Law & Society Blog

Last month, while I was driving home at night, a big pick-up truck rear-ended my car at a red light. I got out of my car, but before I could survey the damage, the driver of the pick-up gunned his engine and drove off. I was left standing in the middle of a dark intersection in a drizzling rain, feeling foolish and annoyed. My mood turned to amusement when I found that the pick-up truck’s license plate had fallen off and was lying in the roadway.

What I didn’t realize at the time was that I had joined a new class of people: I had become a victim of crime. Last week, my status became official when a letter arrived from the assistant district attorney’s office. The letter told me that the driver of the pick-up had been arraigned for Leaving the Scene of Property Damage and Driving With a Suspended License. Included also was a form “Victim Impact Statement” that solicited my input: What was the economic impact of the crime? What was the emotional and psychological impact of the crime? What were my recommendations for sentencing? I filled it out, asking that leniency be shown. After all, the whole accident was a bit of a joke.

But that letter and the Victim Impact Statement made me think. What if I had really been a victim? I imagined the worst case: My daughter raped and murdered. How would it feel to sit over that form, with it’s six ruled lines in which I am supposed to state the emotional impact of the crime. I imagine that my heart and mind would not be sufficient to contain everything from fantasies of murderous revenge to suicidal despair. How could it fit in any form? I cannot imagine having anything to say to the assistant district attorney that would fit in six lines, or even in “attached additional sheets.”

On the other hand, if the crime had been a burglary, I think I would have a thing to say about the harm done that wasn’t in the stolen stereo or silverware: the loss of a sense of safety, the sense of having one’s space violated. And I do believe that judges will read and consider such statements: anything that grounds the crime in reality and gives them more than cliches for their opinions.

Whether you want input from the the victim depends on your view of criminal law. If you regard punishment as an effort to right an imbalance between victim and perpetrator, an imbalance created by the crime, or if retribution is rendered more meaningful through inclusion of the victim, then sending out victim impact statements makes sense. If the crime acts on the (expected) expectations of society at large, it does not. The more you emphasize the norm over the actual and specific harm, the less the victim matters. The point of criminal law is first and foremost to prevent crime, and therefore the crime that has already been committed is obsolete (it cannot be prevented any more). Perhaps this doesn’t conceptually preclude consideration of the victim’s suffering, since the victim’s expectation that the criminal laws still count, that what happened was a crime, will be vindicated through punishment, along with the (expected) expectations of society.

Here is where I am still puzzled: Does punishment of the perpetrator make the victim whole? In the U.S. I have grown used to seeing pictures of the murdered victim’s family hugging each other and shedding tears of joy as the judge announces the death penalty. Of course, the punishment will not bring the dead back to life, the jail term for the burglar will not restore the lost sense of security. If punishment makes the victim whole, it does so only in a metaphysical way. A metaphysical and cultural way. Those victims’ families certainly wanted the punishment and thought it would repair the wrong done to them, at least to some extent. In Europe, and especially northern Europe, the victim’s delight in the criminal’s punishment is less socially acceptable, and rarely expressed.

So, society has its views on the proper behavior of victims. In some cultures victims suffer in silence and humility, perhaps even with an unspoken assumption that at least in some vague way there is a reason why they are victims. In other cultures being a victim is public, visceral and vociferous: you scream your suffering out, and society screams with you. In some places a cultural expectation exists that the victim wants the punishment of the perpetrator and that he or she is satisfied or made whole through the act of punishment. In other places the punishment does nothing for the victim, whereas the victim forgiving the criminal and not desiring his or her punishment, brings peace and healing to the victim. These differences, if they exist, are relevant for the legitimacy of criminal law as an instrument of social control. They affect the way criminal law works.

Perhaps I ought not be surprised by the cultural contingency of criminal law. There goes the universal and rational foundation of criminal justice in the enlightened state. But even apart from the loss of conceptual elegance, I’ll have to get used to the thought that the foundations of the criminal law may not be the same in the U.S. and Europe because what (society expects that) a victim feels and wants may be different here and there.

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