The rights of victims within the Criminal Justice System (CJS) have evolved over a period of time. Criminology was predominantly focussed on the perpetrator experience and it is only in the 20th century that great strides were made to study the experience of the victim in context of the crime. Ultimately, the focus did move to the victim experience also and this has led to the evolution of rights or victims within the CJS and to the evolution of support systems for the benefit of victims. This essay will trace the evolution of the victimisation theories over a period of time. Towards this objective, the essay will consider the early victimisation theories and the developments of newer theories. The essay will also analyse how the rights of victims have evolved over a period of time. Finally, the essay will involve a study of the current support systems for victims, that are in place within the CJS.
Victimology is the scientific discipline which involves use of empirical studies around the phenomena and causal relationships related to victimisations. This includes the events that led to the victimisation, the victim’s experience in the aftermath and the actions taken by society in response to these victimisations (Dussich 2006, p.118). The term victimology was used in criminology by Mendelsohn in his 1956 article “A New Branch of Bio-Psycho-Social Science, Victimology” (Dussich 2006, p.116). However, the term was coined by Wertham, who called for a ‘science of victimology’ (Marsh, Coshrane and Melville 2004, p. 104). It is a fact that criminology predominantly focussed on the experience of the perpetrator and victimology did not form the part of criminology discourse even as late as the 1970s (Dietrich 2008, p.1). Nevertheless victimology or victimisation theories became increasingly a part of criminology in the 20th century. These theories ultimately have led to the development of the support systems in the CJS for victims of crime.
One of the first criminologists to speak about victims within the context of crime, was Hentig. He proposed a dynamic approach showing how the victim and offender interacted with each other, or in other words, he challenged the notion that victims were always passive (Marsh, Coshrane and Melville 2004). Hentig contended that victims, at times, contributed to their own victimisation. His primary focus was on women, older people, children or mentally challenged persons. As vulnerable groups, these victims are usually unable to control social or other factors that made them more vulnerable to crime and this led to their victimisation (Fisher & Lab, 2010, pp.338-9). Wolfgang tested Hentig’s thesis on criminal homicide in Philadelphia. he developed the term ‘victim precipitation’ with reference to situations where the victim directly precipitated the crime (Marsh, Coshrane and Melville 2004, p.105).
Wolfgang’s survey (1958) showed that 26 per cent of Philadelphia homicides between 1948 to 1952, were initiated by victim’s violent behaviour. Mendelsohn also supported the victim precipitation approach and he posited degrees of victim culpability, starting from victims who could be said to be completely innocent of any attribution to their victimisation, to victims who were completely responsible for their victimisation (Fisher & Lab, 2010, p.339). Schafer proposed three categories of victims. These were: victims with no responsibility (biologically or socially vulnerable); victims with little responsibility (provocative); and victims with complete responsibility (Fisher & Lab, 2010, p.339).
The victim precipitation approach was important because it trained the hitherto missing focus on the victims of the crime. Prior to this approach, the element of victimology was missing in criminology. Over a period of time, other approaches also developed in the context of victimology. Predominant among these theories were ‘Lifestyle exposure theory’ and ‘Routine activities theory’ (Fisher & Lab, 2010, p.341). These theories attempted to put the victim in the context of the crime. More important approaches developed within victimology over time, with focus on human rights, in particular the rights of the victims (Dussich 2006). This led to the development of victims’ rights, which are discussed in the ensuing sections.
In the context of the crime, victims occupy the central position as the crime is actually committed against a victim. However, for a long time CJS was not focussed on the victim but was focussed on punishing the offender. Then again, in certain crimes, victims faced peculiar problems that were not addressed by the CJS.
In particular, the problem of blaming the victim was most prominent in the issue of rape, where victim blaming was seen even in court processes. An example of this is the infamous ‘Ipswich rape trial’ (R v Allen 1982). In the judgement, the trial judge blamed the victim for hitchhiking alone at night and called this as contributory negligence in her rape. The judge went so far as to say that the case was a tragedy for the defendant. In the context of rape, this is an important and consistent problem faced by victims of crime. Victim precipitation may have led inadvertently to place the blame on the victim (Amir 1967), and led to criticism by feminist criminology theorists such as Carol Smart, for overlooking female victimisation (Ugwudike 2015, p.142). However, it also led to the reformation of the law and judicial process in order to provide support to rape victims and make the court process more empathetic to their problems and needs. In the UK, the victimology approaches within the context of rape has led to the enactment of the Sexual Offences Act 2003, which was implemented in 2004. The law forbids asking victims about their previous sexual experiences as such questions were pointedly asked by defence counsel to prove promiscuity on part of the victims and consent to sexual relations with the offender. This was seen in Morgan v DPP  AC 182, in which the court held that a ‘mistaken’ but ‘honest’ belief in consent should lead to an acquittal even if this belief in consent is not a ‘reasonable’ one (Westmarland 2004).
Another important example of law and policy response to victimisation is the defence of provocation. It is noteworthy that Wolfgang had also asked that defense counsel, prosecuting attorney, and the court should “determine whether such provocation was sufficient either to reduce or to eliminate culpability altogether” (Wolfgang 1958, p.7). In the UK, ‘loss of control’ is a defence for murder under the Coroners and Justice Act 2009. This defence has also evolved into the ‘battered woman syndrome’, wherein the perpetrator of the crime is a woman who was being victimised by the victim of the crime (R v Duffy,  1 All ER 932 and R v Thornton,  1 WLR 1174). The perpetrator woman is shown as suffering from abuse and the actual victim of the crime perpetrated by the murder victim.
The question of victim rights has become central in CJS over time and has been linked to right-based victims’ movements, which demanded a more victim centric approach from the CJS (Wahidin and Carr 2013, p.132). In 1974, one of the most prominent victim-rights movements was established in the UK. The Victim Support, continues to champion the cause of victims.
Muncie & Wilson (2013, p.110) argue that victimology has developed a more macro and global perspective since the time it was first propounded by leading criminologists like Hentig and Mendelsohn. The benefits of this macro approach has been to victims and there is a definite change in policies and practices that are used to ameliorate the position of victims. This is seen in establishment of victim assistance programs, referrals, legal aid, victim compensation, among other support systems that are all seen as important aids in supporting victims of crimes.
These developments are positive manifestations of the victimisation theories that have evolved over time. The victimisation theories that are more human rights oriented are responsible to a great extent, for the evolution of victims’ rights. Restorative justice has also become a very prominent demand from victim-rights movements. It is generally believed that adversarial and retributive models of justice are not suited to meeting the needs of victims and restorative justice model is seen as an alternative to these models (Wahidin and Carr 2013, p.132). The benefit of the restorative model for the victims is seen in the fact that this model offers a more satisfactory and meaningful engagement with victims and it helps in reducing crime because it makes the perpetrators confront the reality of the harm caused by them (Wahidin and Carr 2013, p.132). It is noteworthy that Brathwaite (1989) first came up with the term ‘reintegrative shaming’, which makes the perpetrator face the harm caused and this concept is one of the underpinnings of restorative justice (Wahidin and Carr 2013, p.133).
In the UK, current initiatives include the statutory Code of Practice for Victims of Crime (The Victims’ Code). The Victims’ Code was established by the Domestic Violence, Crime and Victims Act 2004. It is applicable to all criminal justice agencies, including the police, Crown Prosecution Service (CPS), Courts Service and the Probation Service. The significance of the Victims’ Code is that it provides the duties of each criminal justice agency for victims. It also sets the timeframe in which the agencies must perform these duties. More particularly, the rights of the victims that are protected are: the right to be kept informed about the case progress; the right to be informed of when a suspect is arrested, charged, bailed or sentenced; the right to apply for ‘special measures’ for help in court for vulnerable victims; the right to make a Victim Personal Statement in the court, which explains the impact of the crime; the right to be referred to victims’ support services.
The right to be informed of the opportunity to participate in restorative justice is an important aspect of the Victims’ Code. This allows the offender and the victim to both participate in the system. It is however important that both must be willing to participate as this is a voluntary mechanism. Moreover, there has to be a trained facilitator who is also actively involved in the process. The making of a Victim Personal Statement is a right of all victims who report a crime against themselves. Again, this is voluntary. Moreover, the permission of the court is needed to make the statement before it. The statement allows the victim to share how the crime has impacted her or her family. This has been allowed in many jurisdictions around the world. For example, in Australia, there has been a growing trend in allowing greater visibility of victims at sentencing hearings. Courts have allowed Victim Impact Statements to be presented before them at the time of sentencing. Thus, the courts take into consideration the impact of the crime upon the victim before sentencing the offender (Bronit 2010, pp. 54-55). Therefore, allowing of victim impact statements or Victim Personal Statement (as it is called in the UK) is seen increasingly across jurisdictions at the time of sentencing of the offender (Anderson 2015, pp.55-58).
There was a lot of criticism of the sidelining of victims in adversarial justice model, where crime’s impact on its victim was not considered at the time of sentencing. In other words, victims were not centralised in such a model (Wahidin and Carr 2013, p.134). Restorative justice seeks to correct that situation and puts the victim at the centre of CJS.
Criminology has focussed its attention on victimology and different approaches have been evolved to create a better CJS with attention given to victim rights. In the UK, the evolution of specific victim support measures, many of which are statutory, is seen as a positive aspect in favour of victims of crime. Restorative justice has become a part of the CJS process and victims are given the option of participating in restorative justice. Victim Personal Statement can be made by the victim before the court to recount the impact that the crime had on the victim. This essay has helped to understand the evolution of victim centric approach in criminology and the impact of that approach on the CJS.
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