Towards Victim-Friendly Justice
Bill's cartoon in The Herald showed a wife being addressed by the judge: "I'm afraid, madam, the Criminal Justice (Scotland) Bill does not encompass garroting for child-support defaulters." The occasion of its appearance was the attempt of Lord McCluskey to introduce certain amendments into the Criminal Justice (Scotland) Bill.
Among the proposals, he wished to see implemented was that a "victim impact" report be considered before sentence is passed in cases where an offender has been convicted of violent offences, such as assault or robbery. This report would be a formal statement which would include the following elements:
the victim's recommendation, if any, as to whether leniency should be exercised in passing sentence;
personal details of the victim;
the physical, emotional and mental consequences to the victim of the offence committed;
the financial results for the victim;
the victim's account of events in any case in which there has been a plea of guilty.
The Christian should be interested in the process of justice. His concern must be to ensure not only that the offender be punished but also that the victim be vindicated. The latter is just as important as the former. The Bible is strong on the view that God as Judge takes the part of the weak and the oppressed — and that is what the victim is in cases of violence and robbery. So what Christian comment might be made on the victim-centred proposals mentioned above?
A Basic Principle
That well known Biblical principle of Old Testament justice: "an eye for an eye", is much maligned. It is conceived of only in a fixed and literal fashion, so much so that the basic principle it enshrines is often forgotten: it simply means that the punishment must fit the crime.
But how is the gravity of the offence to be measured in order that a suitable punishment might be determined? There is no objective standard by which this is to be measured. The young man who attempted to break into our house caused us only minor irritation; the same material damage done in different circumstances, for example, to an old widow living alone, might have caused much mental anguish or even physical distress. The full impact of the offence must be known if a suitable punishment is going to be given.
Some of the impact an offence makes upon a victim presumably comes out in court already. That it all should do so is only fitting. People matter more than things and in assessing the gravity of the offence committed against them or their property their personal circumstances and innermost feelings should not be neglected. Justice needs to be done, and needs to be seen and felt to be done — not least by the victims themselves. At present some victims feel alienated from the process of justice, not only because the whole environment in which justice is administered is foreign and fearful to them, but because it is seen as an impersonal machinery — are there people under these wigs? — which appears to take little account of the personal feelings of the victims. Any steps which allow a more exact assessment of how the offence damaged the victim or which contribute to a feeling that justice has been done for the injured party are to be welcomed.
A Shared Responsibility?
The Herald cartoonist exaggerates a problem in these proposals: namely, that the victim, having no knowledge of the law or acquaintance with sentencing precedents, will seek a punishment completely out of line with established law and custom. Few victims seem able to view their loss dispassionately. They neither know nor are they in a position that makes them capable of knowing what the going rate is for the offence committed against them.
But this point is met by the fact that, under these proposals, the sentencing still remains the judge's responsibility. Besides, all that is suggested is that the victim make a recommendation regarding the degree of leniency or severity to be employed — not that the actual sentence itself be laid down by the victim.
Moreover, we cannot fail to observe that there was a situation envisaged by Biblical law where this procedure operated.
If men who are fighting hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman's husband demands and the court allows.Exodus 21:22
There we have some form of cooperation in sentencing: the victim's demands and the limits imposed by the law are to be the determining factors in allocating punishment in that case. What Lord McCluskey proposed seems to be in accordance with that principle.
A Missing Factor?
All in all any measure which brings the victim into closer involvement with the judicial process as an offended party is to be welcomed. But there is one further area into which this process needs to be carried. "An eye for an eye and a tooth for a tooth" was not only a principle of retributive justice: it was also a principle of compensation.
Anyone who takes the life of someone's animal must make restitution — life for life.Leviticus 24:18
Note how the divine law here combines retribution and compensation: v.20 goes on immediately to quote the so-called "law of retaliation". There are two sides to the one operation: just as the punishment must fit the crime, so the compensation that the victim receives from the offender must fit the loss sustained.
It is good to involve victims more fully in the judicial process. But only when the principle of compensation is fully acknowledged — when our justice system requires the offender to make due restitution to the victim for the damage done — will a procedure be operative that does them justice.