Victim and Society: Sharing Wrongs, but in Which Roles?
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This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial.
KeywordsVictim Complainant Defendant Criminalization Sharing wrongs Community Punishment
The main sources of inspiration for this paper are two. One is what might be called “the rise of the victim” (the term borrowed from Matravers 2010): various changes effectuated or proposed in relation to the criminal law system, with the aim of making the system allow the victim (or alleged victim) of crime more room, more rights, more possibilities to influence, etc.1 Many such changes have been brought about or suggested in an ad hoc way, without enough attention being paid to the system as a whole.2 The second source of inspiration is a discussion regarding criminalization—and criminal law theory in general—which lately has taken partly new, in my opinion more fruitful than earlier, directions.3
Both sources of inspiration have challenged older, well-established ways of describing what criminal law is and should be. For a rather long time ‘critical’ criminal law theory (including criminalization theory, to the extent there was one) worked with overly reductionist pictures of the criminal law: the mechanisms that precede and are at work in and through it, the actors in and around it, and so on. A number of examples might be mentioned; I will touch upon two.4
Firstly, the criminal law was for a long time pictured as an encounter exclusively between the Individual and the State, with no other connections existing between the two of them (that is, connections of relevance for the discussion of criminal law usage) but the criminal law itself. The State, furthermore, was almost exclusively portrayed as (potentially) evil and needing to be fettered. As correct as this picture under certain circumstances surely is, at least for reasons of strategy, it still excludes important parts of what in my opinion is a proper (and more ‘ontologically’ correct) understanding of what the criminal law should be, do, and stand for in an acceptable democratic state.
A second reductionist picture—and this one not only among ‘critical’ theorists but also in the criminal law system itself, as it has functioned and been intended to function—has been the portrait of criminal law as the State’s encounter with almost exclusively one kind of individual, namely the one who needs protection, safeguards, against the State and its criminal law: the offender (defendant, etc.). Those whom the criminal law was there (but in the particular case failed) to protect—the victims (complainants, etc.)—saw their role marginalized, in some jurisdictions almost extinguished, in criminal procedure and criminal law.5
Today, such reductionist pictures are in a process of becoming altered. They get richer. This unavoidably makes them more complex, and as a consequence more complicated to handle. In principle, such changes towards a richer understanding are changes for the better: in the end they will surely result in a more correct, more inclusive understanding of the criminal law. At the transitional stage (which in many senses seems to be present at the moment), though, important matters risk getting blurred, warped or simply forgotten.
A number of such risks are connected to the fact that the victim has re-entered the stage at several levels and, as it seems, in a few quite distinct incarnations. One such incarnation is the concrete, individual victim, the one who may become complainant in an actual case: someone with a name, with a history, with wounds, etc.6 Another incarnation, equally important in relation to our topic, is the reduced, abstract figure the Victim: it possesses a minimal number of characteristics, has close to angelic qualities, lacks all the complexity of a real person, and is abstracted from almost all of context normally related to the situation of a concrete (alleged) crime.7 This figure is a perfect—and, consequently, frequently used—tool for someone who wants to bring forward victim-related (or allegedly victim-related) demands in the political arena: at least openly it is quite difficult to ‘be against’ proposals made in the name of the Victim. One also notices that on the one hand the Victim, on the other hand concrete victims, quite often seem to have different wishes, different views, in victim-related matters.8 Furthermore, the Victim seems to get more political attention than the victims get. To the extent that this development continues it is regrettable, because, among other things, it is more the views of the Victim than those of victims which threaten criminal law as an enterprise searching for a partly new, more adequate balance.
Let us also say something more about the other mentioned aspect of today’s richer picture. Criminal law theory has to an increasing extent started to recognize that there exists—and needs to exist—something between Individual and State in the picture, something which bridges them to each other. This something should, in my opinion, be made explicit for our understanding of what criminal law at all is. This something is community as an ‘us’, a collective which formally (and, in the best of worlds, also in a corresponding material sense) consists of us individuals. Community uses (again, in the best of worlds) the state as its—‘our’—administrative tool. From this should flow, among other things, that we cannot allow ourselves to look upon the State as some kind of free-floating existence, reduced to being a kind of opposite to—as well as in permanent conflict with—the individuals: if there is no tyrant (or with J.S. Mill’s “tyranny of the majority”)9 but a stable, decently functioning democracy with due respect for the basic rights of minorities and individuals, then it is adequate, in some senses, to consider also the State as ‘us’ (or, if this sounds too harsh for the criminal law theorist, as a tool belonging to ‘us’). Any contemporary theory of criminal law, if meant for the kind of democratic society mentioned, must in my opinion recognize—and take a well-motivated stand on the significance of—such bridges between State and Individual.10 The theorist should not be able to get away with less.
Later development in criminal law theory towards recognition of an ‘us’ as an important, bridging factor has been led by Duff (2001, 2007). The suggestions made by S. E. Marshall and Duff in their influential “Criminalization and Sharing Wrongs”—a kind of prolegomenon for a criminalization theory—are a point of departure for my paper (Marshall and Duff 1998, see also Duff and Marshall 2004, 2011). I agree with the idea of crimes as ‘public wrongs’. I agree with the way of suggesting such a ‘public’ dimension as part of the way of deciding what should be criminalized and what should not be. I am grateful for the suggestion that what is done to individuals does not necessarily need to be the starting-point for any theory of criminalization (and neither needs, on the other end of the scales, what is done to the state or the public).11 I think that the idea of ‘sharing wrongs’ says something important—somewhat like a compass—in criminalization matters.12
My paper will have very little, almost nothing, to say on what may (should, could) be criminalized. What I shall do instead is offer what I at least think is an alternative account of the more exact roles of victim and society when, after an (alleged) crime has been committed, it comes to the investigation and the ‘sharing of wrongs’. My account puts, it seems, more emphasis than does the Marshall-Duff account on what happens through the criminalization of a certain class of behavior (or, if it is not a matter of emphasis, I reach partly different conclusions from them). I wish to distinguish rather clearly between the state of things before and after criminalization, respectively. The ultimate aim of the paper is to suggest what I take to be a proper way of characterizing the mechanisms and the conflicts—and the ‘proprietors’ of the conflicts—involved in and around criminal law usage, after a certain class of behavior has been criminalized.
The suggestion here put forward might be looked upon as something of a third way, in the sense that it tries to reconcile, and accommodate, what we might label private as well as public aspects of—and private (personal) as well as public ambitions potentially involved in—such conflicts, without falling into a rigid either public or private divide. It aims to give victim (complainant, plaintiff, etc.) as well as community important roles to play vis-à-vis the offender (defendant, etc.). But—and this is where I think that I at least in some degree start departing from Marshall and Duff—there is more than one conflict involved, and in my opinion the criminal law conflict should in principle be seen as exclusively belonging to (the) ‘us’.
Besides the emphasis mentioned above on what happens through criminalization, I suspect (but am not sure) that the model here suggested presupposes also that criminal cases and tort cases are dealt with together, at one and the same trial. One of my suggestions is that the concrete (alleged) victim of a crime should in such a trial be looked upon as occupying two connected but still distinct roles: one qua him- or herself in a fuller, more personal sense, another qua representative—with a strictly defined role—of the community of individuals which, in the criminal law parts of the trial, collectively and exclusively calls the (alleged) offender to account: this is a community in which any member, in a sense here relevant, could have been the victim.
"The Swedish System" gives a short sketch of the Swedish system’s way of dealing with some matters of interest. This is done mostly because, as hinted above, I think that one probably wouldn’t come up with suggestions such as mine if one didn’t work in a system where criminal and tort cases are handled together—and such is the Swedish system. (This is not to imply, though, that another Swede would come up with even similar suggestions.) It is done also because I believe that, generally speaking, the value of comparative discussions in criminal law theory tends to increase when differences in underpinnings and points of departure are made as visible as possible.13"Criminalization: Before and After" deals with the ‘before and after’ of criminalization. In "A Model: Criminal Conflict and Tort Conflict in the Same Trial", I suggest a way of looking, post criminalization, at the conflicts and actors involved in criminal law. Who has a conflict with whom, and in which role? "A Few Possible Consequences" discusses some issues related to the model sketched. "Final Remarks" adds some closing thoughts.
The Swedish System
In Swedish law, the criminal case (announced as ‘The prosecutor vs (defendant) X’) and the tort case (which would be ‘(plaintiff) Y versus X’ if this case was announced separately) are almost as a rule, even if formally this is not necessary, dealt with at the same trial. This does not mean that the two cases, with their two claims, are one: they are separate cases, involving separate claims, they can be fully separated again, and (in theory, even if in practice not at all) the standard of proof is higher for a conviction than for a successful tort claim.14 The parties in the criminal case are the defendant, the prosecutor and the complainant. The role of the latter is rather limited, though, even if in some ways expanded in recent decades.15 It is the prosecutor who runs the criminal case. In the tort case, the prosecutor has a duty, if the plaintiff so requests, to represent (speak for) the plaintiff.16
It is evident that such an approach as the one here described has advantages as well as disadvantages (and that at least the disadvantages may be practical as well as theoretical).17 I will discuss neither category here. What I’d like to emphasize, and carry forward to the rest of the paper, is that the two cases are handled together, almost—but not completely—as if they were one. The layman would in most cases perceive them as one.18 And I believe that there are potential advantages to be found here, if the trial can be orchestrated in a way which lets the two become one to such an extent—but only to such an extent—that (1) the victim’s needs qua person, qua unique individual, can be reasonably met through it; and (2) the victim also feels sufficiently involved in, of sufficient importance to, how the criminal law conflict is dealt with; and (3) the criminal law conflict is fully in the hands of the “us” (which I think, at least as a very firm point of departure, is the proper way to handle it). These thoughts will be developed a bit more in "A Model: Criminal Conflict and Tort Conflict in the Same Trial", after a discussion in "Criminalization: Before and After" of what could and should be seen as flowing from the “before and after” of criminalization.
Criminalization: Before and After
In order to emphasize that the criminal law in a decent democratic state emerges from (and also should be seen as emerging from) ‘us’, qua community of individuals, we might start with the idea of a group of persons together forming a community of a democratic kind. If these persons are few, they might choose to decide every matter with the participation of everyone. If they are too many for this (as is the case in most jurisdictions), they elect representatives to take care of the group’s decision-making (including lawmaking) qua group. These representatives create and empower some kind of administrative body to effectuate the decisions taken, apply the laws enacted, and so on (and this administrative body will, necessarily, also be given the power to make various decisions ‘on its own’). These are—summarized—the formal links between individual, community, and state. They make it difficult to imagine the criminal law as an encounter exclusively between the Individual and the State.19
Let us now, more specifically, turn to law-making in the shape of criminalization. When a class of behavior gets criminalized (and in what follows let us think of behavior directed at individuals, for example assault), one reason for it should be that ‘we’ (as the group forming the community) are of the opinion that such behavior, when it occurs, is not (or should not be seen as) directed exclusively at the individual who is attacked: this class of behavior, when it occurs, goes so much to the core of our shared (pre-criminal law) value system that the attack, in some relevant sense, is experienced as directed also at ‘us’. Through the criminalization the community takes a stand, stating that this behavior—were it to occur in the future—is to be considered an attack as well on our shared enterprise, on ‘us’ as collective. This latter attack, post criminalization, is no longer only material and symbolic: through criminalization it also becomes formal. Furthermore, through the criminalization the community promises ex ante to take active part in the further dealings, were such behavior to occur again, and this independently of which one of us happened to get attacked. The criminalization is primarily directed at the class of behavior in question, not at any future victims.
There is more to criminalization and sharing wrongs than discussions and decisions about what types of behavior are to be selected for it. What kind of conduct it is justifiable, legitimate, to criminalize is one thing (and one of utmost importance, of course). But when we address the issue of how the wrongs are shared ex post—who might be looked upon as ‘owning’ the conflicts involved, and in what sense?—we need to give careful attention also to (1) our aims in criminalizing conduct, and in having a system of criminal law at all, and (2) the system’s mode of working towards such aims.
Why do ‘we’, ultimately, want to criminalize certain classes of behavior? Not because ‘we’ want to share the wrong done to the victim when the behavior has occurred, but because ‘we’ want the behavior not to occur at all. Our ultimate aim tied to criminalization must be characterized as a general preventive one. The ideal outcome of criminalization is that the behavior in question does not take place. If this would get to be the case, then our newly-made crime is not committed against anyone, in which case there are no victims. If so, then things end where they start, at the level of threats, and there is no need for us to sort out conflicts and wrongs-sharing in relation to any concrete victims. Ultimately, we want no victims. When we criminalize, we wish that the criminalization will protect each and every individual in the jurisdiction from becoming a victim.
In this sense a criminal case, punishment and so forth signify that the system has failed to reach its optimal mode of functioning. This is so for every criminalization, and on a more general level this is so also for the system of criminal law as a whole. It is too vague—and in some senses plainly wrong—to state that a certain class of behavior gets criminalized because we want these things not to occur. Most would agree, though, that once the class of behavior (for some reason) has been criminalized, the first aim of the system in relation to this class of behavior must be characterized as a general preventive one (be it ‘positive’ or ‘negative’).20
Now how does—and should—the system work towards such an aim? Here we may differ in opinions (not least regarding which restrictions should be set on the quest for the goals).21 The general ‘plan A’ has been touched upon: the criminalization itself, as an integrated part of the criminal law system as a whole, ensures that the behavior doesn’t occur at all. Something will also need to be said, though, regarding ‘plan B’, which comes into play when someone has committed a crime.22
How are general preventive effects brought about (if and to the extent that they are: see e.g. Andenaes (1952); and Christie (1992), in particular chapter 4)? Again we find varying opinions and theories, varying also (and highly) in level of sophistication, but one cornerstone difficult to escape is the belief that (a) the threat of punishment and, if the behavior still occurs, (b) a message that the threat has substance—that the norm system and particular criminalization are ‘materially valid’, it might be put (Jakobs 1991: 35)—do an important part of the job. People must be shown that the threat was not empty, which means that some kind of reaction must be brought upon the offender. In order to try to secure (b), among other things, we mobilise the full apparatus of the State (police, prosecutor, courts, and so on), an apparatus which in a well-functioning society exclusively represents ‘us’. If the system is to convey a message of material validity, it needs to make people believe that crimes will (to some relevant extent) be discovered, tried and punished (see e.g. Lacey 1988: 28). What I would like to emphasize here is that this aim does not cease to exist, does not vanish, when an (alleged) crime is committed.
Neither should it, if we work with the idea of shared wrongs as a point of departure. In what follows I shall try to explain why this is so. Before this it should be said, though, that the ‘plan B’ of general prevention, unlike its ‘plan A’, has various competitors: a catalog of other and at least partly competing aims and demands which ‘we’ would (or might) like to reach and meet in the individual case with an individual offender and an individual victim (where there is one): aims of individual prevention, aims of restitution, aims related to mediation, demands for retribution, and so forth. Seldom is one able to maximize all such interests in one and the same case, but acceptable compromises are quite often within reach (when it comes to the structure of the system as well as to individual cases), and, as remarked by Gardner (1998: 32), all that might contribute to criminal law’s legitimacy is of at least potential interest.
What I would like to make more explicit in what follows is something already mentioned: that general preventive arguments still have quite some weight even where ‘plan A’, in the individual case, has failed. The reason for my wish to emphasize this is the impression that once a crime has been committed in an individual case, such arguments seem to tend to get forgotten, because, as is often sweepingly stated, the punishment in the individual case should not depend on—or for example be made proportionate to—anything that has to do with general preventive aspirations. This is a truth with modifications, though: even if the punishment (or whatever follows on conviction) should in principle be guided by other considerations than general preventive ones, it is preferable that preventive considerations—in shape of the ‘plan B’ of general prevention—are able to influence what happens at least to such an extent that the basic demands of this ‘plan B’ are satisfied.
Let us move on to why I think that this should, justifiably, be so. When, through criminalization, we have made the non-commission of a particular class of behavior the business of the system, we have moved from the (pre-criminal law) opinion in society, shared by (at least) a majority of its individuals, that this behavior should be criminalized, and we have moved to the existence of a norm. This norm, in turn, becomes an integrated part of our system of (criminal) law. The state (police, prosecutors, etc.) has the task of upholding the criminal law, and of upholding confidence in the criminal law as a whole. The criminal law, as often described in criminal law theory, is society’s utmost power tool, and it should also be designed to function as society’s (that is: ‘our’) most emphatic statement regarding what it is wrong to do (and, to a far lesser extent, what is right).
The system seldom or never reaches its optimal mode of functioning: “plan A” regularly fails. So let us assume that after our criminalization an offender breaks the law, commits the crime in question (let us stay with a crime against the person). Now at whom, or what, have the attacker’s doings been directed? Before criminalization it is quite natural to see the attack as one directed exclusively—or at least mostly—at the person who suffered it. When ‘we’ experience it as directed also at ‘us’, this becomes a necessary (but not sufficient) reason for us to criminalize the behavior in question.
This concrete victim;
The State, qua guardian of the norm in question as part of the norm system in question;
The norm system, in this case the criminal law system, as a whole;
The Rechtsgut protected by the particular norm in question;
This particular norm, enacted in order to try to protect each and every one of us from having to suffer this particular kind of attack;
The parliament which criminalized the behavior in question, and thus enabled (5);
The community which gives parliament the power to enact norms, and thus enables (6);
Each and every individual who, together with others, forms the community, and thus enables (7).
Without going deeper into issues of directedness,23 let us now ask another question, again with the list of alternatives as a point of departure. This question brings things a bit closer to the issue of roles, conflicts and sharing wrongs post criminalization. The question: For what is the offender punished?
Here our opinions may differ. One way of phrasing an answer, and today again—with ‘the rise of the victim’—a rather common one, is that the offender is punished for having assaulted (exactly) Sven or (exactly) Ulrika. In my opinion, this is not the most adequate formulation. Sympathy and empathy should be offered, but Sven and Ulrika are not in any (for us at this stage relevant) sense unique: any one of us could have been in their place, and ‘we’ would (or at least should) have reacted in an identical manner. Punishment is State punishment, and the criminal law is ‘ours’. In this, Sven and Ulrika represent community qua group of individuals, as would Ingrid and Ingmar have done, had they instead been the victims this time.
In my opinion, a more adequately formulated answer to the question posed is that the offender is punished primarily for having broken the law, having challenged the norm (or even for having challenged the norm system of criminal law), and he or she has done this by assaulting Sven or Ulrika. The norm is there to protect us all, each and every individual, against the kind of behavior in question. The norm is ‘ours’, and through criminalization it steps in as a kind of pillow or shield—a pillow or shield which if the outcome is optimal only threatens—between all us individuals and (those of us, presumably all, who are) potential wrongdoers.24 This pillow or shield function does not vanish when in a particular case, concerning concrete individuals, the threat of punishment has to be realized: in our dealings with concrete offenders and victims the needs of the system, in order for it to be able to protect all individuals from becoming victims in the future, must also be taken into account. This includes the ‘plan B’: the need to confirm that the norm system, including this particular norm, is valid after all.
From such a point of view, to characterize our concrete crime as first and foremost (or exclusively) committed against Sven or Ulrika, qua Sven or Ulrika, is in my opinion to encourage difficulties of various kinds. Firstly, it creates a kind of gap or imbalance between what one might perhaps call different levels of abstraction: between (1) what the criminal law is thought of as being—‘ours’—and its mode of working (general prevention, through general norms with a threat of punishment tied to them; punishments to convey that the threat has substance), and (2) how the individual, concrete case at hand is dealt with.
It seems to me that, if we are to keep (1) and (2) connected, the role of Sven and Ulrika in the criminal law conflict with the offender should be seen as limited to that of representing ‘us’: these two individuals should be looked upon as two of the many in community who could have been victims of the (class of) crime in question. Sven and Ulrika are part of the ‘public’ conflict with the offender, but only (in the particular sense here discussed, it should be emphasized) as quite replaceable representatives, in quite particular roles.25 If we here allow ourselves to look upon them as ‘only’ or primarily private persons, as only themselves, then we lose important parts of the ‘public’ character of our criminal law dealings with the offender. We weaken the particularity which criminal law theory characterizes and cherishes as something so significant for criminal law. Community may metaphorically be said to ‘side with’ Sven and Ulrika, but in the criminal law conflict—and this is exclusively what is being discussed here—such siding should be done through Sven and Ulrika assuming roles—and strictly defined roles—within the ‘us’.
Secondly, if we allow ourselves to look upon the individuals in such a case as ‘only’ or primarily private persons, then the way is paved for further, and misdirected, discussion on the topic of ‘stolen conflicts’ (see Christie 1977). With the view presented here the correct reply to “The State—or community, or whatever—has stolen my conflict!” should be “No, because you never had it”. According to this view, if after criminalization an individual victim wants to claim the criminal law conflict as ‘hers’ or ‘his’, then this resembles—even if the simile is undoubtedly not the best—the situation of someone who in the garden encounters old military objects, long since classified through legislation as belonging to society. When community claims such objects upon discovery it does not ‘steal’ them.
But—and this is surely of utmost importance to emphasize as we have come this far—what has been suggested far from shuts the door on the concrete victim: he or she is a party to the criminal law conflict, qua representative of community, and he or she is furthermore—qua him-or herself in a fuller sense—a party to the ‘private’ conflict, the tort conflict. In the next section, these two roles of the victim will be discussed a little more.
It should also be emphasized that my recommendations here, regarding language use and ‘ownership’ over conflicts, are only concerned with such parts of ownership that would affect the issue of who has the right to decide on matters regarding the criminal law conflict. In my opinion, this right should be exclusively ‘ours’. This does not mean, though, that there isn’t significant room, within such frames, for improving the situation of victims: there is such room, and where there is it should be used to the full extent. But clarity is required. It would, for example, be wrong to object to the victim being informed, if he or she has so requested, when ‘his’ or ‘her’ offender is released (released on parole, for instance), but in my opinion objections should be made to giving the victim any formal role in making such decisions.
A Model: Criminal Conflict and Tort Conflict in the Same Trial
We turn now to the trial and the two conflicts to be dealt with (and their ‘proprietors’). The trial is of course not the only issue which needs to be touched upon, when we discuss conflicts and their ‘proprietors’ after a (purported) crime has been committed. I will focus on the trial; but at least a few points may also be deduced in relation to other issues. Ideally, in my opinion, the complainant-plaintiff comes to the trial in two roles, related but distinct. He or she has one crucial role in each of the two conflicts to be dealt with in relation to the defendant: society’s criminal law conflict, and the plaintiff’s tort one.
The tort conflict is a private conflict between complainant-plaintiff and defendant, victim and offender. If the distinction between the ‘private’ and the ‘public’ is taken seriously, then it should be fully up to the complainant-plaintiff (or indeed victim) whether to pursue tort claims against the offender. If the complainant-plaintiff for some reason wants to try to settle the tort claim outside the court, for example, this should be possible without interference from ‘us’. If, on the other hand, the complainant-plaintiff wants to make such claims against the defendant, then perhaps we should not entirely exclude the possibility that society might take a stronger interest in this kind of private conflict—for example, side a bit more with the victim—than in others, where no crime is involved. One reason for this would be that it facilitates conveying—to the extent that it does not blur—the picture of the two conflicts perceived almostas if they were one.26 This should not alter, though, the ultimately private character of this conflict: the apparatus is there as a possibility for the complainant-plaintiff, if he or she wishes to use it, but that is as far as it should go.
The other conflict is the criminal law conflict. Here the complainant-plaintiff has a far more restricted and ready-made role to step into. Here he or she participates only to a limited extent as the ‘full’ individual. Instead, he or she acts mainly qua member of community, qua one of all the individuals who could have been—and in the future could be—victims of a crime (in general or similar to this one). In some—but far from all—senses the role of the complainant-plaintiff is here limited in ways similar to the roles of the prosecutor, the court, and so forth.
The complainant-plaintiff has one more ‘personal’ claim to make here, though, a claim made together with society and concerning a kind of restitution, but the ultimate aim of this claim is in the end not of an individualizing or personalized kind. To the contrary: the aim is, in one sense, to make complainant-plaintiff as well as defendant less special, to make them ‘non-particular’, not standing out from the rest, again. The defendant (and the rest of the world) is told “you cannot do that to her (either)”, “it is wrong to commit this crime against her or anyone”. We might think of it as confirming that he or she too is as equally protected by ‘our’ law as everyone else is, and that the offender is as equally bound by this law as everyone else is. One more symbolic way of describing what has occurred would be that the offender, through the crime, has tried to raise him- or herself and lower the victim. Then ‘our’ criminal trial should confirm that in the senses here relevant their respective values, or positions, are equal with those of all others in the community.27 In the criminal law conflict the complainant-plaintiff has been attacked, bears witness and testifies exclusively qua member of community: qua member of the ‘we’ who for the protection of all criminalized this class of behavior in the first place. If it were in any sense correct to say that the criminal law conflict at some point was taken away from the victim (see above), then this would have been from the victim qua ‘private’ individual, qua ‘personal’ person. As part of the political collective he or she still owns it, even if this ownership is a joint one, strictly restricted when it comes to the right of disposing of it.
The suggestions sketched here—the concrete victim (complainant-plaintiff) as a representative and so on—also imply some duties. These duties are similar to those of a witness, in the sense that the community requires the victim’s participation (and this should be the case even if he or she did not ‘witness’ the crime at all, as in a burglary where the victim was not at home) (for discussion see Marshall 2004). The criminalization in question is ‘ours’, and we should all be considered to have a duty, among other things—and at least in the sense here discussed—to try to keep this law of ‘ours’ valid.28 Thus, even if the victim for some reason decides to refrain from all tort claims, he or she still needs to participate in the criminal law conflict.
When distinguishing these two roles of the victim it might be fruitful to think in terms of political and personal forgiveness, respectively (see e.g. Digeser 2001; Daye 2004). The two concepts may help to distinguish the (proper) demands of society, ‘us’, from those of the victim, after a crime has been committed. For a victim, it might be difficult (or it might be easy) to forgive the offender. For society, if the term ‘forgiveness’ is at all proper here—but I do think it is—then it is forgiveness of a formal and much shallower kind, a forgiveness given with the “wooden hands” (Hassemer and Reemtsma 2002: 170) that signify—and to a large extent need to signify—criminal law’s dealings with persons and situations. When the offender’s sentence has been served ‘we’ as a (political) community have ‘forgiven’ the offender. To the extent that we may in such a case speak in terms of sentiments, from ‘our’ side these sentiments come ritualized, as procedure and not as substance (compare Digeser 2001: 122). This has rather little to do with personal forgiveness, but still enough to make the two concepts potentially useful for our discussion.
Taking this into account, giving as it does importance to a demand for (rather shallow) equality in how ‘we’ treat offenders, and taking into account as well the idea that general prevention is also an important aim when we are forced into ‘plan B’, it seems to me that to the extent that ideas of ‘ownership’ get tied to a right to decide upon or influence what happens to the case (including the defendant), the complainant-plaintiff should in principle, qua private person, not ‘own’ the case at all.29 The criminal law case is a collective venture, and in this collective venture various actors assume various roles: the prosecutor plays one role, with its particular tasks, and the victim plays another, with its particular tasks. Both of them, in the criminal law parts of the proceedings, work for, and are part of, (the) ‘us’.
A system like the one sketched here would be equipped with at least some tools barring the ‘two against one’ impression which today seems to be getting stronger when complainant-plaintiffs are given more room in the criminal proceedings, without their proper role(s) having been sufficiently clarified. It is of utmost importance to remember, even if this paper has dealt almost exclusively with the role of the victim (complainant-plaintiff) in relation to ‘us’, that the offender (defendant) is also part of ‘us’ and should be treated accordingly (see e g Duff and Marshall 2011: 170 s. 2).
Among other things, this means that the model sketched in my paper is not meant to imply that any of the neutrality which informs how the professional representatives of the ‘us’—e.g. the prosecutor—deal with the alleged victim and the alleged offender at stages before conviction should be altered. Instead, I see my suggestions as something which might help bar such alterations of unwanted kind.
And here the idea of an ‘us’, a community, between and bridging the Individual(s) and the State, proves useful, because it suggests the possibility of something like a ‘third way’. With the locked, black-and-white dichotomy of the Individual and the State, the impression is conveyed that the only alternatives available are either that the criminal law conflict with the defendant (offender) stays fully in the hands of the State (a State which in this reduced picture lacks connection to any ‘us’ of relevance: the criminal law is exclusively an enemy), or that the conflict goes out of the hands of the State and into the hands of individuals or small communities as pictured by e.g. NilsChristie (see e.g. Christie 1992, chap. 10–11). But there are interesting possibilities to be found in-between. This makes it valuable to think further about the contents and possibilities of (and problems connected with) an ‘us’, within which we as individuals are presumed (and hopefully also prepared) to assume various roles in relation to criminal wrongdoing.
Needless to say, we need to flesh out in much more detail what can and should (and should not) flow from bringing an ‘us’ into criminal law theory’s (in these areas) shrunken equations. There is of course no point in letting ‘us’ stay a formal entity on the drawing board, in the way that classical-liberal criminal law theory has created and maintained the reduced picture of the State and the Individual: the idea of the ‘us’ would then do little good and possibly even more harm. It might e.g. come into play as a legitimizing tool, rhetorically, for repressive regimes of various kinds. But this should not be the idea: instead, the idea should be that much elaboration and discussion is needed, and this as part of an even more general discussion of criminal law’s ideological underpinnings.
A Few Possible Consequences
In this section I will make some short, sketchy remarks on a few matters—among many possible—in relation to the model suggested. They concern, broadly, possible consequences of (the) ‘us’ as full proprietor of the criminal law conflict.
First, the model makes it difficult to escape the opinion in principle—at least as a firm point of departure—that private prosecution should not exist (compare Ashworth 1986: 107 f). We perhaps need not take things as far as stating that the individual qua him- or herself should be completely excluded from decisions regarding the criminal law conflict (and neither, perhaps, needs we say that ‘we’ should be completely excluded from the tort conflict): the world tends to be a bit more complex than such all-or-nothings allow, and this is true also for criminal law. Any system of criminal law will inevitably need a number of compromises, hybrids, safety-valves and so on, some of which one might not be able to defend as consistent parts of one’s more ‘pure’ model of the system. Thus, some limited room might need to be allowed for decisive or at least influential agency from the side of the victim. It would be preferable, though, for such possibilities to influence to be of material more than formal kinds.
Second, does it follow from (1) the view that the community exclusively ‘owns’ the criminal law conflict with the offender, that (2) the gauging of harm in the individual case, something which of course must be a crucial component when decisions are to be reached regarding penal value (see e.g. von Hirsch and Jareborg 1991: 170), should be done in relation to ‘us’, the community, and not in relation to the concrete victim? My answer would be: in some senses no, but in some senses yes. Let us start with one ‘no’. Even if the criminal law conflict—when the issue is who gets to decide over it—should be seen as existing exclusively between offender and community, this does not and should not mean that the gauging of criminal harm should be designed as a search for what, in the concrete case, has been caused to ‘us’, to society. Even if suggestions in such a direction do exist (or can at least be interpreted to exist, see e.g. Becker 1974), I find it hard to imagine that such a starting-point could be made satisfyingly practicable. My suggestion would be that the gauging of harm should still be grounded in that which occurs between concrete offender and concrete victim.
Third, turning now to one ‘yes’, I touch on the issue of what and how to criminalize. This is something on which the themes of this paper have not had much direct bearing (my intention has instead been to discuss what happens—in terms of conflicts, ‘proprietors’, roles and so forth—when a certain kind of behavior gets criminalized). But some possible links there might be, and this is one. A choice exists, when we have decided to localize our gauging of harm to the relation between concrete offender and concrete victim—and not to the relation between offender and society. This choice regards which of two aspects should be emphasized: (1) what the offender has done and (2) what the victim has been caused to suffer. My suggestion would be this: If we accept that criminal law, once in place, is there to prevent certain kinds of behavior, and if we accept that the criminal law conflict exists exclusively (or at least almost exclusively) between ‘us’ and the offender, a conflict in which the victim participates only as representative of the collective, and if furthermore there is a parallel tort conflict, where the victim takes part (or chooses not to participate at all) qua him- or herself in a much fuller sense than in the criminal law conflict, then this should in principle also influence the design of the criminal law.
And there I would suggest that more focus than there is today should be on behavior, looked upon in a more typified manner, and less focus than there is today should be on resulting harm (or not) to concrete victims in individual cases. When a criminal statute is constructed, more focus should be on typically dangerous behavior, less focus on the causing of effects. They largely belong in different conflicts. I cannot see that ‘moral luck’ should be of much importance to the way ‘we’ handle the criminal law conflict. Let us pick one example regarding this cluster of thoughts (this regarding penal value): shooting at another with intent to kill. Whether the bullet hit the head, or instead missed the head by a centimeter, of course makes all the difference in the world to the concrete victim of flesh and blood. But if the required intent for murder was present, then in my opinion such differences in outcome should only affect the criminal law conflict to a small extent. They should instead be dealt with mainly within the ‘private’ parts, within the tort conflict.30
One might wonder, as with every theoretical construction or reconstruction that to some extent deviates from what exists, whether and how what is suggested would work in practice. Is it at all possible, for example, to orchestrate the trial in a way that would satisfy the hopes expressed in this paper (the two distinct but connected roles of the complainant-plaintiff etc.)? It would demand much from the court and other actors of the ‘us’, not least in terms of pedagogic abilities and efforts. But were it to be considered possible for example to educate a jury—or lay people participating in other ways as part of the court—about what to take into consideration and what not, what questions to answer and what not, it probably would be possible to move things in such a direction. And if the suggestions would also build on what seems to be structures already in place (even if not conscious), then this might increase the possibilities.
My aim here, though, has been different and more preliminary: to contribute to a discussion which in the end needs to result in an awareness of, and a greater theoretical clarity and consistency about, the quite fundamental issues involved.
something needs to be said initially regarding how the term ‘victim’ is treated in the paper. When writing on a more overarching level regarding ‘victim’-related matters, it is difficult to find adequate concepts. Today, ‘victim’ tends to be used in narrower as well as broader (and sometimes utterly broad) senses. A narrow sense should demand, roughly, proof that a crime has been committed against the person (etc.) in question. Various broader senses have—and this not seldom for propagandistic or ‘political’ purposes—rather few limits to their use, except that some connection (or at least connection in spe) needs to be established with the criminal law. This easily confuses (Lernestedt 2011). Still, one does not always want to stay exclusively with the concept in the narrowest sense: it is often valuable to be able to transcend the legal categories (and sometimes even the legal itself). One possible alternative is to speak, generally, in terms of ‘the victim side’ and ‘the offender side’, respectively, and when necessary complement it with the appropriate legal terms for the particular stage discussed (‘the suspect’, ‘the defendant’, ‘the offender’, etc., for the ‘offender side’). In what follows I do not pick any definite strategy; I ask the reader to keep in mind the problems here mentioned. In "A Model: Criminal Conflict and Tort Conflict in the Same Trial", which concerns the trial, it is referred to ‘the complainant-plaintiff’. This emphasizes the idea that the same person of flesh and blood, through what one might think of as two aspects of him or herself, occupies two distinct but related roles in the trial.
According to Ashworth (1986: 86) “the tendency has been to introduce piecemeal changes on pragmatic grounds, with a characteristic reluctance to discuss general issues and the underlying principles. Initiatives in favour of the victims of crime may have the political advantage of increasing public support for the administration of criminal justice, but a piecemeal approach carries the risk that inconsistencies may creep in and that the different treatment of apparently similar groups may lead to allegations of unfairness”. Ashworth’s reflection dates back to 1986; I would say, at least from a Swedish perspective, that things are still rather much the same.
See, e g, Simester and von Hirsch (2010) and works by Duff and Marshall mentioned in what follows.
A bit more thorough discussion concerning such reductionist pictures, and the relation between this kind of “setting” and various existing surroundings, will be found in Lernestedt, One Size Fits All? On Normative Theorizing in Criminal Law (forthcoming).
One further reductionist aspect of importance might be mentioned (but will not be pursued here): the blank, or supposedly blank, image of criminal law’s individual. Here, critique from e.g. structural perspectives (class, gender, cultural) has been valuable; a richer picture is needed. See (in Swedish) Lernestedt (2010).
This is not meant to exclude—mutatis mutandis—e.g. legal persons as victims (plaintiffs, etc.).
This figure has some resemblance to Nils Christie’s “ideal victim”; see Christie (1986).
This to the extent, of course (presumably varying largely with issue), to which the victims may at all be considered a homogenous group when it comes to their opinions in victim-related matters.
“The will of the people … means the will of the most numerous or the most active part of the people—the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number, and precautions are as much needed against this as against any other abuse of power” (Mill 1982).
The potential risks with these parts of the changing picture are perhaps not as easily discernible as are those with “the rise of the victim”. One might expect, though—generally speaking—that a softening-up of the “Evil State” image makes us more open in principle to accept criminalization in areas traditionally rejected, partly or fully, by classical-liberal theory. It is not an absolute truth—but a proposal that needs to be defended and qualified—that criminal law’s central goal is to be as restricted as possible.
In the German discussion, e.g., much (and in my opinion too much) emphasis has been on the idea that the protection of Individualrechtsgüter is the natural starting-point—and, it sometimes seems, almost the end-point—of the discussion on what may be criminalized (see e.g. Hassemer 1989). Compare also the relatively scant attention which is given to behavior directed at state or public interests—except regarding offense and moralism, traditionally ‘sexy’ issues for the criminal law theorist—in Feinberg’s (1984–1988) monumental four-volume work The Moral Limits of the Criminal Law.
This does not mean, though, that there aren’t (many) discussions to be had, clarifications to be made, regarding the use of this compass—and the shape of the “we”—in criminalization matters; see e.g. Madden Dempsey (2011: 267 ff).
We might refer to it as the ‘setting’ and the surroundings of a theory; see note 5.
This means that in theory the outcome may differ between criminal case and tort case, in the sense that the court does not find what is required for the offender to be convicted of the crime, but it does find what is required for the tort claim to be successful. In practice, though, this never occurs. The approach seems to be rather rare in a comparative perspective (also in e.g. Norway and Finland, with systems quite closely related to the Swedish one, such differences in outcome occasionally exist). The approach might, to some extent, also be considered a disadvantage or weakness of a system. All things considered, though, I am not too sure that it should be considered a weakness: in the eyes of the layman it seems rather strange that X has not killed Y criminal law-wise, but has so tort-wise, and such layman’s views are of relevance for the model here sketched.
The rather ancient Swedish term still used for complainant (målsägande) means more or less “the owner of (the right to talk on) the matter” (initiate it before the court, demand restitution, retribution, etc.).
For certain kinds of crimes (violent, sexual, etc.) the complainant-plaintiff may also have a right to legal counsel, who assists him or her e.g. with the tort claims.
See e.g. note 14.
Again, compare note 14.
This is, of course, not to say that individuals do not need protection against e.g. too much discretionary power in the hands of state officials. It is only to say that the problem is not the State as such.
One might say, of course, that “the criminal law’s distinctive aim is to define, and provide appropriate responses to, wrongs that are ‘public’ in that they concern all the polity’s members” (Duff, et al., in the official document outlining the scope of their Criminalization project). But one should presume that there is (at least) also a third aim of the criminal law, an aim that comes into play in between the two, after the defining and before the providing of appropriate responses: the aim of making the behavior not occur (or occur as little as possible). One would assume, given criminal law’s suggested role in society, that those wrongs picked out as ‘public’ are also unwished-for, and that one at least should hope that the criminalization in itself makes the behavior occur less frequently. This is not to say, it should be emphasized, that a wish to prevent some class of behavior justifies criminalizing it. Neither is it to say that criminalization is unjustified if we know that it wouldn’t affect the occurrence rate of the class of behavior in question. It is only to say that once a new criminalization is there (for whatever reason, with whatever legitimation), we wish it to work preventively.
One issue among many would be which principles should govern the determination of penal value.
A ‘plan B’ may of course have many components, including e.g. individual preventive ones. In what follows, I will concentrate on the general preventive component.
I might add, though, that if one would see as the most proper formulation that what has happened has been directed exclusively at the victim, then—in my opinion—one is promoting a picture of the criminal law which definitely should belong to the past (compare "Introduction" above, regarding the reduced picture of State versus Individual and so forth).
One might also, if wishing to take things one further level up, look upon the norm system as a shield or pillow for the single norm enacted through the criminalization.
Compare—although there are also some significant differences, of course—Dempsey (2011: 262) regarding the roles of criminal justice officials: “The next step is to identify whom the criminal justice official represents when she acts in her particular role. By acting qua legislator, police officer, prosecutor, judge, jury or jailor, individuals act not only on their own behalf, but also as representatives of distinct groups. Most obviously, criminal justice officials act as representatives of the polity or sovereign in whose name they act … Moreover, insofar as their actions are performed in a context which meets a certain threshold of political legitimacy, the criminal justice officials can be understood to be acting as representatives of their communities.” Compare also Duff and Marshall (2004: 47), regarding victims participating in post-conviction discussions with the offender: “Now victims are citizens, who therefore share in the responsibilities that citizens have … [If] victims choose to take part in such a discussion, then they have a responsibility similar to that of jurors, to try to articulate and communicate, not their own individual and possibly idiosyncratic interpretation of the crime, but a suitable collective interpretation that could count as ‘ours’. For they are now engaged in a public, not a private, process, which addresses the wrong as a public wrong committed by one citizen against another: despite whatever values, or interpretations of values, they might argue in other fora … in this forum they must speak as citizens, in terms both of the values that define their polity and of interpretations of those values that can count as the polity’s interpretations of them.”
This issue is, though, a highly complicated one, not least when related to ideas of equality between different groups of ‘victims’ in a broader sense (with ‘crime victims’ as just one subgroup): are there reasons strong enough—if any—to put crime victims in a special position, to give them more economic support, for instance, than other kinds of victims get? Compare Ashworth (1986: 100).
Compare the discussions in Murphy and Hampton (1988). Their focus is, though, more on the level of persons qua persons, less on the “political” level where the criminal law conflict in my opinion is located; see shortly below.
This path, though, seems in the end to lead in directions few would encompass for one’s society: if I, as part of community, would have a more general duty to keep the law valid, then I might be presumed e g to be obliged to report crimes, try to stop them if I see them, and so on. Hence, limits need to be set.
This works both ways: to protect the offender (defendant) from a punishment harsher than it should be (were the victim in this particular case to try to get a harsher sentence), and to protect the validity of the norm in question. Compare the Court of Appeal in Buchanan (1980) 2 Cr App R (S) 13, as quoted in Ashworth (1986: 119), responding to a “long and loving letter” from the victim, with whom the offender had lived for many years, in a domestic wounding case: “When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern. The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence [when] the victim, after the event, has entirely forgiven the offender and is anxious to minimize the punishment.” See further Ashworth (2005: 356), where he argues as follows regarding victims’ statements as to sentence: “It is unfair and wrong that an offender’s sentence should depend on whether the victim is vindictive or forgiving: in principle, the sentence should be determined according to the normal effects of a given type of crime, without regard to the disposition of the particular victim. If it is then said that allowing the victim to make a statement on sentence is not the same as allowing the victim to determine the sentence, one wonders about the point of the exercise. Victims’ expectations might be unfairly raised and then dashed if a court declines to follow the suggestions made, and the whole process might appear to victims as a cruel pretence.” This will most likely be the case, to the extent that ‘we’ do not make clear to victims the role in which they participate in the criminal law conflict. But see s. 5 below for a few comments on private prosecutions.
For valuable comments I am indebted to Antony Duff, Vagn Greve, Malcolm Thorburn, Nina Peršak and the participants in the Criminalization workshop arranged by Andreas von Hirsch and Antony Duff at the IVR congress, Frankfurt am Main, August 2011. Also for (equally valuable) funding I am indebted: to the Swedish Research Council and the Swedish Crime Victim Compensation and Support Authority.
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