Week 4: Victims, prosecution and the courts

Whose pigs are these?
Whose pigs are these?
They are John Potts',
I can tell them by their spots,
And I found them in the vicarage garden.
- traditional

We did a bit of history this week, starting with something that may be more myth than history.

In the beginning (this is the 'myth' part) there were no courts and no trials; when people had problems with one another, they sorted them out face to face. The vicar would have a word with John Potts, and they'd come to some arrangement: he'd keep his animals in his own garden, or the vicar would let him graze them by the vicarage on Mondays and Wednesdays, or whatever. There would be no laws being broken and no general principles being decided, and nobody would end up with a criminal record.

Then, at some unspecified time, things changed: disputes between people were no longer sorted out by the people themselves, but had to be decided in accordance with the law. Did John Potts have the right to graze his animals by the vicarage? Were they even his in the first place - could he prove it? All of a sudden, any dispute could end up in the courts, where it would be decided according to laws backed by the authority of the government. In the process the role of the victim changed dramatically, from being at the centre of the conflict to merely being a witness to the crime.

So far, so mythical - although it's quite a plausible myth. Coming forward into historical time, we know that the police took over the responsibility of mounting criminal prosecutions, in Britain, some time in the first half of the nineteenth century, and that as a result a lot more prosecutions took place. We also know that, before the police got involved, prosecutions were very often dropped or settled amicably - which may not produce consistency between different offences, but does give a much bigger role to the victim. The obvious conclusion is that a lot of the increase in prosecutions which took place after the police took over consisted of disputes which would previously not have gone to court.

A series of reforms, culminating in the creation of the Crown Prosecution Service in 1982, continued this process of standardisation, formalisation and centralisation, bringing consistency to criminal trials but reducing the role of the victim. However, by 1982 - the high water mark of this process - the contemporary movement for the recognition of victims' rights was already growing. Since that time, there has been a drive to bring victims back into the process, most successfully in the form of victim impact statements (which we discussed in the seminar).

Having said all of that, there are still issues with victim involvement in the criminal process - which is, fundamentally, all about a confrontation between the offender and the state (or the Crown). Many people argue that victims' needs can never be met by tweaks to the criminal process, and that an alternative process is needed: something more like restorative justice. Of which, more anon (but please read Nils Christie's paper "Conflicts as property" if you're interested.)

Week 3: Victims, the police and prosecution

We're into Part Three of the unit now. Part One was about introducing the idea of the victim and explaining why it's so problematic; this involved looking at the difference between experiencing victimisation and being recognised as a victim, which led on to some discussion of different schools of thought in victimology and a fair old bit about the "*d**l v*ct*m", about which I suspect you are by now sick of hearing.

In Part Two we built on our discussions of radical and feminist victimology by getting into the politics of victimisation and victimhood. We know that not everyone suffers from crime, and not everyone who suffers from a crime will be recognised as a victim; are these random processes, or can we make any predictions as to who is more likely to be a victim of what kind of crime, and who is more likely or less likely to be recognised as a victim? If we can, do our predictions have anything to do with other things we know about society? Looking at questions of gender, ethnicity, class and corporate power, I've been arguing that the answers to those two questions are Yes and Yes: both exposure to the risk of crime and non-recognition as a victim are strongly associated with broader injustices and imbalances of power.

Part Three is about victims in the criminal justice system. There's more descriptive material in this part of the unit - more about how the system actually works - but the angle of the unit is still critical: we're not just asking "how does the system look after victims?" but "does the system look after victims properly?", and even "can the system look after victims properly?".

This week's lecture was about how important victims are to the police (answer: very important indeed); it was also about the politics involved in responding to victims' needs. My argument was that the criminal justice system has made great advances in terms of paying attention to victims, but that this isn't necessarily as positive a development as it sounds. The problem is the way that the government sees victims. Very often, politicians see victims of crime rhetorically, as a way of demonstrating how serious the problem of crime is and how punitive the system needs to be: victims, in this way of thinking, are good people whose lives are blighted by the fear of crime, who are consumed with anger about the wickedness of the offender, and who will tell the Daily Mail all about it if the government doesn't do something to pacify them. The good fearful victim is counterposed to the evil unpunished offender, very much in an ideal victim/ideal offender style. This is a realistic representation of the way some victims of crime feel, but not all or even most of them.

Alternatively, governments see victims bureaucratically: a victim of crime, in this way of thinking, is someone who has accessed services designed for victims of crime (services operated by the police, the courts, the probation services...).  Once the machinery of those services has been set in motion, the thinking goes, the victim should have the right to expect a certain level of service from it, e.g. the right to make a statement about the impact of the crime or the right to receive information about an offender's release from prison. This approach is basically a good thing - it's better than not having the right to make a statement about the impact of the crime, after all. But it has its own problems, which we'll be looking at in more detail during the rest of the unit. The key point is that this approach involves the criminal justice system looking at victims from the perspective of the system - not from victims' own perspective. This means that the system can give victims a lot of what they need and want, but only by improving or adding to what it already does. I would argue that the key thing victims have historically been denied by the criminal justice system is respect - and making that a reality means a bit more than giving the police new standards and targets.

Also this week: the second essay. I'll post something on Moodle about this for the benefit of anyone who was unable to get to the seminar.

Week 2: Domestic violence

This week's lecture looked at the surprisingly complex - even contradictory - phenomenon of domestic violence.

Domestic violence is one of those things that we're all aware of and all (hopefully) agree on. Researchers don't talk about "battered wives" any more - violence doesn't have to be that extreme to count, and women don't have to be married to be victims of it - but that phrase sums up the image that comes to most people's minds when domestic violence is used: a woman who is the victim of brutal violence from her male partner.

Attacks of this sort are real, and they're a very important part of the reality of domestic violence. The Domestic Violence Day Count, carried out in 2001 by a team led by Betsy Stanko, found that on average somebody was calling the police about domestic violence somewhere in the UK once every minute; the reports included some quite serious violence, and over 80% of the victims were women. But they're not the whole picture. Survey research persistently shows that a surprisingly high proportion of domestic violence incidents have a male victim - anywhere from 30% to 50% of the total. Apparently the gender balance of domestic violence as reported on surveys - which are usually seen as the more authoritative source of data - is very different from the gender balance of attacks reported to the police.

This is a 'dark figure' problem, and an unusual one. Usually we assume that whatever the 'dark figure' of crime is, it won't differ enormously from the total of crime that we do know about, but in fact this is an unjustified assumption. If something's been stealing your hay in the night, and you wake up one morning to see a rare African nightingale making off with a couple of wisps, do you assume that there are another twenty African nightingales out there? For all you know, the culprit for most of the thefts might be some other birds that you haven't seen (and which might be more common in this country);  it might not even be birds. Similarly, if 1,000 women call the police to report extreme cases of domestic violence, and a survey reveals that there were actually 10,000 incidents of domestic violence in that period, we can't necessarily assume that the other 9,000 were all as extreme - or that they all had female victims.

The surveys do give us some help in interpreting the difference between their figures and police data. Compared to violence against men, violence against women is more likely to be repeated; more likely to be extreme; and more likely to be experienced as very upsetting and very frightening. What this also tells us, though, is that some violence against men is extreme - and some violence against women is relatively minor.

What seems to be going on is that there are two main types of domestic violence: using Carolyn Hoyle's terms, "intimate terrorism" (brutalising, intimidating, oppressive attacks by one partner on the other) and "common couple violence" (everyday, spontaneous, low-level violence between two people). "Common couple violence" is usually experienced as trivial, and both men and women inflict it on their partners; "intimate terrorism" is traumatically extreme, and it's usually (not always) inflicted by men on women.

The shifting power balance between men and women has made women victims of domestic violence much more visible than they were when Nils Christie wrote "The Ideal Victim" (as he predicted it would); there have even been improvements in the last decade, since Stanko wrote her report on the Day Count. But this process has its own drawbacks. I suggested in the lecture that an odd combination of feminism and sexism made male victims of domestic violence hard to see. On one hand, the feminist emphasis on male power over women makes researchers think of domestic violence as exclusively a problem of male violence; on the other, the persistence of sexist assumptions about male power makes police officers see men victims as figures of fun.

Increasing visibility of women victims of domestic violence, and increasing ability to claim victim status, is all to the good - but some researchers are concerned that the complexity of the phenomenon of domestic violence may get lost from sight as a result.

Instead of a seminar this week, please read the Stanko paper - it's on Moodle - and answer the questions in the "Seminar exercise" document.

Term 2, Week 1: Marital rape

One of the interesting things about studying victims of crime is the extent to which things have changed over the last few decades - generally for the better. Another interesting thing is the extent to which things haven't changed, and the old problems remain.

Take the role of victims in court, for instance. Victims have a much higher profile in criminal trials than they used to: it's routine for victims to be asked to give a statement about the impact of the crime, which will be read by the judge. Provisions for vulnerable witnesses, in juvenile and adult trials, is much better than it used to be. But the trial itself is a contest between the defence and the prosecution, adjudicated by the judge, and the victim has no automatic role except as a witness to the crime. Victims are not at the centre of criminal trials; if anything, they're on the sidelines.

Something similar applies to the way that rape cases are handled. It used to be understood in English law that a married man could not be found guilty of raping his wife; the underlying assumption is that it's normal for a long-term relationship to be based on a man having power over a woman, and the woman can't have anything to complain about if the power is abused. Similarly, it used to be understood that a rape defendant who had an "honest belief" that the victim had consented should be found not guilty: he might be mistaken, but he shouldn't be found guilty of rape unless he consciously and deliberately set out to commit rape. On this basis, if the victim repeatedly said No but then submitted out of fear of violence, the defendant would not be a rapist. The underlying assumption here is, again, that sexual relations are all about power: it's normal for a man to be aggressive and forceful, and to get a woman's consent under those conditions. Put these together and you have something very like the dear old "ideal victim" scenario: real rape is committed by a stranger and with malice aforethought.

Both of these assumptions are history: married men who rape their wives can be found guilty, and instead of 'honest belief' the current law on rape has the much more demanding test of 'reasonable belief' - i.e. the defendant has to show that he had good reason to believe the victim had consented, such as having actually asked her. But once again, I think, it's a case of three steps forward and two steps back. If rape takes place within a long-term relationship, it's that much less likely to go to trial; the victim herself may be less likely to recognise it as rape in the first place. The same is true of rape that takes place in a sexually-charged situation: if the defendant can claim that the victim was willing earlier on, that he got carried away, that it was just rough sex, is it real rape? The law says that all these things should be ignored: the question is whether he had a 'reasonable belief' in consent. As the low prosecution and conviction rate for rape shows, juries still tend to take excuses like these seriously; this reflects the assumption that it's normal for males to be aggressive and sexually dominant.

I'm aware that this is a difficult and sensitive subject; thanks for your patience. Next week we get on to another difficult and sensitive subject, domestic violence. (After that we'll do the courts and stuff.)