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The Accused or the Accuser?

In the BBC Radio program Jeopardising Justice (here) Helena Kennedy QC spoke about the rise of ‘the victims’ movement’. The 1970s saw a legal reform that marked a watershed in the treatment of victims throughout the judicial system. Once marginalised and passive, victims are now centre-stage in many a judicial process. Kennedy, a fervent champion of the movement in her early career, set out to explore whether the victim’s voice had become so strong that it now threatens the rights of the defendants. The program feeds into the broader debate on whether or not this well intended reform has gone too far and now it is the defendants who risk being marginalised.

Earlier this month the related discussion on whether or not police should have to visit every crime victim flared up again (here). In Sweden there is currently a very heated debate on how rape victims are treated in the courts and the rights of the defendants (here and here) involving, for example, a District Prosecutor saying that there are different types of rape some of which he labels as ‘scarier’ than others. Meanwhile, in the wake of the resent release of the Lockerbie bomber on compassionate grounds (here) it has been argued that the Scottish Government lost sight of the real victims and that the appropriate display of virtuous compassion would have been better directed at their families rather than a convicted mass-murderer (here).

Rape trials are often singled out as warning examples of what can happen when the voice of the victim is too weak. Endless are the stories of how victims refrain from reporting the crime as they fear that the police will not take them seriously and/or if a trial actually comes about, of what might happen to them in court room. The victims frequently feel that they, rather than the accused, are put on trial and forced to disclose details about their sex life, previous partners, drinking habits, dress preferences etc. Although it may well be hard to strike the right balance it appears that such practices are quite likely to generate prejudice towards the victim something which, in turn, risks endangering the trial. Side-stepping the bigger discussion on to what extent (if indeed at all) judges should allow complainants to be cross-examined on their sexual history I will turn back to what seems to be a growing concern throughout the judicial system – namely that there is too much focus on the victim. 

Previously it has almost been taboo to call the victim-at-the-centre notion into question and it could be argued that rape cases are an unnecessarily extreme type of crime to discuss in this context. Indeed, I do think it true that rape victims often are even more vulnerable (as a result of the physical and psychological humiliation for example) than other crime victims. Because of the very nature of the offence there is presumably a significant mismatch in power between the parties already at the beginning of the trial. Further to that point there is the gender aspect which leads many feminists (and others) to argue that the empowerment of the victim is a key part of the women’s rights movement and overall empowerment in society. The symbolism of a move from a passive victim to an active agent who is control of her body and her life plan is very strong. But even if one is sympathetic to this line of argument it does not follow that an unbalanced process, even one in favour of the victim, is desirable. What seems to be in everyone’s interest, however, and in this I include the victim, the accused, and society at large, is the upholding of the rule of law and due process. Even though some arguments are extremely unpalatable and deeply offensive (e.g. the Swedish District Prosecutor’s above) an open debate on the perceived threat is conducive to the goal of bringing about a transparent system.

I will turn to some short reflections on the need for a balanced concern and on whether or not emotion and reason really are mutually exclusive. A common argument against giving the victim a lot of space in trials is that it is said to high-light the emotional aspects of the crime. There is an underlying assumption that emotion and reason are mutually exclusive and that if emotions were given space in the courtrooms that would corrupt and undermine the ability of the judge and jury to make rational decisions. Whilst this undoubtedly could be the case in many situations we can also imagine scenarios where emotions can add insight and bring about a more nuanced process and, indeed, outcome.

I take it that what the critics have in mind here are the type of un-reflected, spontaneous, knee jerk kinds of response often displaying a thirst ‘an eye for an eye’ retribution. In other words, the type of reactions that one in hind-sight might reflect upon and revise. This appears to be a quite narrow definition. I would have thought that there is a great need for the type of character traits that often come to express themselves as ‘emotions’, or at least emotional acts,  such as compassion, love, care, benevolence and humanism in the court room. These are not responses void of reflection – quite to the contrary desire, or emotion, and reason are not only compatible but arguably necessary components of a fully reasoned response. There can naturally be an abyss between emotion and reason but my point is that it does not have to be so. Indeed, some philosophers have argued that the two are in harmony in any morally mature decision maker. It would be odd to have as our ideal a court that functions like a surgeon with the scalpel eliminating everything that is seen as non-rational when in fact a lot of people think of rational decisions as consisting of both reason and passion or emotion or desire.

A balanced consideration seems to be the best safe guard for upholding the rule of law. It goes without saying that it is unacceptable, from the perspective of the state, society and individual citizens, if people refrain from reporting crime because they fear that going through with that process would potentially be trauma well on par with the actual crime. While there is no doubt that the legal reforms of recent decades have brought about a more enlightened view of the suffering of victims of crime, and triggered a more humane treatment of victims in the court rooms it might be the case that the scales have, in some cases, tipped in the other direction. As a balanced concern for both the defendant and the plaintiff seems to be in everyone’s interest this difficult debate could be of great importance to the stability of rule of law and due process – a corner stone of democracy. Hopefully, the debate will lead to an increase in security for everyone as well as an overall strengthening of justice. 

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1 Comment on this post

  1. A crime is supposed to be an offense against the State/Community, and not against any individual. That way, the peace-maintaining function of the state is affirmed and the vendetta is denied. In theory, the victim’s only recourse is at law in a civil law suit (which likely yields little in the way of an actual recovery of money). With the involvement of the victim, this distinction is fuzzed-up, to the benefit of the state and the detriment of the accused, at least insofar as punishment is concerned. An approach to criminality which is supposed to make punishment into a separate thing from the needs of the victim; which is supposed to make punishment a matter for a disembodied consideration of the badness of the crime and the criminal, is defeated by allowing the victim any role in the process of determining punishment.

    On the other hand, why not let the victim cry for vengeance? Because the victim cannot always be certain that the defendant “did it”. We are letting the victim be a witness twice: once under oath at the trial on the issue of guilt, and once at the hearing on sentencing, not under oath, presumably telling about the victim’s own loss on account of the crime.

    This makes me wonder whether we should not return to the old old days in England when criminal prosecution was commenced by the victim. In one or more European countries, the victim has an active role in the criminal process from the beginning. This tends to put the focus on retribution, which measures the wrong and the harm done. It reeks with affirmation of free will and personal guilt. At least the cooler (colder?) approach of separating the crime from the victim’s claim allows one to soften (or discard) a commitment to free will and consider mainly the effect of punishment on the commission of future crimes and the reinforcement of the value system that was violated by the crime.

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