Abstract
The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.
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Notes
It is, however, just one of the ways of generating trust and legitimacy. Procedural justice, i.e. how authorities exercise their authority, how they treat people in procedures, should not be neglected either (see e.g. Tyler 2009).
What seems a “reality” is often manufactured, at least to a certain extent, by mass media and governmental PR. We only have to take a look at white-collar and state crime that is on the rise, and read studies on social harm, to realise that the State is far from being this tamed, fuzzy and cuddly bear out there to protect us. In fact, from its production of inequality (Tombs and Hillyard 2004), to its waging of wars on various social phenomena, e.g. migration (Webber 2004), from concrete state crimes to general state harm (Ward 2004), it may be considered the single most powerful and potentially dangerous institution that intervenes into the lives of its residents almost every single day.
The German conception of criminal law is essentially individualist, portrayed inter alia in the view that criminal law should essentially protect individual legal goods, i.e. the interests of individual persons. See e.g. Roxin (Roxin 2005, p. 16) and his description of ‘legal goods’ (Rechtsgüter) as “all circumstances or designated purposes that are necessary for the free development of the individual, the fulfilment of his fundamental rights and the functioning of the state system that is built on these objectives”. Even in Sweden, however, legal theorists such as Jareborg (1995) emphasise that the values and interests protected by criminal law should primarily be “values or interests of individuals” (p. 35, fn. 5, emphasis in original). See further Peršak (2007, pp. 47–57 and pp. 104–118 specifically on legal goods).
Crawford stresses the circularity of this version of community and, particularly, of the argumentation using this version. The community, he says, is presented as both “the vehicle to better life and the better life”. Furthermore, the community (as an end) is cleansed of any negative connotations; it is an ideal for which we should strive.
“Recent British research into criminal subcultures has reiterated the long established criminological truism that the collective values of a community may serve to stimulate and sustain criminality […]” (Crawford 1997, p. 73).
This statement is also incorrect from a criminological or victimological point of view. For one, we are not all equally likely to become a victim of any crime. Imagine a case of domestic violence: the wife, who had been continuously over the years beaten up and raped by her husband, 1 day mixes a fatal dosage of sleeping pills into his drink and murders him. The victim of the crime of murder was her abusive husband, not as a representative of all men or of other members of community, but a concrete abusive individual. She would not have committed (or have wanted to commit) such an offence against anybody else. Moreover, reactions of victims in practically the same circumstances also differ. Certain criminological theories, such as Routine Activity Theory and Lifestyle Theory, even study inter alia how different victims’ behaviour or lifestyle affect their suitability as targets of crime or their chances of being victimised, respectively. More importantly, however, saying that our reactions ought not to differ is an even stronger claim, a moral claim that should be further supported.
The opposite—that the community would demand decriminalisation—is of course also possible, although probably much less likely in today’s punitive times.
“[T]he 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” (Lernestedt 2013, original emphasis).
Giddens (2009, p. 964) summarises it well: “There are many reasons why a woman might choose not to report sexual violence to the police. The majority of women who are raped either wish to put the incident out of their minds, or are unwilling to participate in what can be a humiliating process of medical examination, police interrogation and courtroom cross-examination. The legal process often takes a long time and can be intimidating. Courtroom procedure is public and the victim must come face to face with the accused. Proof of penetration, the identity of the rapist and the fact that the act occurred without the woman’s consent all have to be forthcoming. A woman may feel that she is the one on trial, particularly if her own sexual history is examined publicly, as often happens in such cases.” Taking into account the fact that the more serious or grave types of sexual assault are usually committed by persons known to the victim (Kury et al. 2004), the denouncing of a relative or acquaintance is also riskier or more dangerous than reporting an assault committed by a stranger.
Under Slovene criminal law procedure, the initiation of the procedure depends on the type of offence in question. Most criminal offences are prosecuted ex officio, meaning that the procedure can only be initiated upon the state prosecutor’s initiative. (If, however, the state prosecutor finds that there are no grounds to prosecute a criminal offence ex officio he must instruct the injured party within 8 days that she may initiate or continue the prosecution by herself.) In certain cases, the procedure can be initiated by the victim in the function of the private prosecutor (prosecution upon a private charge). Some criminal offences are further prosecuted only upon the victim's motion to prosecute, without which the criminal procedure cannot begin. After the filing of a motion for the prosecution, however, the competent prosecutor is the state prosecutor. Both types of mentioned prosecution (upon private charge and upon the victim’s motion) are usually provided for the mildest of offences (e.g. slander) or offences with a salient personal element (e.g. rape committed against a spouse).
Anttila (2001, p. 72) reminds us that “the social cost to the offender (the punishment as well as other possible cumulative consequences) in practice often burdens the victim. The best and most often mentioned example is the offender who is sentenced to prison and who may not be able to compensate the victim for the damage even if he or she wanted to.”
A community such as described by Duff (in Norrie 1998, p. 115) perhaps: “genuine communities to which both offender and victim belong, and with which the offender can be reconciled”, acknowledging the fact that such communities (and the consequent possibility for reconciliatory justice) truly only exist “between neighbours and friends (in a broad sense of that term) […]: between people whose lives are structured by shared values and mutual concern”.
It should not go as far as to let the emotional displays of the victim and community overshadow the basic concerns of the administration of criminal justice, i.e. to mete out a fair, just and proportionate punishment. Von Hirsch et al. (2004) caution against the “privatisation” of the conflict, which may shift the sentencing process from one focussed on the offender’s harming to one focussed on wronging, with the victim’s individual degree of hurt becoming central and possibly leading to a more severe and disproportionate sentencing response.
The Swedish government has thus been described as “a government that stresses that public sentiment is a central factor in shaping legislation and criminal policy” (Tham 2012).
Ashworth (1999) warns that in those notions of community where individual rights are not given sufficient weight, where the emphasis is mostly on public safety or public protection, such an emphasis may produce harsh and intrusive policies.
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Peršak, N. Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory. Criminal Law, Philosophy 8, 205–215 (2014). https://doi.org/10.1007/s11572-012-9189-2
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DOI: https://doi.org/10.1007/s11572-012-9189-2