Victimology

Victimisation and Victims' Rights

Lorraine Wolhuter, Neil Olley, David Denham

• Publisher: Routledge-Cavendish
• Year: 2008
• eBook ISBN: 9781135390617
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

How should the needs of victims of crime be met by the criminal justice system? Have the rights of victims been neglected in order to ensure that a defendant is brought to 'justice'? Who are the victims of crime and why are they targeted?

This new book examines the theoretical arguments concerning victimization before examining who victims actually are and the measures taken by the criminal justice system to enhance their position. Particular attention is paid to the victimization of women, LGBT persons, minority ethnic persons and the elderly. The book engages in a detailed exposition of the law's response to such victimization, focusing on the measures adopted in international human rights law, by the Council of Europe, and in English law and policy. It also assesses alternative models of victim participation in criminal proceedings in European jurisdictions such as Germany, Sweden and the Netherlands.

Adopting an interdisciplinary approach which encompasses law, criminology and social policy, the book is ideal for undergraduates taking an option in victimology, race and crime, or gender and crime, whatever their disciplinary background.

Chapter 1
Introduction

The status of victims of crime has altered significantly in the last century. The study of victims has moved from the margins of criminological theory to the discipline of victimology. Crime surveys have extended their remit to include information concerning victims’ experiences of the impact of crime and the responses of criminal justice agencies. The role of victims in the criminal justice system has also been reconsidered, as victims have become ‘key player[s]’ rather than ‘forgotten actor[s]’ in the criminal process (Zedner, 2002, p. 419).

The purpose of this book is to evaluate these changes in the role of victims in the fields of victimology, victimisation studies, and law and criminal justice policy, and to highlight areas in which further changes ought to be considered. This chapter presents a brief timeline of the key developments in the UK that mark the movement of victims from margin to centre. In addition, it provides an overview of the contents of the various chapters of the book.

Key developments in victimology, policy and practice

Victims of crime began to receive academic attention after the Second World War with the emergence of the sub-discipline of victimology (Mawby and Walklate, 1994, pp. 69–70; see Chapter 2). This theoretical interest in victims was matched at the policy level by a welfarist focus on the government’s responsibility to provide citizens with protection from ‘disease, squalor, and ignorance, idleness, and want’ (Mawby and Walklate, 1994, p. 70). This notion of government responsibility was based on the assumption that, as citizens are parties to an implied social contract, they are entitled to insurance against such conditions (Mawby and Walklate, 1994, pp. 70–1). These welfarist principles informed the recommendations for victim compensation made by Margery Fry, one of the leading social welfare reformers of the 1950s. On the basis of the principles of collective responsibility and collective social insurance, she contended that the state had a duty to compensate victims for injuries consequent upon crime (Dignan, 2005, p. 43).

The Criminal Injuries Compensation Scheme (CICS), which was established in 1964, was largely attributable to Fry’s work (Dignan, 2005, p. 43), which had been taken forward by Justice, an advocacy group, after her death (Mawby and Walklate, 1994, p. 75). It restricted compensation claims to ‘deserving’ victims of violent crime (Mawby and Walklate, 1994, p. 75; see Chapter 11), reinforcing the exclusion in positivist victimology of victims who precipitated or otherwise contributed to their own victimisation (see Chapter 2).

The emphasis on victims’ needs, which was reflected in the work of Fry and the establishment of the CICS, was consolidated in the 1970s with the formation of Victim Support. The first Victim Support scheme, which was established in Bristol in the early 1970s, attracted funding from the National Association for the Care and Resettlement of Offenders (NACRO) (Goodey, 2005, p. 104). Within a surprisingly short period, it had been joined by other victim support schemes, and in 1979 the National Association of Victim Support Schemes (which subsequently became Victim Support) was established (Goodey, 2005, p. 104).

Victim Support grew extensively in the 1980s, attracting considerable government funding. Mawby and Walklate ascribe its popularity with the government to three primary factors. First, in contrast to the critical stance adopted by other organisations, such as Rape Crisis (see below), Victim Support was politically neutral, thereby presenting no challenge to the Conservative government (Mawby and Walklate, 1994, p. 80). Second, it was a voluntary, community agency that focused on individuals helping one another to deal with the aftermath of crime. Unlike the earlier welfarist initiatives, it did not emphasise dependence on the government, but rather the empowerment of individuals as ‘active citizens’. These principles fitted with the Thatcherite government’s aversion to ‘the dependency culture’ that had characterised the post-war period (Mawby and Walklate, 1994, pp. 80–1). Third, Victim Support provided services to victims, thus reinforcing the notion of citizens as consumers of public services that the Conservative government was concerned to embed within the public consciousness (Mawby and Walklate, 1994, p. 81). This notion of consumerism was premised on the view, which was favourable to the government, that citizens (including victims) have responsibilities as well as rights (Mawby and Walklate, 1994, p. 85).

The receipt of large-scale government funding enabled Victim Support to develop into a national organisation providing assistance to victims of crime (see Chapter 8). In view of the fact that it retained its political neutrality until the 1990s, its earlier work focused predominantly on ‘neutral’ victims, such as victims of street crime and property offences, although it did also provide services to rape victims (Mawby and Walklate, 1994, pp. 80, 82).

Radical feminist theory, which emerged in the 1970s, highlighted the extent of violence against women and children, locating its genesis in the structural institution of patriarchy. It consequently challenged the concept of victim precipitation espoused by positivist victimology, contending that it amounted to victim-blaming that obscured the patriarchal underpinnings of gender-based violence (see Chapter 2). The academic emphasis on such violence sparked the development of women’s organisations, such as Rape Crisis, which engaged in advocacy on behalf of women and provided support to victims (Dignan, 2005, p. 56; see Chapter 8).

By the 1980s, the issue of violence against women and children had begun to receive the attention of the government. The police introduced ‘rape suites’ in police stations to provide rape victims with a more comfortable, less threatening environment in which to report incidents of rape. In addition, they were required by the Home Office to use their powers of arrest more frequently in domestic violence cases. Furthermore, child victims of sexual abuse were permitted to give evidence by live TV link (Mawby and Walklate, 1994, p. 82; see Chapter 9).

The 1980s also saw the increased use of national and local victim surveys by the government (Goodey, 2000, p. 15). However, this was due more to the failure of the government to stem the rising tide of crime than to the development of a victim-centred consciousness. The propensity of such surveys to reveal information about the impact of crime on victims as well as their levels of fear of crime nonetheless fitted with the concern of left realist victimologists to address the reality of victims’ experiences that had hitherto been overlooked (Goodey, 2000, p. 15; see Chapters 2 and 3).

The interest in victims in the UK in the 1980s was paralleled by the introduction of several victims’ measures by the Council of Europe. In 1983 it adopted the European Convention on the Compensation of Victims of Violent Crime (the Compensation Convention), in terms of which Member States are required to contribute to the compensation of victims who have been seriously injured as a consequence of an intentional crime of violence (see Chapter 11). Like the CICS, the Compensation Convention is premised on the notion of the ‘deserving’ victim, thereby entrenching the view that victims who precipitated their own victimisation ought not to qualify for compensation.

In addition, in the 1980s the Committee of Ministers of the Council of Europe adopted two significant, albeit non-binding recommendations concerning victims. The first, Recommendation No. R (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure (1985), imposed duties on Member States to take account of victims’ interests in the criminal process, whereas the second, Recommendation No. R (87) 21 on Assistance to Victims and Prevention of Victimisation (1987), concerned state duties to provide for victims outside the criminal justice system (see Chapter 7). These three measures reflected an increasing recognition on the part of the Council of Europe that victims’ interests had hitherto been overlooked and that reforms to make greater provision for victims were required.

The 1980s accordingly represented a period of growing concern for victims in the UK as well as in Europe. However, this concern led to the introduction of measures to provide for victims’ needs rather than the recognition of legally enforceable victims’ rights.

The 1990s saw the beginnings of a discourse of victims’ rights. Critical victimology advocated the recognition of rights for victims as a means of ensuring that the state responded effectively to their lived experiences of victimisation (Mawby and Walklate, 1994, p. 179; see Chapter 2). Victim Support, which had become significantly less politically neutral by the 1990s, contributed to the development of this rights discourse in practice by calling for the introduction of victims’ rights (Dignan, 2005, p. 53; Victim Support, 1995; see Chapter 8). However, the government’s response was equivocal. The first Victim’s Charter, which was adopted in 1990, comprised only ‘guiding principles’ for the treatment of victims, and was not legally enforceable (Dignan, 2005, pp. 66–7). It was replaced by the Victim’s Charter 1996, which created ‘service standards’ rather than rights for victims. In terms of these standards, victims could expect criminal justice agencies, amongst other things, to provide them with information, respect and support, but had no legally enforceable rights to demand that they did so. Despite its lack of enforceability, however, the Victim’s Charter nonetheless represented the government’s first formal commitment to provide for victims’ needs and was consequently regarded as a ‘substantial improvement in the lot of victims’ (Rock, 2004, p. 162; see Chapter 7).

The 1990s were also marked by other significant developments. Victim Support expanded its services to victims by obtaining government funding to pilot the Witness Service – a service involving the provision of support and assistance to victims at court – in several Crown Courts. By 2002, it had established the Witness Service not only in all Crown Courts but also in all magistrates’ courts in England and Wales (Victim Support, 2002b, p. 18; see Chapter 8). Furthermore, the government adopted fairly wide-ranging measures to protect victims in trial proceedings. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced several victim-centred reforms to the law of evidence. Special measures, such as testifying by means of a live TV link or video recording, were made permissible in certain circumstances. In addition, cross-examination of rape victims by the defendant in person was prohibited, and restrictions were imposed on the admissibility of sexual history evidence (see Chapter 9). The aim of these reforms was to reduce the secondary victimisation experienced by victims, particularly vulnerable victims, during the court process and consequently to encourage such victims to testify.

By the end of the 1990s, victims had moved substantially from the margins to the centre of criminal justice policy. However, victims’ discourse remained embedded in the language of ‘needs’ rather than ‘rights’, and victims were still mere witnesses for the Crown, with no legal standing.

The Council of Europe Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA) heralded a significant change in the status of victims that shifted European victims’ discourse firmly onto the terrain of rights. The Framework Decision, which is binding on the UK, provides victims with several rights, including the right to information and the right to protection (see Chapter 7). The UK government responded to the Framework Decision by expressing its intention to establish statutory rights for victims (Home Office, 2001b). However, such rights have not materialised, with the government reverting in recent years to the discourse of victims’ ‘needs’ and ‘services’ for victims (Home Office, 2002b; see Chapter 7).

This discourse is reflected in the Code of Practice for Victims of Crime 2005 (the Victims’ Code), which constitutes the government’s response to its obligations in terms of the Framework Decision. The Victims’ Code, which is statutory, was introduced in terms of the Domestic Violence, Crime and Victims Act 2004 (DVCVA). It imposes service obligations on criminal justice agencies, such as the police and the Crown Prosecution Service (CPS), to provide victims with, inter alia, information, protection, sensitivity and respect. However, it does not give victims enforceable rights, but merely permits them to complain if the service obligations are not met (see Chapter 7).

The twenty-first century has also seen the adoption of other victim-centred reforms, which are likewise premised on a discourse of needs rather than rights. A national scheme allowing victims to make victim personal statements (VPS) in which they explain the impact of the crime on them, and which may be taken into account at the sentencing stage, was introduced in October 2001 (Rock, 2004, p. 212). This scheme has recently been supplemented by pilot projects permitting the families of homicide victims to make family impact statements (FIS) and to be represented by lawyers at the sentencing stage (Walklate, 2007, p. 115). VPS and FIS accommodate victims’ needs to be given a ‘voice’ at the sentencing stage but grant them no right to participate actively in the proceedings (see Chapter 10).

Apart from the above measures that apply to victims generally, specific measures for victims from unequal social groups have been introduced by various criminal justice agencies, such as the police and the CPS. For instance, proarrest and positive prosecution policies in domestic violence cases have been implemented. Sexual Assault Referral Centres for rape and sexual assault victims have also been established. In addition, the police and the CPS have devised policies to respond more effectively to racially and religiously motivated crime as well as homophobic and transphobic violence. The proliferation of such policies and practices in recent years is a welcome sign that the government is beginning to develop an inclusive approach to victimisation that recognises the b...

Table of contents

• Contents
• Acknowledgements
• Table of cases
• Table of statutes
• Chapter 1 Introduction
• Part I Victimology and victimisation
• Part II Legal responses to victimisation
• Bibliography
• Index