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

2. History and Theory

2. History and Theory

2.1 Introduction

Most of the available literature relating to victims’ rights concerns the proper theoretical understanding of the role of the victim. Beyond evaluating the proper sphere of victims’ rights by the yardstick of philosophical theories of punishment, much of the commentary revolves around the historical position of the victim in the criminal process. It is often argued that historically the victim played a central and controlling role in the administration of criminal justice and therefore there are no theoretical obstacles to the re-integration of the victim in the process. Of course, this line of argument is based upon a genetic fallacy in that a proper historical foundation does not inexorably lead to the conclusion that there exists a proper contemporary foundation.

In reviewing the literature available on this topic, extensive reference has been made to pre-1989 articles and books as history and theory were the primary concerns of the early literature. By 1989, the historical and theoretical perspectives had been exhaustively canvassed, and very little new ground was broken in the 1990s. Nonetheless, the literature of the 1990s continued to explore these perspectives despite the fact that nothing unique or earth shattering was revealed in the contemporary writings. In the introduction to this report it was noted that much of the 1990s literature attempted to evaluate the projects and programs established in the 1980s for crime victims. Although there is a significant body of this evaluative literature, the majority of literature in the 1990s continued to dwell upon the theoretical concerns that had been exhaustively canvassed in previous decades.

Finally, it should be noted that the bibliographical listings provided herein contain articles which canvass theoretical issues but which may also contain concrete evaluations or concrete proposals for law reform. Accordingly, some of the listed readings will also be included in the bibliographical listings found in the other parts of this report.

2.2 Discussion

Providing support and respect for those victimized by criminal acts, especially acts of violence, is a moral position that has been almost universally endorsed throughout the published literature. Nonetheless, there is great reluctance to convert this sympathy into structural legislative reform because law makers and legal professionals see the victim as an upstart who is trying to gain entry into an institution that is not designed for the remedy of private interests. Nothing could be farther from the truth. If one views the victim’s role divorced of historical considerations then it is understandable that this player will be seen as an intruder. However, as Robert Elias has noted, "[w]hile we have recently isolated crime victims for special attention, we have only rejuvenated their much more prominent past from a relatively long dormancy" (Elias, 1986:9). In fact, from the historical perspective it is the defence lawyer and the public prosecutor who are the historical upstarts; prior to the mid-19th century, criminal trials proceeded without the intervention of legal professionals except for the judge (Langbein, 1978).

2.2.1 Historical Origins of Contemporary Criminal

Justice The historical record reveals a fairly simple pattern in the evolution of Anglo-American and Canadian criminal process. Although greater elaboration will be provided at a later point, the simple historical pattern is aptly summarized by Professor William McDonald:

The age-old struggle of civilization has been to persuade people not to take justice into their own hands but rather to let their vengeance and righteous indignation be wrought by the law. Western civilization had by the Middle Ages succeeded in substituting private prosecutions for blood feuds. The next step was to replace private prosecution with public prosecution, while asking the victim to forego whatever satisfaction he might derive from personally prosecuting his transgressor and settling for the more intangible satisfaction of knowing that justice would be done. Now, the modern criminal justice system operates in an age of computers and instant telecommunications, disposing of large numbers of cases without trial and without bothering to give the victim even the minimal satisfaction of knowing what happened to his case and why. (McDonald, 1976:663–4)

In a brief report of this nature, I cannot do justice to the historical record (nor do I naively believe that history provides only one clear and incontrovertible narrative, although the literature appears to present a rather consistent historical perspective). However, the following summary does demonstrate the historical primacy of the victim.

The "golden age" (Schafer, 1977) of the victim lasted into medieval times. Prior to the 13th century revolution in legal process, all wrongdoing (with the exception of a few collective crimes relating to public order and religious taboo) was perceived as tortious (i.e., private) in nature. Procedural forms contemplated confrontation between accused and accuser, and legal remedies emphasized restorative justice. Sir Henry Maine (1861) characterized the original form and structure of criminal law as follows:

Now the penal laws of ancient communities is not the law of crimes; it is the law of wrongs, or, to use the English technical word, of torts. The person injured proceeds against the wrong-doer by an ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. (Maine, 1861:328)

Early attempts at state regulation of the field of wrongdoing was largely premised upon eradication and containment of the blood feud (the "blood" refers to kinship ties and not to the barbarity of the feud). The first written law in England (between 600 and 615 A.D.) reflects this process of converting the feud into a system of composition in which every injury attracts a specified level of compensation. As this developing state set up tribunals for the assessment of injury and compensation, it required that offenders pay court and administrative costs on top of the designated compensatory award. Recourse to these tribunals was not mandatory, and the Norman invaders had to employ another artifice to curtail the disruptive impact of constant feuding. The Normans brought with them the Germanic conception of the King’s Peace, and any injury to a person or in a place that was protected by the King’s Peace converted the private injury into a public wrong. This conversion enabled the emerging state to take complete control over a conflict between accuser and accused, and resulted in the transformation of a compensatory award into a fine for the benefit of the royal coffers. Eventually the King’s Peace covered all of England and all of its inhabitants. Professor Schafer concluded that this transformation of the law of wrongdoing into criminal law was nothing more than a power play in which the state enriched itself at the expense of the victim:

It was chiefly owing to the violent greed of feudal barons and medieval ecclesiastical powers that the rights of the injured party were gradually infringed upon, and finally to a large extent, appropriated by these authorities, who exacted a double vengeance, indeed, upon the offender, by forfeiting his property to themselves instead of to his victim, and then punishing him by the dungeon, the torture, the stake or the gibbet. But the original victim of wrong was practically ignored. (Schafer, 1977:15–16)

Historians are not clear on how this complete submergence of the law of wrongdoing into the law of crime occurred, but many historians agree with Professor Schafer that the creation of criminal law was an economic concern — in the 13th century judicial fines made up one-eighth of all revenue to the king. Two well-respected legal historians, Pollock and Maitland (1968), believe that greed was only one factor in this progression from tort to crime, and they list other factors such as the dilution of the ties of kinship, jurisdictional squabbles between church and king and the inequities found in the compensatory tariffs. However, other commentators believe that the creation of the law of crime was not a conscious process and was simply an incidental by-product of continual resort to royal tribunals for the assessment of compensatory awards.

Whatever the reasons may be, by the 14th century the victim was no longer the focus of attention, and compensation was not a stated purpose of the criminal process until its reemergence in Europe in the 19th century. The obliteration of the victim’s interest in restorative or corrective justice was so complete that it took a 19th century statute to once again recognize the right of a victim’s family to compensation in any case of wrongful death [Lord Campbell’s Act 1846 (U.K.) c. 93]. Oddly enough, even though victim satisfaction became an irrelevancy in the criminal process, the common law still relied upon private enforcement and prosecution as the means for upholding the public order. Deep into the 19th century, responsibility for law enforcement fell upon the community and responsibility for prosecution fell upon the victim and his/her representative. Therefore, the victims were saddled with enforcement and prosecutorial responsibilities for a process that did not address their needs or their losses.

Victim participation was the paradigm of the adversarial trial and has been for close to one thousand years. A paradigm shift took place in the 19th century with the creation of the first public police force and public prosecutorial branch of government. These innovations were largely the product of "market-force" arguments (Cardenas, 1986). The inefficiency of private prosecution for a rapidly growing industrial state prompted the take-over of criminal law enforcement by agents of the state. Nils Christie sees the historical record as an example of the stealing of criminal conflicts from the real parties to the conflict, and he notes that "lawyers are particularly good at stealing conflicts" (Christie, 1977:4). The net product of this conflict-stealing is summarized by Professor Christie as follows:

So, in a modern criminal trial, two important things have happened. First, the parties are being represented. Secondly, the one party that is represented by the state, namely the victim, is so thoroughly represented that she or he for most of the proceedings is pushed completely out of the arena, reduced to the triggerer-off of the whole thing. She or he is a sort of double loser; first, vis-a-vis the offender, but secondly and often in a more crippling manner by being denied rights of full participation in what might have been one of the most important ritual encounters in life. The victim has lost the case to the state. (Christie, 1977:3–4)

The historical literature does not suggest that the state has no legitimate interest in defining and enforcing crime. It is always recognized that criminal wrongdoing does significantly affect the public order, and this dimension is not adequately reflected in private litigation. As Robert Nozick (1974) has contended:

Private wrongs are those where only the injured party need be compensated; persons who know they will be compensated fully do not fear them. Public wrongs are those people are fearful of, even though they know they will be compensated fully if and when the wrongs occur. (Nozick, 1974:67)

Criminal wrongdoing affects the public order. It thus engages a public interest that extends beyond any individual interest, because people will experience insecurity, fear and the erosion of trust notwithstanding the knowledge that their personal victimization can be compensated in a civil action. However, the critical point is that even once we recognize the public dimension of wrongdoing, most writers still contend that this does not erase the private interest calling for vindication. Twentieth-century criminal justice has allowed this private interest to be completely overrun by the state’s interest, and we have forgotten Blackstone’s simple insight that "the public good is in nothing more essentially interested than in the protection of every individual’s private rights" (Blackstone’s Commentaries 1803, Book I, Vol. II:139). Although criminal law engages a public interest beyond the interests of the victim, this does not justify or necessitate the treatment of the victim as "evidentiary cannon fodder, or witness or claimant, not of citizen with participatory rights and obligations" (Cavadino & Dignan, 1996:155).

Does the recognition or re-discovery of the victim’s compelling private interest inevitably lead to the re-emergence of private prosecution or full victim participation in a public prosecution? Not necessarily. Most commentators acknowledge that private prosecution is still the cornerstone of our legal heritage but go on to also recognize that despite its availability it is rarely employed. Therefore, most commentators agree that it is reasonable to conclude that public prosecution will remain the norm even in an era in which the victim’s private interests are recognized. However, the outstanding question still subject to debate in the literature is whether victim participation entails the right to exercise some degree of control over the process despite the delegation of prosecutorial responsibility to a public official.

In discussing victim participation, most writers only consider participation at the sentencing stage. Some writers advocate participation and control at the pre-trial stage (Kennard, 1989; Welling, 1987, 1988), but fewer writers consider participation at the trial stage even though there is a considerable amount of literature chronicling the ways in which European victims participate in criminal trials (see Chapter 4.0 of this report). Unlike the European process, the Anglo-American-Canadian trial process is divided into two distinct phases: the guilt/innocence determination and the sentencing phase. It appears that most Anglo-American-Canadian scholars assume that victim participation and control would be somewhat muted at the trial phase for the simple reason that the trial process is governed by distinct constitutional norms. Legal guilt is distinct from factual guilt and the victim, as surrogate prosecutor, is more driven to establish factual guilt regardless of whether factual guilt is consistent with legal guilt as defined by our common law and constitutional heritage. The bottom line is that in creating the institution of public prosecutors we have entrusted these public servants with the task of identifying the perpetrator of a crime in a manner in accordance with law. Procedural control over the trial process will remain with the prosecutor even in an era of recognition of victims’ interests as the commentators do not appear to think that the victim can contribute to the actual trial process in a constitutionally sound manner.

However, once the state has proved in a manner in accordance with law that it has identified and apprehended the true perpetrator then the victim’s interests need no longer remain dormant and invisible. At this stage of the proceedings, the presumption of innocence has been ousted and there is no longer the danger that private interests would skew the delicate process of determining legal guilt or innocence. The sentencing process serves as an expression of the community’s denunciation of the criminal act and surely the person most directly and dramatically affected by the criminal act should have meaningful input into the expression of this sentiment. Accordingly, many writers conclude that active and meaningful participation by the victim at the sentencing stage should be the norm. It is, however, important to understand from the outset that no consensus exists in the literature as to whether providing the victim with some procedural control over the sentencing phase of the process entails more than last-minute input via a victim impact statement. For others, it is argued that sentencing is directly affected by both the charging process and the plea bargaining process, and therefore procedural control at the sentencing phase will entail some degree of control at these pre-trial stages (Kennard, 1989; Starkweather, 1992).

The arguments in favour of victim participation in the criminal process have been endlessly repeated in the literature of the 1970s, 80s and 90s. Conveniently, Professor Erez has recently provided this summary of the position advocated in this vast body of literature. She states that:

Supporters of the victim’s right to participate in the criminal justice process have presented various moral, penological and practical arguments in its favour. Some argue that the effectiveness of sentencing will increase if victims convey their feelings, and that the process will become more democratic and reflective of the community’s response to crime (Rubel, 1986). Victim participation will provide recognition of the victim’s wishes for party status and individual dignity (Henderson, 1985). It will also remind judges, juries and prosecutors that behind the ‘state’ is a real person with an interest in how the case is resolved (Kelly, 1987). Victim integration will, it is said, result in increased victim co-operation with the criminal justice system, thereby enhancing system efficiency (McLeod, 1986), while the provision of information on the harm suffered by the victim will increase proportionality and accuracy in sentencing (Erez, 1990). Fairness also dictates that when the court hears, as it may, from the offender, the offender’s lawyers, family and friends, the person who has borne the brunt of the offender’s crime should be allowed to speak (Sumner, 1987). (Erez, 1994:18)

Professor Erez also provides a summary of the arguments against increased victim participation:

The objections to victim input in sentencing center mostly on legal arguments concerning the appearance of justice and actual justice, and on practical concerns (Erez, 1990). Some argue that allowing victims’ input will undermine the court’s insulation from unacceptable public pressures (Rubel, 1986) or will result in substituting the victim’s subjective approach for the "objective" one practised by the court (Victorian Sentencing Commission, 1988). Conceivably, similar cases could be disposed of differently, depending upon the availability of a VIS to the judge (Hall, 1991). Allowing victims to express their wishes concerning the offender will also inject a source of inconsistency and disparity in sentencing dependent on the "resiliency, vindictiveness or other personality attributes of the victim" (Grabosky, 1987). Because victims are thought to be as often vindictive as forgiving, their participation will result in both disparate treatment and increased sentence severity (Hall, 1991). Opponents of victim integration in the criminal justice process often portray the victim as a vindictive individual whose main objective in providing input will be to ensure severe punishment of the offender. With regard to the victim’s statement of opinion (on the disposition of the offender) it has been argued that the victim’s opinion is "irrelevant to any legitimate sentencing factor, lacks probative value in a system of public prosecution, and is likely to be highly prejudicial" (Hellerstein, 1989). (Erez, 1994:19)

Although the arguments in favour of victim participation have been advanced far more often than the arguments made by detractors, we have not yet seen full victim participation at the sentencing phase in most jurisdictions. In 1988 the Canadian Criminal Code was amended to allow for the introduction of victim impact statements, but even with the availability of this forum for presenting information to the court, the victim’s interests remain largely invisible even at this stage.

Academics and lay people may accept the legitimacy of victim participation, but legal professionals have been more influenced by the arguments made by the detractors. Lawyers and judges appear lukewarm in embracing victim participation and this has been justified on the basis that it contradicts the justifiable goals of sentencing. Some think that the victim’s interest is so inextricably linked to vengeance that it cannot be accommodated in a modern and civilized criminal process.

Even if the philosophical objections of legal professionals are unfounded, sociological perspectives suggest that legal professionals will be resistant to increased victim participation due to institutional demands and the reluctance to consider institutional change (Erez & Laster, 1999; Davis, Kunreuther & Connick, 1984). Professor Erez has noted:

Reports from jurisdictions that have introduced victim participatory rights suggest that allowing victims’ input into sentencing decisions does not raise practical problems or serious challenges from the defense. Yet there is a persistent belief to the contrary, particularly among legal scholars and professionals. The disagreement between social scientists and legal scholars concerning the appropriateness of victim input into sentencing, or its possible effects, is due primarily to the socialization of the latter group in a legal culture and structure that do not recognize the victim as a legitimate party in criminal proceedings. This belief is reinforced by the practice of different methods of study and argument by legal scholars, compared to their counterparts in social sciences. (Erez, 1994:28–9)

For legal professionals, the pursuit of dispassionate justice does not readily accommodate the emotional needs of crime victims. This is reflected in the British Columbia Court of Appeal’s analysis of the victim impact statement. The Court stated:

[Victim impact statements] do not purport, and I do not believe they were ever intended, to require the sentencing court to take a retributive approach when sentencing an offender… This court concluded that there is no role for revenge in a principled system of sentencing… Such a system requires a balanced, objective approach, separate and detached from the subjective consideration of retribution. The dilemma of the sentencing court is to balance a proper consideration of the consequences of a criminal act against the reality that the criminal justice system was never designed or intended to heal the suffering of the victims of crime. [R. v. Sweeney (1992), 71 C.C.C. (3d) 82 at 95 (B.C.C.A.)]

Arguably, this excerpt reflects the deep lack of understanding that courts have with respect to theories of punishment. Retribution is dismissed as mere vindictive savagery, and the court is then left with pure utilitarian justifications for punishments which do not readily accommodate the interests of victims (utilitarian justifications such as rehabilitation and deterrence speak to the ‘good’ of society at large and not to individual or private interests). A more realistic characterization of sentencing theory is found in these often-quoted words of the Ontario Court of Appeal:

The true function of criminal law in regard to punishment is in a wise blending of the deterrent and reformative, with retribution not entirely disregarded, and with a constant appreciation that the matter not merely concerns the Court and the offender but also the public and society as a going concern. [R. v. Willaert (1953), 105 C.C.C. 172 at 176 (Ont. C.A.)]

This comment was made in 1953 when the deterrent and reformative aspects of sentencing were ascendant. Since then these utilitarian justifications have come under attack with deterrence being viewed as a weak theory due to its incapability of being verified or falsified, and rehabilitation being dismissed as an unattainable ideal. Under the current approach to the ‘wise blending’ of sentencing principles, retribution has once again resurfaced as the predominant justification for punishment but it is masked in semantic word games so as to avoid the perplexing question of how to reconcile retribution with our moral aversion to vengeance. In R. v. M (C. A.) the Supreme Court of Canada endorsed the importance of taking a retributive stance at sentence and held as a matter of law that there does not exist a 20 year maximum ceiling for sentencing crimes of violence. The Court stated:

It has been recognized by this Court that retribution is an accepted, and indeed, important, principle of sentencing in our criminal law… Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances. Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions…

The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance. . . As both academic and judicial commentators have noted, vengeance has no role to play in a civilized system of sentencing. Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct…

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of the particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [R. v. M (C.A.) (1996), 105 C.C.C. (3d) 327 at 366–9 (S.C.C.)]

Whether we now call retribution by the names of denunciation, public revulsion or just deserts, the re-emergence of retributive sentencing requires us to rethink the age-old problem of the relationship between the victim and retribution. By returning to retributive justifications for punishment we have provided a principled foundation for the introduction of victim’s interest into the criminal process because it is only the recent utilitarian justifications of deterrence and rehabilitation that, by definition, exclude private interests as irrelevant to the cost-benefit analysis that characterizes those practices. Retributive thinking revolves around fundamental notions of the restoration of balance and a proportionate response to injury, and this penological perspective invites, indeed embraces, victim participation in the process.

A great deal of the literature grappling with the relationship between victims’ rights and retributive theory was written prior to 1989 and for the most part scholars concluded that retributive theory and victim participation are philosophically compatible. In the 1990s this issue was revisited in an extensive debate over the justifiability of introducing victim impact statements in capital sentencing cases. With the death penalty looming in the background, the issue of victim participation within a retributive framework triggers fears of lynch-mob justice. However, with the US Supreme Court ruling that victim impact statements are properly admissible at a capital sentencing hearing in 1991 (Payne v. Tennessee 111 S. Ct. 2597), many commentators followed suit and concluded that victim impact evidence is "ethically permitted in a theory of retribution" (Sperry, 1992; Cronille, 1993).

Regardless of whether or not victim participation fits neatly within current penological theory, some lawyers and criminologists suggest that we must be hesitant to encourage this input because victim participation will invariably result in harsher sentences. Considering that North American sentencing practices are significantly harsher than European approaches, and that our prisons are already overcrowded, a general increase in sentence severity would be an undesirable development. However, neither the empirical evidence nor the case law conclusively show that victim impact statements to date have resulted in longer sentences (see Chapters 3.0 and 5.0 of this report). In fact, it has even been argued that "if victims’ actual injuries were systematically ascertained, hostility, and accordingly, severity of punishment, would decrease" (Zeigenhagen, 1977). In 1989, Karen Kennard wrote:

That observers may assume that crime victims are motivated by a desire for vengeance is understandable. However, commentators have pointed out that no evidence supports the assumption that victims uniformly seek harsh penalties. In fact, the evidence is to the contrary.

A 1981 case study of one hundred criminal cases found that, when victims of various crimes were given the opportunity to select from several viable sentencing alternatives, all but one were willing to accept alternatives to incarceration. In addition, a study of 417 sexual assault victims in a metropolitan Ohio county revealed that victims who implicitly recognized that they had played some role in the offense had a slight tendency to make lenient sentencing recommendations. Moreover, when the defendant was not a repeat offender, these victims’ recommendations of leniency influenced the judge’s ultimate sentencing decision.

Finally, the experimental program in Florida that permitted crime victims to sit in on pretrial settlement conferences revealed that victims generally did not demand the maximum authorized punishment and most often concurred with the disposition the attorneys proposed. The available evidence therefore suggests that involving crime victims in the criminal disposition process will not necessarily encourage retributive attitudes. If anything, many victims may exercise their influence in the direction of leniency. (Kennard, 1989:446–7)

As will be discussed later, there has been little evidence in the literature of the 1990s to call into question the conclusion reached in the 1980s that victims of crime are not unduly harsh and punitive in their approach to sentencing. In general, it has been concluded that victim participation has little impact on sentencing outcomes.