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.
In Europe, its Union had no other choice but to respond to this questioning. In the hope of achieving consistency in victims’ rights protection across the EU, in 2001, the Commission passed a Framework Decision, but this did not go far and deep enough. As a result, we now have a Victims’ Directive, which must be translated into domestic laws and policies by November 2015. It is hoped that this will provide a baseline for minimum guarantees for victims. In 2014 the UK Ministry of Justice published their Commitment to Victims, while our Victims’ Commissioner first Review was greeted. Unfortunately, I was not one of the enthusiasts as I wrote "Victims’ Commissioner's First Major Review Fails Victims"
Undoubtedly, the criminal process and the administration of criminal justice by State agents is the field of battle in which human rights are tested. Therefore, questions were raised by communities, the victims’ movement and other civil society organisations about states’ behaviour and compliance. Through the use of international human rights treaties, they began to put pressure on states and Europe’s regional bodies, the Council of Europe and the EU.
However, I fear that despite good intentions, these treaties have not convinced yet that cultural and attitudinal change must take place in order to reposition victims in the criminal process. This is not surprising given that victims remained in the margins of the criminal justice system since the Middle Ages. This paradox that is supported by power structures and top down arrangements of justice continue to be strong and the testimonies from victims, offenders and practitioners who took part in our research seem to support this conclusion. Looking at the findings findings of my research, we conclude that victims and offenders feel that the existing “gatekeepers”, entrenched practices and mind-sets are the true barriers in the implementation of any human rights or victims rights convention. In fact, it seems that the more interest governments and funders are showing in victims, the more defensive gatekeepers and entrenched practices become. This must be read as a warning for those wishing new laws such as the Victims’ Directive to succeed. As many victims said, “legislation alone will not do”.
Furthermore, contrary to what criminal justice professionals believe, victims do want to talk and be included in the formation of practices and policies that impact on them. However, as the research reveals, the recent institutional and legislative changes that are taking place in Europe do not genuinely include victims. Consequently, current practice that is being developed may not serve victims’ needs but the agendas of the gatekeepers and those who are in a position to dictate when, how and for which crimes restorative justice is offered. This is in contradiction with what victims want. It also goes against the hopes of many restorativists who in the early days of restorative justice saw it as a paradigm (Gavrielides, 2007), which can return “conflict as property” (Christie, 1977) to the parties, and an alternative process that helps us “change lenses” in how we view and deal with criminal and every day conflict (Zehr, 1990).
A true democracy is one that not only offers its citizens the opportunity to participate, but also supports them in doing so. As we become more honest about our intentions and available resources for criminal justice reforms, we must become more accountable for our choices not to include victims, offenders, those without power directly in policy making.
I am excited with the new victim-led campaign we started at the IARS International Institute, which I founded 10 years ago. The campaign aims to give direct voice to victimes and users of the criminal justice system to change policy. This initiative is part of an Ministry of Justice funded programme aiming to increase awareness of restorative justice. As part of the programme we also introduced the International Victims Pledge. To sighn up to the pledge click here. To join the campaign here