“Visible” and “Invisible” Victims in the Criminal Justice System: Victim-Oriented Paradigms and Models

“Visible” and “Invisible” Victims in the Criminal Justice System: Victim-Oriented Paradigms and Models

Armando Saponaro (University of Bari ‘Aldo Moro', Italy)
DOI: 10.4018/978-1-7998-7348-8.ch001
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Abstract

This chapter outlines the “conflict” and “peace-keeping” victim-oriented justice paradigms. The latter empowers the victims of crime, putting them at the center of an encounter and using interindividual mediation or collective circles to address conflict resolution. Two models are critically discussed in the conflict victim-oriented justice paradigm. The European continental “visible victim” model structures the role of the victim as a full-fledged processual party together with the public prosecutor and offender. In this model, the victim has the same rights and powers of the defendant. The “invisible victim” common law model views the victim as a trial witness, participating, for example, through a victim impact statement (in the United States) or victim personal statement (in the United Kingdom) at the sentencing stage. The visible victim conflict paradigm model enhances a victim's role and involvement in the criminal justice system, offering a solution to existing controversial and critical common law system issues.
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Introduction

Both crime and victims are visible in the news and political discourse but victims of crime are often termed “invisible,” particularly within the criminal justice system. During the 1960s and 1970s, two major claims were raised regarding systemic neglect and indifference toward crime victims. The first claim focused on difficulties in obtaining adequate restitution and restoration, especially when offenders had no means, which led to proposed state-run compensation schemes (Fry, 1957; Williams, 1961). The second claim focused on the victim’s role as a witness in the criminal justice system. This role was described by early victimology scholars like Schafer (1960), as the “Cinderella” of the modern criminal justice system, outlining a clear decline as compared with the golden age of the victim: medieval compositions in German common law. According to Schafer (1977), medieval compositions combined punishment with damages to mitigate blood feuds and disruptive retaliation on stable communities to satisfy a victim’s revengeful emotions and/or claim for compensation. The decline of the victim began with an increase in state power over compensation (Schafer 1977). For example, feudal barons and medieval ecclesiastical hierarchies appropriated the rights of an injured party, exacting a double vengeance by forfeiting an offender’s property to themselves rather than the victim. The offender received public punishment, including the dungeon and/or torture (Schafer, 1977). Christie (1977), in the seminal work, “Conflicts as Property,” criticized modern expropriations by professionals and public authorities of private conflicts between offenders and victims, excluding their direct management of conflicts. It soon became cliché to view the victim as “the forgotten person” of the criminal justice system (Black, 1994). Scholars and victim advocates began to invoke improvements to the victim-witness role in the Anglo-American criminal justice system.

Jumping 60 years ahead, we find a generalized development of ancillary victim services, including a patchworked situation from the legal reform perspective. For example, in the U.S., victim legal rights movements like Marsy’s Law constitutionally incorporated an impressive cluster of rights that grant a victim participation in the criminal justice system or consideration by justice professionals in local jurisdictions. On the other hand, a recent report by the Victims Commissioner for England and Wales (Gordon & Gordon, 2020) noted a lag in providing substantive victim participatory rights as compared with Australia, Canada, New Zealand, and the U.S. The report stated that it “identifies effective legislative and policy measures that promote the role of victims within the criminal trial process whilst not undermining the status of the adversarial justice system” (Gordon & Gordon, 2020, p. 13). In the meantime, the controversial debate and harsh dispute regarding the victim’s marginal role and participation in the criminal justice system are unknown to continental European civil law jurisdictions due to the victim’s presence as a full party in criminal proceedings since the 19th century.

From a historical perspective, inquisitorial systems embraced the victim as a full party. However, adversarial systems have resisted victim participation in criminal proceedings or legal representation. The adversarial legal culture’s resiliency appears to stem from the interpretation of crime as a conflict between the State and the offender and the alleged bipartisan feature of the adversarial system. This creates the problem of crime victims’ visibility in the criminal justice system. Criminal justice systems intervene when a crime has already occurred and have developed an institutionalized ritual to ascertain facts and identify the broken rule and rule-breaker. However, most of the crimes have an injured individual. In these cases, criminal justice should have ritualized operations to contextually ascertain a “doer” and “sufferer” (Hentig von, 1948). Adjudicating law-breaking acts also should aim to identify a victim as “anyone who is injured or killed due to a violation of the criminal law” (Jerin & Moriarty, 1998, p. 1).

Key Terms in this Chapter

Victim Impact Statement: O ral or written statement presented by the victim to the judge during the sentencing stage after a guilty verdict. This statement describes the emotional and financial impacts the crime has had on the victim’s and their family’s lives.

Attrition: The disproportion between reported criminal cases and rate of convictions, measuring cases dropping out the criminal justice system.

Labeling: A conflictual sociopolitical process through which both criminal and victim labels are attached to individuals and their acts independently by effective and objective law-breaking acts.

Sociological Constructivism: Sociological perspective looking at society, social institutions and social order as a human product existing only as a product of human activity and that despite the objectivity that marks the social world in human experience, it does not thereby acquire an ontological status.

Therapeutic Jurisprudence: Investigation of outcomes from the application of substantive laws, legal rules, and legal procedures. The behavior of legal actors has therapeutic or anti-therapeutic consequences, both intended and unintended.

Secondary Victimization: Victim emotional suffering or psychological distress subsequent to primary crime victimization and due to either limited participation and diminished role in legal decision-making process or discrimination behaviors and victim-blaming attitudes of criminal justice system professionals or social service providers.

Marsy’s Law: Proposition 9, the Victim’s Bill of Rights Act of 2008, was passed in November 2008, amending the California constitution to provide victims with rights and due process.

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