The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

1. Introduction

1. Introduction

1.1 Purpose of the Report

Public discontent appears to be an inevitable and constant response to institutionalized justice. In 1906 Roscoe Pound noted that "dissatisfaction with the administration of justice is as old as our own legal system" and that "discontent has an ancient and unbroken pedigree" (Pound, 1906:1)[1]. In 1989 an Environics Research survey commissioned by the Solicitor General of Canada reached the disconcerting conclusion that the prevailing public sentiment with respect to criminal justice was that the system was "ineffective", "impotent" and "perceived by many to be. . . a joke, not to be taken seriously" (Vienneau, 1989). It may be that this public assessment is an unfair critique because it is based upon a naive assumption that the institution of criminal justice is primarily responsible for the perceived increase in crime, especially violent crime in North America[2]. Nevertheless, this growing public disdain suggests that there is a pronounced "legitimacy crisis" in the administration of criminal justice.

In attempting to understand public discontent, it is impossible to ignore the growing body of literature that chronicles the plight of victims of crime. In 1987 the Canadian federal Minister of Justice encapsulated this entire body of literature with his assertion that "the victim of crime is often a forgotten person in our criminal justice system" (Cleroux, 1987). Much ink has been spilt in the 1990s over the plight of this forgotten participant in the criminal justice system resulting in numerous piecemeal reforms (see for example, Elias, 1986; Fattah, 1986; Victims’ Rights Symposium, 1983–84; Hagan, 1983; Ziegenhagen, 1977). The reforms commenced with the creation of compensation schemes in the 1970s and have expanded to include victim-witness programs, social service referral programs, crisis intervention programs, victim advocacy programs and victim-offender mediation programs (Elias, 1986; Federal/Provincial Task Force, 1983).

Recognition of the plight of the victim first emerged in the 1960s with disturbing revelations concerning the treatment of rape victims in the criminal process. The 1970s was a decade of significant reform with respect to compensation for injury from crime and the 1980s was a decade of the institutionalization of victim participation in the process through the creation of rights and entitlements for victims. The 1990s was a decade of taking stock of the rapid changes in the status of the crime victim, and this report serves to outline the academic literature produced during that decade. The literature review produced in this report is not intended to be a sterile catalogue of articles and books, but rather it is intended to be a compendious summary of recurring themes found in the literature. The ultimate objective is to review the literature with the intent of discovering if victims’ rights reform has had any meaningful impact upon the criminal process and its unfortunate side effect of secondary victimization. The report will attempt to identify goals which have been achieved, goals which have not been realized and recommendations for enhancing the effectiveness of victims’ rights projects.

There are a myriad of issues which can be explored with respect to victims of crime; however, this report will primarily focus upon the role of the victim within the criminal process. Developments with respect to the participatory rights of the victim in the process form the core component of the report; however, some time will be spent examining the literature relating to the victims’ welfare rights (e.g., rights to counselling, financial assistance and protection). Social science perspectives will be briefly canvassed but will not be extensively discussed. In a nutshell, this review will attempt to determine if the extensive legal reforms of the 1980s have been the subject of favourable or critical assessment in the 1990s.

1.1.1 Scope of Inquiry

Initially, the literature review for the 1989–1999 time period was to focus on Canadian perspectives; however, it became readily apparent that Canadian scholars have taken little interest in the topic of victims’ rights. By contrast, at the international level, especially in the US, the topic has been explored ad nauseam, and the available literature would fill a small auditorium. In fact, the topic of victims’ rights has received so much academic attention in the US that legal casebooks have been published for teaching courses in victims’ rights (see, for example, Beloof, 1999). Accordingly, it was decided to expand the scope of this inquiry to include reference to international developments. With respect to the American literature, the bibliographical listing is not intended to be exhaustive; the available material is simply too voluminous (and repetitive) to be encompassed in a report of this nature. In addition, it also became apparent that it was necessary to include in the bibliography, reference to seminal articles and texts published before 1989. As in any discipline, contemporary works can only be understood by reference to earlier publications, and to a limited extent the collected bibliography will include reference to works which the author believes had a significant influence on the contemporary literature.

The relative dearth of Canadian legal scholarship designed to explore and assess victims’ rights issues remains a mystery. In contrast, the American scholarship may seem excessive. It is rare to find so many scholars all writing the same thing over and over again. In the American literature, scholarship and politics meet head-on and this has produced a prodigious amount of political rhetoric masquerading as legal or criminological scholarship. Andre Gide once said that "everything that needs to be said has already been said. But since no one was listening, everything must be said again" (Elias, 1993:1), and this statement perfectly describes the state of victims’ rights literature in the US and around the world.

The American influence with respect to the evolution of victims’ rights cannot be overstated. Although the bulk of empirical work evaluating the progress of the victims’ rights movement is American in origin, caution must be exercised before readily extrapolating the conclusions into a Canadian perspective. Despite the common legal heritage, there are sufficient dissimilarities between the Canadian and American legal cultures to call into question the assumption that the American results would be replicated in Canadian studies. Professor Matti Joutsen, a prominent European scholar in the area of victims’ rights, reflected on the exponential growth of American literature on the plight of the victim and noted the following:

Why did these first strands of victimology and the victim movement develop primarily in the US, and not in Europe? Possible reasons include the severity of the problem, the strength of research and an American activist tradition. . . It is true that people are victimized — and have problems as victims — everywhere in the world. However, the problems faced by victims in the criminal justice system in the US may well be greater than elsewhere. When this is combined with the sheer volume of victimization in the US, the problems may have become more visible. Second, the US has been the powerhouse of empirical (and, to a lesser extent, theoretical) criminology, and victimology-related sciences in general. Both academic and government funds are more widely available for research. The number of professional publications quickly spread the word of interesting phenomena and research results. Third — and this is the most nebulous reason — Americans may tend less than Europeans to wait passively for the government to define and deal with a problem. . . The common law tradition may make victims more prepared to assert their rights as citizens. There may also be a cultural factor: the tradition of self-help may make concerned citizens more prepared to organize ways of helping victims when the government seems unable (or unwilling) to do so. (Joutsen, 1991:785)

As will be discussed, the evolution of victims’ rights in Canada and the US has followed a similar path; however, the motivations underlying these similar journeys were different. Nonetheless, an evaluation of the American experience is indispensable to understanding the research that needs to be conducted in Canada. Most of what has been done in Canada to empower victims is based upon assumptions regarding the needs of victims and the most effective way to address these needs. Much of the literature in the 1990s, whether Canadian or international, suggests that crime victims have not been successfully integrated into the criminal justice system — with the exception of some successful programs, victim dissatisfaction remains profound. Therefore, it is clear that it may be time to evaluate some of the assumptions we have relied upon in law reform measures adopted to date. To that end, the American literature must be reviewed in order to gain a sense of the type of evaluative studies that must be undertaken in Canada.

1.2 Source of Information

In preparing this report the literature was collected from many diverse sources: 1) the library catalogues at York University, The Library of Congress and the University of Toronto; 2) various periodical indexes including PsychInfo, Sociological Abstracts, Social Sciences Abstracts and Frances Index; 3) legal periodical indexes including Current Law Index, Index to Canadian Legal Literature — Journals and Text, Index to Canadian Legal Periodical Literature, Westlaw CJ-TP Criminal Justice; 4) Government websites; 5) Private Organization websites including International Victimology Website (www.victimology.nl/rechts.htm), Access to Justice Network (www.acjnet.org/victims), Office for the Victims of Crime (www.ojp.usdoj.gov/ovc), NOVA (www.try-nova.org), CAVEAT (www.caveat.org), Canadian Resource Centre for the Victims of Crime (www.crcvc.ca), Canadian Criminal Justice Association (home.iSTAR.ca/-ccja/angl/index/shtml).

Internet research posed unique problems in that an enormous amount of literature is contained in the websites of various victims’ rights groups; however, it is impossible to truly ascertain the weight which should be given to these articles. (It should be noted that the International Victimology Website is one of the best sources for current evaluative studies by reputable scholars.) Nonetheless, Internet research raised an interesting question which is beyond the scope of this report; that is, what type of information does the public rely upon in developing opinions with respect to the role of the victim in the criminal process?

The question arose as a result of the easy access to literature on the Internet as opposed to the obstacles presented by the collection of traditional, textual materials. In collecting the materials identified by the various indexes, it became apparent that a substantial amount of material was not readily available or accessible to the public. Even government document libraries did not have full collections of relevant government reports. Of course, materials on the Internet are readily accessible and it is these types of materials which are presumably being read by most members of the public.

This problem in collecting traditional scholarship raises the question of the impact that academic scholarship has on a movement which is populist in nature. Despite the volume of academic literature being produced at the international level, it may be the case that this literature is not accessible to the very audience being discussed in the literature. Clearly, popular media and Internet access is having a far more significant impact on public and victim perception of the criminal process, and a review of popular literature may provide greater insight into the paramount issue of victim satisfaction with the process. Although it is acknowledged that media hysteria can trigger moral panic that bears no relationship to the reality of an emerging social problem, it is recommended that a literature review of popular media be commissioned. The thorny topic of the relationship between victim perception and popular media presentation of crime issues is beyond the scope of this report.

Finally, it should be noted that, for ease of reference, there is a bibliographical listing located at the end of each of the chapters of this document. On occasion, reference is made to a book or article that is not directly related to victims’ rights and as such the reference is not included in the bibliographical listings which are exclusively devoted to victims’ rights literature. For these few incidental references, the citation for these books or articles is found directly in the body of the report closely following the quotation or reference. Also, where a reference to another source is made within a quotation, this reference will not be found in the bibliographical listings.

1.3 Victimological Concerns and Victim's Rights

Another topic beyond the scope of this report concerns the insights gained from the pure academic discipline of victimology. Victimology is concerned with the relationship between offender and victim and the characteristics of each that can serve as predictors of future victimization. The birth of victimology in the 1940s may have been a contributing factor in the development of the victims’ rights movement in the 1960s, but the academic discipline and the political movement are not similar entities. The literature reviewed for this report concerns the sole issue of crime victims and their involvement in the criminal process. Although some victimologists have studied this issue, the vast majority of victimological literature relates to the study of the victim as social actor and not legal actor.

Accordingly, this report excludes from consideration the vast body of literature that relates to victimization surveys, crime prevention studies and victim-offender characteristics. In addition, there is a significant body of literature, including Canadian literature, dealing with the attributes of particularly vulnerable victims such as children, the elderly and battered women; however, a review of this literature is beyond the scope of this report. Although it is clear that victimological research should be an animating force behind law reform, it must be recognized that an ever-widening gap is developing between the academic discipline and the social movement. As Professor E. Fattah has noted:

At the First National Conference of Victims of Crime (held in Toronto, 1985) the victim movement was called the growth industry of the decade. In the United Kingdom it is considered the fastest-developing voluntary movement. Victim groups and associations are mushrooming all over North America and Europe. Inevitably, this fantastic growth has had a significant impact on victimology. Victimology meetings are no longer scholarly meetings where the findings of scientific research on victims are presented and discussed, they have become a forum for political and ideological rhetoric. They mirror the transformation of victimology from an academic discipline into a humanistic movement, the shift from scholarly research to political activism… Willingly or unwillingly, consciously or unconsciously, victim lobbyists are playing into the hands of the neo-conservatives and the neo-classicists and are helping propagate the ideas and philosophy of right-wing criminology. In such a climate, scientific inquiry into victim-offender interactions and the victim’s contribution to the genesis of crime is likely to be summarily dismissed as an attempt to blame the victim. (Fattah, 1989:59–60)

Thus, pure victimological literature is left to be reviewed another day, and this report will focus exclusively on literature chronicling the role of the victim in the criminal process.

Bibliographical Materials