with the right for input and satisfying their need to be part of the process, without jeopardising the basic principles of the adversary system or compromising the rights of the accused.The VIS contributes to procedural and substantive justice.It provides victims with an important component of procedural justice, namely "the opportunity to present their case to the authorities before a decision is made." 112Because the effect of the crime on the victim is a legally relevant consideration in sentencing practices, 113 providing a VIS to the sentencing authority also enhances substantive justice in that it ascertains proportionality in sentencing.The implementation of the VIS does not transform sentencing into a three way contest -the input is only one additional factor to consider in a sentencing disposition.
However, despite an enthusiastic endorsement of the victim's right for input, in practice this right is not fully implemented.Several studies in different jurisdictions in the United States have found that little is done to inform victims of their right to provide input, or to elicit this information. 114In addition, the laws requiring submission of the VIS (and section 7 of the South Australia Criminal Law (Sentencing) Act 1988 is a typical example) often explicitly state that the validity of a sentence is not affected by noncompliance or insufficient compliance concerning the VIS.This reality has led some to comment that victims' rights are only privileges that operate at the mercy of the police, prosecutor or the judge and that there is a need to reform the reforms. 115As Kilpatrick and Otto put it: Promising victims rights that are not delivered may involve a certain danger: providing rights without remedies would result in the worst of consequences, such as feelings of helplessness, lack of control and further victimisation ... Ultimately, with the victims' best interests in mind, it is better to confer no rights than rights without remedies. 116

79
Henderson ibid.See also E Viano 'Victim's Rights and the Constitution: Reflections on a Bicentennial' (1987) 33 Crime and Delinquency 430.80 BS Smith and CR Huff From Victim to Political Activist: An Empirical Examination of the Victims' Rights Movement Paper presented at the Annual Meeting of the Academy of Criminal Justice Sciences Washington DC 1989.81 N Walker and M Hough Public Attitudes to Sentencing Gower Aldershot 1987.82 S Zimmerman, D Alystyne and C Dunn The National Punishment Survey and Public Policy Consequences' (1988) 25 Journal of Research in Crime and Delinquincy 120.83 D Indermaur Perceptions of Crime Seriousness and Sentencing: A Comparison of Court Practice and the Perceptions of a Sample of the Public and Judges Report to the Criminology Research Council Canberra 1990.84 J Gardner Victims and Criminal Justice Office of Crime Statistics Attorney-General's Department South Australia 1990.85 US Department of Justice Report to the Nation on Crime and Justice US Government Printing Office Washington DC 1988.86 E Erez and P Tontodonato The Effect of Victim Participation in Sentencing on Sentence Outcome' (1990) 24(3) Criminology 451.See also A Walsh 'Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases' (1986) 77 Journal of Criminal Law and Criminology 1126.

107
Erez and Tontodonato supra n.86.108 AJ Lurigio and PA Resick 'Healing the Psychological Wounds of Criminal Victimisation: Predicting Post-Crime Distress and Recovery' in AJ Lurigio and PA Resick (eds) Victims of Crime: Problems, Policies and Programs Sage Newbury California 1990 at 50. 109 Gardner supra n.84.110 Gardner ibid.111 Sumner supra n.52.112 TR Tyler 'What is Procedural Justice?Criteria Used by Citizens to Assess the Fairness of Legal Procedures' (1988) 22 Law and Society Review 103.113 Sumner and Sutton supra n.94.