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December 26, 2019

"Victims' Rights from a Restorative Perspective"

The title of this post is the title of this new paper authored by Lara Bazelon and Bruce Green recently posted on SSRN.  Here is its abstract:

The criminal adjudicatory process is meant in part to help crime victims heal.  But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims.  For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution.  But these efforts, while important, have not persuaded crime victims to trust criminal process.  For example, sexual assaults remain grossly under-reported and under-prosecuted.  Less than 1 percent of sexual assault crimes result in a felony conviction.  Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime — or victims of particular crimes such as sexual assault — are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows.  However, sexual assault victims are a diverse group — racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof.  Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives.  Some have no desire to participate in the criminal adjudication process at all.  Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice.  However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing.  It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective.  We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment.  Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

December 26, 2019 at 07:25 PM | Permalink


When NPR Forum some months ago had a guest advocating restorative justice, she commended the Alameda County DA (Northern California) for agreeing to restorative justice eligibility based on the offense. She expressed concern that prosecutor discretion could lead to racially disparate outcomes. That is, she was worried about racism.

Now, I don’t happen to agree that such outcomes are necessarily determinative of racism, but that will be the accusation. As a result, to avoid such accusations (and there WILL BE such accusations), I think all victims should reject restorative justice. That way way there can be no disparate outcomes to be accused of racism.

Posted by: David | Dec 27, 2019 12:20:59 AM

There are two types of victims' rights organizations: the sincere one dedicated to due process for the victim without jeopardizing the rights of the accused; and the phony victims' right organization that serves as a front for a repressive right-wing agenda.

The sincere victims' rights groups is similar to the one that my parents helped form for their neighborhood in Nashville during the early 1980's. Crime had become a serious problem affecting property values in their economically (and even racially to a lesser extent) neighborhood. In the spring of 1981, two young men two houses away from my parents who, along with their grandparents and sometimes their sister, had had several run-ins with the law, committed a rape against another woman. Both perpetrators and victim were white. The new neighborhood crime watch helped provide services for the victim, respected victims' privacy, and helped the victim keep track of the progress of her case in court. The group, however, did not pursue a right wing agenda of knee-jerk retribution. The group also helped victims who did not want to impose the maximum penalty on their attacker, but simply some penalty. This neighborhood watch/victims' rights groups eventually grew to pursue non-crime issues affecting the neighborhood such as the need for more public transportation, more sidewalks, more playgrounds, better lighting, trash services, and so forth. The group also encouraged democratic input by neighbors without imposing an agenda from above.

In contrast, the so-called "law 'n' order" or "victim's rights" groups are more interested in pushing for prosecutorial power and more draconian punishments regardless of agravating/mitigating circumstances, and support unfair racial, class, and gender-profiling of innocent suspects. These groups like Edwin Meese, Ronald and Nancy Reagan, Janet Reno, et al. simply want to manipulate people's legitimate fear of violent crime to further undermine our civil liberties. They do not care for the victim any more than the perpetrator does. In fact, when a victim asks to temper punishment with compassion, these phony victims' rights groups will often treat the victim as if she or he was also the perpetrator. These groups only want those victims who demand the maximum penalty or who will incite mob violence in behalf of the Right. Moreover, these phony victims' rights groups will not help victims of corporate crime like fraud or help those victims of violent crime who are either serving time in prison or who have prior records.

It is high time that we expose this second category of victim' rights groups for the fraud that it is and, instead, to give our support to the LEGITIMATE victims' rights groups.

Posted by: william r. delzell | Dec 29, 2019 5:08:24 PM

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