This proposal outlines the goals of the Buffalo Criminal Law Center's conference on Victims and the Criminal Law, Sept. 12, 1998. For the accompanying bibliography, see Selected Bibliography on Victims in U.S. and German Criminal Law.
I. Abstract
In the United States and Germany today, few would disagree that crime victims should occupy an important role in the administration of criminal law. Despite this consensus a comprehensive theoretical and institutional approach to the relationship between victims and the criminal law has yet to be developed. We propose to undertake a comparative analysis of the criminal justice systems of both countries to fill this gap by devising a systematic framework for the recognition of victims in all aspects of the administration of criminal law.
II. Extended Project Description
A. The Role of Victims in American and German Criminal Law Today
Crime victims today affect virtually every aspect of the criminal law in both the United States and Germany. This fact becomes obvious as soon as one abandons the parochial focus on substantive or procedural matters characteristic of much of the writing on the subject of victims and the criminal law. In the United States in particular, the role of victims in the substantive criminal law has gone virtually unnoticed.
In substantive criminal law, which concerns itself with the definition and interpretation of penal norms, the behavior of victims impacts criminal liability at all levels, from the scope of penal prohibitions to the availability of defenses. To pick a current example, the German parliament only recently expanded the definition of rape to include marital rape (Schünemann 1996). From 1871 until 1997, the German Penal Code had not criminalized an act of sexual violation that would have constituted rape in any other case, as long as its victim was the perpetrator's wife. (Widespread criminalization of marital rape in the United States occurred in the 1980s (Sitton 1993; Warren 1995: 143)).
Still on the level of substantive criminal law, it has been proposed by several German commentators that modern society's trend toward continuing criminalization should be combated by the restrictive interpretation of certain criminal provisions depending on whether the victim in the particular case deserves or needs protection (so-called Viktimo-Dogmatik) (Schünemann 1982, 1984, 1986a, 1986b).
Furthermore, victim behavior often determines the availability of a justification or excuse defense. For example, victim consent is generally considered a justification for nominally criminal conduct. Thus a surgeon is justified in engaging in conduct that would otherwise constitute battery if her patient consented to the procedure. This facet of the victim question has recently attracted much attention in the United States, as American courts have struggled to decide if a physician who assists a consenting terminally ill patient can avail herself of a justification defense (Compassion in Dying v. Washington 1996; Quill v. Vacco 1996).
Perhaps the most prominent example of a victim sensitive justification defense is the defense of self or of property. In either case, it is the conduct of the eventual victim that exculpates the accused, who merely responded to the infliction, threatened or actual, of unlawful harm by the victim. In American practice, cases of domestic abuse in which a woman kills her male partner often come down to the question of who is considered to be the "true" victim, the deceased man or the accused woman, who had suffered from "battered woman syndrome" after years of abuse at the hand of her husband (Coughlin 1994; Moore 1996). In cases where self-defense is not available, American criminal law also recognizes a partial excuse defense of provocation, or extreme mental or emotional disturbance, the availability of which likewise turns on the victim's conduct.
Apart from their significance in substantive criminal law, victims also play important roles throughout the criminal process strictu sensu, that is, in the application of penal provisions in particular cases. In most cases, it is the victim who decides whether the criminal process is set in motion at all. For example, even if marital rape is criminalized, many women in fact immunize their husbands from criminal liability by failing to report instances of rape in their marriages. Even after a possibly criminal act has come to the attention of the state, the victim can influence the process in various ways, such as by deciding whether or not to press charges or, later on, by deciding whether or not to testify. To return to the example of domestic abuse, several jurisdictions in the United States have enacted so-called mandatory arrest laws that remove the victim's discretion whether to press charges, all in the name of protecting the victim's interests in the long run (Hanna 1996: 1860 n.36; Corsilles 1994).
Should the case go forward, the victim continues to shape the process in various ways. In both the United States and Germany, the victim may participate in the trial through her testimony and, indirectly, by assisting the prosecutor's investigation. In Germany, the victim may also serve as parallel or private prosecutor and, in that case, has the right to legal assistance. The parallel prosecutor (Nebenkläger) joins the public prosecutor at trial. In certain trivial cases, the private prosecutor (Privatkläger) may replace the state prosecutor altogether. As parallel or private prosecutor, the victim and her representative enjoy extensive participation rights, including the right to question witnesses, to peruse the case file (through her representative), to challenge the composition of the court, to file evidentiary motions, and to make closing arguments (Dubber 1997). Even victims who do not or cannot participate in the trial as private or parallel prosecutor are entitled to receive information regarding the case, to access the case file, and to be represented by an attorney at state expense.
In the United States, it has recently been proposed that the verdict in criminal cases be reformed to avoid the perception that an acquittal necessarily reflects disrespect for the victim (Fletcher 1995: 180, 246). According to this proposal, criminal verdicts should be divided in two, with the first part addressing the question whether, based upon the facts established at trial, the accused violated the penal provision in question, and the second part deciding whether the accused nonetheless should be acquitted because her conduct was either justified or excused.
Even when the case is disposed of without a trial, the victim can impact the process. For example, several jurisdictions in the United States provide for victim participation in plea negotiations, although that participation may be inconsequential in practice (Fletcher 1995: 190). In sharp contrast to German criminal law, which provides for no victim participation in cases that do not go to trial, some victim rights legislation in the United States has gone so far as to call for the outright elimination of plea bargains or at least their limitation to minor cases, with similarly limited success (Dubber 1997). The amendment to the United States Constitution currently before Congress would extend to victims a panoply of procedural rights well beyond the trial: "to be informed of and given the opportunity to be present at every proceeding in which those rights are extended to the accused or convicted offender; to be heard at any proceeding involving sentencing, including the right to object to a previously negotiated plea, or a release from custody; to be informed of any release or escape and to a speedy trial, a final conclusion free from unreasonable delay, full restitution from the convicted offender, reasonable measures to protect the victim from violence or intimidation by the accused or convicted offender, and notice of victims' rights."
Of the rights enumerated in the proposed amendment, the right to victim participation in sentencing has attracted the lion's share of attention in the United States (Long 1995). In death penalty cases, for example, the United States Supreme Court now permits the use of so-called victim impact statements in the trial's second--or penalty--phase, during which the sentencer--most often a jury--chooses between life imprisonment and the death penalty (Fahey 1992; Dubber 1993). The permissibility of victim impact statements in the form of testimony by relatives of murder victims was one of two victims' rights issues that featured prominently in the recent capital trial of Timothy McVeigh, the man convicted of the 1995 bombing of the Alfred Murrah federal building in Oklahoma City. In fact, the victims' right to testify at sentencing initially collided with the victims' right to attend the public trial as the trial judge barred victims who planned to testify at sentencing from the courtroom during the first--or guilt--phase of the trial. It took an act of Congress to resolve the apparent conflict among victims' rights by removing the statutory obstacle to the victims' attendance at the trial. In the United States, the testimony of surviving victims has long played an important role in less serious cases. For example, adult victims of a convicted child molester may testify at the sentencing hearing to describe the pain they suffered as a result of their sexual abuse as children.
Understandably, public and scholarly attention in the United States tends to focus on the victim's role as an aggravating factor in the sentencing decision. Victim participation in sentencing in fact tends to have an aggravating effect, especially since, in the United States, a convicted murderer does not have the right to put a relative of her victim on the stand to testify to her desire not to have the death penalty imposed. Moreover, the mandatory sentencing guidelines for federal courts in the United States provide that the sentence be increased in non-capital cases if the victim displayed certain characteristics known to the offender, including race, color, religion, national origin, ethnicity, gender, disability, sexual orientation, unusual vulnerability, or government service (United States Sentencing Guidelines 1996: §§ 3A1.1 & 3A1.2).
Nonetheless, victim conduct at the time of the act may also mitigate the offender's punishment. The same federal sentencing guidelines provide that "victim misconduct" may reduce the sentence even if that misconduct did not rise to the level of a justification or excuse such as self-defense or provocation. (§ 5K2.10).
In more radical proposals, the victim takes a far more active role in the process of punishment imposition. The offender-victim conferences proposed by John Braithwaite, for example, seek to capitalize on the shaming function of the criminal process (Braithwaite 1989; Braithwaite & Pettit 1990). In this conception of the criminal process, the victim, as a representative of the moral community, confronts the offender with the deviance of the offender's act. The state merely sets the stage for this shaming interaction at the level of civil society or more localized communities. The state-facilitated communal shaming ceremony then enables the offender's reintegration into the community. The institutional models for this approach stem from the realm of juvenile justice, where informal processes designed to reintegrate the youth into the community have long been the norm (Mead 1918; Levine 1996).
German criminal law scholarship has shown considerable interest in the reconceptualization of punishment as conflict resolution or reconciliation between victim and offender, generally referred to as Täter-Opfer-Ausgleich (TOA) (Sessar 1983; Frehsee 1987; Schöch 1987 & 1992; Dölling 1992; Roxin 1992 & 1993; Trenczek 1992 & 1996; Alternativ-Entwurf Wiedergutmachung 1992; Netzig & Petzold 1996), although the enthusiasm for this approach has not been universal (Hirsch 1989 & 1990; Seelmann 1989; Albrecht 1993). Some German scholars have gone so far as to call for the wholesale abandonment of criminal law in favor of a civil law dispute resolution system between private plaintiffs and defendants (Lüderssen 1995).
A far more modest acknowledgment of the significance of reconciliation between offenders and their victims found its way into the German Penal Code in 1994. A new TOA section (§ 46a) now permits the judge to reduce, and in minor cases even to forego, criminal punishment provided the offender has made the victim whole, or at least sincerely has attempted to do so. Section 153a of the German Code of Criminal Procedure even permits the prosecutor to dismiss the case on the condition that the offender pay restitution to her victim.
Reconciliation between offenders and their victims plays a fairly modest role in the American criminal justice system. Each year, a small percentage of cases are disposed of through VOM, or Victim-Offender-Mediation, which usually involves a face-to-face meeting between offender and victim with the aim of reaching a restitution agreement. The response of criminal law scholars to VOM has been mixed at best (Brown 1994; Bakker 1994).
In addition to these individualized restitution programs, the federal Office for Victims of Crime provides an example of a large scale and system wide shift of offender resources to victims. The Office for Victims of Crime administers the $600 million Crime Victims Fund, which is derived from fines and penalties paid by individuals convicted of federal crimes. According to the Office for Victims of Crime, the Fund is used "to assist in funding [the states'] victim assistance and compensation programs, which are the lifeline services that help many victims to heal." In particular, the Fund compensates victims for "out-of-pocket expenses resulting from crime, including medical and mental health counseling costs, lost wages, and funeral expenses" (cf. OEG 1985).
In general, however, the call for greater victim participation in the United States has not been a call for restitution or even reconciliation, and certainly not for the mitigation or even the replacement of criminal punishment through victim-offender meetings. In sharp contrast to the German criminal process, the expansion of the victim's role in the United States has been motivated not by rehabilitative, but by incapacitative, concerns.
So far, we have touched on ways in which victims shape the definition and imposition of criminal norms in the institutions of substantive and procedural criminal law, respectively. Victims, however, can also impact the third and final stage of the criminal process, during which the punishment threatened in the codes and imposed in the courts is actually inflicted on the offender. In the United States, victims may have significant influence on the disposition of such post-imposition matters as a prisoner's eligibility for parole or pardon (May 1989). Victims may even be placed in the position of a quasi-parole officer monitoring the convicts' adherence to the conditions of her punishment if the penalty requires the performance of certain acts designed to benefit the victim, be it in the form of monetary restitution or of personal services (such as the rebuilding of a damaged garage or the painting of a sprayed wall).
III. Toward a Comprehensive Approach to the Role of Victims in the Criminal Law
To replace the current hodgepodge of institutions and procedures with a comprehensive approach to victims in the system of criminal justice, one must settle the fundamental and preliminary question of why victims should play any role in the administration of criminal justice whatsoever. The development of modern criminal law is, after all, the continuous displacement of the victim from the criminal process. In premodern times, the victim's (or the victim's kin's) hue and cry might have set in motion a process that itself amounted to little more than a contest between the victim's oath and that of the accused, with witness-jurors vouching for the credibility of one or the other. Yet, as the standard story goes, it was the state that eventually asserted an interest in punishment beyond, and eventually in place of, the victim's interest in restitution or retribution. The state's interest lay in deterring future criminal acts. The particular victim was of no more consequence to the state than was the particular offender. Both were significant only insofar as their interaction permitted the state to send a deterrence message to its constituency (so-called general deterrence), of which the victim and the offender were but two members (so-called specific deterrence).
One might therefore see the recent reemergence of the victim in criminal law as a shift away from the traditional conception of state punishment as general deterrence. Perhaps the interest in victims' rights in the United States is therefore merely symptomatic of the rediscovery of retribution, or "just deserts," as a goal of state punishment and the concomitant disillusionment regarding consequentialist justifications of punishment, including general deterrence and rehabilitation (von Hirsch 1976; Allen 1981).
Then again, perhaps the widespread resonance of the victims' rights movement in the United States instead indicates a move away from deontological punishment theories, displacing retribution with its consequentialist analogue, vengeance. The much-debated return to retribution thus would emerge as nothing more than a brief interlude in the continued dominance of consequentialist state punishment. Under this hypothesis, the constant clamor for victims' rights in the United States may represent the empathic identification of the public with victims to the exclusion of offenders. In fact, the very image of the offender as common enemy-outsider may turn out to form the basis of that empathic relationship.
From early on, the victims' rights movement in the United States thus equated the call for victims' rights with the fight against defendants' rights and the call for harsher sentences for offenders. The recent slew of so-called "three-strikes-and-you're-out" statutes, which impose mandatory life sentences upon third offenders, sprang from the victims' rights movement (Dubber 1991; Dubber 1995). As a backlash against what many perceived as the excessive expansion of defendants' rights in the 1960s and 1970s, victims' rights advocates sought to take rights out of the hands of defendants and place them into the hands of victims. Once the state prosecutor had become conceptualized as the representative of victims only--reflecting the offenders' exclusion from the community--any new rights that victims acquired were transferred to the prosecutor to strengthen her in the courtroom battle with the still hyperprotected defendant.
More generally speaking, the rise of victims' rights in the United States may represent the gradual disappearance of the requirement that state punishment be justified in a principled fashion. Given the divide between public and offender, on the one hand, and the corresponding link between public and victim, on the other, the public considers itself a potential victim rather than a potential offender; offender protections appear superfluous at best and victim protection becomes an absolute necessity. These punitive attitudes may also help account for the widespread anger directed at defendants who dare to identify themselves as victims of one sort or another (the so-called abuse excuse) (Dershowitz 1994). These offenders are often met with exceptional hostility precisely because they deny the fundamental gap between offenders and the victim-public by cleverly putting on false pretenses of victimhood, thereby seeking entrance into the enemy camp in the American "war on crime" (Houston 1994; Chernoff et al. 1996; Torruella 1997).
Insofar as state punishment continues to require principled justification and must be more than the infliction of violence by the powerful upon the powerless, the heedless shift of protections from defendants to victims may reach the point of systemic illegitimacy. For example, a careless transfer of punishment functions from the state to the victim may not only institutionalize punitive vengeance, but may eventually abdicate the state's punishment authority altogether by reducing the criminal process to setting the background conditions for the manifestation of private vengeance. In its benign versions, the victim-sensitive criminal process thus emerges as a state sponsored opportunity for victim catharsis. In its more troubling variants, it runs the risk of deteriorating into a thinly veiled instance of mob justice.
Reforming the criminal law with an eye toward victims requires one not only carefully to consider the fundamental justification of state punishment upon which this reform rests, but also to face the question of what goals state punishment can legitimately serve. It is one thing to psychologize state punishment as the manifestation of communal hatred directed toward outsider-offenders; it is yet another to turn the criminal process into a massive psychological treatment center for the mental scars that crime inevitably leaves on its victims.
These questions of legitimacy arise not only in the United States, but also in Germany, where the psychologization of punishment turns less on exclusion than on reintegration, less on incapacitation than on rehabilitation. Even in a reconciliatory system, one must address the question of whether the criminal process, and more particularly the offender, should bear the burden of making the victim's soul whole (or, for that matter, whether the victim should bear the burden of rehabilitating the offender (Laubenthal 1995: 57-58)). One may decide, for example, that the state has an obligation to assist crime victims by providing counseling, much as one might decide that it has a similar obligation toward offenders.
Whether the criminal process is the proper locus for this mental health treatment is another question. Not only may the transformation of the criminal process into a mental health care system for crime victims run afoul of minimum standards of institutional legitimacy. The gigantic state punishment system of modern democratic societies may simply lack the competence to provide victims with the individualized psychological treatment they need. It would be ironic if the state's attempt during the infliction phase of the criminal process to provide offenders with individualized treatment would be abandoned because "nothing works" (Martinson (1974): 25), only to entrust the state with the similarly daunting task of devising a uniform procedure for the individualized treatment of victims during the imposition phase of the same process.
A comprehensive analysis of the extent to which the criminal process can legitimately and competently incorporate victims will lay the foundation for some much needed clarification in current debates about the relation between victims and the criminal law in the United States and Germany. In the United States, this analysis will permit one to identify those elements of the victims' rights agenda that properly fall within the realm of the criminal law. Over the past two decades, the victims' rights movement has come to engulf such diverse causes as the reform of the law of evidence, the passage of draconian criminal statutes of all sorts (including, among many others, repeat offender statutes, the indefinite confinement of so-called sexual predators, and community notification of the residence of released sex offenders), the right of the relatives of murder victims to witness the murderer's execution, the acceleration of the appellate review of death sentences, and the provision of a whole range of services to victims (ranging from reimbursement for travel and funeral expenses to mental health counseling). Conversely, several victim-related issues have yet to be recognized as such, including the significance of victims in the substantive criminal law, the enhancement of criminal penalties for race-motivated crimes, the discrimination against minority victims in the application of death penalty laws, or the interference with the discretion of victims of domestic abuse not to press charges against their abuser.
The specific proposals for legal and institutional reform that we plan to derive from our comparative analysis of the American and German criminal justice systems will address not the question of what one might do to improve the plight of victims of crime, but the question of how the criminal law should deal with the conduct and status of victims. The answer to this question for the United States will benefit from a look at the German approach to the victim problem, which has been both more systematic and more circumspect in its limitation to matters of criminal law (Pizzi & Perron 1996). Moreover, the German approach represents a refreshing alternative to the American focus on procedural rights and the related tendency to view the distribution of criminal process rights among offenders and their victims as a zero sum game.
An attempt to formulate a comprehensive approach to the relation between victims and the criminal law in Germany in turn will benefit from an analysis of the American approach to this issue, which illustrates the pitfalls of transforming the criminal process into a private reconciliation session stripped of the formal protections traditionally enjoyed by those accused of criminal conduct. The German process after all has begun in reality (though not necessarily in theory) to approximate the adversarial interaction typical of the American process, and American scholarship traditionally has been more sensitive to the palpable power imbalance inherent in the criminal process. Moreover, the American criminal justice system, in its considerable variety across the fifty states and the federal system, represents a useful testing ground for institutional reform under consideration in Germany. For example, German proponents of victim-offender mediation may wish to consider the success of this alternative procedure in the United States, where it has been in place for some time.
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