Just Interests: Victims, Citizens And The Potential For Justice
Author: Robyn Holder
Publisher: Cheltenham, UK: Edward Elgar, 2018. 265p.
Reviewer: Peter Grabosky | October 2018
With the rise of the modern state, the criminal process evolved into a vertically integrated government monopoly. This monopolization is not total, since the mobilization of law is undertaken by victims or third parties, as well as by law enforcement agents acting unilaterally. Today, offenders and victims alike proceed through the system, their fates in the sequential hands of police, prosecutors, and judges.
Conventionally, the machinery of the criminal process, in common law jurisdictions and beyond, has operated to suit the needs, convenience, and priorities of its constituent agencies. Those victims who did mobilize the law (and survey research suggests that most did not) were traditionally treated as pawns in a wider drama of governmental social control: as pieces on a chessboard, or as components on an assembly line. In particular, female victims of sexual assault and domestic violence perceived themselves as objects in the hands of a callous system, until the feminist movement prevailed upon the state to take these offences and their victims more seriously.
As adversities confronting victims of crime became increasingly apparent to the lay public and to state authorities, the initial response took the form of criminal injuries compensation programs. These served to address, albeit inadequately, the financial disadvantage experienced by many victims, in light of the fact that most offenders were impecunious, and thereby beyond the reach of civil redress. In the 1970s and ‘80s, it became obvious that social support and information for crime victims was often sorely lacking, compounding the victim’s post-traumatic stress. At the same time, the interests of victims were embraced by the “law and order” lobby, which sought to make criminal convictions easier, and penalties more severe.
These developments made it increasingly important to focus attention on victims’ voices in their own right. Beginning in the 1980s some jurisdictions allowed victims to address the court, directly or indirectly, at the sentencing stage, in order to call attention to the impact of criminal victimization upon them personally. In others, they were also invited to suggest what they might regard as an appropriate sentence for the convicted offender. Despite these developments, many victims continued to see themselves as second class-citizens, marginalized participants in the criminal process. One problem with these various approaches has been that they rely on characterizations of victims as deserving or innocent in some manner.
Robyn Holder’s book is critical of this focus on vulnerabilities and needs. It keeps the power of definition in the hands of the state, which decides who is or is not sufficiently ‘worthy’ to access justice and to receive the protection of the law. It is based on a two-year longitudinal study of a panel of assault victims in a medium-sized Australian city, supplemented by data obtained through interviews with former prosecutors in Australia and the United Kingdom. In addition, the work is thoroughly grounded in the literature on deliberative democracy and on theories of justice developed by Nobel Laureate Amartya Sen. The book is an important discussion of where victims stand today, and where they are heading. It seeks to cast the victim in the role of citizen, and explores what such a status might imply.
Holder’s findings are very revealing. Those victims who testify as witnesses may find themselves on the receiving end of cross-examination that is hardly compassionate and sympathetic. One of her respondents, who suffered from mental health problems and who himself had a minor criminal record, claimed that he had previously been accorded greater respect as a criminal defendant than as a victim/witness.
Prosecutors play a critical role in the criminal process. Traditionally their job has been to manage a relentless caseload, achieve as many convictions as possible, and secure as severe a sentence as they can. As such, they tend to be rather forceful and assertive souls, not recruited for their “bedside manner.” Some of the quotes that Holder gleaned from those former prosecutors whom she interviewed are chillingly illustrative.
As is the case with members of many professions today, prosecutors are facing immense challenges to their traditional role. Doctors are not amused when patients present with their symptoms, along with the results of a google search. University students are deemed to be customers, and feel entirely free to challenge the professional judgment of their professors. And prosecutors are criticized for an apparent lack of compassion and sympathy. Contemporary debates circle, in various ways, around this relationship between specialized technicians and ‘ordinary people’.
The goal of achieving equity and fairness in the criminal process is compounded by the fact that victims enter the system with a wide range of psychological and social endowments. Some are vengeful; some are forgiving. Some are robust and resilient, while others are fragile. Some have unrealistic expectations regarding the process in which they have become involved– and the eventual outcomes of that process. Others “know the ropes.” Some are assertive, others are acquiescent. Some seek recognition as a person who has been wronged. Others are fatalistic. Some are socially isolated, while others have strong family and support systems. Holder observes that not only do victims differ widely in terms of what they bring to the criminal process and what they want from it, their own expectations and preferences will evolve from the time they originally mobilize the law until “their” case reaches its ultimate disposition. The challenge facing prosecutors and other participants in the criminal process is to do what they can for victims without compromising the principles of fairness and equal justice under law.
Holder’s interesting analysis of victims’ needs and interests takes the reader beyond rights discourse to the conception of the victim as citizen. However, she does not see democracy per se as the vehicle for victims’ advancement. The concept of victim as a citizen possessing democratic rights may be inspiring, but unfettered democracy can be problematic. Participatory democracy in its rawest form was manifest in lynching, a practice common in the United States around the turn of the 20th century, and not uncommon in parts of Africa and South Asia today. How better to concentrate the minds of prosecutors on victims’ needs than by having prosecutors directly elected, as they are in many US jurisdictions? The disastrous effect of sentencing policy driven by citizen-initiated referenda was forcefully demonstrated by Zimring, Hawkins and Kamin (2001). In a word, the intensity of citizen preferences may not be matched by their merits. I recall once having been told by an eminent jurist that the role of the judge is to stand between the person in the dock and an angry public.
Rather, Holder asks us to acknowledge the distinction between a public that is indirectly affected in the administration of justice (and often cast as ‘populist’), and those individuals who are directly affected, both the victim and the accused. Furthermore, she directs us to the research that finds victims do not want responsibility for making decisions, but simply want to be involved in the process. She thus elevates respect for the victim as a central value in the criminal process. This makes eminent sense, as respect for all citizens is a fundamental element of democratic governance. According victims the respect that they were long denied can be achieved without unduly detracting from the respect accorded state officials, or indeed criminal defendants.
Recent years have seen many developments in the criminal process which have been designed to provide the victim greater respect. The right of the accused in many common law systems to make an unsworn statement from the dock, not subject to cross examination, once permitted gratuitous denigration of the victim. This has now been eliminated in most jurisdictions. The use of CCTV or videotaped evidence now protects vulnerable witnesses (such as children) from being confronted by their alleged assailant in open court. It can be argued that respect for and dignity of victims can be protected without trampling upon the rights of the accused. As an aside, one might suggest that today, the most serious miscarriages of justice at the offender’s expense arise from police and prosecutorial misconduct unrelated to the victim and his/her circumstances.
However, the reality of Holder’s aspirations is challenged by some deep-seated aspects of human nature. As Donald Black (1991) has suggested, victims (and the accused) who are from minority or disadvantaged backgrounds may be viewed less sympathetically than those who command wealth, status, or power. “Unsympathetic” victims can be doubly challenged when they come from marginalized backgrounds. This will require justice officials to take extra care to ensure that the victim sees him or herself as an equal citizen.
At the end of the day, Holder argues that it is important to provide the victim with an opportunity to exercise voice and to seek to influence the process, but not necessarily to control it. This important book charts a course towards crafting solutions that accord the victim a direct and dignified role in the process, and remain faithful to the rule of law. It deserves the attention of criminal justice professionals, victims and their advocates, and scholars alike.
Black, D. (1991) Sociological Justice. New York: Oxford University Press.
Zimring, F. Hawkins, G. and Kamin, S. (2001) Punishment and Democracy: Three Strikes and You’re Out in California. New York: Oxford University Press
Peter Grabosky, Professor Emeritus, Australian National University