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The victim’s rights rests on a kind of social contract theory, perhaps captured in the preamble to Louisiana’s 1985 victim’s rights legislation:
In recognition of the civic and moral duty of victims . . . of crime to cooperate fully and voluntarily with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of such citizen cooperation . . . the legislature declares its intent . . . to ensure that all victims . . . of crime are treated with dignity, respect, courtesy, and sensitivity, and that the rights extended . . . to victims . . . of crime are honored and protected by the law enforcement, (sic) agencies, prosecutors, and judges in a manner no less vigorous than the protection afforded the criminal defendants.
This appeal to the duty of victims reflects a belief that members of the polity owe cooperation to others as part of their understanding of community membership and that the community in turn owes them.
Under most of the legal systems of world, a victim is simply a complainant who activated the machinery of the criminal justice system by bringing evidence and information about illegal acts to the attention of the authorities. If the police solved the case and made an arrest, the victim then played an additional role as a witness for the prosecution and helping the government to secure a conviction. Since crime is conceptualized as an event that threatened and offended the entire community, and was prosecuted by the state on behalf of the People, the actual victim was treated like just another piece of evidence, a mere exhibit to be discarded after the trial.
The responsibility of victims is only confined to report the incidents, cooperate fully with the investigation, and ultimately testify as part of the state’s case in court. But the rights that the injured parties deserved within the criminal justice process, as it handled and resolved their cases, were not given much consideration at all.
To address these injustices and imbalances, crime victims began to joined together to form consciousness-raising groups, self-help support groups, and organizations to engage in public education, outreach, research and lobbying. Despite their differing priorities, victim activists are working together under the common motto victims’ rights. They all consent to some of the basic critique:
1. That criminal justice personals, namely the police, prosecutors, defense attorneys, judges, probation officers, parole boards, corrections administrators are overlooking or neglecting the legitimate needs of crime victims until they began their campaign;
2. That there is a prevailing tendency on the part of the public as well as agency officials to unfairly blame victims for facilitating or even provoking crimes;
3. That explicit standards of fair treatment is required to protect the interests of complainants and prosecution witnesses, as well as injured parties whose cases were not solved;
4. That people who suffered injuries and losses inflicted by criminals ought to receive reimbursement from one source or another; and
5. That the best way to make sure that victim could pursue their personal goals and protect their own best interests is by granting them formal rights within the criminal justice system.
The Crux of The Problem: The Victim’s Contradictory RoleResistance to progress in the field of victims’ rights arises out of the inherently contradictory role of victims within the criminal justice system. The contradiction may arise at any of the following instances:
On the one side, victims are allies of the government in the state’s effort to suppress lawbreaking, through punishment or compulsory treatment. But the victims are treated as junior partners on the same side as the police and the prosecution, reforms intended to empower victims might end up facilitating the government’s ability to convict and punish those persons that officials choose to pursue selectively. If it turns out that changes designed to strengthen the position of victims in the criminal justice process actually strengthen the position of law enforcement agencies and the prosecution in the adversarial system, then this would lead to enhancements of distrust, alarm, and opposition from individuals and groups concerned with constitutional rights, procedural safeguards, and due process guarantees. On the other side, victims are independent actors in the criminal justice process. In defense of their own best interests, they might advocate courses of action that are rejected by a police officer, the assistant district attorney, the judge, the warden, or the parole board. What victims define as their own best interests in their cases often diverges from or directly clashes with the goals of the state.
Demands of Victims and What actually did they ReceivesWhat do victims want from the criminal justice system, retribution, rehabilitation of the offender, or restitution? There cannot be any generalized reply to this quarry as it is much more tilted towards the mind frame of an individual victim. Some victims certainly want the system to help them get even with those offenders who made them suffer. But retaliation or revenge can be said to be only one possible goal. Some victims have come to the realization that they do not get much satisfaction after knowing that a convict has been punished on their behalf. The deprivation endured by an inmate behind bars in no way eliminates the emotional, physical, or financial harm endured by the victim. Victims who reach this conclusion seek to be restored to the condition; they were in, before the crime occurred. Restitution by the offender becomes essential for their recovery. In this view, only through hard work and sacrifice, perhaps as a condition of probation or parole, can the offender make any improvement.
In addition, some victims may press for rehabilitation of the offender. This course of action is especially likely if the victim and the offender had a positive prior relationship may be in capacity of lovers, friends, neighbors, co-workers, or classmates. If the victim and the offender are going to continue to be in contact with each other in the future, it is in the best interest of the victim that the offender be rehabilitated.
Opposition When Victim Challenges The Functioning Of The Crime Control SystemMany a times, the victim wants his case to be pursued but the police or prosecutors seek to drop the charges. Conversely, some victims may want charges to be dropped but the authorities want to press on. In some cases, the victim seeks restitution while the government is more concerned with incarceration.
Occasionally the victim seeks the rehabilitation of the offender while the state seeks punishment. This may give rise to a conflicting situation.
Area of Conflicts
1. Victim’s Right to Influence Key DecisionsMostly, victims turn to officials for help, serve as complainants, and contribute to the government’s case by testifying, so one can presume that there exists a kind of team spirit between the two. A closer examination will reveal that each of the component agencies has its own vested interests, and each group of officials and professionals have their own privileges to protect. When victims call for improvements in the way in which they are treated, they may also question the existing way of doing business, which might be more accurately described as disposing of cases rather than as genuinely dispensing justice.
Victims want the right to play an active role in negotiating the terms of a guilty plea, in deciding upon an appropriate sentence after a successful trial, and in determining the conditions of release for a prisoner on parole. But state gives a feeling of indifference, towards this active participation.
2. Victim’s Right and the PoliceVictims have right to demand for improved service. Victimized members of the general public are pressuring police administrators to reorder institutional priorities, reallocate resources, and redeploy officers. Law enforcement decision-makers find it difficult to openly oppose these calls for greater responsiveness by the people, to whom they are sworn to protect and serve. When these decision-makers resist pro-victim initiatives, they argue that their department doesn’t have the manpower or money; or that not enough cases arise to justify such redeployments; or that the demands are impractical or unreasonable in terms of additional workloads.
3. Victim’s Right and the ProsecutorsThe victim’s activism has challenged the prosecutors to fulfill their claim that they run public law firms that provide free and automatic representation to innocent people harmed by the enemies of society. Victimized clients provoke intense resistance from their lawyers when they insist upon a say in the plea negotiation process. If the victim insisted on harsher terms or mandatory restitution, say compulsory treatment for the offender, these options would be considered disruptive since they would undermine the work-group’s standardization of the disposal of cases. The root of the problem is that the victims’ demand takes at face value, the description of adjudication as an adversarial process, whereas in reality, out-of-court settlements are meant to be an administrative routine carried out with assembly-line precision.
4. Victims’ Right to Be InformedIf victims are going to be meaningfully empowered within the criminal justice process, officials must undertake the additional effort to tell them all that they need to know. But generally, officials never perceived an obligation to inform victims about important developments in their cases. Now this is required to be changed to keep victims informed of the progress of their cases as they wind their way through the criminal justice process.
Police departments have been pressured to ‘read victims their rights,’ perhaps not in the immediately after the crime, when they are dazed and bleeding, but shortly thereafter, when they have regained their composure. Victims need to know what they are getting into when they ask that the machinery of criminal justice be set in motion. Victims need to be advised about their potential responsibilities and duties, for example, to attend a lineup and identify a suspect; to testify at pre-trial hearings; and to be subjected to cross-examination by the defense. Victims need to be made aware of the prospects for government protection from harassment, retaliation, and other forms of intimidation by offenders and their cohorts. They have to be made aware of methods of pursuing recovery of their financial losses through court-ordered restitution by the offender, from claims filed with state compensation programs, from private insurance coverage, and through lawsuits in civil court.
Victims want access to a steady flow of progress reports from the prosecution to keep them posted about major developments in their cases. This could include information regarding the arrest of a suspect; the granting of bail and pre-trial release; the acceptance of a negotiated plea or the scheduling of a trial date; the jury’s verdict and the judge’s sentence; the conditions of a suspended sentence and the terms of probation; where the convict is to be incarcerated; and timely notification of release, whether due to furlough, parole, or the expiration of the sentence.
The struggle by victims to gain formal rights within the criminal justice system continues on many fronts. And, as the analysis presented above demonstrates, the obstacles that the victims encounters come from many quarters. Resistance from the victims’ ostensible allies within the criminal justice system tends to be low profile, and takes the form of foot-dragging, cooptation, and objections on pragmatic grounds.
The criminologists and victimologists had discovered through their research and evaluations that the newly-gained rights have little impact, and that business goes on as usual. Two reactions are possible, to all these pains of Victims. The first reaction, both threatening and highly undesirable, could be the abandonment of the campaign for formal rights within the system and a turn towards a subtle endorsement of illegal, vigilante street justice. The second option, much more promising, could be that a growing number of victims will redirect their attention and energies into exploring the potential of the emerging field of informal justice. Practiced at the neighborhood level, this alternative to formal adjudication relies upon the principles of conflict resolution, using the techniques of mediation to achieve the goals of victim restitution, offender rehabilitation, mutual reconciliation, and community harmony. It may well be that, in an era of shrinking resources and continued constitutional limitations; this will be the most productive avenue for the victims’ activism.
The author can be reached at: firstname.lastname@example.org
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