Moving Victims to the Centre: True or False?
Recently, we have witnessed some serious attempts by international and national players to bring victims to the centre of the criminal justice system. The truth is that our mindsets make us forget that much of what we understand today as ‘crime’ was seen by early communities as a conflict between individuals, while the terms ‘offender’ and ‘victim’ were coined as a result of our modern, legal positivistic framework. According to historians, the victim was gradually pushed to the margins as the interests and power of the state overtook those of the individual. This created a paradox that has endured for centuries.
In my attempt to understand the international development towards victim focused criminal justice policy, I had the pleasure of editing papers by victims, offenders, practitioners and academics for “A Victim-led Criminal Justice System” (2014). There, I concluded that although advocating for a victim-led criminal justice system is unwarranted, merely the debate about such as a system is enough to attract attention. I continued: “It is after all with exaggerations that researchers have traditionally attracted the attention of politicians and mainstream media. By initiating this debate, we may be able to convince that at least certain aspects of the criminal justice system must remain user-led or victim led”.
While I stand by what I said, I came to conclude that the obsession with role players in the criminal justice system is not doing justice to the many calls for change. To progress matters and improve the experience of criminal justice, we must do two things. First, we need to learn to move beyond labels. Sphungin argues that “victimhood and offenderhood are fluid concepts that are: (a) socially constructed by culture, media, and impacted stakeholders; (b) artificially assigned by gatekeepers based on limited legal definitions of crime; (c) muddled by contextual factors and systemic inequities; and (d) often shared by multiple parties in a conflict (Shpungin, 2014). Second, we must learn to empower those affected by what we are trying to correct.
The two are interrelated and go back to the very foundations of our modern criminal justice system. Political philosophers Jeremy Bentham (1748-1832) and John Austin (1790-1859) argued that the law is a phenomenon of large societies with a ‘sovereign’. This can be a determinate person or group who have supreme and absolute de facto power (Austin, 1832 [first published 1873]; Bentham, 1838; 1843). The laws in these societies, including our Western countries, are a subset of the sovereign's ‘commands’. These are general orders that apply to classes of actions and people, and are backed up by threat of force or sanction. This imperatival positivist theory identifies the existence of legal systems with patterns of command and obedience that can be ascertained without considering whether the sovereign has a moral right to rule or whether his commands are meritorious.
That is why moving victims out of the shadows cannot be an easy task, as the same power structures that put them there remain strong even in our modern societies. In fact, it took humanity two World Wars and many civil conflicts to come to the table to agree to minimum standards of behaviour for states. These were intended to control this state-led attitude including that impacting on criminal justice. We called them ‘human rights’ and recorded them in international documents such as the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights. I have always argued that the criminal process and the administration of criminal justice by state agents is the field of battle in which human rights are tested. Therefore, over many years, questions were being raised by communities, the victims’ movement and other civil society organisations about states’ behaviour and compliance with the human rights of victims in the criminal process.