Integrating a Victim Perspective within Criminal Justice

International Debates

Adam Crawford, Jo Goodey

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351927253
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho penal

As numerous academic and political commentators have noted, the implications of introducing a victim's perspective into the delicate balance between state and offender is likely to be a key issue in the future of criminal justice. This book seeks to outline the contours of the relevant debates drawing together contributions from prominent international and national commentators, from areas including criminology, law, philosophy, social policy, politics and sociology.

PART I

THE STATUS OF VICTIMS

2 Victims as Consumers of the Criminal Justice System?

Renée Zauberman

When I was told the title of this book¹ (and the conference from which it arose) – Integrating a Victim Perspective within Criminal Justice – it immediately brought to mind the way the issue has been addressed in France in recent years: can citizens who turn to the criminal justice system to have their victimization problem solved be viewed as consumers in the same sense as the consumers of any other public service offered by the administration? A number of intellectual and practical developments during the 1980s and 1990s seem to indicate an affirmative response. First, two actors are definitely involved: there is a victim – an ordinary citizen who has been swindled, robbed, assaulted – with a right to demand of a public actor – the criminal justice system – that justice be dispensed.

From a less theoretical standpoint and basing its viewpoint on the principles of the welfare state, according to which it is intolerable that a victim of violence receive worse treatment than a victim of an accident at work, and on the notion of victims’ rights, the far-ranging international ‘pro-victim’² movement has been deploring the second-rate status attributed to victims in the criminal justice process and has tried to put victims at the forefront. This has been achieved by providing them with a full range of instruments through which they may defend their rights: the right to compensation, through public insurance schemes; the right to participate fully in the penal process; the right to be listened to; and the right to receive help and support, thanks to various assistance schemes set up to care for their needs and suffering.

The purpose of this chapter is not to describe these new or revitalized schemes: there exists a vast literature promoting, describing and, in some cases, evaluating this aid to victims.³ Rather, in the face of this apparently necessary progress, my aim is to make some brief remarks on this evolution and to consider whether the concept of victims as ‘consumers of a public service’ is truly adequate to account for their relations with the criminal justice system.

Elements of a response to this question may be sought in a number of directions. For example, law, history and penal sociology may all be useful in comprehending the distance that separates victims from criminal justice in the different systems that have developed in the European sphere (and possibly also in its colonialist offshoots) since the end of the Middle Ages. I will refer essentially to the French system in as much as it exemplifies the centralizing state project that provokes the wrath of contemporary champions of the cause of victims because – in the henceforth classic words of Christie (1977) – it has taken away from them the conflict to which they were a party. We will discover, however, that although this French model was unique in Europe, it retains considerable heuristic value for the comprehension of many of our criminal justice systems, from the oldest ones to those still under construction (Fisher, 1975).

Victims in Legal Theory

In France, the conventional legal view has traditionally been suspicious of victims as party to the criminal justice process. Throughout the nineteenth century (Hélie, 1846–66) and well into the twentieth century (Granier, 1956; Vidal, 1963), legal doctrine considered their presence within procedure as some kind of surviving relic of a still barbarian state of law, close to a system of vengeance. The concept of vengeance, believed to be primitive and endless, therefore tending towards the death of society, was perceived to lie in direct opposition to regular, institutionalized justice whose exclusion of the victim seemed to be a major victory of civilization in a society pacified at long last.

In the history of criminal law as produced by jurists, Wehrgeld – the rate set to pay the price of the harm inflicted – was portrayed as only a timid, not very successful, attempt to escape from barbarism. Only with the gradual, although not smooth, emergence of the abstract concept of the state as the embodiment of the general interest as opposed to the private interest of the victim, was barbarism supposed to have been left behind. England offers an interesting point of comparison. In the mid-1830s, when Chadwick, a reformer charged by the Royal Commission on a Constabulary Force for England and Wales with counting the number of Associations for the Prosecution of Felons, arrived at a low estimate of about 500. He used this figure as the basis of a claim that ‘the community in which they arose was relapsing in a state of barbarism’ (Philips, 1989: 120). Yet, what he designated by this violently disparaging term was simply the action of honourable land-owners who had grouped together, since at least the mid-eighteenth century, to ensure their collective defence, particularly by sharing expenses, because the constables were quite ineffectual and the court action which every freeborn Englishman was entitled to take against any offender had become too complex and costly.

This doctrinal use of barbarism as a mythical foil was accepted unconditionally for a long time, despite important anthropological studies showing that vengeance is by no means anarchic and uncontrolled, but rather an infinitely regulated, precise mechanism. It is based on exchange, aims at redress and includes procedures for appeasement and reconciliation: it ‘weaves the subtle thread of generalised interdependency, thus thwarting generalised paroxystic violence’ (Claverie and Lamaison, 1982: 254). If this is the case, the jurists’ ‘evolutionist’ narrative of a mythical changeover from immediate, excessive, blind personal vengeance to mediated, measured, personalized public justice can no longer be seen as a historical view of law, but rather as an ideology of law within the context of the construction of a state intent on appropriating a monopoly on force and punishment (Verdier, 1980, 1984; Emsley, 1997). In our present society, as we will see, it is impossible to observe victims without finding the state on our path – they form a sociological and historical couple, so to speak.

Criminal Justice in the Legal Theory of Public Service

In France, the notion of public service was constructed principally by jurists specialized in public law, although initially the dogma did not link this concept with what we now view as its natural corollaries – namely, the benefits and services provided and the consumers of them. The underlying idea of a general, or collective, interest to be satisfied does exist, but the field of application of the latter has varied, or rather been extended, over time. Those corollaries were not essential as long as the state’s tasks were conceived as exclusively political – based on a theory of the public authority (Chevallier, 1987) that consisted mostly of ‘organising and running the war-making, police and justice agencies’ (Laubadère, 1984). They began to become meaningful when the economic and social transformations of the second half of the nineteenth century developed public agencies of a more technical character, aimed at providing services to the people (education, transportation, energy, etc.). What was involved here was public service whose ‘purpose was to satisfy private individuals directly and individually’ (Rivero, 1983: 458, emphasis added). The latter must contact the agencies to obtain the service and are their consumers, or even customers, in the case of industrial or business-type services.

Clearly, these various notions bring us to the marketplace categories, in which supply, demand, service, satisfaction, goods and clients are the relevant terms. Some writers then contend that the ultimate justification of public service is ‘the service provided to the public’ or, formulated in market terms, ‘consumer satisfaction’. This formulation also began to be used for victim–criminal justice relations in England in the 1980s. In the context of shrinking public investment, it was easier for an institution such as the police, for instance, to justify its budget by measuring satisfaction of victims–consumers rather than by the clear-up rates (Burrows and Tarling, 1987).⁴ However, this assimilation should not be exaggerated. While consumers have some freedom of movement within the market and the ability to leave it, the consumer of the justice system as a public service is usually captive. The existence of a private security sector cannot, by any means, provide the entire supply of justice that the members of a community generally expect of their sovereign. At most, this assimilation has the perverse effect of emphasizing the unequal purchasing power with respect to this service, thus seriously damaging the legitimacy of the provider, the state, which in a democracy is based precisely on the equality of citizens.

The legal tradition, in actuality, regards justice as one of those public functions whose legitimacy resides more in the fact that it is consubstantial with the exercise of power than in the services rendered to the people, although – however commonplace the reminder – it is grounded in a ‘demand’ of the entire social body. If the ancient notion of the public authority, that some reject as the basis of state action, has found refuge anywhere, it is definitely in the criminal justice system. Despite all the case law and doctrinal evolutions, the latter has continued to be one of the ‘regalian’ state functions, intrinsically tied to its sovereignty and not coming under the category of public services provided to individuals.

In short, a look, however brief, at legal theory clearly shows that the crux of the victims-criminal justice relationship resides in the concept of the state. History probably has more to teach us about this than legal discourse, which has often been no more than a rationalization reflecting political practices.

Criminal Justice, State Business

In Europe, it is France that has exemplified a project of centralization, beginning with the entourage of the medieval suzerain and extended by modern princes and their administration (Rousseaux and Lévy, 1997). The establishment of a criminal justice system, along with control of the army and of finance, was one of the principal – if not the principal – contribution to the construction of the modern state as a centralized political entity with a high degree of autonomy with respect to the citizenry. Criminal justice – in definite contrast to civil justice – was not created in order to ‘provide the benefit’ of justice to wronged citizens but to personify the public authority; its matrix resides in the crime of lese-majesty (Sbriccoli, 1974), and it has always functioned as a political instrument for asserting sovereignty over a territory. Its implantation varied in form and pace, covering territories ranging from the town (Zorzi, 1997) or the county (Rousseaux, 1993) to an entire monarchy (Sharpe, 1997). At the end of the Middle Ages, all of Europe was developing forms of ex-officio prosecution conducted by representatives of the prince in areas – fire, sex and bloodshed, all combined, in the end, in witchcraft – perceived as true threats to the political, religious and social order, and thus justifying the intervention of the authorities (Gauvard, 1997: 92). Let us take a look at England and France. The former, with meagre resources, had its citizens play the role of private entrepreneurs taking charge of prosecution in the name of the Crown, so to speak, and relied on the power of local gentry within their community for law enforcement. The latter was richer, and indulged in the luxury of circumventing the local powers, with the establishment of a network, covering the entire land, of public officers directly tied to the royal authority (Langbein, 1974; Strayer, 1970; Kaeuper, 1988; Bourdieu, 1997), and made extensive use of the King’s grace to draw all of the social classes into the penal nexus (Gauvard, 1991, 1997).

Thus, through totally different strategies, these two great monarchies both su...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Notes on Contributors
• Series Preface
• Introduction
• Part I The Status of Victims
• Part II Victims Within Criminal Justice
• Part III Victims and Restorative Justice
• Index