Victims Role and Rights in Criminal Law - Research Paper Example

 A Contemporary Criminal Justice Issue: Victims’ Role and Rights in Criminal Law A Discussion Paper Introduction Criminal punishment, in the point of view of the American society, is basically a communicative endeavor. It seeks not only to communicate criticism, the fairly abstract reproving message that “You have done wrong” (Duff & Marshall, 2004, 39), but to disseminate and to convince the criminal to accept a concrete understanding of his offense as a specific form of public ‘wrong’— ‘a wrong, that is, against its individual victim (when there is one), but also, through the victim, against the political community whose criminal law he has violated and to which both he and the victim belong’ (Bacigal, 2008, 206). This communicative endeavor is realized through a multi-stage procedure (Duff & Marshall, 2004, 39): …through the criminal trial, as a process that calls the defendant to answer a charge of wrongdoing, and the conviction that follows on proof of his guilt; through the sentencing discussion (involving the victim if possible, as well as a suitable representative of the polity, such as a probation officer) that should ideally follow conviction, and that would focus both on the past crime as a wrong that the offender must confront and on the question of what sentence would constitute an appropriately reparative and apologetic penance for that wrong; and through the punishment that is then imposed on or demanded of the offender. Christopher Ciocchetti tenders a major dispute to the communicative version of criminal punishment that the American society protect (certainly, to any substantive penal theory that asserts to seriously consider victims’ rights), and recommends a means of reforming that version to address that challenge (Bacigal, 2008). Ciocchetti’s description, though, still confronts an account of the dispute that he raises for our version. What is required to address that challenge, this paper will argue, is a forceful justification not only of the rights of victims, but of their obligations, a justification that lies on the reasonable form of communitarianism to which our version advances (Hall, 2008). Such a justification will create liberal spikes, but this paper will argue that it is vital to a satisfactory substantive interpretation of the criminal law as a unique institution. Background of the Problem The specific problem on which Ciocchetti mostly concentrates on is, as he emphasizes, only one of a set of problems about the roles or obligations that crime victims should be assumed to possess (Hall, 2008): do they have a moral obligation, and should they have a legal responsibility, for example to testify of or report the offense; to help the law enforcement in its investigation; to provide testimony in court; to engage in an arbitration or post-conviction discussion with the criminal; to bargain, and acknowledge, some form of apology and reparation from the criminal (Hall, 2008)? The criminal law describes the crime of an offender as a specific form of public immorality (LaFollette, 2002); but supposing that the victim disputes that description? Such disagreement may assume different forms (LaFollette, 2002). At its most basic, it could refute that what the law denounces as an offense is wrong at all. That could be the rejoinder of the victim, for instance, of failed voluntary euthanasia, or of those who got injured in the unanimous sadomasochistic endeavors that were condemned to be criminal in R. v. Brown (Bacigal, 2008). Dispute may otherwise refute the public nature of the offense, without refuting that it was an offense, because the victim refuses the power of this legal institution completely and hence its assertions to proclaim and denounce any public wrongs (Duff & Marshall, 2004). An individual subject to an exploitative and corrupt administration may decline its law’s depiction of the actual offense she has endured as a crime because she refutes its power to declare on such issues at all (Duff & Marshall, 2004). On the other hand, a victim may consider this wrong as an entirely private issue: a husband whose wife commits infidelity in a state that criminalizes infidelity may claim that infidelity is not a public wrong but a private one—that it is a problem between him and his wife (Duff & Marshall, 2004). Opposition may otherwise refute the law’s portrayal of the offense, which the victim consents are a public offense: a rape victim might view sexual harassment as an offense that does not diverge considerably from other forms of aggressive physical assault (Hall, 2008). Or, ultimately, the dissident could refute that criminal trial and punishment are the proper or suitable responses to what is established to be a public offense; either that they are suitable in this instance, or that they are suitable generally (Cook, 2001). For example, abolitionists who are crime victims might disagree on a number of these arguments (Hall, 2008): although they view what was done to them as an offense, instead of a simple harm, they could refute that it is a public offense, and disagree to the state ‘taking’ it from them; or they could refute that conviction and punishment are fitting answers to it (Hall, 2008). If people viewed offenses that victimize particular individuals or groups merely as private offenses against these victims, such views of victims would create no dilemma (Duff & Marshall, 2004). The function of the criminal law according to such a perception is apparently to safeguard possible victims against such offenses and to assist them in obtaining satisfaction when they experience such offenses (Duff & Marshall, 2004); but it should not impose defense or satisfaction on people who do not ask for it. It must be completely up to the victims whether they would like the issue to be settled through the criminal courts (Bacigal, 2008). Or, if people rather view crimes as public offenses in the sense that they are offenses against the public or the community as separate from their individual victims, such views of victims would not bother us, because punishment would not be presumed to stand for the victim (Bacigal, 2008). The criminal justice system would speak for the wrong that the community or the individual had endured; it would not convey any idea of the offense done to the individual victim, and hence could not contradict his idea of that offense (Hall, 2008). While the victim could dispute this explanation of the public wrong, that dispute would have no higher assertion to be expressed than that of any other individual (Hall, 2008). But such disagreeing victims become challenging for justifications that maintain that crimes should be identified as wrongs against their identifiable victims, and by means of them, against the community (Cook, 2001). Such explanations depict the criminal process of trial, condemnation, and punishment as what is due to the injured party, as well as to the larger community, and to the criminal, if the wrong done will be taken seriously (Cook, 2001). In fact, disagreeing victims provide new impetus to the issue raised by abolitionists who tag along with Nils Christie in fretting about the state’s ‘stealing’ of ‘disagreements’ from those actually involved in an offense (Duff & Marshall, 2004). In political communities typified by broad and profound normative conflict, how can the offense done by the criminal be both “’ours’, as a community, and ‘hers’, as an individual victim, when ‘we’ and she might differ more or less radically in our understanding of it” (Duff & Marshall, 2004, 40)? It should be apparent that such instances, and the other likelihoods of victim dispute emphasized above, tender a challenge not just to the specific communicative theory that the American society protect, but to any penal theory that asserts to seriously consider victims and their rights (Cook, 2001). Debates about the appropriate duty of victims in the criminal justice system, and of what is due to them, normally carry on the inherent theory that victims will view themselves as having been offended in the manner that the criminal law views them (Cook, 2001). The issues then involve the contribution and responsibility that victims must have in the criminal process of prosecution and conviction, and the only forms of conflicts that are frequently identified as problematic are those in which the injured party pursues a harsher, or milder, punishment than others would believe tolerable (Duff & Marshall, 2004). But if victims are taken seriously, not just as reactive victims of wrongs who merit sympathy, but as citizens who should be attended to and heard per se, should we not address more cautiously their understandings of their offenses, and most cautiously when their understandings differ from those represented in the law? Voice and Judgment: Who owns them? The criminal justice system defines particular forms of behavior as public wrongs that deserve a reproving, penalizing, public response (Duff & Marshall, 2004). It arises from this that, whereas the realization of that response is mostly the obligation of different types of authorities (law enforcers, prosecutors, judges), citizens also have a duty to help that response: ‘to report crimes, to assist their investigation, to serve as jurors, to give evidence in court’ (Duff & Marshall, 2004, 40). That duty will at times, most apparently when it concerns jury service, involve an interpretative task: individuals, as jurors, usually have to contribute in the understanding of the law in relating it to the specific case (Duff & Marshall, 2004). For example, a jury may have to make a decision whether the defendant’s discount of a “substantial and unjustifiable risk” (Hall, 2008, 63) included “a gross deviation from the standard of conduct that a law-abiding person would observe,” (Hall, 2008, 63) so as to make a decision whether she behaved thoughtlessly; or whether the appropriation of the defendant of another’s property was fraudulent, so as to make a decision whether he is culpable of stealing (Hall, 2008). It is obvious that such resolutions demand a substantive decision by the jury; and it must be apparent that in making that decision individual jurors must intend to reflect and arbitrate, ‘not each for herself as an individual, but collectively as a ‘we’’ (LaFollette, 2002, 252) whose obligation it is to resolve the value of the public values of the polity as relevant to the particular case. At this point there is sufficient room for conflict both about how wide-ranging and inflexible such obligations are, and about what power they must have. For instance, just what obligations do people have to report crimes or to help in their investigation? Which of citizens’ moral or civic duties to help the criminal justice system should be made official duties in order that citizens themselves will be legally responsible to punishment should they fail to release them? It should also be remembered, apparently, that such duties could be unconditionally emphasized only in communities whose criminal processes and laws were absolutely justifiable (Hall, 2008). To the point that the criminal law is fundamentally flawed in its substance, in its processes, in the assertion it has on the loyalty and conformity of all citizens, those obligations of the citizens become more complicated and more capable (Cook, 2001). However, to the point that the criminal law of a liberal polity can appropriately declare to speak for the citizens, as citizens who contribute in the principles it represents, they should acknowledge that they have obligations to support and help it that transcend the duty not to commit what it condemns as crimes (Cook, 2001). The more self-effacing assertion made previously, that if victims engage in the criminal process they should articulate as citizens with regard to whatever understandings of the polity’s principles can count as their understandings (Duff & Marshall, 2004), is, as had been emphasized, an adequate response to claim of Ciocchetti that the law should generally comply with the dissenting victim’s sensible and sincere understanding (Duff & Marshall, 2004). Nonetheless, more should be said about the repercussions of the more grand assertion discussed above, since the discussion of Ciocchetti of dissenting victims does have a vital significance in this paper. To speak, as people have spoken, of victims’ obligations is to speak of their moral and civic duties, and of the duties that they would have or already have under a rightful law system (Bacigal, 2008). There is, as emphasized, room for conflict about the point to which citizens’ civic obligations in general must be transformed into justifiable duties, and there is even extra room for uncertainty about this in the victims’ case. Some causes of this are evident enough (Duff & Marshall, 2004): ‘given what is often actually involved in appearing as a prosecution witness in court, given what might well be involved in facing the person who wronged one, should we really impose a legal requirement on victims to do such things on pain of criminal conviction and punishment if they do not? (p. 41)’ The theoretical premise of these explanations is, nonetheless, lessened when we take note that the moral or civic duties of victims rest on the nature and legitimacy of the present criminal justice system (Duff & Marshall, 2004). It could possibly be claimed that before rigorous legal obligations are imposed on victims, involved individuals should guarantee that the criminal practice is such that their release would not be more agonizing or distressing than it has of its character to be (LaFollette, 2002). But an additional, valued rationale against changing such moral or civic obligations into legal responsibilities also surfaces from the discussion of Ciocchetti (Bacigal, 2008). Conclusions Part of the relevance of the role of the victim in the criminal procedure, this paper proposed, rests in the reality that he can express himself in the first-person singular and also in the first-person plural; he can testify and witness the character and repercussions of the offense inflicted to him. However, this creates a challenge in the case of a dissenting victim, who assumes a genuine and sensible perspective of the crime that diverges from the commanding perspective articulated by the court and the law, and who is not convinced of that commanding perspective. She cannot, as this paper claimed, sensibly anticipate the court or the law to recognize her perspective, since they should address the criminal with respect to what ‘we’ consider and evaluate. However, can we, in that case, sensibly oblige her that she becomes involve in a post-conviction meeting with the criminal, and that she conveys that authoritative perspective of the law instead of her own? That would appear inappropriate on two connected reasons: primarily, it would oblige her to be untruthful to herself in a vital issue involving her own moral principles; and also, it would absolutely weaken the significance of her first-person evidence, since that evidence would not be actually first-person anymore. We could appropriately assume that she should accept the authoritative interpretation of the law of the offense inflicted on her, as a public offense, but we certainly should not oblige her to convey it if she does not approve it. Possibly even this explanation does not assert against obliging a wide-ranging legal obligation on victims to be equipped, provided the appropriate form of legal procedure, in the appropriate form of context, to fulfill such a role in responding to the offense inflicted on them, because we could address the anxiety posed in the above discussion by developing an appropriate ‘conscience’ section into such rightful obligation. The law may, specifically, permit a victim to decline to give testimony or to become involved in a post-conviction meeting should she have a thoughtful opposition to doing so. There would apparently be challenging tasks in identifying and implementing such a section, but it appears in principle the most favorable means to do justice to what are, this paper claimed, the rightful demands of the political community on its citizens, as well as victims, to fulfill their role in responding to public offenses; and to what are, as transparently argued by Ciocchetti, the victims’ moral rights. References Bacigal, R. (2008). Criminal Law and Procedure: An Overview . New York: Delmar Cengage Learning. Cook, J. R. (2001). Asphalt Justice: A Critique of the Criminal Justice System in America. Westport, CT: Praeger. Duff, R.A. & Marshall, S.E. (2004). Communicative Punishment and the Role of the Victim. Criminal Justice Ethics , 39+. Hall, D. (2008). Criminal Law and Procedure. New York: Delmar Cengage Learning. LaFollette, H. (2002). Ethics in Practice. Oxford, UK: Wiley-Blackwell. Read More