So, we've looked at some of the historical roots of Restorative Justice (RJ), and at some of the key values: inclusiveness, informality, looking forwards rather than back, making amends rather than punishment of wrongdoing. But how does it actually work? What are the distinctive features of a restorative process?
As I stressed a couple of weeks ago, RJ means many different things. To confuse the picture even further, some advocates of RJ have associated it with an alarmingly wide range of alternatives to criminal justice, from "tough love" family interventions to a "round up the usual suspects" approach to policing - and that's just John Braithwaite (references on request). But a few key features can be identified. (NB: not every RJ initiative has all these features; some have only one or two.)
Restoration, not punishment
(This looks as if it gives you the answer to one of the essay questions, but bear with me!)
One of the key features of RJ in most of its forms is that it aims to 'restore' - to put things back to how they were before the crime. It 'restores' the victims of crime, enabling them to get on with their lives without being traumatised by the crime, haunted by their memories or obsessed by thoughts of vengeance. It 'restores' the offender, bringing him or her back into the social consensus about the crime that's been committed (i.e. encouraging a sense of shame and disapproval). And it 'restores' the community, reintegrating the offender and undoing any polarisation that has been created by the crime. As such it's forward-looking - as distinct from the backward-looking approach of the criminal justice system - and it's focused on making things better in future rather than on making the offender suffer.
Whether this actually means that RJ is not about punishment is another question. You could argue that 'punishment' refers to all the ways in which offenders are made to understand how bad their crime was and feel sorry for it; in this case RJ would not be an alternative to punishment at all, but an effective form of punishment.
Bringing victim and offender together
Victim-offender mediation is based on the idea that these two people, who have the greatest stake in the crime, are also best placed to resolve it. Victims can also play a key role in group-based forms of RJ. Reintegrative shaming, which is one of the key mechanisms for 'restoration', is based on an interaction in which the offender accepts responsibility for the offence and apologises, and the victim in turn accepts the apology; instead of being set aside and branded - stigmatised - as a 'criminal', the offender can then be accepted as a fellow-citizen, based on a shared denunciation of the crime.
Community problem-solving
One of the key values of RJ is deprofessionalisation, taking crimes and other 'conflicts' away from the specialists of the criminal justice system and enabling the community to resolve them, if necessary by a free-ranging discussion of what has gone on. (There's a certain amount of tension between this ideal and the use of RJ as a form of cautioning, and police-led RJ in general.) This is perhaps one of the areas where the gap between the ideal and the reality of RJ is largest: the idea of 'community' works much better in some contexts than others, and contemporary urban societies in the developed world are not the best context. It can be argued that we are all members of multiple cross-cutting communities rather than a single geographically-based one - family, friends, work, study, leisure, online - but this doesn't necessarily help. The 'community' which is supposed to be mobilised for RJ is a community which includes both the offender and the victim, which isn't necessarily going to work for these plural, non-geographical communities.
Community self-regulation
Another ideal associated with RJ, and perhaps one which has come closer to becoming a reality, is that of community self-regulation. The idea here is that local communities can be empowered to manage problematic elements within them, in the same way that businesses manage low-level white-collar crime. In this model, RJ is not a way to initiate a free-ranging discussion of the rights and wrongs of a particular crime (as in the previous model), so much as a way to bring moral pressure to bear on people who are causing disruption. This model fits very well into some current ways of thinking about neighbourhood disorder and anti-social behaviour; it's often associated with a 'pyramid' model, involving a threat of escalation to more coercive measures if the 'restorative' stage does not have the desired result.
So that (finally) is the theory. In the next lecture, we look at RJ in practice.
Wednesday 12 March 2014
Monday 3 March 2014
Week 7: Victim Support
We've devoted quite a lot of attention to things that victims need (but
aren't getting) and problems with the criminal justice system. This
week, for a change, we looked at one of the positive features of the
system and described how it actually does give victims something they
need.
Victim Support is a charity, albeit one with a constant source of funding from the Home Office; it's probably best considered as a semi-detached part of the criminal justice system. It has a public face which campaigns for a better deal for victims, but it's not primarily a campaigning organisation: the bulk of what it does is simply to provide support to victims. Initially a purely voluntary organisation, Victim Support now has a substantial layer of permanent staff, but the people at the sharp end are still mainly volunteers: the organisation has something like a 1:4 staff:volunteer ratio. This means that Victim Support can offer a level of personal commitment and dedication which you don't always get from a government department: as a rule, people who work for Victim Support are doing it because they really want to. At the same time, Victim Support has 'core' Home Office funding, i.e. funding which isn't going to be turned off overnight; this supports its administrative superstructure and makes it possible to train and manage all those volunteers. The Victim Support budget has become more discretionary since the establishment of Police and Crime Commissioners; the budget for Victim Support in each PCC region is controlled by the PCC, and can be directed to whatever area of work the PCC thinks appropriate. Although in theory the PCC could turn off the tap, what this has meant in practice is that more funding can be given to areas of work which are particularly prominent in one area - e.g. support for victims of domestic violence or anti-social behaviour.
Victim Support does some campaigning on behalf of victims, but it campaigns in a very specific way. Unlike some groups which claim to speak on behalf of victims, Victim Support never claims that 'victims' in general want more of a particular kind of sentence (either harsher or more lenient). Victim Support's view, based on years of working with victims, is that 'victims' as a group don't have any particular view on how criminal cases should be resolved: some victims are very vindictive, some are forgiving, some don't care either way and just want to put the crime behind them.
Rights for victims within the criminal justice process are Victim Support's key campaigning priority: instead of outcome-oriented reforms, Victim Support focuses on the process. Victims may not have any views in common, but what they do have in common is the experience of being a victim and being involved in the criminal justice system. Over the years, most of Victim Support's core demands have been met to a greater or lesser degree; the only one which has clearly not been met is the universal right to compensation. The key process-based rights of respect, protection and information (giving and receiving) are now very largely respected, along with the negative right of not having responsibility for the outcome of cases.
So, where next for victims - what needs to victims have which are still not being met?
Victim Support is a charity, albeit one with a constant source of funding from the Home Office; it's probably best considered as a semi-detached part of the criminal justice system. It has a public face which campaigns for a better deal for victims, but it's not primarily a campaigning organisation: the bulk of what it does is simply to provide support to victims. Initially a purely voluntary organisation, Victim Support now has a substantial layer of permanent staff, but the people at the sharp end are still mainly volunteers: the organisation has something like a 1:4 staff:volunteer ratio. This means that Victim Support can offer a level of personal commitment and dedication which you don't always get from a government department: as a rule, people who work for Victim Support are doing it because they really want to. At the same time, Victim Support has 'core' Home Office funding, i.e. funding which isn't going to be turned off overnight; this supports its administrative superstructure and makes it possible to train and manage all those volunteers. The Victim Support budget has become more discretionary since the establishment of Police and Crime Commissioners; the budget for Victim Support in each PCC region is controlled by the PCC, and can be directed to whatever area of work the PCC thinks appropriate. Although in theory the PCC could turn off the tap, what this has meant in practice is that more funding can be given to areas of work which are particularly prominent in one area - e.g. support for victims of domestic violence or anti-social behaviour.
Victim Support does some campaigning on behalf of victims, but it campaigns in a very specific way. Unlike some groups which claim to speak on behalf of victims, Victim Support never claims that 'victims' in general want more of a particular kind of sentence (either harsher or more lenient). Victim Support's view, based on years of working with victims, is that 'victims' as a group don't have any particular view on how criminal cases should be resolved: some victims are very vindictive, some are forgiving, some don't care either way and just want to put the crime behind them.
Rights for victims within the criminal justice process are Victim Support's key campaigning priority: instead of outcome-oriented reforms, Victim Support focuses on the process. Victims may not have any views in common, but what they do have in common is the experience of being a victim and being involved in the criminal justice system. Over the years, most of Victim Support's core demands have been met to a greater or lesser degree; the only one which has clearly not been met is the universal right to compensation. The key process-based rights of respect, protection and information (giving and receiving) are now very largely respected, along with the negative right of not having responsibility for the outcome of cases.
So, where next for victims - what needs to victims have which are still not being met?
Monday 17 February 2014
Week 5: Restorative justice
One of the interesting things about restorative justice is the enormous range it covers. It's been argued that the restorative justice movement had three separate drivers, all of which point in slightly different directions - and none of which is necessarily victim-centred.
One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.
Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't. (If you're sceptical about this, have a look at the "Woolf Within" video on Moodle.)
Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. This argument was put forward most eloquently in Nils Christie's paper "Conflicts as property". If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.
This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?
Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.
If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).
Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory?
One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?
One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.
Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't. (If you're sceptical about this, have a look at the "Woolf Within" video on Moodle.)
Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. This argument was put forward most eloquently in Nils Christie's paper "Conflicts as property". If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.
This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?
Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.
If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).
Ask the offender:
• “What happened?”
• “What were you thinking about at the time?”
• “What have you thought about since the incident?”
• “Who do you think has been affected by your actions?”
• “How have they been affected?”
Ask each parent/caregiver: “This has been difficult for you, hasn’t it? Would you like to tell us about it?”
Have each respond to all of the following questions.
• “What did you think when you heard about the incident?”
• “How do you feel about what happened?”
• “What has been the hardest thing for you?”
• “What do you think are the main issues?”
Ask the offender: “Is there anything you want to say at this time?”
Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory?
One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?
Wednesday 12 February 2014
Week 4: Compensation for victims
This unit has three main themes running through this unit. The first, encapsulated in the idea of the I***l V****m,
has to do with how we think about victims. We've seen how entrenched
some assumptions about victims are, and - more importantly - how
unhelpful those assumptions can be. The second has to do with the criminal justice
system, and how difficult it is to fit victims into it: the victim
doesn't belong on either side of the confrontation between the Crown and
the offender, and often ends up, literally, serving as a witness to her
own victimisation. Following on from this, the third them has to do with restorative justice, and the broader challenge of taking a victim-centred approach to crime. Actual victims - ordinary people who happen to become victims of crime - want, and need, many different things: some victims are vengeful, some are
forgiving; some are knocked flat by the after-effects of the crime, some
shrug it off; some want to take an active part in the prosecution of
the crime, some want to put it all behind them. The only thing all
victims have in common is that they want to be taken seriously, listened
to (if they want to talk), given support (if they need it) - in short,
treated with respect.
Last week's lecture (apologies for the delay in getting this post up) involved all those three themes. As we saw, the Criminal Injuries Compensation Scheme is explicitly designed to exclude anyone who doesn't co-operate with the police and anyone with a 'bad character' - which is to say (among other things) anyone who has served a custodial sentence of any length within the last seven years. (Hard luck if you go to prison for non-payment of debts and get beaten up a year later.) Only the innocent and virtuous need apply, in effect.
The other main form of compensation is the Compensation Order, which can be handed down by courts as part of a criminal sentence. This is a vivid illustration of the inadequacy of the criminal justice system to give victims what they need. Remember the dark figure of crime: not all crimes are reported to the police; not all of those are detected, i.e. have an offender identified; not all of those are prosecuted, and (inevitably) not all prosecutions lead to a guilty verdict. But it's only a guilty verdict that can lead to the imposition of a Compensation Order. Even when the option is available - and courts are encouraged to impose it when it is there - in practice most sentences don't include compensation, often because the offender would be unable to pay. Putting it all together, the criminal justice system can only provide compensation, in the form of a Compensation Order, for a tiny, tiny minority of victims.
Coming on to the question of respect and victim-centrality: when compensation is awarded, how much should it be? This is a difficult one. Somebody who has had a leg broken in three places, suffering permanent impairment as a result, isn't going to want to be fobbed off with a ten pound note. But suppose a more satisfactory order was made - £10,000, say. (The maximum compensation payable for this injury under the Criminal Injuries Compensation Scheme is currently set at £4,600, incidentally.) Would accepting this level of compensation mean that you were saying the leg was worth £10,000 (or £4,600)? It's not a calculation anyone would want to make. I think we have an instinctive sense of when monetary compensation is far too low, without having a clear sense of what the right level would be. The reason is the message that it conveys - the point of a very low amount is that it conveys a lack of respect. Similarly, research has shown - perhaps surprisingly - that victims don't object to compensation payments being spread out over a long period, if there is no other way that the offender can pay. What victims do object to is not knowing how long the period will be or what the payments will be: in short, they object to being kept in the dark, treated with disrespect.
But even if the payments are scaled satisfactorily and made on time, both the main compensation schemes are wildly inadequate. Victims need respect, which may mean looking at alternatives to criminal justice; and they need support, in the form of a universal and unconditional service for victims. Which are the topics of the next two lectures.
Last week's lecture (apologies for the delay in getting this post up) involved all those three themes. As we saw, the Criminal Injuries Compensation Scheme is explicitly designed to exclude anyone who doesn't co-operate with the police and anyone with a 'bad character' - which is to say (among other things) anyone who has served a custodial sentence of any length within the last seven years. (Hard luck if you go to prison for non-payment of debts and get beaten up a year later.) Only the innocent and virtuous need apply, in effect.
The other main form of compensation is the Compensation Order, which can be handed down by courts as part of a criminal sentence. This is a vivid illustration of the inadequacy of the criminal justice system to give victims what they need. Remember the dark figure of crime: not all crimes are reported to the police; not all of those are detected, i.e. have an offender identified; not all of those are prosecuted, and (inevitably) not all prosecutions lead to a guilty verdict. But it's only a guilty verdict that can lead to the imposition of a Compensation Order. Even when the option is available - and courts are encouraged to impose it when it is there - in practice most sentences don't include compensation, often because the offender would be unable to pay. Putting it all together, the criminal justice system can only provide compensation, in the form of a Compensation Order, for a tiny, tiny minority of victims.
Coming on to the question of respect and victim-centrality: when compensation is awarded, how much should it be? This is a difficult one. Somebody who has had a leg broken in three places, suffering permanent impairment as a result, isn't going to want to be fobbed off with a ten pound note. But suppose a more satisfactory order was made - £10,000, say. (The maximum compensation payable for this injury under the Criminal Injuries Compensation Scheme is currently set at £4,600, incidentally.) Would accepting this level of compensation mean that you were saying the leg was worth £10,000 (or £4,600)? It's not a calculation anyone would want to make. I think we have an instinctive sense of when monetary compensation is far too low, without having a clear sense of what the right level would be. The reason is the message that it conveys - the point of a very low amount is that it conveys a lack of respect. Similarly, research has shown - perhaps surprisingly - that victims don't object to compensation payments being spread out over a long period, if there is no other way that the offender can pay. What victims do object to is not knowing how long the period will be or what the payments will be: in short, they object to being kept in the dark, treated with disrespect.
But even if the payments are scaled satisfactorily and made on time, both the main compensation schemes are wildly inadequate. Victims need respect, which may mean looking at alternatives to criminal justice; and they need support, in the form of a universal and unconditional service for victims. Which are the topics of the next two lectures.
Monday 3 February 2014
Week 3: Victims in the criminal justice system
A big topic this week, and quite a big post.
We're into Part Three of the unit now. Part One was about introducing the idea of the victim and explaining why it's so problematic; this involved looking at the difference between experiencing victimisation and being recognised as a victim, which led on to some discussion of different schools of thought in victimology and a fair old bit about the "*d**l v*ct*m", about which I suspect you are by now sick of hearing.
In Part Two we built on our discussions of radical and feminist victimology by getting into the politics of victimisation and victimhood. We know that not everyone suffers from crime, and not everyone who suffers from a crime will be recognised as a victim; are these random processes, or can we make any predictions as to who is more likely to be a victim of what kind of crime, and who is more likely or less likely to be recognised as a victim? If we can, do our predictions have anything to do with other things we know about society? Looking at questions of gender, ethnicity, class and corporate power, I've been arguing that the answers to those two questions are Yes and Yes: both exposure to the risk of crime and non-recognition as a victim are strongly associated with broader injustices and imbalances of power.
Part Three is about victims in the criminal justice system. There's more descriptive material in this part of the unit - more about how the system actually works - but the angle of the unit is still critical: we're not just asking "how does the system look after victims?" but "does the system look after victims properly?", and even "can the system look after victims properly?".
Let's pause for a song (music optional):
Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.
So far, so mythical - although it's quite a plausible myth. Coming forward into historical time, we know for a fact that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim. The obvious conclusion is that a lot of the new prosecutions which took place after the police took over involved disputes which would not previously have gone to court.
A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements (which we discussed in the seminar).
The problem with a lot of the victim-focused reforms we've seen is that governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...). Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison.
This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that it's possible to reform the system so that it does more for victims, but only by improving or adding to what it already does. If victims are sidelined by the system, you can't fix that by bolting on a bit of victim-centrality. If victims are to get what they want, a fresh start may be needed - which is where restorative justice shows a lot of potential.
We're into Part Three of the unit now. Part One was about introducing the idea of the victim and explaining why it's so problematic; this involved looking at the difference between experiencing victimisation and being recognised as a victim, which led on to some discussion of different schools of thought in victimology and a fair old bit about the "*d**l v*ct*m", about which I suspect you are by now sick of hearing.
In Part Two we built on our discussions of radical and feminist victimology by getting into the politics of victimisation and victimhood. We know that not everyone suffers from crime, and not everyone who suffers from a crime will be recognised as a victim; are these random processes, or can we make any predictions as to who is more likely to be a victim of what kind of crime, and who is more likely or less likely to be recognised as a victim? If we can, do our predictions have anything to do with other things we know about society? Looking at questions of gender, ethnicity, class and corporate power, I've been arguing that the answers to those two questions are Yes and Yes: both exposure to the risk of crime and non-recognition as a victim are strongly associated with broader injustices and imbalances of power.
Part Three is about victims in the criminal justice system. There's more descriptive material in this part of the unit - more about how the system actually works - but the angle of the unit is still critical: we're not just asking "how does the system look after victims?" but "does the system look after victims properly?", and even "can the system look after victims properly?".
Let's pause for a song (music optional):
Whose pigs are these?How did the criminal justice system get started? Once upon a time, there were no courts and no trials; when people had problems with one another, they sorted them out face to face. The vicar would have a word with John Potts, and they'd come to some arrangement: he'd keep his animals in his own garden, or the vicar would let him graze them by the vicarage on Mondays and Wednesdays, or whatever. There would be no laws being broken and no general principles being decided, and nobody would end up with a criminal record.
Whose pigs are these?
They are John Potts',
I can tell them by their spots,
And I found them in the vicarage garden.
- traditional
Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.
So far, so mythical - although it's quite a plausible myth. Coming forward into historical time, we know for a fact that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim. The obvious conclusion is that a lot of the new prosecutions which took place after the police took over involved disputes which would not previously have gone to court.
A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements (which we discussed in the seminar).
The problem with a lot of the victim-focused reforms we've seen is that governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...). Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison.
This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that it's possible to reform the system so that it does more for victims, but only by improving or adding to what it already does. If victims are sidelined by the system, you can't fix that by bolting on a bit of victim-centrality. If victims are to get what they want, a fresh start may be needed - which is where restorative justice shows a lot of potential.
Monday 27 January 2014
Week 2: Domestic violence
The issue of domestic violence brings together some of the key issues about victimology that we have looked at so far, as well as connecting with some of the issues we'll be looking at this term.
First point: you can't talk about victims without talking about the 'dark figure'. If you want to know how many people have been victims of which crimes, nobody would suggest relying on police recorded crime figures: there are all sorts of reasons (good as well as bad) why crimes can be committed and not end up in police statistics. But that means that you have to get your information from somewhere else - and all the possible alternative sources have their own issues. What the Crime Survey for England and Wales records isn't how many crimes of type X were committed, but how many people answered Yes when they were asked if they'd been a victim of crime X. This doesn't matter very much if crime X is car theft, for example, but it matters a lot in the case of domestic violence: the statement "I have been a victim of domestic violence" can mean very different things depending on who is saying it, and the victims who suffer the most may not be the ones most likely to say Yes when asked.
Second, both victimisation and victimhood are related to power. A feminist explanation of domestic violence is that it happens when a sexist man feels his patriarchal dominance being challenged, and uses force to put his partner back in her place. The 'family violence' model of domestic violence is not driven by power in this way; instead, it relates domestic violence to the powerlessness of poor and socially excluded groups. Other researchers combine the two, arguing that men who feel powerless react violently, taking it out on their partners. The question of how to gain recognition as a victim is also closely related to power in society, as we saw when we were looking at the Ideal Victim.
Third, crimes against women are (still) treated differently. Comic artist Alan Moore's comments on the fictional representations of rape and murder are relevant here:
Two final points, looking ahead to the remainder of the unit. Point four: victims and criminal justice don't mix (at least, not straightforwardly). The criminal justice process struggles to find a role for victims; all too often victims are sidelined, or else exploited to justify harsh sentencing. Calling the police, and setting the criminal justice machinery in motion, may not be the best way to resolve a domestic violence situation; it's certainly not likely to empower the victim, even if it makes her safer in the short term.
And point five: restorative justice has a lot to offer. Domestic violence, one of the areas where conventional criminal justice has failed badly, is an area where restorative justice has the potential to succeed. Restorative justice puts the victim centre stage and makes it possible to tailor a justice process which meets the needs of that individual victim - and that individual offender.
First point: you can't talk about victims without talking about the 'dark figure'. If you want to know how many people have been victims of which crimes, nobody would suggest relying on police recorded crime figures: there are all sorts of reasons (good as well as bad) why crimes can be committed and not end up in police statistics. But that means that you have to get your information from somewhere else - and all the possible alternative sources have their own issues. What the Crime Survey for England and Wales records isn't how many crimes of type X were committed, but how many people answered Yes when they were asked if they'd been a victim of crime X. This doesn't matter very much if crime X is car theft, for example, but it matters a lot in the case of domestic violence: the statement "I have been a victim of domestic violence" can mean very different things depending on who is saying it, and the victims who suffer the most may not be the ones most likely to say Yes when asked.
Second, both victimisation and victimhood are related to power. A feminist explanation of domestic violence is that it happens when a sexist man feels his patriarchal dominance being challenged, and uses force to put his partner back in her place. The 'family violence' model of domestic violence is not driven by power in this way; instead, it relates domestic violence to the powerlessness of poor and socially excluded groups. Other researchers combine the two, arguing that men who feel powerless react violently, taking it out on their partners. The question of how to gain recognition as a victim is also closely related to power in society, as we saw when we were looking at the Ideal Victim.
Third, crimes against women are (still) treated differently. Comic artist Alan Moore's comments on the fictional representations of rape and murder are relevant here:
From what I understand, last year there were 60,000 rapes in the UK ... I would have to say that I do not recall the sixty thousand homicides that occurred in the UK last year, possibly because – well, they didn’t, did they? Except, of course, in the pages of fiction, where I would imagine that there were considerably more violent deaths than the above-mentioned figure. It would appear that in the real world, which the great majority of people are compelled to live in, there are relatively few murders in relation to the staggering number of rapes and other crimes of sexual or gender-related violence, this being almost a complete reversal of the way that the world is represented in its movies, television shows, literature or comic-book material.Similarly, survey figures from the 1990s suggest that 400,000 women were chronic - repeated, day after day - victims of domestic violence, and that 240,000 had been 'very frightened' by the last incident. These are staggeringly high figures. A large part of the story of contemporary victimology is the story of overlooked female victims.
Two final points, looking ahead to the remainder of the unit. Point four: victims and criminal justice don't mix (at least, not straightforwardly). The criminal justice process struggles to find a role for victims; all too often victims are sidelined, or else exploited to justify harsh sentencing. Calling the police, and setting the criminal justice machinery in motion, may not be the best way to resolve a domestic violence situation; it's certainly not likely to empower the victim, even if it makes her safer in the short term.
And point five: restorative justice has a lot to offer. Domestic violence, one of the areas where conventional criminal justice has failed badly, is an area where restorative justice has the potential to succeed. Restorative justice puts the victim centre stage and makes it possible to tailor a justice process which meets the needs of that individual victim - and that individual offender.
Tuesday 21 January 2014
Term 2, week 1: Rape and rape myths
"a female slave has ... an admitted right, and is considered under a moral obligation, to refuse to her master the last familiarity. Not so the wife: however brutal a tyrant she may unfortunately be chained to - though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him - he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations."
- John Stuart Mill (1869), The Subjection of Women
"Women have very little idea of how much men hate them."Rape is a difficult topic to write about. On one hand, many people would agree with Mill that it is "the lowest degradation of a human being" - worse than violent assault or even torture. (Anyone who starts a fight (or plays rugby) is consenting to being assaulted; masochists consent to being tortured. By definition, it's not possible to consent to being raped.) On the other hand, feminists have identified rape as being part of a spectrum of male violence against women and girls - the extreme end, but it still has something in common with other parts of the spectrum, from soft porn and blonde jokes to abuse and domestic violence. Rape is at once extreme and typical - a crime which is universally denounced, but one which carries a message (men's hatred and fear of women) that is absolutely normal and everyday.
- Germaine Greer (1970), the Female Eunuch
How does a male-dominated society deal with this contradiction? Essentially (feminists would argue), by denying the reality of rape. We looked at some key rape myths in the lecture. Firstly, rape is informally defined along "ideal victim"/"ideal offender" lines. A woman who is raped by a stranger in a dark alley is a real rape victim; a woman raped in her own home by her boyfriend should kick him out and be more careful in future. Secondly, rape is informally defined - and, until quite recently, was legally defined - as something that doesn't happen within a marriage: it was only in 1994 that the law was changed so that a married man could be found guilty of raping his wife. Thirdly, a lot of weight is given to the man's state of mind; the myth here is that a man can only commit rape if he thinks he's committing rape. Again, this is an area where the law has changed relatively recently: until the Sexual Offences Act 2003, a man accused of rape could claim that he "honestly believed" the victim had consented, and this would be a defence against the charge. (The defendant now has to show that he had a reasonable belief in consent, which is a lot more demanding.) Lastly, when a rape case comes to court, there is what you could call a professional myth: the myth that rape can be treated in just the same as any other crime, and that justice will be done in the same way. The reality is that women reporting rape, who have had to get through a massive obstacle course in order to get to court, now face the same obstacles all over again in the form of the first three myths - which live on in the minds of the jury (and can be exploited by defence lawyers), even if they aren't supported any more by the letter of the law.
The feminist analysis is powerful; you don't have to agree with every detail of it (for example, describing everyday forms of sexism as male violence) to think that it can tell us a lot about how rape is dealt with in our society. But, as it often does, the feminist analysis here leaves us with a question: what is to be done? How can the under-reporting, under-prosecution and under-conviction of rape charges be addressed?
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