What does the future hold for victims' rights ?

With the twentieth century rapidly drawing to a close, and with a new millennium only a little more than a year away, this is the most appropriate time to take stock from the past and to reflect on the future. It is the time to seek directions for future action, to learn from past experiences and to develop better and more effective policies for the years ahead.

Présentation de la session
Avant-Propos
Victime : Définition et enjeux
Les victimes : des oubliées de l'histoire du droit ?
Les victimes pendant l'Ancien Régime
Politique pénale et aide aux victimes
Victims' rights

So what does the future hold for victims' rights ? To answer this question it is essential to find out whether the struggle of the last thirty years has yielded the desired results and if not, why not ? It is vital to find out whether the interests of crime victims will be best served by continued rights demands or whether more could be gained by a slight change in strategy, namely by stressing victims' needs, by demanding expanded and improved victim services, the enhancement of state compensation to the victims, as well as the strengthening of redress mechanisms and collection techniques. Rather than demanding rights that often remain largely symbolic, would the cause of victims be better served by a paradigm shift, by a switch from punitive/retributive justice to restorative justice ? Would the victims be better off if we developed a new and different outlook at the acts that kill, injure, maim, or harm thousands of members of society every year ?

Since the rediscovery of crime victims three decades ago we have accumulated a sizeable body of knowledge and sufficient experience that makes it possible to pass judgement on past endeavours and to figure out the best and most effective ways of improving the victims pitiful lot and alleviating their sad plight. So how successful has the fight for crime victims' rights been ? If legislative action alone were to be the true measure of success of the victims' rights movement, then we must, without hesitation, award the movement an A+ grade! But even the casual observer should be able to ascertain that despite the rapid proliferation of victims bills of rights in recent years, victims are still kept at the periphery of the criminal justice system, their role continues to be passive, their participation remains marginal, and few observers would fail to conclude that the plight of the vast majority of crime victims remains essentially unchanged. If this is true, and I do believe it is, then we must ask ourselves why it is that the fight has not been more successful and why it had failed to substantially improve the victims situation and conditions.

I believe that one of the primary objectives of victim policy should be to draw a plan for an optimal strategy for serving, helping and supporting victims. To do this, it is necessary to find out whether the rights discourse has proven to be a help or a hindrance, an advantage or an impediment, an asset or a liability.

From all that was mentioned earlier it should be no secret by now that the victims' rights discourse, as popular as it is with victim advocates, implies certain risks and is fraught with certain dangers. Rights claims inevitably evoke fear, suspicion, resistance, hostility, and, not infrequently, outright opposition. The talk of rights, whether those of crime victims or other disfranchised groups, creates anxiety in some and apprehension in others. And while putting many on the defensive, it forces some to take the offensive in an attempt to challenge, deny or even defy the claims made by victim groups and victim representatives. Somehow, demands for rights, whether legitimate or not, whether justified or not, create in many the uncomfortable feeling of being threatened and conjure up visions of imminent dangerous social change.

Undoubtedly, these problems were on everyone's mind when the U.N. declaration of 1985 deliberately avoided using the word "Rights" in its title opting instead to call it "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power".

Space constraints do not allow a detailed discussion of the risks and drawbacks of the victims' rights discourse, so I will only highlight, very briefly, some of its visible and hidden dangers.

On some problems of victims' rights

The notion of rights is legalistic and restrictive

Whenever it is brought to the attention of victims' rights advocates that what they are demanding are principles of justice, they insist that victims are not interested in principles, but in formal legal rights. Contrary to the principles of justice that apply to everyone with a legitimate grievance, the concept of rights is a legalistic concept and is therefore a restrictive concept. The entitlement to a legal right and what this right conveys or entails requires the claimant to fit the narrow legal definition and to have the legal status of victim. Only then could they benefit from or exercise the rights that are conferred upon victims by the statutes. All those who feel they have been victimized or perceive themselves as victims without fitting the legal qualification are excluded from the realm of these legal rights. To fully understand how restrictive legal rights are, one need only to imagine what the situation would have been had the services to rape victims or rape crisis centres been restricted to only those who fit the legal definition of rape! The legalistic nature of the notion of rights also means that many of the rights gained by various groups, including crime victims, are more symbolic than real. They might look good on paper but change nothing or very little in practice.

The notion of rights is selective and discriminatory

The term 'crime victim', even in a strict legal sense, applies to hundreds of thousands of individuals and businesses that are enormously diverse in their backgrounds, experiences, needs, demands and expectations. To entitle each and everyone of them to the legal rights claimed by the rights movement would render the criminal justice system totally unworkable. In view of this, only some victims could be awarded those rights. A selection therefore has to be made and as with all other selection, it ends up being arbitrary and discriminatory. Even a cursory look at the bills of rights enacted in various countries would show that they have designated certain types of victims for special rights. The French law on victims of terrorist attacks (attentats) singles out those victims for a preferential treatment. Rape shield laws recognize rights for rape victims that are not conceded to other victims. These are just two examples and one can give many, many others. Notwithstanding the good intentions behind such laws, they inevitably create different classes of victims and convey a message that some victims are more deserving than others.

Rights conflicts are divisive

Although all rights are legal constructs, not all rights are created equal. Some rights are superior to others. On the top of the list are the rights that ensure that people are free from tyranny and oppression, are protected against the abuses of power by the state and powerful organizations against government, interference or intrusions etc. These rights are unproblematic and are worth fighting, even dying for. The same is true for rights destined to protect minorities against the tyranny of the majority and the like. What is problematic are the rights that are aimed at protecting groups with less power against groups that have more power : workers and owners/management, tenants and landlords, employees and employers, children and parents, women and men, and so forth. Because these rights pit one group against another they are divisive and polarizing. And instead of producing harmony, the struggle for this type of rights tends to create or perpetuate conflict between the groups concerned because a state of complete equality or even an equitable balance of power can never be achieved. While some of these rights conflicts can be settled, albeit temporarily, through compromise, others are so diametrically opposed that they have no solution. Such is, for example, the conflict between those fighting for the right to life and those demanding the right to free choice.

The potential for rights conflicts and clashes of rights

The concept of rights and the ensuing claims and demands carry with them a strong potential for rights conflicts, even clashes of rights and it is this potential for conflict that often leads to imposing strict limitations on victims' rights. Frank WEED (1995, 26) points out that : Because most victims' rights are directed at the operations of the criminal justice system there is the potential for conflict between the victim and the police, prosecutor, or the court. To minimize these conflicts, victims' rights are often limited. For example, it is often stated that a victim can exercise these rights to the extent that they do not interfere with the constitutional rights of the accused. Nor can victims' rights create a cause of action for money damages against the state, country, or municipality or any agency or employee of the government. Finally, victim rights cannot be used to set aside or void any conviction or sentence by the court. In addition, judges and prosecutors may be given broad interpretive powers as to how crime victims may exercise their rights.

KELLY (1987, 71) warned against the potential for clashes between prosecutors and victims. She suggested that : Given allegiances that develop in the courthouse, it is to be expected that prosecutors and victims will clash. Studies show that courts usually operate as 'workgroups; whereby prosecutors, defense attorneys, and judges align to dispose of cases as quickly as time and justice will allow. Treating victims as anything other than mere witnesses might jeopardize these relationships and slow down the processing of cases. Furthermore, crime victim participation might threaten prosecutors' control over cases.

KELLY also quotes the New York Agency : an agency that studies victim movement in Brooklyn. The agency concluded that : Prosecutors are particularly likely to resist consideration of the victim's point of view because it is prosecutor's control that would be most eroded if the victim were given a greater voice....

One of the strategic errors of the victims' rights movement in North America was the creation of a false contest between victims' rights and offenders' rights. They failed to realise that curtailing offenders' rights to pre-trial release, abolishing the exclusionary rule, or restoring the death penalty does not help victims either in the short or the long run and might cloud the legitimate rights of victims in a shroud of apparent vindictiveness. For example, one of the California Victims' Bill of Rights (Proposition 8) provisions is 'Truth in Evidence'. Originally this provision was intended as a way of eliminating the exclusionary rule, a rule that renders illegally obtained evidence inadmissible in court. This particular section of the California Bill stipulates that 'relevant evidence shall not be excluded in any criminal proceedings'. It turned out that such a provision is in fact a double-edged sword. PALTROW (1982) reports that under this new provision it became possible for lawyers in rape cases to have victims examined by psychiatrists or to question the victim about sexual activity she had engaged in shortly prior to the alleged rape.

At the Adelaide Symposium on Victimology, Andrew PATERSON (1996, 227), former executive director of victims of crime service in South Australia said : Victim service agencies which concentrate their efforts on tougher penalties and the reduction of offenders' rights will, in the long term, achieve little by way of creative structural change as they will be largely labelled, filed and ignored by the prime movers in the criminal justice system. Progressive police services cannot afford to be associated with such an emphasis nor can court or correctional service organisations. Victim support agencies that subscribe to the 'law and order' lobby therefore inevitably end up merely providing ammunition for the tabloid media to fire, usually with no long or even short-term effect. Such a direction may even be counterproductive in that it gives the general public a false impression of who victims are and what they hope to achieve by way of justice. The unmitigated desire for revenge and punishment is uncommon enough amongst crime victims, and provides at best only short-term relief in terms of their loss.

Another error was to believe that it is possible to obtain significant rights for crime victims in the present structure of the criminal justice system. A system constructed on the idea that the victimizing act is an offense against society, that the conflict is between the offender and the state, is a system that has no place for the victim. Any attempt to improve or even change the victim's standing without altering the fundamental principle underlying the system is bound to fail.

The danger of promising more than could be delivered

One danger of the rights discourse is that it promises crime victims what cannot be easily or readily delivered. For reasons explained earlier many of victims' rights are more symbolic than real. They look good on paper but are rarely implemented in practice and worst still, the victims are left with no recourse against non-compliance or rights violations. Nothing can be more frustrating to the victim than the painful realization that what they felt were their legitimate and lawful rights are nothing but a series of hollow promises and empty slogans. KILPATRICK and OTTO (1987, 27, quoted by KELLY and EREZ, 1997, 241) describe well this danger : Promising victims' rights that are not delivered may involve a certain danger :providing rights without remedies would result in the worst of consequences, such as feelings of helplessness, lack of control and further victimization....Ultimately, with the victims' best interests in mind, it is better to confer no rights than 'rights' without remedies.

The notion of victims' rights is problematic for yet another reason. In every area of law, rights create duties, obligation and responsibilities. Rights and duties go hand in hand. They are the two sides of the same coin. Stressing victims' rights rather than their needs will require a determination of the duties, responsibilities and obligations they are to be saddled with. Conversely, affirming that crime victims have this or that need and demanding that everything be done to satisfy those needs entails no obligation on the part of the victim and results in less frustration when the needs are not adequately met.

Is restorative justice the answer ?

When tracing the history of victims' rights it was mentioned that the decline of the victims and the usurpation of their rights were a direct result of the introduction of state justice, a system of retributive punishments that replaced the wergeld or the composition paid to the victim or the victim's family. If this is so, then the salvation of crime victims might ultimately lie in the long awaited paradigm shift in criminal justice. The restorative justice movement is gaining momentum and the shift from punitive justice to restorative justice is currently taking place at an amazing speed. Restorative justice is not a new paradigm. It has been practised by the Aborigines in Australia, the Maoris in New Zealand, Canada's First Nation, and thousands of other communities around the world for hundreds of years.

But is restorative justice a viable alternative ? Would victims be better off in a restorative justice system than they are in a punitive, retributive system ? This is neither the time nor the place to extol the virtues of restorative justice. Suffice to say that it is justice for the victim that involves the victim. But it is not difficult to find out how victims feel about restorative justice. Just ask the victims, ask your clients for their preference, whether they want vengeance or redress, punishment or restitution, retribution or justice. Or ask yourselves, what is best for the victim's well-being, what aids the process of healing and recovery ? To reconcile, forgive and forget or to be eaten up by anger, hatred and the urge for revenge. Ask yourselves : who fares better, those whose injuries, harm or losses are adjudicated by the restorative justice of the civil courts or those whose victimizations are punished by the retributive sentences of the criminal courts ?

Conclusion

This paper poses many questions and provides few answers. The reason is rather simple. Many of the questions asked are tough and complex questions for which there is no ready or clearcut answer. The main purpose of the paper is to launch ideas, to raise problems, to create challenges, to provide food for thought and reflection, and to set the stage for continued debates.

The success of future campaigns on victims' rights will largely depend on the arguments used and the strategies employed. The lack of success, the lack of progress, except for the passing of victims' rights legislation, suggests that the arguments need to be sharpened, the strategies need to be refined, and that effective action needs to be taken. Unless alternative strategies are used, crime victims are in danger of becoming one of hundreds of disparate groups who are using the rights discourse in their attempt to seek power, entitlements, equality, liberty, and many other goals.

We have to try hard to find out why it is that despite strident efforts by a dedicated movement, overwhelming public support, and lukewarm endorsement by politicians, the achievements have been less than spectacular. We have to ask ourselves whether the problem lies in the notion of rights itself. The lesson to be learnt from our young experience with victim reforms is that large contingents of those who operate the criminal justice system feel, be it for good or bad reasons, threatened by the powerful concept of rights : defence lawyers, judges, even prosecutors who are supposed to be the guardians of victims' rights. It is this resistance from within the system, I believe, that is mainly responsible for the fact that enacted legislation has not led to the desired practical changes. There are those in the system who fear that active victim participation will radicalize, revolutionize and ultimately jeopardize a well established, though malfunctioning criminal justice system. There are also those who fear that the affirmation of victims' rights will lead to sacrificing traditional legal safeguards and will orient criminal justice in a punitive, vindictive direction. Then there are those who, rightly or wrongly, believe that victims' rights will alter or reduce their long held powers or will pose a challenge to their authority. In view of this, a wise strategy might be, therefore, to do whatever could be done to minimize the threat, allay the fears, assuage the anxiety and appease the concerns created by victims' rights revendications. The success of such strategy however, is far from assured as we have countless examples of well-intentioned reforms that failed because of the system's agents' fear of, and resistance to, change.

KELLY  and EREZ (1997, 242) who thoroughly studied the impact of new victim initiatives on the operations of the criminal justice system offer a pessimistic scenario for the future and cannot hide their skepticism. They write : Even if...research confirmed that victims' rights pose no great danger to the system or to its defendants and resulted in recommendations to put 'the teeth' in such statutes (presumably by creating causes of actions against those who fail to notify victims of their rights), such recommendations would probably never be adopted. Creating rights with remedies would cause the fragile alliance of victims' advocates, legislators, and prosecutors to shatter. As a result, victims are likely to remain where they are, hoping to work with sympathetic criminal justice personnel who will inform them of their rights and help to exercise them, but more likely to remain ignorant of their rights to participate in the criminal justice process.

If the focus on victims' rights is too threatening, too assertive, too unsettling, if it has not succeeded in substantially changing the victim's position or improving their lot and alleviating their plight, an alternative strategy might be worth considering. If the victims' rights discourse creates fear, hostility, resistance and opposition, could a slight change in focus generate more support thus yielding better results ? Could a discourse focused on the needs of crime victims, and how best to satisfy those needs, prove to be more effective, more productive, and in the long run, more successful, than the rights discourse ? Could switching the focus to the differential needs of crime victims be a more sound strategy than remaining dead locked in an endless struggle for victims rights, rights that are for, all practical purposes, restrictive, selective, symbolic, problematic and conducive to conflict ? 
Rights are a sure device for sparking emotions and inflaming passions. Rights are a rallying cry for gathering the troops and calling them to arms. Rights are an issue that engulfs people, generates conflict, ignites fights and plunges people into battles and wars. Rights struggles are militant struggles. So let us not be carried away by the powerful and attractive rhetoric of the rights discourse. Let the mission be to care for all those who need care, to help all those who are crying for help, to come to the rescue of all brothers and sisters who are in distress. Let us avoid the labels, the stigmas, the scarlet letters. Let it make no difference whether those who need our help are victims or offenders, aggressed or aggressors, guilty or innocent, sinned against or sinners. Let us remember that we are no angels, that people constantly move from one of these roles to the other. The roles of victim and victimizer are revolving and interchangeable. Let us not forget that the monsters of today were the victims of yesterday and that today's victims might be tomorrow's aggressors. When caring for victims let us show them the utmost of empathy, love and compassion. And when dealing with offenders let us not allow their horrible deeds to blind us to their innate humanity or childhood history. Let us not define people only by their mistakes or judge who they are only by their misdeeds. After all we will never know what we would have done had we been in their skin, wearing their shoes and carrying their burdens. Let us help people without censuring them, let us care for our fellow humans without condemning them.

Let the Lord be the judge.

References

Canada Law Reform Commission (1974), Restitution and Compensation - Fines. Working paper 5 and 6, Ottawa, Information Canada.
N. CHRISTIE (1977), Conflicts as Property, British Journal of Criminology, Vol. 17, n°1, pp. 1-17.
J.M. DOLLIVER (1987), Victims' Rights Constitutional Amendment : A Bad Idea Whose Time Should Not Come, The Wayne Law Review, Vol. 34, n° 1, pp. 87-93.
R. ELIAS (1992), Which Victim Movement ? The Politics of Victim Policy, In A.J. LURIGIO, W.G. SKOGAN and R.C. DAVIS (Eds.), Victims of Crime : Problems, Policies, and Programs (1990), Newbury Park, Sage Publications, Reprinted In E.A. FATTAH (Ed.), Towards a Critical Victimology, London, Macmillan, New York, St. Martin's Press,. pp. 74-99.
R. ELIAS (1993), Victims Still - The Political Manipulation of Crime Victims, Newbury Park, Sage Publications.
E. EREZ (1990), Victim Participation in Sentencing : Rhetoric and Reality, Journal of Criminal Justice, Vol. 18, pp. 19-31.
E.A. FATTAH (1986), On Some Visible and Hidden Dangers of the Victim Movement, In E.A. FATTAH (Ed.), From Crime Policy to Victim Policy - Reorienting the Justice System, London, Macmillan, pp. 1-14.
E.A. FATTAH (1989a), Victims and Victimology : The Facts and the Rhetoric, International Review of Victimology, Vol. 1, n° 1, pp. 43-66.
E.A. FATTAH (1989b), The Plight of Crime Victims in Modern Society, London, Macmillan.
E.A. FATTAH (1991), Understanding Criminal Victimization, Scarborough, Ont., Prentice Hall Canada Ltd.
E.A. FATTAH (1992a), The Positives and Negatives of the Victim Movement : A Critical Assessment, Paper presented at the 4th Symposium on Violence and Aggression, Saskatoon, June 21-24.
E.A. FATTAH (1992b), Towards a Critical Victimology, London, Macmillan.
E.A. FATTAH (1993), From Crime Policy to Victim Policy - The Need for a Fundamental Policy Change, International Annals of Criminology, Vol.,29, n° 1&2.
E.A. FATTAH (1994a), Victimology : Some Problematic Concepts, Unjustified Criticism and Popular Misconceptions, In G.F. KIRCHOFF, E. KOSOVSKI, H.J. SCHNEIDER (Eds.), International Debates of Victimology, Mönchengladbach, WSV Publishing, pp. 82-103.
E.A. FATTAH (1994b), The Interchangeable Roles of Victim and Victimizer, Helsinki, The European Institute for Crime Prevention and Control.
E.A. FATTAH (1995), Restorative and Retributive Justice Models - A Comparison, Festschrift in Honour of Professor Koichi MIYAZAWA, H. HEINER-KÜHNE (Ed.), Baden-Baden, Nomos Verlagsgesellschaft, pp. 305-315.
B. GALLAWAY, J.HUDSON (1981), Perspectives on Crime Victims, St. Louis, C.V. Mosby.
G. GEIS (1990), Crime Victims - Practices and Prospects, In A.J. LURIGIO, W.G. SKOGAN and R.C. DAVIS (Eds.), Victims of Crime - Problems, Policies and Programs, Newbury Park, Sage Publications, pp. 251-68.
L.N. HENDERSON (1985), The Wrongs of Victims' Rights, Stanford Law Review, Vol. 37, Reprinted (1992) In E.A. FATTAH(Ed.), Towards a Critical Victimology, London, Macmillan/New York, St. Martin's Press, pp. 100-192.
D.P. KELLY  (1987), Victims, The Wayne Law Review, Vol. 34, n° 1, pp. 69-86.
D.P. KELLY  and E. EREZ (1997), Victim Participation in the Criminal Justice System, In R.C. DAVIS, A.J. LURIGIO, and W.G. SKOGAN (Eds,) Victims of Crime, 2nd edition, Thousand Oaks, California, Sage Publications, pp. 231-44.
L.W. KENNEDY and V.F. SACCO (1998), Crime Victims in Context, Los Angeles, Roxbury Publishing Company.
D.G. KILPATRICK and R.K. OTTO (1987), Constitutionally Guaranteed Participation in Criminal Justice Proceedings for Victims - Potential Effects of Psychological Functioning, The Wayne Law Review, Vol. 34, n° 1, pp. 7-28.
L.L. LAMBORN (1987), Victim Participation in the Criminal Justice Process : The Proposals for a Constitutional Amendment, The Wayne Law Review, Vol. 34, n° 1, pp. 125-220.
L.L. LAMBORN (1994), The Constitutionalization of Victims' Rights in the United States : The Rationale, In G.F. KIRCHHOFF, E.KOSOVSKI and H.J. SCHNEIDER (Eds.), International Debates of Victimology, Mönchengladbach, World Society of Victimology.
S.J. PALTROW (1982), Opposite Effects : New Anti-Crime Law in California is Helping Some Accused Felons, The Wall Street Journal, November 26, 1982.
A. PATERSON (1996), Preventing Re-Victimization : The South Australian Experience, In Chris Sumner and al. (Eds.), International Victimology - Selected Papers from the 8th International Symposium, Canberra, Australian Institute of Criminology, pp. 227-31.
P. ROCK (1990), Helping Victims of Crime : the Home Office and the Rise of Victim Support in England and Wales, Oxford, Clarendon Press.
E. VILLMOURE and V.V. NETO (1987), Victim Appearances at Sentencing Hearings Under the California Victims' Bill of Rights, Washington, D.C., U.S. Dept. Of Justice, NIJ (Executive Summary).
F.J. WEED (1995), Certainty of Justice - Reform in the Crime Victim Movement, New York, Aldine de Gruyter.
S.N. WELLING (1988), Victims in the Criminal Process : A Utilitarian Analysis of Victim Participation