Justice for Victims

Perspectives on rights, transition and reconciliation

Inge Vanfraechem, Antony Pemberton, Felix Ndahinda, Inge Vanfraechem, Antony Pemberton, Felix Ndahinda, Inge Vanfraechem, Antony Pemberton, Felix Mukwiza Ndahinda

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781136207747
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Justice for Victims brings together the world's leading scholars in the fields of study surrounding victimization in a pioneering international collection. This book focuses on the current study of victims of crime, combining both legal and social-scientific perspectives, articulating both in new directions and questioning whether victims really do have more rights in our modern world.

This book offers an interdisciplinary approach, covering large-scale (political) victimization, terrorist victimization, sexual victimization and routine victimization. Split into three sections, this book provides in-depth coverage of: victims' rights, transitional justice and victims' perspectives, and trauma, resilience and justice. Victims' rights are conceptualised in the human rights framework and discussed in relation to supranational, international and regional policies. The transitional justice section covers victims of war from those caught between peace and justice, as well as post-conflict justice. The final section focuses on post-traumatic stress, connecting psychological and anthropological perceptions in analysing collective violence, mass victimization and trauma.

This book addresses challenging and new issues in the field of victimology and the study of transitional and restorative justice. As such, it will be of interest to researchers, practitioners and students interested in the fields of victimology, transitional justice, restorative justice and trauma work.

Part I

---

Victims’ rights

Chapter 1

---

Victims’ rights

Paul Rock¹

---

Introduction

At first blush, the proposition that the victims of crime should have rights is unexceptionable and a number of States assert that they have now ceded them. After all, it had long been complained that victims were marginal, the ‘forgotten party’, treated only as potential witnesses, complainants and ‘alleged victims’ until a conviction had been secured and, in very exceptional cases, as claimants to criminal injuries compensation. Victims were denied property in their own crimes (Christie 1977); denied information about the progress of ‘their’ cases (see Shapland et al. 1985); found it difficult to retrieve stolen possessions; experienced delays and discomfort waiting for trial (if trials ever materialized); and were subjected to the possibility of aggressive cross-examination at trial itself. In 1987, Lois Herrington (1987, p. 141), the former Assistant Attorney General of the United States and the chairwoman of the 1982 Presidential Task Force on Victims of Crime, claimed that:

The system served the judges, lawyers, and defendants, while ignoring, blaming, and mistreating the victims. Once they survive the initial impact of a crime, the victims are drawn into a system that treats them with indifference at best and abuse at worst.

An increasing number of victims cried out for what they called recognition and respect.

During and after the 1970s, a concatenation of events began to remedy that neglect: the emergence, first, of a renewed, ‘second generation’ feminism deploring the treatment of the female victims of rape (see, for example, Brownmiller 1977) and domestic violence as ‘secondary victimisation’ and bringing about the founding of rape crisis centres and women’s refuges (see Pizzey 1977; Dobash and Dobash 1979). Later other activist organizations came into being, claiming greater rights to acknowledgement and participation in procedure, claims that were accompanied by the establishment of self-help and campaigning groups that agitated for change; the apprehension that the criminal justice system needed its witnesses, and companion fears that victims might desert the criminal justice system, refuse to report crime and refuse to testify (see Knudten et al. 1978). All this led to prosecutor- and police-initiated programmes for victims and witnesses; the maturing of the new discipline of victimology, founded in the 1940s and 1950s (see von Hentig 1948; Wertham 1949; Mendelsohn 1963) and dedicated to the analysis and, in many cases, the amelioration of the standing of victims; the work, in England and Wales and elsewhere, of Victim Support; the revelations of crime surveys about the incidence and impact of crime, and much else. It is now hard to deny victims. Their demands, it has even been said, are being used to give legitimacy to the actions of states whose moral authority has been weakened (see Allen et al. 2000; Boutellier 2000), drowning out the voices of experts and practitioners.

Yet on inspection, both words, ‘victim’ and ‘right’, have proved, partly by design, to be ambiguous and elusive, politically freighted and practically contested. What has been conceded and to whom it has been given is not at all transparent. In exploring these matters, I shall perforce concentrate on what I know best, the role of the victim in common law countries, and in England and Wales above all.

Who are the victims?

Let me begin with the meaning of the term victim. The definition offered by The New Shorter Oxford English Dictionary (1993) talks not only about what might seem to be the straightforward case of victims of crime conventionally understood, but also those killed and offered as sacrifices; those who are tortured or killed by another; ‘a person subjected to cruelty, oppression, or other harsh or unfair treatment or suffering death, injury, ruin, etc., as a result of an event, circumstances, or oppressive or adverse agency’; or a person who is taken advantage of or a dupe. A victim may then be other than one who suffers as a result of a simple criminal act. And lest it is imagined that such a catholic description has been favoured simply by outsiders – those who are not lawyers, politicians, practitioners or criminologists – recall the busy agitation that has continually taken place within the criminal justice system to extend the elasticity of the term. Although the term victim connotes loss, weakness, submission, subjugation and pain; although some reject its associations with passivity and defeat, disown victim status and, following those who endured the Holocaust, prefer instead to employ the word ‘survivor’; the word also carries with it the promise of rewards. In what often takes the form of a binary system, the victim is the man or woman who has been vindicated, not the wrongdoer but the wronged; the innocent, not the guilty; one who deserves compassion and support, not condemnation; compensation and vindication; retribution and reparation. There are gains to be made in being so classified and individuals and groups have striven to achieve them.

Recall the jostling that attended the framing of the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, a jostling that ultimately furnished a somewhat baggy description of quite who it is who should be recognized as a victim for political and practical purposes. Matti Joutsen (1987, p. 23), then of HEUNI, an organization affiliated to the United Nations, who was one of the architects of the Declaration, remarked that the task of definition lay

at the heart of one of the greatest drafting difficulties in preparing the… Declaration… According to the broader perspective, victims are to be understood as those who suffer as a result of acts that a) are a violation of national criminal laws, b) are a violation of international criminal law, c) are a violation of internationally recognized human rights, or d) otherwise involve an abuse of political or economic power. This is the view that was taken… by some of the drafters of the United Nations Declaration.

The result was that victims were defined conservatively enough under paragraph 1 as ‘persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States…’, but also, much more loosely (see Bassiouni 1999, p. 48), and not unlike an earlier totalitarian model of crimes by analogy, under paragraph 18 as

persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.²

In Canada, at much the same time, the Federal-Provincial Task Force on Justice for Victims chiefly attended to the victimization of women, native Canadians, the elderly and the handicapped, but excluded young men and those who were gay – and its decisions were political. Feminism had awarded women a strong political presence in the Ottawa of the 1980s, but young and gay men, it was thought, lacked public sympathy and, in the words of one federal official, ‘they were nobody’s favourite victim’ (Rock 1986, pp. 310–311). Recall too the moves being made in the 1990s by those who wished to be acknowledged as members of an ever-expanding circle of victims: those identified as victims of the new and increasingly well-populated category of hate crime (Jacobs and Potter 1998); the alleged victims of abuse made known through what was called ‘recovered memory’ (Pendergrast 1995); the secondary and tertiary victims of crime, including, importantly, the families of homicide victims; those who may have been distressed by having witnessed and attended atrocious crimes; the families of serious offenders who have on occasion claimed to be ‘the other victims of crime’ (Rock 2000); and even offenders themselves. Even within victim groups there has sometimes been a sifting and ranking process organized by what the traumatically bereaved labelled ‘competitive grief’. Rather luridly perhaps, one of the outcomes of such a contest for recognition, some like Charles Sykes (1992) would say, is that a country like the United States has been turned into ‘a nation of victims’.

It is in this sense that a description of who is or is not a victim implicates a certain view of politics, an ordering of identity, status and reward, a model of causality and a framework for blame and explanation. It presents an iconography of who it is who may be said to have suffered at whose hands with what consequences and in what sort of social, moral and economic system (see Pitch 1985). Holstein and Miller (1990, p. 107) once remarked that: ‘As an act of interpretive reality construction, victimization unobtrusively advises others in how they should understand persons, circumstances, and behaviours under consideration.’ How else is one to read the conclusions of the Task Force on Victims’ Rights and the Justice System (1991, p. 337): ‘The issues of economic and environmental victimization are of EXTREME URGENCY, transcending national boundaries?’ [emphasis in the original]. How else, too, is one to read the manifesto of a feminist ‘international tribunal’ that was convened in California in the mid-1970s: ‘the women present completely rejected patriarchal definitions of crime; all man-made forms of women’s oppression were seen as crimes. Most of the crimes testified about are not recognized as such by patriarchal nations…’? (Russell and Van de Ven 1976, p. xv). Radical criminology and critical victimology have had their preferred victims as well. In the empirically innocent days before crime surveys began to make their full mark, and some on the left realized that crime hurts the poor as well as the rich (see Lea and Young 1985), minority ethnic groups as well as members of the majority population, women as well as men (see Jones et al. 1986), there were those who would have had us concentrate not on those who suffer from or commit volume crime – that, it was argued, was a source of ideological irrelevance, mystification and distraction – but almost solely (if victims were to be considered at all) on those who experienced racism, imperialism, sexism, corporate crime and crimes and abuses of human rights inflicted by the State (see Kauzlarich et al. 2001).

But even if one restricts the conception of ‘victim’ to the notion of one who has suffered from a crime narrowly defined, there are still difficulties in identifying and ratifying the potential bearer of rights.

Who deserves rights?

According to estimates based on the British Crime Survey,³ there were some nine and a half million crimes committed in England and Wales in 2010–2011, and the figure of recorded police crime was 4.2 million. Just under a quarter (23 per cent) of the incidents reported to the British Crime Survey were crimes of violence, including robbery; a fifth (22 per cent) incidents of vandalism; about half (47 per cent) were thefts, of which vehicle-related theft was the most common⁴ and one-twelfth (8 per cent) burglaries. There were 642 homicides, leaving behind perhaps some three or four thousand immediately bereaved people. We know too that, because of repeat victimization, the experience of crime can be especially concentrated and intense for some: 44 per cent of the victims of domestic violence, 27 per cent of the victims of vandalism, and 19 per cent of the victims of acquaintance violence were repeat victims (and, as a counterweight, individual crimes may well have multiple victims). Overall, more than two-fifths of reported crime in England and Wales was said in the mid-1990s to have been experienced by 4 per cent of victims (National Board for Crime Prevention 1994).

We still understand rather too little about the phenomenology of victimization and victim identity (Rock 2002), but it may be conjectured that, distressing as an incident of theft and burglary can be (Maguire 1982), it need not necessarily form the basis of an indelible master status. To embark on a moral career self-consciously as a victim is an unusual venture: being victimized and assuming an enduring social role of victim are not at all the same. There are contingencies ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of contributors
• Acknowledgements
• General introduction
• Part I Victims' rights
• Part II Transitional justice
• Part III Trauma, resilience and justice
• Index