Victim Impact Statements in Michigan Domestic Violence Cases

A victim impact statement is the victim's own account, given to the sentencing judge, of how the offense affected him or her. In Michigan it is a right under the state Constitution and the Crime Victim's Rights Act: the victim may appear and speak at sentencing, and in a domestic assault case in district court may also submit the statement in writing.^[1][3]

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7: call 1-800-799-SAFE (7233) or text START to 88788.^[6] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[7][8]

When does an impact statement happen?

Only after a conviction, by plea or by verdict, and before the judge imposes sentence. There are two points at which a victim can be heard.

1. The presentence report

A probation officer may prepare a presentence investigation report for the judge. The victim has the right to submit or make a written or oral impact statement to that probation officer for use in preparing the report, and a victim's written statement must be included in the report if the victim asks.^[9] In a serious misdemeanor case that right applies if a presentence report is prepared.^[9]

2. The sentencing hearing

The victim has the right to appear and make an oral impact statement at the sentencing of the defendant.^[2] In district court, the court rule on misdemeanor sentencing directs the judge to address any victim who is present, or any person the victim has designated to speak, and to permit an impact statement.^[2]

If no presentence report is prepared in a serious misdemeanor case, the court must notify the prosecuting attorney of the date and time of sentencing at least 10 days before the sentencing.^[3] Scheduling differs from court to court, which is one reason to tell the prosecutor's office early that you want to be heard.

How will I know when sentencing is?

On the victim's request, the prosecuting attorney gives the victim notice of:^[5]

• the defendant's conviction and the offenses of conviction;^[5]
• the right to make a written or oral impact statement for the presentence report, and the address and telephone number of the probation office preparing it;^[5]
• the fact that the presentence report and any victim statement in it will be made available to the defendant unless the court exempts it from disclosure;^[5]
• the right to make an impact statement at sentencing, and the time and place of the sentencing.^[5]

The notice has to be given by a means reasonably calculated to give prompt actual notice.^[5] These notices depend on a request, so the practical step is to tell the prosecutor's office that you want them and to keep your phone number and address current with that office. Your address and phone number are exempt from disclosure under the Freedom of Information Act.^[10]

What can the statement include?

The statute lists what a statement may include, and says the list is not a limit:^[5]

Subject	Statutory wording
Harm	"An explanation of the nature and extent of any physical, psychological, or emotional harm or trauma suffered by the victim."[5]
Financial loss	"An explanation of the extent of any economic loss or property damage suffered by the victim."[5]
Restitution	"An opinion of the need for and extent of restitution and whether the victim has applied for or received compensation for loss or damage."[5]
Sentence	"The victim's recommendation for an appropriate sentence."[5]

The statement belongs to the victim. A victim may ask for a severe sentence, may ask for treatment or counseling in place of jail, or may say nothing about the sentence at all. The statute describes a "recommendation for an appropriate sentence" without restricting what it may be.^[5]

Practical suggestions for writing one

• Write it out, even if you plan to speak. A page or two read aloud is easier than speaking from memory.
• Describe effects in concrete terms: sleep, work, children, medical care, moving, changed routines.
• Bring copies of bills, estimates and pay records for anything you want counted as a financial loss, and give them to the prosecutor before the hearing.
• Address the judge. Say what you want the judge to understand and, if you wish, what outcome you are asking for.
• Ask the prosecutor's victim-witness staff or an advocate to read a draft if that would help.

Who may give the statement?

The victim, in person. A victim who is physically or emotionally unable to make the oral statement may designate any other person who is 18 or older and is neither the defendant nor incarcerated; that person need not be an attorney.^[2] The victim may also elect to give the oral statement remotely.^[2]

In both the felony and the serious misdemeanor articles the definition of "victim" is widened for impact statements. If the victim is deceased, is so mentally incapacitated that he or she cannot meaningfully understand or participate in the legal process, or consents, certain family members may be designated as a victim for the purpose of submitting or making an impact statement only.^[11][12] Under both articles, an incarcerated individual may not exercise victims' rights but may submit a written statement to the court for consideration at sentencing.^[11][12]

Will the defendant be in the room?

Yes, unless the court finds one of two exceptions. In cases sentenced after May 22, 2018, the defendant must be physically present in the courtroom when a victim makes an oral impact statement, unless the court determines in its discretion that the defendant is behaving in a disruptive manner or presents a threat to the safety of anyone present.^[13] In deciding that, the court may consider any relevant statement from the victim about the defendant being physically present.^[13] The same rule appears in the felony section and the serious misdemeanor section.^[13]

A victim who does not want to be in the same room has the options the statute provides: a written statement, a designated speaker if the victim is physically or emotionally unable, or a remote statement.^[3] The courthouse must also provide a separate waiting area if one is available and practical.^[14]

What does the judge do with it?

In a serious misdemeanor case the statute is direct: "The court shall consider the victim's statement in imposing sentence on the defendant."^[3] When the sentence includes probation, the court must also consider the input of the victim and specifically address the harm caused to the victim, the victim's safety needs and other concerns, including any request for protective conditions or restitution.^[15]

Considering a statement is different from following it. The judge sets the sentence within what the law allows for the offense; for a first-offense domestic assault that is up to 93 days in jail, a fine of up to $500, or both.^[16] How judges approach that decision is covered in Will I go to jail for domestic violence? and domestic violence probation conditions.

The financial part of a statement connects to restitution. At a misdemeanor sentencing the court must order the dollar amount needed to make full restitution, and if the amount is disputed the prosecuting attorney carries the burden of showing the loss by a preponderance of the evidence.^[17] See restitution in domestic violence cases.

For defendants: what to expect

A person being sentenced should expect that the victim may speak or submit a statement, and that the judge is required to consider it in a serious misdemeanor case.^[3] The presentence report and any victim statement in it are made available to the defendant unless the court exempts them from disclosure.^[5] Any no-contact condition that is in place still applies; responding to a statement is something to raise with defense counsel and the court, not with the victim directly. See no-contact orders explained.

The victim's voice before and after sentencing

The impact statement is one of several points at which the law asks for the victim's views:

• Before a plea. The prosecutor must offer the victim the opportunity to consult about dismissal, plea or sentence negotiations, and pretrial diversion before finalizing any such negotiation.^[18][19] See plea bargains in domestic violence cases.
• Deferral. A deferral under MCL 769.4a needs the consent of the accused and of the prosecuting attorney "in consultation with the victim."^[20] See the domestic violence deferral explained.
• Set-aside applications. If the conviction was for an assaultive crime or a serious misdemeanor, the prosecutor must notify the victim of an application to set it aside, and the victim has the right to appear and make a written or oral statement.^[21] The Michigan Supreme Court held in People v Butka that victims' statements alone do not make up the "public welfare" the judge weighs.^[22] See expunging a domestic violence conviction.
• Parole. In a felony case, a victim who has asked in writing receives notice of the right to address or submit a written statement to the parole board.^[23]

What people get wrong

"The victim decides the sentence." The court must consider the statement; the statute does not make the recommendation binding.^[3]

"Only felony victims get to speak." Domestic assault and aggravated domestic assault are serious misdemeanors under the Crime Victim's Rights Act, and the misdemeanor article has its own impact statement section.^[4][3]

"An impact statement is testimony." It is given after conviction for the purpose of sentencing, not to prove the charge. Testifying as a witness at trial is a different role with different rules, described in what to expect as a witness. The full list of rights is in crime victims' rights in Michigan.