Support for Victims of Crime in Asia (Routledge Law in Asiaá)

Support for Victims of Crime in Asia

Giving victims of crime a greater role in the criminal justice system is a relatively recent development, a trend likely to continue and increase in the foreseeable future. In many jurisdictions it has led to compensation schemes funded by the state, support for victims of crime to help them recover from their ordeal, and involvement of victims in decisions as to how offenders should be dealt with. This book examines developments in support for victims of crime in Asia. It shows how, contrary to the widely-held belief that Asian jurisdictions shy away from a rights based approach, there has been considerable progress in support for victims of crime in Asia, especially in Thailand and Korea, where rights for victims of crime are entrenched in constitutional provisions, and in Taiwan and Japan. The book discusses international developments, the degree to which support for victims of crime is an import into Asia from the West, and developments in a range of countries, including Thailand, Korea, Taiwan, Japan, India, China, Singapore, Malaysia, Indonesia, and the Philippines. Wing-Cheong Chan is Associate Professor at the Faculty of Law, National University of Singapore. He specializes in criminal law and family law. He has published extensively on issues relating to criminal law and family law in international journals, and is a regular speaker at conferences and forums on criminal law and family law.

Routledge Law in Asia Series editor Randall Peerenboom

1 Asian Discourses of Rule of Law Theories and implementation of rule of law in twelve Asian countries, France and the U.S. Edited by Randall Peerenboom 2 Human Rights in Asia A comparative legal study of twelve Asian jurisdictions, France and the USA Edited by Randall Peerenboom, Carole J. Petersen and Albert H.Y. Chen 3 Support for Victims of Crime in Asia Edited by Wing-Cheong Chan

Support for Victims of Crime in Asia

Edited by Wing-Cheong Chan

First published 2008 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2008 Editorial selection and matter, Wing-Cheong Chan; individual chapters, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Support for victims of crime in Asia/edited by Wing-Cheong Chan. p. cm. – (Routledge law in Asia series) Includes bibliographical references and index. 1. Victims of crimes–Legal status, laws, etc.–Asia. 2. Reparation (Criminal justice)–Asia. 3. Criminal justice, Administration of–Asia. 4. Victims of crimes–Legal status, laws, etc. 5. Reparation (Criminal justice) 6. Criminal justice, Administration of. I. Chan, Wing-Cheong. KNC627.S87 2007 344.503⬘288–dc22 ISBN 0-203-94493-3 Master e-book ISBN

ISBN10: 0–415–43585–4 (hbk) ISBN10: 0–415–43954–X (pbk) ISBN10: 0–203–94493–3 (ebk) ISBN13: 978–0–415–43585–7 (hbk) ISBN13: 978–0–415–43954–1 (pbk) ISBN13: 978–0–203–94493–6 (ebk)

2007004678

Contents

List of tables List of contributors Series preface 1 Introduction

viii ix xi

1

WING-CHEONG CHAN

PART I

International norms and policy perspectives 2 International standards for victims: What norms? What achievements? What next?

9

11

IRVIN WALLER

3 The (human) rights of crime victims do not necessarily infringe the rights of accused and convicted persons

51

SAM GARKAWE

4 Whither victim policies? A view from the crossroads

81

LESLIE SEBBA

5 The development of victim support and victim rights in Asia

113

TATSUYA OTA

PART II

Victims of crime in the domestic criminal justice system 6 Victims of crime in China’s criminal justice system GUOLING ZHAO

149 151

vi

Contents

7 The role of the victim in the Indian criminal justice system

160

MRINAL SATISH

8 Assistance for victims of crime in Korea

174

KYOON-SEOK CHO

9 Victims of crime in the Thai criminal justice system

194

VIRAPHONG BOONYOBHAS

10 Clashing conceptions of the victim’s role in Singapore’s criminal process

207

MICHAEL HOR

11 Victims of crime in Taiwan’s criminal justice system

222

JAW-PERNG WANG

12 A new horizon of victim support in Japan

240

TATSUYA OTA

13 Victims: the forgotten stakeholders of the Indonesian criminal justice system

262

HARKRISTUTI HARKRISNOWO

PART III

Specific victims of crime

289

14 Protecting child victims in Malaysia

291

NORBANI MOHAMED NAZERI

15 Responses to victims of domestic violence in the Philippines

301

ELIZABETH AGUILING-PANGALANGAN

PART IV

Support services for victims of crime

323

16 Present and future developments in victim services and victim rights: a view from the United States

325

MARLENE A. YOUNG

Contents 17 The needs of victims of crime in Korea: effective counseling strategies and techniques

vii 350

KEUN-JAE CHUNG

PART V

Compensation and restorative justice

365

18 Compensation orders in Singapore, Malaysia and India: a call for rejuvenation

367

WING-CHEONG CHAN

19 Assessing the use (and misuse) of restorative justice in the criminal justice system

385

JAMES DIGNAN

Index

407

Tables

2.1 8.1 13.1 13.2 13.3

Proposed budget allocation to lower crime victimization Current data on the compensation order system Number of victims in land expropriation cases Victims of violence against farmers and their defenders Number of cases of domestic violence reported to Women Legal Aid Centre/LBH APIK JAKARTA (1998–2002) 13.4 Legal actions against perpetrators of trafficking in persons (1999–2003) 19.1 Intervention points for restorative justice initiatives 19.2 Attitudes towards restorative justice

19 191 267 268 269 269 388 392

Contributors

Elizabeth Aguiling-Pangalangan Professor, College of Law, University of the Philippines, the Philippines. Viraphong Boonyobhas Associate Professor, Faculty of Law, Chulalongkorn University, Thailand. Wing-Cheong Chan Associate Professor, Faculty of Law, National University of Singapore, Singapore. Kyoon-Seok Cho Senior Prosecutor, Daejeon High Public Prosecutors’ Office, Republic of Korea. Keun-Jae Chung Director, Kimcheon Neuro-Psychiatric Hospital, Republic of Korea. James Dignan Professor, Department of Law, University of Sheffield, United Kingdom. Sam Garkawe Associate Professor, School of Law and Justice, Southern Cross University, Australia. Harkristuti Harkrisnowo Professor, Faculty of Law, University of Indonesia, Indonesia. Michael Hor Professor, Faculty of Law, National University of Singapore, Singapore. Norbani Mohamed Nazeri Lecturer, Faculty of Law, University of Malaya, Malaysia. Tatsuya Ota Professor, Faculty of Law and Law School, Keio University, Japan. Mrinal Satish Lecturer, National Law School of India University, India. Leslie Sebba Professor, Institute of Criminology, Faculty of Law, Hebrew University of Jerusalem, Israel. Irvin Waller Professor, Institute for Prevention of Crime, University of Ottawa, Canada.

x

Contributors

Jaw-Perng Wang Professor, College of Law, National Taiwan University, Taiwan. Marlene A. Young President, World Society of Victimology; President, International Organization for Victim Assistance. Guoling Zhao Professor, Law School, Peking University, China.

Series preface

Support for Victims of Crime in Asia is part of a larger project consisting of a series of volumes that compares the legal systems in several Asian countries, European Union countries, and the US across a wide range of issues. Specifically, the project seeks to examine legal system development and rule of law in Asia, using Western legal systems as comparison points. Given the great diversity among legal systems, the purpose is to understand how rule of law is conceived and implemented, and the role of law and the legal system with respect to economic growth, political reform and democratization, the protection of human rights, geopolitical stability, and the engagement of Asian countries with other countries in the international arena. The project will also address the Euro-American centricism of comparative law by replacing outdated stereotypes with empirically grounded, indepth and up-to-date analyses of Asian legal systems across a wide range of issues and areas of law. In terms of methodology, each volume involves specialists in the relevant area of law from different Asian countries or jurisdictions along with specialists from Western countries. The first volume – Asian Discourses of Rule of Law (RoutledgeCurzon 2004) – sets the stage for later volumes by providing a general overview of the dominant conceptions of law, organized around the theme of rule of law. The second volume – Human Rights in Asia (Routledge 2006) – examined the performance of Asian countries and select Western countries across a wide range of human rights and other indicators of well-being. Subsequent volumes will examine specific areas of law or topics in law to determine: (i) whether there are differences/similarities between the countries with respect to legal rules, (ii) outcomes in particular cases (or the way events are handled if they are not subject to formal legal resolution), and (iii) the justifications/explanations for such outcomes (legal reasons, cultural/philosophical explanations, or economic, political, institutional explanations). Support for Victims of Crime in Asia is a much welcome addition to the series, addressing as it does the important topics of restorative justice and the rights and role of the victim in the criminal process. Wing-Cheong Chan

xii

Series preface

has assembled an impressive group of international experts in law, criminology, and related fields. Like its predecessors, this volume demonstrates the complex interplay between international practices and trends and local factors, and the wide variation within Asian legal systems. This volume will be of great interest to legal scholars and others working in the fields of criminal justice, criminology, social policy, public administration, and social work. Randall Peerenboom Series General Editor

1

Introduction Wing-Cheong Chan

Overview In the short space of twenty years, there has been a sea change in the attitudes towards victims of crime in many developed nations. The ‘first wave’ of reforms saw the setting up of State compensation schemes, first in New Zealand in 1963 and followed by England in 1964 and California in the United States in 1965, which eventually spread to other parts of the United States, Canada and Europe. The ‘second wave’, starting from the middle of the 1970s, at first focused on the needs of victims of domestic violence and victims of sexual offences through the setting-up of shelter homes and rape crisis centres, but these support services were eventually broadened to render general victim assistance to other victims of crime. From 1980 onwards, the ‘third wave’ of reforms involved the ‘institutionalization’ of victim support schemes by the local or central governments through government funding and professionalization of workers in the field, and the formal recognition of certain victim rights in the criminal justice process (van Dijk 1988). Victims of crime, once the ‘forgotten players’ in the criminal justice system, can no longer be said to be ignored in the present day (at least not in the developed nations). However, not all of the developments have met with universal approval. While most, if not all, would agree with giving victims of crime more information about the progress of ‘their’ case, counselling support and respectful treatment by the police and court officials, some would baulk at measures which give victims a participatory role in the criminal justice system – for example in decisions such as whether the offender should be prosecuted, granted bail, allowed to plead to a lesser offence – or for victims to be heard on the appropriate sentence meted out by the court. Such groups see these developments as compromising the fundamental role of the criminal law, which is to act in the public, and not private, interest and as infringing on the due process rights of the offender (Ashworth 2000; Ashworth and Redmayne 2005; Chapter 10 of this volume). There is also the further danger that reforms made to the criminal justice system only pay lip service to the interests of victims when they are in

2

Wing-Cheong Chan

fact motivated by a desire by policy-makers to make the system more punitive against offenders or to appear that something is being ‘done’ (Chapters 3 and 19 of this volume). It comes as no surprise that the same issues are being confronted – to varying extents – in Asian countries as they reform their own criminal justice systems to accommodate the interests of victims of crime. The questions raised include: Does greater emphasis given to the victim mean that the rights of the offender and the interests of the State are correspondingly diminished? Do the measures fit in with the existing structure of the criminal justice system? What other pressing reforms are needed, in terms of legal, administrative or monetary support for victims of crime? Is there a way to ensure that the recognition given to victims of crime is entrenched in the criminal justice system and not merely a passing fad or part of law and order concerns? It can be comfortably predicted that twenty years from now, the same questions will continue to be raised – in Asian as well as nonAsian countries around the world – as they seek to balance the rights of the offender and the rights of the victim. Before I elaborate on the essays in this volume, a few observations on this book and the state of victim support and victim rights in Asia are ventured. First, Asia is a truly huge continent, encompassing billions of people, a score of different legal systems and traditions, and with countries at different stages of socio-economic development ranging from the highest to the lowest in the world. It is beyond the scope of this volume to cover every country in Asia. Instead, only about half of the countries in Asia have been selected for study – but those selected encompass more than half of the population and land mass of Asia, and include those whose legal systems are based on the common law as well as the civil law and socialist traditions. These jurisdictions can be said to be representative of the region. The ten featured jurisdictions are India, China, Taiwan, Japan, Korea, the Philippines, Thailand, Indonesia, Malaysia and Singapore. For some of these jurisdictions, it may be the first time that up-to-date information on their criminal justice system is presented and critically analysed in the English language. Second, it is not possible to study the domestic legal developments without an appreciation of the international trends and developments taking place. To this end, essays from non-Asian experts are included to set out the theoretical and contextual background to the development of victim support and victim rights. Third, although Japan, Korea and Taiwan are the most advanced in victims’ issues in terms of the scope and number of reforms made, awareness and research in these issues can be said to be isolated and still in its infancy in the Asian region as a whole. Societies for the study of victimology exist in Japan, Korea and India, but have failed to spread to other parts of Asia. It is a truism that laws are of no use unless their existence is made known to those who need them the most and that those who need them are

Introduction

3

assisted in taking advantage of those laws. Furthermore, victimological research, which is so important to the study of victims, is rare in Asia. It is hoped that this volume – which admittedly is dominated by analyses on the legal issues relating to victims – will spur victimological studies and further developments in Asian countries. Fourth, it is hoped that this volume will contribute to a realization that the ‘discovery’ of the victim is not a ‘Western’ phenomenon. As noted above, the reforms which have taken place in Japan, Korea and Taiwan in the last ten to fifteen years are particularly impressive. The recently published report by Mr Justice Malimath who was commissioned by the Indian government to recommend reforms to the Indian criminal justice system also contains recommendations for securing justice for victims of crime (see Chapter 2 in this volume). Furthermore, seven jurisdictions in Asia at the present time have some form of State compensation scheme for victims of crime (Hong Kong, Japan, Korea, the Philippines, Taiwan, Thailand, and the State of Tamil Nadu in India) (Chapter 5), and in two Asian jurisdictions, victims’ issues have a constitutional status (Korea and Thailand) (see Chapters 5, 8 and 9). These developments are contrary to a perception that Asian countries shy away from a ‘welfare’ system or a ‘rights’-based approach. Finally, if one were to take a very broad perspective, a few reasons emerge from the essays for the interest in victims’ issues in the Asian region today and suggest what will continue to fuel this interest. Several countries in the Asian region, such as Thailand, the Philippines and Indonesia, have in recent decades undergone democratic reform, following the breakdown of the old political and legal order. An emerging rights consciousness has come with these democratic changes, including a call for rights for victims of crime. In Korea and Thailand, this even involved a redrafting of the national constitution where provisions on justice for victims of crime are now entrenched (see Chapters 5, 8 and 9). Crimes committed against the innocent and the vulnerable have also fuelled interest in victims’ issues. In Indonesia, the breakdown of the old order meant the uncovering of abuses by the State, and a backlash of shocking crimes committed against innocent people by both State and citizens (see Chapter 13 in this volume). In Japan and Korea, heinous crimes which sometimes injured many people indiscriminately led to an outpouring of sympathy for and attention to the plight of the victims (Chapters 5 and 8). In Malaysia and the Philippines, crimes committed against women and children have sparked reforms for these groups (Chapters 14 and 15). Reforms in favour of the victim can also be said to be motivated by the wish to regain the public trust in the legal system to encourage cooperation with law enforcement agencies (see Chapters 8 and 11). Hence, these reforms can be criticized for not having the interests of the crime victim in mind. However, one should nevertheless note that crime victims also benefit from the reforms, which may not have been made otherwise.

4

Wing-Cheong Chan

A final possible reason for the interest in victims’ issues is the wave of international developments in this arena (Chapter 2). While Asian governments are by no means leaders in this field, they may not wish to be seen as laggards.

Essays in this volume The essays in this volume are divided into the following sections: 1 2 3 4 5

International Norms and Policy Perspectives (Chapters 2 to 5). Victims of Crime in the Domestic Criminal Justice System (Chapters 6 to 13). Specific Victims of Crime (Chapters 14 and 15). Support Services for Victims of Crime (Chapters 16 and 17). Compensation and Restorative Justice (Chapters 18 and 19).

In Chapter 2, Waller highlights the international developments relating to victim rights. He describes how national governments can reallocate their budgets to pay for victim support and crime prevention, and the role which the World Society of Victimology plays in the realization of this goal. As a follow-up to the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, a Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism has now been proposed. In Chapter 3, Garkawe discusses the vexed issue of whether rights for victims of crime can coexist with rights of the offender. He uses two examples to illustrate his point that they can coexist: the victims’ rights to protection and victim participation rights (in particular, use of the victim impact statement, and the making of submissions at parole hearings). He makes the point that if we are clear about what is sought to be achieved by advancing victims’ rights – which is to aid truth-finding – it is possible to balance this goal with the rights of the offender. In Chapter 4, Sebba gives a stimulating discussion on the transferability of legal and social institutions from one nation and culture to another. This is a largely neglected issue in victimology discussions, but a particularly important one because reforms in one jurisdiction are quickly adopted in others, as can be seen in the victim impact statement and restorative justice measures. A comparative and cross-cultural approach is taken by Sebba, noting that the many differences that Asian countries have (with each other as well as with the ‘West’) will inevitably lead to different selections of victim policies and their adaptation in different ways. Ota, in the final chapter to this section, gives an overall view to the development of victims’ issues in the Asian region as well as the legal procedures available in various Asian jurisdictions for victims of crime. The latter include restitution orders, action civile, State compensation, victim protec-

Introduction

5

tion during investigations and at trial, victim impact statements, private prosecution and challenging the prosecutor’s decision not to prosecute. From this chapter, it is clear that Japan, Korea and Taiwan lead in the Asian region in the provision of victim support and recognition of victims’ rights. More details on these countries can be found in the next section. Section 2 (Chapters 6 to 13) contains critical analyses of a particular country’s criminal justice system in relation to victims of crime. In Chapter 6, Zhao describes the changes to China’s criminal procedure law in 1996 to improve the plight of victims of crime, but she concludes that, despite these changes, the position of the victim in China is no better as he or she is unable to effectively make use of those rights. On the other hand, Satish in Chapter 7, points out that no reforms have been made to date to the Indian criminal justice system to specifically cater to victims of crime. Offences may be classified as ‘non-cognizable’ such that the police are not required to investigate complaints, victims are not informed of the progress of the investigation and victims cannot oppose applications for bail or intervene in appeals filed by the offender. However, the victim of crime in India has a role in ‘compounding’ (coming to a settlement over) certain offences and arguably in opposing applications by the Public Prosecutor to withdraw the case from prosecution. The Malimath report (2003) recommends expanding the former; the latter is based on a Supreme Court of India judgment delivered in 2001 in which the State did not challenge the locus standi of the petitioner. Further developments in India can no doubt be expected. In Chapter 8, Cho describes the reforms in Korea relating to victims of crime. Particularly noteworthy is the 1987 amendment to the Korean constitution granting victims the right to State compensation as well as the right to testify in court. The impact of these measures is analysed. The most recent law, the Crime Victim Protection Act 2005, which provides comprehensive assistance to victims of crime, and the Victim Support Centres in Korea are also described. In the case of Thailand, described in Chapter 9 by Boonyobhas, the right of victims of crime to State compensation can also be found in the national constitution enacted in 1997. Victims of crime in Thailand also have the power to control proceedings in ‘compoundable offences’ since the police and the prosecutor cannot initiate investigation or prosecution without the complaint by the victim, and the victim may also choose to prosecute these cases on his or her own. However, Boonyobhas notes that many practical difficulties arise and that further reforms are needed. In Chapter 10, Hor questions four devices in Singapore which involve the victim in the criminal justice system: private prosecution, ‘compounding’ an offence (coming to a settlement), victim impact statement, and compensation orders. He argues that in each case, the inevitable conflict between the ‘public’ function of criminal law (to ensure that offenders are punished in the public interest) and the ‘private’ concerns of victims of crime (for

6

Wing-Cheong Chan

recognition of the wrong done to them, for compensation etc.) cannot be reconciled. It is for this reason that while victims can be given greater information about their cases and that reforms to the civil process are needed, crime victims should not be given a ‘decisional’ role in the criminal justice system. In contrast, the next two chapters on Taiwan and Japan by Wang and Ota respectively describe the many rights which victims of crime in these jurisdictions enjoy. These include the victim’s right to challenge the Prosecutor’s decision not to prosecute and the right to be heard at trial. In the case of Taiwan, private prosecutions are possible and are made use of, and a victim or their attorney may even examine a Prosecutor’s investigation file. In the case of Japan, the comprehensive Crime Victim Basic Act 2004 is expected to give rise to more developments in the future. In Chapter 13, Harkrisnowo notes the difficulties caused when there is distrust of the criminal justice system. Victims refuse to testify at trial, leading to collapse of the prosecution, and there is retaliation and intimidation of victims who do. New laws enacted such as the Human Rights Court in 2000 and the Eradication of Domestic Violence in 2004 are therefore empty shells. A new law to protect crime victims in general and to encourage their participation is therefore needed, as well as a fundamental change in the attitudes of the police and judges to cater to the needs of victims of crime. In Section 3, victims of child abuse in Malaysia and victims of domestic violence in the Philippines are considered. In both countries, wide-ranging legal reforms have taken place in the last few years to better protect such victims. But, as Nazeri and Aguiling-Pangalangan point out in Chapters 14 and 15 respectively, legal reforms are only the first step to be taken. Prevention programmes, sensitivity training of officials and the political will to eradicate such abuse are needed. Section 4 contains two chapters dealing with support services for victims of crime. In Chapter 16, Young uses the example of developments in the United States to explain the types of victim services and victim rights that are needed most. Victims need to have their sense of control over their lives restored and their fear of victimization diminished. In Chapter 17, Chung reminds us of the importance that support services such as counselling be practised in a culturally sensitive way. In the case of the Korean people, the traditional status of women means that victims of sexual and domestic violence are not forthcoming in seeking help. Cultural prejudice and social stigma against those with mental illness means that those who exhibit post traumatic stress disorder (PTSD) do not get much needed psychiatric help. Young victims and elderly victims also require different ways of being engaged. In Section 5, two measures which appear to hold the most promise for regaining victim satisfaction with the criminal justice system are discussed. In Chapter 18, Chan discusses the ‘compensation order’ found in Singapore,

Introduction

7

Malaysia and India which empowers the courts to order an offender to make restitution to the victim. He argues that this measure need not be seen as undermining the central role of the criminal law, which is to punish the offender, but as fulfilling a subsidiary aim of the criminal law to cater to the needs of crime victims. In the final chapter, Dignan points out the various misunderstandings that have arisen as to what is restorative justice, what are its aims and how it should be carried out. Although many victim focused initiatives may claim to be ‘restorative’, Dignan argues that only those which engage the victim in the process such that there is a two-way involvement between the victim and the court, and where the offender voluntarily agrees with the outcome, can be considered ‘restorative’. If properly understood, there is no danger that restorative justice can replace the investigative and adjudicatory functions of the traditional criminal justice system. However, much more can be done to ensure the success of restorative initiatives, such as making sure they are consistent with other policy objectives, giving field workers adequate time to prepare for their new roles and making clear what are the aims to be achieved. Dignan concludes by identifying some key lessons for policy-makers who may wish to promote restorative justice as a means to support victims of crime. The contributors to this volume have sought to take into account the law and other developments up to May 2006.

Acknowledgments I would like to acknowledge the generosity of the National University of Singapore in providing a research grant which made it possible to hold a symposium in Singapore on 25–26 May 2006 on Support for Victims of Crime in the Asian Region. The essays in this volume are the edited papers presented at the symposium. I am also indebted to Associate Professor Tee-Liang Ngiam, co-organizer of the symposium; the Ministry of Community Development, Youth and Sports; the Subordinate Courts of Singapore; Ms Elizabeth Chua; and the following research assistants for their assistance in making the symposium a success: Julia Wong, Leila binte Abdul Rahman, Felicia Lai, Michael Lim, Vimaljit Kaur, Luo Ling Ling, Joshua Chew and Nelson Goh. Finally, I would like to thank the Law Faculty of the University of British Columbia for providing me with the facilities to complete this project during the academic year 2006–7 while I was a visiting associate professor there.

References Ashworth, A. (2000) ‘Victims’ rights, defendants’ rights and criminal procedure’, in Adam Crawford, Jo Goodey (eds), Integrating a Victim Perspective Within Criminal Justice. Aldershot: Ashgate. Ashworth, A. and Redmayne, M. (2005) The Criminal Process. Oxford: Oxford University Press.

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Mallimath, V.S. (2003) Report of the Committee on Reforms of the Criminal Justice System. Delhi: Ministry of Home Affairs, Government of India. Van Dijk, J. (1988). ‘Ideological trends within the victims movement: an international perspective’, in Mike Maguire, John Pointing (eds), Victims of Crime: A New Deal? Milton Keynes: Open University Press.

Part I

International norms and policy perspectives

2

International standards for victims What norms? What achievements? What next? Irvin Waller

The World Society of Victimology (WSV) has urged continuously a practical vision for victims. It must be remembered that international standards exist and that much more can be achieved, particularly through what the WSV is doing. We are at a turning point in promoting the implementation of international standards for victims. We must not miss this opportunity. At the 11th United Nations (UN) Congress on Crime Prevention and Criminal Justice held in Bangkok in April 2005, the WSV called on the governments of Asia to “commit acts of justice” by taking concrete steps to: • • • • •

prevent victimization going beyond law enforcement and criminal justice to tackle risk factors causing crime; fund the necessary reforms so that services for victims become universal; foster restitution from the offender; provide compensation from the State; reform the basic principles of criminal justice so that victims have standing to defend their interests.

WSV wants to mobilize the support of lawyers, law professors, citizens and so on to help governments to take action to pass legislation that addresses victim rights, promotes programs to provide victim assistance, and institutes policies that prevent and reduce victimization. WSV wants all professionals who interact with victims to be trained and follow guidelines to provide aid and respect for victims. WSV is not alone in calling for reforms to support and to ensure justice for victims of crime, abuse of power and terrorism in Asia. Recently in India, Mr. Justice Malimath was appointed by the national government as the head of the seminal committee to review criminal justice in India. His report (Malimath 2003) calls for radical changes in how victims should be treated. In 2005, the National Commission on Women in India drafted a charter for victim rights with special reference to women.

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Irvin Waller

Another significant development is that following the murder of the spouse of a distinguished senior lawyer and a petition of 500,000 signatures, the Prime Minister of Japan intervened to pass legislation to establish fundamental principles of justice for victims of crime including a high level committee to implement the required programs. Highlights from both of these documents can be found in Appendix 1 and 2 to this chapter. Finally, the UN Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) has recently organized a course on violence against women and children, another on prevention of victimization and a third on victim support and justice. In my book Less Law, More Order (Waller 2006), I argue that no less than 5 percent of what governments spend on police, prisons and judges should be reallocated to pay for effective prevention of victimization and a further three percent for the services, compensation and legal assistance that are needed for victims of crime as well as another 2 percent to fund the reform process that is needed to make support and justice for victims as well as effective prevention of victimization a reality. Governments cannot hide behind the excuse that they do not have the funds when so much progress can be made through such a small percentage of what they currently spend. Now it is time to move towards a convention on support and justice for victims of crime, abuse of power, and terrorism with the support of governments, academics and non-governmental organizations in Asia. We must organize petitions like the petition in Japan to demonstrate the interest of voters in fair treatment for victims.

Challenge A billion people or more across the world suffer loss, injury and trauma as a result of crime and the abuse of power. The rights of these victims have not been adequately recognized. In addition, the decreasing proportion who contact law enforcement or criminal justice suffer hardship when assisting in the prosecution of offenders. As the International Crime Victims Survey shows, the absolute victimization rates for Asia are often lower than in other regions of the world but the nature of the loss, injury and trauma cannot be overlooked. Increasing globalization and unfettered commercialism threaten the family, and religious and cultural values of countries in Asia. Just in India and China alone, one can expect rates of violence and property crime to soar over the next few decades as governments ignore international knowledge as to what would prevent crime and keep rates of violence low while continuing to grasp at straws by limiting their actions to law enforcement and criminal justice. It is not more police, prisoners or judges that will reduce crime but real investment in tackling the risk factors that cause crime and victimization. Without this investment in what is known to reduce victimization, Asia

International standards for victims 13 should stand by for a rapidly rising number of victims who deserve attention and assistance. Victims are a silent and forgotten majority in our midst. There are already over 30,000 kidnappings every year that shatter families and communities. There are some 800,000 women and children who are victimized by trafficking – 500,000 of whom are girls between the ages of 13 and 18. From 1998–2004, there were over 11,000 terrorist events, and those do not include terrorist acts in Africa (Young 2005). There are 400,000 deaths caused by violent crime in the world each year. One million persons are killed in traffic crashes that are not accidents (WHO 2002, 2004a, 2004b) and many more millions of people suffer physical and emotional injuries due to abuses of power, torture and crimes against national laws. The World Health Organization can add statistic after depressing statistic on violence against women and children, violence between young persons and so on. Someone once said “The death of one man is a tragedy, but the death of millions is but a statistic.” We often fail to see the tragedies behind the statistics. The names, faces and voices of those tragedies should be seen and heard. Dr. Marlene Young, in a press conference at the 11th UN Congress on Crime Prevention and Criminal Justice, put names and faces on some of those victims (Young 2005). You should listen to her. If you become a victim of a crime, you need to be treated decently, caringly and justly even if law enforcement and criminal justice systems do not give much of their time. If you are robbed walking down the street, it should be your right to expect other citizens to come to your help. If you call the police, it should be your right to expect the officer to listen to you and assist you in getting social or medical assistance, information on what he or she will do, and what services can support you. If you are a victim of sexual assault, it should be your right to get an officer or counsellor of the same gender. It should be your right to get medical attention and counselling to recover. It should be your right to get reliable information on how to avoid being attacked again. It should be your right to be able to seek restitution from the offender and be paid before the offender pays money to the State. If you are injured and the offender cannot pay reparation, it should be your right to get compensation from the State. It should be your right to participate in the criminal court process with legal representation to protect your safety, your search for the truth and your need for restitution. But more than anything, you want recognition of what has happened.

International standards Criminal justice in today’s world falls far short of addressing victim needs even in the best of systems.

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In 1985, the governments of all the nations of the world including those in Asia adopted the resolution of the UN General Assembly which called upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, inter alia by: 1

2

3

implementing social, health, including mental health, educational, economic and specific crime prevention policies to reduce victimization and encourage assistance to victims in distress; sponsoring collaborative action-research on ways in which victimization can be reduced and victims aided, and to promote information exchanges on the most effective means of so doing; rendering direct aid to requesting governments designed to help them curtail victimization and alleviate the plight of victims.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines who are victims of crime and abuse of power, and clarifies that the principles of justice include: 1 2 3 4

access to justice and information; reparation; compensation from the State; services.

Since then, considerable progress has been made internationally, including: • •

• •

•

•

UN Commission endorsement of the website www.victimology.nl in 1998; UN Commission approval of the Guide for Policy Makers on Implementation of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1999; adoption of the Statute of Rome in 1999 (and later the Rules of Procedure and Evidence) to establish the International Criminal Court; establishment of the UN Convention Against Transnational Organized Crime in 2000 and its optional protocol in 2002 on trafficking that include specific sections for victims; UN Economic and Social Council (ECOSOC) interest in 2002 in the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters; UN Commission funding in 2003 for 19 pilot projects to implement the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;

International standards for victims 15 • • •

ECOSOC adoption in 2005 of the Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime; ECOSOC acceptance in 2002 of the UN Guidelines for the Prevention of Crime; UN General Assembly adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law in 2005.

When governments ratify the Convention Against Transnational Organized Crime and the optional protocol on trafficking, they commit to action for victims. They have agreed norms on crime prevention and also on restorative justice. The majority of nations ratified the Statute of Rome which gives effect to the principles in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Indeed several of the operative paragraphs are taken verbatim from that Declaration. They have also recently adopted the Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, inspired by the UN Convention on the Rights of the Child. In April 2005, WSV sent a delegation to attend the UN Congress on Crime Prevention and Criminal Justice in Bangkok, Thailand. The major focus of WSV was to promote awareness of the needs of victims of crime, abuse of power and terrorism and so ensure that these were reflected in the action plan that would be decided by the Congress. Indeed they challenged that Congress to make the reduction of victimization and fair treatment of victims as important as criminal justice for accused and offenders. Victims are the central reason for the work of the World Health Organization to prevent violence. Why not make victims the central focus for the work of the UN Commission on Crime Prevention and Criminal Justice – the UN Commission on the Prevention of Victimization and Justice? A draft action plan had been prepared by government officials in advance of the Bangkok Congress but the statement on victims was weak and not likely to lead to concrete action. WSV drafted an alternative paragraph and undertook an extensive lobbying campaign. The lobbying efforts continued throughout the week until Brazil, Canada, France and Portugal agreed to draft a consensus version of the victim statement in consultation with the African Caucus. Where were the governments of Asia? The final version became paragraph 17 of the Bangkok Declaration, Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice, which calls attention to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power as well as the importance of funding. It stated: 17. We recognize the importance of giving special attention to the need to protect witnesses and victims of crime and terrorism, and we commit

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Irvin Waller ourselves to strengthening, where needed, the legal and financial framework for providing support to such victims, taking into account, inter alia, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

In December 2005, the WSV and the International Victimology Institute (INTERVICT) at the University of Tilburg in the Netherlands brought together experts from across the world for an informal meeting on ways to promote the use and application of existing international standards and norms on victims of crime and similar violations. This meeting prepared a draft resolution for the next meeting of the UN Commission on Crime Prevention and Criminal Justice in Vienna in the last week of April 2006. This resolution was adopted in a modified form that encouraged the organization of an inter-governmental meeting of experts on the implementation of the UN standards and norms on the prevention of victimization and victims. This provides an important opportunity for governments from Asia to take a lead in getting concrete action in their own zone and elsewhere. This meeting identified the need to be clear about the scope of action, rights and duties, and implementation and monitoring. It saw a need to find a way of assisting governments to be accountable for their commitments to prevention as well as support and justice for victims, including access to justice, protection, information, assistance, restitution, restorative justice and compensation. It also prepared the draft convention which is attached as Appendix 4 to this chapter. There is a special opportunity to mobilize public opinion throughout Asia to encourage governments to act in conjunction with global lobbying campaigns, including petitions. There was much interest in Morozawa’s campaign that had got half million signatures in Japan and so led to significant legislative and programmatic change. INTERVICT is bringing together the wording on the various petitions from other countries such as Canada. The challenge is to get technical assistance to developing countries where the challenge of victimization is often worse and the resources less. It is a question of priorities and victims must no longer be brushed aside. Dr. Young has established recently a new organization called the International Organization for Victim Assistance (IOVA) as a non-profit entity incorporated in the United States of America. It calls attention to the fact that more than a billion people a year are victims of crime, abuse of power, terrorism, and man-made and natural disasters. IOVA exists to mobilize people, organizations and governments to prevent and mitigate the effects of these crimes and catastrophes on victims and communities. It will work in partnership with local, national and other international organizations. Its goals include: 1

Policy change: To promote, enhance and ensure state, national and international policy change for victims and survivors of crime, violence,

International standards for victims 17

2 3 4

abuse of power, terrorism, and natural disasters through advocacy and action. Crisis response: To provide direct emotional and psychological interventions on behalf of victims and survivors after a catastrophe. Education and training: To provide education to those serving victims, survivors and their affiliates. Establish victim services programs: To provide technical assistance and networking opportunities to victims service programs and those wanting to establish such services.

National achievements Laudable progress has been made by affluent governments to implement the principles of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Progress has been greatest in Western European and North American countries, Australia and New Zealand. Yet even for these countries, much work remains. In particular, the WSV has called attention to the exemplary progress achieved by some Member States in: •

•

•

•

enacting legislation that puts the basic principles of justice into domestic laws so that a high-level office will implement policies and programs to provide comprehensive measures for victims of crime; providing victims of crime with better information, support services, reparation from offenders, compensation from the State and a role in criminal proceedings; establishing programs to protect victims of crime who are vulnerable because of gender or age such as all-women police stations and measures to protect child victims; appointing permanent boards and enacting legislation to promote the use of effective and proven crime prevention measures at all levels of government.

Some rich governments have acted to assist some victims some of the time. They have some victim services; they provide for reparation to victims from offenders, which is paid occasionally; they have some compensation available from the State for the most injured victims; and they allow some input from victims to the criminal justice process. They undertake victimization surveys on large samples of adult members of the population that show how frequently adults are victims, how few report to the police and how many suffer loss, injury and trauma. The Victims of Crime Act (1984) in the United States of America provides an inspiring example for Asia. It raises over one billion US dollars from fines on federal offenders who are often rich corporations and individuals, to stimulate action by US states to multiply victim services, state compensation and bills of rights. Much of these funds are focused on women

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who are victims of sexual assault and domestic violence but other victims should also benefit. Even so, their federal Office for Victims of Crime continues to call for action to go from a patchwork system to universal services and programs to educate lawyers, judges and others on victim rights. In the European Union (EU), a mandatory standard (Framework Decision on the Standing of Victims in Criminal Proceedings) has been established so that every government in the EU will provide basic services for victims, reparation and mediation (see Waller 2003: 25–7, 60–4, for discussion and text). They have forced each government to report on progress. Other affluent countries have similar provisions but without the requirement for monitoring. The EU decision must be adapted to countries in Asia. In the 1980s, Brazil launched police stations where victims of violence against women and children could go. These stations had only women officers. Today these stations have spread across the developing world. Just one example in Asia is the state of Tamil Nadu with a population of 65 million, where the woman chief minister has established 200 all-women police stations. That same chief minister is hiring thousands of female police officers in part to staff these stations. Since the 1960s in France, victims of crime have had the right to be represented by a lawyer funded by the State if necessary – just like offenders in other countries have a right to a defence lawyer. This makes justice in France inclusive of victims, offenders and the State. This obvious procedure is missing in other countries. It provides some guarantee that victims can get at the truth, protect their personal safety, seek and get restitution, avoid senseless and inconvenient judicial hearings, and so on. Just last year, the renowned report on reform of the criminal law in India called for a justice system focused on the victims and where victims would be able to participate as they can in France. Appendix 1 gives the text of the recommendations. In addition, Appendix 3 gives a charter for women victims of crime and abuse of power developed for India which provides a model for the Asian region. In 2000, Rwanda established a system of community justice – Gaçaça (pronounced gachacha). Today in every part of Rwanda, village communities get together in the shade of a tree to listen to surviving victims and suspected offenders. The rules of procedure are few. Those victims and offenders were neighbors; the offenders killed, raped and often infected victims with AIDS. When the community justice is finished, the offender will often apologize, express shame and make some reparation. The offender will also receive a prison sanction but likely of shorter duration and sooner than if he had waited for the classic system of justice. In 2004, Japan put the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power into their national legislation in a text for which Appendix 2 provides details. The prime minister established a powerful cabinet-level committee to ensure that the principles would be

International standards for victims 19 imitated. The principles include services for victims, reparation from the offender, information about criminal justice, and a right to participate in the criminal justice process to protect their interests. Technical assistance, training and funds must be provided to multiply these successes across the world. Many examples of the best practices that could be adapted to countries in Asia are set out in my text for the Soros Foundation (Waller 2003). Governments must re-examine these international norms and invest in programs that will treat victims with dignity, whether children, women or whatever.

Who will pay? The WSV calls on the UN and governments to provide technical assistance, training and funds to multiply the successes across the world. Table 2.1 illustrates what could be achieved by governments concerned to reduce crime and do justice to support victims. This list of activities highlights those that would reduce victimization, provide support for victims and ensure permanent and sustained reforms according to my book Less Law, More Order (Waller 2006). The bottom line is that any government anywhere in Asia can afford to reallocate ten Table 2.1 Proposed budget allocation to lower crime victimization Percentage of expenditures on law enforcement and criminal justice (%) Prevention programs 1.1 Youth and gang crime 1.2 Violence against women and children 1.3 Violence relating to cars, guns and substance abuse 1.4 Neighborhood disorder and burglaries 1.5 Environmental and industrial design Subtotal

1 1 1 1 1 5

Victim support and justice 2.1 Support services 2.2 Reparation to victims 2.3 Realization of rights Subtotal

1 1.5 0.5 3

Ways to sustain crime prevention and victim support 3.1 City-wide community safety planning 3.2 Making policing oriented to risk factors and victims 3.3 Training of prevention and support professionals 3.4 Local victimization and crime data bases Subtotal

0.5 0.5 0.5 0.5 2

Total

10

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percent of its law and order budget to these activities established by prestigious commissions and UN norms.

Next steps Action must be taken to advance research, services and awareness for victims across Asia. This requires persons committed to these ideals, better services, more research, innovative education and training, and continued advocacy and rights. It requires a process of assessing progress and acting to make the necessary improvements. It requires permanent victimology institutes. It requires a convention with teeth. The WSV has called on states to now take concrete steps to overcome the lack of recognition for the plight of victims and for their need for justice in the twenty-first century, including: 1 2 3 4 5

victims of transnational organized crime, corruption, terrorism, and economic crime; in making standards work for victims; reforming criminal justice, including restorative justice, to assist victims and provide justice for all including victims; prevention of victimization; attention to women and children who are victimized, particularly within their families.

The concrete steps for victims of crime should include: 1

2 3 4 5 6 7

legislation that puts the basic principles of justice for victims into national laws with an office to implement the programs comprehensively; training and guidelines for police, lawyers, health professionals and others to ensure proper and prompt aid and respect for victims; projects to provide services to assist and support victims; national policies to prevent and reduce victimization; they should be particularly based on the UN Guidelines for the Prevention of Crime; actions to implement guidelines to overcome the particular lack of recognition for victims who are women and children; research and surveys to monitor victimization, services and justice for victims and implement effective countermeasures; institutes to sustain the reforms that are needed to prevent victimization, assist victims and provide justice for all, including the victim.

The mission of the WSV is advancing research, services and awareness for victims. It achieves this through the following five strategies:

International standards for victims 21 1. To promote research in victimology and on victim needs WSV organizes research workshops on victimological issues and victim needs at its international symposia, including national and international surveys on victims, analysis of the consequences of victimization and evaluations of the effectiveness of services and processes for victims. It fosters the publication of the proceedings from its international symposia. It makes available on its website an international bibliography of documents on victimology and victim issues. Its research committee was created to advance victimological research throughout the world and encourage interdisciplinary and comparative work in this field. It is a partner with the Ministry of Justice of the Netherlands and the UN Office for Drug and Crime Prevention in the website www.victimology.nl, which provides extensive documentation on victim issues on the web. Aims: •

• • • •

to foster more research on the implementation of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power, including the extent to which countries have implemented the Declaration and the barriers that must be overcome for greater implementation; to create the capacity to evaluate practices for victims according to recognized international standards; to foster research that compares the consequences and responses to victims of crime, abuse of power and other stark misfortunes; to be recognized internationally as the leader for advancing research on victim issues and theory; to foster research on the extent to which the International Criminal Court has implemented services that meet the legislated needs of victims.

2. To provide services for victim service providers and victimologists WSV organizes workshops on services for victims at its international symposia. Its committee on victim services was established to provide a network of victim services around the globe and to develop a knowledge basis for training and technical assistance based on the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power. Aims: •

•

to support a database of victim service agencies across the world in order to facilitate the referral of victims for services in countries where needed; to encourage list-serves for service providers in major languages in addition to English;

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•

to bring together information on model practices so that reforms can benefit from best practices; to assist the International Criminal Court with its mandate to assist, protect and respect rights for victims; to determine the potential WSV role to facilitate financial and political leadership, and bring together crisis intervention and other services for victims in extraordinary crises such as catastrophic incidents; to encourage relevant institutions and agencies – e.g. Human Rights Commissions – to monitor the availability and standards of services for victims.

• •

•

3. To provide education and training WSV organizes international courses on victimology and victim assistance. The two-week course on victimology, victim assistance and criminal justice has been organized annually since 1984 in Dubrovnik. Similar courses on victimology and victim assistance have been organized for Asia in Mito, Japan, since 1998, for Central America in San Salvador since 2001 and for South America in Caracas since 2002; a course was organized in South Africa in 2003. It worked with the UN to develop the Guide for Policy Makers on the Implementation of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (United Nations Office for Drug Control and Crime Prevention 1999a, 1999b). It has fostered the translation of these books into other languages including French and Spanish. Aims: •

•

• • • •

to convince law schools and others involved in the training of criminal justice professionals to include courses on victimology, victim rights and issues, and to convince those who certify qualifications, such as bar associations, law enforcement and judicial bodies, to require this knowledge; to encourage university courses and degree programs on victimology, including victim assistance, victim rights, crisis response, restorative justice and victimization prevention; to promote a system of credentials for victim service professionals (staff and volunteers) and establish international standards; to establish a program to mentor and develop leaders able to influence action on behalf of victims; to establish international courses in regions where they do not yet exist; to encourage reciprocal training of victim service practitioners from different countries;

International standards for victims 23 • • •

to host an annual training course for international victim service providers; to develop standards for curricula and disseminate training materials; to develop a mechanism for authorizing the use of the WSV logo and mission statements for courses and other activities.

4. To advance advocacy and rights WSV played a leadership role in promoting the adoption by the UN General Assembly of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985. It continues to lobby governments on the importance of legislative and program reforms to meet those basic principles, particularly through its UN Liaison Committee at the UN Commission on Crime Prevention and Criminal Justice and at quinquennial UN Congresses on crime. It has encouraged the adoption of the UN norm based on the International Bureau of Children’s Rights’ Guidelines on Child Victims and Witnesses. It has advocated project grants for pilot projects to implement the Declaration as provided by the UN Office on Drug and Crime Prevention. Aims: • • • • • • • •

to advocate increased funding for research and services for victims to accelerate implementation of the Declaration; to promote a convention on the implementation of the Declaration; to raise political and public awareness of victim issues and rights; to encourage organizations and others committed to reducing the number of victims of all types; to organize events to interest government officials in making greater progress in the implementation of the Declaration; to establish a WSV representative in each country to assist with information on victim issues and rights and advocate for improvements; to foster national societies for victimology to pursue national missions and activities similar to the WSV; to encourage mechanisms to provide an early warning system to prevent abuses of power and protect potential victims from stark misfortunes.

5. To provide member opportunities WSV has organized an International Symposium on Victimology every three years since 1979 in all major regions of the world (registration for members is reduced). It publishes a quarterly newsletter – The Victimologist – to keep its members up to date on developments in different countries, organizes workshops and conferences, and provides opportunities to participate in the WSV committees and activities. It maintains a contact list of members from over 60 countries. It enables individuals and national

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organizations to be members in an international non-governmental organization with consultative status with the UN and the Council of Europe devoted to victimological issues. Aims: •

• • •

•

to provide members with a certificate of their membership which also identifies the mission of the WSV and its consultative status with the UN and the Council of Europe; to provide a web page with information on WSV, including a membersonly section with list-serves and occasional newsflashes; to develop a house style that integrates the mission, including the logo, and designs on shirts and pins; to enrich the privileges in order to attract and retain the membership of the key academics, service providers and policy-makers who are currently involved in victimology; to provide free thematic brochures on victim issues.

At the WSV’s Twelfth International Symposium in Orlando, Florida, USA, in 2006, the draft Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism (World Society of Victimology 2006) was discussed. Much more needs to be done at international and regional levels.

Conclusion The governments, academics and non-governmental organizations of Asia must face the challenge of millions of children, women and men who suffer loss, injury and trauma when they are victimized by crime, abuse of power and terrorism every year. International standards and norms on victims call for investment in strategies that will tackle the risk factors that cause this victimization rather than only spending more on police, prisoners and judges. These standards and norms focus on the importance of national and municipal offices that will spearhead the investment in programs to tackle the reasons why youth are at risk, the availability of handguns and the more intelligent use of police. UN standards and norms call for support and justice for the victims of crime, abuse of power and terrorism such as those set out in the draft convention. Already many examples exist of inspiring practices as to how victims could and should be treated better. Governments must not only legislate and revise their constitutions but allocate a percentage – I recommend ten percent – of their expenditures to the reforms and implementation that is needed. The time for action was more than ten years ago. Ten years from now we will realize that the time for action was now. So stronger than the tread of armies, prevention of victimization, support and justice for victims are practical actions whose time has come.

International standards for victims 25

References Malimath, V.S. (2003) Report of the Committee on Reforms of the Criminal Justice System, Delhi: Ministry of Home Affairs, Government of India. United Nations Office for Drug Control and Crime Prevention. (1999a) Guide for Policy Makers on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. New York: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention. —— (1999b) Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. New York: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention. Waller, I. (2003) Crime Victims: Doing Justice to Their Support and Protection, Helsinki: HEUNI. —— (2006) Less Law, More Order: Truth and Sense to Prevent Crime, Westport, CT: Praeger Imprint. WHO (World Health Organization). (2002) World Report on Violence and Health. Geneva: Violence and Injuries Prevention. —— (2004a) Preventing Violence: A Guide to Implementing the Recommendations of the World Report on Violence and Health. Geneva: Violence and Injuries Prevention. —— (2004b) World Report on Road Traffic Injury Prevention: Summary. Geneva: World Health Organization. World Society of Victimology. (2006) Convention on Rights for Victims of Crime, Abuse of Power and Terrorism (draft), University of Tilburg: InterVict. Young, M. (2005) World Society of Victimology Press Conference. UN Congress on Prevention of Crime and Criminal Justice. Bangkok. 22 April 2005. Available online at: www.un.org/webcast/crime2005/pressconf.html.

Legislation and Treaties Europe Framework Decision on the Standing of Victims in Criminal Proceedings. (2001) Official Journal L 82, 22 March 2001.

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53. Convention on the Rights of the Child. (1989) A/RES/44/25, U.N. Doc, A/44/49, entered into force 2 September 1990. Rome Statute of the International Criminal Court. (1999) U.N. Doc. 2187 U.N.T.S. 90, entered into force 1 July 2002. Convention Against Transnational Organized Crime. (2001) U.N. Doc. A/45/49 (Vol I). Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. (2002) E/2002/12.

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Guidelines for the Prevention of Crime. (2002) E/2002/13. Bangkok Declaration, Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice. (2005) A/RES/60/177. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. (2005) G.A. Res. 60/147, U.N. Doc. A/RES/ 60/147. Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime. (2005) E/2005/20.

United States Victims of Crime Act (1984). Title 42, Chapter 112.

Appendix 1 Extracts from the recommendations of the national committee set up by the Ministry of Home Affairs of the Government of India with regard to justice for victims of crime.

6. Justice to victims of crime An important object of the Criminal Justice System is to ensure justice to the victims, yet he has not been given any substantial right, not even to participate in the criminal proceedings. Therefore, the Committee feels that the system must focus on justice to victims and has thus, made the following recommendations which include the right of the victim to participate in cases involving serious crimes and to adequate compensation. (14) i) The victim, and if he is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the charge is punishable with 7 years imprisonment or more. ii) In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in court proceedings. iii) The victim has a right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer. iv) The victim’s right to participate in criminal trial shall, inter alia, include: a) To produce evidence, oral or documentary, with leave of the court and/or to seek directions for production of such evidence. b) To ask questions to the witnesses or to suggest to the court questions which may be put to witnesses.

International standards for victims 27 c) To know the status of investigation and to move the court to issue directions for further to the investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. d) To be heard in respect of the grant or cancellation of bail. e) To be heard whenever prosecution seeks to withdraw and to offer to continue the prosecution. f) To advance arguments after the prosecutor has submitted arguments. g) To participate in negotiations leading to settlement of compoundable offences. v) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. vi) Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization. vii) Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration. viii) The Victim Compensation law will provide for the creation of a Victim Compensation Fund to be administered possibly by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn. It is the considered view of the Committee that criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be. With increase in quantum of fine recovered, diversion of funds generated by the justice system and soliciting public contribution, the proposed victim compensation fund can be mobilized at least to meet the cost of compensating victims of violent crimes. Even if part of the assets confiscated and forfeited in organised crimes and financial frauds is also made part in the Fund and if it is managed efficiently, there will be no paucity of resources for this well conceived reform. In any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources.

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Appendix 2 Japanese legislation on fundamental principles for victims (taken from presentation by Hidemichi Morazawa at the University of Ottawa, October 2005). The fundamental principles are the following: (1) (2) (3)

The dignity of the victim shall be respected. Victims have the right to be treated fairly and with respect to their dignity. Policies for the victims shall be dealt fairly with in view of the victim’s circumstances, result of the crime and conditions. The aim of all policies for the victims is to provide continuous proper assistance, until victims are able to lead a peaceful life again after the damage.

The fundamental policies of the State and local self-governing bodies are as follows: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13)

Consultation and offering information Assistance for the claim for damages Complete system in providing a benefit Offering health/well-being service Securing the victim’s safety Securing the victim’s residence Securing the victim’s employment Providing full support for easy participation in criminal proceedings Providing special care during the period of protection, investigation and trial Improving the basic understanding of citizen Intensive research and study Assistance to non-official organizations Reflection of opinion and securing transparency

In order to promote these policies, a Committee for Promoting Policy for Victims, as a special organization, is hereby established in the Cabinet Office. The Committee has the following tasks: (1) (2) (3) (4)

To propose ‘Fundamental Principles for Victims’ To discuss important matters in regard to victim related policies To implement policy for victims To monitor implementation, to evaluate, as well as to observe

The Committee has no more than 10 members including the chairman. The Chief Cabinet Secretary shall appoint the chairman. The Committee

International standards for victims 29 members shall be Ministers of State except for the Chief Cabinet Secretary and the experts on victim support. If, it is recognized as necessary administrative work, the Committee is able to request from the chief of other related governmental organizations to submit data, to state opinions, give explanations and other necessary cooperation.

Appendix 3 Charter for Women Victims of Crime and Violence 1 Professor Dr. K. Chockalingam2 Charter for Women Victims of Crime, Institute of Social Sciences, New Delhi, at the instance of the National Commission for Women of India, 13 January, 2005.

Preamble Witnessing the passage of the twentieth century without any substantial justice done to women and child victims and survivors of grave crimes including sexual assault, domestic violence against women and trafficking of women; Witnessing also that violence against women continues to be unabated in many parts of the country and the world today; Noting that violence against women has received further international attention through the Vienna Declaration adopted at the World Conference on Human Rights in 1993 and the Beijing Platform of Action adopted at the Fourth World Conference on Women in 1995; Affirming that the prevention of violent victimization is more important than cure and particularly calling attention to the urgency to implement the UN Guidelines on the Prevention of Crime and the World Health Report

1

2

Revised version of the original draft Charter prepared by Professor K. Chockalingam, incorporating all the comments/suggestions expressed by the distinguished participants including Professor Irvin Waller, Secretary General of the World Society of Victimology and Professor of Criminology, University of Ottawa, Canada, in the National Consultative Meeting organized by Mr Sankar Sen, Senior Fellow, Institute of Social Sciences, New Delhi and chaired by Mr Justice V.S. Malimath, Former Member of the National Human Rights Commission and Former Chief Justice of Kerala and Karnataka High Courts. Professor Dr. K. Chockalingam, a professor at the Department of Criminology, University of Madras, India, was until recently the Vice Chancellor of Manonmaniam Sundaranar University, Tirunelveli, India.

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on Violence which stress that focused programs in schools and the community can significantly reduce violence; Cognizant that many women victims and survivors of grave crimes and abuse of power continue to suffer, both physically and psychologically, from these victimizations and from the failure to provide justice, including individual compensation and other forms of reparations, and prosecution of the perpetrators of these crimes; Alarmed that even after half a century of the adoption of the Indian Constitution and even after two decades of the passing of the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power by the General Assembly of the United Nations on 29th November 1985, victims do not receive adequate justice; Mindful of the moral responsibility of every member of the civil society to prevent victimization, assist victims and vindicate justice for the women victims and survivors; Determined to vindicate justice, human rights, and dignity to all victimized women and children, to end the impunity for violence against women and thereby prevent repetition of such crimes; Convinced that this effort will also contribute towards a new millennium mitigating the sufferings caused by crime and violence against women; Hereby adopts the Charter of Women Victims

Purpose of this charter The Victims’ Charter shall explain the coordinated service that must be in place to meet the informational, emotional and practical needs of a victim of crime. It shall aim to ensure everything possible, which could be done to meet the needs of the victim, and others affected by the incident.

Rights for victims of crime 1 The rights of victims of crime must be accorded adequate recognition and effectively enforced. 2 Victims of crime and where relevant their immediate family, must not be discriminated against on the basis of age, gender, disability, culture, race, religion, caste, occupation, political belief or affiliation; 3 Victims must have the right to: • Respect and recognition at all stages of the criminal justice proceedings • Receive information and explanation about the progress of their case • Be present and heard in the criminal justice proceedings whenever their personal interests are affected • Their physical safety and their psychological well-being • Protection from any intrusion into their privacy

International standards for victims 31 • • • •

Receive information regarding their rights and the services that are available Have access to free victim support services Compensation from the offender/State Access to health care services.

Duty of the police when a crime is reported 4 The police shall respond to a complaint of the victim and shall provide the relevant information to the victim with utmost expedition; 5 To enable the victim to pursue her case, the police shall give the victim or her representative a crime reference number and the number of the person or the contact details of the concerned officials. 6 The victim shall be given a copy of a printed leaflet called ‘Victims of Crime’ as soon as the crime is reported to the police. This leaflet shall explain how the victim and the police can assist each other, it shall also explain the victim support/assistance available and how the victim can apply for compensation for injury, loss or damage from a crime as well as her rehabilitation. 7 The police shall keep the victims informed of important developments of the case. When cases are remanded or adjourned, the victims shall be kept informed of the new date when the case will come up for hearing. When an accused is sentenced by the court, the victim shall receive written notification of the outcome. 8 If the victim is required to give evidence in court, she shall be advised of the date, time and location of the hearing. The victim shall be provided with a booklet explaining what can be expected to happen in court and a list of helpful telephone numbers of people and organizations who can be of assistance to the victim. 9 Specialist or Expert help shall be available when the crime involves a death or if a child is the victim of a crime. These include the Non Governmental Organizations engaged in specialist services, for example, women, children, elderly, destitute or orphan victims. 10 In cases of rape or domestic violence against women, a female police officer, preferably a person who has received special training shall assist such victims. 11 In cases where a child is the victim of a serious crime, she shall be assisted by a special police officer as envisaged in the Juvenile Justice (Care and Protection) Act 2000, who has received specialist training to handle children.

Duty of prosecutors and judiciary 12 Prosecutors and the judiciary shall be sensitive to the needs and concerns of victims and witnesses.

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13 Prosecutors and the judiciary shall take into account the convenience of victims in setting dates for court hearings. 14 Prosecutors shall consult with victims when proposing bail decisions and negotiating pleas from the accused. 15 Prosecutors and the judiciary shall always consider the award of compensation from the offender and explain the reasons to the victim if compensation cannot be awarded.

Apprehensions of the victim about future victimization 16 The police shall ask the victim about her fears of further victimization and details of her loss, damage or injury. The police and the Magistrates may take this into consideration when making their decisions. 17 Where the Probation Service has responsibility for supervising prisoners on license or parole for accused persons who have received life imprisonment or have been sentenced for serious sexual or violent offences, they will attempt to make contact with the victim to provide information about the custodial process and to obtain any information about concerns when the conditions of release are being considered.

Victim as witness 18 Victims and witnesses shall be provided with separate waiting rooms at the Criminal and Magistrate’s Courts from those involved in the case to ensure their safety and to dispel their fear while tendering evidence. 19 On arrival of the victims and witnesses at the Court, the Court Officers shall answer any queries in a sensible and sensitive manner to enable the court to elicit the truth.

Child witnesses 20 Wherever a child has to give evidence, it shall be recorded on a TV link or behind a screen in appropriate cases. 21 The child will be allocated a Child Witness Support Worker who will assist throughout the case. 22 If a child is required to give evidence, he or she shall receive support throughout. 23 A separate waiting room shall be provided in the court premises to child victims and witnesses. 24 The Children’s Service can provide child victim reports to the court to advise them of the impact of serious crime on the child and her family. Child victims of sexual or physical abuse will be offered emotional support and ongoing therapeutic help if it is required from the Child Protection Team at the Children’s Service.

International standards for victims 33

Emotional and practical support for victims 25 NGOs and women’s groups engaged in victim assistance shall contact victims of crime within four working days of receiving details of the case from the police. Victims shall also have the option to contact them directly, if they require immediate support. The police may pass details to the agency which renders Victim Support within seven days of the matter being reported unless the victim has requested them not to. 26 Persons suffering personal injury as a result of a crime may apply for compensation under the Criminal Injuries Compensation Scheme wherever such compensation scheme is available. A leaflet called ‘Victims of Crimes of Violence – a Guide to Criminal Injuries Compensation Scheme’ shall be made available from the police, and other NGOs engaged in victim assistance services. 27 The court dealing with the crime may consider making a Compensation Order under the existing laws if the victim has suffered loss, damage or injury. The police shall assist the victim in this regard so that the victim can receive compensation. 28 In cases of domestic violence, the details of the victims shall be passed on confidentially to NGO’s dealing with domestic violence, including Women’s Refuge, which offer support and guidance for women. 29 If the victim has reported a rape, Rape Crisis Centre or similar specialist Centre will only be contacted with her express permission. Rape Crisis Centre shall be available for contact throughout the 24 hours of a day.

Health care for the victim 30 Medical attention, when required, shall be offered as soon as possible and medical information will be held in strict confidence by the hospital staff. Emotional and psychological support shall be offered following bereavement or other traumatic events. 31 Rape evidence kits shall be developed and made available to doctors and hospital staff with appropriate standards and training. 32 There shall be an informative booklet on ‘Victims’ Charter’ containing all the information that should be available with the police, courts and the NGOs engaged in victim assistance and support work.

Implementation The charter calls for action by many actors including the police, prosecutor, judicial, legal, medical and civil society communities. In order to ensure its implementation, all levels of government must take the following actions: 33 Legislation must be passed to give the force of law to the rights as specified in paragraphs 1 to 32.

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34 An Office for Victims of Crime must be established through legislation in the Ministry of Home Affairs at the Union Government and the equivalent departments in all the State governments. The role of this office is to spearhead efforts to implement the rights. 35 Funding of services to implement these rights must be accepted as a priority by the Central and State governments. The Office for Victims of Crime would decide on the use of the funds to implement the services successfully and in an orderly manner. 36 Standards and codes of conduct must be established for police, lawyers, prosecutors, judges, health workers and others. Training and professional development must be provided to promote greater sensitivity for the victims as well as conformity with these standards. 37 A plan to monitor and evaluate progress in implementation of these rights must be developed and put in operation. This plan must also include monitoring of progress in reducing violence against women. 38 All levels of government and civil society must implement actions to prevent violent victimization, guided by the UN Guidelines and the World Health Organization. 39 This charter must be disseminated widely in the national and regional languages of India and all the States to Government and NonGovernmental agencies, including women’s and self-help groups. Public awareness campaigns must be launched to inform individual citizens of the key elements in the Charter.

Appendix 4 UN Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism (Draft)

Preamble The States Parties to this Convention: Recalling the resolution of the UN General Assembly (GA/RES/40/34) in 1985 which called upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Recognizing that millions of people, including many women and children, throughout the world still suffer harm as a result of crime, abuse of power and terrorism, and that the rights of these victims still have not been adequately recognized, and that they may, in addition, suffer hardship when assisting in the prosecution of perpetrators,

International standards for victims 35 Noting the partial progress achieved by some Member States in: •

•

• •

legislating the basic principles of justice into domestic laws combined with a high level office to implement policies and programs to provide comprehensive measures for victims of crime; providing victims of crime with better information, support services, reparation from offenders, compensation from the state and a role in criminal proceedings; establishing programs to protect victims of crime who are vulnerable, for instance because of gender or age; launching permanent boards and legislation to promote the use of effective and proven prevention of victimization at all levels of government.

Noting the initiatives at the UN to implement the Declaration, including: • • • • • • • • •

UN Commission endorsement of the website Victimology.nl in 1998; UN Commission approval of The Guide for Policy Makers and the Handbook on Justice for Victims in 1999; Statute of Rome in 1999 (and later the Rules of Procedure and Evidence) to establish the International Criminal Court; Convention on Transnational Organized Crime in 2000 and its optional protocol in 2002 on trafficking that include specific sections for victims; ECOSOC interest in 2002 of Guidelines on Restorative Justice; UN Commission funding in 2003 for 19 pilot projects; ECOSOC adoption in 2005 of the Guidelines for Child Victims and Witnesses; ECOSOC acceptance in 2002 of crime prevention guidelines; UN General Assembly adoption of the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law in 2005.

Recognizing that some issues relating to justice and support for victims are handled increasingly through a variety of processes often referred to as restorative justice. This includes systems found in indigenous societies and incorporates principles of community involvement in dispute reconciliation; perpetrator accountability; victim empowerment; and restoration of harmony in relationships and community. Some examples include mediation, family group conferencing, community justice systems and gaçaça. Noting in 2005 the inclusion in the Declaration of the UN Crime Congress in Bangkok by the Member States of the following paragraph: 17. We recognize the importance of giving special attention to the need to protect witnesses and victims of crime and terrorism, and we commit ourselves to strengthening, where needed, the legal and financial frame-

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Irvin Waller work for providing support to such victims, taking into account, inter alia, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

Recognizing the importance of promoting full use and application of the UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power. Have agreed as follows: PART I: GENERAL CONSIDERATIONS

Article 1 Definitions (1) ‘Victims’ means natural persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering or economic loss or violations of fundamental rights in relation to victimizations identified under ‘scope’. (2) A person is a victim regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term ‘victims’ also includes, where appropriate, the immediate family or dependants of the direct victims and persons who have suffered in intervening to assist victims in distress or to prevent victimization. (3) A ‘witness’ is a person who could be called to a court or other appropriate forum to provide testimony. (4) An ‘expert’ is a person who by virtue of specialized training, particularly knowledge or experience assists the legal system.

Article 2 Scope This convention covers natural persons who are victimized by acts or omissions that: (a) are violations of criminal laws of States Parties or the criminal provisions of an applicable convention, including criminal abuse of power; (b) do not yet constitute violations of national criminal laws and are violations of internationally recognized norms relating to human rights; (c) are acts of terrorism and others as defined in international instruments intended to cause death or serious bodily harm to civilians or noncombatants, when the purpose of such an act, by its nature or context, is

International standards for victims 37 to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

Article 3 General application (1) Nothing in this Convention shall diminish any provisions which protect the rights and interests of victims which are contained in the law and practice of a State Party or international law in force in that State. (2) States Parties should undertake to implement these provisions to the maximum extent of their available resources. For planning purposes, States Parties should set priorities for implementing the provisions and seek to provide them over time through progressive realization of goals. (3) States Parties should ensure that the provisions contained herein shall be applicable to all, without discrimination of any kind, such as race, color, gender, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. This will be without prejudice to providing special justice and support best suited to victims who are particularly vulnerable because of age, gender, disability or other characteristics mentioned. (4) States Parties shall ensure that all officials and other persons dealing with victims treat them with courtesy, compassion, cultural sensitivity, and respect for their rights and dignity.

Article 4 Commitment to reduce victimization States Parties shall commit to provide both justice and support for victims and to reduce victimization consistent with international guidelines by, inter alia, developing: (a) more effective detection, prosecution, sentencing and corrections of perpetrators, consistent with internationally recognized norms; (b) measures to reduce the risk of occurrence of crimes by tackling their multiple causes; (c) strategies to reduce the opportunity for crime by improving protection for property and persons; (d) collaboration between civil society and relevant governmental institutions, in areas such as schooling, social services, family, public health and economic sectors; (e) institutional frameworks to improve the planning, cost effectiveness and sustainability of strategies;

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(f) greater public participation in, and engagement with, strategies in both the short and the long term; (g) international cooperation to exchange proven and promising practices and seek transnational solutions. PART II: RIGHTS AND DUTIES

Article 5 Access to justice and fair treatment (1) For harm suffered, States Parties shall provide victims with access to the mechanisms of justice and redress which is expeditious, fair, inexpensive and accessible, as provided for by domestic legislation, through: (a) judicial and administrative mechanisms which will enable victims to obtain redress; (b) informal mechanisms for the resolution of disputes, including mediation, arbitration, and customary justice processes or indigenous practices, where appropriate, to facilitate conciliation and redress for victims; (c) information about their rights in seeking redress through all these mechanisms. (2) States Parties shall ensure that the informal, administrative and judicial processes are responsive to the needs of victims. This should be facilitated by: (a) giving the victim a fair hearing within a reasonable time in the determination of their entitlement to a remedy for the injury, loss or damage suffered by them as a result of their victimization without prejudice to the accused; (b) allowing the views and concerns of victims to be presented and considered at appropriate stages of proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant domestic criminal justice system; (c) allowing victims to present their views and concerns themselves through legal or other representatives without prejudice to the discretion of the court, tribunal or other appropriate authority, and in consonance with the relevant domestic criminal justice system; (d) the prompt return to victims of their property taken or recovered by the police or any other agency in the course of the investigation; (e) providing to victims, where appropriate, the right of appeal against decisions of the prosecutorial authority not to prosecute in cases where they were victimized; (f) providing proper assistance to victims throughout informal, administrative, investigative and judicial processes; (g) taking measures to minimize inconvenience to victims and protect their privacy wherever appropriate;

International standards for victims 39 (h) ensuring the safety of victims, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (i) avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims; (j) ensuring the enforcement of any order or decree granting awards to victims. (3) States Parties should seek to reimburse victims and witnesses who have the status of parties for court expenses incurred as a result of their legitimate participation in criminal proceedings.

Article 6 Protection of victims, witnesses and experts (1) States Parties shall take appropriate measures in accordance with its domestic legal system to protect the safety, physical and psychological well-being, dignity and privacy of victims, witnesses and experts from potential retaliation or intimidation and, as appropriate, for their relatives and other persons close to them. (2) The measures envisaged in paragraph 1 of this article may include: (a) establishing procedures for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons; (b) providing evidentiary rules to permit victims, witnesses and experts to give testimony in a manner that ensures the safety of such persons, such as permitting testimony to be given through the use of communications technology such as video or other appropriate means; (c) agreements or arrangements with other States Parties for the relocation of persons.

Article 7 Information (1) States Parties shall ensure that victims have an enforceable right to information, and must be informed of this, from their first contact with law enforcement or other agencies. State Parties shall ensure that victims receive general information in the most expeditious and efficient method appropriate to the culture such as through oral or written communication with concern for literacy and literary traditions. Specific information should be given person to person. Such information should facilitate an informed understanding for the victims and shall be at least as follows:

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(a) the type of services or organizations to which they can turn for support; (b) the type of support which they can obtain, including the availability of health and social services and other relevant assistance; (c) where and how they can report an offence; (d) procedures following such a report and their role in connection with such procedures; (e) their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; (f) how and under what conditions they can obtain protection; (g) to what extent and on what terms they have access to legal advice or legal aid; (h) requirements for them to be entitled to compensation; (i) if they are resident in another State, any special arrangements available to them in order to protect their interests; (j) where and how the victims could obtain more information. (2) States Parties shall ensure that victims who have expressed a wish to this effect are kept informed of: (a) the outcome of their complaint; (b) relevant factors enabling them, in the event of prosecution, to know the conduct of the proceedings regarding the person prosecuted for offences concerning them, except in exceptional cases where the proper handling of the case may be adversely affected; (c) the court’s sentence. (3) States Parties shall take the necessary measures to ensure that the victim is notified, at least in cases where there might be danger to the victims, when the person prosecuted or sentenced for an offence is released. (4) In so far as States Parties forward on its own initiative the information referred to in paragraphs 2 and 3, it must ensure that victims have the right not to receive it, unless communication thereof is compulsory under the terms of the relevant criminal proceedings.

Article 8 Assistance (1) States Parties should provide the necessary material, medical, psychological and social assistance to victims through government, voluntary, community-based and indigenous means. Such assistance may be provided through any agencies or comprehensive programs that are appropriate under domestic laws or norms. (2) States Parties should be encouraged to develop networks of criminal justice, social services, health and mental health services, victim assis-

International standards for victims 41 tance services and other relevant groups or institutions in order to facilitate referrals, coordination and planning among those providing assistance. (3) States Parties should encourage the establishment of local and regional victim assistance centers to coordinate networks, develop and make referrals, and provide outreach to victims and direct services where appropriate. (4) States Parties should facilitate the referral of victims by the police and other relevant agencies to victim assistance centers or other service institutions. (5) States Parties should seek to establish the following kinds of assistance to victims: A. Immediate assistance: (a) medical attention and accompaniment to medical exams, including first aid, emergency medical attention and medical transport. Support services should be provided to victims when forensic examinations are called for or in the aftermath of death; (b) material support such as shelter, housing, transportation, or property repair; (c) crisis intervention, involving crisis counseling and problem solving; (d) information and notification about what happened to the extent that such information does not interfere with investigation, including notification of any immediate responsibilities to the criminal justice system. Assistance should be offered in notifying family or friends of what happened; (e) protection from repeat victimization should be provided through the development of safety and security plans. This may include information on police surveillance, relocation, emergency communication and the like. It may also involve assistance with obtaining protection orders through the judicial system; (f) victims should be protected from media intrusion; (g) general support and advocacy should be offered when victims interact with social, justice and medical institutions as well as appropriate referrals for urgent needs; (h) confidentiality and privacy should be guaranteed to the extent allowable under current law and policy. B. Medium-term assistance: (a) the continuation of the services provided under A ‘Immediate Assistance’; (b) psychological health and spiritual interventions that may include post-trauma counseling, mental health therapy, pastoral counseling, or traditional healing intercessions;

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Irvin Waller (c) assistance with financial needs or claims including filing and advocacy for compensation claims, restitution, insurance, or emergency funds; (d) legal referrals should be provided for legal assistance in the criminal or civil justice systems. To the extent possible such legal assistance should be free. C. Long-term assistance: (a) the continuation of the services provided under A ‘Immediate Assistance’ and B ‘Medium Assistance’; (b) assurances and re-establishment of the victim’s place in the community and in the workplace should be encouraged; (c) language understood by victims should be encouraged. If translators are needed, they should be trained in the subject matter that they are addressing and victim support personnel should be familiar with common terms that will be used; (d) assistance with regard to victims’ roles in the criminal justice system, including the nature of information they will receive on case status and their rights to participation or representation; (e) information and assistance should be provided on how victims can provide input at all critical stages of criminal justice proceedings, including: bail hearings, initial hearings, plea bargains, diversion programs, case disposition, offender status post disposition and offender releases; (f) information, support and assistance concerning options for participation in alternative justice forums should be provided.

Article 9 Restorative justice (1) States Parties should endeavor to establish or enhance the systems of restorative justice, which shall seek as a priority to restore the victim. States should emphasize the need for acceptance by the offender of his or her responsibility for the offence and the acknowledgement of the adverse consequences of the offence for the victim. (2) States Parties shall ensure that victims shall have the opportunity to choose restorative justice forums under domestic laws, which accord to victims’ dignity, compassion and similar rights and services to those described in this convention.

Article 10 Restitution (1) States Parties should legislate to make offenders or third parties responsible for paying fair restitution to victims, their families or dependants.

International standards for victims 43

(2)

(3)

(4)

(5) (6)

(7)

Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. States Parties should review their practices, regulations, laws and their constitution to ensure that restitution is an available option in criminal cases. In cases of environmental crime, States Parties should legislate to include restitution to restore the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of the community. Where public officials or other agents acting in an official or quasi-official capacity have violated domestic criminal laws, States Parties should legislate to provide restitution to victims from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurs is no longer in existence, the State or Government successor in title should provide restitution to the victims. When there is a court order of restitution, the State Party shall be responsible for enforcing the order. In cases where the offender is under the legal obligation to pay restitution as well as other pecuniary sanctions, the former shall have precedence over the latter. In cases where the victim seeks restitution through civil remedies, States should endeavor to expedite these proceedings and minimize expenses.

Article 11 Compensation (1) When compensation is not fully available from the offender or other sources, States Parties should endeavor to provide compensation to: (a) victims who have sustained significant bodily injury or impairment of physical or mental health as a result of intentional violent crime; (b) the victim’s family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. (2) Compensation should be provided for: (a) treatment and rehabilitation for physical injuries; (b) pain and suffering and other psychological injuries caused to victims; (c) States should also consider compensation for loss of income, funeral expenses and loss of maintenance for dependants.

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(3) The establishment, strengthening and expansion of national, regional or local funds for compensation to victims should be encouraged. States Parties may consider providing funds through general revenue, special taxes, fines, private contributions, and other sources. (4) These funds should guarantee fair, appropriate and timely compensation. They should also allow for emergency and/or interim payments. Special care should be taken to make the funds accessible. This requires, inter alia, extensive dissemination of information on the eligibility criteria and the procedure to be followed. States should also consider other means to raise public awareness of the existence of these funds. (5) Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. (6) In cases of cross border victimization, the State where the crime has occurred should pay compensation to the foreign national, subject to the principle of reciprocity.

PART III: IMPLENTATION, MONITORING AND COOPERATION

Article 12 Implementation (1) States Parties shall take appropriate measures to: (a) bring into force the laws, regulations and administrative provisions necessary for the implementation of this Convention; (b) establish and enhance such institutions and mechanisms as may be necessary for the achievement of the objective of this Convention; (c) ensure the establishment and/or enhancement of appropriate procedures, which are victim-friendly and which must be adhered to. (2) States Parties shall ensure that personnel dealing with victims and witnesses make every effort to adopt an interdisciplinary and cooperative approach in aiding them. This approach may include protocols for the different stages of the justice process to encourage cooperation among entities that provide services to victims and witnesses. (3) States Parties shall ensure the building of partnerships among local, national and international stakeholders, including intergovernmental and non-governmental organizations, civil society as well as the private sector in the implementation process. To this end, all stakeholders shall be encouraged to contribute to the resources required for implementation. (4) States Parties shall foster, develop and improve international cooperation in order to:

International standards for victims 45 (a) facilitate the more effective protection of victims’ interests in informal, administrative or judicial proceedings; (b) promote mutual assistance for the purpose of facilitating collection and exchange of information and the detection, investigation and prosecution of crimes. (5) States Parties shall provide adequate training, education and information to all persons working with victims and witnesses with a view to improving and sustaining specialized methods, approaches and attitudes in order to protect and deal effectively and sensitively with victims and witnesses. This training should include: (a) standards, norms and principles relating to victims; (b) principles and ethical duties of personnel dealing with victims; (c) crisis assessment skills and techniques, especially for making referrals, with an emphasis placed on the need for confidentiality; (d) impact, consequences, including negative physical, mental, emotional, psychological and financial effects, and trauma of crimes; (e) special measures and techniques to assist victims and witnesses in the justice process (both formal and informal); (f) cross-cultural and age-related linguistic, religious, social and gender issues; (g) appropriate communication skills; (h) interviewing and assessment techniques that minimize any trauma to the victims while maximizing the quality of information received from the victim; (i) skills to deal with victims and witnesses in a sensitive, understanding, constructive and reassuring manner; (j) methods to protect and present evidence and to question victims and witnesses; (k) roles of, and methods used by, personnel working with victims and witnesses. (6) States Parties shall ensure that adequate sensitization be provided to: (a) victims in order to enable them to be empowered to seek assistance from appropriate quarters so as to able to receive justice, support and assistance in respect of their victimization; (b) members of the public in order to enable them to understand the reasons for provision of justice, support and assistance to victims to be able to become more committed to victim assistance. (7) States Parties shall foster, develop and improve cooperation between States in order to facilitate the more effective implementation of the provisions contained in this Convention in order to facilitate the more effective protection of victims’ interests in criminal proceedings, whether in the form of network directly linked to the judicial system or of links between organizations which provide support to victims.

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Article 13 Monitoring (1) States Parties shall take appropriate measures to monitor the efficiency and effectiveness of policies and measures designed for the implementation of this convention. In particular, they shall undertake periodical review and evaluation of their legislation, regulations and procedures, including through research. (2) States Parties shall ensure that the various agencies, organs or bodies dealing with victims shall submit periodical reports to an appropriate authority within their domestic jurisdiction designated for this purpose. (3) States Parties undertake to make the principles and provisions of this convention widely known, by appropriate and active means.

Article 14 Committee on Justice and Support of Victims of Crime, Abuse of Power and Terrorism (1) For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the Convention, there shall be established a Committee on Justice and Support of Victims of Crime, Abuse of Power and Terrorism, which shall carry out the functions hereinafter provided: (a) The Committee shall consist of ten experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems. (b) The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. (c) The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention. (d) The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall consti-

International standards for victims 47

(e)

(f)

(g) (h) (i)

(j)

(k)

tute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee. The Committee shall establish its own rules of procedure. The Committee shall elect its officers for a period of two years. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.

Article 15 (1) States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights: (a) within two years of the entry into force of the Convention for the State Party concerned; (b) thereafter every five years. (2) Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.

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(3) A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided. (4) The Committee may request from States Parties further information relevant to the implementation of the Convention. (5) The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities. (6) States Parties shall make their reports widely available to the public in their own countries. (7) The Committee is entitled to make on-sight visits to assess progress made in the implementation of the Convention.

Article 16 Cooperation (1) In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention: (a) The United Nations Office on Drugs and Crime, the specialized agencies and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the United Nations Office on Drugs and Crime, the specialized agencies and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the United Nations Office for Drugs and Crime, the specialized agencies and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities; (b) The Committee shall develop a regular dialogue and discuss possible areas of cooperation with all relevant actors, including national human rights institutions, governments, relevant United Nation bodies, specialized agencies and programmes, in particular with the United Nations Office on Drugs and Crime, the CounterTerrorism Committee of the Security Council and the Office of the United Nations High Commissioner for Human Rights. (c) The Committee shall transmit, as it may consider appropriate, to the United Nations Office for Drugs and Crime, specialized agencies and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications;

International standards for victims 49 (d) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the matters covered under this convention. PART IV: CONCLUDING PROVISIONS

Article 17 The present Convention shall be open for signature by all States.

Article 18 The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 19 The present Convention shall remain open for accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 20 (1) The present Convention shall enter into force on the thirtieth day following the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. (2) For each State ratifying or acceding to the Convention after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification or accession.

Article 21 (1) Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to States Parties, with a request that they indicate whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of States Parties present and voting at the conference shall be submitted to the General Assembly for approval.

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(2) An amendment adopted in accordance with paragraph 1 of the present article shall enter into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties. (3) When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.

Article 22 (1) The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession. (2) A reservation incompatible with the object and purpose of the present Convention shall not be permitted. (3) Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.

Article 23 A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

Article 24 The Secretary-General of the United Nations is designated as the depositary of the present Convention.

Article 25 The original of the present Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations. IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by their respective governments, have signed the present Convention.

3

The (human) rights of crime victims do not necessarily infringe the rights of accused and convicted persons Sam Garkawe

Introduction The main purpose of this chapter will be to debunk the argument that the introduction of formal1 rights for crime victims will necessarily interfere with the rights of accused and convicted persons. This is clearly the most common argument put forward by those who oppose providing formal rights to crime victims, although it is by no means the only one.2 It will be asserted in this chapter that crime victims’ rights and defendants’ rights can coexist, provided care is taken in initiating and in detailing the content of victims’ rights. Lawyers, academics and criminal justice professionals working in Asian countries should thus not fear the adoption of appropriate rights for crime victims. It is clear that the involvement of crime victims are important for the proper functioning of any criminal justice system, and this is true regardless of the type of criminal justice system that exists in any given nation. The manner in which crime victims are treated by the justice system is a very significant factor in ensuring not only their cooperation with the system, but ultimately the cooperation and support of the public in general. Without the support of crime victims and the public, many crimes would remain unreported (Bottomley and Pease 1986), and police and other authorities would have great difficulties in obtaining sufficient evidence and testimony to convict offenders. This chapter does not intend to dwell on the many advantages for criminal justice systems of proper treatment of crime victims that ensures that the system is fair, just, humane and functioning properly. Rather, it will concentrate on the strongly contested notion that the introduction of formal rights for crime victims will necessarily interfere with the hard-earned rights of accused and convicted persons. This argument is particularly prevalent within those nations that have not yet introduced victims’ rights, as the case within many Asian nations. It is a belief that persists even in nations that have introduced victims’ rights, despite, as will be shown, a lack of any evidence that victims’ rights have affected the rights of defendants and convicted offenders in any significant manner.

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This chapter will proceed as follows. First, there will be a brief introduction to the modern ‘victims’ movement’ that commenced in the middle of the twentieth century, mainly in Western developed nations, with common law adversarial criminal justice systems. It will specify what victims’ rights were successfully introduced in these nations, noting that these rights have generally not interfered with the rights of accused and convicted persons, and explaining the reasons for this. This is despite the fact that, at least during the early stages of the victims’ rights movement, governments and politicians utilized the rhetoric of victims’ rights as part of populist ‘law and order’ campaigns, in line with policies of tougher penalties and a more retributive criminal justice system. The chapter will then examine what lessons Asian nations might learn from this analysis of the development of victims’ rights. It will be shown that although there is a large variety of criminal justice systems within Asia, and Asian culture, traditions, politics are often very different from those in the developed world, Asian nations can still learn from the experience of Western nations in introducing victims’ rights. As stated above, in many Western nations in the early stages of the victims’ rights movement, governments and politicians utilized the rhetoric of victims’ rights in order to push for tougher penalties and a more retributive criminal justice system. There is a danger that this will occur in Asia as well. However, such advocacy confuses the push for victims’ rights, at which care, concern and support for crime victims are at the centre, with policies of tougher penalties and a more retributive criminal justice system, the concentration of which is on accused and convicted persons. It is important to point out that the ‘victims’ rights’ initiatives referred to throughout this chapter are those where the primary concern is support and assistance for crime victims. These include measures such as information and participatory rights for victims in the criminal justice system, their rights to victim compensation and their rights to access support services and counselling. ‘Victims’ rights’ thus do not include legislation or criminal justice policies that set out directly and simply to increase penalties for crimes, or prescribe certain types of more severe penalties. Such legislation or policies do not place crime victims at their heart, nor do they have anything to do with providing help or support for crime victims, except that perhaps one could argue that increasing penalties can provide a certain ‘psychological reparation for victims, which may satisfy their desire for revenge’ (Wardlaw 1979: 145). It needs to be kept in mind, however, that victims’ experiences in the criminal justice system are so often negative that they may cancel out, or even reverse, any potential temporary psychological benefit that might have been gained from having the offender being sentenced to a high penalty. It will then be argued in this chapter that it is entirely appropriate that crime victims be granted rights in the same manner as other disadvantaged groups in the community are entitled to human rights. In short, what this part of the chapter will assert is that victims’ rights are also human rights.

The (human) rights of crime victims 53 Victims’ rights are, in the writer’s opinion, part of the human rights movement and should be seen as a component of international human rights agenda and advocacy. Five arguments will be offered to back up this proposition. Once seen in this light, the key proposition of the chapter, that victims’ rights and human rights can coexist, becomes clearer. This is because it is common for all human rights either to be subject to various limitations,3 or to clash with other human rights.4 There is thus nothing unusual, from a human rights perspective, of the human rights of victims clashing with the human rights of accused and convicted persons. International and domestic legal systems generally find a way to resolve such clashes of rights, and how this might work in the case of victims’ rights and accused and convicted persons’ rights specifically will be referred to later in the chapter. The essential question of this chapter will then be tackled – how can the (human) rights of crime victims be balanced with the (human) rights of accused and convicted persons? An assumption of this analysis is the central importance of preserving the legal safeguards for accused and convicted persons that are now very much an integral part of both international and domestic criminal justice. It will first be pointed out that there are many victims’ rights which have no bearing on the rights of accused and convicted persons. The chapter will then turn to two categories of victims’ rights which do have the potential to conflict with accused rights’ – victims’ rights to protection (one example each from domestic and from international criminal justice will be provided in this part) and victims’ participation rights. It will be shown that even with respect to these rights, the rights of crime victims and of accused and convicted persons can coexist, provided care is taken in initiating and in detailing the content of victims’ rights. Two controversial crime victims’ participation rights that have been introduced in many common law criminal jurisdictions will then be analysed. These will be examined in some depth in order to illustrate how such victims’ rights can be granted within a framework of ensuring that the rights of accused and convicted persons are not infringed. The first will be the now well-accepted procedure in most common law jurisdictions that allows crime victims to present victim impact statements (VISs) to the sentencing authority once a finding or plea of guilty has been entered. Should such statements be allowed? Might they violate convicted offenders’ rights by allowing the emotional and subjective accounts of the harm inflicted on the victim to be presented to the court without adequate safeguards? It will be argued that while they may potentially violate convicted offenders’ rights, VISs can be allowed without infringing such rights, if adequate safeguards are put in place. The second right of crime victims that will be analysed is their right to make submissions at the parole hearing of ‘their’ convicted offender. Again, it will be shown that while it is possible for such submissions to violate convicted offenders’ rights, by limiting the possible effect of such submissions the possibility of violating an offender’s rights is minimized.

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By showing that even the most controversial of victims’ rights can coexist with defendants’ rights, the ground is cut from under those conservative politicians and criminal justice professionals that seek to exploit the rhetoric of crime victims for their own ends. The conclusion of this chapter will thus be that Asian nations should embrace victims’ rights as being a positive development, and provided such rights are introduced carefully, there is nothing to fear from victims’ rights from a civil liberties perspective.

The history of victims’ rights in developed common law nations The modern discipline of victimology5 emerged around the middle of the twentieth century when some criminologists became interested in the issue of whether victim behaviour could be said to be a contributing factor to the perennial question of why crime occurs (Mendelsohn 1956; Von Hentig 1948). The latter part of the twentieth century then saw the growth of ‘victim movements’ in many developed nations, particularly in common law nations such as the United States of America (Stein and Young 2004), the United Kingdom (Mawby and Gill 1987) and Australia (Cook, David and Grant 1999). These ‘victim movements’ consisted of a very broad mix of supporters of crime victims, including academics and government bureaucrats who were interested in crime victims’ issues, as well as service providers who supported and assisted crime victims, particularly women and child victims. Although divided on a number of issues, together they made powerful arguments in favour of greater recognition, support and formal rights being provided to crime victims, who were at the time correctly considered the ‘forgotten player’ in the criminal justice system. These victims’ movements were successful in gaining some formal rights for crime victims in various developed common law nations. Examples of such formal rights were the right of victims of violent crimes to obtain financial compensation from the State where recovery from the offender or third parties was not possible, and the right of crime victims in general to support services, including, where relevant, health care, and, in some jurisdictions, government-funded counselling. Measures to improve victims’ privacy and their safety and security were also provided. In a relatively short amount of time victimology also made an impact at the international level, with its most significant achievement being the agreement of the United Nations in 1985 to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (‘Declaration’). Much of the effort in this push for rights has concentrated on rights for victims who become involved in criminal justice proceedings.6 The victims’ movement has been successful in gaining rights to information on the criminal justice system and the progress of the case relevant to victims, and some victim participation rights. The most controversial example of a participation right is the right to present a VIS during sentencing, to be discussed in more detail below. Certain vulnerable

The (human) rights of crime victims 55 victims (such as people with disabilities, and women and child victims of sexual assault) have also gained rights to specialist support services and to have special measures of protection provided in order to assist them in giving testimony during criminal proceedings. It is true to say that, particularly in the early days of the victims’ movement, conservative governments, politicians and even some criminal justice professionals joined this ‘victim bandwagon’. Many saw this as an opportunity to push victims’ rights in a manner that they thought would increase penalties and diminish the rights of defendants. This played into populist ‘law and order’ rhetoric, which many politicians used in order to gain votes (Brake and Hale 1992; Corns 1990; Garkawe 1995). On the other hand, criminologists and human rights and civil liberties supporters and activists, coming from the opposite side of the political spectrum, viewed the victims’ movement with a great deal of suspicion, with some thinking it was a sinister plot to increase the number of convictions, enhance penalties and enlarge police powers, all of which would ultimately lead to greater social control (Elias 1993). However, looking back over the last thirty or forty years of the victims’ movement, it seems clear that the overwhelming majority of the new ‘rights’ for crime victims that were implemented7 did not, in the final analysis, diminish defendants’ rights,8 nor did they in and of themselves increase penalties and social control.9 In other words, both ‘sides’ of the divide got it wrong – victims’ rights did not generally undermine the civil liberties of accused persons, nor did they increase penalties as conservative politicians wanted. There may be a number of explanations for the first proposition – perhaps the most important is that many of the initiatives in favour of victims simply were not aimed at, and had little or nothing to do with, defendants or convicted offenders and their rights. Included in these were the general right to be treated with respect and sensitivity, the right to receive State-funded compensation (for victims of violent crimes only), the establishment of both government and non-government practical and psychological support services (including counselling), and the right of victims involved in the criminal justice system to information concerning the progress of ‘their’ case. There are basically only two categories of victims’ rights that do have the potential to diminish the rights of accused and convicted persons, and both concern crime victims involved in criminal justice proceedings. These are protection measures for ‘vulnerable’ victims required to provide testimony in criminal proceedings and victims’ participatory rights (both discussed in more detail below). Even for such rights, however, the experience of the last thirty to forty years shows that the legal system mediated these changes in order to ensure they did not breach its fundamental values, such as the right to a fair trial and other civil liberties concepts. How did this occur? Most common law nations either have their own domestic Constitutional Bill of Rights (such as the United States and Canada), or a legislative Bill of Rights (such as New Zealand), or rely on international conventions as a source of rights, such as the UK with respect

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to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) since the enactment of the Human Rights Act 1998 (United Kingdom). Thus, in these nations, there were guarantees of the fair trial rights of accused persons that restricted the effect of purported changes in favour of victims. Changes in favour of crime victims could be declared unconstitutional, or were ‘read down’ so that they would not infringe on civil liberties guarantees. In other states which did not have these guarantees (such as Australia), or where such guarantees could easily be overridden (for example, by later contrary legislation as in New Zealand), judges and magistrates were able to exercise their discretion to ensure that changes in favour of crime victims did not make fundamental changes to the adversarial system by breaching the rights of accused and convicted persons.10 The main lesson to be learnt from the above brief description of the history of victims’ rights in developed common law nations, is that the apparent attempts of conservative politicians to use victims’ rights to diminish the rights of accused and convicted persons by and large failed. It will be shown later, for example, that the introduction of VISs into sentencing procedures has generally had a neutral effect on the length of penalties. It is submitted that, despite continued dissatisfaction concerning the criminal justice system from some victims (which is natural owing to the nature of being a crime victim), the moves to grant victims rights in modern times have made a number of positive changes on behalf of crime victims. Victims generally now have better access to support services, counselling and financial compensation in the case of violent crime and more information about ‘their’ case in the criminal justice system, and there is by and large greater consideration for victims (particularly vulnerable ones) in their interactions with the criminal justice system.

Victims’ rights in Asia How is the above analysis relevant to Asia? Of course, it is difficult to make generalizations about Asia because it has such widely diverse criminal justice systems. Some, such as Singapore, India, Pakistan and Malaysia, are adversarial systems, inherited from their British colonial past. Other systems, such as those in Indonesia and Cambodia, are more akin to the European inquisitorial model, inherited from their Dutch and French colonial pasts respectively. Others are based on indigenous models that rely more on restorative justice principles. Many systems are also very influenced by the many religions and religious traditions throughout Asia, and some, such as China, have a strong emphasis on socialist principles and mediation. All in all, it is fair to assume that the numerous Asian criminal justice systems are an amalgamation of various influences, and are very different in structure from what is understood in the Western world. Thus, with the exception of those states that have inherited the adversarial crim-

The (human) rights of crime victims 57 inal justice model, it seems difficult to assert that any lessons can be learnt from the above description of victims’ rights in common law nations. However, there are a number of general observations that can be made with respect to crime victims in Asia. Until recently, crime victims in Asia have had few formal rights. In modern times, however, there have been enormous strides in favour of victims’ rights in a number of Asian nations (Ota 2003a). Japan (Ota 2003b; Shikita and Morosawa 2005) and Korea (Cho 2003) stand out in this regard, but other Asian nations have also made considerable progress. For example, as at the time of writing six Asian nations have some form of crimes compensation scheme (Hong Kong, Japan, Korea, the Philippines, Taiwan and Thailand), as well as the Indian state of Tamil Nadu.11 Another area that has seen large changes is the provision of support services for victims of crime. In the past, few such services existed. This was partly explained by the strong cultural tradition in Asia whereby immediate family members and/or the community were expected to be available to provide care and support when a person in their family or community suffered a traumatic event, such as a serious illness or injury, including becoming a crime victim. Another obvious explanation for the lack of support services is the lack of the culture of a welfare state throughout most nations in Asia. This situation again has changed in modern times, and there are now many victim support services throughout Asia.12

Victims’ rights are human rights As discussed in the introduction to this chapter, victims’ rights are, in the writer’s opinion, part of the human rights movement and should be seen as a component of the international human rights agenda and advocacy. If this is correct, then granting victims (human) rights is entirely appropriate, and the fact that such rights might conflict with other (human) rights (i.e. those of accused and convicted persons) is not unusual in human rights jurisprudence and policy. International and domestic legal systems generally find a way to resolve such clashes of rights, and how this might work generally and more specifically in the case of victims’ rights and accused and convicted persons’ rights will be examined below. The following are five arguments in favour of the proposition that victims’ rights are human rights.13 Crime victims are a group who are disadvantaged and deserve human rights protection We will start with the argument that goes back to first principles and states the obvious. Crime victims should be seen as a group of people in the community who have, like other groups who have had their human rights violated, traditionally been treated poorly by society and the systems designed supposedly to help them, including the legal system. They suffer

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physical, psychological and material harm due to the criminal conduct of individuals, private organizations and governments. They are often denied rights and/or services or find it difficult to access services, and suffer further hardship when assisting in the prosecution of offenders. Contact with the criminal justice system that results in further harm is a common phenomenon, referred to in the literature as ‘secondary victimization’, and occurs due to the uncaring and insensitive treatment of victims by criminal justice professionals (Faherty 1999). In this respect, one can see that victims of crime have much in common with groups in the world community who have in the past been treated in a discriminatory (or worse) manner – such as indigenous peoples, people of colour, various ethnic groups, women, the unemployed, people living in poverty and people with disabilities. While human rights advocates and scholars have given their attention to these disadvantaged groups in the past, there is no reason why crime victims should not be included as a group deserving of concern and advocacy, given the overwhelming evidence of their problems and poor treatment. One possible counter-argument to this is that crime victims do not form a readily identifiable group of people entitled to benefit from human rights. They may come from all walks of life – any ethnic group, religion, or any social and/or economic class. They are not united by what many regard as essential for any group of people to claim human rights protection – clear differences between the claimant group and the rest of the population. Such clear differences traditionally have been race, skin colour, religion, gender, ethnic background or indigenous identification. It is submitted that such an argument lacks substance. The assumption that only groups which have obvious identifying differences from the rest of the population are entitled to human rights protection is not sustainable. Many groups that have been readily accepted as being in need of human rights protection are not always readily identifiable. The best example is people with disabilities, who are found in a very wide cross-section of the population, including different social classes, religions and/or ethnic backgrounds. An argument related to this one is that it is necessary that groups claiming the need for human rights protection show that individuals within the group have some common experiences which bind them together and which are the main reason as to why they are treated differently by those in power. As crime victims include people who have suffered from a variety of crimes and experiences, they lack such common experiences and differential treatment, so the argument goes. I submit, however, that there are clear differences between crime victims and the majority of the population. It is the experience of victimization and the consequent psychological losses victims face which distinguish crime victims from the rest of the population. The groundbreaking work of Morton Bard and Dawn Sangray (1986) establishes that all criminal victimization generally involves five principal psychological losses – loss of trust, control, self-esteem, privacy and meaning. These losses often result in victims also suffering from post-traumatic stress. These primarily hidden

The (human) rights of crime victims 59 intangible psychological losses unite the experiences of crime victims and make them a discrete disadvantaged group in the community, different in this respect from the rest of the community, and it is this that entitles them to be recognized as a distinct group of human rights holders. Crime victims have a comprehensive international human rights instrument primarily devoted to their needs A second argument in favour of the proposition that victims’ rights are human rights is that crime victims, like most other disadvantaged or discriminated against groups in the world community, have their own international human rights instrument (the Declaration) that primarily concerns them. This is a strong indication that a group has been recognized by the international community as deserving of special human rights protection, due to their relative disadvantage and lack of access to power. Specific international instruments exist in relation to many groups, including refugees (Convention Relating to the Status of Refugees 1950), people who suffer from racial discrimination (Convention on the Elimination of All Forms of Racial Discrimination 1965), women (Convention on the Elimination of All Forms of Discrimination against Women 1979), children (Convention on the Rights of the Child 1989), indigenous peoples (Draft Declaration on the Rights of Indigenous Peoples 1994), and people with disabilities (Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1993). Just like these other disadvantaged groups, the Declaration is an international instrument which specifically represents crime victims, devoted primarily to their protection and support and to advancing their rights and interests. It is clear that the Declaration is in fact a human rights instrument. The first clause of its preamble is: ‘Affirms the necessity of adopting national and international measures in order to secure the universal and effective recognition of and respect for the rights of victims of crime and of abuse of power’ (emphasis added). Like other specific human rights instruments that deal with a particular group of rights bearers, it must start with a definition of which individuals make up the protected group. The Declaration defines two broad categories of victims towards which states will have obligations – the one this chapter is concerned with is the traditional category of ‘victims of crime’, defined in Article 1 as persons who suffer harm through actions or omissions that are in violation of criminal laws as defined by national laws. The Declaration, like other similar human rights instruments, then sets out the obligations of states towards the relevant disadvantaged group in a number of different areas. Here, with respect to crime victims, these obligations include fair treatment and access to justice, the facilitation of restitution from the offender, compensation and social and other forms of assistance. A number of counter-arguments to the assertion that the Declaration is a human rights instrument might be made. One is that the rights contained

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within the Declaration are too vague and are not binding anyway as the Declaration is, in international legal terminology, ‘soft law’, as opposed to ‘hard law’, which has the status of binding international legal obligations, i.e. a Convention or treaty. Such arguments can be given short shrift. The rights found in the Declaration are no more vague than the rights found in most human rights instruments. Many human rights instruments are deliberately written in vague or less than precise language in order to achieve maximum support amongst states. Furthermore, it is simply impossible most of the time to provide a reasonable level of precision as there may be very different circumstances to consider in the various nations around the world. The fact that the Declaration has not yet been turned into a binding treaty does not detract from the argument that it is still a human rights instrument. Indigenous peoples and people with disabilities do not have their own Convention yet, and these groups clearly are valid human rights holders. Steps are being taken towards binding Conventions for each of these groups, and the same action is being attempted for crime victims. In December 2005, a Committee of Experts met in Holland and produced the first draft of a proposed Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism. This argument also falsely assumes that there is a large amount of difference between the ‘soft law’ of Declarations, guidelines and principles, and the so-called ‘hard law’ of binding legal obligations, such as Conventions and treaties. ‘Soft law’ can at times be as effective as ‘hard law’, and often leads to binding Conventions being formed – most human rights Conventions originate with Declarations.14 On the other hand, due to the weakness of the international legal system, so called ‘hard law’ is often treated as optional (i.e. like ‘soft law’) by states. The other possible counter-argument to the Declaration being a human rights instrument is that its title is not couched in the language of rights, but rather refers to ‘basic principles of justice’. It is true that many of the key human rights treaties, such as the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966) and the Convention on the Rights of the Child (1989), are couched in the language of rights. It is submitted, however, that such language in a title is not decisive and is certainly not a prerequisite to being considered a human rights instrument. Many of the names of human rights instruments do not mention the word ‘rights’, such as three of the most important human rights Conventions – the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Women (1979) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) – yet no one doubts they are significant human rights Conventions. Examination of the content of human rights Conventions shows that they are as much about the obligations of states as they are about the rights of individuals or groups. There is clearly a symbi-

The (human) rights of crime victims 61 otic relationship between the obligations of states and the rights of people who rely on the State to fulfil these obligations. Therefore, it does not matter how a particular international instrument is labelled in terms of whether it is a rights giving instrument or not. The Declaration does place certain international obligations on states towards their treatment of victims (as defined in the Declaration), and it is a direct corollary of these obligations that individual victims have the ‘right’ to expect the State to uphold these obligations. There is a range of other human rights instruments that already provide expressly for rights for various categories of victims The Declaration is a specific instrument that concerns State obligations towards crime victims in general. Further evidence that victims’ rights are human rights is that the international community has also, in recent times, agreed to a number of international instruments that provide rights in some of their provisions to particular types of crime victims. A good example is Article 25 of the Convention against Transnational Organized Crime (2001) that mandates assistance to and protection of victims of organized crime.15 Furthermore, the Convention’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2001) has detailed provisions on assistance to and protection of victims of trafficking in persons (Article 6), the status of victims of trafficking in persons in receiving states (Article 7), and on the repatriation of victims of trafficking in persons (Article 8). Furthermore, at the European regional level there are some treaties that provide for State obligations to certain categories of crime victims. These include the European Convention on Compensation of Victims of Violent Crimes (1983) and the Council of Europe’s Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure (1985). Even more important is the Framework Decision on the Standing of Victims in Criminal Proceedings (2001), which is a legally binding document for the current 25 European Union Member States, and includes in its provisions most of the principles found in the Declaration (Van Dijk 2005). It is of significance that the instruments referred to in this paragraph are in fact binding treaties or Conventions. This clearly debunks the argument that victims’ rights are too obscure, vague and/or uncertain to be considered human rights. Crime victims have utilized general provisions of existing human rights instruments (both international and domestic) that do not expressly use the word ‘victim’ Another indication that victims’ rights are human rights is that there are many examples of crime victims and their lawyers using the general provi-

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sions of some prominent human rights treaties to seek redress and vindicate their rights. These provisions do not mention the word ‘victim’ directly, and consist of a number of commonly accepted human rights protections, such as the right to life, the right not to be subject to torture or inhuman or degrading treatment, the right to security of the person, the right to privacy, and the right to equality before the law. Perhaps the best example of this is arguments made on behalf of crime victims under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) or ECHR, probably the most useful human rights treaty in the world in terms of providing practical and enforceable remedies for human rights violations. Both Fiona Leverick (2004) and Claire de Than (2003) analyse cases where victims and their lawyers have attempted to utilize a number of provisions of the ECHR, including Article 2 (the right to life), Article 3 (the right to freedom from torture and inhuman or degrading treatment) and Article 8 (the right to respect for private and family life). De Than is clearly of the view that crime victims have ‘identifiable human rights stemming from the positive obligations under the [ECHR]’ (de Than 2003: 165). Leverick asserts that the ECHR has the potential to assist victims in three key areas – in creating a right to State protection; in creating rights to services, such as trial rights, the right to information, the right to an investigation and the right to obtain reasons for decisions not to prosecute; and in creating procedural rights, such as the right to challenge decisions not to prosecute and the right to involvement in sentencing. Her conclusion is that: there is no doubt that the ECHR does impose positive obligations on the State to take reasonable steps to prevent violation of Article 2, 3 and 8 rights. These positive obligations ground certain minimum rights for victims of crime in areas such as protection from violence and rights to information. These have also been developed in the protection of victims in their role as witnesses, with the European Court holding, for example, that vulnerable victims are permitted to give evidence anonymously or from behind a screen. (Leverick 2004: 194)16 Such use of general provisions of human rights instruments also extends to the domestic level in nations that have their own Bills of Rights. Again, there are a number of ‘non-victim-specific’ provisions in domestic Bills of Rights that have been used by victims and their lawyers. One interesting example comes from the United States of America, where lawyers acting for a victim of domestic violence in the case of Thurman v. Torrington (1984) decided to base their arguments on the 14th Amendment of the American Constitution. This provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws’, and is known as the equality clause. The lawyer successfully argued that a police policy of

The (human) rights of crime victims 63 not arresting men who beat their wives was based on stereotypic views that husbands were allowed to physically abuse their wives, and was thus a violation of the 14th Amendment. This case did go some of the way in convincing police forces around the USA that they at least needed to better articulate their policies in responding to domestic violence situations. These types of cases where victims and their lawyers look to using general human rights provisions to their advantage, however, are admittedly rare. They will often involve the use of some degree of creativity by lawyers acting for victims; and perhaps, for this reason, this is still a relatively underdeveloped area of the law. Victims’ rights have become a reality in some domestic legal systems The last three arguments have stressed that victims’ rights are human rights because of the existence of international human rights instruments that provide for victims’ rights, either directly or indirectly. This final argument focuses more on the domestic implementation of victims’ rights, which might be seen to be of more practical importance to those working with supporting victims on a day-to-day basis. In the USA, for example, state governments, which have the primary responsibility for criminal justice policies, have taken many steps to ensure that victims’ rights, based (knowingly or unknowingly) on international standards such as those articulated in instruments such as the Declaration, have become a reality. About 33 state governments have passed Constitutional amendments to advance the protection of victims’ rights (Karmen 2004), and all state governments have enacted legislation in one form or another that covers the treatment of victims during the criminal justice process. Although these Constitutional amendments and pieces of legislation differ from state to state, they generally confer victims with specific rights, such as giving them the right to be notified of the outcome of criminal proceedings, prior notification of the defendant’s release from jail and information on the criminal justice system. Many also specifically provide for things such as secure waiting areas at court for the victim/witness, speedy dispositions of cases and for victims to receive protection from intimidation. The campaign to amend the Bill of Rights in the USA, by adding a clause that sets out specific rights of crime victims, should also be mentioned. Initial support for this concept was first officially advocated in 1982 by the President’s Task Force on Victims of Crime (1982). This report recommended that the Sixth Amendment to the US Constitution17 should be augmented by the addition of a clause that would give crime victims ‘the right to be present and to be heard at all critical stages of judicial proceedings’ (p. 114). This seemingly simple amendment did not gain much support as it carried with it many problems (Lamborn 1987), so victims’ groups began the process of drafting more detailed proposals that would be more acceptable. Such drafts went through many changes to meet the concerns of

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its critics as any Constitutional amendment needs significant cross-party, if not unanimous, support.18 The general concept of a victims amendment was in fact strongly supported by both presidential candidates in the 2000 election. In 2004, however, prior to the next presidential election, it failed to gain unanimous support amongst Congress, and it was decided once more to postpone its introduction, in favour of adopting a ‘wait and see’ approach to the effectiveness of new federal victims’ rights legislation.19 Had such a Constitutional amendment succeeded, this would have clearly added to the argument that victims’ rights are human rights. The above five arguments show that it is clear that victims’ rights are also human rights. It is true that there is potential for these victims’ rights to clash with the rights of accused and convicted persons, but, as stated in the introduction to this chapter, there is nothing unusual in human rights jurisprudence for different human rights to clash with others. International and domestic legal systems generally find a way to resolve such clashes of rights, and how this might work in the case of victims’ rights and accused and convicted persons’ rights will be the subject of the remainder of this chapter.

Resolution of clashes between crime victims’ rights and the rights of accused and convicted persons: protection rights It should be first pointed out that not all victims’ rights clash with accused and convicted persons’ rights. In fact, the majority of victims’ rights do not clash with the rights of accused persons; and so at least for such victims’ rights, there is no problem in terms of offending the rights of the accused. For example, Faherty (1999) classifies crime victims’ rights into three groups. The first category is the general right to be treated with respect and sensitivity, as well as ‘minor conveniences’ rights ‘such as comfortable courthouse waiting rooms, on-site day care, transportation services, and fewer time delays, along with needs such as protection from intimidation by the offender’ (pp. 23–4). She admits that such requests might not qualify as ‘rights’, but are clearly desirable and do not impact on other people’s rights. Her second category consists of informational rights and the right to be present during proceedings, rights that she also regards as of little effect on the rights of accused persons, although they clearly impose a greater burden on the State. Her third category of victims’ rights is ‘participatory’ rights (see below), which she acknowledges as much more controversial, because they may adversely affect the rights of accused and convicted persons. Clearly, under Faherty’s classifications, two out of three of her categories of victims’ rights do not clash with the rights of accused or convicted persons. Andrew Karmen (2004) classifies victims’ rights more in terms of at whose expense they may be gained. He refers to two primary categories – those gained at the expense of accused persons, which clearly may clash with the rights of the accused, and those gained only at the expense of the State.20 The latter category of victims’ rights includes rights to obtain infor-

The (human) rights of crime victims 65 mation concerning criminal justice decisions and processes; to be treated with respect, sympathy and understanding by criminal justice officials; to call upon psychological and practical support and services in the period following the offence; and to receive compensation from the State in cases of criminal violence. Again, these rights constitute the majority of victims’ rights and do not generally clash with the rights of accused persons, and are in the main supported by the community and criminal justice professionals. What then of the minority of victims’ rights that may potentially clash with the rights of accused and convicted persons? It is generally considered that there are two categories of victims’ rights that may affect the rights of accused and convicted persons. One such set of rights is often called ‘participation’ rights – namely, the right of crime victims to have their views made known at various stages of the justice system prior to decisions being made, and the right to possibly be legally represented during the trial, thus participating directly in the criminal justice system. Examples of such rights would include allowing victims to make their views known during the bail hearing of ‘their’ alleged perpetrator, participate in plea/charge bargaining with defence and prosecution counsel, make a VIS during the sentencing hearing of the offender, and provide submissions to a parole board hearing of ‘their’ offender. Not surprisingly, these types of changes and proposals have sparked much debate from civil libertarians, academics, defence lawyers and others concerned with the potential for these rights to interfere with the defendant’s rights (Henderson 1985). Two key examples of such rights, the right to submit a VIS at sentencing, and the right to provide submissions to a parole board hearing of the offender, will be analysed in the next part of this chapter. The other set of pro-victim changes, which have not as yet generated the same amount of literature and interest, are protection measures for victims and witnesses. They are particularly relevant for those crime victims considered to be especially vulnerable, who face particular difficulties when providing testimony during criminal proceedings, such as children, people with disabilities and sexual assault victims. Typical examples of such protection measures are facial and voice distortion, the use of pseudonyms and closed sessions in order to prevent public disclosure of the identity of the victim, and the use of a remote witness room (utilizing technology such as one-way closed circuit television), video-link testimony and screens in order to reduce the trauma faced by victims when giving testimony by not having to confront the accused. Two examples, one drawn from domestic law and the other from international criminal justice, are worth mentioning as examples of how courts attempt to ‘balance’ these protection measures with fair trial guarantees for the accused person. The domestic example comes from the United States of America, where the US Constitution sets out in the Sixth Amendment that accused persons have the right ‘to be confronted with the witness against him . . . ’. In the case of Coy v. Iowa (1988), a child sexual assault case, a one-way screen was placed between an accused and

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the complaining witness while the latter was testifying. This screen allowed the accused to see the witness only dimly, and completely blocked the witness’s view of the accused – a measure clearly designed to reduce the trauma for victims of child sexual assault. The US Supreme Court decided that the use of the screen was unconstitutional as it infringed the accused’s right to confront the witness testifying against him. However, in the case of Maryland v. Craig (1990), the US Supreme Court, in a similar case that concerned allegations of child sexual assault, this time allowed a child witness to give testimony via one-way closed circuit television. By a slender 5–4 majority, the court held that an actual face-to-face encounter at trial between the accused and prosecution witnesses was not always necessary, but any deviation from the norm of face-to-face testimony could only be allowed to further an important public policy; and also, the reliability of the testimony had to be assured. These conditions were met in Maryland v. Craig (1990), and the Court distinguished this case from Coy v. Iowa (1988) on the basis that that the one-way closed circuit television still allowed the accused to observe the demeanour of the witness as he or she testified, whereas a screen did not. The other example of the balancing act between protection measures and fair trial rights is drawn from international criminal justice, in particular the International Criminal Tribunal for the former Yugoslavia (ICTY). A particularly contentious 2–1 decision of Trial Chamber II in Prosecutor v. Tadic (1995) ruled that, in respect of four witnesses (alleged sexual assault victims), an order for total anonymity was justified on the basis that the witnesses feared reprisals.21 Such an order prevents the identity and any identifying particulars of a victim/witness from being known to not only the public and press, but, most controversially, also from the accused and their lawyers. This would prima facie appear to violate fair trial rights, because if the defence cannot ascertain the identity of the witness, it cannot do any background checks on that person and generally prepare to cross-examine them (Leigh 1996; Robertson 1999). The majority of the Trial Chamber, in making this order, provided guidelines for the taking of evidence in such cases. These included the requirement that judges must be able to observe the demeanour of the witness and must be aware of the identity of the witness in order to test their reliability. Furthermore, the defence must be allowed ample opportunity to question the witness on issues unrelated to their identity or whereabouts, and the identity of the witness must be released once there are no longer safety concerns (Prosecutor v. Tadic 1995; majority judgment of Judges McDonald and Vohrah, [70–1]). Emphasizing that the right of protection of witnesses had to be balanced against the right of accused persons to a fair trial, the majority also specified that there were five factors that must be shown by the prosecution to exist, before an order of total anonymity can be granted.22 The above two examples show how protective measures for crime victims can be balanced in a just manner against the fair trial rights of accused

The (human) rights of crime victims 67 persons. In the former case, one-way closed circuit television seems to the writer a reasonable way to balance the need to reduce the trauma for the victim/witness, but still allow the accused and his or her lawyers to observe and cross-examine the witness. The ICTY’s order for ‘total anonymity’ is an even better example of how a criminal court might balance the rights of victims/witnesses and the rights of accused persons in the very difficult situation the ICTY found itself in, with respect to the civil war in the former Yugoslavia. Given the ongoing nature of the conflict, victims and their families were still vulnerable to intimidation by Serb forces, and many felt that in order to encourage witnesses to provide evidence, strong measures of protection were needed. The fact that the order was granted indicated that victims’ rights to protection were being respected, but the strict conditions attached to the order ensured that the Chamber had not neglected the rights of the accused. While some writers have still argued that the ICTY Chamber did not get the balance right (Leigh 1996; Robertson 1999), others disagree (Chinkin 1997; Garkawe 2003). These specific examples lead us to the general question of how clashes of victims’ rights and accused and convicted persons’ rights are resolved in particular legal systems. Nations with Bills of Rights may have two or more competing constitutional rights in a given situation, or, as in the above US example, there might be a clash between a constitutional provision and legislation. In such cases, it is left to the courts to interpret the constitution, thereby determining which rights might prevail in the circumstances of the case, or in the second instance, whether the scope of the constitutional right means that the legislation is invalid.23 Where clashing rights are not established in the constitution, but found in legislation, or the common law, or in international instruments that may, directly or indirectly, be part of the particular legal system, it will generally be up to parliament to decide which right might prevail. Often, parliament will ‘hand ball’ the decision to the courts, because it is impossible to legislate for each individual circumstance. It may also be the case that parliament finds it easier, for political or other reasons, not to legislate, and to let the courts make a ruling. What implications does the above discussion have for the problem of victims’ rights clashing with accused persons’ rights? First, a significant aspect of all Bills of Rights and major international human rights treaties throughout the world is that, for historical reasons, they include fair trial guarantees for accused and convicted persons. In the overwhelming majority of cases, victims’ rights are not included as constitutional guarantees, and this means that for any pro-victim legislation or other measures, the courts have the task of ensuring these initiatives do not infringe the criminal procedural guarantees of the accused that are found in the constitution (see the example discussed above from the United States of America). Legislation introduced on behalf of crime victims thus run the risk of being declared void for violating the constitutional guarantees for accused persons.24 What is more likely to occur in many situations is that the

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courts will interpret or read down the pro-victim measure in a way that does not infringe human rights, and the measure will be acted upon in perhaps a much more limited or circumscribed manner. The overall effect of this is that in such situations, victims’ rights are subject to the rights of accused persons, and there seems to be no problem with victims and accused persons’ rights potentially clashing. The presence of the Bill of Rights and the consequent procedural guarantees for accused persons thus means that there is insurance, so to speak, against victims’ rights measures jeopardizing a fair trial and intruding into the procedural protections of the accused. Similarly, in the small minority of jurisdictions where victims’ rights have been included as constitutional rights,25 the courts will also quite properly determine the balance to be struck between the competing rights in the particular circumstances. It should be noted that even the international instruments in favour of victims’ rights also emphasize the need for this balance. For example, probably the most important article in the Declaration that concerns victims’ participatory rights is Article 6(b), which states that the ‘views and concerns of victims’ should be ‘presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused’ (emphasis added). The ICTY’s order for ‘total anonymity’ referred to above is an excellent example of how an international court might balance the rights of victims and the rights of accused persons. The one situation that may be problematic is where there are no constitutional or other significant guarantees for accused persons built into the legal system of the relevant jurisdiction. This is the situation in Australia and many Asian nations that lack a human rights culture. The introduction of Bills of Rights in these jurisdictions would be recommended, but the absence of a Bill of Rights does not mean there is no protection against measures to increase victims’ rights that may jeopardize the rights of accused and convicted persons. In many such jurisdictions, there will at least be some legislation that articulates the rights of accused persons, and courts will decide how to balance these rights with any new victims’ rights measures. Overall, courts in most nations will be aware of their role in society as an upholder of justice, and will be very loath to allow their court to conduct trials that are seen as unfair. Courts will thus adopt measures or interpretations of legislation and rules of evidence and procedure that ensure a fair balance between pro-victim initiatives and established rights for accused and convicted persons.26 This reinforces the writer’s belief that, provided care is taken in introducing victims’ rights, they are able to coexist with the rights of accused persons.

The (human) rights of crime victims 69

Resolution of clashes between crime victims’ rights and the rights of accused and convicted persons: participation rights In this part of the chapter, two examples of victims’ participation rights will be analysed in order to again illustrate how victims’ rights and the rights of accused and convicted persons might be balanced. Victim impact statements The use of victim impact statements (VISs) during sentencing has been one of the most controversial and frequently discussed issues in victimology (Erez 1991). A VIS is generally a written report submitted to the sentencing authority following a guilty verdict or plea, and prior to the sentencing decision. They may vary in content and form, but normally include statements concerning the physical, financial, social and psychological effects of the crime on the victim. They are normally prepared by the victims themselves, but often with the help of relatives, friends or victim support staff. In some situations where the victim is no longer alive or cannot prepare the report themselves, the report may be prepared by a close family member or some other person who generally has the permission of the court to submit the VIS on behalf of the victim. In some jurisdictions, they may also form part of the regular pre-sentencing report, and in other jurisdictions they may be read out by the victim, or the victim may be allowed to give sworn testimony as to the effect of the crime upon them. The introduction of the VIS was particularly contentious as many defence lawyers and civil libertarians thought that their effect would be to increase penalties, on the assumption that crime victims would necessarily be vindictive and thus exaggerate the effects of the crime upon them. Civil libertarians in particular argued that VIS engendered a subjective approach to assessing appropriate penalties, thus undermining the objectivity of the court on such an important issue as a person’s liberty. They argue that similar cases would be disposed of differently depending on the education, awareness, resilience and vindictiveness or forgiveness of individual victims. The VIS would thus increase the unpredictability of the outcome, detracting from the proper functioning and purpose of the criminal justice system, which is to decide on the guilt or innocence of the accused and, if he or she is guilty, an appropriate penalty. Such decisions must be made with objective fairness so that there is a degree of consistency in the prosecution and punishment of offenders. For a small sample of critical perspectives on the use of the VIS, see Hinton (1996); Hall (1992); McCarthy (1994) and Richards (1992). The counter viewpoint presented by victims’ advocates is that the present system unfairly and unjustly excludes the victim who is, after all, the person actually harmed by the crime. This exclusion leaves victims feeling powerless and alienated from the system. As a result, many decline to report

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crimes, and when they do become involved in criminal justice proceedings, they may suffer the abovementioned phenomenon of ‘secondary victimization’. To overcome these problems, many victims’ advocates argue, victims need to have a greater role in the system. Providing them with rights is an important means to achieve this, and in particular, allowing them to submit a VIS supplies a sense of psychological satisfaction for the victim, in that they are able to express how the crime affected them. In answer to the criticism that the VISs will increase the unpredictability of the outcome, supporters argue that VIS are justified as they allow the court to know the full extent of the physical, financial, psychological and social effects of the crime on the victim, and this will help the court to determine the sentence of the offender. This information may not be available to the court in the absence of a VIS, particularly where there has been a guilty plea. Legislating for VISs will thus lead to greater fairness and consistency. These represent only a cross-section of the main arguments for and against the VIS. Recent empirical evidence concerning the effect of the VIS on sentencing provides proof that VISs have not generally increased penalties, showing that there is little to fear from victims’ input into sentencing decisions. In a recent article, Erez (1999) points to research showing that, in the vast majority of cases, the use of VISs had no effect on the final result. This seems perfectly understandable to the writer, because in most cases the court will be aware of the effects of the crime on the victim, and thus the VIS will not provide any additional information to assist the court. In cases where the VIS indicates effects on the victim that are not known to the court or not anticipated by the type of crime, there may be other valid reasons why the VIS still does not make a difference to the sentence.27 In the small minority of cases where the VIS seemed to have an effect, ‘the data revealed that the sentence was as likely to be more lenient as it was to be more severe than initially thought’ (Erez 1999: 548). This appears logical to the writer, as it seems that there is an equal chance that crime victims may be motivated by a desire for revenge and/or retribution as they are by a desire to forgive and forget, regardless of the seriousness of the crime, perhaps in order to effect a reconciliation or to allow the offender a chance to seek employment, thus giving victims a better chance of receiving restitution. The fact that the empirical evidence suggests that the introduction of VISs has not led to an overall increase in penalties does not mean, however, that we should not continue taking care that individual offenders do not receive a higher penalty as a result of a VIS that exaggerates the harm done by the victim due to their desire for revenge or retribution. There is still a strong need for adequate safeguards to be implemented to ensure that each individual convicted offender’s civil liberties are fairly protected. The first safeguard would be to be clear about the aim of the VIS, which is not to increase penalties or to allow victims to indicate their desire for revenge, but to provide the court with factually correct information about the full effects of the crime upon the victim. This would mean that VISs should not

The (human) rights of crime victims 71 generally include victims’ opinions as to what the convicted offender’s sentence should be.28 Furthermore, in order to ensure that the VIS is not an instrument for revenge or retaliation, prosecutors and victim support personnel should check the VIS before submission to make certain it does not contain inflammatory material or non-verifiable material. The latter should also be assured by the fact that the VIS, if written, should be attested to by the victim; and in the case of an oral VIS, the victim needs to be aware that the VIS is sworn testimony, and is thus at all times subject to the crossexamination of the defence. The procedural rules concerning VIS should also make clear that it is the victim’s choice as to whether they wish to present the VIS and that no inferences will be drawn if a victim decides not to submit a VIS. It is also essential that victims are provided with much information and support from prosecutors and victim support personnel in all aspects of the VIS. This includes assistance in the decision whether to make a VIS in the first place, help in its preparation, the decision to submit it to the court and in what manner (if there is a choice), and preparation for the possibility of cross-examination on its contents. In order to guard against the possibility that VISs might create false expectations for victims (thus increasing their trauma), they also need much information on the many factors sentencing authorities need to take into account when deciding upon sentences. It is submitted that the above measures would ensure that the submission of the VIS is a positive experience for crime victims and is beneficial for the criminal justice system, while at the same time protecting the rights of convicted offenders, thus ensuring that the balance between the rights of crime victims and those of convicted offenders is met. Victims’ submissions to parole boards Parole envisages the release of prisoners from custody under certain conditions after they have completed a minimum period of imprisonment as determined by the court. The main justifications for parole are to obtain a smoother transition to normal life for offenders, and to enable better control of prisoners by providing them with an incentive to behave and improve while in custody. The arguments against parole are that it prolongs an offender’s punishment, and thus increases social control, and from a more conservative perspective, it constitutes unwarranted leniency. Parole may not be common in many Asian nations, and it has even been abolished in some American jurisdictions. Normally, decisions concerning parole, including whether to release the prisoner, the parole conditions and whether to revoke a parole order, are made by duly established parole boards which have the opportunity to hear submissions from the prisoner and the authorities. A recent innovation, very much following the trend towards greater participation rights for crime victims, is to allow victims the right to make their own submissions to the parole board in cases that concern ‘their’ offender. Such submissions are normally presented in writing, but some

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jurisdictions allow victims to present their submission orally with the consent of the board. Similar arguments in relation to the issue of the VIS apply to the issue of whether such parole submissions are beneficial or otherwise. Once again, defence lawyers and civil libertarians argue that such submissions introduce a degree of subjectivity into parole decisions, and the main purpose of such submissions will be to either deny parole or to demand more stringent conditions of parole. This undermines the civil liberties of convicted offenders. By contrast, victims’ rights supporters are in favour of victim submissions for reasons of greater victim involvement in the criminal justice system, thus counteracting feelings of powerlessness and alienation. They also argue that such submissions may present facts concerning the prisoner to the parole board that it may not know about in the absence of the submission, and this will be important to the board’s determination. While it is beyond the scope of this chapter to provide a detailed analysis of this issue, some conclusions of the writer in a previous work (Garkawe 2002) will be mentioned. He believes that victims’ submissions to parole boards, just like the VIS, should be allowed because they will help victims psychologically. Whether they should affect the decision of the parole board, however, is not clear cut and depends upon the legal relevancy of the submission. Parole boards generally have much material concerning the prisoner before them,29 and, in the overwhelming majority of cases, there will be very little that a victim’s evidence could add. It is possible, however, that in a small minority of cases, victims may have verifiable and objective factual material concerning threats or other negative behaviour against them during the incarceration of the prisoner that were not already available to the parole board because, for a genuine reason (such as fear) the victim did not report such behaviour to the authorities at that time. Additionally, the views and perspectives of victims as to how they would feel if the prisoner were granted parole and what special conditions they might wish to be attached to the parole order should also be accepted as part of the submission. In these limited circumstances, it is possible that the victim’s submission will be legally relevant to the parole board. The overall conclusion of the writer is that this evidence will almost never affect the decision to release the prisoner on parole, but may well affect the conditions of parole.30 Situations where the victim’s views influence parole conditions, resulting in more stringent conditions of parole being laid down, would occur only in a small minority of cases, and is justified in view of the balance that needs to be struck between crime victims’ and prisoners’ rights. Once again, it will be important to ensure that adequate safeguards are present to ensure that the appropriate balance between the rights of crime victims and those of convicted offenders is met. These safeguards are similar in principle to those discussed with respect to the VIS. Thus, the aim of the parole submission should not be to deny parole or attach more stringent conditions to the prisoner’s release, but rather to provide the board with

The (human) rights of crime victims 73 factually correct and verifiable information about the prisoner and his or her actions during incarceration. The submission should not generally include victims’ opinions as to whether to release the prisoner, although opinions on possible conditions of parole may be useful for the board to consider. The submission also needs to be attested to by the victim, and in the case of an oral submission, the victim needs to be aware that the submission will constitute sworn testimony, thus subject to cross-examination by the prisoner. The procedural rules concerning the submission should also make clear that it is the victim’s choice as to whether they wish to present a submission, and that no inferences will be drawn if a victim decides not to. Finally, victims will need much information and support from victim support personnel and those working in correction departments on all aspects of their submission. Once again, provided such safeguards are instituted, it is submitted that the balance between the rights of crime victims and those of convicted offenders will be met.

Conclusion After examining the background to the crime victims’ movement in common law developed nations, this chapter argued that victims’ rights are in fact human rights. It provided five arguments in favour of this proposition. Accepting that victims’ rights are human rights implies that there is nothing unusual about balancing their rights with other human rights holders, in this case, those of accused and convicted persons. The chapter then examined two types of victims’ rights that may affect the rights of accused and convicted persons – protection rights and participation rights. Two examples of each were given, showing how policy-makers and courts can, by the use of appropriate safeguards, fairly balance the rights of crime victims with those of accused and convicted persons. Showing that victims’ rights are human rights and that they can coexist with defendants’ rights prevents conservative politicians and criminal justice professionals from exploiting crime victims for their own ends. This has important lessons for those governments in Asia that might be thinking of embarking on the path of providing crime victims with rights, or who are thinking of increasing their rights from those that already have been established. Provided that victims’ rights are introduced and/or expanded with care and precision, they should not erode civil liberties, and such steps should be regarded as a very positive development for Asian criminal justice systems.

Notes 1

‘Formal’ victims’ rights are intended to include rights for crime victims that are found in constitutions, legislation or administrative directions to government agencies and departments. Such rights need not necessarily be enforceable in a court of law, although there will generally be some consequences if they are not adhered to. ‘Informal’ victims’ rights are those that are not written down

74

2

3

4 5

6

7

8 9

Sam Garkawe anywhere, such as the rights crime victims might have to negotiate outcomes during restorative justice mechanisms. Other possible arguments against victims’ rights are that they are too costly to implement; it is better to ensure victims’ needs are met rather than provide for victims’ rights; victims’ rights are too vague and indeterminate to be given substantive form; they are too legalistic and restrictive; they clash with other people’s rights, such as the accused, prosecutors, police and judges, and this means they are also divisive and problematic. Moreover, victims’ rights are dangerous in that they may promise more than they can deliver, thus creating false expectations in victims (Fattah 1999). While the writer disagrees with each of these arguments, a discussion of them is beyond the scope of this paper. Most international human rights are subject to the principle of derogation in times of an emergency that ‘threatens the life of a nation’ (see International Covenant on Civil and Political Rights: Article 4); or they are subject to limitations set out in the very article that provides for the right. For example, the right to freedom of expression as set out in Article 19(2) of the International Covenant on Civil and Political Rights is subject to the ‘respect of the rights or reputations of others’ or ‘[f]or the protection of national security or of public order’ (Article 19(3)). Arguments are made that even those rights which appear to be absolute, such as freedom from torture, are subject to some exceptions. See Dershowitz (2002). Perhaps the best examples here are the clash between the right to freedom of speech and the right of people from minority groups not to be racially vilified, and the clash between the rights of the child and the rights of parents. Victimology has as its main focus and concern the social, psychological, financial and physical well-being of victims, including victims of criminal acts and abuses of power. There has been considerable discussion amongst victimologists as to what types of victims should be included in the discipline. Some have argued that victimology should be confined to crime victims; others to victims of crime and abuses of power; others to victims of events caused by human beings only (thus excluding victims of natural disasters and other accidents); whereas some assert that all types of victims should be included. For an analysis of this issue and an article that takes the latter viewpoint, see Garkawe (2004). As the focus of this book is on crime victims, the comments in this chapter will only refer specifically to crime victims. It might be argued here that there has been disproportionate attention paid to these victims, since many victims, if not a majority, never become involved in court proceedings for a variety of reasons. These include many who decide not report the crime to the authorities, and those who do, but no offender is found or identified. Nevertheless, due to the publicity and media attention given to the treatment and experiences of crime victims during criminal justice proceedings, and because this raises basic questions of justice and fairness, such issues are prominent and a major concern of modern victimology. Keeping in mind, as discussed in the introduction, that ‘victims’ rights’ for the purposes of this chapter do not include legislation or criminal justice policies that set out directly and simply to increase penalties for crimes, or prescribe certain types of more severe penalties. Perhaps the one exception in the writer’s country, Australia, is the abolition of the right of defendants to make an unsworn statement instead of either giving formal evidence or choosing not to enter the witness box at all. While it is true that prison numbers have dramatically risen in many Western countries in recent years, it is difficult to attribute this to victims’ rights measures (refer also to note 7 above).

The (human) rights of crime victims 75 10 For example, despite New South Wales (hereafter referred to as NSW) legislation that requires a court to receive a VIS from the family of a deceased victim, Hunt CJ of the NSW Supreme Court in R v. Privitera (1997) 94 A Crim R 76 rejected the relevance of a family VIS to sentencing on the grounds that, in his opinion, it was irrelevant to his sentencing discretion (Booth 2000). A further example of the judiciary exercising their power was the UK House of Lords decision in R v. A [2001] 3 All ER 1, where despite domestic legislation that seemed to provide an absolute bar on the questioning of an alleged sexual assault victim regarding their sexual history and reputation, the Court held that trial judges must interpret this limitation as being subject to the right of accused person’s to a fair trial under the ECHR, thus allowing limited questioning in certain circumstances (Bronitt 2005). 11 See Chapter 5 by Ota in this volume on the development of victim support in Asia. 12 See note 11 above. 13 Note that these arguments are explored in greater depth and some extra arguments are provided in another work by the writer (Garkawe 2005). 14 For example, the Convention on the Rights of the Child (1989) originated with the Declaration of the Rights of the Child (1959). 15 It states: (1) Each State Party shall take appropriate measures within its means to provide assistance and protection to victims of offences covered by this Convention, in particular in cases of threat of retaliation or intimidation. (2) Each State Party shall establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention. (3) Each State Party shall, subject to its domestic law, enable views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders in a manner not prejudicial to the rights of the defence. 16 Later in her conclusion Leverick does, however, dampen the expectations of victim advocates that these provisions will make a big difference, by stating that these are early days in the court’s jurisprudence on these issues. 17 This clause contains many of the rights of accused persons in the criminal justice system, such as the right to a speedy and public trial, the right to a jury, the right to be informed of the nature of the charges against them and the right to confront witnesses against them. 18 For a brief history of the various proposals, see Faherty (1999: 26–31). 19 In the final analysis, consensus on the amendment was prevented by a small group of liberal legislators who were concerned that the amendment might adversely affect the rights of women accused of unlawfully killing their male partners in situations when they had been subject to domestic violence. Briefing session by John Stein on the Constitutional amendment during the 30th Annual North American Victim Assistance Conference, Sacramento, California, in August 2004 (notes on file with the writer). For a short description of the new federal victims’ rights legislation, see Stein and Young (2004). 20 There are also some rights (such as participation rights) which Karmen categorizes as being gained at the expense of both the offender and the State. For the sake of simplicity, however, we will assume that these rights fall into the category of rights gained at the expense of the offender.

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21 As it turned out, however, none of the four witnesses remained anonymous to the defence counsel. 22 These were (Prosecutor v. Tadic 1995, per the majority judgment of Judges McDonald and Vohrah, pp. 62–6): 1) there must be a real fear for the safety of the witness or her or his family; 2) the testimony of the particular witness must be important to the prosecutor’s case; 3) the trial chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy; 4) there must be a lack of an effective witness protection program; 5) any measure(s) adopted should be strictly necessary, and if a less restrictive measure can secure the required protection, that measure should be applied.

23 This is based on the assumption that the specific domestic legal system allows for 24

25 26 27

28 29

30

full judicial review that can invalidate legislation (such as in the USA and Canada). See note 23 above. There is also the example of countries such as the United Kingdom, where courts ultimately do not have the power to strike down legislation that infringes human rights, but can only make a ‘declaration of incompatibility’ with rights found in the ECHR (Section 4 of the Human Rights Act 1998 (UK)). In such cases, however, such declarations do have a chilling effect on governments’ attempting to advertently, or even inadvertently, use victims’ rights to infringe the rights of accused persons. Furthermore, Sections 2 and 3 of the Human Rights Act 1998 (UK) also specifies that any legislation will be interpreted wherever possible to be in accordance with the rights and jurisprudence of the ECHR. See also s6 of the Bill of Rights Act 1990 (NZ). Interestingly, here some Asian nations may be ahead of the rest of the world – both Korea and Thailand have Constitutions that provide crime victims with rights (Ota 2003a: pp. 17–18). Refer to the examples provided in note 10 above. Such situations include those where the extent of the harm to the victim was unforeseeable to the offender, and thus, in the writer’s opinion, the sentencing authority would be justified in ignoring these harms for the purpose of their sentence. There is some debate, however, as to whether the victim’s opinion that the offender should receive a lighter penalty might be a relevant factor in sentencing. For a detailed discussion of this issue see Edwards (2002). This includes the opinions of the prisoner’s psychologist (and possibly a psychiatrist’s opinion), the full history of the prisoner’s behaviour in prison, including any programs undertaken, police records, the sentencing judge’s comments and any report of a probation or parole officer. The distinction between victims’ submissions being able to affect the conditions of parole, as opposed to the decision to grant parole, also applies in the United Kingdom under their Victim’s Charter: A Statement of the Rights of Victims of Crime (Home Office, 1990).

References Bard, M., and Sangrey, D. (1986) The Crime Victims Book. 2nd edn. New York: Brunner/Mazel Publishers. Booth, T. (2000) ‘The dead victim, the family victim and Victim Impact Statements in NSW.’ Current Issues in Criminal Justice, 11(3), 292–307.

The (human) rights of crime victims 77 Bottomley, K. and Pease, K. (1986) Crime and Punishment: Interpreting the Data. Milton Keynes: Open University Press. Brake, M., and Hale, C. (1992) Public Order and Private Lives: The Politics of Law and Order. London and New York: Routledge. Bronitt, S. (2005) ‘Comparative perspectives on the fair trial principle: A flawed balance?’ A paper presented to the conference ‘Peaceful Coexistence: Victims’ Rights in a Human Rights Framework’, Canberra, Australia, on 16 November 2005. Available online at: www.hro.act.gov.au/gems/bronitt-speech.pdf (accessed on 25 February 2006). Chinkin, C. (1997) ‘Due process and witnesses anonymity.’ American Journal of International Law, 91 (1), 75–9. Cho, B. (2003) ‘Victim protection mechanism of Korea: Legal aspect and reality’, in T. Ota (ed.), Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University Press. Cook, B., David, F. and Grant, A. (1999) Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia. Canberra: Australian Institute of Criminology. Corns, C. (1990) ‘Claiming the victim territory: The politics of law and order.’ Law in Context, 8(1), 106–21. Dershowitz, A. (2002) ‘Should the ticking bomb terrorist be tortured?: a case study in how a democracy should make tragic choices’, in A. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge. Yale University Press, 131–63. Edwards, I. (2002) ‘The place of victims’ preferences in the sentencing of “their” offenders.’ Criminal Law Review 687–702. Elias, R. (1993) Victims Still: The Political Manipulation of Crime Victims. Newbury Park: Sage Publications. Erez, E. (1991) ‘Victim Impact Statements’. Trends and Issues in Crime and Criminal Justice No. 33. Canberra: Australian Institute of Criminology. —— (1999) ‘Who’s afraid of the big bad victim? Victim Impact Statements as victim empowerment and enhancement of justice.’ Criminal Law Review, 545–56. Faherty, S. (1999) Victims and Victims’ Rights. Philadelphia, PA: Chelsea House Publishers. Fattah, E. (1999) ‘Victims’ rights: Past, present and future – a global view’, in Victims’ Rights – Future Directions: Conference Papers. Sydney: Sydney City Mission Victims Support Service. Garkawe, S. (1995) ‘Victims of Crime and Law and Order Ideology – A Critical Analysis.’ Australian Journal of Social Issues, 30 (4), 425–44. —— (2002) ‘Crime victims and prisoners’ rights’, in D. Brown and M. Wilkie (eds), Prisoners as Citizens: Human Rights in Australian Prisons. Sydney: Federation Press, 257–79. —— (2003) ‘Victims and the International Criminal Court: Three major issues.’ International Criminal Law Review, 3 (4), 345–67. —— (2004) ‘Revisiting the scope of victimology – how broad a discipline should it be?’. International Review of Victimology, 11 (2/3), 275–94. —— (2005) ‘Victims rights are human rights’. A paper presented to the conference: ‘Peaceful Coexistence: Victims’ Rights in a Human Rights Framework’, Canberra, Australia, on 16 November 2005. Available online at: www.hro.act. gov.au/gems/Garkawe-speech.pdf (accessed on 1 March 2005).

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Hall, G. (1992) ‘Victim Impact Statements: Sentencing on thin ice?’ New Zealand Universities Review, 15, 143–62. Henderson, L. (1985) ‘The wrongs of victims rights.’ Stanford Law Review, 37, 937– 1021. Hinton, M. (1996) ‘Guarding against victim-authored Victim Impact Statements.’ Criminal Law Journal, 20 (6), 310–20. Karmen, A. (2004) Crime Victims: An Introduction to Victimology. 5th edn. Belmont, CA: Wadsworth Publishing. Lamborn, L. (1987) ‘Victim participation in the criminal justice process: The proposals for a Constitutional Amendment.’ Wayne Law Review, 34(1), 125–220. Leigh, M. (1996) ‘The Yugoslav Tribunal: Use of unnamed witnesses against accused.’ American Journal of International Law, 90(2), 235–38. Leverick, F. (2004) ‘What has the ECHR done for victims? A United Kingdom perspective.’ International Review of Victimology, 11(2/3), 177–200. McCarthy, T. (1994) ‘Victim Impact Statements – A Problematic Remedy.’ The Australian Feminist Law Journal, 3, 175–95. Mawby, R.I. and Gill, M.L. (1987) Crime Victims: Needs, Services and the Voluntary Sector. London: Travistock. Mendelsohn, B. (1956) ‘Une nouvelle branche de la science Bio-psychosociale: La Victimologie.’ Revue Internationale de Criminologie et de Police Technique, 11(2), 95–109. Ota, T. (2003a) ‘Introduction: The development of victimology and victim support in Asia’, in T. Ota (ed.), Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University Press. —— (2003b) ‘New trends in victim support scheme in Japan’, in T. Ota (ed.), Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University Press. President’s Task Force on Victims of Crime. (1982) Final Report, Washington, DC: US Government Printing Office. Richards, C. (1992) ‘Victim Impact Statements: Victims’ rights wronged.’ Alternative Law Journal, 17(3), 131–34. Robertson, G. (1999) Crimes Against Humanity: The Struggle for Global Justice. Harmondsworth: Penguin Press. Shikita, M. and Morosawa, H. (2005) ‘The long-awaited enactment of a victim’s rights law in Japan’, in E. Vetere and P. David (eds), Victims of Crime and Abuse of Power: Festschrift in honour of Irene Melup. Bangkok: 11th UN Congress on Crime Prevention and Criminal Justice, 326–34. Stein, J., and Young, M. (2004) ‘The history of the crime victims’ movement in the United States.’ US Office for Victims of Crime. Available online at: www.ojp. usdoj.gov/ovc/ncvrw/2005/pg4c.html (accessed on 6 February 2006). de Than, C. (2003) ‘Positive obligations under the European Convention on Human Rights: Towards the human rights of victims and vulnerable witnesses?’ Journal of Criminal Law, 67, 165–82. United Kingdom Home Office. (1996) Victim’s Charter: A Statement of the Rights of Victims of Crime. London: HMSO. Van Dijk, J. (2005) ‘Benchmarking legislation on crime victims: The UN Victims Declaration of 1985’, in E. Vetere and P. David (eds), Victims of Crime and Abuse of Power: Festschrift in Honour of Irene Melup. Bangkok: 11th UN Congress on Crime Prevention and Criminal Justice, 70–6.

The (human) rights of crime victims 79 Von Hentig, H. (1948) The Criminal and His Victim. New Haven, CT: Yale University Press. Wardlaw, G. (1979) ‘The human rights of victims in the criminal justice system.’ Australian and New Zealand Journal of Criminology, 12 (3), 145–52.

Legislation and treaties Europe European Convention for the Protection of Human Rights and Fundamental Freedoms. (1950) 213 U. N. T. S. 221, entered into force 3 September 1953. European Convention on Compensation of Victims of Violent Crimes. (1983) ETS No. 116, entered into force 2 January 1988. Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure. (1985) R (85) 11. Framework Decision on the Standing of Victims in Criminal Proceedings. (2001) Official Journal L 82, 22 March 2001.

New Zealand Bill of Rights Act (1990). No. 109.

United Kingdom Human Rights Act (1998). Chapter 42.

United Nations Convention Relating to the Status of Refugees. (1950) GA Res 429 (V), entered into force 28 July 1951. Declaration of the Rights of the Child. (1959) GA Res 1386 (XIV) of 20 November 1959. Convention on the Elimination of All Forms of Racial Discrimination. (1965) A/RES/2106 A (XX), entered into force 4 January 1969. International Covenant on Civil and Political Rights. (1966) A/RES/2200 A (XXI), entered into force 23 March 1976. International Covenant on Economic, Social and Cultural Rights. (1966) A/RES/2200 A (XXI), entered into force 3 January 1976. Convention on the Elimination of All Forms of Discrimination against Women. (1979) A/RES/34/180, entered into force 3 September 1981. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (1984) A/RES/39/46, entered into force 26 June 1987. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53. Convention on the Rights of the Child. (1989) A/RES/44/25, entered into force 2 September 1990.

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Standard Rules on the Equalization of Opportunities for Persons with Disabilities. (1993) G.A. Res. 48/96, 20 December 1993. Draft Declaration on the Rights of Indigenous Peoples. (1994) UN Doc E/CN.4/ Sub.2/1994/2/Add. I. Convention Against Transnational Organized Crime. (2001) G.A. Res. 25, annex I, U.N. GAOR, 55th Sess., Supp. No. 49, at 44, U.N. Doc. A/45/49 (Vol. I), entered into force 29 September 2003. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. (2001) G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I), entered into force 9 September 2003.

Cases International Criminal Tribunal for the former Yugoslavia Prosecutor v. Tadic (1995) ICTY: Decision on the Prosecutorís Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-I-T, Tr. Chap. II, 10 August 1995.

United States of America Coy v. Iowa. (1988) 487 U. S. 1012. Maryland v. Craig. (1990) 497 US 836. Thurman v. Torrington. (1994) 595 F. Supp. 1521.

4

Whither victim policies? A view from the crossroads Leslie Sebba

My chapter will be divided into two main parts. The first part will consider the issue of the transferability of legal and social institutions from nation to nation and culture to culture. In this section I will draw upon the literature relating to so-called “legal transplants”, as well as upon recent comparisons of the penal culture prevailing in different societies. These discourses seek to determine the extent to which legal institutions and criminal justice policies are a reflection of particular constellations of social, political, economic or cultural variables. Such analyses have implications for the extent to which policy-making bodies have “freedom of choice” in proposing the legal institutions or criminal justice policies appropriate for adoption in a particular nation, or whether the character of these institutions and policies will be predetermined by the political and other variables referred to. In the second part of the chapter I will attempt to identify the main issues and dilemmas arising in the context of policy-making vis-à-vis crime victims and select a few of these for more extensive consideration. In this section I will draw upon our collective victimological experience; but I will also try and consider the implications for victim policies of the preceding discussion on comparative penal cultures and the transferability of legal institutions. In both parts of the chapter I will occasionally refer to experiences from Israel, and also – although very tentatively – to Asia, which is the main focus of this volume.

Are victim policies transferable? The concept of “modernity” implies a potential for social progress, and the positivist schools in both law and social sciences believed, from their different perspectives, in the power of human agents to adopt whatever policy seemed appropriate. A contrary approach implicit in the views of the historical school of law, represented most notably by the German scholar Savigny, believed that societal institutions developed according to the parameters of their own histories, and that it was the “spirit of the people” (the Volksgeist) which created the law and penetrated into the consciousness of

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the citizens of a particular society (Watson 1993: 21); thus the importation of foreign legal institutions – or even a “national” codification – was unacceptable. These debates dating back to the nineteenth century, during a period of legal codification, have been revived in recent decades in the context of debates on “legal transplants” (Watson 1993) and “legal cultures” (Nelken 1997; Nelken and Feest 2001), to which I will refer below. The issues arising have become even more pertinent in the light of current controversies relating to the phenomenon of globalization whereby information and ideas are spread at the speed of Google. Penal policies are by no means immune to this process, as evidenced by the spread of such technologies as electronic monitoring, and the popularity of such policies as zero tolerance, victim impact statements and restorative justice – many of which are directly relevant to victim policies. The exportation of legal institutions and criminal justice policies has tended to operate in a particular direction – from developed Western societies to developing ones (Cohen 1982). Historically, this phenomenon has been identified with colonial regimes, whereby (at least under the British model) officials, generally based in the home country, determined which codified version of the law of the mother country would be imposed on the “natives”. The result was that the Queensland Criminal Code, drawn up by Sir Samuel Griffith for the (mostly) British migrants, was imposed also on the tribesmen of Nigeria and the mixed Turkish-Greek and Arab-Jewish populations of Cyprus and Palestine respectively (Sebba 1999a: 82); while owing to the quirks of colonial policy Macaulay’s Indian Penal Code – generally considered superior – was introduced in Singapore. More recently this approach was seen to be consistent with the need for developing countries to “modernize” (Freeman 1985: 882–5). Thus Western legal scholars or criminologists would draft laws for or recommend the adoption of institutions in developing countries. Japan and Turkey were notable consumers of Western normative systems, while René David developed a code for Ethiopia – reputedly without ever setting foot in that country. South-East Asian countries imbibed elements of English, Dutch, French, Spanish and German law (Harding 2002a: 264). A related development has been the movement to adopt international standards in relation to norms which it is sought to apply globally, or sometimes regionally, in particular areas of state policy – notably in the area of human rights, but also, more generally in the area of corrections (see, e.g., the Standard Minimum Rules for the Treatment of Prisoners) and, more recently, in relation to crime victims (UNODCCP 1999). Such standards may be formulated either by professional bodies or by political institutions such as the UN. There is an implicit assumption here that there are universal standards to which all societies should aspire. However, these standards are often criticized as being Western-oriented and thus as a camouflaged form of imperialism – with the demand that they should defer to the recognition of cultural relativism (Alston 1994: 5–8). This essentially was the purport of

Whither victim policies? A view from the crossroads 83 the Bangkok Declaration prior to the World Human Rights Conference in 1993, and is a topic to which I will return below. The question of the desirability of the importation of norms and institutions from other cultures has of course ideological aspects: Do developing countries want to defer to the experience of the “first world” and imitate their institutions, thereby implicitly continuing the traditions of colonialism? But this issue also has an empirical-practical dimension. A considerable literature has developed in relation to the feasibility of the importation of institutions developed elsewhere – the process, as mentioned above, known in the legal literature as a “transplant”. This term appears to have been coined by Alan Watson (1974) who, working from an historical analysis primarily of ancient legal systems, enthused upon the success of this phenomenon. The implication of Watson’s view is that legal institutions can develop independently of the surrounding legal and general culture – a view rejected by, among others, Lawrence Friedman, a pioneering researcher on law and society in general, and so-called “legal cultures” in particular (Friedman 2001; Cotterrell 2001). An intense debate has taken place both as to the appropriateness of the transplant metaphor (Teubner 1998; Nelken 20021), and as to the extent to which transplants can be and have been successful. Andrew Harding, a legal scholar specializing in this region, declared apparent support for Watson’s transplant thesis: “South East Asia has been doing precisely this for hundreds of years” (Harding 2002b: 45). However, like the critics of the transplant thesis, Harding does not regard the process as a mechanical one, for – at least in the area of personal law with which he is primarily concerned2 – “both the existing law and the transplanted law become something other than they were” (Harding 2002b: 45), i.e., the “transplant” undergoes a degree of transformation within the local system which has adopted it.3 It may be noted that while the foregoing discussion focuses on the transfer of legal institutions from one society to another, the same issues arise in the wider context of the debates regarding institutional change and globalization. According to Campbell (2004) “researchers have shown how the process of translation [from one culture to another] is constrained by the local institutional context” (p. 80), as well as by “power struggles, leader support and implementation capacities” (p. 82). It may also be pertinent to mention here the “convergence versus divergence” debate, which is particularly relevant where a group of countries are bound by some common normative structure, such as the European Union or the Council of Europe (Harding et al. 1995) – but may also be relevant to South-East Asia (Harding 2002a: 51–3). The above analyses suggest that an institution imported from another system may assume a different form in the adopting society. Indeed, as Harding (2002b) notes, in some instances the importation process may actually fail; this possibility is of course consistent with the (medical) transplant

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metaphor. In this context he brings examples not far removed from some of the areas with which we are concerned. Thus “jury trial was one of the aspects of English law which failed to work in Malaysia and Singapore” and “European-style labour and social-security law have been rejected” (Harding 2002b: 45). However, the author offers no explanation for these failures which could guide us in predicting the degree of success of future transplants. It should be reiterated that the empirical question of whether a transplant “works” may be different from the question of the ideological question as to whether it is desirable. On both these issues, however, there may be an intermediary position between transplant enthusiasts and rejectionists.4 An intermediary position might be that a transplant is only appropriate (or will only succeed) if there is some similarity or connection between the exporting and importing jurisdiction, whether historical, geographical, cultural, ideological or otherwise – pace the view of Harding (2002b: 45) that “there is also no evidence that one kind of law is more easily transplanted than another”. This approach brings us into the area of typologies of national systems, cultures or jurisdictions. Whether a legal or social institution existing in another society is appropriate for our own society might be dependent upon whether the two societies belonged to some common category, however defined. The manner in which we classify nations into categories will in turn depend upon the purpose for which the categories have been created – and the variables seen to be relevant to this purpose. Bearing in mind that we are concerned here with societal categories which may, directly or indirectly, have a bearing on the nature of the society’s approach to criminal justice, and in particular to crime victims, it seems to me that the relevant categorization of societies should be based on one of two broad sets of criteria. The first set of criteria is a formal one, and relates to the character of the legal system prevailing in the society. It may be anticipated that different legal systems will adopt differing policies both in relation to offenders and victims. It is generally recognized, for example, that the victim has a more prominent role in many of the “civil law” systems prevailing in continental Europe than in the adversarial common law system (in which the defendant’s “adversary” was, of course, the State and not the victim); see Joutsen (1987). Thus Brienen and Hoegan (2000), who studied the implementation of the Council of Europe recommendation on victims, commented that if this recommendation had focused “on other aspects of criminal proceedings, e.g., the rights of victims to have a status and a voice, the type of legal system would have made a difference. Meeting such demands would have been particularly difficult for the common law systems” (pp. 1157–8). Brienen and Hoegan (2000), in surveying the jurisdictions of Council of Europe member states, differentiated between common law, civil law, and “Nordic” systems; and there is in fact an interesting literature dealing with

Whither victim policies? A view from the crossroads 85 attempts to classify legal systems into groups or “families”.5 A number of the earlier attempts at such classifications were surveyed in Zweigert and Kotz (1977). These classifications focused on the historical development of the legal systems and on their content, as well as, in some cases, their respective ideologies. Zweigert and Kotz themselves identified eight “families”: the Roman, Germanic, Nordic, common law, socialist, “Far Eastern” (subdivided mainly into Chinese and Japanese), Islamic and Hindu. This approach may be criticized as formalistic and simplistic, and of course takes no account either of prior transplants or of the dynamic interactive trends, both regional and global, of recent decades. The hypothesis suggested above, that it may be problematic to borrow a legal institution from a legal system belonging to a different “family”, has a converse, namely, that this problem should not arise where it sought to transplant an institution within the same family. This approach, however, assumes that the systems will in fact function in a similar way to one another. This is disputed by the literature on legal cultures (Nelken 1997), which suggests that the same institution – or the same type of legal system may function in different ways.6 This is illustrated in Nelken’s volume by the analysis by Guarnieri (1997) of how formally similar prosecution structures in France and Italy operate very differently in terms of the exercise of discretion. Similarly, the introduction of the suspended sentence in Britain had a very different effect from a similar reform adopted earlier in Israel, in spite of the strong formal similarity of the respective penal systems.7 The possibility of there being significant variations in the penal culture within a particular “family” or type of criminal justice system is also reflected in the literature on “models”, which has been developed by writers whose analysis has been almost exclusively limited to the common law penal system. These writers have identified a typology (or at least a dichotomy) of models prevailing within this system, characterized by their different ideologies or practices. The pioneer of this approach – and still its most famous contributor – was the American law professor Herbert Packer (1968), who identified two competing orientations in the criminal justice system – the “due process” model and the “crime control” model. Beyond the significance of this literature in drawing attention to variations in criminal justice systems, actual or potential, within the same “family”, some of the models subsequently proposed are directly relevant to the issues with which we are concerned here. This is particularly true with the contributions of Beloof (1999) and Roach (1999), which seek to recognize the victim’s role in the criminal justice system.8 It should be observed in this context that most of the writers referred to seem to imply (and sometimes their views are explicit) that the selection of a particular model is an available option to policy-makers, to be adopted at will. The writers may refer to the underlying ideology and/or assumptions of a particular model (see especially O’Connor, 1997, in the context of juvenile justice), but the impression is that this ideology or these assumptions may

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be adopted as and when it is decided to opt for the model in question. There are no indications that the choice of model is any way constrained by extraneous variables. If, however, we seek an account of the restorative justice model, and in particular if we refer for this purpose to the monograph of Braithwaite and Pettit (1990), we would discover that their proposed system of criminal justice is in fact closely related to the “republican” political system and the social character of the wider society. A close reading of the detailed scheme developed by these authors might lead to the conclusion that the institutions of restorative justice, the adoption of which they advocate, may depend for their effectiveness on a total transformation of the social and political structure of the society in question to comply with the republican scheme which they envisage. This leads me to identify the second type of criterion which might serve as a basis here for the categorization of societies, namely, the political structure of the society in question – or, to use a term more commonly applied in the context of comparative social policies – its political economy. The location of a State’s socio-economic system along a continuum between neo-liberalism and socialism or welfarism is likely to have implications for the way it treats both its offenders and its victims; indeed, it is also assumed in the criminological literature, at least by radical writers, that the sociopolitical structure will determine the character and extent of the nation’s criminality.9 Indeed, much of the contemporary criminological literature (especially in Britain) is concerned with the interrelationship of crime and politics (see, e.g., Downes and Morgan 2002; Newburn and Sparks 2004); but this literature focuses mainly on internal national politics rather than on our present field of interest, namely, cross-cultural comparisons. Probably the best-known writer on alternative paradigms of the political economy is Anthony Giddens. In his development of an agenda for the “Third Way”, Giddens (1998) analyzes the attributes of the two main alternative political orientations which have dominated Western politics in recent decades – the classical social democracy of the “old left”, and the new right’s neo-liberalism. In elaborating upon the characteristics of these models, Giddens does not dwell on their attitudes to criminal justice or to crime victims: but the tough line adopted by the neo-liberals on crime and their parsimony in terms of public spending may be contrasted with the left’s traditional amenability to welfare expenditure, with its potential to benefit offenders and victims alike.10 For more specific applications of such classifications to the criminal justice system it may be necessary to refer to the literature of criminology rather than that of social policy or political theory. The literature of comparative criminology is, however, somewhat sparse, and mostly does not extend to this type of analysis. A notable exception is the “global view” of crime and crime control by Gregg Barak (2000). Barak’s survey incorporates 15 nations around the world (14 of which are sovereign states).11 Each of these

Whither victim policies? A view from the crossroads 87 is analyzed by a different author specializing in the area in question; but for the purposes of his comparative introduction Barak classifies these nations in terms of their political-economical development, based on the hypothesis that the nature of a nation’s political economy will substantially determine the character of both its crime and its crime control. Barak differentiates for this purpose between “developed” nations (Germany, the Netherlands, New Zealand, Taiwan, the United Kingdom, the United States) and “developing” ones (Brazil, China, India, Iran, Poland, Russia). A third group of “underdeveloped” nations – Ghana, the Navajo nation and Nigeria – are designated as “post-traditional”. Barak purported to base this classification of the nations concerned “on their social, political and economic integration into the worlds of multinational corporatism and lifestyle consumerism”, citing the work of Malcolm Waters as the source for these criteria. Barak anticipated that there would be some similarity in the patterns of crime and crime control within each category. However, he found that “trends in crime within and between the different kinds of nation-states are more alike than are the trends in crime control and criminal justice” (p. xxi). Further: “Compared to the crime, crime control is more variable and subject to the perceptions, discourses, philosophies, and cultural attitudes of particular societies” (p. xxii). Thus it appears from this study that the nature/ orientation of a nation’s political economy may be an insufficient basis for the prediction of its policies and practices in the area of social control and criminal justice. An even more recent study by Cavadino and Dignan (2006), however, has apparently been more successful in this respect. Drawing upon various sources in the literature of political economy, the authors develop a fourfold typology applicable to “contemporary capitalist societ[ies]” the aim of which is “to identify similarities in terms of their form of economic organization and social structure . . . ” (p. 14). Unlike Barak, however, these authors hypothesize that a nation’s penal culture and ideology is explained only in part by material conditions, and is also shaped (and contributes to the shaping of) broader cultural and ideological trends prevailing (pp. 12– 13).12 It was therefore their (more cautious) expectation that “societies which share the same type of social and economic organization (and cultural and ideological predilections) will also tend to resemble one another to some extent in terms of their penality” (p. 14; italics added). The authors’ expectations in this respect were largely met. Their four “regime types” – neo-liberalism, conservative corporatism, social democratic corporatism and oriental corporatism – assumed differing profiles not only in terms of six socio-economic and political variables (economic and social policy organization, income differentials, status differentials, citizenstate relations, social inclusivity/exclusivity and political orientation) but also in relation to four measures of their penal culture(s) – dominant penal ideology, mode of punishment (exclusionary or inclusionary), imprison-

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ment rates and receptiveness to prison privatization.13 Thus, for example, the neo-liberal states (United States of America, England and Wales, Australia, New Zealand, South Africa) had the highest imprisonment rates, and were found to be orientated to law-and-order ideologies and exclusionary practices, states characterized by conservative corporatism (France, Germany, Italy and the Netherlands) had lower imprisonment rates and a more rehabilitationist orientation, the social democratic corporatist states (Sweden and Finland) were rights-based and inclusionary, with even lower imprisonment rates. The oriental corporatist category, which in this study included only Japan, was found to have a penal ideology of “apology-based restoration and rehabilitation” – and had the lowest imprisonment rate of all. In this connection it should be noted that the study did not include “such globally significant countries as China, the former Eastern bloc countries, and indeed much of Africa and the rest of the world” (p. 14) – and this relatively narrow focus may explain the greater success of this model by comparison with Barak’s. The above type of analysis, as well as the literature on transplants, may be helpful when considering the feasibility and desirability of adopting particular legal and social policies prevailing elsewhere – including policies regarding crime victims, the subject of our present interest, even although many Asian nations may not fall easily within the categories described in the literature reviewed above. Moreover I would argue that for present purposes it might be desirable to take into account certain additional variables pertaining to the social and cultural character of the societies under study, beyond those included among the political and ideological characteristics of the societies specified above. One variable which appears to be important here is the extent to which the society may be described as a traditional one, a variable which it will be recalled did appear in Barak’s classification – although he preferred to use the term “post-traditional”. Nations so designated are likely to have a tradition of customary law, which will almost certainly have a distinctive approach to crime victims and conflict resolution. A related issue is the extent to which the society is multicultural, since minority cultures, too, may adhere to traditional modes of conflict resolution – and indeed generally maintain distinctive values in order to retain their separate identity. This leads me inexorably to the last – but the most “loaded” – topic to be considered in the context of possible societal influences on criminal justice and victim policies, namely, the question of “Asian values”. As is well known, there has been an ongoing debate over the past decades as to whether certain generalizations – whether descriptive or normative in character – which are applicable to other parts of the world, and particularly to Western nations, are inapplicable to Asian countries owing to their supposedly distinctive values. These values have been cited by Milner (1999: 57) as including:

Whither victim policies? A view from the crossroads 89 stressing the community rather than the individual, placing order and harmony over personal freedom, refusing to insulate religion from other spheres of life, emphasising saving and thrift, insisting on hard work, respecting political leadership, believing that government and business need not necessarily be natural adversaries and stressing family loyalty. The literature on Asian values14 also often specifies the salience of duties rather than – or even as a condition of – rights, and a preference for consensus over conflict (Tay 1995–6: 757). Many of these characteristics are supposedly attributable to the Confucian influence. The controversy surrounding the validity of the claims and counterclaims in relation to Asian values cannot be entirely separated from the issues in the context of which these controversies have arisen – primarily in two areas. One area of controversy related to the explanations for the “economic miracle” whereby certain Asian countries appeared for a time to be much more successful than their Western counterparts. The second area of controversy, of greater relevance to our present agenda, related to the extent to which Asian countries should be subjected to international human rights standards that Western nations have sought to impose universally. According to the “Asian values” argument, some of the liberal autonomy rights recognized in the international instruments were of less relevance to Asian cultures, which placed greater weight on authority and community values. The question of what amounts to inhuman punishment has also been in issue. Here too the arguments operate both on the explanatory-descriptive level and on the normative level. Questions are raised in the literature (including the articles referred to above) as to the homogeneity of “Asia” in respect of these values, and it is suggested that the concept may be a construct of political leaders seeking legitimacy for their autocratic style of government. Tay (1995–6) in particular challenges the view that Asian values should trump the universal norms of human rights. Nevertheless, the Asian values controversy must clearly be taken into account when formulating criminal justice and victim-oriented policies, together with the other concerns discussed above, regarding the possible relationship between these policies and prevailing political and penal ideologies, as well as the nature of the existing legal system. With these considerations in mind I would now like to address in more general terms some of the main issues arising in the context of victim policies.

Policy options, criteria for adoption and constraints Over the last thirty years a vast number of victim-related laws and policies have been adopted around the world (Sebba 1996). If in the early years proposals focused mainly on procedural and sentencing reforms in criminal

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justice and on community assistance programmes, an analysis of victimoriented reforms indicates that their variety is such that would-be reformers are faced with a bewildering choice of sometimes conflicting options, inter alia: 1 How far do victim interests give rise to a need for the reform of the substantive criminal law? 2 If so, should emphasis be placed on the general part, and if so whether the general principles of criminal responsibility or the definitions of defenses, or the specific part, i.e., the definitions of individual offenses? 3 How may the victim’s role in the criminal procedures be improved, and at which stages of the system? 4 Do the rules of evidence need to be changed? 5 What about sentencing procedures – and sentencing options? 6 How far should all or any of the above-mentioned victim-related reforms place priority on certain types of offense, such as sex offenses or offenses involving violence – or on certain types of offender, designated by gender, age or vulnerability? 7 What is the optimal balance required in all such reforms for the preservation of the basic rights of the offender? 8 Is there a need to constitutionalize victims’ rights, as has occurred in a number of US states (and has been proposed on the federal level)? 9 Can a selection of these reforms be adopted on an ad hoc basis, or is it necessary to consider replacing current models of the criminal justice system with an integrated victim-oriented model, on the lines proposed by Beloof (1999) or Roach (1999)? Further, looking beyond the criminal justice system: 10 11 12 13

Should alternative, non-penal procedures be adopted? If so, should they be formal or informal (including restorative justice)? What should be the role of civil or administrative remedies? Is it preferable that victims’ needs be met outside the judicial system (in the sense of the pursuit of remedies vis-à-vis the perpetrator of the vicitmization), by the provision of welfare assistance and the establishment of compensation funds? 14 What should be the respective roles in this context for the central government as compared with local authorities, community institutions or the voluntary sector? 15 Should individual members of the public rather be encouraged to make their own provision for the contingency of victimization? 16 How far should duties be imposed on the public in general (or certain sectors in particular) to prevent the victimization of others or to assist them when it occurs?

Whither victim policies? A view from the crossroads 91 What considerations will guide policy-makers in selecting their preferred options to these questions? On a cognitive level, they will be influenced by their perceptions of the issues in question, and their evaluations of the effects of the introduction of the option(s) being considered. They may also be influenced by any research findings which may be available on victim needs (Sebba 1996), as well as by any relevant international norms and guidelines (Waller 2003). In the real world they will also inevitably be affected by interest groups (Sebba 2001) and budgetary restraints. Some of these considerations will in turn be constrained by the characteristics of the society in question which were considered in the first part of the chapter: its “regime type” the nature of the prevailing political and penal ideology, the extent to which the society is traditional and/or multicultural and the character of its legal system. However, a clear-cut differentiation between dependent and independent variables may be problematical here, both because there may be a chain of causes (or at least of influences), and because, as Cavadino and Dignan (2006) show in their composite model, the influences may be mutual. For example, the prevailing penal and political ideology may both affect perceptions of victimization (e.g., in relation to gender or ethnic minorities) and be affected by them. Bearing in mind this conceptual background, I would like to elaborate somewhat upon a few issues underlying the policy options which I listed above.

Victimization and the criminal law I do not propose to enter here into an extensive discussion as to whether victimology should be concerned exclusively with crime victims (YoungRifai 1982; Garkawe 2004), or to analyze the developing literature on the social construction of the victim status and its implications (Holstein and Miller 1990; Minow 1993; Rock 2002). On the other hand, an encompassing debate on the policies which should be adopted towards crime-victims should in the first instance consider whether there are types of victimization (or types of victim) who are unrecognized, or insufficiently recognized, by the prevailing provisions of the criminal law. Two processes are suggested for identifying such categories. In the first place, we may look at the broader analyses of victimization, such as that of Young-Rifai (1982), whose categories of victimization included, e.g., “endogenous” and “technological” victims; such an analysis may draw our attention to categories of victimization which have been hitherto neglected by the criminal law – and perhaps also by other branches of law and social policy. In the second place, we may take note of contemporary social and political discourses in order to obtain a sense as to which groups in the population are perceived or perceive themselves as victims. These will vary according to culture and political experience. During the debates on the

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scope and format of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, it became clear that while for first-world nations the term “victims” was associated primarily with street crime, for South American representatives and others the priority was political crime committed by repressive governments; hence the resulting dichotomization of the Declaration between “victims of crime” and “victims of abuse of power”.15 Similarly, in the early years following the establishment of the State of Israel, “victims” would have connoted above all the survivors of the Holocaust, or indeed the Jewish people as a whole, with insufficient sensitivity to the plight of the Palestinian refugees. Analogous situations doubtless exist in the Balkans and Central Africa – and perhaps also in Asia. Contemporary examples of categories sometimes perceived as victimized in the socio-political discourse of Western societies would be women and ethnic minorities – although not all are agreed that designation of these categories as victims necessarily operates to their advantage (Minow 1993). Many aspects of the disadvantaged status of such groups may be beyond the pale of the criminal law. However, analysis of their predicament – and even of the discourses themselves – may help us to identify forms of conduct which give rise to the perception that a process of victimization is taking place; such conduct might then be placed on our agenda for possible criminalization. Thus, with regard to women, Israel has recently adopted a widely drawn law prohibiting sexual harassment – particularly in the workplace – giving rise to both criminal and civil sanctions. An illustration in the context of minorities might be abusive forms of expression which give rise to hate crimes. In traditional societies or communities there may be a problem in that the discourse on such topics may be more subdued – while the problems themselves may be more acute. Framing the parameters of victim-related policies around the discourses of victimization in different cultures seems to imply that the designation of victim categories is subjective and arbitrary. However, while the social construction of victimization may be a useful starting point, more objective criteria for criminalization are also available. At the top end, the identification of victim categories is beginning to be standardized by international law, with its recognition of genocide and certain other crimes. Beyond this, the addition to a penal code of new forms of criminalization implicitly requires a theory as to when criminalization is required or justified (Duff and Green 2005); the identification of substantial victim harm is a commonly recognized criterion (Feinberg 1984). Moreover, a right to statutory protection from abuse has been recognized by the European Court of Human Rights, at least in respect of certain categories of vulnerable persons.16 Thus victimologists should be considering not only procedures and remedies, but also the appropriate boundaries of the criminal law. On the other hand the criminal justice system does not necessarily provide victims with the optimal remedy, and some of the models and ideologies referred to in the first part

Whither victim policies? A view from the crossroads 93 of the chapter, particular those with a communitarian orientation, such as Braithwaite and Pettit’s republican model, would favor a parsimonious use of the criminal law. Even where criminalization is not adopted as the appropriate solution, the suggested analysis of the construction of victimization may of course be indicative of the need to formulate alternative legal or social policies for its alleviation. Given that the criminal law is merely one of several options in dealing with victimization, and that the choice of options may be based on utilitarian as well as deontological considerations (and therefore somewhat arbitrary), it would seem undesirable to limit a discussion of victim policies exclusively to the criminal law, whatever our stand on the debate as to the boundaries of victimology. Indeed, some extension beyond formal criminal law definitions has been incorporated in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power referred to above in the context of the definition of this last category, i.e., victims of abuse of power.17

Criminal law: special part or general part? In certain areas, notably with respect to the offense of rape, the importance of reforming penal code definitions has been recognized by victim advocates. Thus in some jurisdictions the definition of rape has been amended to remove the need to prove that force was employed to overcome resistance. (See also my earlier examples of sexual harassment and hate crimes.) The role of the general part of the criminal law, in which the basic principles of criminal responsibility are specified, has been less in evidence. Expansion of the principles of criminal responsibility (e.g., to incorporate negligent conduct) would expand the category of victims within the protection of the criminal law. Yet concurrently with the rise of the victim movement the trend in many jurisdictions (including Germany and Israel) has been towards a narrowing of the basis of criminal guilt and a greater emphasis on culpability – perhaps deriving from the constitutionalization of the criminal law and a preference for deontological principles over instrumental ones in determining the principles of criminal responsibility (as well as of sentencing).18 In addition to reducing the number of legally acknowledged victims, the trend towards a greater emphasis on culpability and thus on the state of mind of the perpetrator places the focus of the criminal trial even more firmly on the actions and personality of the defendant. The predicament of the victim while the offense was being committed will implicitly be of less concern to the court. To use rape again as an illustration, the passivity of a victim who was traumatized will be of interest only in order to determine whether to accept the defendant’s claim that he believed she was consenting. An extension of this situation will occur when the defendant endeavors to exonerate himself (or herself) by “blaming the victim” for having contributing to or even provoking the criminal act.

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This is an area of the criminal law which has been somewhat neglected by victimologists in recent years, probably for the very reason that the notion of victim-precipitation, pioneered by early victimologists such as Wolfgang and Amir, resulted in the identification of this school with “victim blaming”, and its rejection by the later victims’ rights movement. Thus latter-day victimologists have, in collusion with the rhetoric of the criminal law, conceived of criminal acts in dichotomous terms. The black/white criminal/victim dichotomy fits well with the zero-sum-game character of criminal law proceedings – and indeed with popular perceptions of the criminal and the victim (Christie 1986). In the spirit of such dichotomization, the traditional approach of the criminal law where doubts have arisen regarding the respective roles of defendant and complainant, has been to acquit the defendant, although in rare cases it may have been possible to criminalize both defendant and “victim”: see Gobert (1977) and the recent article by Bohlander (2005). In extreme cases, however, it may be possible for a defendant to reverse the roles determined by the traditional dichotomization, in his or her own favor. I refer to the cases where a victim of abuse is charged with an offense committed against the abuser. An acquittal by a criminal court (or even the reduction of the charge)19 may send an important message that the defendant is actually a victim. Such cases should be in the forefront of victimological analysis, since they raise the fundamental question of “who is the victim?” The situations in which they arise may involve allegations of spouse-battering, violent acts committed in the name of family honor etc., and raise such legal issues as the definition of provocation, the reasonableness of a response to abuse – and the standards whereby such reasonableness is to be judged. They will often be causes célèbres in the context of genderial battles and multicultural conflicts, the appropriateness of the conduct concerned being viewed differentially according to genderial or cultural affiliation: the concept of a “cultural defense” may be invoked here (Renteln 2004). The outcome of the controversy, whether at the judicial or legislative stage, may depend upon how the conflict can be constructed before the wider public, and upon the political power of the relevant group in the society in question. The lines will inevitably be drawn differently in every society, and may differ in Asian societies as compared with Western ones. The struggle for the imposition of universalist standards in accordance with human rights instruments, even if the interpretation of these standards is unequivocal, may be difficult to win if in conflict with the prevailing cultural norms.

The prioritization of certain victims or victim categories Normative differentiations between categories of victims occur under most legal systems in a variety of contexts. In sentencing, penalties may be enhanced where the offense is committed against a family member. Certain

Whither victim policies? A view from the crossroads 95 procedural rights of victims, such as their right to express their views at a parole hearing, or the use of victim impact statements, may be reserved for certain types of victims, such as victims of sex offenses or offenses of violence. Certain witnesses are regarded as vulnerable and enjoy privileged procedures, such as the right to testify by means of closed-circuit television.20 State compensation may be available only for certain categories, such as terror victims.21 Victim assistance may be available (from whatever source) only to women victims of sex assault or domestic violence. (Assistance to and protection of abused children are also the object of special provisions, but these are generally found in welfare laws, unrelated to the criminal justice system.)22 Such differentiation and prioritization may derive from studies of the impact of victimization on and of the needs of the selected populations, but may also result from moral panics and pressure groups whose advocacy has been directed at their client population. Thus in Israel victim impact statements were introduced in 1997 exclusively in respect of victims of sex offenses. More recently, under the Victims’ Rights Law, a “victim declaration”, available to all categories of victim, fulfills a somewhat similar function; but other rights, such as the right to be heard in prisoner release hearings, are restricted to victims of sex and violence offenses. The need for prioritizing victim categories may sometimes be dictated by a lack of resources for universal solutions for all victims, but insufficient attention has been paid by victimologists to the criteria for such prioritization. The preference for victims of sex and violence as recipients of rights may be questioned on the basis of the early research showing that many victims of burglary, too, were traumatized by the experience (Friedman et al. 1982). Insofar as offense seriousness is linked to the degree of harm inflicted on the victim, as dictated by the just desert philosophy, it may serve as a rough guide to the extent of victim needs – but clearly this is not a perfect correlation. Moreover, since we are concerned here with the question of the transferability of victim remedies, we must also take into account the extent to which the ordering of offenses in terms of seriousness are similar in different cultures. While Wolfgang and his collaborators in the 1970s claimed to find similar ordering in a variety of cultures, it is questionable whether such macro-statistical studies are sensitive to meaningful cross-cultural differences, such as those described in Graeme Newman’s in-depth study of comparative deviance (Newman 1976). Moreover, as noted, comparative studies on the perception of crime and deviance do not necessarily provide conclusive answers regarding the extent of harm inflicted – or the way it is experienced – in the specific setting (Walklate 1996). The victimization studies conducted in the “third world” (del Frate 1998) may be a good starting point for further research on this topic. Further, the use of victim impact statements or their equivalent for a wide variety of offenses to provide a record of victim harm (and not necessarily for sentencing purposes) could be

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helpful both in determining national priorities for victim services and for comparing victim priorities in different cultures. The preceding discussion related to the priority given to certain types of victims and its justification. Conversely, however, certain victims may be excluded from benefits, whether on a normative basis or de facto, because they do not correspond to the image of the “ideal” or “innocent” victim; this may result from the victim’s lifestyle – or minority status (particularly immigrants) – or the perception that he or she is somehow responsible for their own victimization. A society with a more conservative political orientation is more likely to apply moral judgments or group prejudice to such outsiders or non-conformers, while a more liberal (not “neo-liberal”) or welfarist approach (Cavadino and Dignan’s social democratic corporatism), or a society with a communitarian orientation (Braithwaite and Pettit’s republicanism), would be more likely to adopt more inclusive policies towards minority or “deviant” victims.

Secondary protection Consideration of the prioritization of certain forms of victimization leads to a related but neglected topic which I will refer to as secondary protection, whereby additional legal restraints or obligations are put in place in order to protect certain categories of victim – in some cases individually identified. In respect of victims perceived to be particularly vulnerable, an offense is committed if there is a failure to report abuse on the part of treatment personnel or even neighbors.23 Similarly a “duty to rescue” may be recognized. Civil courts may be empowered to issue “protection orders” to remove an abusive spouse from his (or her) home; while a recent law in Israel allows the court to restrain a released offender from approaching the residence or the workplace of his or her victim. In Britain anti-social behavior orders may be issued to prevent a resident from threatening the harmony of the community. Compulsory forms of treatment for sex offenders or drug users may also be considered in this context. The social philosophy behind these remedies varies from traditional paternalism to “zero tolerance” to the neutralization of risk, and such options should be further analyzed in the context of the cultural variables considered earlier. However, they all raise the issue as to how far policies for the protection of victims should depart from the traditional liberal principle that punitive laws (and the above illustrations all have a punitive element) should only be invoked as a sanction for the infliction of a not insignificant measure of harm. Some of these remedies impose duties on parties other than the perpetrator of the harm; they thus raise the additional issue as to who bears the burden of such duties towards victims, a topic to which I will return below.

Whither victim policies? A view from the crossroads 97

Which procedural model? Much – probably most – of the victim advocacy literature, as well as the development of international norms and standards, has focused on procedural reforms, such as the victim’s right to information regarding the proceedings, procedures to ensure that victim-related information is made available to decision-makers and, increasingly, the right to active participation in the process. The main controversy among victim advocates revolves around the question of how far the victims’ views regarding the decisions to be taken by the criminal justice authorities should be known at the relevant stage and be taken into account by those authorities. In the light of the enormous literature on these issues, space does not permit their meaningful analysis here. It seems to me that one of the reasons that the above concerns dominate the legal literature is that this literature is itself dominated by common law scholars, and, as noted above, it is in the common law system that the procedural neglect of the victim has been the most salient in modern times. This was the result of its “adversary” character and the related exclusionary rules of evidence which ensured that “extraneous” matters, such as the victim’s well-being, will not be addressed during the proceedings – albeit that proceedings at the sentencing stage are more flexible. Under “continental” or “inquisitorial” systems of criminal justice, on the other hand, victim presence as the “civil party” or by virtue of the “adhesion procedure” was recognized (Spinellis 1997), while other victim-related procedures existed elsewhere (e.g. Germany’s nebenklage procedure) – although victim satisfaction seems not to have been high in these systems either (Bienkowska and Erez,1991). Will the development of victim-related procedures in other states, whether in Asia or elsewhere, therefore depend on whether they have inherited – or wish to opt for – a common law system on the one hand or an inquisitorial one on the other? It may indeed seem logical that the direction in which a criminal justice system may be developed or reformed will depend on its initial orientation and characteristics, and that policies which are totally foreign to the system will be inappropriate. Against this argument (and subject to the earlier discussion of transplants and transferability) at least two counter-arguments may be proffered. First, the “common law” system is not a monolithic one. Not only does it appear in various forms in different geographical locations, but a growing literature suggests that even within a particular jurisdiction the system itself may adopt various ideological orientations or “models”. These models which were referred to earlier, include the victim-oriented models of Beloof (1999) and Roach (1999). Is it also possible that these models could be superimposed on a non-common law system? Second, many criminal justice systems are no longer purely common law/ adversary or continental/inquisitorial. While both the German and (more

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recently) the Italian systems have imported elements of the adversarial system, there is evidence that European systems are moving towards a greater convergence (Harding et al. 1995). The international criminal tribunals struck a balance, the procedures having an adversarial character while the rules of evidence are more flexible and influenced by civil law systems (Bantekas and Nash 2003: 288) and the situation of the International Criminal Court seems not to be dissimilar (Gray 2004: 292–4). Former colonial jurisdictions have also generally been open to a number of influences. British mandatory law in Palestine preserved some (Napoleonic) Ottoman elements in relation to the court structure, while Jewish immigrants from the United States and Eastern Europe made a substantial impact on Israeli criminal law. And what of victim-oriented procedures? Reforms within common law systems such as victim impact statements have spread rapidly, while restorative justice experiments, the recent appearance of which seems to have originated in the United States and Australia, has cut across the divisions into legal “families”. Convergence has been encouraged by the formulation of international standards – while the strong victim orientation reflected in the statute of the International Criminal Court (Garkawe 2001), both at the trial and the sentencing stages, seems to reflect the reverse process – the transplanting of national developments into the international arena. The extent to which the various reforms have been successfully transposed – or indeed have been effective in their country of origin – is of course a matter for research.24 Of greater significance than the nature of the formal criminal justice system in the present context, however, is the role of informal systems. There are always informal systems operating in the margins of the criminal justice, as reflected in the discretionary powers of the police, the prosecution and often also the judge (Gottfredson and Gottfredson 1988). The exercise of such discretion may well have implications for the victim, and may indeed involve the victim directly.25 My main concern here, however, is not with such marginal activity, but with the more “total” informal alternatives which it seems are operating in almost all societies today. I refer, of course, to the enthusiastic adoption in many Western societies of restorative justice – and the similar systems which in traditional societies were generally never abandoned, even where the State adopted formal systems.26 Moreover there are many modern Westernized states which have minority cultures, whether indigenous to the country or migrants. It is probable that in some of these traditional practices continue within the minority culture or cultures, while the State is moving to adopt the old-new ideology. Again, Israel is in this respect at the crossroads, with a strong tradition of a reconciliation procedure, the “sulha”, among its Arab community (Jabbour 1996), while the Westernized justice officials are experimenting with Family Group Conferences.

Whither victim policies? A view from the crossroads 99 These developments are of major significance to the victim movement, since clearly the role of the victim is central to restorative justice, whether in its traditional or contemporary versions. The contrast between the formalities of the official criminal justice systems of modern Western states and the concept of restorative justice could not be greater, with the latter being characterized not only by the informality of its procedures, but also by the flexibility of its outcome, there being no predetermined dispositions. The choice between restorative justice and traditional Western formalized justice is the major dilemma today for criminal justice scholars and policymakers, but in particular for victim policy. For the restorative justice model grants the victim not only a dominant role in the proceedings, but also, in principle, control over the outcome of these proceedings, which supposedly requires the consent of the relevant stakeholders. Moreover the agreed disposition, such as reparations, is likely to benefit the victim in practical terms. In all these – and many other – respects,27 restorative justice differs from conventional Western formal justice. Inevitably there are compromise solutions. Under one model of restorative justice, the informal meeting of offender and victim does not replace the regular formal process, but is additional to it;28 for example, the offender may meet with the victim in his or her prison environment. Most Western states experimenting with restorative justice will use such a process only for selected offenses and in minor cases. Another approach is that adopted in juvenile (or “youth”) justice in Britain, where the restorative justice process is invoked after the guilt of the defendant has been established (Crawford and Newburn 2003). Finally, proposals have been made for the regulation of restorative justice so that it will be less offensive to more traditional concepts of justice; see von Hirsch et al. (2003) and the proposal by John Braithwaite (2002), the main leading instigator of the contemporary restorative justice movement. However, while the developing of minimal standards for regulating the implementation of restorative justice may be desirable, the inconsistency of this model with traditional criminal justice procedures remains palpable. Moreover in this area more than in any other referred to here, each society will have to adopt the solutions best adjusted to its own cultural traditions and diverse characteristics. This applies both to the extent to which restorative justice options are adopted, and the form which they will take.

Punitiveness, justice and variability of outcome In the first part of this chapter I referred to the wide discrepancies in the degrees of punitiveness in the penal policies of different types of political regime. In the present context it should be noted that the increasing punitiveness of Western neo-liberal societies in the last decades has coincided with two other developments: (a) the move in penological thinking in favor of retributive punishment and the adoption of a more structured and deter-

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minate model of sentencing system; and (b) the beginning of a reorientation towards the victim. The causal linkage between these developments is, however, far from clear. As to the link between punitiveness and the retributive goal, it has been argued that increased punitiveness in the US has been attributed to the adoption of minimum and mandatory sentences which have been adopted for deterrent and incapacitory purposes rather than because of desert principles and structured sentencing as such. Of greater concern to us here is the perceived link between punitive sentencing policies and concern for the victim. It is certainly true that harsh sentencing measures, including mandatory minima and even the death penalty, may be advocated in the name of victim protection, or even “victim rights” (McCoy 1993), and the phenomenon of the cooptation of victims in the interests of the law enforcement authorities has been referred to by a number of scholars (Ashworth 1993; McShane and Williams 1997). The need to consider victims’ rights and interests has become a routine response at sentencing hearings to defense requests for leniency, and newly entrenched procedures for presenting accounts of the harm inflicted on the victim at various stages of the criminal justice system invite enhanced penalties – particularly if these procedures include an opportunity for the presentation of a “victim statement of opinion”. On the other hand there is much research indicating that victims themselves are on the whole not punitive, and that their needs are better met by enhancing their role in the system than by harsh outcomes. Moreover penological research suggests that harsh penal systems are less efficient (Sebba 1980), and this surely operates against victim interests. Indeed, some victim advocacy groups, such as Britain’s Victim Support, have taken care not to advocate harsh sentencing (JUSTICE 1998). As noted, the direction sentencing policies will take in a particular society is a function of a number of political and cultural factors. The extent to which variations in sentencing policy may impact upon victim satisfaction and the meeting of victim needs – or indeed upon victimization rates – can only be determined by comparative research controlling for such factors. The preceding discussion related to the harshness of sentencing, but not (or at least not directly) to the question of its variability – in the sense of its predictability. The reorientation of sentencing in the 1970s and thereafter away from the needs of the offender and in favor of offense seriousness was intended to overcome the problem of perceived disparities (von Hirsch 1976). Since a primary element in the measure of offense seriousness is the extent of the harm inflicted on the victim, it was claimed by Marvin Wolfgang (1982) that penal philosophy was moving from the individualization of the offender to the individualization of the victim. This is not the place to consider in depth whether offender rehabilitation as a sentencing aim is dead, or what, if anything, we should be learning from the recent revival of studies of offender treatment. Rather I wish to consider briefly the issue of victim individualization as the basis of sentencing, which raises

Whither victim policies? A view from the crossroads 101 some of the most challenging quandaries in the context of the role of the victim in the criminal justice system. There was clear logic in Wolfgang’s argument that a concern with the degree of harm inflicted upon the victim would be consistent with desert sentencing. Indeed, it could be argued that the availability of information on victim harm – as we have seen, one of the main objectives of recent victim reforms – is perhaps even a condition for desert sentencing. Arguably, then, the individualization of the victim in this sense is the objective both of the “just deserts” movement and of victim advocacy. Andrew von Hirsch, however, the prime mover behind the desert movement, believed that the punishment imposed should be based not upon the harm actually caused to the particular victim, but by the harm typically inflicted by an offense of the type committed (von Hirsch 1985). Moreover, recent reforms designed to ensure that the information is conveyed to the decision-making authorities in the criminal justice system with regard to the harm inflicted upon the victim typically relate not only to physical harm and monetary damage but also to the psychological effects on the victim – which may of course vary widely, even given similar offenses committed in similar circumstances. Further, where victim-oriented reforms enable victims to express their views regarding the desired outcome or disposition, there may – assuming the victims’ views are taken into consideration – cease to be any consistency whatsoever in sentencing patterns. The outcome would then be determined primarily by the sensitivities of the victim and his or her social and philosophical outlook and emotional characteristics. Such an outcome would be inconsistent with desert sentencing, which is based on principles of culpability, foreseeability and proportionality. The individualization of the offender will have been fully (and from the desert perspective, equally negatively) replaced by the individualization of the victim (Erez and Sebba 1999; Sebba 2000). While such individualization has negative connotations from the perspective of the established principles of criminal law and punishment, it seems to be the logical outcome of current victim-oriented reforms, as well as being consistent with some contemporary postmodern concerns with the individual, the role of emotions, etc. (Sebba 2000). However, the victim’s needs, which would apparently be met by this orientation, can equally – or perhaps better – be met by restorative justice processes, which are not in principle hampered by concepts of proportionality and equality of outcome. Thus the dilemma between conventional principles of retributive and proportional justice on the one hand, and “victim’s justice” on the other, can be more easily resolved in favor of the latter in societies which have a tradition of restorative justice approaches, whether in general or within certain cultural groups. Neo-liberal societies, especially those in which certain groups (or “underclasses”) are perceived as dangerous, are unlikely to be tolerant of particularized solutions characteristic of restorative justice. Beyond this, the amenability of different cultures to different notions of

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justice is a topic for research on the part of social psychologists, in which victimologists should be more involved (Thibaut and Walker 1975; Greenberg and Ruback 1992; Sebba 1996: ch. 5).

Welfare policies: Victim assistance and state compensation The preceding sections were mainly concerned with ideologies and practices of justice involving offenders and victims. In this section I am concerned with the “other axis” (insofar as the offender, the victim and the State may be seen to be in a triangular relationship), namely, State policies vis-à-vis the victim outside the criminal justice system and its alternatives. I do not intend here to review the merits and demerits of various forms of victim assistance program or of State compensation which I have done elsewhere (Sebba 1996: chs. 9 and 10), nor even to consider the relative importance of enabling victims to benefit from such welfare-oriented policies as compared with promoting their interests in the criminal justice system. Suffice it to say that neither approach should in my view be mutually exclusive of the other. Victim assistance programs cannot be provided (except in the margins) by the criminal justice system, while adequate compensation from the offender – if indeed he or she is apprehended – will be forthcoming only in a minority of cases. Given State or community support in these areas, it may be argued that there is no need for the victim to be involved in the criminal justice system (Henderson 1985). However, the research suggests that even if generous and systematic community programmes were available to all victims, they would still want at least minimum involvement in “their” cases (see Christie 1977; Shapland et al. 1985). Proponents of public spending on victim assistance and State compensation are inevitably faced with questions relating to the extent and availability of funds, how far crime victims are deserving of priority over other categories of needy persons, as well as priorities among victim categories – a topic I have discussed above. Victim reformers are thus left to determine how to shape their welfare policies, and in particular: (a) how far to prioritize crime victims in relation to other categories of needy persons and (b) how far should victim-oriented policies in the community interrelate with the criminal justice system, e.g., by financing them by means of offender contributions. Beyond these questions there will be many others which also arise (or have their parallels) in contemporary societies in other areas of social welfare. These include the role of central versus local government, the extent to which services are privatized, and the role of non-governmental organizations and partnerships with non-governmental bodies (Crawford 1997). The way these issues are resolved will inevitably be linked to the political and social structure of the society concerned and the prevailing ideologies as discussed in the first part of the chapter, in particular with respect to welfare spending. Welfare regimes have been classified by

Whither victim policies? A view from the crossroads 103 Esping-Andersen as liberal, conservative-corporatist or social-democratic (Croissant 2004) – a classification akin to the one adopted by Cavadino and Dignan (2006) in their broader political perspective. The liberal (i.e., neoliberal) approach followed in the United States seeks to limit the burden on the taxpayer, and would tend to place the burden for providing victim services upon offenders (e.g., by a levy on convicted offenders) – or on the victims by way of insurance; cf. the responsibilization thesis of Garland (1996). To illustrate from my own country: The strongly welfarist ideologies of the 1950s and 1960s have been increasingly replaced by neo-liberal policies which have been in place since the rise of the victim advocacy movement. Thus a compensation scheme on the basis of public funds has only been made available for high-profile victim categories, namely holocaust victims and victims of terrorist acts. Other groups with political visibility, such as women victims of sex offenses, are assisted by non-governmental organizations with some public subsidies. Government blueprints for more comprehensive victim services gather dust. On the other hand the payment of restitution on the part of the offender has been encouraged by considerably increasing the maximum sum which the court is empowered to order to $50,000 per offense, and by strengthening the enforcement procedures. Similarly, the less costly path of increasing victims’ rights in the criminal justice system by means of a Victims’ Rights Law has been followed.29 In Asia the extent of State investment in welfare policies has generally been low (Croissant 2004), and this has sometimes been attributed to “a supposed or real Confucian welfare culture”.30 Recently there has been pressure to adopt the more generous European “conservative welfare state” model rather its US counterpart, while “the ‘Asian model’ as an alternative . . . is losing much of its attractiveness” (pp. 520–1). However, the models of welfare capitalism developed by Esping-Andersen were criticized from an Asian perspective because of their inattention to the role of family and “those largely non-monetary private, familial social services which are important sources of welfare production in ‘familialistic’ welfare regimes” (p. 506). This suggests that limited public spending does not necessarily connote an absence of welfare, which may derive from informal support systems. There is some evidence, however, that even in Western states – at least in those with liberal regimes – crime victims may have to rely substantially on informal systems, in spite of the proliferation of victim programmes. Robert Elias’ Jeremiad critique of the inadequacies of victim services over the years (Elias 1983, 1993; Fattah 1999), has recently been corroborated by a recent study conducted by Sims et al. (2005), whose “findings mirror other studies that indicate very little usage of services to crime victims” (pp. 377–8).

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Whose duties? Underlying the preceding discussion is the question as to the identity of the party who bears responsibility for the victim’s well-being, and for ensuring the respect for his or her rights (Sebba 1999b). The extensive rhetoric on victims’ rights has been less in evidence on the subject of their implementation, although measures adopted by the UN and European bodies (Waller 2003) clearly place general responsibility on governments. The main thrust of victims’ rights has been directed at their victimizers, i.e., the perpetrators of the offense, and the enhanced involvement of victims in the criminal justice system, and regulations have increasingly been adopted for this purpose. However, laws designed to guarantee victim rights frequently exempt the State from sanctions for their non-enforcement, and litigation to compel the State to protect victims or enforce their rights have had limited success – although such duties have begun to be recognized by international courts.31 Similarly, the direct involvement of the State in the provision for victim needs such as victim assistance or compensation programmes tend not to be framed as duties whereby victims can claim legal remedies.32 It would be of interest to compare how far there are differences in this respect in different jurisdictions – and in particular in Asia, where the rights rhetoric has supposedly been attenuated by “Asian values”. This triangular framework of analysis, however (i.e., victim–offender– State), may be inadequate. The argument that in the context of welfare provision in developing countries the family plays an important role has already been noted, as also the possibility that victims even in the United States may have to rely upon informal networks. More attention should be devoted in the context of victim services to significant others, to networks and to civil society. Comparison should be made between different societies in this respect, as well as different subcultures or ethnic groups within a particular society. Of particular relevance under the heading of this section is the extent to which legal duties are imposed on non-State agencies to protect or assist other citizens, beyond the traditional category of parents in respect of their children. Thus Harding (2002b: 53) refers to a “reverse” law in Singapore requiring the provision of support for parents. In this context families and networks may be distinguished from strangers. Liberal philosophy traditionally denied any obligation to assist or “rescue” a stranger a-la-Good Samaritan, while the law in continental Europe was generally more community-oriented in this respect (Menlowe and McCall Smith 1993). Attitudes and norms may be changing in this respect in common law countries – and not only in respect of vulnerable victims in respect of whom the duty to intervene has been widely imposed. Arguably, in a society governed by traditional communitarian norms, the imposition of statutory obligations is unnecessary. In Israel, however, the Biblical exhortation not to stand by while your neighbor is injured was recently incorporated into legislation. It would be of interest to explore how

Whither victim policies? A view from the crossroads 105 similar moral codes interact with transplanted legal systems in Asia, in terms of the citizen’s duties towards the victim.

Conclusions In this somewhat discursive chapter I have considered some broad issues related to the diversity of attitudes to criminal justice and related social policy matters among various societies as well as various explanations for these diversities. I have also attempted to focus on a number of central issues relating to victim policies, and to consider how they might be resolved in the light of this plurality of approaches. The earlier discussion might give rise to the impression that the options in this area, as in other policy areas, are severely restricted – if not predetermined – by certain societal variables of a political or cultural nature, such as the prevailing economic philosophy or the values of a dominant community, as well as by the character of the legal system operating in the society in question. If this were the case, the attempt to introduce a novel victim-related reform would be unlikely to succeed. Legal transplant skeptics might indeed take this view. There are, however, a number of grounds for adopting a more optimistic view. First, we might take a “soft determinist” view that there are indeed restraints upon our choice of policy, but within these restraints there is room for maneuver. Indeed, most of the transplant and globalization skeptics argue that the new institution, if borrowed from elsewhere, will become something different from the original – but a change will nevertheless take place. Second, we may recall the model suggested by Cavadino and Dignan (2006) which indicates that there is an interaction of social and ideological forces within a given society in the areas of political ideology and punitive culture. If this is the case, a movement in favor of a particular reform, victim-oriented or otherwise (such as welfare assistance or restorative justice) has a potential not only to take root, but also to set off a chain of influences on institutions and policies in other areas – perhaps assisted by a change in the political climate. For example, public identification with crime victims could result in a broader reorientation of welfare policies. Third, the stereotypical image of a society’s characteristics tend to be exaggerated. Most societies, Western or Eastern, tend to incorporate a variety of cultures, subcultures and ethnic groups – as well as a variety of legal traditions. A potential for fluidity in their policies is thus provided not only by the influences of globalization but also by internal variation. Given some flexibility in the choice of victim policies, the exercise of this choice will by no means be a trivial matter. There are at least two fundamental issues the resolution of which may have wide implications for both criminal and social justice. One relates to the location (or locations) of the duties of which the victim’s rights are the corollary: do these duties rest with the offender, with the wider community or with the State?33 The second

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issue, in this case a dichotomy, is between structured, formalized, proportional justice and individualized, negotiated restorative justice. I believe that both on the societal level and on the micro level, there is a universal tension between the desire to see justice done (in the retributive sense), and the desire to accommodate the needs of individuals – the overriding aim of restorative justice. Beyond these choices, there are other policy decisions of no less importance, such as the determination of the social categories to which victim policies will be directed. The formulation of victim policy requires a three-fold orientation, each of which may pull in a different direction. It requires: 1

2

3

a sensitivity to the perceptions and needs of the possibly diverse local populations with respect to the various issues alluded to in this chapter, including the perceptions of these populations as to the allocation of victim status and as to the institutions of justice and its administration: this orientation will be dependent on research within the society in question; monitoring the effectiveness of the various victim remedies as they are played out in different jurisdictions: for this purpose comparative research will be required; deference to internationally recognized rights and standards.

Subject to the acceptance of internationally recognized principles (such as equality of protection) in accordance with the third orientation, optimal solutions may be sought through techniques of transplant and convergence, in accordance with the second orientation – subject to evaluations of their appropriateness in the adoptive society. Such appropriateness will in turn be determined in accordance with the first orientation, i.e., a study of the needs and sensitivities of the local population(s).

Notes 1 According to Nelken’s analysis, the gap between the views of the opposing sides is not as great as the rhetoric. 2 But cf. also his article on public law (Harding 2002a). 3 This is close to the critical stance of Teubner (1998), who rejects the transplant metaphor in favour of the term “irritant”. 4 Note, however, that the latter may be absolute rejectionists, or merely rejectionists in relation to the tendency to transplant from developed Western nations to developing nation. 5 Typologies of legal systems have of course a distinguished history, which includes the ideal types of Max Weber (cf. Cotterrell 1992). 6 In a similar vein, a recent article by a Singapore scholar (Ramraj 2004) shows how a particular concept, in this case “due process”, may have different connotations in different common law jurisdictions. 7 In Israel suspended sentences largely replaced sentences of imprisonment and activation rates were low, resulting in a reduction in the prison population. In

Whither victim policies? A view from the crossroads 107

8 9 10 11 12 13

14 15 16 17 18 19

20 21 22 23 24 25 26 27 28 29 30 31 32 33

Britain suspended sentences largely replaced other non-custodial sentences and activation rates were high, resulting in an increase in the prison population. The “family model” of Griffiths (1970) and the “bureaucratic model” of Feeley (1973) may also be relevant here. See Barak (2000), discussed below. In Britain, the focus of Giddens’ interest, these differences are now somewhat attenuated, in the light of New Labour’s commitment to toughness on crime: see Downes and Morgan (2002). On p. xii Barak refers to all the societies in his sample as nation-states – but one is the “Navajo nation”. They term this a “radical-pluralist” model. It is my assumption that the authors’ classification of the four categories of regime was based primarily on the first set of variables, and that the profiles based upon the penal variables were subsequently found to vary in accordance with the regime differentiation. Or, in an alternative Singaporean version, “Shared Values” (Englehart 2000). Under s18 of the Declaration, this category includes victims of “acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights”. See X and Y v. Netherlands 8978/80 [1985] ECHR 4. See note 15 above. Thus in Israel the revision of the general principles of the Penal Code in 1995 included a presumption against negligence as a basis for liability and some recognition of mistakes of law as a defence. Following a much-publicized case in which a “battered wife” killed her husband, it was proposed to amend the Penal Code to provide that such cases be recognized as manslaughter rather than murder. Ultimately there was a compromise and s300A of the code merely exempts the court from the provision requiring a mandatory life sentence for murder. See the pioneering Israeli law on child examiners, and the more recent reforms making special provision for the testimony of adult victims of sexual assault. Cf. Yanay (1994). But see below on the duty to report offences committed against “vulnerable offences”. Such a provision was introduced in Israel in 1989. See also my conclusions below. Moreover the victim himself or herself may exercise discretion as to whether to report the offence. This is certainly true of most Middle Eastern countries: see Albrecht et al. (2006). Other notable features which distinguish restorative justice from formal justice are the absence of a judge, and the involvement of the “community”. See, e.g., the early Victim Offender Reconciliation Programs described by Johnstone (2002: 2–3). However, implementation of the provisions requiring substantial budgets have been delayed. It seems that in Singapore (as well as India) there was a deliberate policy on the part of the government to introduce Confucian values owing to the economic difficulties in maintaining welfare policies (Lele 2004). See note 16 above, Leverick (2004) and Rogers (2003). For many years the State compensation programme for criminal injuries in Britain (one of the first of its kind) was non-statutory. Restorative justice solutions provide a more integrated solution in this respect.

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References Albrecht, H., Simon, J., Rezaei, H., Rohne, H. and Kiza, E. (eds) (2006) Conflicts and Conflict Resolution in Middle East Societies – Between Tradition and Modernity. Freiburg: Max-Planck Institute. Alston, P. (1994) ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’, in P. Alston (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights. Oxford: Clarendon Press, 1–25. Ashworth, A. (1993) ‘Victim Impact and Sentencing’, Criminal Law Review, 498–509. Bantekas, I. and Nash, S. (2003) International Criminal Law. 2nd edn. London: Cavendish. Barak, G. (2000) ‘Introduction: A Comparative Perspective on Crime and Crime Control’, in G. Barak (ed.), Crime and Crime Control: A Global View. Westport, IN: Greenwood. Beloof, D.E. (1999) ‘The Third Model of Criminal Process: The Victim Participation Model’, Utah Law Review, 289–303. Bienkowska, E. and Erez, E. (1991) ‘Victims in the Polish Criminal Justice System: Law and Reality’, Journal of Comparative and Applied Criminal Justice, 15, 217–25. Bohlander, M. (2005) ‘The Sexual Offences Act 2003 and the Tyrell Principle – Criminalising the Victims?’ Criminal Law Review, 701–13. Braithwaite, J. (2002) ‘Setting Standards for Restorative Justice’, British Journal of Criminology, 42, 563–77. Braithwaite, J. and Pettit, P. (1990) Not Just Deserts: A Republican Theory of Justice. Oxford: Clarendon Press. Brienen. M.E.I. and Hoegen, E.H. (2000) Victims of Crime in 22 European Criminal Justice Systems. Nijmegen: van der wolf. Campbell, J.C. (2004) Institutional Change and Globalization. Princeton, NJ: Princeton University Press. Cavadino, M. and Dignan, J. (2006) Penal Systems: A Comparative Approach. London: Sage. Christie, N. (1977) ‘Conflicts as Property’, British Journal of Criminology, 17, 1–15. —— (1986) ‘The Ideal Victim’, in Fattah (ed.), From Crime Policy to Victim Policy. London: Macmillan, Ch. 1. Cohen, S. (1982) ‘Western Crime Control Models in the Third World: Benign or Malignant?’, in Research in Law, Deviance and Social Control, 4, 85–119; reprinted in P. Beirne and D. Nelken (eds) (1997) Issues in Comparative Criminology. Aldershot: Darmouth, 123–60. Cotterrell, R. (1992) The Sociology of Law: an Introduction. London: Butterworths. —— (2001) ‘Is There a Logic of Legal Transplants?’, in D. Nelken and J. Feest (eds) Adapting Legal Cultures. Hart: Oxford, 70–92. Crawford, A. (1997) The Local Governance of Crime. Oxford: Clarendon Press. Crawford, A. and Newburn, T. (2003) Youth Offending and Restorative Justice. Cullompton: Willan. Croissant, A. (2004) ‘Changing Welfare regimes in East and Southeast Asia: Crisis, Change and Challenge’, Social Policy and Administration, 38, 504–24. del Frate, A. (1998) Victims of Crime in the Developing World. Rome: UNICRI. Downes, D. and Morgan, R. (2002) ‘The Skeleton in the Cupboard: The Politics of

Whither victim policies? A view from the crossroads 109 Law and Order at the Turn of the Millennium’, in M. Maguire, R. Morgan and R. Reiner (eds) The Oxford Handbook of Criminology. 3rd edn. Oxford: OUP, 286–321. Duff, R.A. and Green, S.P. (eds) (2005) Defining Crimes. Oxford: Oxford University Press. Elias, R. (1983) Victims of the System. New Brunswick, NJ: Transaction Books. —— (1993) Victims Still: The Political Manipulation of Crime Victims. Newbury Park: Sage. Englehart, N.A. (2000) ‘Rights and Culture in the Asian Values Argument: The Rise and Fall of Confucial Ethics in Singapore’, Human Rights Quarterly, 22, 548–68. Erez, E., and Sebba, L. (1999) ‘From Individualization of the Offender to Individualization of the Victim’, Advances in Criminological Theory, 8, 171–98. Fattah, E.A. (1999) ‘From a Handful of Dollar to Tea and Sympathy: the Sad History of Victim Assistance’, in J.J.M. van Dijk, R.G.H. van Kaam and J-A.M. Wemmers (eds) Caring for Crime Victims. Monsey, NY: Criminal Justice Press, 187–206. Feeley, M. (1973) ‘Two Models of the Criminal Justice System: an Organizational Perspective’, Law and Society Review, 407–25. Feinberg, J. (1984) Harm to Others. New York: Oxford University Press. Freeman, M.D.A. (ed.) (1985) Lloyd’s Introduction to Jurisprudence, 5th edn. London: Stevens. Friedman, K., Bischoff, H., Davis, R. and Person, A. (1982) Victims and Helpers: Reactions to Crime. Washington, DC: Department of Justice. Friedman, L. (2001) ‘Some Comments on Cotterrell and Legal Transplants’, in D. Nelken and J. Feest (eds) Adapting Legal Cultures. Hart: Oxford, 93–8. Garkawe, S. (2001) ‘The Victim-Related Provisions of the Statute of the International Criminal Court: A Victimological Analysis’, International Review of Victimology, 8, 269–89. —— (2004) ‘Revisiting the Scope of Victimology’, International Review of Victimology, 11, 275–94. Garland, D. (1996) ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’, British Journal of Criminology, 36, 445–71. Giddens, A. (1998) The Third Way, Cambridge: Polity Press. Gobert, J.J. (1977) ‘Victim Precipitation’, Columbia Law Review, 77, 511–53. Gottfredson, M.R. and Gottfredson, D.M. (1988) Decision Making in Criminal Justice: Towards the Rational Exercise of Discretion. New York: Plenum. Gray, K.R. (2004) ‘Evidence before the I.C.C.’, in D. McGoldrick, D.P. Rowe and E. Donnelly (eds) The Permanent International Court: Legal and Policy Issues. Oxford: Hart. Greenberg, M.S. and Ruback, R.B. (1992) After the Crime: Victim Decision Making, New York: Plenum. Griffiths, J. (1970) ‘Ideology in Criminal Procedure: A Third Model of the Criminal Process’, Yale Law Journal, 79, 359–417. Guarnieri, C. (1997) ‘Prosecution in Two Civil Law Countries: France and Italy’, in D. Nelken (ed.) Comparing Legal Cultures. Aldershot: Dartmouth, 183–93. Harding, A. (2002a) ‘Comparative Public Law: Some Lessons from South East Asia’, in A. Harding and E. Orucu (eds) Comparative Law in the 21st Century. Hague: Kluwer, 249–66.

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—— (2002b) ‘Global Doctrine and Local Knowledge: Law in South East Asia’, International and Comparative Law Quarterly, 51, 35–53. Harding, C., Swart, B., Jorg, N. and Fennell, P. (1995) ‘Conclusion: Europeanization and Convergence: The Lessons of Comparative Study’, in Fennell, P., Harding, C., Jorg, N. and Swart, B. (eds) Criminal Justice in Europe: A Comparative Study. Oxford: Clarendon Press, 379–86. Henderson, L.N. (1985) ‘The Wrongs of Victims’ Rights’, Stanford Law Review, 37, 937–1021. Holstein, J.A. and Miller, G. (1990) ‘Rethinking Victimisation: An Interactional Approach to Victimology’, Symbolic Interaction, 13, 103–22. Jabbour, E.J. (1996) Sulha: Palestinian Traditional Peacemaking Process. Montreal: House of Hope Publications. Johnstone, G. (2002) Restorative Justice: Ideas, Values, Debate. Cullompton: Willan. Joutsen, M. (1987) The Role of the Victim in European Criminal Justice Systems. Helsinki: HEUNI. JUSTICE (1998) Victims in Criminal Justice, London: Justice. Lele, A. (2004) ‘State Hindutva and Singapore Confucianism as Responses to the Decline of the Welfare State’, Asian Studies Review, 28, 267–82. Leverick, F. (2004) ‘What Has the ECHR Done for Victims? A United Kingdom Perspective’, International Review of Victimology, 11, 177–200. McCoy, C.S. (1993) Politics and Plea Bargaining. Philadelphia: University of Pennsylvania Press. McShane, M.D. and Williams, F. (1997) ‘Radical Victimology: A Critique of the Concept of Victim in Traditional Victimology’, in M.D. McShane and F. Williams (eds), Victims of Crime and the Victimization Process, New York: Garland, pp. 210–23. Menlowe, M.A. and McCall Smith, A. (eds) (1993) The Duty to Rescue. Aldershot: Dartmouth. Milner, A. (1999) ‘What Happened to Asian Values?’, in G. Segal and D. Goodman (eds) Towards Recovery in Pacific Asia. New York: Routledge. Minow, M. (1993) ‘Surviving Victim Talk’, UCLA Law Review, 40, 1411–46. Nelken, D. (ed.) (1997) Comparing Legal Cultures. Aldershot: Dartmouth. —— (2002) ‘Legal Transplants and Beyond: Of Disciplines and Metaphors’, in A. Harding and E. Orucu (eds), Comparative Law in the 21st Century. Hague: Kluwer, 19–34. Nelken, D. and Feest, J. (2001) Adapting Legal Cultures. Oxford: Hart. Newburn, T. and Sparks, R. (eds) (2004) Criminal Justice and Political Cultures: National and International Dimensions of Crime Control. Cullompton: Willan. Newman, G. (1976) Comparative Deviance. New York: Elsevier. O’Connor, I. (1997) ‘Models of Juvenile Justice’, in A. Borowski and I. O‘Connor (eds) Juvenile Crime, Justice and Corrections. Melbourne: Longman, 229–50. Packer, H. (1968) The Limits of the Criminal Sanction. Stanford: Stanford University Press. Ramraj, V.V. (2004) ‘Four models of due process’, International Journal of Constitutional Law, 2, 492–524. Renteln, A. (2004) The Cultural Defense. Oxford: OUP. Roach, K. (1999), ‘Four Models of the Criminal Process’, Journal of Criminal Law and Criminology, 89, 671–716.

Whither victim policies? A view from the crossroads 111 Rock, P. (2002) ‘On Becoming a Victim’, in C. Hoyle and R. Young (eds) New Visions of Crime Victims. Oxford: Hart. Rogers, J. (2003) ‘Applying the Doctrine of Positive Obligations to the European Convention of Human Rights to Domestic Substantive Criminal Law in Domestic Proceedings’, Criminal Law Review, 690–708. Sebba, L. (1980) ‘Mitigation of Sentence in Order to Deter?’ Monash Law Review, 6, 268–93. —— (1996) Third Parties: Victims and the Criminal Justice System, Columbus, OH: Ohio State University Press. —— (1999a) ‘The Creation and Evolution of Criminal Law in Colonial and Post Colonial Societies’, Crime, History and Societies, 3, 71–90. —— (1999b) ‘Victims’ Rights – Whose Duties?’, in J.J.M. van Dijk, R.G.H. van Kaam and J-A.M. Wemmers (eds) Caring for Victims. Monsey, NY: Criminal Justice Press, 141–57. —— (2000) ‘The Individualisation of the Victim: From Positivism to Postmodernism’, in A. Crawford and J. Goodey (eds) Integrating a Victim Perspective in the Criminal Justice System. Aldershot: Dartmouth, 55–76. —— (2001) ‘On the Relationship between Criminological Research and Policy: The Case of Crime Victims’, Criminal Justice, 1, 25–56. Shapland, J., Willmore, J. and Duff, P. (1985) Victims in the Criminal Justice System. Aldershot: Gower. Sims, B., Yost, B. and Abbott, C. (2005) ‘Use and Non-Use of Victim Services Programs: Implications from a Statewide Survey of Crime Victims’, Criminology and Public Policy, 4, 361–84. Spinellis, D. (1997) ‘Victims of Crime and the Criminal Process’, Israel Law Review, 31, 337. Tay, S.S.C. (1995–6) ‘Human Rights, Culture, and the Singapore Example’, McGill Law Journal, 41, 743–80. Teubner, G. (1998) ‘Legal Irritants: Good Faith in British Law or How Unifying Ends Up in New Divergencies’, Modern Law Review, 61, 11–32. Thibaut, J. and Walker, L. (1975) Procedural Justice, Hillsdale: Lawrence Erlbaum. UNODCCP (United Nations Office for Drug Control and Crime Prevention). (1999) Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. New York: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention. von Hirsch, A. (1976) Doing Justice: The Choice of Punishments. New York: Hill and Wang. —— (1985) Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals. New Brunswick, NJ: Rutgers University Press. von Hirsch, A., Roberts, J., Bottoms, A.E., Roach, K. and Schiff, M. (eds) (2003) Restorative Justice and Criminal Justice: Competing or Reconciliable Paradigms? Oxford: Hart. Walklate, S. (1996) ‘Can There be a Feminist Victimology?’ in Davies, P., Francis, P. and Jupp, V. (eds) Understanding Victimisation. Newcastle: Northumbria Social Science Press, 14–29. Waller, I. (2003) Crime Victims: Doing Justice to their Support and Protection. Helsinki: HEUNI.

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Watson, A. (1974) Legal Transplants: An Approach to Comparative Law. Edinburgh: Scottish Academic Press. —— (1993) Legal Transplants, 2nd edn. Athens: University of Georgia Press. Wolfgang, M.E.W. (1982) ‘Basic Concepts in Victimology Theory: Individualisation of the Victim’, in H.J. Schneider (ed.), The Victim in International Perspective. Berlin: de Gruyter, 47–58. Yanay, U. (1994), ‘Assistance to Civilian Casualties of Hostile Actions’, Social Security, 3, 137–63. Young-Rifai, M.A. (1982) ‘Victimology: A Theoretical Framework’, in H.J. Schneider (ed.) The Victim in International Perspective, Berlin, pp. 65–79. Zweigert, K. and Kotz, H. (1977) An Introduction to Comparative Law, Vol. 1: The Framework. Amsterdam: North Holland Publishing Co.

Legislation and treaties Standard Minimum Rules for the Treatment of Prisoners. (1957) Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53.

5

The development of victim support and victim rights in Asia Tatsuya Ota

The historical development of victimology in Asia The spread of victimology in Asia The discipline of victimology was introduced into Asian countries at a relatively early stage of its history. Dr Osamu Nakata, of the Tokyo Medical and Dental University, introduced victimology into Japan for the first time, by translating Mendelsohn’s article “La Victimologie” in 1958, two years after the original article appeared (Nakata 1958). Seven years later, Dr Koichi Miyazawa of Keio University published the first book in the field of victimology in Japan, Basic Theory of Victimology (Miyazawa 1965), which greatly influenced the subsequent development of victimology in Japan. Victimology had already been brought to Taiwan in the 1960s. Professor Chang Kan Mei of Taiwan University wrote an article titled “The Importance of Victimology” in 1965, after studying at Tokyo Medical and Dental University, under the supervision of Professor Shufu Yoshimasu, who maintained a friendship with Mendelsohn (Chang 1965). This was the first article focusing on victimology in Taiwan, which was then followed by a series of articles written by her. India was another country where victimology was introduced at an early stage. An article on compensation orders had already been published there in 1965, and a seminar on “Criminal Law and Change of Modern Society”, held in 1969, contained a session on compensation for crime victims (Chockalingam 1988; Singh, 1985). It must be noted here that an Indian participant made a presentation on compensation for victims at the First International Symposium on Victimology, held in Israel in 1973 (Sethna 1974). This shows the high level of interest in victimology at that time in India. In the 1970s, some studies on victimization were conducted in India, especially on victims of dacoity (gang robbery) (Singh 1978, 1985). In the late 1970s, victimology gradually spread throughout Asia. For example, in Singapore, a thesis entitled “Criminal and the Victim” was written in 1975 (Hee 1975). In the same year, Professor Prathan Watanavanich of Thammasat University in Thailand examined the feasibility of State compensation, by analyzing the systems of England and New Zealand in his

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article (Watanavanich 1977). In Indonesia, the victim’s involvement in criminal incidents, was chosen as a theme of one session at the Third Seminar on Criminology held by Diponegoro University in 1976, where Professor Arif Gosita, University of Indonesia, as a keynote speaker of the session, insisted on the need for the protection of victims’ rights, after touching on some fundamental topics of victimology (Gosita 1977). Moreover, victimization surveys have been conducted since 1980 in Asian countries. For example, a victimization survey was carried out in Thailand in 1983, with samples of Bangkok citizens (Piumsombun 1992). Nationwide victimization surveys were conducted in Indonesia in 1982, 1991 and 1994, as a part of its National Economic and Social Survey (Central Statistics Bureau 1985, 1993, 1995). In Hong Kong, similar victimization surveys were conducted on crime and its victims (Census and Statistics Department 1990, 1995, 1999). In Korea, a series of victimization surveys was also conducted by the Korean Institute of Criminology (Choi and Ki 1997; Choi et al. 2003; Choi and Park 1995; Choi et al. 2002; Park and Choi 1999; Shim and Park 1992). In addition, victimization surveys were conducted in Japan, as a part of the International Crime Victimization Survey (JUSRI 1990, 1993; Research and Training Institute of the Ministry of Justice 2000a, 2002). Victimization surveys were also conducted in Taiwan, by the Crime Prevention Institute of the Central Police University (Hsu et al., 2000) and by the National Taiwan University (Hsu et al., 2005). A comprehensive survey sampling crime victims was conducted in Japan, by members of the Japanese Association of Victimology, from 1991 to 1992 (Miyazawa et al. 1996). This victim survey marked a milestone in the history of victimology, as well as victim support in Japan, in that the final report triggered the subsequent victim support scheme set up by the National Police Agency. Following this victim survey, some important victim surveys that enquired into the plight and the needs of crime victims were conducted by the Ministry of Justice (Research and Training Institute of the Ministry of Justice 2000b) and the Crime Victim Survey Group in cooperation with the National Police Agency (Crime Victim Survey Group 2003). A victim survey, with a sample of crime victims, was also conducted in Taiwan, as a part of a crime victimization survey in 2005 (Hsu et al. 2005). Through these surveys, data on victims and victimization has been collected, which is crucial in improving the victim support system as it furthers understanding of victims’ plight and needs. Hopefully, a uniform victim survey will be designed and periodically conducted with the cooperation of many Asian countries (Ota 1995). Academic societies of victimology in Asia It was in the 1990s that an academic society of victimology was set up in Asia. The Japanese Association of Victimology (JAV) was founded on the initiative of Dr Koichi Miyazawa in 1990, as the first academic society of

The development of victim support and victim rights 115 victimology in Asia. The JAV holds an annual conference every year and has published a Japanese Journal of Victimology every year since its establishment, which has given enormous impetus to the victim movement in Japan. At present, more than 350 academics and practitioners from various fields such as law, sociology, medicine and psychology are registered as members. Two years later, the Korean Association of Victimology (KAV) was set up by the pioneering endeavors of a lawyer, Mr Kun-Sik Min, who maintains a firm friendship with the first president of the Japanese Association of Victimology, Dr Koichi Miyazawa. The KAV holds biannual conferences in conjunction with the Korean Institute of Criminology. The Korean Journal of Victimology, as the sole academic journal on victimology in Korea, carries a number of important articles on victimization, victim support and victims’ status in the justice system. The Indian Society of Victimology (ISV) was also established in 1992, by Professor K. Chockalingam of Madras University, comprising of social scientists, lawyers and criminal justice personnel. Since 1994, a national conference has been held every two or three years, with the themes of victim compensation, juvenile victims and cyber crimes. Especially of note, is that the ISV has been playing a very important role in the practice of victim assistance, by drafting a Bill for State compensation and presenting it to the government. These three societies of victimology are now active in Asia. In other Asian countries, academic conferences on criminal victimization or victim support are held on an irregular basis by related academic societies or research groups. In Taiwan, the Taiwan Society of Criminology took up victim-related topics in its annual conferences, such as domestic violence (2001, 2002), victims of snatch theft (2002), child victims (2003), female victims (2004), lifestyle and victimization (2004) and business enterprises as a victim (2005), even though an independent society for victimology has not been founded in Taiwan yet. In Indonesia, a seminar on victimology has been held irregularly since 1985, by Airlangga University, upon Professor J.E. Sahetapy’s initiative (Ota 1994; Sahetapy 1995). However, this seminar was discontinued in the latter half of the 1990s, and failed to develop into a nationwide academic association.

Reparation for damages in criminal proceedings Compensation orders and restitution orders Crime victims may file lawsuits for damages against offenders in tort. As in most countries, however, an effort to recover financial loss through a civil suit is largely fruitless, due to the offender’s impecuniosity and the timeconsuming and costly procedure involved.

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Under the influence of the British, the tradition of the restitution order or compensation order, where the court may order convicted offenders to pay restitution to the victims, in addition to, or in lieu of punishment, was established in Hong Kong, India, Malaysia, Singapore and Brunei. However, this conventional system was scarcely used in these Asian countries. A survey of judges and magistrates in Singapore revealed that their reluctance to make a compensation order is mainly due to lack of guidelines and precedents, the prosecutors’ failure to ask for restitution orders, unreasonable delays of trials, and offenders’ impecuniosity (Yeo 1984). The Indian Supreme Court held, in Hari Kishan and State of Haryana v. Sukhbir Singh and others (1988), that all courts should exercise the power to award compensation to crime victims liberally so as to meet the victims’ needs and to meet the ends of justice (Chockalingam 1993). Furthermore, the Hong Kong Department of Justice, as can be seen from the Statement of Prosecution Policy and Practice in 2002, the Victims of Crime Charter in 1996 (revised in 2003) and the Statement on the Treatment of Victims and Witnesses in 2004, has launched a victim-sensitive prosecution policy, requesting prosecutors to ask the court for a compensation order or restitution order, by submitting information on the loss or harm caused to victims, by the crime. In spite of these efforts, a restitution order or compensation order does not necessarily work well in improving the economic plight of victims, mainly due to some institutional problems and the offenders’ impecuniosity. Civil actions (actions civiles, Adhäsionsverfahren) and criminal mediation Civil action, or action civile, has been conventionally established in Thailand and Taiwan, which follow the continental legal system. The civil action in Thailand is unique, in that the court may pass a sentence on the civil liability of a defendant, irrespective of a guilty or not guilty verdict, and prosecutors may claim damages on behalf of victims in prosecutions, if the victims are entitled to damages, in certain types of offences, such as robbery, larceny, extortion, fraud or embezzlement. However, Thai scholars have criticized this system, saying that civil action is toothless, because of the fundamental problem of defendants’ impecuniosity (Watanavanich 1986). The civil action was newly introduced into Indonesia by the Indonesian Criminal Procedure Code of 1981, which was enacted as the first Criminal Procedure Code to replace Dutch colonial legislation. The Indonesian Supreme Court set some precedents governing civil actions, after the implementation of the Criminal Procedure Code (Putusan Reg. No. 1457 K/ Pid/1991), but a survey reported that few civil actions were lodged, with the exception of traffic negligence cases (Muladi 1989). Some legal problems concerning jurisdiction and the scope of damages are pointed out as the reason for the low number of civil actions (Harahap 1986), but in fact the

The development of victim support and victim rights 117 main reasons are the lack of offenders’ ability to pay damages, as well as the citizens’ lack of awareness of the system (Firganefi 1990). In the Philippines, as far as criminal procedure is concerned, a civil lawsuit is implicitly regarded as filed when a criminal prosecution is lodged unless victims explicitly waive civil action, reserve the right to file it independently or have already filed it. Barring such exceptions, victims are entitled to attend the prosecution against the defendant through their lawyers, for the purpose of seeking damages. Unfortunately, however, the practice in this country is unclear. Conversely, in Taiwan and Korea, civil actions are relatively more often used, than in other Asian countries. In Taiwan, where civil actions are governed by the Code of Criminal Procedure, the number of civil actions newly lodged in district courts range from 7,000 to 9,000 every year (7,143 in 2004) (Judicial Yuan 2005). But about half of the cases were transferred to civil courts, mainly because the cases were too complicated to be processed within a short period and about 30 percent of the civil actions were dismissed by the court or withdrawn by plaintiffs. The number of cases where the plaintiffs (victims) won the suits or settled with defendants amounted only to 10 to 15 percent of all suits. Korea also newly established a civil action system, in 1981, by the enactment of the Litigation Promotion Act of 1981. The criminal courts may pass a civil sentence to order defendants to pay for damages upon a claim by the victims or ex officio, but the cases where the courts took the latter path are few. In recent years, claims for damages through civil actions have been on the increase. In 2004 over 3,000 claims were filed in the courts of all instances, and about 20 percent of them were approved (Supreme Court Administration 2005). The amount of damages per case amounted to 74 million won (US$77,000). Korean commentators, however, have criticized the civil action system in Korea, arguing that it is restricted only to cases where the assessment of damages is easy enough for the criminal trial not to be delayed, and that the damages awarded through this procedure are restricted to direct and physical damage suffered by victims, and medical expenses (Ha 1993; Park et al. 2005; Ri 1991). The Litigation Promotion Act of 1981 was amended in November 2005, so that solatium for mental pain and suffering can be awarded through a civil action during a criminal trial. Moreover, a new procedure was introduced by this amendment, where both a defendant and a victim can jointly request a criminal court, pending the trial of the case, to add the agreement to the trial record, if they reach a settlement of a civil dispute relating to the said criminal case. In such a case, the trial record has the same effect as an in-court reconciliation, so the victim can follow the procedure of forcible execution without a civil lawsuit for damages, if the defendant does not keep the agreement voluntarily. Defendants, as well as persons standing surety for them or undertaking joint and several liabilities, also join the application.

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A similar procedure was first introduced in Japan, when the Crime Victims Protection Act was enacted in 2000 (Matsuo 2001; Tatsuoka 2000). Some commentators call this procedure “criminal mediation.” This is not incorrect but it is misleading because it is totally different from victimoffender mediation or victim-offender reconciliation programs based on the restorative justice ideal, in the sense that neither judges nor other criminal justice personnel are involved in the mediation between defendants and victims; it is left entirely to the parties. However, this procedure is quite unique in the Japanese criminal justice system, because this kind of procedure was believed to conflict with the principle of the separation between civil and criminal matters, according to the Japanese method of interpretation of this principle. Nevertheless, this new criminal mediation procedure is, in practice, utilized by many victims, since the coming into force of the Act (Emi 2001; Ministry of Justice 2004).

Victim compensation Establishment of victim compensation schemes in Asia Victim compensation systems have been introduced in some Asian countries since the 1970s, and especially in the 1980s, against the background of ineffective conventional measures, as well as worldwide trends in victim compensation legislation. The first publicly funded compensation scheme in Asia was set up in 1973, in Hong Kong. The second State compensation system established in Asia was the Japanese Crime Victim Benefits Payment System, established in 1980. The Japanese Parliament passed the Crime Victim Benefits Payment Act in that year, which was subsequently amended in 2001, to extend its scope of application drastically. Korea followed these two countries in 1987, when the Korean government enacted the Crime Victim Aid Act; it came into force in 1988. Surprisingly, in the same year but before that legislation, the Korean government amended its national constitution so that crime victims could obtain assistance from the State. A national constitution which prescribes assistance for victims is quite significant, although there are many states in the United States of America which succeeded in amending their state constitutions to add some provisions regarding victims’ rights. The Crime Victim Aid Act was amended in 2005 to lessen the requirements for compensation. In Thailand, an epoch-making provision on victims’ rights was inserted into their new constitution, which was enacted in 1987. It provides that victims who were killed or suffered physical or mental damage due to crime, or their bereaved families, are entitled to compensation from the State. Based on that provision, the Thai government enacted the Act for the Granting of Compensation to Aggrieved Parties and the Accused in a

The development of victim support and victim rights 119 Criminal Case in 2001, which came into force in 2003. This new piece of legislation aims to provide compensation, not only to victims of violent crimes, but also to innocent defendants who were found not guilty, or whose prosecutions were withdrawn. The background to this development is that there appeared to be no end of false charges against innocent persons at that time; Thailand was also making a transition to democracy, after the 1992 Bloody May Incident, when the present constitution and this Act were drafted (Ota 2003c). This kind of legislation can be also seen in the Philippines. A Filipino compensation statute (Republic Act No. 7309) provides compensation to victims of violent crimes, as well as persons unjustly accused, convicted and imprisoned, and subsequently released by virtue of a judgment of acquittal, or persons unjustly detained and released without being charged. This type of legislation could be argued to be indirectly related to victim support, but the fact of the establishment of a victim compensation system in the Philippines is of special significance for the development of victim assistance in countries facing critical public fiscal conditions, since a State compensation system had not been previously established in an “economically developing country,” as the government of such countries lacked a sufficient budget for funding such schemes. Notwithstanding that the amount of compensation and the number of beneficiaries are still limited, the victim compensation scheme in the Philippines is of significance in this sense. In Taiwan, a victim compensation scheme was established by the Crime Victims Protection Act of 1998. When the Bill was submitted to Parliament, its aim was only to award compensation to crime victims. This was expanded into a comprehensive piece of victim protection legislation, by the addition of some provisions on the establishment of victim support organizations, through debates in Parliament (Hsu 2000; Tsai 2002). As of early 2006, victim compensation systems are operating in six jurisdictions in Asia, namely, Hong Kong, Japan, Korea, the Philippines, Taiwan and Thailand. The state of Tamil Nadu in India established a victim assistance fund in 1995; however, it is not a nationwide compensation system, but is applicable only in the said state. A Victim (Criminal Injury) Assistance Right Bill was prepared by the Indian Society of Victimology as an academic draft, and was submitted to the Indian government for reference in 1997, but it has not been brought into Parliament yet. The character of victim compensation The benevolent character of compensation is similar in Japan, Korea and Hong Kong, where compensation can be paid according to the gravity of injury suffered by victims, except for interim maintenance grants in Hong Kong, and serious injury and disease benefits in Japan. In these three countries, victims can be paid benefits, irrespective of the size and the breakdown

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of their expenditures, and the victims can use the benefits paid, for all purposes. The compensation system of these three countries may be referred to as the “benevolent model.” Until 2006, the Korean system adopted the “social welfare model” of victim compensation, because victims were eligible for compensation, only if they found it difficult to maintain their livelihoods (Park 1995). However, this requirement was abolished when the Crime Victim Aid Act was amended in 2005. On the other hand, the compensation system in Taiwan is of a moderately reparative nature, not only because the Taiwanese Crime Victims Protection Act provides that crime victim compensation is pecuniary in nature, to make reparation for damages incurred by persons being killed or seriously injured as a result of crime victimization, but also because victims are supposed to apply for medical or funeral expenses, loss of benefits or maintenance for dependants, within certain limits (Ota 2001b). In this sense, the victim compensation of Taiwan may be called the “reparative model.” The compensation systems of Korea and Taiwan resemble that of Japan, since the latter was referred to and examined by Korean and Taiwan legislators in drafting their bills. However, many discrepancies can be found amongst the three systems. In Korea and Taiwan, only a serious disability – namely, first to third degrees of disability or serious injuries – can be covered by the respective compensation systems, whereas eligibility for disability benefits was expanded from the fourth degree to the fourteenth degree of disability in Japan when the Crime Victim Benefits Payment Act was amended in 2001. Moreover, “serious injury and disease benefits” were established as new types of payment categories; these benefits are payable to non-disabled victims who receive treatment for more than one month, including more than three days of in-patient treatment. In Hong Kong, injury grants are payable, where the injury gives rise to at least three days of loss of earnings or earning capacity. Victims of sexual violence are eligible for State compensation in Hong Kong, the Philippines and the state of Tamil Nadu in India. In particular, in Hong Kong a certain type of grant for rape victims can be increased up to 100 percent. On the other hand, victims of sexual offences who do not suffer physical damage are hardly eligible for disability benefits in Japan and Korea, because a strict requirement is set for victims to be eligible for compensation for psychological injury or trauma. But, as far as serious injury and disease benefits are concerned, the eligibility was expanded in 2006 to victims who lost at least three days’ work capacity due to mental disorder. In Taiwan, victims of sexual offences, who suffer only psychological damage, find it difficult to be paid compensation according to their Crime Victims Protection Act, but it must not be overlooked that financial assistance can be provided by the local government, according to the Taiwanese Code of Sexual Assault Crime Prevention. The Taiwanese compensation system is also unique, in that victims of negligence cases are also eligible for compensation. This is mainly because

The development of victim support and victim rights 121 in Taiwan, where there was no compulsory vehicle insurance system available at that time, the legislators, when drafting the bill, believed that victims of traffic accidents should also be compensated under the crime victim compensation scheme (Chang 1995). However, a finding of negligence is sometimes difficult to make when examining an application for compensation from accident victims (Ota 2001b). In Hong Kong, where some reported cases involved victims who were injured due to objects falling from buildings or apartments, victims were paid an injury grant as victims of a “deliberate act or carelessness,” although “accidents” are excluded from the object of compensation (Criminal and Law Enforcement Injuries Compensation Boards 2000; Ota 2001c). In Japan, certain victims of domestic violence are not, in principle, eligible for compensation (save for some exceptions), even now that the regulation has been amended, for the following reasons: 1

2 3

paying benefits to victims of domestic violence is inappropriate for the purpose of the crime victim benefits system, which is based on the concept of social bonds; there is a risk that offenders will eventually benefit from the benefits paid to victims, if they live together afterwards; it is not appropriate to apply the crime victim benefits system to the parties who have the obligation of reciprocal help, according to the civil law, because the original aim of the system was to support crime victims who suffered contingent damage as the result of crimes (Ohya 1977; Saito 1977 ; Okumura 2000; Higashikawa 2001).

Except for the second one, these reasons are not convincing (Ota 2001d). The Korean benefits system is similar (Cho 1994). In contrast, the compensation system of Taiwan leaves room for offering benefits to victims injured by family members, notwithstanding that the Crime Victims Protection Act of Taiwan has provisions which are similar to the Crime Victim Benefits Payment Act of Japan (Hsu 2000). In Hong Kong, compensation is exceptionally payable to victims who have cohabited with offenders as family members only if the offenders are prosecuted and if the compensating agency is of the opinion that the payment of compensation is helpful for the beneficiaries, including minors. The budget for victim compensation varies from one country to another. The compensation systems of Korea and Taiwan are funded by the budget of the Ministry of Justice, whereas that of Hong Kong is funded by the budget of the Social Welfare Department. In Japan, funds for the crime victim benefits system come from the budget of the National Police Agency. However, the problem of a tight budget for victim compensation is a common concern for all Asian countries. Therefore, in Taiwan, 25 percent of the total remuneration for prisoners/detainees, or property confiscated from offenders, is appropriated for the special fund for victim compensa-

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tion. For two years since the implementation of the system, US$4 million dollars were allocated to the fund (Ota 2001b). Moreover, Taiwan’s government is actively trying to demand reimbursement from offenders, where the government has paid compensation to the victims. Such provisions on reimbursement from offenders, are also prescribed in the Crime Victim Benefits Payment Act of Japan, as well as the Crime Victim Aid Act of Korea, but these provisions are hardly made use of in Japan and Korea, mainly due to the offenders’ impecuniosity, as well as this being a troublesome and timeconsuming procedure. By contrast, Taiwanese prosecutors, as the representatives of the government, are eager to collect damages from offenders as reimbursement for the compensation which has been paid to the victims. This practice is based on the fundamental policy of the Taiwanese government (especially the Parliament) that it is necessary to let offenders assume responsibility for the damage they have inflicted, and that the government has the obligation to collect the money paid to victims on behalf of offenders. Nevertheless, the practice of reimbursement is not easy in Taiwan either. The amount of damages which have been reimbursed is less than 1 percent of the total compensation paid to victims. The main causes are, unsurprisingly, the offenders’ impecuniosity and the heavy caseload handled by prosecutors.

Victim notification The early victim movement in Asia was primarily centered on State compensation for crime victims. However, there have been new trends in victim assistance since the 1990s. Some countries have initiated reforms to enhance the legal status of crime victims in criminal proceedings, while others have launched measures to protect them from secondary victimization caused by insensitive treatment during the criminal justice process. A reform of particular importance is that of victim notification, where victims are informed of the progress of the criminal proceedings. In Japan in 1996, the National Police Agency launched a policy, known as the Basic Policy Concerning Assistance for Supporting Crime Victims, which set forth basic principles for victim support by the police (Tamura 1996). One of the victim support schemes established by the police was the “victim liaison system,” where victims of personal crimes would be informed of the progress of the police investigations, the apprehension and identification of suspects, the name and address of the prosecutors’ office to which the case was referred, and so on (Abe 1999; Victim Policy Research Group 2000). For that purpose, particular police officers are assigned as “liaison police officers” in each police station. These officers are in charge of responding to inquiries from victims, together with the investigation officers in charge of the case, as well as making arrangements or offering guidance in matters relating to victims. The “victim liaison system” was later endorsed by the Criminal Investigation Rule, which was amended in 1999 (Kurokawa 2000).

The development of victim support and victim rights 123 This initiative by the Japanese police was followed by the Ministry of Justice and the prosecutors’ offices, which initiated a “victim notification system” on a nationwide level in 1999 to notify victims of the progress of criminal proceedings upon request from victims, family members or their lawyers, especially the final decision regarding the prosecution of the offender, a summary of alleged offences, the main reasons for non-prosecution, custody and bail of offenders, the trial schedule, sentences and appeals (Yazawa 1999). “Victim support staff” were selected from retired assistant prosecutors or officials at all prosecutors’ offices in order to provide a variety of assistance, including notification services (Tanojiri 2001). Furthermore, the victim notification system was reformed in 2001, to cover information on the release of inmates from prison. Prior notification to victims of the release of inmates was also allowed in the “re-victimization prevention system,” which was established by the National Police Agency during the same year. In the same year that the Basic Policy concerning Assistance for Crime Victims was launched by the Japanese National Police Agency, the Victims of Crime Charter was published by the Department of Justice of Hong Kong, which ensured that the victim had the right to be treated with courtesy and respect, the right to a proper response to complaints of crime, the right to information, the right to proper facilities at the courts, the right to be heard, the right to seek protection, the right to privacy and confidentiality, the right to a prompt return of property, the right to support and aftercare and the right to seek compensation. In particular, the Victims of Crime Charter states that a victim should be informed of the progress of the case, including the progress of the investigation, the decision not to prosecute the offender, the date and place of the hearing, the final disposal of the case and the offender’s pending release or escape from penal custody. In Korea, the Supreme Prosecutor’s Office initiated a reform in 2002, setting up an “interim notification system,” which requires prosecutors to account for the progress of the investigation, to criminal complainants, in the case where they cannot finish the investigation within three months of the complaint being lodged (Ota 2005). The Supreme Prosecutor’s Office also started a “trial notification system” in 2001, to inform crime victims of the first trial date (Kim 2005). Actually, the system had been implemented on a practical level in some district prosecutors’ offices, but was expanded nationwide, by the setting up of a uniform standard. According to the Guideline on the Protection and Assistance of Crime Victims, which was launched subsequently in 2004, prosecutors are required to inform crime victims or their families of the final decision regarding prosecution of the offender, the trial schedule and the pending court, sentencing, appeals and the release of inmates, including parole (Cho 2005). Furthermore, in January 2006, a Criminal Procedure Code Amendment Bill was introduced by the Parliament of Korea, after a lively debate in the Prosecution Reform Committee, the Judiciary Reform Committee and the Judicial System

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Reform Promotion Committee. The amended Criminal Procedure Code includes a new provision requiring prosecutors to notify victims of the prosecution, the trial schedule, sentencing and the confinement of offenders. In Korea, victim support policies have mainly been enforced by the Public Prosecutors’ office, because prosecutors are legally deemed to be the investigators of criminal cases, with police officers as their assistants. However, the National Police Agency of Korea embarked in 2004 on the creation of a victim support system by establishing a Regulation for Crime Victim Protection and the Crime Victim Protection Promotion Committee, to chart a victim support policy, assess the practice of victim support at the central level, and designate crime victim officials to construct a framework for victim support at the local level (Ota 2005; Yoon 2005). Subsequently, “victim supporters” (victim support officers) were designated in each police department and community police squad. They are to provide personal protection, escort services, consultation services and information to crime victims (National Police Agency 2004). Crime victims will find it much easier to access information about their cases and the progress of criminal proceedings, from the investigation stage to the offender’s release from prison, by the establishment of the abovementioned various notification systems in Asian countries. But crime victims are still not allowed to access some information on the progress of criminal proceedings. For example, in Japan victims cannot be notified of the release of juvenile offenders from juvenile training schools, on the ground that special considerations apply in the case of rehabilitation of juvenile offenders. Moreover, victims cannot be notified of parole hearings, the progress of community supervision, including the conditions which have been attached, and the parolee’s recidivism. This is also related to the present parole hearing system in Japan, where victims are not entitled to attend a parole hearing. But these dispositions are never irrelevant to the victims’ fate. Crime victims should also be notified of such matters, to a certain extent (Ota 2000a).

Protection of victims against secondary victimization Protection of victims during the investigation Due attention and care has not traditionally been bestowed to victims in the course of the criminal proceedings, especially during the investigation and trial stages. Such inappropriate treatment could cause secondary victimization, especially to sensitive victims such as victims of sexual offences and juvenile victims. Therefore, some Asian countries have initiated efforts to protect crime victims against secondary victimization, in and around the criminal proceedings. Among the countries in Asia, vigorous policies have been advanced in Japan and Korea in particular.

The development of victim support and victim rights 125 In Japan, the police, pursuant to one aspect of the Basic Policy Concerning Assistance for Crime Victims, have introduced a variety of protection schemes for victims, especially for victims of sexual offences (Tamura 1996; Yasuda 1996; Victim Policy Research Group 2000). Every prefectural police division is supposed to appoint a “sexual offence investigation guidance director” and “sexual offence investigation guidance officers” at the headquarters level, to offer general guidance in the investigation of sexual offences, to collect and analyze trends in sexual offences and to provide training of specialized officers. Female police officers are also assigned at the investigations unit for serious offences at major police departments; they are engaged in questioning female victims, collecting evidence, escorting victims to hospital or other places and liaising with victims, while taking appropriate care of the victims’ mental health and privacy. Certain police officers from each division, known as “designated victim support officers,” and night shift officers at the police department, also provide escort services, referral services, consultation and liaison services (Ohta 1999). Moreover, several reforms were undertaken by the Japanese police to protect victims’ privacy, and to alleviate their psychological burden during the course of investigations. These are: 1 2 3 4 5 6

an improvement in the attitude of policemen in accepting criminal complaints or crime information; the first approach to the crime scene being performed without the use of police uniforms or patrol cars; the taking of due care as to the time, place and attitude towards the questioning of victims or inspection of the crime scene; the introduction of a specialized limousine for questioning victims at the crime scene or taking victims to the necessary places; the installation of a victim suite for questioning victims at the police department; and the recruitment of counselors or provision of training in counseling for police officers.

As for the protection of juvenile victims, “juvenile guidance officials” and “juvenile counseling officials” provide counseling or guidance to them, and make arrangements concerning their environment at juvenile support centers placed all over the country (Ikeda 1999). Clinical psychologists, psychiatrists or counselors are commissioned by the police as “juvenile victim counseling advisors,” to give expert advice to officials involved in counseling or guidance. Many volunteers also cooperate with juvenile victim support efforts at a local level, as “juvenile victim supporters.” In Korea, some measures were established by the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof to protect victims of sexual offences during the course of investigations and trial, such as the

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provision of personal protection, press restrictions on the release of victims’ identities and the giving of witness testimony in camera. This Act was amended in 1997, to provide that the courts or investigating agencies may allow victims of sexual offences to be accompanied by trustworthy attendants when giving testimony at trial or questioning during the course of investigations. Moreover, the attendant system was amended in 2003 to oblige the court or investigating agencies to make trustworthy attendants accompany victims of certain sexual offences under 13 years old or mentally and/or physically handicapped victims. Video recording of statements made by such victims, and of the questioning process during investigations, was also introduced by the said 2003 amendment, after a half-year trial period, based on the Guideline on the Questioning of Victims of Sexual Offences. Following this legislation, electronic questioning rooms, equipped with recording devices and half-mirrors, were installed in each prosecutors’ office. Such recording devices were also equipped in each police department and some child abuse prevention centers. The Korean police force also started a victim support scheme in 2004 by establishing a Victim Protection Promotion Committee and a Victim Support Office in the National Police Agency, which was subsequently reorganized into the Human Rights Protection Center in the following year. In each regional police headquarters, “victim support officials” were appointed to establish victim support schemes and networks within the jurisdiction and 43,000 victim supporters were assigned from amongst law enforcement officials in police departments as well as in police squads. Victim supporters are supposed to provide certain services, such as initial consultations, information services, escort services, questioning of victims and personal protection, if needed, in addition to their original duties. Protection of victims during trial In Japan, by the year 2000, “victim support staff” were appointed, drawn from retired assistant prosecutors or staff at all prosecutors’ offices, to provide a variety of forms of assistance to crime victims (Tanojiri 2001). Taking advantage of their long years of previous expertise, victim support staff are in charge of consulting with crime victims, giving explanations and notifying them, escorting them to the courts or making arrangements for victim support, with related government agencies or private organizations. Moreover, in 2000, the Japanese Criminal Procedure Code was amended to establish some measures to protect witnesses testifying at a trial against secondary victimization, namely, the usage of witness attendants, shielded testimony by the use of a screen, closed-circuit televised testimony and the video-recording of testimony (Kamimura 2000; Kawamura 2000; Matsuo 2001). A witness attendant was allowed to accompany a witness, to alleviate the witness’s anxiety or tensions during the giving of testimony. In general, a family member of the victim or a victim support volunteer from a private

The development of victim support and victim rights 127 organization may be deemed appropriate as a witness attendant. However, the witness attendant cannot make objections directly against inappropriate questioning directed at the witness, or give advice to the witness regarding the latter’s testimony. It has been suggested that a “victim counsel” should be established; such a person could accompany the victim during the giving of testimony and protect the victim’s interests, as well as giving the victim legal advice outside the courtroom (Ota 2000b). In Japan, the giving of testimony via a screen placed between the defendant and the witness or via closed-circuit television (CCTV) was also introduced to criminal proceedings. In particular, the giving of testimony via CCTV was introduced for victim-witnesses in certain sexual offences, after a heated parliamentary debate over the right to confrontation (Taguchi 2000). Furthermore, testimony via CCTV can be recorded with the consent of the witness, and the recording is regarded as a part of the trial record and admissible as evidence in other criminal cases, where the said witness might be summoned to appear in the courtroom again, as a witness for the same case. This is one of the exceptions to the hearsay evidence rule. In Korea, such testimony via CCTV was first implemented under the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, for victims of sexual offences. Measures like the giving of testimony via CCTV and other protective measures for victims, like victim attendants and the giving of victim-witness testimony in camera, are scheduled to be expanded to all types of crime victims, by a Criminal Procedure Code Amendment Bill, introduced to Parliament in January 2006. Live-video testimony is also available in jurisdictions like Hong Kong, Singapore and Taiwan (Ota 2000c). In Hong Kong, the Criminal Procedure Ordinance was amended in 1995 to introduce live-video testimony for vulnerable victim-witnesses, i.e. child witnesses and sexual offence victims. In the case of child victims, interviews with police officers and social workers can be also recorded and submitted to the court as evidence. For this purpose, “vulnerable witness interview suites” have been set up outside police departments. Singapore’s Criminal Procedure Code, as amended in 1995, also allows certain witnesses, including children under 16 years old and witnesses of sexual offences, to testify via CCTV. In both countries, certain witnesses, such as child witnesses, can be accompanied by support persons to court.

The victim’s right to be heard Victim impact statements In the wake of victim impact statements introduced in the United States of America and some other jurisdictions, some Asian countries have also adopted the victim impact statement. Korea is the country which has been the most sensitive to this international development. In 1987, a clause on a

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victim’s right to give an impact statement at a trial, was inserted in the Constitution of Korea, as well as in the Criminal Procedure Code. A court must allow crime victims to make a statement regarding the case, as a witness, upon their request. A victim impact statement in Korea is a constitutional right possessed by the victim, but the court may disallow the making of statements by victims in certain circumstances; for example, where victims have already made enough statements on the same case during the investigations or trial stage and the court is satisfied that it is unnecessary for them to make additional statements, or where allowing them to make statements could give rise to a serious delay of the trial. In practice, this constitutional right has not often been exercised by victims, not because of these restraints, but because of a lack of publicity. In particular, in the 1990s, a heavy caseload faced by the court and limited time set aside for trial proceedings also made it more difficult for victims to make statements during the trial. However, the victim’s constitutional right to make a victim impact statement, is also of significance in another sense. In Korea, crime victims are allowed to file a constitutional petition with the Constitutional Court to revoke a prosecutor’s decision not to prosecute, on the ground that their constitutional right to make a victim impact statement and their right to equality were infringed due to the decision not to prosecute. In other words, the victim’s constitutional right to make a victim impact statement encompasses not only the right to make statements at trial, but also the right to request a trial or at least to have a proper investigation conducted. In Japan, victim impact statements were introduced into judicial proceedings, when the Criminal Procedure Code was amended in 2000 (Matsuo 2001). Unlike the situation in Korea, however, the making of victim impact statements in Japan does not involve testimony by witnesses, but is a special procedure for crime victims to express their feelings or views on the case. Therefore, victims making a statement need not be cross-examined by the defense lawyer, although the defense lawyer or judges can ask questions to clarify the meaning or relevance of the statement. Victim impact statements cannot be used for fact-finding, but can be taken into consideration in sentencing. Before, and even after the establishment of victim impact statements, some commentators in Japan criticized victim impact statements on the ground that sentencing might become more unduly severe or retributive due to the introduction of these statements. It was in fact found that sentences meted out in criminal cases have tended to be more severe (Research and Training Institute of the Ministry of Justice 2005). But it is fallacious to think that these trends result from the introduction of victim impact statements. It seems more reasonable to believe that the recent trend in severe sentences is rather a reflection of conservative views held by citizens and mass media that tougher sentences must be sought. The 2004 amendments to the Japanese Penal Code, which provided for enhanced punishments, exemplifies such a conservative climate of public opinion.

The development of victim support and victim rights 129 Victim impact statements were also introduced in Taiwan, via sequential amendments to the Code of Criminal Procedure in 1997 and 1998. The amended Code provides that victims must be given opportunities to express their views in a trial, unless this is considered unnecessary or inappropriate. In Singapore, victim impact statements were introduced at a practical level, during the Sixth Work Plan of the Subordinate Court in 1997, and first applied in a case in June of the same year (Singapore Judiciary 1998). In Hong Kong, there is no direct legal provision on the making of a victim impact statement, but the Organized and Serious Crimes Ordinance provides that the prosecution may furnish information to the court, regarding the nature and extent of any harm caused, directly or indirectly, to any person by the act in respect of which the person has been so convicted. Moreover, documents like the Victims of Crime Charter and the Statement on the Treatment of Victims and Witnesses also request prosecutors to bring to the court’s attention the circumstances of the victims and their views whenever appropriate. But the Hong Kong Department of Justice (the prosecutors’ office) is skeptical about the victim impact statement system, as applied in other countries, where victims are entitled to present a statement orally or in writing at trial, because such a victim impact statement could make the sentence “colored by emotion or a desire for revenge” (Cross 2000). Victim statements and parole hearings The abovementioned victim impact statement system, as applied in Asian countries, is a statement made by victims at the trial or sentencing stages. Unlike their counterparts in North America, victims in Asia are not allowed to present a statement at a parole hearing. In Japan, certain victims are required by probation/parole officers of parole boards to express their views regarding the case being heard by the parole board, known as a “victim inquiry.” However, no victims are allowed to make a statement before probation/parole officers as of right. Generally, each parole board selects the object of the inquiry amongst victims of serious cases, according to the bylaws. A critical problem is that the evaluation of the inquiry results, and its effects on the parole decision, is highly ambiguous. Parole applications are rarely rejected, except in the case of inmates who are given indeterminate sentences, no matter how much victims express their plight and suffering and how much they express their negative opinions regarding the offender being paroled. This is understandable, because parole is decided after taking a variety of factors into consideration and should not be subject only to the victim’s emotions. Besides, in practice, a probation officer often cannot contact victims because many victims had already moved after the case was closed. Thus, the parole board has regard only to the view of the victims whom it happens to be able to reach. For these reasons, the present victim inquiry system should be reformed along the lines of the victim

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impact statement system; that is to say, that the victims should have a chance to express their feelings or views regarding the case, during the imprisonment of offenders (Ota 2000a). The Crime Victim Basic Plan, launched by the Crime Victim Policy Promotion Council in the Cabinet Office in 2005, suggested that the Ministry of Justice should establish a new system for victims, to make statements at parole hearings (Crime Victim Policy Promotion Council 2005). However, a victim impact statement should never be established only for parole hearings. Victims should be rather given a chance to express their impact of their victimization, as well as their views on the treatment of offenders and the restoration of harm caused by the latter, irrespective of parole procedure. Such information is beneficial as a reference for correctional officers when treating offenders in correctional institutions and for probation/parole officers to supervise parolees with due consideration for assistance to victims. Providing for a victim impact statement at parole hearings could either reduce the parole rate or cause victims to suffer grave disappointment if the decision to grant parole is made.

The victim’s participation in the prosecution Complaints and compoundable offences The criminal procedure codes of Singapore, Malaysia and Brunei, which have common roots in the criminal procedure code of British India, enable crime victims to make criminal complaints against offenders to a magistrate, directly or through the police. The magistrate may direct the police to investigate the case or refer the case for mediation for minor offences, or issue a summons against the offenders for subsequent criminal proceedings. In that sense, crime victims in these countries are allowed to request the judiciary to examine whether criminal proceedings should be commenced. A research study conducted by the Subordinate Courts of Singapore reported that about half of criminal complaint cases were referred to criminal mediation and the other half were sent to the police for investigation (Research and Statistics Unit of Subordinate Courts 1999). However, a prosecution was lodged only against six percent of the cases which were forwarded to the police, while the rest were referred back to the magistrate for criminal mediation. What is unique amongst the jurisdictions of Singapore, Malaysia and Brunei is the concept of the compoundable offence. For certain crimes, designated as compoundable offences, offenders are allowed to compound the crime with the victims if the court gives consent to it. The respective criminal procedure codes of these countries merely provide that the compoundable offence may be compounded by the victims upon the court’s consent, without imposing any conditions to be fulfilled by the offenders; however, offenders are usually required to pay damages or tender an apology to the victims as a condition for compounding the offence. A

The development of victim support and victim rights 131 composition between offenders and victims will have the effect of an acquittal of the offenders. Once they reach an agreement, they cannot revoke it. Minor offences found in the penal codes of each respective country, as well as minor offences found in other laws, are categorized as either compoundable offences or non-compoundable offences. Generally, minor offences such as assault, voluntarily causing minor hurt, mischief or defamation are designated as compoundable offences. Other serious offences, like rape, are non-compoundable offences. Compoundable offences, or offences against an individual, are also provided for by the Penal Code and the Criminal Procedure Code of Thailand. A compoundable offence in Thailand refers to an offence which cannot be investigated and prosecuted without the victim’s complaint. Some Penal Code offences – such as rape, indecent assault, embezzlement, fraud, criminal mischief and defamation – are categorized as compoundable offences. The compoundable offence in Thailand is different from a compoundable offence in Singapore or Malaysia, but rather similar to Antragsdelikte (shinkokuzai, chingojoe) in Japan or Korea (see below). Antragsdelikte The concept of Antragsdelikte has been adopted by the criminal justice systems of Japan, Korea and Taiwan. In these jurisdictions Antragsdelikte is a certain type of offence which cannot be prosecuted without the victim’s complaint. In other words, a victim’s complaint is an indispensable prerequisite for lodging a prosecution against offenders who have committed Antragsdelikte. There are several types of Antragsdelikte. In Japan, for example, sexual offences such as simple rape and indecent assault, as well as defamation and insult, are designated as Antragsdelikte, to avoid secondary victimization or the infringement of privacy which could result from prosecuting the case against the victims’ will. Property offences, such as larceny and fraud, are also Antragsdelikte if committed by relatives, except for spouses, lineal consanguinity and cohabiting relatives, on the grounds that the family relationship between offenders and victims must be protected. Negligence causing injury, and malicious mischief, are also categorized as Antragsdelikte, due to the petty character of the offence. The system of Antragsdelikte is significant in the sense that the victims have the decision-making power to initiate or not to initiate criminal proceedings against the offenders. However, some problems as to the application of this system in practice have also been pointed out. Occasionally, the police or prosecutors must give up lodging a prosecution against the offender due to the lack of a complaint from the victim. Conversely, victims of Antragsdelikte are sometimes compelled to make the difficult decision of whether or not to make a complaint. In addition, a more fundamental problem concerning the rationale of Antragsdelikte has been raised in recent years: why prosecution of certain offences should depend upon the

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victims’ will. Some are trying to re-examine Antragsdelikte from the standpoint of restorative justice while others are reconsidering Antragsdelikte from various aspects, namely law and order and protection of vulnerable persons or victim support. In particular, whether serious sexual offences such as rape should remain as Antragsdelikte is being debated, not only because of the abovementioned practical problems but also because its rationale, i.e. to protect victims from secondary victimization caused by prosecution against their will, is being questioned in connection with the development of victim support during the course of criminal proceedings (Ota 2000c). In Korea, some types of sexual offences, such as aggravated rape using a weapon or committed on the occasion of other offences, were excluded from the category of Antragsdelikte by the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof. Women’s organizations, which contributed to the enactment of this Act, are continuing their efforts to exclude all kinds of sexual offences from the category of Antragsdelikte (Han 1997). In Taiwan, indecent assault and rape, except for marital rape, were excluded from Antragsdelikte as a result of the amendment of the Penal Code in 1999 (Chen 2000). Private prosecution The concept of a private prosecution has been adopted in the criminal justice systems of Thailand and Taiwan. This was developed under the influence of various legal jurisdictions, especially those in Europe. In Thailand, crime victims may lodge a prosecution against offenders to a court, directly or after making a complaint to the police. They can do so even after prosecutors have made a decision not to prosecute. Victims also may join the trial proceedings as co-accusers, after the prosecutors have lodged a prosecution and before a judge passes a sentence in the first instance. Conversely, prosecutors may join the trial proceedings against non-compoundable offences even if victims have lodged a private prosecution. Where both victims and prosecutors have lodged a prosecution against the same offender independently, in the same or in a different court, the court, ex officio or upon the prosecutor’s request, may combine the trials before a final sentence is pronounced. However, victims lodging a private prosecution must undergo a preliminary hearing to examine whether the case should proceed to trial. It is reported that in Thailand, private prosecutions can actually be utilized, for example, in fraud or embezzlement cases; but on the other hand it has also been pointed out that crime victims do not necessarily profit from the system of private prosecution, not only because they have to shoulder the heavy economic burden laid upon them due to the expense of legal proceedings, but also because the burden of proof is placed on victims, who have neither investigating agencies to assist them nor investigative powers (Phlawan and Ratniikoon 1992).

The development of victim support and victim rights 133 In Taiwan, victims or certain persons, such as their legal representatives, lineal families or spouses (in the event of a victim’s death or incompetence), may file a prosecution with a competent court against the offenders, except for offenders who are lineal ascendants, spouses and persons below 18 years of age (juveniles). The Taiwanese private prosecution system is similar to that of Thailand, in that the court may dismiss the prosecution if it finds the prosecution is not well founded or if some condition for suspended-prosecution is met after a preliminary hearing. However, unlike Thai victims, Taiwanese victims may not lodge a prosecution, where prosecutors have already commenced investigations, except in the case of Antragsdelikte (Huang 2002). Moreover, the defendant in a private prosecution may file a counter-prosecution against the victim who lodged the private prosecution, if the defendant was victimized by the criminal conduct of the victim, including malicious private prosecution. This is a device to prevent false accusations against other persons. A prosecutor is not obliged to help private accusers establish criminal responsibility against the defendant, but may attend the trial to deliver a statement. In practice, the number of private prosecutions in Taiwan has been decreasing of late. In 1995, the number of new private prosecutions amounted to about 7,900, but it fell to 1,540 in 2004 (Judicial Yuan 2005). This is mainly due to the amendment of the Code of Criminal Procedure which requires victims to delegate the lodging of private prosecutions to lawyers. The aim of this amendment was to prevent the abuse of private prosecutions, which has been criticized as a problem of the Taiwanese private prosecution system. Nevertheless, the Taiwanese private prosecution system is still significant, in the sense that crime victims may lodge a prosecution directly, without the involvement of a public prosecutor. According to a special report published by a district court, private prosecutions account for five percent of all cases dealt by district courts in Taiwan (Que 2003). Offences which were prosecuted by victims consisted mostly of property offences or petty violent offences such as fraud, embezzlement, forgery, defamation and assault, but included 1.4 percent of homicides. The rate of private prosecution cases leading to a finding of guilt is 12 percent, whereas that of indictments lodged by public prosecutors is 80 percent. While the rate for private prosecutions is much lower than that of indictments lodged by public prosecutors, it is amazing that 16 percent of the 736 defendants who were prosecuted by the victims were nevertheless found guilty of homicide. Preliminary hearings and constitutional petitions There is no private prosecution system in Japan, Korea and Indonesia, but crime victims who are dissatisfied with the prosecutors’ decision not to prosecute offenders are entitled to make an ex post complaint against the decision.

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A preliminary hearing, known as a praperadilan, is the Indonesian initiative to control the power of prosecutors and the police. This system was adopted by the Indonesian Criminal Procedure Code, which was enacted in 1981 as the first original criminal procedure code after independence. Preliminary hearings were originally introduced for the judiciary to examine the legitimacy of arrests or detention by investigating agencies, but the judiciary was also given the function of examining the legitimacy of the termination of prosecution or investigations. Crime victims or other interested parties may apply to a court for a preliminary hearing, if they are dissatisfied with the termination of prosecution or investigations. If the court is satisfied that the termination of prosecution or investigations was not justifiable, the court shall order the prosecutors or investigation agencies to continue with the prosecution or investigations. The preliminary hearing system is not only a measure to contest the unlawfulness of a forced investigation, but also a device for crime victims to be ex post involved in the decision-making process of the prosecution or investigating agencies. However, in practice, the preliminary hearing system does not function well, as far as the victim’s involvement in the criminal proceedings is concerned. This is partly because the existence of the system is not well known among citizens, and partly because it is difficult to challenge the legitimacy of the termination of prosecution or investigations as decided by prosecutors or investigation agencies, who are legally authorized to terminate prosecutions on the grounds of a lack of evidence. A more powerful authority to make complaints regarding a prosecutor’s decision not to prosecute is vested in crime victims in Korea. Victims may make a complaint (hango) against the decision not to prosecute to the chief of the High Prosecutors’ Office, and make an appeal (jae-hango) to the Attorney General against the decision to dismiss the complaint. The chief of the High Prosecutors’ Office or the Attorney General will then make a decision to issue a prosecution order or a re-investigation order, or to dismiss the complaint. In 2003, more than 10,000 complaints and 4,000 appeals were filed at the High Prosecutors’ Office and the Supreme Prosecutor’s Office respectively (Prosecution Yearbook 2004, Supreme Prosecutor’s Office 2004). Of the complaints processed, 87 percent were dismissed and re-investigation orders were made for about 12 percent. Prosecution orders accounted only for less than 0.5 percent of such complaints. As for appeals, re-investigation orders and prosecution orders were made only for less than 4 percent of such appeals. What is to be noticed here is that such a low rate of re-investigation and prosecution orders does not exemplify the efficiency of the complaints system, because the decision whether or not to issue a re-investigation or prosecution order is also subject to the appropriateness of the original decision not to prosecute. In Korea, the more powerful means for crime victims to participate in the decision-making process of the prosecution is submitting a constitutional petition to the Constitutional Court, which was established by the

The development of victim support and victim rights 135 Constitution of Korea and the Constitutional Court Act. A person whose fundamental constitutional rights are infringed, due to the exercise or nonexercise of public authority, may file a constitutional petition with the Constitutional Court. The Constitutional Court held, in a leading case in 1989, that a prosecutor’s decision not to prosecute falls under the category of an “exercise of public authority”, and the victim’s “fundamental constitutional right” (the right to make a victim impact statement and the right to equality), which could be infringed by the decision not to prosecute, if the decision was made due to the prosecutor’s arbitrary investigation or judgment (The Constitutional Court in Banc, 1989.4.17 88 Hoenma 3). According to this precedent, crime victims are allowed to file a constitutional petition with the Constitutional Court, and to revoke the prosecutor’s decision not to prosecute. In fact, constitutional petitions calling for the revocation of non-prosecution decisions account for 65 percent of all constitutional petitions processed during the 17-year history of the Constitutional Court of Korea, although only 208 out of 6,391 petitions (3.3 percent) were granted (Constitutional Court 2006). However, the Constitutional Court in some cases took the stand that prosecutors are merely obliged to conduct a re-investigation of the said case, even after the revocation of the original decision against prosecution, and are not obliged to make a prosecution (Chon 2004). It is also debatable whether the Constitutional Court should examine petitions against non-prosecution one by one, although it is certain that the constitutional petition is a very powerful measure for crime victims who are dissatisfied with the prosecutors’ decisions not to prosecute. “Ruling applications” and prosecution inquests For offences concerning the abuse of authority or violence by public officers in Korea and Japan, criminal complainants or accusers are allowed to apply to a district court to commit the case to a court for trial, if they are dissatisfied with the prosecutor’s decision not to prosecute the public officers. The court shall render a ruling that the case be committed to a competent court for trial, if it is satisfied that the application is well-founded. In this case, practicing lawyers designated by the court would exercise the functions of prosecutors, in order to sustain the prosecution. In Japan this procedure is called a “quasi-prosecution,” and in Korea, a “ruling application.” This is one of the exceptions to the monopolization of prosecution by prosecutors, as well as an important measure to reflect victims’ will directly in criminal prosecutions in both countries. But this procedure is limited only to such crimes committed by public officers. However, in Korea, a Criminal Procedure Code Amendment Bill was introduced to Parliament in January 2006, to expand the object of this procedure to all types of offences. If the legislation is passed, the “ruling applications” system will be a very powerful measure for victims to participate in the decision-making process in prosecutions.

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In the case of Japan, instead of reforming the quasi-prosecution system, the Japanese government has decided to reinforce the functions of the prosecution inquest system. The prosecution inquest is an independent quasi-law enforcement committee, consisting of 11 laypersons randomly selected from amongst the citizenry, which is authorized, ex officio or upon the victims’ application, to examine and decide whether or not the decision not to prosecute was proper. The prosecution inquest may choose to make a decision from amongst the following: that the “non-prosecution was proper”, that the “non-prosecution was improper” or that a “prosecution should have been initiated”. Before the reform, which was introduced in 2004, the chief of the district prosecutors’ office was not obliged to file a prosecution, even after the inquest decided that the “non-prosecution was improper” or that the “prosecution should have been initiated”. The decision of the prosecution inquest was not legally binding. This was changed dramatically by amendments made in 2004 to the Prosecution Inquest Act, so that the “second” decision made by the inquest has the effect of filing a prosecution. The prosecution inquest, comprised of the same members, is obliged to examine the appropriateness of the second non-prosecution decision made by the prosecutor, after the initial inquest decided that the “prosecution should have been initiated”. If the prosecution inquest makes a second decision, that the “prosecution should be initiated” by at least a majority of eight to three, the court has to designate a lawyer (counsellor-at-law) as a prosecutor, who is obliged to file a prosecution against the said offender. Generally speaking, the prosecution inquest is “substantially” empowered to decide if a prosecution is to be initiated, although in fact a lawyer designated by the court initiates the prosecution and establishes criminal responsibility against the defendant. From the standpoint of crime victims, they can be indirectly involved in the decisionmaking process of prosecution, through the prosecution inquest. The amended law will come into force by 2009. It can be foreseen that the new prosecution inquest system will, in the future, exert an influence on the practice of prosecution, as well on the ways in which crime victims are to be involved in criminal proceedings.

Victim support organizations Support organizations for specific crime victims In Asia, many private organizations have been active in providing a variety of support services to specific crime victims, such as sexual violence victims, domestic violence victims and juvenile victims. Examples of such organizations include the Family Crisis Support Centre, Rain Lily, Harmony House and Serene Court in Hong Kong (Chan 2003; Ota 2003b); the Women’s Aid Organization in Malaysia; Mitra Perempuan in Indonesia; and the Center for the Protection of Women’s Rights and Friends of Women Foundation

The development of victim support and victim rights 137 and the Association for the Promotion of the Status of Women in Thailand. In the Philippines, rape crisis centers were established by legislation in 1998, at hospitals in states or cities (Republic Act No. 8505) to play a role in the assistance and protection of rape victims. In Korea, pursuant to the Act on the Prevention of Domestic Violence and Protection of Victims, more than 230 domestic violence guidance centers and domestic violence victim protection centers were established, operating all over the country to provide various services for victims of domestic violence (Ministry of Gender Equality and Family 2005). Thousands of guidance centers and shelters for victims of sexual offences have also been set up, administrated mainly by non-profit organizations all over the country, pursuant to the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof. In Taiwan, sexual infringement prevention centers were established in each region, under the Code of Sexual Assault Crime Prevention; they provide services like 24-hour hotlines, counseling, shelter, legal aid and a medical clinic service. As for domestic violence, domestic violence prevention centers were set up under the Domestic Violence Prevention Act, which provide services like 24-hour hotlines, counseling, crisis intervention, shelters, legal aid and the referral of perpetrators for treatment (Gao 1998). However, these victim support centers in Taiwan are administered by the local government, not by private organizations. The same is true for Hong Kong and Japan. In Hong Kong, the Family and Child Protective Service Unit of Social Welfare Department, is the core support centre for victims of domestic violence and child abuse (Ota 2003b). In Japan, as far as domestic violence and child abuse are concerned, each local government provides a variety of support and protection for those victims, including giving shelter to them in spousal violence guidance and support centers and child guidance centers, pursuant to the Prevention of Spousal Violence and the Protection of Victims Act and the Child Welfare Act respectively. Comprehensive victim support organizations Besides organizations which specialize in support for specific types of crime victims, comprehensive victim support organizations have also been established in Japan, Korea and Taiwan. In Japan, the Victim Support Center of Tokyo was established in 2000 as the first comprehensive victim support organization, taking over from the Crime Victim Consultation Office, founded by the Tokyo Medical-Dental University in 1992. Subsequently, many victim support organizations were founded, one after another, with the cooperation of the prefectural police headquarters (Tomita 2003). These new organizations were united under the Victim Support Network in 1998, and 40 victim support organizations had joined the network by 2005. The Victim Support Network released a document in 1999 titled the Declaration of Crime Victim Rights (Yamagami 1999), which has profound future implications for fundamental policies of

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victim support in Japan, even though it was not an official declaration or recommendation that was legally biding on the government. Moreover, according to the Crime Victim Benefits Payments Act as amended in 2001, a victim support organization can be designated as a “crime victim early support organization” (VESO), by each prefectural public safety commission (a committee which supervises local police, comprised of civilians selected from members of society), if the organization meets certain conditions prescribed by the Act. One of its purposes is to improve the quality of services provided by victim support organizations, but, more importantly, the organization which has been designated as a VESO is expected to provide prompt support to crime victims at an early stage after victimization has occurred, by getting information on the victims and their cases directly from the police, in spite of personal data protection. However, by the beginning of 2006, only 8 out of 40 organizations were designated as VESO, mainly because many organizations still provide only consultation and counseling services and are not able to provide a variety of direct support for crime victims, as required by the legislation (Ota 2001e; Tomita 2003). In Korea, the first comprehensive victim support centers were founded in 2003 in Kimchon city and Daejon city, against a background of an increase in serious offences, some heinous crimes and accidents, such as a subway arson case, which occurred in 2003 (Cho 2005). Both centers were established at around the same time, with the cooperation of the local prosecutors’ office, but differ from each other as to the extent of their organization and activities. The Daejon Victim Support Center was founded under the strong leadership of the local prosecutors’ office, which is involved in the administration of the center’s activities (the “Daejon model”), whereas the Kimchon Victim Support Center distances itself from the local prosecutors’ office (the “Kimchon model”), even though the center was also established on the initiative of the local prosecutors’ office. The difference in the relationship between the centers and the prosecutors’ offices is symbolized by their locations: Daejon Center is located in the local prosecutors’ office while the Kimchon Center has its offices in local governmentrelated facilities. The two centers also differ as to their staffing: the local association of voluntary probation officers is actively involved in the administration of Daejon Center, while many volunteers, including medical doctors and psychiatrists, are involved in the administration of Kimchon Center (Ota 2005). Subsequent to the setting up of these two centers, 52 centers were established across the country over a short period of time, from late 2004 to the first half of 2005, on the initiative of the Supreme Prosecutors’ Office and each local prosecutors’ office. In consequence, most victim support centers are modeled after the Daejon Victim Support Center, where the local prosecutors’ office and the local association of voluntary probation officers,

The development of victim support and victim rights 139 mainly govern the organization and its activities. The victim support centers following the Daejon model provide not only guidance (general, legal and medical) and escort services (victim attendant services), but also mediation/ arbitration services for crime victims and offenders for suitable cases which are selected and referred to it by prosecutors. The existence of the mediation/arbitration service is one of the major differences between victim support centers in Korea and Japan. Moreover, some victim support centers in Korea even provide financial support for victims or services for the cleaning of homicide scenes. In Taiwan, the Crime Victim Protection Association was founded, pursuant to the Crime Victims Protection Act, which was enacted in 1998. This association is a nationwide organization, which has its headquarters in Taipei and 21 branches all over the land. This stands in contrast to victim support centers in Japan and Korea, which are separate and independent organizations. Besides, the Crime Victim Protection Association of Taiwan is a private foundation, but has a legal basis in statute law, namely, the Crime Victims Protection Act. When the Bill was introduced to the Taiwanese Parliament, its aim was only to establish a victim compensation system. However, some provisions pertaining to the establishment of victim support organizations were added to the Bill, during Diet deliberations (Hsu 2000). The Crime Victim Protection Association was founded on the same model as the Taiwan Aftercare Association, which has provided aftercare services to ex-prisoners or other ex-offenders since 1946. Of course, both associations and their activities are separate from each other, but one of the reasons why such a nationwide victim support organization could be set up in such a relatively short period of time was that the human and organizational resources of the Aftercare Association were available (Ota 2001a). Another reason for its rapid set-up was the Crime Victim Protection Association being a duly organized organization under the Crime Victims Protection Act and thus being allotted a huge amount of subsidies by the Ministry of Justice. The Crime Victim Protection Association of Taiwan offers diverse and high-quality victim support services: counseling, consultation for schooling, employment and daily life, shelter, legal and medical aid, assisting victims’ applications for victim compensation or social security, liaising with the police for the provision of personal protection, trusts of compensation for minor victims, livelihood assistance, home visits, and so on. The association provides financial support for victims, with regard to their accommodation, medical treatment, psychological counseling, schooling and livelihood, according to their needs. The provision of such financial support for crime victims, is one of the unique features of the Crime Victim Protection Association of Taiwan, as compared with victim support centers in Japan.

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The Crime Victim Basic Act Victim support schemes in Asia have so far been developed by some related government agencies, or private organizations on their own initiative. As a result, victim support schemes in Asia lack coherent and long-term policies. In particular, holistic and inter-agency policies have been hard to formulate, and this has hampered the formulation of a more victim-oriented system. Legal provisions on victim support or the victim’s legal status are also scattered in different laws, and there is no comprehensive legislation to provide fundamental policies and principles regarding victim support. However, in the middle of this decade, the situation changed in some countries; namely, Japan and Korea. In Japan, under the growing swell of public opinion following the occurrence of some heinous criminal cases, and through the efforts of many victim advocates, the Crime Victim Basic Act was enacted in 2004. The Act is a basic law providing a fundamental principle and policy regarding crime victim support, which covers not only crime victims defined under the law, but also victims of “quasi-criminal acts harmful to mind or body”. The Act requires the central and local government to improve the legal status of victims and provide victims with improved support in the course of criminal proceedings, and to establish a system to help victims claim for damages from their perpetrators and reparations in criminal proceedings. It is also of great significance that the Act obliges the government to implement victim support policies in the fields of health, medical services, welfare, housing and employment, all of which are required for victims to get back to their daily lives. The Crime Victim Basic Plan, based on the Crime Victim Basic Act, was formulated in 2005 by the Crime Victim Policy Promotion Council, which was established in the Cabinet Office. This Basic Plan encompasses a very wide range of crime victim support services, such as the recovery of victims’ losses, ensuring stability in their lives, health and medical care, welfare, security, victims’ participation in the criminal proceedings, the provision of information and counseling and support for private organizations. These measures and systems, proposed by the Basic Plan, must be established within two years from the formulation of the Basic Plan, at the very latest. Similarly, in Korea, the Crime Victims Protection Act was enacted at the end of 2005. The Korean Crime Victims Protection Act shares a common feature with the Crime Victim Basic Act of Japan, in that it provides a fundamental principle and policy for crime victim support, and obliges the central and local governments to implement victim support policies. But the Korean Act also has some characteristics which are different from the Japanese legislation. It directly guarantees that victims can exercise their rights to be consulted by investigating agencies and to make victim statements during trial. This provision in the Korean statute is derived from the victim’s constitutional right to make an impact statement at a trial; such a right is not guaranteed by the Constitution of Japan. The Crime Victims

The development of victim support and victim rights 141 Protection Act of Korea is also characterized by the establishment of a new type of body corporate, namely, the “crime victim support corporation.” A victim support organization can register as a crime victim support corporation, at the Ministry of Justice, if it meets human and pecuniary resource standards stipulated by the government. Such a registration system for victim support organizations, is not included in the Crime Victim Basic Act of Japan, but provided for in the form of “crime victim early support organizations,” under the Japanese Crime Victim Benefits Payment Act. Both “crime victim support corporation” and “crime victim early support organizations” are similar, in that they aim to provide high-quality services to crime victims, but the former system is eligible for direct subsidies. The passing of these two statutes are landmark events in the history of victim support in Japan and Korea. Under these Acts, victim support is expected to develop dramatically, into a more comprehensive and wider framework.

Conclusion Many Asian countries have embarked on a journey of building up victim support systems. In addition to the many victim support systems discussed in this chapter, varied support systems for victims of domestic violence and child abuse, have been established, and are in operation in Asia (Ota 2003a, 2003c). These could not be referred to here, as they are far beyond the scope of this chapter. It is hoped that each country will continue to seek a better victim support scheme, suitable for local circumstances. For this purpose, it is important that each country shares its experiences and ideas on victim support, through a mutual exchange of information (Ota, 2003d). Since 2004, crime victim organizations in Japan, Korea and Taiwan have held several seminars to exchange information about the practice of victim support in each organization (Taipei Branch of Crime Victim Protection Association 2005). An international network, such as an Asian Forum for Victim Support, should be set up in order to promote the development of victim support and victim-sensitive justice and administrative systems throughout the Asian region.

References Abe, S. (1999) ‘The Liaison System for Victims by Police’, Journal of Police Science, 52(5), 47–63. Census and Statistics Department. (1990) Crime and Its Victims in Hong Kong 1989. Hong Kong: Census and Statistics Department. —— (1995) Crime and Its Victims in Hong Kong 1994. Hong Kong: Census and Statistics Department. —— (1999) Crime and Its Victims in Hong Kong 1998. Hong Kong: Census and Statistics Department.

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Central Statistics Bureau. (1985) Criminal Statistics: 1982 National Economy Social Survey. Jakarta: Central Statistics Bureau. —— (1993) Criminal Statistics: 1991 National Economy Social Survey. Jakarta: Central Statistics Bureau. —— (1995) Criminal Statistics: 1994 National Economy Social Survey. Jakarta: Central Statistics Bureau. Chan, W. (2003) ‘Victims of Crime: A Critical Review of Essential Programmes in Hong Kong’, in T. Ota (ed.), Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University, 45–61. Chang, K. (1965) ‘The Importance of Victimology’, Xingshifa Zazhi, 9(2), 19–28. —— (1995) ‘Victimology and Its Development in Taiwan’, Japanese Journal of Victimology, 5, 56–65. Chen, T. (2000) ‘About “The Sexual Harassment Crime”, The Proposed Amendment of Taiwan Criminal Law’, Comparative Law Review, 34(1), 33–56. Cho, K. (1994) ‘On the Brief Introduction of the Victim Compensation System and Its Operation in Korea’, Japanese Journal of Victimology, 3, 3–13. —— (2005) Compendium of Crime Victim Support. Kimchon: Victim Support Center. Chockalingam, K. (1988) ‘Victimological Research in India’, in Zvonimir Paul Šeparović (ed.), Victimology: International Action and Study of Victims Volume I: Theoretical Issues (General Part) and Documents. Zagreb: Samobor, 141–50. —— (1993) ‘Restitution to Victims of Crime in India: Recent Development’, Indian Journal of Criminology, 21(2), 72–81. Choi, I. and Park, S. (1995) Criminal Victimization in Korea 1993. Seoul: Korean Institute of Criminology. Choi, I. and Ki, K. (1997) Criminal Victimization in Korea (II). Seoul: Korean Institute of Criminology. Choi, I., Park, S. and Ki, K. (2002) Crime Victimization Surveys in Korea: Trends Analysis. Seoul: Korean Institute of Criminology. Choi, I., Kim, J. and Hwang, J. (2003) Crime Victimization Surveys in Korea (IV). Seoul: Korean Institute of Criminology. Chon, K. (2004) The Constitutional Petition against Non-Prosecution. Seoul: Yukpopsa. Constitutional Court. (2006) The Total Number of the Constitutional Petition by Ground of Petition. Available online at: www.ccourt.go.kr/ ccourt_hinformation/ casestatistics.asp. Crime Victim Policy Promotion Council. (2005) The Crime Victim Basic Plan. Tokyo: The Cabinet Office. Crime Victim Survey Group. (2003) Report on Crime Victim Survey. Tokyo: Crime Victim Survey Group. Criminal and Law Enforcement Injuries Compensation Boards. (2000) 11th Annual Report by the Chairman for the year ending 31 March 2000. Hong Kong: Social Welfare Department. Cross, G. (2000) ‘The Victim of Crime’, Hong Kong Lawyer, April. Accessed at: www.hk-lawyer.com/2000-4/Default.htm Department of Justice. (2002) Statement of Prosecution Policy and Practice. Hong Kong: Department of Justice. —— (1996, 2003) Victims of Crime Charter. Hong Kong: Department of Justice. —— (2004) Statement on the Treatment of Victims and Witnesses. Hong Kong: Department of Justice.

The development of victim support and victim rights 143 Emi, K. (2001) ‘Judicatory Approach to Crime Victim Protection’, Horitsu no Hiroba, 54(6), 12–17. Firganefi. (1990) Faktor-faktor yang Mempengaruhi Intensitas Tuntutan Ganti Rugi oleh Korban Kejahatan Pencurian. Bandar Lampung: Universitas Lampung. Gao, F. (1998) Compendium of Domestic Violence Prevention Act. Taipei: Unantushuchubangongsi. Gosita, A. (1977) ‘Perasaran tentang Kedudukan si Korban dalam Tindak Pidana’, in Muladi (ed.), Laporan Seminar Kriminologi III. Semarang: Lembaga Kriminologi, Fakultas Hukum, Universitas Diponegoro, 137–80. Ha, T. (1993) ‘The Status and Rights of Crime Victim in the Criminal Proceedings’, Annam Pophak, 1, 310–37. Han, M. (1997) ‘The Role of Women Movement in the Course of the Decision of Women’s Policy in Korea: With the Special Reference to the Case of Enactment Movement of “the Special Act of Sexual Violence”’, Joseigaku, 5, 86–118. Harahap, M.Y. (1986) Pembahasan Permasalahan dan Penerapan KUAHP Jilid II. Jakarta: Pustaka Kartini. Hee, T.K.Y. (1975) ‘Criminal and the Victim’, thesis. Singapore: National University of Singapore. Higashikawa, H. (2001) ‘Amendment of the Crime Victims Benefit Payment Law’, The Journal of Police Science, 54(7), 1–10. Hsu, C. (2000) Practical Interest of Crime Victim Protection Act. Taipei: Yongranwenhua. Hsu, C., Mo, J., Chen, Y., Meng, W., Cai, T., Ou, Y., Shi, Y. and Huang, M. (2000) Survey Research on Criminal Victimization Experience in Taiwan Region. Taoyuan: Crime Prevention Institute of Central Police University. Hsu, C., Chen, Y., Meng, W., Cai, T., Huang, L., Huang, J., Shi, Y. and Huang, X. (2005) Survey Report on Criminal Victimization in Taiwan Region 2005. Taipei: National Taipei University. Huang, Z. (2000). ‘Private Prosecution System (Victim Prosecution) in Taiwan’, in Morimoto, M., Kato, H. and Ikuta, M. (eds), Festschrift for Masayoshi Ono: Trends and Perspectives of Criminal Justice. Kyoto: Sekaishisosha. Ikeda, Y. (1999) ‘Victimized Juveniles Assistance Measures of the Police’, The Journal of Police Science, 52(6), 1–13. Judicial Yuan (ed.) (2005) Judicial Statistics Yearbook 2004. Taipei: Judicial Yuan. JUSRI (ed.) (1990) Survey Report on Criminal Victimization. Tokyo: JUSRI. —— (ed.) (1993) 1992 Research on Criminal Victimization and Conscious of Prevention. Tokyo: JUSRI. Kamimura, M. (2000) ‘The Overview of the Act to Amend a Part of Criminal Procedure Code and Prosecution Inquest Act’, Jurist, 1185, 2–7. Kawamura, H. (2000) ‘The Purpose and Outline of Two Legislations concerning Crime Victim Protection’, Gendai Keijiho, 19, 10–15. Kim, H. (2005) ‘A Comprehensive Policy for Enhancing Protection and Support of Crime Victims’, Korean Journal of Victimology, 13(1), 165–82. Kurokawa, S. (2000). ‘On the Amendment of Criminal Investigation Rule’, in Miyazawa, K., Kunimatsu, K., Ohya, M., Yamagami, A. and Shibashi, T. (eds), Victim Support Series 2: The Present Situation of Crime Victim Policy. Tokyo: Tokyohorei, 33–6. Matsuo, K. (ed.) (2001) Commentary: Two Acts concerning Crime Victim Protection. Tokyo: Yuhikaku.

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Ministry of Gender Equality and Family (ed.) (2005) White Paper on Women 2004. Seoul: Ministry of Gender Equality and Family. Ministry of Justice. (2004) ‘On the Issues for the 2nd Meeting of Crime Victim Basic Plan Council’, material submitted to the 2nd Meeting of Crime Victim Basic Plan Council held on May 23, 2004. Miyazawa, K. (1965) Basic Theory of Victimology. Tokyo: Sekaishoin. Miyazawa, K., Taguchi, M. and Takahashi, N. (eds) (1996) Crime Victims in Japan: An Empirical Study. Tokyo: Seibundo. Muladi. (1989) Laporan Penelitian tentang Implementasi Perlindungan Korban Tindak Pidana dalam Hukum Pidana Formil dan Hukum Pidana Materiil. Semarang: Universitas Diponegoro. Nakata, O. (1958) ‘Mendelsohn’s Victimology’, Japanese Journal of Legal Medicine and Criminology, 24(6), 8–15. National Police Agency (1996) Basic Policy Concerning Assistance for Supporting Crime Victims. Tokyo: National Police Agency. —— (ed.) (2004) Victim Supporter Handbook. Seoul: National Police Agency. Ohta, H. (1999) ‘Current Situation and Problems of Victim Assistance Activities by the Police’, The Journal of Police Science, 52(8), 1–18. Ohya, M. (1977) Victim Compensation. Tokyo: Gakuyoshobo. Okumura, M. (2000). ‘The Present Situation and Problems of Victim Support’, in Miyazawa K., Kunimatsu, K., Ohya, M., Yamagami, A., and Segawa, A. (eds), Victim Support Series 1: Basis of Crime Victim Support. Tokyo: Tokyohorei, 193-251. Ota, T. (1994) ‘Trends in Victimology in Indonesia: With Special Reference to the 3rd Indonesian Seminar on Victimology’, Jurist, 1045, 115–116. —— (1995) ‘Victimology in Asia: An Overview’, Japanese Journal of Victimology, 5, 3–30. —— (2000a) ‘Victim Assistance in Community Correction: With Special Reference to Victim Notification of Parole Information and Victim Statement (2)’, Hanzai to Hiko, 124, 58–66. —— (2000b) ‘Witness Attendant during Testimony and Mandatory Consideration for Victim’s Attendance at Trial as Hearer’, Gendai Keijiho, 19, 27–34. —— (2000c) ‘Current Trends in Victim Assistance in Asia’, in Ohya, M., Atsumi, T., Hiraragi, T., Kato, H., Morosawa, H., Segawa, A., Takahashi, N., Ida, M. and Ota, T. (eds), Festschrift for Koichi Miyazawa, Vol. 1: New Trends in Victimology. Tokyo: Seibundou, 359–426. —— (2001a) ‘Victim Support in Taiwan: With Special Reference to the Activities of Crime Victim Protection Association (1)’, Sousa Kenkyu, 595, 48–51. —— (2001b) ‘Crime Victim Compensation System in Taiwan: The Enforcement of Crime Victim Protection Act 1998’, Houritsu no Hiroba, 54(6), 44–58. —— (2001c) ‘A Comparative Study on Victim Compensation (1): Criminal Injuries Compensation Scheme in Hong Kong’, Hogaku Kenkyu, 74(5), 1–42. —— (2001d) ‘A Comparative Study on Victim Compensation (2): Imperatives of Crime Victim Award Payment System of Japan’, Hogaku Kenkyu, 74(6), 63–92. —— (2001e) ‘Victim Assistance in Japan: The Present and the Future’, Victim Support Center of Tokyo, Center News, 5, 7–14. —— (2003a) ‘Legal Strategies for the Issue of Domestic Violence in Asia’. A paper prepared for the East & South East Asia Regional Conference on Domestic

The development of victim support and victim rights 145 Violence Legislation: Moving towards Regional Networking and Approach organized by UNIFEM, 1–3 December 2003, Bangkok, Thailand. —— (2003b) ‘Victim Support Network in Hong Kong’, Victim Support Center of Tokyo, Center News, 9. —— (2003c) ‘Victim Compensation System of Thailand (1)’, The Journal of Police Science, 56(11), 78–111. —— (ed.) (2003d) Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University. —— (2005) ‘The Development and Perspective of Victim Support and Restorative Justice in Republic of Korea’, The Journal of Police Science, 58(8), 121–62. Park, K. (1995) ‘A Study on the Victim Compensation Law in Korea’, Japanese Journal of Victimology, 5, 31–55. Park, S. and Choi, Y. (1999) Criminal Victimization in Korea (III). Seoul: Korean Institute of Criminology. Park, S., Son, D. and Ri, S. (2005) Criminal Policy (8th edn). Seoul: Korean Institute of Criminology. Phlawan, K. and Ratniikoon, C. (1992) ‘The Situation of Crime Victimization and Victims in Criminal Procedure in Thailand’, in Watanavanich P. (ed.), Victimology and Victim’s Rights. Bangkok: Thammasat University, 210–26. Piumsombun, P. (1992) ‘Crime Victim in Thailand’, in Watanavanich, P. (ed.) Victimology and Victim’s Rights. Bangkok: Thammasat University, 16–22. Que, S. (2003) ‘An Analysis of Statistics on the Process of Private Prosecution Cases at Taiwan, Banqiao District Court’, in Judicial Yuan (ed.), Judicial Statistics 2002: Special Analysis Report. Taipei: Judicial Yuan, 4.1–4.25. Research and Statistics Unit of Subordinate Courts (1999), A Study on Criminal Mediation of Relational Disputes in the Subordinate Courts, Subordinate Courts Research Bulletin (No. 22) Singapore: Subordinate Courts. Research and Training Institute of the Ministry of Justice (ed.) (2000a) The 1st Crime Victimization (Dark Number) Survey. Tokyo: Research and Training Institute of the Ministry of Justice. —— (ed.) (2000b) Research on the Reality of Crime Victims. Tokyo: Research and Training Institute of the Ministry of Justice. —— (ed.) (2002) The 1st Crime Victimization (Dark Number) Survey (the 2nd Report): International Comparison among 12 Developed Countries. Tokyo: Research and Training Institute of the Ministry of Justice. —— (ed.) (2005) White Paper on Crime 2005. Tokyo: Research and Training Institute of the Ministry of Justice. Ri, J. (1991) ‘The Procedure of Restitution Order’, Kochige, 416, 51–60. Sahetapy, J.E. (ed.) (1995) Bunga Rampai Viktimisasi. Bandung: Eresco. Saito, S. (1977) Essential Problems of Victim Compensation System. Tokyo: Kazamashobo. Sethna, J.M. (1974) ‘Compensation of Victims of Offences’, in Israel Drapkin and Emilio Viano (eds), Victimology: A New Focus Volume II: Society’s Reaction to Victimization. Lexington, KY: Lexington Books, 167–74. Shim, Y. and Park, J. (1992) A Victimization Survey in Seoul. Seoul: Korean Institute of Criminology. Singapore Judiciary. (1998) Annual Report 1997. Singapore: Singapore Judiciary. Singh, D. (1978) ‘Victims of Dacoit Gang in the Chambal Valley.’ Ph.D. thesis. Sagar: University of Sagar.

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Singh, D. (1985) ‘Development of Victimology in India’, Indian Journal of Criminology, 13(2), 144–50. Supreme Court Administration (ed.) (2005) Judicial Yearbook 2005. Seoul: Supreme Court Administration. Supreme Prosecutor’s Office (2003) Guideline on the Questioning of Victims of Sexual Offences. Seoul: Supreme Prosecutor’s Office. —— (2004a) Guideline on the Protection and Assistance of Crime Victims. Seoul: Supreme Prosecutor’s Office. —— (2004b) Prosecution Yearbook 2004. Seoul: Supreme Prosecutor’s Office. Taguchi, M. (2000) ‘Introduction of New Type of Witness Examination: Video-Link and Screen’, Gendai Keijiho, 19, 21–6. Taipei Branch of Crime Victim Protection Association (ed.) (2005) Asian-Pacific International Conference on Victim Support. Taipei: Taipei Branch of Crime Victim Protection Association. Tamura, M. (1996) ‘Basic Ideas and Policy of Victim Assistance Program of the Police’, The Journal of Police Science, 49(4), 1–28. Tanojiri, T. (2001) ‘Prosecution’s Approach to Crime Victim Protection’, Horitsu no Hiroba, 54(6), 18–26. Tatsuoka, S. (2000) ‘Establishment of Inspection / Copying of Trial Record and Reconciliation of Civil Dispute in Criminal Proceedings as Crime Victim Protection’, Gendai Keijiho, 19, 35–42. Tomita, N. (2003) A History and Development of Civil Institute of Victim Support in Japan, Korean Journal of Victimology, 11(2), 293–316. Tsai, T. (2002) ‘Trends in Victim Support in Taiwan’, Japanese Journal of Victimology, 12, 3–17. Victim Policy Research Group (ed.) (2000), Crime Victim Scheme of Police. New edn. Tokyo: Tachibanashobo. Watanavanich, P. (1977) ‘Compensation Law for Crime Victims: Welfare State Perspective’, Waarasaan Niitisaat, 1(9), 68–81. —— (1986) ‘Crime, Victim Restitution and Compensation: The Thai Perspective’, in Koichi Miyazawa and Minoru Ohya (eds), Victimology in Comparative Perspective, Tokyo: Seibundo, 430–8. Yamagami, A. (1999) ‘Mental Care of Victim’, Jurist, 1163, 80–6. Yasuda, T. (1996) ‘Victim Assistance Program of the Criminal Investigation Divisions of the Police’, The Journal of Police Science, 49(4), 29–56. Yazawa, K. (1999) ‘Victim Information Program’, Journal of Police Science, 52(5), 64–77. Yeo, S.M.H. (1984) ‘Compensating Victims of Crime in Singapore’, Malaya Law Review, 26, 219–37. Yoon, S. (2005) ‘Victim’s Protection System by Police’, Korean Journal of Victimology, 13(1), 277–82.

Legislation Hong Kong Criminal Procedure Ordinance (1950). Cap. 221. Organized and Serious Crimes Ordinance (1994). Cap. 455.

The development of victim support and victim rights 147 Indonesia Criminal Procedure Code (1981). Law No. 8 of 1981.

Japan Penal Code (1907). Law No. 45. Constitution of Japan (1946). Child Welfare Act (1947). Law No. 164. Criminal Procedure Code (1948). Law No. 131. Prosecution Inquest Act (1948). Law No. 147. Criminal Investigation Rule (1957). National Public Safety Commission Regulation No. 18. Crime Victim Benefits Payment Act (1980). Law No. 36. Crime Victims Protection Act (2000). Law No. 75. Prevention of Spousal Violence and the Protection of Victims Act (2001). Law No. 31. Crime Victim Basic Act (2004). Law No. 161.

The Philippines An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and for Other Purposes (1992). Republic Act No. 7309.

Republic of Korea Constitution of Korea (1948). Criminal Procedure Code (1954). Law No. 341. Litigation Promotion Act (1981). Law No. 3361. Crime Victim Aid Act (1987). Law No. 3969. Constitutional Court Act (1988). Law No. 4017. Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (1994). Law No. 4702. Act on the Prevention of Domestic Violence and Protection of Victims (1997). Law No. 5487. Regulation for Crime Victim Protection (2004). Ordinance No. 428 (National Police Agency) Crime Victim Protection Act (2005). Law No. 7731. Criminal Procedure Code Amendment Bill No. 3759 (2006). Submitted by the Government to Parliament on January 6, 2006.

Republic of Singapore Criminal Procedure Code (1985). Cap. 68.

Taiwan Code of Sexual Assault Crime Prevention (1997).

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Domestic Violence Prevention Act (1998). Crime Victims Protection Act (2002). Code of Criminal Procedure (2004). Penal Code (2005).

Thailand Criminal Procedure Code (1935). Penal Code (1957). Act for the Granting of Compensation to Aggrieved Parties and the Accused in a Criminal Case (2001). National Gazette 118–104K, 23, 12 November 2001.

Cases India Hari Kishan and State of Haryana v. Sukhbir Singh and others. (1988) AIR 1988 SC 2127.

Indonesia Putusan Reg. No. 1457 K/Pid/1991 tanggal 28 Agustus 1993, Varia Pradilan, 107, 39 (1994).

Republic of Korea Constitutional Court. (1989). 1989.4.17 88 Hoenma 3, The Constitutional Court Law Report, Vol. 1, 31–38. Seoul: Constitutional Court.

Part II

Victims of crime in the domestic criminal justice system

6

Victims of crime in China’s criminal justice system Guoling Zhao

Crime victims and their protection are crucial subjects in the study of criminology, victimology, criminal justice and other fields. In China, increased attention has been given in recent years to these areas of study. However, in contrast to the developed countries, China is still lacking in research on crime victims and in the recognition of their role in the criminal justice process. In this chapter, I will discuss and analyse the rights of victims of crime and the difficulties faced by them in China, and I will put forward recommendations as to how their position can be improved.

The victim’s position in the Criminal Procedure Law of China: Rights and problems China amended its Criminal Procedure Law in 1996. One of the most important amendments to the law is the recognition of the position of the victim as a party (litigant) and the increased protection given to the victim. The more important rights of the victim in the new law are considered below. The right to make a report or a complaint When a victim’s personal or property rights are infringed upon, the victim has the right to report to a public security organ, a People’s Procuratorate or a People’s Court about the facts of the crime or to lodge a complaint against the criminal suspect. Under Article 84 of the Criminal Procedure Law, the public security organ, the People’s Procuratorate or the People’s Court shall accept all reports, complaints and information. Under Article 85 of the same law, the public security organs, the People’s Procuratorates and the People’s Courts shall ensure the safety of victim reporters, complainants and informants as well as their close relatives. The identity of the reporters, complainants or informants shall be kept confidential if they do not wish to have their identity revealed or the fact disclosed that they had made a report or complaint or provided the information.

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The right to know and to apply for an expert opinion During the investigation, the investigating organ shall notify the victim of the crime the conclusion of the work of the expert witness in uncovering evidence to be used in the case. Under Article 121 of the Criminal Procedure Law, further expert evidence or another expert opinion may be requested upon an application submitted by the victim. The right to engage agents ad litem Under Article 40 of the Criminal Procedure Law, a victim in a case of public prosecution, his legal representatives or close relatives, and a party in an incidental civil action and his legal representatives, shall, from the date on which the case is transferred for examination before the prosecution, have the right to engage agents ad litem. A private prosecutor in situations where he is pursuing a private prosecution and his legal representatives, and a party in an incidental civil action and his legal representatives, also have the right to engage agents ad litem at any time. The right to present a petition or to bring a lawsuit against the decision not to prosecute Under Article 145 of the Criminal Procedure Law, if the People’s Procuratorate decides not to prosecute, it shall inform the victim in writing. If the victim refuses to accept the decision, he may, within seven days after receiving the written decision, present a petition to the People’s Procuratorate at the next higher level and request the latter to initiate a public prosecution. The People’s Procuratorate shall notify the victim of its decision made after re-examination of the case. If the People’s Procuratorate upholds the decision not to initiate a prosecution, the victim may bring a lawsuit to a People’s Court. The victim may also bring a lawsuit directly to a People’s Court without presenting a petition first. The right to commence a private prosecution Under Article 170 of the Criminal Procedure Law, victims have the right to commence a private prosecution in cases for which the victims have evidence to prove that those are minor criminal cases; and in cases where they have evidence to prove that the defendant should be investigated for criminal responsibility according to the law because their acts have infringed upon the victims’ personal or property rights, but the public security organs or the People’s Procuratorates fail to investigate the criminal liability of the accused.

Victims of crime in China’s criminal justice system 153 The right to demand for a withdrawal Under Article 28 of the Criminal Procedure Law, in any of the following situations, a member of the judicial, procuratorial or investigatory personnel shall voluntarily withdraw, and the parties to the case (including the victim) and their legal representatives shall have the right to demand his withdrawal: (1) if he is a party, or a near relative of a party, to the case; (2) if he, or a near relative of his, has an interest in the case; (3) if he has served as a witness, expert witness, defender or agent ad litem in the current case; or (4) if he has any other relations with a party to the case that could affect the impartial handling of the case. The right to put questions to the defendant and to debate Under Article 155 of the Criminal Procedure Law, after the Public Prosecutor has read out the prosecution’s case in court, the victim may present facts of the case pertaining to the criminal proceedings. The victim, the plaintiff and the defender in an incidental civil action and the agents ad litem may, with the permission of the presiding judge, put questions to the defendant. Under Article 160 of the Criminal Procedure Law, the victim has the right to argue his case during the proceedings. The right to request the People’s Procuratorate to present a protest Under Article 182 of the Criminal Procedure Law, if the victim or his legal representative refuses to accept a judgment at first instance made by a local People’s Court at any level, he has the right to request the People’s Procuratorate to present a protest within five days from the date of receiving the written judgment. The People’s Procuratorate shall, within five days from the date of receiving the request made by the victim or his legal representative, decide whether to present the protest or not, and to give him a reply. The right to file an incidental civil action Under Article 77 of the Criminal Procedure Law, if a victim has suffered a material loss as a result of the defendant’s criminal act, he has the right to file an incidental civil action during the course of the criminal proceedings. The right to present a petition against a judgment or order Under Article 203 of the Criminal Procedure Law, the victim may present a petition to a People’s Court or a People’s Procuratorate against a legally effective judgment or order, but execution of the judgment or order is not to be suspended in the meantime.

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Under Article 204 of the Criminal Procedure Law, if a petition presented by a party or his legal representative or his near relative conforms to any of the following conditions, the People’s Court shall retry the case: (1) there is new evidence to prove that the facts in the original judgment or order is definitely wrong; (2) there is proof that the evidence upon which the condemnation was made and punishment meted out is unreliable and insufficient, or the major pieces of evidence for supporting the facts of the case contradict each other; (3) the application of the law in making the original judgment or order is definitely incorrect; or (4) the judges in trying the case committed acts of embezzlement, bribery or malpractices for personal gain, or misused the law in making the judgment. As a result of the above provisions, victims of crime in China may be perceived to have a relatively good position in the criminal justice system. Victims not only have the right to bring a private prosecution and to file an incidental civil action, they also have the right to present a petition or lawsuit against the decision not to initiate a prosecution. They have the right to put questions to the defendant and to debate, and the right to request the People’s Procuratorate to present a protest etc. Problems In reality, however, the legislative intention behind the Criminal Procedure Law did not fully materialize in judicial practice, and victim’s rights have not been properly protected. This embarrassing situation can be seen as follows. First, when a victim considers that a case should be filed for investigation by a public security organ but the latter has not done so, the victim is almost unable to change the situation. Although the victim can bring a suit directly to a People’s Court, this is often not done in practice because of the victim’s limited ability to adduce evidence. Second, during the period for examining a case and initiating a prosecution, the possibility of turning a public prosecution into a private prosecution is almost impossible owing to the difficulty of adducing evidence. There is almost no successful case in practice. Third, although the victim is basically in the position of a party (litigant) during trial, his position in the trial is not very favourable, and his submission in court is sometimes limited by the judge, and the victim is unable to challenge the court’s decision. Fourth, the victim is usually unable to bring a private prosecution because of the difficulty in getting help from the public security organs and the Procuratorates. Fifth, with respect to an incidental civil action, the victim has difficulty in getting civil compensation if the defendant is adjudged innocent because the progress of the incidental civil action depends on the result of the criminal case to a great extent. Moreover, the victim has no right to claim for general damages, and the scope of compensation is very narrow. At the

Victims of crime in China’s criminal justice system 155 same time, there is no system of State-funded compensation, thus making it difficult for victims of crime to receive adequate compensation. Last, the victim is not involved in the execution of the sentence. There is no legal remedy available if the victim refuses to accept the related decision such as changing a custodial sentence to parole or serving the sentence outside prison etc. In summary, there is a big gulf between the rationale behind the Criminal Procedure Law and judicial practice as to the protection of the victim’s rights. We should pay attention to these problems, take steps to change the situation and strengthen the position of victims.

Suggestions on improving victim’s rights in China There are many theoretical discussions and suggestions in recent years in China as to how the victim’s litigation rights can be improved (see Dong 2005; Fang 2005; Tan 2005). Some of these are summarized below. Promoting the victim’s position in public prosecution First, more rights should be given to the victim during the investigation phase. When the victim reports a case to the police, the officer receiving the report should act on it and take the appropriate measures. The victim should have the right to know if the investigating organ does not file the case, or rejects the case, or when an arrest is made and the suspect put in custody etc. It is particularly important for the victim to have the right to apply for judicial review of the decision when the investigating organ does not file the case. Second, more rights should be given to the victim with regards to the examination of the case and initiating a prosecution. The victim should have the right to be informed when the procurator makes important decisions and the right to negotiate with the procurator. The victim should have the right to legal recourse if he or she refuses to accept the procurator’s decisions not to arrest or prosecute the offender. Third, the victim’s opinions should be properly considered. During the trial, the victim’s case should be brought before the court and heard by the judge so that the victim may receive a fair judgment. In addition, the victim’s right to obtain a legal remedy should be guaranteed. Finally, the victim should be involved in cases of commuting of punishment, granting of parole and serving a sentence outside prison etc., in order to ensure a fair judgment and to see that justice has been meted out. Making it easier for victims to initiate a private prosecution Most private prosecutors are in a weak position in society, and they usually dare not bring a prosecution to the court. At the same time, the burden of

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adducing evidence is on the victim in a private prosecution and that is, in fact, equal to asking the victim to bear the same responsibility as the investigating organs and public prosecutors. Scholars in China suggest that we should establish a procedure of compulsory prosecution for the victim in order to ease their burden in initiating a private prosecution. Hence, once the victim goes to court to commence a private prosecution, the national criminal judicial organs must get involved, and they must investigate the case and initiate a public prosecution. Efforts should be made to improve the position of the parties, case categories and the procedure of private prosecution. Amending the traditional mode of civil suit collateral to criminal proceedings Compensatory damages is very important to victims of crime who have suffered loss or damage to their property from the crime. Generally speaking, victims can obtain their damages for their losses through civil procedure, civil suit collateral to criminal proceedings, insurance, etc. The common way in China is civil suit collateral to criminal proceedings, but there are many shortcomings to it. Scholars in China suggest that we should amend our civil suit collateral to criminal proceedings to establish an independent civil procedure together with incidental civil action. Victims should have the right to choose which proceedings they prefer. There are still many obstacles and difficulties in the law of damages because Article 77 of the Criminal Procedure Law restricts the scope of compensation to ‘material losses as a result of the defendant’s criminal act’. There are no provisions for general damages or punitive damages. Many scholars in China have criticized the provision and suggested an extension to the scope of compensation to include damages for mental anguish, indirect loss and punitive damages as well. Increasing the availability of legal aid Article 11 of the Regulation on Legal Aid in China stipulates that in the course of criminal proceedings, a person may apply to the legal aid institutions for legal aid under the following circumstances: 1

2

A criminal suspect is unable to hire a lawyer due to financial difficulties after he is interrogated for the first time by the investigating organ or when mandatory measures are effected. The victim, his legal agent, or his close relative in public prosecution cases is unable to engage an agent ad litem because of financial difficulties when the case is transferred for examination to commence prosecution.

Victims of crime in China’s criminal justice system 157 3

A private prosecutor or the legal agent in private prosecution cases is unable to engage an agent ad litem due to financial difficulties when the case is established by the People’s Court.

Although the above regulation has made a lot of improvements to ensure legal aid to victims of crime, there are still many shortcomings. When the Criminal Procedure Law of the People’s Republic of China is revised in the future, it is hoped that the victim’s right to legal aid and the legal aid system will be prescribed in this basic law. Establishment of a State-funded compensation system for victims in China State-funded compensation is an important aspect of support for victims of crime. Such compensation systems have been established in most Western countries. Although Article 63 of the Criminal Law and Article 77 of the Criminal Procedure Law allow victims who suffered damages in criminal cases to obtain monetary compensation, the victims may not be able to get compensation from the offenders in practice. The court’s civil judgment collateral to criminal proceedings is ineffective because of the difficulty in enforcing judgment. Therefore, the establishment of a State-funded compensation system for victims in China is very important. Some parts of China have implemented different experimental forms of compensation by now, and there are also many discussions on the form that a State-funded compensation system for victims in China should take (see Hu and Zhang 2004; Sun 2004; Dong 2005; Fang 2005). Some of the points raised are as follows. Principles of national compensation State-funded compensation should be granted according to the following basic principles. First, timely compensation: victims should be given prompt and timely compensation to lighten their suffering. Interim compensation to appropriate victims should be given when a criminal case is not solved and the criminal is not brought to justice for a long time. Second, adequate compensation: the scope and amount of compensation awarded should be commensurate with the loss suffered by the victim. Sources of funding There are suggestions to establish a special foundation to compensate the victim, with the national financial budget being its main source of income. Other sources include fines, a prisoner’s labour income, the confiscation and sale of a criminal’s property, legal fees, the sale of unclaimed property and donations.

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Organ in charge Different organs are set up in different countries to manage their Statefunded compensation systems. Some countries (such as England and Japan) established a specialized committee, while others allow the court to decide on the compensation (such as in some states of the United States of America). In China, possible compensation organs include the court, procuratorate, public security organ, judicial administration and special committee. In my view, no matter which organ exercises the power to award compensation, the applicant should have the right to apply for administrative review and to pursue the case by way of an administrative suit if he refuses to accept the decision made by the compensation organ. Type of offence covered Very few countries provide compensation for all victims of crime. Most only compensate victims of violent crimes. In my view, the latter is the correct approach and that only victims of violent crimes should be compensated in China. Eligibility criteria of the applicant In general, a victim applying for State-funded compensation should comply with the following conditions. First, the victim must be unable to get compensation from the criminal or the other organs because the case has not been decided and the suspect has not been arrested, or the suspect’s family is poor and has no ability to pay compensation. Second, the victim and criminal must not be kin related to each other. Third, the victim must not be responsible for the crime or, at the very least, his responsibility in the crime must be very limited. In cases where the victim has some responsibility in the crime, he should not be granted compensation or the compensation should be reduced. Fourth, the victim should cooperate with the investigating and other judicial organs. If he does not, he should not be granted compensation or the compensation should be reduced. Amount of compensation The determination of the standard and amount of State-funded compensation should accord with the following basic principles. First, State-funded compensation should be limited to the loss incurred by the victim. Second, the amount of compensation should consider the nature and the degree of damage. Third, compensation should be reduced if the victim has received compensation from other sources such as the criminal or his insurance company.

Victims of crime in China’s criminal justice system 159 A quota is usually used in other counties in deciding on the actual amount of compensation. Taking into consideration the economic conditions in China, the amount of compensation should be limited to the actual loss incurred by the victim. At the same time, in order to protect the victim’s rights and interests, the compensation amount should be of a minimum level, and the amount should be at least enough to maintain the living standard of the victim and his relatives, or any person who is supported by the victim, at subsistence level. Application procedure The two steps to getting State-funded compensation – namely, the application and the investigation of the application – should be prescribed by law. If the victim refuses to accept the decision relating to his application for compensation, he should have the right to make an appeal.

Conclusion Due to the different culture, traditions, and socio-political climate of China as compared to the West, issues concerning victims of crime in China are different. Reforms to the criminal justice system are needed in order to realize the protection of victims’ rights in China. It is my belief that such reforms, along with greater protection given to human rights in general, will be made in the near future.

References Dong, Shitan. (2005) ‘Theory and Practice of Protection of Criminal Victims’ Rights’, Legal Forum, 20(2), 97–105. Fang, Baoguo. (2005) ‘The Protection of Victims in Criminal Procedure.’ Dissertation. Beijing: Peking University. Hu, Miaofen and Zhang, Jinlong. (2004) ‘Thinking on the Establishment of National Victim Compensation System’, Journal of Zhejiang Police College, 6, 65–7. Sun, Caihong. (2004) ‘Imagination of Establishment of National Victim Compensation System’, Journal of Henan Normal University, 31(1), 102–103. Tan, Guangxu. (2005) ‘On the Litigation Position of Criminal Victims in China’, Journal of Hunan Tax College, 18(3), 37–40.

Legislation and treaties Criminal Procedure Law of the People’s Republic of China. (1996). Criminal Law of the People’s Republic of China. (1997). Regulation on Legal Aid. (2003).

7

The role of the victim in the Indian criminal justice system Mrinal Satish

The plight of victims of crimes has always been of interest to society. This is evidenced by the importance given to the victim by the media, which attempts to highlight the trauma that the victim suffers, sensationalizing the same in the process. However, when one examines the role of the victim in the criminal justice system, especially in countries that follow the adversarial system, it appears that the society seeks to sympathize with the victim, but does not consider it important enough to give the victim a role in the prosecution of the crime committed against him or her. It is in this context that examining the role of the victim in the criminal justice system becomes relevant, especially in a country like India, which prides itself on the fact that its Constitution embodies a plethora of rights, most of which are accused-centric. Before examining the issue of the role of the victim, one needs to see why there is a need for an emphasis being given to the victim. It has to be recognized that the victim is one of the pillars of the criminal justice system and that without the cooperation of the victim the system will collapse. The Home Office of the United Kingdom in a strategy document published in November 2002 stated that there is a need to focus on victims and witnesses, because they are essential to the success of the entire criminal justice system (United Kingdom Home Office 2002). The Justice Mallimath Committee,1 which was established by the Government of India to suggest reforms to the criminal justice system, states that support of victims and witnesses will not be forthcoming unless their status is considerably improved, and hence there is a need to reform the law to this extent (Mallimath 2003).2 Similarly the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 by the United Nations General Assembly states that victims of crime and their families are unjustly subjected to loss, damage or injury and that they may suffer hardship when assisting in the prosecution of offenders. Keeping this in mind, the United Nations envisaged a more prominent role for the victim. Hence, the question to be answered is whether the victim is being completely ignored. For this purpose, this chapter will examine a few critical issues, arising out of the role accorded to the victim under the Indian crim-

The role of the victim in the Indian criminal justice system 161 inal justice system. The first part of the chapter will examine the role of the victim in initiating criminal proceedings. The second issue examined is the investigative process and whether the Code of Criminal Procedure of 19733 (CrPC) envisages a role for the victim. It will also look at the role of the victim at the post-investigation and pre-trial stages. Third, the issue of whether a victim should be allowed to participate in the trial will be analysed. In this context, the chapter will examine the approach of the West and examine whether it exists in Indian law, and, if not, whether it is feasible to introduce it in Indian law. Finally, the chapter will examine the role of the victim in compounding of offences and withdrawal of prosecution by the State.

The role of the victim in filing the first information report The CrPC classifies offences into cognizable and non-cognizable offences. The distinction is based primarily on the power of the police to arrest without warrant in the case of cognizable offences. The CrPC also provides that in the case of non-cognizable offences, a police officer does not have the power to investigate without the permission of the magistrate. This implies that in the case of a cognizable offence, a police officer has the duty to record the information given and to then investigate the offence. The permission of the magistrate is not required for the same. In the event that the police officer does not record the information given to him, the victim/informant can send the information in writing to a superintendent of police, who is an officer superior in the hierarchy. However, the provision mandates that the same needs to be done by post. This creates a problem because of the time that this process takes. Assuming that both the postal department and the superintendent of police are efficient, a delay of forty-eight hours can reasonably occur. This gives ample time to the accused to tamper with the evidence, and the first information report (the report under Section 154 of the CrPC) would then become fruitless. The CrPC also gives the informant the option of approaching the magistrate directly, under Section 190(1)(a). This is termed as a ‘private complaint’ and the magistrate is empowered to order investigation, under his or her supervision. This is a formal process and would require the victim to engage a lawyer in order to satisfy the formal requirements stipulated by the law. In the context of filing the first information report the Indian law appears to put the onus completely on the victim. If the case is a non-cognizable one, the police are required to refer the informant to the magistrate. Hence, there arises a scope for misuse by the police, which have been empirically recorded in India. The Mallimath committee report records the fact that informants are treated indifferently by the police and sometimes threatened when they go to them with their grievances. The facts are distorted in order to make cognizable cases non-cognizable (Mallimath 2003). Hence, it becomes important to explore the alternatives available to the present

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system, especially in the Indian context, where most of the population believe that if a crime is committed, they can only approach the police. If the police tell the victim that he or she has to approach the magistrate, the victim will not be able to understand the rationale for this requirement. One point of reference can be the French criminal justice system. Under the French criminal law if the police do not have jurisdiction to investigate the offence reported, they are required to take the statement of the victim and pass the statement to the competent authorities. Incorporating this approach into the Indian criminal law would be beneficial for two reasons. First, the police will become the single point for the victim/informant to approach, which will address the problems that the present system is said to have. Second, the time of a magistrate may be better utilized, since instead of personally recording the statement of the victim/informant, the magistrate will have to peruse the recorded statement and take a decision whether the case ought to be investigated or not. Another alternative, which is suggested by the Mallimath committee report, is that the distinction between cognizable and non-cognizable offences in relation to the power of the police to investigate offences should be removed, and it should be made obligatory on the police to entertain complaints regarding commission of all offences and to investigate them. (Mallimath 2003). In my opinion, this is not desirable. The rationale in making this distinction is to keep the police out in certain situations. For instance, all offences against the institution of marriage are non-cognizable offences. The legislature seems to have intended that the magistrate apply his or her mind before permitting the police to investigate such a complaint. Removing the distinction would nullify this objective. Hence, the French system seems to be more practical and desirable. The Supreme Court of India, in the case of Delhi Domestic Working Women’s Forum v. Union of India (1995), laid down guidelines with respect to the manner in which the victim ought to be handled in cases of sexual assaults. It stated that complainants of sexual assault should be provided with legal representation, right from the stage of filing of the first information report. It stated that legal assistance should be provided at the police station, since the victim of sexual assault might be in a distressed state upon arrival at the police station and, therefore, the guidance and support of a lawyer at this stage and while she is being questioned by the police would be of great assistance to her. The court further held that in the event of the victim not being able to hire a lawyer of her own, the State should provide one and the police station should maintain a list of lawyers who could help in such cases. Hence, the Supreme Court has recognized the fact that the victim, like the accused, requires legal help and representation at the time of filing the first information report. Although the decision was in the context of sexual assault, the ratio of the case reflects the opinion of the court as regard rights of victims.

The role of the victim in the Indian criminal justice system 163

The process of investigation and the victim The CrPC does not seem to give any role to the victim during investigation. The statement of the victim, if he or she also happens to be the informant, is recorded in the first information report. If the victim is not the informant, then the victim will be independently questioned by the police. In this part of the chapter, I shall examine the procedure for investigation as prescribed in the CrPC and analyse whether the victim can play a role in the system, as it presently exists. The term ‘investigation’ is defined to include all the proceedings under the CrPC for the collection of evidence, conducted by a police officer or by any person authorized to do so by a magistrate. As soon as the investigation is completed, the investigating officer has to forward a report in the form prescribed in the section to the magistrate. Hence, investigation begins with the filing of the first information report and ends with the submission of the final report, under Section 173. The final report is also referred to as the ‘charge sheet’. The Supreme Court of India in H.N. Rishbud v. State of Delhi (1995) ruled that investigation consists of the following steps: first, proceeding to the scene of crime; second, ascertainment of the facts and circumstances of the case; third, discovery and arrest of the offender; fourth, collection of evidence relating to the commission of the offence, which may consist of examination of various people acquainted with the case and search of places or seizure of things necessary for the investigation; fifth, formation of opinion as to whether, on the basis of the material collected, there is a case to place the accused before the magistrate for trial and, if so, taking the necessary steps to do so by the filing of a charge sheet. If we look at Sections 2(h) and 173 of the CrPC, along with the definition given by the Supreme Court, it is clear that there is no reason why the police cannot involve the victim in the process of investigation. In fact, assistance of the victim might help the police in the process. However, practice reveals that once the statement of the victim is recorded, the case is completely within the control of the police and they do not involve the victim in the investigative process at all. The Mallimath committee report suggests that the victim should play an active part in during investigation (Mallimath 2003).4 The objective of the criminal justice system, according to the committee, is to find out the truth. Hence, the victim’s involvement becomes very important. The victim can assist the investigation in finding the offender and in collecting evidence to prove the commission of the offence by the criminal. The committee also suggests that the victim should be allowed to offer suggestions with respect to the investigation and should be given the power to move the court for appropriate directions, to ensure proper investigation of the case. This is similar to the French system, wherein, during the pre-trial inquiry, the victim enjoys the same rights of participation as the suspect. He or she may request the juge d’instruction to

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carry out particular investigations, and through his or her lawyer, access to the case dossier is provided. Returning to the Indian CrPC, another important section is Section 157. This section deals with the procedure for investigation. It states that if it appears to the police officer that there is no sufficient ground for entering an investigation, he or she shall not investigate the case. However, if such a decision is taken, the officer is required to notify the informant the fact that the case will not be investigated. This seems to have been provided to allow the informant to exercise the other options available in the CrPC to set the criminal justice system into motion. The next important section in the CrPC is Section 167, which states that a person can be kept in custody for a period of ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or ten years; and sixty days in all other cases. If the police do not complete their investigation within the said time period, the accused is entitled to be released on bail, subject to satisfying the conditions prescribed. This is another place where the victim can intervene and demand an explanation from the police as to why the investigation has not been completed on time. It would be desirable to incorporate a provision mandating the police keep the victim informed of the progress of the investigation. If the victim can contribute in expediting the process, his or her assistance should be taken. Section 169 of the CrPC states that, if upon an investigation, it appears to the police officer that there is not sufficient evidence or reasonable ground of suspicion to forward the accused to the magistrate, the officer may release the accused, after taking a bond. This is yet another stage at which the victim may be permitted to intervene. Another development in the Indian law is the passing of the Right to Information Act of 2005, which may be utilized by the victim to seek information from the police. However, there are certain exceptions under the Act, pertaining to investigation of offences, which may prevent access to the information sought. Section 173 of the CrPC is a place where the informant is expressly mentioned. Subsection 2(ii) states that, at the time of filing the charge sheet with the magistrate, the police officer shall also communicate the action taken by him to the person who first gave the information relating to the commission of the offence. Hence, the CrPC clearly involves the informant in the investigative process in two situations – the first under Section 170 (under which a preliminary report is submitted to the magistrate by the police, if they believe that an offence has been committed) and the second under Section 173(2)(ii). Once the charge sheet is filed, the magistrate may take cognizance of the offence. In the event of the magistrate deciding not to take cognizance of the matter, the CrPC is silent as to whether, as in Section 173(2)(ii), the informant should be notified or whether the informant has the right to be heard. Taking note of this situation, the Supreme Court of India in Bhagwant Singh v. Commissioner of Police (1985) ruled that in a case where

The role of the victim in the Indian criminal justice system 165 the magistrate to whom a report is forwarded under Section 173 decides not to take cognizance of the offence or takes a view that there are no sufficient grounds for proceeding against some of the persons named in the first information report, the magistrate must give notice to the informant and provide him or her an opportunity to be heard at the time the report is considered. This was reiterated by the court in a subsequent case, Union Public Service Commission v. Papaiah (1997). The Mallimath committee report supports the view of the court and recommends an amendment in the CrPC in this regard (Mallimath 2003).5

Participation of the victim in the trial The term ‘participation’, in the context of victims, has been defined to include ‘being in control, having a say, being listened to or being treated with dignity and respect’ (Doak 2005: 295). The debate in the context of participation of the victim in the trial revolves around the issue of when and to what extent should the victim be allowed to participate. In this part of the chapter, I shall examine the Indian CrPC and the extent to which victims are permitted to have a voice in the prosecution of crimes against them. Crime is considered, in most jurisdictions, to be an offence against society. It is also opined that criminal liability imports stronger moral culpability than other forms of legal liability. Hence, crimes are distinguished from other unlawful acts, by virtue of their public character (Edwards 2002). This implies that the society is the victim of such a crime and it is the duty of the society to restore the balance disturbed by the commission of the crime. Hence, the State, and not the actual victims, has the responsibility to prosecute offenders. The Indian system classifies trials into those that are conducted by a ‘Court of Session’ and those that are conducted by a ‘magistrate’s court’. Section 24 of the CrPC creates the post of a ‘Public Prosecutor’. The Public Prosecutor is appointed by the government for conducting prosecutions, appeals or any other proceedings on behalf of the government. Section 301 of the CrPC states that the Public Prosecutor in charge of a case may appear and plead without any written authority, before any court in which the case is under inquiry, trial or appeal. More importantly, Subsection (2) of the same section makes a provision for the appointment of a pleader by a private person. The powers of the pleader are restricted, since the section states that the prosecution will be carried out by the Public Prosecutor, and the pleader shall act under the directions of the Prosecutor. The pleader is however allowed to submit written arguments to the court, if it so permits, after the evidence is closed. Section 302 of the CrPC goes a step further. It states that any magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of inspector. This thus empowers the victim to argue the case himself or herself or through his or her pleader. The only limitation to

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this right is provided in Section 225 of the CrPC. This section states that in every trial before the Court of Session, the prosecution shall be conducted by a Public Prosecutor. Hence, in a trial before the Court of Session, the victim can only exercise his or her rights to appoint a pleader, as provided by Section 301(2) of the CrPC. The Supreme Court of India in Thakur Ram v. State of Bihar (1966) ruled that in a case which has proceeded on the basis of a charge sheet, a private party has no locus standi. It further ruled that, barring a few exceptions, in criminal matters the aggrieved party is the State, which is the custodian of the social interests of the community at large, and hence it is the duty of the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book. In Kuldip Singh v. State of Haryana (1980), the High Court of the provinces of Punjab and Haryana ruled that the court has no role to play as regards the victim hiring his or her own pleader, since the pleader’s role is confined to briefing the Public Prosecutor. The court further ruled that it comes into picture only if the counsel so appointed, seeks to submit written arguments. In Arunachalam v. P.S.R. Sadhanantham (1979), the Supreme Court ruled that under Article 136 of the Constitution of India,6 it can hear appeals filed by a third party against the order of acquittal by the High Court, since the said provision does not prevent third parties from filing an appeal before the court. Subsequently, in Manne Subbarao v. State of Andhra Pradesh (1980), the Supreme Court went to the extent of ruling that a third party, who is neither the informant nor the victim, has a right to appeal to the Supreme Court, if the High Court acquits the accused and the State does not prefer an appeal. The court ruled that the criminal justice system supports the view that a wrong done to anyone is a wrong done to oneself. Justice is outraged when a guilty person is allowed to go away unpunished. It further held that access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence. However, in the case of Praveen Malhotra v. State (1990), the Delhi High Court distinguished the abovementioned cases and ruled that there is no scope of intervention by a third party, in a case where the accused has sought bail. The court said that the Supreme Court was dealing with cases under Article 136 of the Constitution of India and the decisions in the two cases were to be applied only in that context. The court relied on the case of Indu Bala v. Delhi Administration (1991) where the Delhi High Court ruled that there was no provision in the CrPC which permitted a complainant or a third party to oppose an application for the grant of bail or anticipatory bail. In both these cases decided by the High Court of Delhi, the petitioners had sought intervention of the court under Section 482 of the CrPC, which saves the inherent powers of the High Court and allows the High Court to exercise residual powers in order to prevent miscarriage of justice. One of the restrictions on usage of this section is that the court is not empowered to do something which is expressly barred by

The role of the victim in the Indian criminal justice system 167 the CrPC. Hence, in these two cases, the court refused to exercise its powers under the said section, on the ground that it is not permitted to circumvent the law and go against the existing law. Hence, the High Court of Delhi has ruled that in cases of bail, the victim or any other third party does not have the right to intervene and oppose the application for bail. This is problematic for two reasons. First, it is the prosecutor, who is an officer of the court and is not considered to be the advocate for the State, who is nevertheless expected to play the role of the advocate for the State, since he or she is appointed by the State and is remunerated by the State. Hence, it is natural for the prosecutor to take instructions from the government. Second, bail is granted if the prosecutor does not oppose the application. The prosecutor might not oppose bail for a variety of reasons. This might be to the detriment of the victim, if the accused is a person who has the capacity or the tendency to tamper with evidence. If this fact is not brought to the attention of the court, by the prosecutor, the court will generally grant bail. Hence, it is important to permit the victim to bring to light facts that the prosecutor has not addressed. It is ultimately up to the court to decide on the issue. However, in the two decisions of the High Court of Delhi, it is pertinent and interesting to note that no reference was made to Sections 301 or 302 of the CrPC. There are a few other cases which state that the victim has no right to participate in the trial process. In P.V. Narasimha Rao v. State (1997) the petitioner sought to intervene in an appeal filed by the accused against the order of the trial court. The Delhi High Court ruled that there was no provision in the CrPC, analogous to a provision in the Code of Civil Procedure, which permits representative suits. The court ruled that a private party has no role in a proceeding instituted by the State. Hence, the application of the petitioner to intervene was rejected. In All India Democratic Women’s Association v. State (1998), the High Court of Madras ruled that Section 301(2) of the CrPC gives a third party only a right to assist the prosecution. The court held that the prosecution of criminal proceedings is the primary responsibility of the State and if third parties are permitted to intervene, then there will be a number of associations to represent one party or the other in criminal proceedings, and this would give rise to confusion and chaos. In Shiv Kumar v. Hukam Chand (1999) the Supreme Court, in attempting to explain the rationale behind Section 301 of the CrPC, stated that the reason behind the provision is to provide fairness to the accused during the trial. It further held that it is the duty of the Public Prosecutor to ensure that justice is done and if there is some issue that the defence could have raised, but has failed to, this should be brought to the attention of the court by the prosecutor. Hence, he or she functions as an officer of the court and not as the counsel of the State, whose objective is to obtain a conviction. It further stated that if the victim or the informant is allowed to have his or her own counsel, then the situation would be different, since the aim of such a counsel would be to obtain a conviction. The court ruled that the role of the

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advocate appointed by the victim would be similar to a junior counsel. The court cited the decision of Queen Empress v. Durga (1894), where the High Court of Allahabad had ruled that it is the duty of the Public Prosecutor to see that justice is vindicated, and he or she should not obtain an unrighteous conviction. It also cited the case of Medichetty Ramakistiah v. State of Andhra Pradesh (1959), where the court had ruled that prosecution should not mean persecution. The court had stated that courts should be zealous to see that the prosecution of an offender is not given to a third party. This, according to the court, would amount to a legalized manner of causing vengeance. However, there has been a change in the trend of judicial opinion on this issue. In Delhi Domestic Women’s Forum v. Union of India (1995), the Supreme Court, as stated earlier in this chapter, stressed on the fact that a victim of rape should be given legal representation, right from the stage of filing the first information report, till the end of the case. Hence, it is clear that the court envisaged a situation where the advocate of the victim is part of the prosecution team and hence, the victim actively participates in the trial of her assailant. In J.K. International v. Government of the National Capital Territory of Delhi (2001), the Supreme Court stated that Section 301 makes it clear that the fact that the police have investigated the case, based on the information given by the victim and filed a charge sheet on the basis of the investigation conducted as a consequence of the first information report, does not mean that the victim is wiped out from the scenario of the trial. The court further stated that if the case can be tried by the Court of Session, Section 225 of the CrPC would come into the picture. If the counsel for the victim submits written arguments to the court, it is under an obligation to consider the same, before deciding the case. It held that Section 302 of the CrPC is much wider and permits a private person to carry on the prosecution. Therefore the court recognized the fact that the CrPC does not negate the role of the victim in the trial process. From a perusal of these cases, it is clear that the Supreme Court of India has consistently ruled that the victim should be allowed to participate in the trial process. The question that the court has to determine is the extent of intervention. The magistrate may permit a private party to carry on the trial completely on his or her own. The next issue that needs to be examined, in the context of participation of the victim in the trial, is whether the opinion of the victim should be taken at the time of sentencing. In this context, it is relevant to examine the victim personal statement (VPS) scheme set up in the United Kingdom, under the Victim’s Charter (United Kingdom 1996). The VPS is intended to give importance to the views of the victim with regards to prosecuting and punishing offenders. The traditional view has been that victims are to have no role as decision-makers or consultees in the sentencing process. The only extent to which they may be allowed to participate is as information providers. Conflicts are taken out of the hands of the victims to ensure

The role of the victim in the Indian criminal justice system 169 impartial justice and rationality (Edwards 2002). Hence, it has been opined that the general principle is that no weight should be given to victims’ opinions. This is based on the rationale that given the public nature of criminal offences, the objectivity and rationality of the sentencing process has to be maintained (Edwards 2002). Theorists as well as judges who take the view that the victim has no role to play in the trial, base their objections on legal fictions and assumptions, which leads to the distortion of reality. The first fiction that operates is that a criminal act affects the society at large and, hence, it is the State which should prosecute the offender. While the State might or might not be affected, the victim definitely is, and hence, the role of the victim should not be negated. The assumption that the State derives the right to prosecute, because it is representing the society, which is the victim, indicates that the law recognizes the right of the victim to prosecute. The second fiction is in relation to the Public Prosecutor. The prosecutor, as stated earlier, is considered to be an officer of the court and not the counsel of the State. Cases in India such as Zahira Habibulla H Sheikh v. State of Gujarat (2004a) and Zahira Habibulla Sheikh v. State of Gujarat (2004b) have shown that prosecutors follow the instructions of the State Government at every step (Satish and Chandra 2005). Another provision of the CrPC that is worth examining in this context is Section 397. This section empowers a High Court or a Sessions Court to call for records of any proceedings before an inferior criminal court to satisfy itself as regards the legality, propriety or correctness of an order, sentence or finding of a lower court. This can be done by the court suo moto or on the basis of an application filed by anyone, including a person alien to the proceeding. Hence, the victim has the right to approach the court in ‘revision’ and point out an error in the inferior court. There appears to be no rationale in allowing the victim to intervene at a later stage but not at the initial stages (Satish and Chandra 2005). The Mallimath committee report has suggested quite a few changes to the CrPC to give the victim a prominent role. It suggests that the French system, wherein the victim becomes a party to the proceeding at the stage of investigation itself, be incorporated in the Indian law. It further suggests that the active participation of the victim in the trial will be of great help in the search for truth, without inconveniencing the prosecution. It suggests that the victim be permitted to suggest questions that the court may put to witnesses; that the victim be allowed to conduct the trial if the Public Prosecutor does not exercise due diligence; that the victim be allowed to supplement the evidence adduced by the prosecution and put forth his or her own arguments. The committee also suggests that the right of the victim should extend to prefer an appeal against any adverse order passed by the trial court. It further suggests that, as in the case of the accused, the victim should also be provided with a lawyer if he or she is indigent (Mallimath 2003).

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Compounding of offences and withdrawal from prosecution Another area where the role of the victim comes into prominence is in situations where the CrPC permits a premature end to the trial. Section 320 of the CrPC deals with compounding of offences, wherein the victim is allowed to withdraw the case filed by him or her. This is allowed only with respect to certain offences, enumerated in the said section. Section 321 of the CrPC, on the other hand, deals with situations where the State can withdraw from prosecuting the offender. In this part of the chapter, these two issues will be examined. The Mallimath committee report has recommended that more offences should be made compoundable. Hence, there seems to be a view that victims and offenders should be allowed to reach a settlement and this would lead to the burden on the courts being reduced. This also seems to support the view that punishment should not be retributive, but reformative. The issue to be examined is whether such a system will work in the Indian context, since the rationale behind increasing the number of compoundable offences is based on the fact that this would clear the backlog of cases in Indian criminal courts and ensure speedy justice. The problem of delays needs to be tackled independently and linking it to compounding will, in my opinion, lead to chaos and further exploitation of the victim. The other manner in which cases can be prematurely closed is by the State exercising its power to withdraw from prosecution, utilizing Section 321 of the CrPC. The section empowers the Public Prosecutor in charge of a case to withdraw from the prosecution of the case, at any stage of the proceedings. The usage of this provision has been quite controversial and the Supreme Court has laid down guidelines that the State needs to follow when withdrawing from prosecution. The issue that arises is whether the victim has a right to oppose such withdrawal by the State. The closest that the Supreme Court got to answering this issue was in the case of Abdul Karim v. State of Karnataka (2001). In this case, the State sought to withdraw serious charges under the Terrorist and Disruptive Activities (Prevention) Act, giving in to the demands of a brigand who had kidnapped a popular movie star. The father of one of the policemen killed by the brigand approached the Supreme Court, seeking its intervention in this case. The State did not challenge the locus standi of the petitioner and, hence, the court ruled on the merits of the case and laid down guidelines in that regard. Thus the court implicitly recognized the right of the victim to oppose applications filed by the State for withdrawal from prosecution.

Conclusion As mentioned earlier in the chapter, the CrPC does not expressly provide adequate rights to the victims at the stage of investigation. The Mallimath committee report recommends that in a country like India making a distinc-

The role of the victim in the Indian criminal justice system 171 tion between cognizable and non-cognizable offences in the context of investigation is not desirable. The victim should be given a more prominent role in the investigative process. In this context, learning from and incorporating the procedure laid down the French criminal justice system would be ideal. To suit the Indian context, the victim should be given the right of representation from the initial stages itself. The Mallimath committee report states that the aim of the criminal justice system is to uncover the truth, and the victim can play a very important role in helping the system achieve the same. The guidelines of the Supreme Court of India in the context of registering of first information reports in the context of cases of sexual assault should be incorporated into the law and made applicable in all cases. Coming to the participation of the victim in the trial, the CrPC goes to the extent of allowing the victim to conduct the prosecution in cases that can be tried by a magistrate. However, the lack of awareness of this provision leads to it not being used regularly. This is the situation as well with Section 357 of the CrPC which deals with victim compensation. This provision is also hardly used, which led to the Supreme Court in Hari Singh v. Sukhbir Singh (1988) exhorting lower courts to utilize the provision. Similarly, there appears to be a need for the court to issue similar guidelines to magistrates, asking them to inform victims of their rights under Section 302 of the CrPC It is desirable to allow the same in Courts of Session also, which can be done only through an amendment to Section 301 of the CrPC. The section as it exists presently is also not being adequately utilized and hence, it is more a problem of implementation, rather than a problem with the law. Finally, in the context of compounding of offences, as has already been discussed, the majority of India’s population is presently not in a position to understand the implications of compounding of offences or of plea bargaining, and hence it is not desirable to introduce a system wherein the rich and the powerful can get away with committing crimes by coercing victims into entering into a compromise. In the context of withdrawal of prosecution, an amendment would be essential to ensure that the State does not withdraw from prosecution, without taking the victim into confidence. The Indian CrPC gives adequate rights to victims of crime. It is the implementation of the law which matters, and this has always been a concern in the context of the Indian criminal justice system. With a few amendments and proper implementation, the law would be as good, if not better than, similar laws in the Western countries.

Notes 1

The Ministry of Home Affairs, Government of India, established a committee to suggest changes to the Indian criminal justice system. This committee was headed by Mr Justice V.S. Mallimath. The committee’s report suggested largescale changes to the Indian criminal justice system, some of which have been

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incorporated into the law. The report has a chapter on victims and the recommendations of the committee in the said chapter will be extensively used in this paper, for the purpose of analysis. At paras 6.1 and 6.2. The procedure with respect to investigation, inquiry and trial of criminal offences under the Indian Penal Code and all other special criminal statutes is contained in the Code of Criminal Procedure, 1973. At para. 2.20.3. At para. 6.7.6. The Article permits appeals by special leave, to the Supreme Court of India.

References Doak, J. (2005) ‘Victims’ Rights in Criminal Trials: Prospects for Participation’, Journal of Law and Society, 32, 294–316. Edwards, I. (2002) ‘The Place of Victims’ Preferences in the Sentencing of Their Offenders’, Criminal Law Review, 689–702. Mallimath, V.S. (2003) Report of the Committee on Reforms of the Criminal Justice System. Delhi: Ministry of Home Affairs, Government of India. Satish, M. and Chandra, C. (2005) ‘Third Party Intervention in Criminal Litigation’, 2 Supreme Court Cases (Journal): 75–80. United Kingdom Home Office. (1996) Victim’s Charter. London: HMSO. United Kingdom Home Office. (2002) A Better Deal for Victims and Witnesses. London: Home Office.

Legislation and treaties India Indian Penal Code (1860). Act No. 45 of 1860. Code of Civil Procedure (1908). Act No. 5 of 1908. Constitution of India (1950). Code of Criminal Procedure (1973). Act No. 2 of 1974. Terrorist and Disruptive Activities (Prevention) Act (1987). Act No. 28 of 1987. Right to Information Act (2005). Act No. 22 of 2005.

United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53.

Cases Abdul Karim v. State of Karnataka AIR 2001 SC 116. All India Democratic Women’s Association v. State 1998 Cri LJ 2629. Arunachalam v. P.S.R. Sadhanantham (1979) 2 SCC 297. Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537. Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14. H.N. Rishbud v. State of Delhi AIR 1995 SC 196.

The role of the victim in the Indian criminal justice system 173 Hari Singh v. Sukhbir Singh AIR 1988 SC 2127. Indu Bala v. Delhi Administration 1991 Cri LJ 1774. J.K. International v. Government of the National Capital Territory of Delhi (2001) 3 SCC 46. Kuldip Singh v. State of Haryana 1980 Cri LJ 1159. Manne Subbarao v. State of Andhra Pradesh (1980) 3 SCC 140. Medichetty Ramakistiah v. State of Andhra Pradesh AIR 1959 AP 659. P.V. Narasimha Rao v. State 1997 Cri LJ 3117. Praveen Malhotra v. State (1990) 41 DLT 418. Queen Empress v. Durga ILR (1894) 16 All 84. Shiv Kumar v. Hukam Chand (1997) 7 SCC 467. Thakur Ram v. State of Bihar AIR 1966 SC 911. Union Public Service Commission v. Papaiah 1997 Cri LJ 4636 (SC). Zahira Habibulla H Sheikh v. State of Gujarat (2004) 4 SCC 158. Zahira Habibulla Sheikh v. State of Gujarat (2004) 5 SCC 353.

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Assistance for victims of crime in Korea Kyoon-seok Cho

Current situation of crime victim assistance It is not an overstatement to say that Korea is now witnessing its renaissance in providing assistance to victims of crime. On 29 January 1981 the government of Korea introduced the compensation order system for victims of crime, and committed itself to implementing the compensation system on 3 July 1981. However, the government’s desire to provide financial assistance to victims of crime was not realized until an amendment to the Korean Constitution was made on 29 October 1987. This amendment was made after six years of research and review. The newly amended Article 30 of the Constitution guarantees that a person who has been personally injured by acts of crime may get aid from the State according to what the law provides thereon. On the basis of this provision, the Crime Victim Aid Act was adopted on 28 November 1987 and was implemented on 1 July 1988. In addition, the 1987 Constitutional amendment also guarantees the right of the victim to testify in court as a fundamental right in Paragraph 5 of Article 27. Thus, the rights of victims of crime are now expressly guaranteed as fundamental rights in the Constitution. Concomitantly, the State is obligated to protect the safety of its citizens, provide aid to those citizens who have become victims of crime, impose sanctions on criminals including punishment; and prevent the occurrence of crime. The social security provision of the Constitution, Paragraph 6 of Article 36, clearly stipulates that the State should strive to prevent and protect its citizens from disasters. Unfortunately, in spite of the Constitutional amendment, the rights of victims of crime have not been properly respected nor protected, and in some cases even neglected, because the criminal justice system places more emphasis on the protection and human rights of the offenders. Although some laws and systems for assistance to victims have been adopted with regard to such crimes as sexual violence and domestic violence, nothing has been done to help victims of crime in general. Assistance to victims of general crimes such as those involved in violent crimes like murder and robbery, traffic violations, and safety accidents is rare.

Assistance for victims of crime in Korea 175 Since 2003, the situation has changed with greater social concern for victims of crime and the introduction of new measures by concerned judicial authorities. The latest of such measures was the announcement on 1 September 2004 by the Ministry of Justice of a comprehensive plan to reinforce the protection of, and assistance to, victims of crime. This contained the following measures: 1 2 3 4 5 6

to improve the assistance system to help victims recover damages including introduction of the ‘reconciliation in court’ system; to support and promote the establishment of a victim support centre, which is a private corporation with public features; to expand the victim aid system to include direct compensation to victims by the State through the establishment of a victim aid fund; to adopt a ‘Basic Act for Assistance to Victims’ as a Bill of Rights for victims of crime; to prevent secondary victimization, i.e. psychological suffering caused by investigation or trial; and to increase the victim’s participation in the criminal justice process, including giving relevant information to victims.

Since then, the Ministry of Justice has been implementing this comprehensive plan step by step, starting with the submission of a basic law for victim protection, entitled Crime Victim Protection Bill, to the General Assembly on 31 August 2005. Second, the Supreme Prosecutor’s Office has recognized the need for substantial measures for assistance to victims by adopting the ‘reinforcement of protection of victims of crime’ as one of the four major tasks for the ‘Advisory Committee for the Reform of the Prosecutor’s Office’ in May 2003, and set up a task force for the protection of victims of crime whose chief is Cho, Kyoon Seok, then Senior Prosecutor in the Seoul High Prosecutor’s Office. In June 2004, this task force ordered that strict measures be established for the protection of, and assistance to, victims of crime and began implementing new measures on 1 October 2004, in the prosecutors’ offices nationwide. Those measures are as follows: 1

2 3

to refine the internal system of the prosecutors’ offices including the introduction of a system to assist victims of crime and to appoint a designated prosecutor in charge of rendering such assistance; to instruct police officers on victim protection and its assistance policy; and to support the establishment of a victim support centre.

The will and efforts of the Prosecutor’s Office to provide assistance to victims was clearly expressed in the following sentence contained in the 2005 New Year greetings of the Prosecutor General: ‘Victims’ human rights

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which have been neglected behind the curtain for the protection of human rights for the suspect and the accused, although they have not been found guilty, should be protected. With full implementation of our new victim assistance system, the anxiety of victims of crime shall be minimized.’ Third, the National Police Agency has been setting up and implementing various measures for assistance to victims, starting with the publication of The Human Rights Manual for Crime Victim Assistance in September 2003 and the introduction of a victim supporter. The Commissioner General has emphasized the ‘victim assistance policy’ as one of the top priorities for the year 2005 as a ‘New Year’ for victim assistance and established a human rights protection centre within the Agency on 22 February 2005 in order to reinforce victim protection. Fourth, the Committee on Judicial Reform, led by the Supreme Court, discussed the assistance provided to victims in the legal system and made the following recommendations in a final report submitted to the President in December 2004: 1 2 3 4

to improve the victim’s status by conferring a right to participate in the judicial process; to prevent secondary victimization; to allow more cases where a decision of non-prosecution can be reviewed by the court; to support public organizations involved in crime victim assistance.

The Presidential Commission on Judicial Reform was created in 2005 under the direct auspices of the President and many decisions were made. Those decisions are as follows: 1

2

to revise the Criminal Procedure Code in order to allow witness testimony via video link, to require a prosecutor to give victims notification of ongoing criminal judicial process, and reinforcement of a victim’s rights to testify in court; and to enact a Bill for crime victim assistance to stipulate that information on the ongoing criminal judicial process should be made available, promote a public organization for victim assistance and provide financial assistance.

This is the basis upon which the Crime Victim Protection Act was adopted by the General Assembly on 1 December 2005. Several causes can be found for the renewed social concern for victims of crime and the various measures for victim assistance undertaken by the judicial authorities since 2003. The one with the greatest impact was the victim support centre established as a public organization for crime victim assistance in the region of Gimcheon and Gumi on 5 September 2003 for the first time in Korea. Another event was that which occurred on 18 February

Assistance for victims of crime in Korea 177 2003, when 192 innocent people lost their lives during a criminal act of arson committed in a subway train in Daegu. This incident raised the question of victim assistance and, consequently, another victim support centre was established. It has been operating effectively with the support of Gimcheon branch, whose then chief at the time was Cho, Kyoon Seok, Senior Prosecutor of the Daegu Prosecutor’s Office. This centre attracted attention from many people throughout the country and made judicial authorities recognize the need for crime victim assistance.

Background to the discussion on crime victim assistance As explained above, there are various reasons for the recent increased interest in crime victim assistance. Here are some of the different reasons. Increased sense of insecurity about crime First of all, it should be pointed out that a sense of insecurity and the fear of damage caused by crime have increased. In 2004, the total number of reported crimes was 2,080,901, 3.82 per cent higher than that of 2003 which was 2,004,329. In particular, homicide has increased by 7.0 per cent, and rape by 7.1 per cent in comparison with those of the previous year (Legal Research and Training Institute of Ministry of Justice 2004–5). To that extent, people feel an increased sense of insecurity in their everyday lives. The fire on a Daegu subway on 18 February 2003 also caused widespread public concern. The fire in the subway was set by a person who had lost all interest in his life owing to a mental disorder, killing 192 and injuring 147 innocent people. In addition, terrible disasters have happened in the past, such as an accidental fire in a bar in Incheon on 30 October 1999 which killed 57 and injured 80 people, the collapse of the Sampoong Department Store on 28 June 1995 which killed 502 and injured 937 people, an urban gas facility explosion in Daegu on 28 April 1995 which killed 101 and injured 202 people and a collapse of the Sungsoo Bridge on 21 October 1994 which killed 32 and injured 17 people. This increase in crime and in the frequency of large-scale accidents have increased the fear of crime among the people as well as provided an opportunity to consider the sorrow, pain and agony suffered by those victims, their bereaved families and the need to assist them. Efforts by judicial authorities to regain public trust It is true that victims of crime have been neglected in the criminal justice system. Crime victims were not given sufficient rights to access and collect information, and to participate in the criminal justice system. They have also never been given any assistance to recover damages caused by the offender. For example, they were not notified of any information while the

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case involving them proceeded from the beginning of the investigation to the final verdict, nor of any notice on the release of the offender. During the investigation and trial procedure, the victims’ sufferings such as post-traumatic stress disorder were ignored, and the victim’s reputation and private life were often infringed upon. Victims therefore have the negative perception that it is of no use to report a crime; they may humiliate themselves and be victimized again during the investigation or trial; and recovery of damages is impossible. The accumulation of distrust for judicial authorities can eventually lead to a refusal to cooperate during investigation or at the trial of the offender. As a consequence, the judicial authorities have recognized that they have to regain the trust of the public. Various policies and measures have therefore been implemented, one of which is to have consideration for victims of crime and to have compassion and understanding for their needs. The judicial authorities have now come to the conclusion that the protection of, and assistance to, victims of crime not only serves to enhance public trust, but is also the morally right response to take in view that anyone can be a victim of crime. Emphasis on public participation, human rights and social welfare Some of the government’s primary goals are to enhance crime victim assistance; to establish a new atmosphere in Korean society, by putting more emphasis on democracy, human rights and social welfare in government policy; and to implement new programs to meet these goals. Many of these goals have been accomplished since the beginning of the current government. The changes in the social conditions inevitably provided an opportunity to review the human rights and welfare for aliens or minority groups. The issues of crime victims which have been ignored in the criminal justice system are also under review. Contributions by scholars and civic organizations Another factor is that the capacity of public organizations which conduct public activities for the protection of, and assistance to, victims of crime, and the capacity of scholars to continue their scholastic research have been enhanced. Since the establishment of the Korea Sexual Violence Relief Centre in April 1991, civic movements for victims of sexual violence have emerged. Subsequently various movements for victims of domestic violence, school violence and the trafficking of women and girls for sexual purposes have been developed under the leadership of some of the women’s organizations, and new laws and systems have been adopted. Furthermore, the scope of research activities by victimology scholars has expanded due to the activities of the Korean Association of Victomology in holding seminars and publishing scholarly works since its establishment on 25 April 1992.

Assistance for victims of crime in Korea 179 The activities of such scholars and public organizations have provided a theoretical background to the new laws and systems put in place, and have made a great contribution to the practical execution of those laws and systems.

Current system and improvements in crime victim assistance What kind of support should be given to victims of crime? What rights should they have? In relation to the rights of victims of crime, the United Nations General Assembly adopted the Declaration on Basic Principles of Justice for Victims of Crime and the Abuse of Power on 29 November 1985, which was implemented in many countries through their respective Bill of Rights and various laws. In general, the following are considered as the rights of victims of crime: 1 2 3 4 5 6 7

the right to fair treatment; the right to access information; the right for recovery; the right to express their opinions; the right to support; the right to be free from re-victimization; and the right to safe and secure living.

Protection of, and assistance to, victims of crime should fulfil the rights mentioned above. There has been a progression in the types of crime victim assistance rendered. In the 1960s financial assistance to victims of crime started; in the 1970s private organization assistance flourished; and in the 1980s and 1990s, systematic and legal assistance began. Now the focus has moved to the social welfare approach from the criminal justice approach. Systems that are in place in Korea (see Cho 2003) and the recent improvements made in them are discussed below. Adoption of an integrated basic law A basic law is ideal in giving systematic and comprehensive assistance to victims of crime. Accordingly, the Ministry of Justice prepared the draft Crime Victim Protection Bill after referring to similar laws in Japan, the United States, Thailand, Germany and other countries. The Bill was submitted to the National Assembly on 31 August 2005, and was adopted on 1 December 2005. It was promulgated on 23 December 2005, and it came into force on 24 March 2006. The Crime Victim Protection Act has 27 Articles in five chapters. Chapter 1 contains Articles on the purpose of the Act, its basic principles, the definition of victims of crime and the duties of the State, local governments and people. For the basic principles, it clearly stipulates:

180 1 2 3

Kyoon-seok Cho the human right of dignity to recover from damage due to crime; the right for protection of dignity and privacy; the right to participate in legal procedures.

The Act reflects the following three elements of protection of, and assistance to, victims of crime: efficient recovery from criminal damage, victims’ participation in the criminal justice system and the prevention of secondary victimization. The Act extends the concepts of victims of crime, which were previously provided in various laws. It now includes a person who has been injured by a criminal act, his or her spouse (including those in a de facto marital relationship), lineal ascendants and descendants, brothers and sisters as well as a person who was injured while conducting an act of crime prevention or providing aid to the victim. It integrates the notions and systems for crime victim protection found in many individual laws, which allows the concept to be considered holistically instead of in an isolated manner under different laws. At the same time, the concept of ‘protection of, and assistance to, victims of crime’ includes activities contributing to recovery from criminal damage, execution of rights and enhancement of welfare, but does not involve activities that would have undue influence on the investigation, trial or legal defence of the offender. In Chapter 2 of the Act, various support measures for recovery are prescribed such as counselling, medical help, financial assistance, legal assistance and employment support. Victims of crime have the right to consult with investigators or participate in the trial procedure in relation to the case involving them as well as the right to information on the investigation results, trial date, trial result and sentence imposed, etc. Furthermore, there are provisions regarding the protection of the honour and privacy of victims of crime; training and education of personnel working for protection of, and assistance to, victims of crime; and the examination of actual situations of victims of crime and the necessity of public awareness. Chapter 3 provides that the Minister of Justice should chart a plan for a systematic national protection and assistance programme every five years. The basic plan is to be discussed by the Crime Victim Protection Committee which comprises representatives from the Prosecutor’s Office, National Police, Ministry of Gender Equality, Ministry of Education and Human Resources Development as well as some public experts. After the Minister of Justice adopts the basic plan decided by the Crime Victim Protection Committee, the minister and heads of other relevant central governmental agencies and local governments should prepare and enforce an annual plan for the implementation of the basic plan. The Basic Act for a Healthy Family, the Framework Act on Women’s Development, the Framework Act on Juveniles and the Framework Act on Science and Technology have similar provisions which require the Ministry in charge to make a basic plan

Assistance for victims of crime in Korea 181 and the relevant agencies to prepare their respective enforcement plans in consultation with each other. Chapter 4 contains provisions for the setting up of corporations by those rendering assistance to victims of crime. In order to establish such a corporation, registration with the Ministry of Justice and the fulfilment of several requirements is needed. Such registered corporations will be supported by the State or local governments and, in exchange, they must accept certain responsibilities and supervision. Crime victim support centres, which have already been established, may be registered pursuant to this Act and receive a subsidy. The Act does not have a specific provision to exempt such corporations from tax but they can apply to the Ministry of Justice for tax exemption which is given after consultation within the government. Financial assistance Crime Victim Aid Fund According to the Crime Victim Aid Act adopted in 1987, the bereaved family of a person who has died or a person who suffers a serious disability due to a criminal act injuring human life or body is able to receive a limited amount of financial aid. The original system, however, was ineffective for the following reasons: 1

2

3 4

5

Besides the obscurity and insolvency of the offender who committed crime, there is a strict requirement that the crime victim be unable to maintain his or her livelihood; Cases where non-payment is allowed are broad, such as those where the victim and offender are related to each other (including those in a de facto marital relationship), where the victim provokes a criminal act, where the occurrence of the criminal injury is attributable to the victim or even where it is deemed proper in the socially accepted view not to pay the whole or part of financial aid; The range of criminal injury is limited to death and serious disability graded 1 through 3; The amount of financial aid is limited to 10 million won (about US$10,000) in the case of a death; 6 million won in the case of a grade 1 injury; 4 million won in the case of a grade 2 injury; and 3 million won in the case of a grade 3 injury; and There was little public awareness of the system.1

In order to reduce the prerequisites for receiving financial aid and to extend the time limits for such applications, the Crime Victim Aid Act was amended on 8 December 2005 and these amendments will become effective on 24 June 2006. The new system will have the following features:

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2

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Kyoon-seok Cho The requirement that the crime victim be unable to maintain his or her livelihood will be deleted. This recognizes the fact that the State should not be exempt from liability for failing to fulfil its crime prevention duty by using the victims’ financial capacity as an excuse. Under the amended law, financial aid will be paid regardless of whether the deceased victim is responsible or not for the bereaved family’s livelihood at the time of his death and the victim’s spouse is recognized as the first beneficiary of such financial aid. This is unlike the previous system which required proof that the bereaved family is dependent on the deceased victim for their livelihood. The time limit for application for financial aid has been extended to two years from one year after the occurrence of the criminal injury has become known. This is in recognition that one year is too short in deciding whether to apply for payment of financial aid or not, considering the time to be spent for the investigation.

Nevertheless, the following elements still require improvement: 1

2

The level of financial aid should be raised. The amount given to a family bereaved by crime, 10 million won (about US10,000), is too little in comparison with the consolation money (50 million won) for the bereaved family of a traffic accident. The sum should be raised to 30 million won. In 2003, 2,156 people lost their lives through acts of crime, whereas 9,633 people died due to traffic and other accidents. The financial aid for disabled victims of crime is also too little. The amount should also be raised up to 30 million won to be equivalent to that of financial aid proposed for the bereaved family. Those who suffer disability from grade 4 to grade 10 should also be eligible for financial aid.

Bounty for reporting crimes The informant (and his family) of particular crimes such as violent or narcotics crimes who are in fear of retaliation, suffer from financial loss or pay for moving expenses or job change, may get up to one million won of bounty according to Article 14 of the Protection of Informants etc. of Specific Crimes Act. A person who has tipped any investigation agency off about any crimes of trafficking of women and girls for sexual purposes may also be paid a bounty according to Article 28 of the Act on Punishment of Acts of Arranging Sexual Trafficking.

Assistance for victims of crime in Korea 183 Compensation for traffic accidents caused by uninsured cars or hit-and-run accidents Victims of traffic accidents which were caused by unknown drivers, uninsured cars, stolen cars or drivers without licences who have no other compensation, are entitled to 80 million won in a case of death, 15 million won in case of injury and 80 million won for the aftermath, according to Article 5 of the Guarantee of Automobile Accident Compensation Act. Compensation money for a person killed or wounded for a righteous cause A person who is killed or injured while trying to save another person’s life, body or property from imminent danger may be paid a similar amount of compensation as that which would have been given to a person for distinguished services to the State under the Honourable Treatment of Persons Wounded or Killed for a Righteous Cause Act. The legal system Compensation order and judicial reconciliation system Although victims of criminal acts, like manslaughter, may get a compensation order for direct physical damages suffered and reimbursement of medical expenses awarded to them during the trial of the criminal case under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings, Article 25, this avenue has not been used frequently.2 The law was therefore amended on 23 November 2005, and promulgated on 14 December 2005. Under the new law, spiritual damage (consolation money) as well as direct physical damage and medical expenses arising from the criminal act will be compensated. Aside from a compensation order, a judicial reconciliation system3 which Japan and Germany adopted has also been introduced. However, further improvements can be made. Provisions should be included for informing a victim of the availability of a compensation order, and indirect costs such as the time spent in investigation and trial should be included in the compensation order. Victim’s right to express an opinion In 1987, the victim’s right to express his or her opinion in trial and sentencing proceedings was expressly recognized by an amendment made to the Korean Constitution (Paragraph 5 of Article 27). The court may question the victim as a witness, and allow him or her an opportunity to express an opinion if he or she requests (see the Criminal Procedure Code, Article

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294–2; and the Special Act for the Punishment of Domestic Violence, Paragraph 2 of Article 33). Protection of victims of specific crimes (I) SPECIFIC VIOLENT CRIMES

A victim or eyewitness involved in specific violent crimes such as homicide and robbery may receive personal safety measures4 (Article 7 of the Act on Special Cases concerning the Punishment of Specific Violent Crimes) and his identity is also protected from public disclosure (Article 8 of the same Act). (II) SEXUAL CRIMES

For victims of sexual crimes, personal safety measures (Article 20), prohibition of divulgence of identity and the privacy of the victim (Article 21) and assistance by a counselling centre and protective facilities (Chapter 3) are provided according to the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof. Moreover, the following special provisions are included in the Act: 1 2 3 4 5

taking and keeping of videos, etc. (Article 21–2); presence of persons having a fiduciary relationship with the victim during the questioning of the victim as a witness; questioning of a witness by means of video and relay devices (Article 22–4); closing of the trial to the public (Article 22); and getting professional opinions from experts such as a psychiatrist about the mental and psychological state of a victim and his or her statement (Article 22–2).

The provisions of (1), (2), (3), and (5) above were newly introduced via an amendment to the above Act on 11 December 2003 (Act No. 6995). (III) CRIMES OF DOMESTIC VIOLENCE

For the victims of domestic violence, emergency measures such as evacuation and denial of access (Article 29), a victim’s right to make a statement (Article 33), the compensation order (Article 57), closing of the trial to the public (Article 32) are available according to the Special Act for the Punishment of Domestic Violence. Furthermore, assistance by a counselling centre and protective facilities is available according to the Act on the Prevention of Domestic Violence and Protection of Victims.

Assistance for victims of crime in Korea 185 (IV) SPECIFIC VIOLENT CRIMES, NARCOTICS CRIMES AND ORGANIZED CRIMES

For the informer of specific violent crimes, narcotics crimes and organized crimes, a ‘criminal case guardian’ can be appointed to support the informer during the investigation and trial process (Article 6) and personal safety measure can be taken (Article 13) under the Protection of Informants etc. of Specific Crimes Act. (V) CRIMES OF SEXUAL TRAFFICKING

For the victims of sexual trafficking such as persons who are coerced to be engaged in the act of sexual activities by means of deception, force or other similar means, the presence of a person having fiduciary relationship with the victim (Article 8), closing of the trial to the public (Article 9) and assistance by a counselling centre and protective facilities are available according to the Act on the Punishment of Acts of Arranging Sexual Trafficking. Legislative amendment (I) ENHANCEMENT OF VICTIM’S RIGHT TO EXPRESS OPINIONS IN COURT

The current system on the victim’s right to express opinions in court is not efficient in that there are many grounds on which such right can be rejected. For example, where it is considered that the victim’s statement is not needed since he or she has already given a sufficient statement in the investigation process, his or her right to express opinions in court is not granted. Moreover, there have been few cases in the past where the opportunity to express opinions about the issue of penalty was given besides the issue of proving the criminal act. Accordingly, the following new amendments to the Criminal Procedure Code was submitted to the National Assembly on 5 January 2006 after taking into consideration the new proposal made by the ‘Presidential Commission on Judicial Reform’ on 20 June 2005. If the victims apply to make a statement, the court is obliged to give the victim a chance to make the statement. The legal grounds on which to reject the victim’s right to express their opinions in court have been reduced. (II) PRESENCE OF PERSONS HAVING FIDUCIARY RELATION WITH THE VICTIM

For the victims of sexual violence (on application), victims of sexual trafficking (on application as well as ex officio), victims of elder and child abuse (on application pursuant to Article 39 of the Welfare of the Aged Act, introduced by an amendment on 29 January 2004, and Article 28 of the Child Welfare Act), presence of persons having a fiduciary relationship with the victim is possible during the investigation or questioning in court as a

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witness. But victims of all other crimes may also feel uncomfortable or pressured and receive more psychological damage. In this connection, there was an amendment proposed to the Criminal Procedure Code on 5 January 2006 in order to confer on the victims of all other crimes the same rights as the above. (III) INTERROGATION VIA VIDEO LINK

On 5 January 2006 there was an amendment proposed to the Criminal Procedure Code to extend questioning a witness via video link, which was already available to the victims of sexual crimes, to the victims of all other crimes. According to this amendment, if the victim is in a situation where he or she may feel seriously uncomfortable due to his or her statement to be made during trial, the court may initiate the questioning via video link in consultation with the prosecutor and the defendant. (IV) TRIAL NOT BEING OPEN TO THE PUBLIC

Another amendment was proposed to the Criminal Procedure Code on 5 January 2006 so that trials can be closed to the public for all crimes in order to protect the victims of the crime. This is already possible in cases of sexual violence, domestic violence and sexual trafficking. However, this was not included in the new proposals of the ‘Presidential Commission on Judicial Reform’ mentioned above. So it is not expected that the amendment will be adopted. On the other hand, Article 57 of the Court Organization Act which provides for closure of trials to the public was also being reviewed at the same time. However, the provision for such closure for the protection of victims of crime was deleted by the Ministry of Government Legislature during the review process. The revised Court Organization Act was adopted in the National Assembly on 2 March 2005 without such a provision. (V) ENHANCEMENT OF PROTECTION OF CRIME REPORTERS

The Protection of Informants, etc. of Specific Crimes Act applies only to violent, narcotics or organized crimes. Extension of this Act to all other crimes is under discussion. In addition, the following measures are being considered in order to protect the informant or the victim: personal safety measures by the Committee for Crime Reports established within the prosecutors’ offices; keeping secret the informant’s identity; presence of a fiduciary person; and collecting evidence by video recording. (VI) EXPANSION OF LEGAL AID

The Korea Legal Aid Corporation has been providing victims of domestic violence, sexual violence and sexual trafficking with legal aid such as legal

Assistance for victims of crime in Korea 187 representation, free advocacy and legal counselling since January 2003. In recognition that a specific law is needed to provide various legal services in other areas for the protection of victims’ rights, the Ministry of Justice proposed an amendment to the Legal Aid Act on 19 November 2004. However, even before the adoption of the amendment, the Legal Aid Corporation has been providing legal services to victims of crime who file a civil law suit against the offender for compensation since January 2006 and it has been receiving the necessary financial support from the Lottery Commission. Measures by the Prosecutor’s Office and the National Police Prosecutor’s Office The Prosecutor’s Office has been implementing the Programme to Establish a System for Protection of and Assistance to Victims of Crime since 1 October 2004. The following measures have been taken within the Prosecutor’s Office: A) APPOINTMENT OF A DESIGNATED PROSECUTOR AND ESTABLISHMENT OF THE VICTIM ASSISTANCE OFFICE

Each Prosecutor’s Office must designate a prosecutor to take charge of such assignments as providing information, legal counselling, accompanying the victim to the court, etc, and establish a victim assistance office. On 1 February 2005, the Seoul Central Prosecutor’s Office established a department for victim support and the prosecutor’s offices in Busan, Daegu, Daejun and Gwangju established victim support teams. B) MORE INFORMATION GIVEN TO VICTIMS OF CRIME

Besides a notice to victims of crime on the commencement of the trial, results of the investigation, time and venue of the trial, release of the offender from jail are now also notified to the victims and their family. Some prosecutors’ offices provide such notification by means of a message sent to a mobile phone. C) CONSIDERATION OF THE VICTIM’S SITUATION DURING INVESTIGATION

The designated prosecutor in charge of victim support conducts a thorough examination on the victim’s circumstances including the extent of damage and compensation required by the offender when counselling the victim and sends these results to the investigating prosecutor or the court.

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D) OTHERS

Several other services are also being provided, for example, victim counselling, and accompaniment to court. National Police The National Police began its protection of, and assistance to, victims of crime by setting up the Office for Crime Victims as part of the Investigation Department in the National Police Agency on 7 June 2004. It appointed a victim supporter in every police station nationwide to provide direct assistance in the initial stage of the investigation pursuant to the Regulation for Crime Victim Protection (Ordinance of the National Police Agency, No. 428) adopted on 17 August 2004. In February 2005, it expanded the Office for Crime Victims into the Centre for Human Rights Protection and designated a chief of the investigation department and a hearing inspector of each police station as officer of human right protection in order to ensure an integrated and systematic protection for victims of crime. Efforts are now being made to establish a nationwide victim support system ranging from each police station to the establishment of public organizations for victims support. Civic support Current situation The victim support centre was created on 5 September 2003 in Gimcheon and Gumi. It was the first public organization from a local community to participate in support to victims of crime for their safety and recovery from criminal damage to help them lead normal lives as survivors. The same kind of centre was established in Daejun on 23 November 2003. Since October 2004, every prosecutors’ office began to give support to help the establishment of victim support centres. By February 2005, 54 victim support centres were established. Pursuant to the Crime Victim Protection Act adopted on 1 December 2005, a nationwide organization involving all the victim support centres will be established in the near future. The victim support centres in Korea have a similar function to those in the United States of America, United Kingdom, Japan and other countries. In order to differentiate themselves from the sexual violence clinics and domestic violence clinic services, the victim support centre focus on direct assistance such as spontaneous support, provision of information, accompanying service as well as medical assistance rather than mere counselling. Although they have just been established, every local victim support centre is trying very hard to offer various types of assistance to victims. The Korean Central Victim Support Centre established in Seoul on 1 December 2004, aims to prevent re-victimization, which is possible while cleaning the crime

Assistance for victims of crime in Korea 189 scene, by providing cleaning support for the scene of a murder or other violent crimes through cooperation with cleaning business companies. The Western Seoul Victim Support Centre, established on 10 December 2004, also has similar success. For example, two Thais who came to Korea after being defrauded by an employment agency are receiving assistance. In cooperation with the victim assistance office of the Western Seoul Prosecutor’s Office, the centre helped them get documents from Thailand to file a complaint to the investigation office, and provided them with financial support for accommodation and travel. In addition many local centres including a centre in Gwanju are providing victims with medical services in cooperation with designated hospitals within their region. Features of victim support centre (I) SUPPORT BY THE PROSECUTOR’S OFFICE

The most significant features of the victim support centres in Korea are that they were established with the support of each Prosecutor’s Office nationwide. This facilitated the early setting up of victim support centres because of the high status of a Prosecutor’s Office in a local region. This approach also recognizes the public sentiment that assistance to victims of crime should be an important function of the prosecutor who is the superintendent of criminal investigations. Although the role that police take at the crime scene is as important as the role of the prosecutor, it may be difficult for the police to distinguish the victim and the offender at the early stages of police investigation. So it is more appropriate that the Prosecutor’s Office take charge of the task of assistance for victims. It is needless to say that effective cooperation between the prosecutor, the police, and the victim support centre is crucial. On the other hand, there is also a possible negative effect by having victim support centres established with the support of the Prosecutor’s Office. This assistance might be viewed as coming from the government and thereby lose its original aim of inducing public support. So, it is important that the government and the public should make sure that civilians carry out the leadership in the running of victim support centres. (II) CLOSE COOPERATION WITH MEMBERS OF THE CRIME PREVENTION COMMITTEE

We can see from the fact that many victims of crime hope there will not be any more victims like themselves, the relationship between crime prevention and victim support is like that of the front and back wheels of a cart. Therefore, cooperation with members of a Crime Prevention Committee who have a lot of experience in crime prevention will be important in developing victim support centres. This is a feature of the current victim support

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centres of Korea which have received personnel, logistic and financial support from the crime prevention committees working under the auspices of the prosecutors’ offices since their inception. The victim support centres are still working closely in cooperation with the crime prevention committees today. (III) MEDIATION FOR RECONCILIATION BETWEEN VICTIM AND OFFENDER (RESTORATIVE JUSTICE)

The most distinguishing feature which appears in the activities of victim support centres is that several centres aim to reconcile the victim and the offender, if they wish to participate in the mediation or reconciliation session. Once reconciliation is achieved, notice is given to the Prosecutor’s Office and used as grounds for the suspension of indictment or reference in deciding the degree of penalty requested by the court. This is an aspect of restorative justice found in the criminal justice system in Korea. Nevertheless, there still remain many issues to be solved, such as whether public organizations for assistance to victims may play a role in mediating the reconciliation, whether it has legal grounds on which to play that role and whether the result of the reconciliation can be used to decide on the degree of penalty. The Western Seoul District Court recently decided on the following practice in relation to reconciliation in the victim support centre: Once reconciliation is achieved in the victim support centre, the centre applies for court mediation in civil matters the same day. The judge in charge of mediation will confirm the agreement contained in the reconciliation, put the agreement into writing pursuant to the Judicial Conciliation of Civil Disputes Act and confer on the agreement the competence of compulsory execution. This is a good method to follow in order to solve many disputes early and efficiently considering that a lot of criminal accusations have the features of civil law suits on the other side.

Future tasks Greater governmental support and public awareness While it is true that with regard to protection of, and assistance to, victims of crime in the criminal justice system, there is increased social concern for victims of crime and that new systems are being implemented by judicial authorities, such an approach towards criminal justice policy alone cannot solve all the issues faced by victims of crime. Other needs such as in residence, health, education and employment, etc. must be satisfied as well. This requires greater governmental support and public awareness. With the momentum generated by the recent adoption of the Crime Victim Protection Act, active support from central and local governments is expected.

Assistance for victims of crime in Korea 191 Exploration of various legal assistance services Various proposals for providing assistance to victims of crime in the criminal justice system have been examined above. Comparisons should also be made with the measures adopted in other countries, for example allowing the victim or his or her bereaved family to conduct its own action by calling and questioning witness; allowing the victim to appear in court and to take part in the questioning or get involved in the appeal process; and the recovery of damages or reconciliation with the offender to be considered as an mitigating factor in sentencing. Support for victim support organizations It is also crucial to ensure that the spread of victim support organizations throughout Korea is viable. From the point of personnel, it is necessary for them to have and train regular staff with professional knowledge and have sufficient volunteers. From the point of logistics, it is necessary for them to have their own offices outside the Prosecutor’s Offices. From the financial point, various ways of collecting funds, aside from support from central and local governments, should be explored. Most of all, victim assistance programmes should be developed so as to meet the victims’ needs. In addition, the need for international cooperation should be reiterated. In the light of the fact that victim assistance initiatives are actively pursued in countries like Korea, Japan, Taiwan, Singapore, Canada, the United States of America, Australia and New Zealand, early establishment of a public network for victim support in the Asia-Pacific region, making it possible to get victim assistance in foreign countries without regard to nationality, is highly recommended.

Notes 1 2

In 2004, the payment has risen from 517 million won (in 57 successful cases out of 87 applications) to 649 million won (in 74 successful cases out of 123 applications), which is an increase by 13.8 per cent but the amount is still small. Table 8.1 Current data on the compensation order system Section

Management

Year

Request Total

Accept Reject

Withdraw

Acceptance Ex Amount of com(%) officio pensation (won)

2000 2001 2002 2003 2004 2005

1,521 1,726 1,930 3,480 3,151 2,750

493 391 433 660 756 661

237 445 418 1,635 1,426 708

34.8 25.9 19.5 21.6 20.3 24.0

1,416 1,510 2,226 3,053 3,932 2,750

686 674 418 758 1,550 1,381

6 – – 3 4 4

Source: Ministry of Court Administration of Supreme Court (2000–5)

22,623,778,079 23,284,854,700 37,633,017,681 27,402,781,689 55,621,107,364 42,848,496,480

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3 Under the judicial reconciliation system, what is agreed in civil disputes

4

regarding a criminal case between the accused and the victim will be submitted with an application of reconciliation to the criminal court in charge of the case and recorded in the official court protocol, which will be given the competence of civil procedural execution. Personal safety measures by the police include protection of a particular facility, escort of a witness to and from the court, and regular patrol of the residence.

References Cho, B.I. (2003) ‘Victim Protection Mechanism of Korea: Legal Aspect and Reality’, in Tatsuya Ota (ed.), Victims and Criminal Justice – Asian Perspective. Keio University Hogaku-Kenhyu-Kai Series No. 73, 181–96. Legal Research and Training Institute of Ministry of Justice. (2004–5) White Paper on Crime. Seoul: Ministry of Justice. Ministry of Court Administration of Supreme Court. (2000–5) Judicial Year Book. Seoul: Ministry of Court Administration. National Police Agency. (2003) The Human Rights Manual for Crime Victim Assistance. Seoul: National Police Agency.

Legislation and treaties Republic of Korea Constitution of Korea (1948). Criminal Procedure Code (1954). Act No. 341. Act on Special Cases concerning Expedition, etc. of Legal Proceedings (1981). Act No. 3361. Legal Aid Act (1986). Act No. 3862. Court Organization Act (1987). Act No. 3992. Crime Victim Aid Act (1987). Act No. 3969. Act on Special Cases concerning the Punishment of Specific Violent Crimes (1990). Act No. 4295. Honourable Treatment of Persons Wounded or Killed for a Righteous Cause Act (1990). Act No. 4307. Judicial Conciliation of Civil Disputes Act (1990). Act No. 4202. Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (1994). Act No. 4702. Framework Act on Women’s Development (1995). Act No. 5136. Special Act for the Punishment of Domestic Violence (1997). Act No. 5436. Act on the Prevention of Domestic Violence and Protection of Victims (1997). Act No. 5487. Welfare of the Aged Act (1997). Act No. 5359. Guarantee of Automobile Accident Compensation Act (1999). Act No. 5793. Protection of Informants etc. of Specific Crimes Act (1999). Act No. 5997. Child Welfare Act (2000). Act No. 6151. Framework Act on Science and Technology (2001). Act No. 6353. Amendment to the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (2003). Act No. 6995.

Assistance for victims of crime in Korea 193 Act on Punishment of Acts of Arranging Sexual Trafficking (2004). Act No. 7196. Basic Act for a Healthy Family (2004). Act No. 7166. Framework Act on Juveniles (2004). Act No. 7162. Regulation for Crime Victim Protection (2004). Ordinance No. 428. Crime Victim Protection Act (2005). Act No. 7731. Crime Victim Protection Bill (2005), submitted to the General Assembly on 31 August 2005.

United Nations Declaration on Basic Principles of Justice for Victims of Crime and the Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53.

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Victims of crime in the Thai criminal justice system Viraphong Boonyobhas

The Thai legal system Thailand is a democratic country with a strong economy in South-East Asia. Like most developing countries, Thailand is mainly concerned with the economic and social development of the country, and the well-being of her people. As she develops, she must solve various kinds of problems such as unemployment, education, traffic, health, political corruption, environmental pollution and crime. It is generally accepted that the word ‘crime’ refers to an offence for which there is a sanction by law and that such offence is considered serious. In recent years, not only must the Thai government face problems like homicide, rape, larceny, extortion, robbery, gang robbery and drug offences, it also has to contend with economic crime, transnational crime and money laundering. To suppress these crimes, both violent and non-violent ones, it is necessary for Thailand to have strong legal provisions and criminal justice agencies. Thailand is a civil law country, and criminal proceedings follow the accusatorial system. There are five sources of Thai law, namely, legislation, customs, general principles of law, judicial decisions and the opinions of legal scholars. Legislation The constitution of Thailand has been the supreme law of the land since the change from an absolute monarchy to a constitutional monarchy in 1932. Thailand has enacted 15 constitutions and the present one is called the Constitution of the Kingdom of Thailand B.E. 2540 (1997). The concept of constitutional supremacy requires a constitutional check on the application of Thai laws and regulations. This concept also results in a rigid constitution where special procedures for amendment are required. The concept of supremacy as applied to the Thai constitution has led interest groups wishing to amend the constitution to seek unconstitutional approaches to obtain the desired changes. For a period of time, coups d’etat were a popular

Victims of crime in the Thai criminal justice system 195 form of doing this. Therefore, constitutional supremacy, and its theory of the rigid constitution, has instead undermined the sanctity of the very concept it purported to promote. The codification of law began in the early part of the twentieth century. The first of the most important codes, namely, the Penal Code, was promulgated in B.E. 2451 (1908). It was followed in the year B.E. 2478 (1935) by other codes such as Civil Procedure Code, the Criminal Procedure Code and the Law on the Organization of the Court of Justice. The Civil and Commercial Code was finally completed in B.E. 2478 (1925), after 30 years of preparation. There were almost five Books for the Civil and Commercial Code; and the new Penal Code, which superseded the Penal Code of B.E. 2451 (1908), became effective in B.E. 2500 (1957). Of note is the Thai Civil and Commercial Code, which lay down the fundamental principles which application permeates all Thai laws. For example, Book I, under the title ‘General Principles’, contains major principles of law which can be applied to other Thai laws. Among the procedural codes listed above, the Civil Procedure Code has the most important applications, because it serves to seal loopholes under criminal cases, tax cases and labour cases, in addition to its applicability to civil cases. Apart from major codes as described above, the king, with the recommendation and consent of Parliament, can pass Acts having the force of law. Before an Act becomes enforceable, it must be published in the Government Gazette. At present, Thai public, economic and social laws are in the form of Acts, rather than codes. Examples include the Copyright Act of 1978, the Patent Act of 1979, the Trade Marks Acts of 1931 and 1961, the Investment Promotion Act of 1977, the Petroleum Acts of 1971, 1973 and 1979, the Securities Exchange of Thailand Act of 1974, the Act to Deter Prostitution of 1960, the Narcotics Act of 1979, the Anti-Money Laundering Act of 1999, and so forth. In terms of international treaties, Thai law adopts the dualist theory. Therefore, a treaty will only become a part of Thai law when Parliament passes an Act to enforce that particular treaty. Otherwise, the application of that treaty will not be honoured in the Thai courts, and will only bind the government as an executive agreement with foreign countries. Subordinate legislation, categorized as royal decrees, ministerial regulations and other bye-laws, constitute another important source of law. The executive branch can issue subordinate legislation only when the Acts of Parliament delegate the power to the government to issue them in various situations. Theoretically, the scope which subordinate legislation can cover cannot exceed what is stated in the parent Act. At present, the role of subordinate legislation is very important, because Parliament is indirectly dominated by the executive branch. The number of subordinate legislation (approximately over 50,000) currently in force demonstrates profoundly their increasing importance and role over the Acts passed by Parliament.

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Custom The recognition of custom as a source of law is evident in Section 4, Paragraph 2, of the Thai Civil and Commercial Code. Section 4 reads in part: The law must be applied in all cases which come within the letter and the spirit of any of its provisions. Where no provision is applicable, the case shall be decided according to the local custom. However, Thai law has no concept of custom contra legem. As far as it is concerned as a source of law, the role of custom in Thailand has been only supplementary, serving as a means to classify ambiguous contract stipulations. For example, in the area of contract interpretation, Section 368 of the Thai Civil and Commercial Code states that ‘Contracts shall be interpreted according to the requirements of good faith, ordinary usage being taken into consideration’. Despite the foregoing observations, custom has played an important role in the areas of family and commercial laws. In the former, norms concerning engagement, properties given prior to the marriage and so forth, are determined by customary practices. In the latter, for example, issues concerning trust receipt, documentary credits and incoterms have been decided based on commercial practices. General principles of law General principles of law are recognized in section 4 of the Thai Civil and Commercial Code, as a source of law. Section 4, Paragraph 3, reads: If there is no such custom, the case shall be decided by analogy to the provision most closely applicable, and in default of such provision, by the general principles of law. Accordingly, the Thai legal system recognizes principles of law as a source of law only when legislation and customs do not exist. There are two complementary approaches to the incorporation of general principles of law. One is that legal axioms constitute general principles of law. One example is the maxim nemo dat qui non habet (no one gives who has not), lex posterior derogat priori (a later law repeals an earlier one), and so forth. The other approach entails the application of general principles of law on an ad hoc basis, taking into account the structure and nature of the laws and issues to which the general principles will supplement. For example, the Thai Supreme Court once ruled that principles of English maritime law would be the general principles of law governing the case at bar, because there were no Thai laws governing that area.

Victims of crime in the Thai criminal justice system 197 Judicial decisions In common law systems, decisions of a court are absolutely binding upon all inferior courts in the same hierarchy, and in certain circumstances have the quality of being ‘laws’ in themselves, whereas in most continental countries only a practice established by a uniform line of decisions has great persuasive authority. The Thai system stands somewhere between the common law and continental system, for it denies the absolute authority of judicial precedent, but attaches greater weight to juristic writings. In its early period, Thai precedents resembled those of the common law system more than the continental, but later, they seemed to shift towards continental practices. Under the modern Thai system, even a single case, if decided by the Supreme Court, may have high persuasive authority, since the influence of such a judgment depends upon its own merits. The Supreme Court is not bound to follow its own decisions though in practice it usually does, especially those decided in the plenary session. Thai courts are bound to apply only the words of the statute, and cannot apply them by analogy to new cases not explicitly covered by these words. It is noted that precedents of the Supreme Court play an important part in developing the law of the land, and in establishing practices of the courts. As for the reporting of judgments, although there are no official reports of judgments published in Thailand, there have been a good number of law reports published by various legal institutions, the most outstanding law report of the present day being ‘KUMPIPAKSA DIKA’ (Judgment of the Supreme Court), published periodically by the Thai Bar Association. This publication, however, contains merely a selection of the leading decisions of the Supreme Court, with a digest and comments section. It has indeed become an indispensable work of reference for the legal profession, and is frequently referred to by both the Bench and the Bar. Opinions of legal scholars Although opinions of legal scholars have persuasive value in the Thai legal community, the courts have never cited their opinions to support or justify legal arguments or decisions in a case. Many prevailing opinions are in the areas of public economic law and business transactions, which are not the core of Thai legal education at present. The emphasis placed on the Thai Civil and Commercial Code, Penal Code, Criminal Procedure Code and Civil Procedure Code by Thai legal education, has influenced the courts’ perceptions of law. Furthermore, in the old days, law professors came from the courts. Therefore, legal education was influenced by the courts, rather than the reverse. Nevertheless, clear references to the opinions of legal scholars as a source of law, may still be useful in the Thai legal system.

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The criminal justice system of Thailand The purpose of the criminal justice system is to process those who have been accused of criminal activities. The first link in the Thai criminal justice system consists of the police, who are responsible for gathering evidence and arresting suspected offenders. Next, the prosecutor is responsible for evaluating the evidence from the police, and has the discretion to decide whether the evidence is sufficient to prosecute the alleged offenders. Meanwhile, defence attorneys, whether privately retained or provided by the State, are responsible for defending the accused. At trial, the judge is an arbitrator who ensures that the defence attorneys and the prosecutor adhere to the legal requirements of introducing evidence, and in examining and cross-examining witnesses. After considering all the evidence, the judge will pronounce sentence against those who are found guilty. Probation officers conduct pre-sentence investigations which the judge will make use of in the determination of sentences, and also supervise convicted offenders placed on probation. If the offenders are convicted and sentenced to imprisonment, the prison system receives and keeps them, until the parole board grants them parole or until they have completed their sentences. Like many developing countries, Thailand also faces problems with its criminal justice agencies, in enforcing the law. The problem with treating the criminal justice agencies as a system, however, is that there are very few system-like features among these agencies. Ideally, a system is expected to have interrelated goals, but when we look at the goals of the various agencies (which are referred to as parts of the ‘criminal justice system’), we often find that not only are their goals not interrelated, but they are also contradictory. For example, the goal of the police is to clear as many reported crimes as possible, and to the extent that the police are successful, the court’s goal of processing defendants through the courts is thwarted. Cooperation amongst the various agencies is haphazard, and their understanding of each other’s problems is almost non-existent. Defence and prosecuting attorneys blame the police for violating a defendant’s rights, and the police accuse the attorneys of letting too many of the people they arrest go free. Agencies blame each other for not doing their jobs properly. Even though they are all supposed to be working together to achieve a single overall goal, system-like processes and organization remain an ideal instead of a reality. Hence, even though these agencies (in structural terms) make up the ‘criminal justice system’, they do not in fact constitute a system. Not only should criminal justice agencies enforce the law against the accused or the defendant, they should also protect the rights of the injured person or victim as well.

Victims of crime in the Thai criminal justice system 199

Victims of crime in Thailand In Thailand, when someone talks about ‘victims of crime’ in legal terms, he usually refers to them as ‘injured persons’, because the Thai Criminal Procedure Code provides in Section 2(4) that: An ‘injured person’ means a person who has received injury through the commission of any offence. This includes any other person who has the power to act on his behalf as provided in Section 4, 5, and 6. Section 4 of the Criminal Procedure Code provides: In a criminal case where the injured person is a married woman, such woman has the right to prefer a criminal charge without the permission of the husband. Subject to the provision of Section 5(2), the husband is entitled to bring a criminal charge on behalf of his wife only with her express permission. Section 5 of the Criminal Procedure Code provides: The following persons may act on behalf of the injured person: (1) The legal representative or custodian, in respect only of offences committed against the minor or incompetent person under his charge; (2) The ascendant or descendant, the husband or wife, in respect only of criminal offences in which the injured person is so injured that he dies or is unable to act by himself; (3) The manager or other representative of a juristic person, in respect of any offence committed against such juristic person. Section 6 of the Criminal Procedure Code provides: In a criminal case where the injured person is a minor having no legal representative, or is a person of unsound mind or an incompetent person having no custodian, or where the legal representative or custodian is unable to discharge his duty for any reason, including conflict of interest with the minor or incompetent person, a relative of such an injured person or an interested person many apply to the court to appoint himself as a representative ad litem. Section 3 of the Criminal Procedure Code provides:

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Viraphong Boonyobhas Persons specified in Sections 4, 5 and 6 have the power to act on behalf of the injured person according to the conditions provided in those sections as follows: (1) to lodge a complaint; (2) to institute a criminal prosecution or join with the Public Prosecutor in a criminal prosecution; (3) to enter a civil claim in connection with an offence; (4) to withdraw a criminal charge or a civil claim in connection with an offence; (5) to compound a compoundable offence

The Thai Criminal Procedure Code defines the ‘injured person’ as a ‘victim’. Thus, criminal justice plays a role in protecting the victim in a criminal case.

The role of the criminal justice system in protecting victims in Thailand The Thai legal system and criminal justice agencies and victims of crime in Thailand were discussed above. Both parts explain the scope of Thai law, how criminal justice agencies work and describe who the injured persons or victims are. Before discussing the role of the criminal justice system in protecting victims in Thailand, it is necessary to remember that Thailand has many legal provisions concerned with the protection of victims, especially victims’ rights, such as the right to take legal steps provided for in Sections 3, 4, 5, 6 of the Criminal Procedure Code, and the right to receive compensation and restitution, which is provided in Section 245 of the Constitution of the Kingdom of Thailand 1997, which states that: In a criminal case, an injured person has the right to protection, proper treatment and necessary and appropriate remuneration from the State, as provided by law. In the case where any person suffers an injury to the life, body or mind on account of the commission of a criminal offence by other persons without the injured person participating in such commission, and the injury cannot be remedied by other means, such person, or his or her heir, has the right to receive aid from the State, upon the conditions and in the manner provided by law. Pursuant to this section of the Constitution of the Kingdom of Thailand 1997, a new law was passed, known as the Act for the Granting of Compensation to Aggrieved Parties and the Accused in a Criminal Case 2001. In considering the role of the Thai criminal justice system in protecting victims mention can be made of two kinds of victims’ rights: the right to be informed and to participate in criminal justice proceedings; and the right to restitution and compensation for injury.

Victims of crime in the Thai criminal justice system 201 The right to be informed and to participate in criminal justice proceedings It was mentioned above that Thailand is a civil law country, following the accusatorial system of proceedings, and the right of crime victims to be informed is the most fundamental right, without which the other rights and services available to them, seem to be meaningless. However, there has been an increasing consensus among various countries that it is necessary to change the current practices, which do not provide basic information to crime victims about the status of their cases. To some critics, the underlying thinking behind these changes, as a matter of fact, may not have resulted directly from the recognition of the significance of the rights of victims of crime, as much as the fact that the criminal justice system would benefit by treating the victims well. Results obtained from much research have pointed out that the reason why victims of crime did not report crimes to the police was that they were apprehensive about how they would be treated, and whether they would be believed. Moreover, the major reason why victims and witnesses did not cooperate with the authorities was not that they did not want to cooperate, but that they were intimidated by the criminal justice system and were uninformed as to what they were expected to do. As a result, they have been notable improvements in the criminal justice systems of many countries, with regard to new developments designed to address victims’ needs for better treatment and more information, as well as to address the need of the State to have cooperative witnesses. However, even though such developments are very much welcomed, it should be noted that crime victims do not just want to be treated more kindly, but also want to be able to participate in the criminal justice system. There has been heated debate on whether or not, and to what extent, this should be allowed. Advocates of the right of victims to participate in the criminal justice process present a host of arguments in their favour, ranging from the moral to penological. There is some argument that sentencing will be more accurate if victims convey their feelings, and that the criminal justice process will be more democratic and better reflect the community’s response to crime. The participation of victims will also remind judges and prosecutors that there is a real person with an interest in how the case is resolved. It may also lead to increased victim satisfaction and cooperation with the criminal justice system, thereby enhancing the system’s efficiency. Moreover, when the court hears from offenders’ family and friends, fairness dictates that the people who were actually injured should be allowed to speak. Some researchers have also suggested that participation also promotes the psychological healing of victims, as well as the rehabilitation of offenders, as they confront the reality of the harm they caused their victims. On the other hand, opponents of the movement have also pointed out many reasons for their disagreement. For instance, some have suggested

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that victim participation might disrupt court proceedings, exposing the court to public pressure from which it should be insulated. Moreover, critics are afraid the court may be prejudiced by the presence of victims; and thus diminish the quality of justice. Prosecutors and judges may be wary of victim participation, since it means that their control over cases will be eroded. The victim’s right to information As a matter of fact, the right of victims to be informed has not been legally guaranteed in Thailand yet. In practice, however, victims are given some types of information, according to the internal policy or directives of each criminal justice agency. In the writer’s opinion, there would be no strong objection to the enhancement of the right of crime victims to be informed of the status of their cases; however, there has been inadequate attention to its improvement by the relevant authorities. This may be because of the lack of understanding on crime victims on the part of Thai criminal justice officials. As far as notification of the termination of investigative proceedings and decisions of the prosecution whether or not to prosecute the suspect are concerned, crime victims are not automatically entitled to be notified by the police of the termination of proceedings, nor do they automatically receive any notification from the prosecution on whether or not the case will be prosecuted. Practices vary from office to office on this matter. As for the inspection of files and information, victims of crime in Thailand do not have any right to inspect the files of inquiry. During the drafting of the present constitution, a question was raised as to whether, and to what extent, should the victims of crime have the right to access the police and prosecutors’ files. However, after a long debate, it was decided that victims would not be allowed to view the said files, except for their own statement, since there was a fear that important evidence might be jeopardized. However, the police and prosecutors, in their discretion, will allow some access by the injured party, particularly to the injured party’s lawyer. With regard to the right to know the reasons for the non-prosecution of a case, Section 241 of the constitution provides the injured person (victim) the following right: In a criminal case for which the Public Prosecutor issues a final nonprosecution order, an injured person, the suspect or an interested person has the right to know a summary of evidence together with the opinion of the inquiry official and the Public Prosecutor with respect to the making of the order for that case, as provided by law. The aim of this provision is to make the prosecutor’s decision not to prosecute more transparent, as it may be checked by the injured party. Moreover, this may allow the injured party to decide whether or not he will start his own private prosecution. Apart from the above right to information, the

Victims of crime in the Thai criminal justice system 203 writer believes that it is also necessary to keep victims of crime informed of the outcome of the court proceedings and the release of the offenders from custody. The victim’s right to participation in criminal proceedings There is a heated debate in various countries regarding whether or not victims of crime should be allowed to participate in judicial proceedings. In Thailand, where the concept of a private prosecution still exists, as stipulated in the Criminal Procedure Code, victims of crime have the full right to bring their cases to the court themselves as joint Public Prosecutor. Although the criminal procedure laws of Thailand were modelled after the civil law system, many elements of the common law were present in the laws as well as in its practices, including the concept of private prosecution. With reference to Thai criminal procedure, the victims of crime have the full right to bring the case to court by themselves without having to initiate a complaint to the police. In Thailand, criminal offences have been classified into two types: compoundable and non-compoundable offences. Compoundable offences are non-serious crimes, while non-compoundable offences are more serious crimes which have a more adverse impact on society. For compoundable offences, the decision on whether or not to initiate criminal proceedings remains fully in the hands of the injured party. The injured party may either request the police to proceed with criminal investigations by submitting a complaint to the police, or he or she may prosecute the case directly in the criminal court on his or her own. Without a complaint from the injured party, neither the police nor the prosecutor can start investigations or a prosecution. In addition, if the injured party decides to withdraw the complaint during any stage of the criminal proceedings, the case will be dismissed. With regard to non-compoundable offences, however, the main responsibilities of criminal prosecution remain with the State throughout the proceedings. The injured party, however, can still play a role in the criminal proceedings. For instance, apart from being able to file a complaint to the police or file a separate suit directly to the court, the injured party can also submit a request to the court for permission to join in the prosecution’s case as a ‘joint prosecutor’. The prosecutor, however, is in charge of the case, and can make a request to the court to withdraw the status of joint prosecutor from the injured party, if he or she thinks that the injured party may jeopardize the case. In reality, not many cases are brought to the court through the channel of private prosecution. This is because of the high costs of litigation, and the lack of investigative facilities and capabilities on the part of the injured party.

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The right to restitution and compensation for injury It is generally accepted that victims suffer damage from crimes in terms of bodily injury or death, or loss of property and mental suffering. Such suffering definitely causes some damage and financial costs to the victims. It is only fair to say that such damages and financial costs should not be left unaddressed, but where appropriate, offenders should make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, and reimbursement of expenses incurred as a result of the victimization. To obtain such restitution, many jurisdictions allow the consideration of civil claims in criminal proceedings, or by the issuing of a restitution order directly from the court. Apart from claiming directly from the offenders, who are often unable to pay their dues, crime victims may generally be entitled to compensation from the State for monetary relief, separate from the apprehension and conviction of the offender. Restitution and compensation by civil action in criminal procedure The injured party in Thailand is not allowed to enter into the so-called ‘partie civile’, a procedure whereby the victim can pursue a civil claim against the offender at the same time, and in the same proceedings as the criminal trial. However, Thai criminal procedure allows the prosecution, in some types of offences, such as in the case of theft, robbery, gang-robbery, piracy, extortion, cheating and fraud, criminal misappropriation and receiving stolen property, to apply for restitution of the property or the value thereof, on behalf of the injured party. A civil case can also be instituted by the injured party in connection with the criminal case. In reality, however, it is too difficult to use such an avenue to obtain restitution, since the injured party would need to have assistance from a lawyer, and the lengthy civil proceedings would deter such practices. The injured party and restitution A restitution order, which is issued directly by the criminal court and states that the offender should compensate the victim, is another method that, if available, would directly assist the victim of crime in obtaining restitution. Before the enactment of a new law in 2001, there were no statutory provisions in Thailand allowing the courts to issue such an order. In some countries, in order to assist the victims of crime, the courts may, on their own initiative and discretion, issue a compensation order. Restitution, in the writer’s opinion, is an effective measure if appropriately used. It may serve rehabilitative and punitive purposes. It is a good way to alleviate harm done to the victim, and may provide a constructive way for the offender to be held accountable for his actions.

Victims of crime in the Thai criminal justice system 205 Act for the Granting of Compensation to Aggrieved Parties and Accused in Criminal Cases 2001 Although crime victims are entitled to the choice of ‘partie civile‘ or applying for a restitution order as mentioned above, in reality, it is difficult for them to receive restitution or any compensation at all. This is because in many criminal cases, offenders cannot be identified and brought to justice. Moreover, offenders may lack enough money to pay for the damage done to their victims. The victims themselves also may not be able to collect enough evidence to sustain a civil action or hire a lawyer. For those reasons, State compensation is a necessary means of providing financial relief for victims of crime. As the result of the introduction of Section 245 of the Thai constitution, a new law was enacted, entitled Act for the Granting of Compensation to Aggrieved Parties and the Accused in a Criminal Case 2001. The main features of this new Act are summarized below. The Act for the Granting of Compensation to Aggrieved Parties and the Accused in a Criminal Case 2001, applies to two kinds of victims of crime: ‘injured persons’ (victims of crime) in a criminal case and accused people who are victims of the criminal justice system (scapegoats). An ‘injured person’ is defined to mean a person who was injured by the offences of homicide, bodily harm, sexual assault, and does not participate in committing the said crimes. The kinds of compensation that can be granted to injured persons are as follows: 1 2 3 4

compensation for medical treatment to cure the bodily harm suffered by the injured person; compensation for death; compensation for inability to work; other kinds of compensation which the injured person can prove.

An ‘accused who is a victim of the criminal justice system’ is defined to mean a person who is prosecuted by the Public Prosecutor, but some evidence later arises showing that he is innocent. The compensation and expenses granted to the accused are as follows: 1 2

3

4

compensation and expenses for time spent in custody of 200 Bht. per day; compensation and expenses for treatment and mental rehabilitation for injuries directly caused from being a victim of the criminal justice system; compensation and expenses for the death of an accused who is a victim of the criminal justice system for an amount not exceeding what is provided for in Ministerial Regulations; compensation and expenses for inability to work while staying in custody;

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Conclusion My conclusion for this chapter is that the rights of victims of crime in Thailand need to be strengthened, especially the right to participation in criminal proceedings. The Thai model has evolved in this manner as a result of the Westernization of the law, not because of genuine concern for the rights of the accused. In fact, the choices for crime victims should not be restricted to joining the proceedings as a ‘joint prosecutor’ or not joining at all. Instead of providing such an avenue, which is in fact impractical, the criminal process must take into account the real needs of the victims. Most victims do not want to be involved to the extent of being a ‘joint prosecutor’; in most instances, they want to have the right to observe, and to have some ‘ownership’ over the process. Personally, I am in support of the ‘private accessory prosecutor’ model as adopted in Germany, which may provide a middle ground for victims’ participation in criminal proceedings.

References Legislation and treaties Penal Code (1908) B.E. 2451. Civil and Commercial Code (1925) B.E. 2478, Gov. Gaz. vol. 42, p. 3. Trade Marks Acts (1931 and 1961). Civil Procedure Code (1935) B.E. 2478, Gov.Gaz. vol. 52, p. 730. Criminal Procedure Code (1935) B.E. 2477, Gov. Gaz. vol. 52 p. 605. Law on the Organization of the Court of Justice (1935) B.E. 2478. Penal Code (1957) B.E. 2500, Gov. Gaz. vol. 73 part 95, p. 12. Act to Deter Prostitution (1960). Petroleum Act (1971, 1973 and 1979). Securities Exchange of Thailand Act (1974). Investment Promotion Act (1977). Copyright Act (1978). Narcotics Act (1979). Patent Act (1979). Constitution of the Kingdom of Thailand (1997) B.E. 2540. Anti-Money Laundering Act (1999). Act for the Granting of Compensation to Aggrieved Parties and the Accused in a Criminal Case (2001).

10 Clashing conceptions of the victim’s role in Singapore’s criminal process Michael Hor

The victim and the criminal process Every first-year law student is told very early on of the essential difference between criminal and civil proceedings. Criminal proceedings are public in nature and the State, in the form of the Public Prosecutor, takes action on behalf of society at large against someone who has committed a crime. The aim is to satisfy the public interest in dealing with a wrong done to society. Civil proceedings are between private individuals where the party wronged seeks compensation against a particular wrong done to a particular victim. This ‘classical’ conception draws a firm line between the criminal process which focuses on a ‘generalized’ wrong done to society, whereas the civil process focuses on a ‘particularized’ wrong done to a certain individual. It follows that, in this conception, while the victim is the driving force and locus of decision-making in the pursuit of a claim in the civil process, he or she has no similar role in the criminal process. To put it brutally, the victim in the criminal process is just ‘a’ victim and it does not really matter who he or she may be. At most, the victim in the criminal process is a prosecution witness, like other witnesses. The major contribution of the victims’ rights movement has been to challenge this view of the criminal process. The particular victim matters and ought to be empowered by being conferred with a greater role in criminal proceedings. The particular victim is the one most affected by the crime and is the one who needs ‘closure’ and redress. Indeed, in Singapore, the classical conception of the criminal process has never been entirely neat. There exist pockets of exceptional situations where the particular victim appears to have a formal role. I have chosen four such exceptions to study – private prosecution, the power of composition, victim impact statements and compensation orders – and my purpose is to investigate how the formal insertion of the victim into the criminal process has worked out. This will have a significant bearing on whether and if so how the role of the victim should be increased, in line with the objectives of the victim’s rights movement, or decreased in accordance with the classical conception of the criminal process.

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Private prosecution There is no doubt that the classical conception is dominant when it comes to the power to prosecute an offender. The Singapore constitution vests the Public Prosecutor with the ‘power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.1 The implication appears irresistible that the power vests exclusively in the Public Prosecutor and in no one else.2 Yet what is called ‘private prosecution’, where the victim initiates and conducts a criminal prosecution against an offender without the involvement of the Public Prosecutor, is commonplace in Singapore and probably has been so throughout the history of modern Singapore.3 The legal basis for such prosecution hangs precariously on a subsection in the Criminal Procedure Code which envisages ‘private persons . . . appearing in person or by advocate to prosecute’ certain lower order offences. 4 The normal course of a private prosecution is this. The victim would have made a police report, but is told after investigations that the police have decided not to prosecute. The victim then engages his or her own lawyer to swear a complaint before a magistrate. The parties are then called to an informal settlement meeting. If nothing comes out of it, a date is fixed for the victim to pursue the prosecution at a full trial at his own cost. The clear position, however, is that at any stage before judgment the Public Prosecutor may step in either to discontinue or take over the prosecution. The Public Prosecutor does intervene, 5 but infrequently – although in the vast majority of private prosecutions, the Public Prosecutor does not appear or express any view at all. Problematic questions arise at two levels. First, the legal issues. The legal provisions relevant to a criminal prosecution, or at least most of them, were obviously not drafted with a private prosecutor in mind. It is not easy to see how a private prosecution can be consistent with the constitution which vests prosecutorial discretion exclusively in the Public Prosecutor. It has been ventured that the private prosecutor acts by ‘delegated’ power6 – but there is no evidence of delegation to be found.7 More interestingly, can prosecutorial discretion ever be delegated – the constitution confers security of tenure on the Public Prosecutor equivalent to judges so that prosecutorial discretion is shielded from partisan pressure. Is it possible for such a discretion to be delegated?8 The Criminal Procedure Code does expressly allow private persons to ‘appear’, but consistently with the constitution, that appearance must be authorized by the Public Prosecutor who is at liberty to appoint anyone as a representative9 – however, such authorization is not routinely obtained in Singapore. Problems at the appellate stage are compounded by other provisions in the Criminal Procedure Code which do not clearly allow the private prosecutor to appeal10 and which expressly forbid anyone from appearing on behalf of the Public Prosecutor in a criminal appeal, unless specific authorization from the Public Prosecutor has been obtained.11 A Singapore court faced with this problem simply refused to decide.12

The victim’s role in Singapore’s criminal process 209 The second, and more important, issue is whether there is a convincing rationale for such a thing as a private prosecution. The first cut must be this – if the offence sufficiently engages the public interest, then it follows that the Public Prosecutor must prosecute and himself direct the prosecution at State expense. If the offence does not sufficiently engage the public interest, then there ought not to be a prosecution, public or private. Any attempt to justify a private prosecution must involve the existence of a kind of ‘twilight zone’ where public interest is insufficient for the Public Prosecutor to be bothered with it, but which is sufficient for the victim to prosecute at his or her own direction and expense. Should such a thing exist? In practice, the police13 and Public Prosecutor leave to private prosecution those offences which are essentially a private dispute between the offender and the victim – that is why it would not, in the view of the police and Public Prosecutor, be justifiable to expend public resources prosecuting such offences. It is difficult to escape the obvious response that essentially private disputes be resolved by private, or civil, law through a claim in, perhaps, tort. Why it is necessary to allow private prosecutions is unclear. The equally obvious retort is that, in reality, taking up a civil suit is too daunting, complex or expensive a prospect for the victim and potential plaintiff. That is a serious point and has to be addressed, but is private prosecution the best solution? One ought immediately to be apprehensive when it is suggested that we make exceptions to the criminal process to shore up the flaws of the civil process. Surely, the appropriate response is to reform the civil process to make it less daunting, complex and expensive?14 A possible model to follow is the small claims tribunal which adopts a cheaper and simpler procedure for small claims.15 The tribunal cannot now hear tortuous claims for personal or reputational injury,16 but there appears to be no reason why it should not. Defects in the civil process ought to be dealt with by changes to the civil process, not by problematic exceptions to the criminal process. Private prosecutions may have been an expedient solution in early Singapore where there were simply not enough resources for the Public Prosecutor to prosecute all offences worthy of prosecution.17 Under those circumstances, it might have been justifiable for the Public Prosecutor to take up only the most serious cases and to leave to private prosecution those offences which, though worthy of prosecution, cannot be done by the State because of a lack of resources. Those circumstances no longer exist.

The power of ‘composition’ Just as the victim’s apparent right to initiate and pursue a private prosecution contradicts the constitutional vesting of prosecutorial discretion in the Public Prosecutor, the power of the victim to agree to a ‘compounding’ of an offence seems to be inconsistent with the exclusive authority of the Public Prosecutor in discontinuing a prosecution.18 One would have thought that if

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a ‘settlement’ of any kind were to be allowed,19 it ought to be an agreement between the Public Prosecutor and the offender. Yet the Criminal Procedure Code appears to give the power of settlement to the victim for certain lowerlevel offences, save that the court must consent to such a settlement.20 A Singapore court has held that the consent of the Public Prosecutor is unnecessary.21 What normally happens is this. After an accused person is charged with an offence and the offence is compoundable, either the offender or the victim may initiate negotiations for the composition of the offence. If an agreement is reached, usually involving the payment of a sum of money from the accused to the victim,22 the parties then apply to the court for the offence to be compounded.23 The court has the discretion to approve the composition, and if the court so approves, the accused is acquitted of the charge.24 If the court does not, the prosecution continues. The Public Prosecutor may submit to the court its view as to whether or not the composition ought to be approved, but the court is not bound by it. Problems emerge again at two levels. First, there is the threshold issue of the compatibility of this scheme with the constitutional vesting of the power of discontinuance of a prosecution on the Public Prosecutor.25 It is uncontroversial if the Public Prosecutor decides to discontinue proceedings, even if it is partially on the basis that the victim has received a sum of money or an apology from the accused. It is quite another matter to make the consent of the victim a pre-condition to the discontinuance of the prosecution. The problem is exacerbated by the ruling of a Singapore court that the consent of the Public Prosecutor is unnecessary.26 The same court sought to rationalize its construction of the power of composition by arguing that the constitutional vesting of the power of discontinuance in the Public Prosecutor is not an exclusive one. But the attempt was feeble and hinged on an erroneous piece of reasoning – discontinuance means termination, a prosecution can be ‘terminated’ in many ways including the conviction and acquittal of the accused, since the power of acquittal and conviction is clearly vested in the court and not the Public Prosecutor, the vesting of the power of discontinuance cannot be exclusive.27 There is of course no good reason why ‘discontinuance’ ought to be interpreted thus – surely it is far more sensible to say that it is not just any termination, but termination prior to the determination of the merits of the case.28 No one would say that a criminal trial was ‘discontinued’ because the judge had either convicted or acquitted the accused – such a prosecution is not discontinued but simply completed. Be that as it may, even if the court had held that the consent of the Public Prosecutor is necessary, our problems are not yet resolved – for the power of composition would then still require two other keys – the consent of both the victim and the court. It is this requirement that must fall foul of the constitutional vesting of the power of discontinuance in the Public Prosecutor, and in him alone. At another level, even if we put aside these legal issues, we need to ask if there ought to be a place in the criminal justice system for this system of

The victim’s role in Singapore’s criminal process 211 composition. True, it does confer on victims a certain degree of empowerment for lower-order crimes – they hold one of two (or three) keys to the resolution of the prosecution. If we take the position as it appears to be at the moment – that the consent of the Public Prosecutor is unnecessary – then we have a problem. A criminal prosecution is not pursued solely, or even primarily, at the behest of the victim, or to vindicate the particular wrong done to a victim. Victim consent and satisfaction is undeniably a factor to be taken into consideration by the Public Prosecutor, but he has also to consider the public interest in pursuing or not pursuing a prosecution. Simply, the Public Prosecutor might be well aware that the victim is quite happy for the charge to be dropped, but still decide that the public interest nonetheless dictates that the prosecution be continued. The power of composition flatly contradicts this position.29 The inconsistency is not so bad if the court had held that the consent of the Public Prosecutor is necessary to effect a composition – the discontinuance of prosecution then cannot be done without the consent of the Public Prosecutor. But that would have also rendered the power of composition effectively redundant – for even if there were no power of composition, it is entirely possible for the Public Prosecutor, acting on his own, to discontinue the prosecution at least partially on the basis that the accused has made amends to the satisfaction of the victim. The approval of the court is also superfluous because the Public Prosecutor does not need to use the composition scheme; he simply exercises his constitutional discretion to discontinue the prosecution. It might be argued that the power of composition is not so much in the right to terminate the prosecution, but in the power of the victim to obtain satisfaction from the accused. Like the similar argument made for private prosecution, the appropriate forum for redress is in a civil court for that is its purpose – to compensate the victim who has been harmed by another. Also, the power of composition is a very blunt tool – for in reality the system can be badly twisted for unsavoury ends. The rich and powerful can use it to tempt a victim to agree to a composition for vast sums of money. It is true that the courts are aware of this and have said on numerous occasions that they will not allow this to happen.30 But how are they to distinguish the ‘genuine’ settlement from the ‘tainted’ one – an offender offering a large sum of money could be doing it to escape justice, or because he is genuinely remorseful – a court will normally have no means to determine which motive is the real one. The situation could also be reversed with an offender offering a fair sum of money out of remorse, but the victim trying to squeeze more money from the offender, with the threat of criminal prosecution as a bargaining chip. How can a court realistically tell this situation apart from the ‘genuine’ cases? That the court itself is not particularly comfortable with an expansive power of composition can be seen in its consistent jurisprudence that where there is even a whiff of ‘public interest’ in prosecution, the court will not

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approve a composition. Thus for road rage and maid abuse, the court has announced that it will not countenance any sort of settlement.31

Victim impact statements Singapore introduced the ‘formal’ use of victim impact statements as material before the sentencing court about ten years ago for the specific purpose of giving the victim a greater emphasis in the criminal process.32 The practice appears to be this.33 Normally, the prosecution may at the sentencing stage of the criminal process produce a statement made by the victim. Statements sought to be put in will routinely contain the victim’s account of the adverse impact the offence has had on the victim’s person and lifestyle. No one will doubt the likely beneficial symbolic and psychological effects on the victim of giving him or her a ‘voice’ in the sentencing proceedings34 – and it is perhaps on such a basis that their continued use is best justified. Yet if one were to ask whether such statements ought to have any real influence on sentencing,35 the difficulties start. There is again no doubt that the extent of harm occasioned by the crime should have a very important bearing on the severity of the sentence.36 However, any physical harm caused is much better presented to the court in a proper medical report by a trained doctor as opposed to a statement by the victim. The use of a ‘thirdparty’ medical report would significantly obviate suspicions of exaggeration and other inaccuracies.37 The problem is really with psychological harm. Yet one would have thought that it should follow that such harm, where it is severe, is best presented through a proper ‘third-party’ expert psychiatric report, for the same reasons as would pertain to physical harm.38 For less serious psychological harm, would it not be better for the sentencing judge to simply rely on ‘common sense’?39 For example, a common situation where victim impact statements are presented is the sentencing of a sexual offender. The victim impact statement will routinely recount how psychologically scarred the victim was by the incident in question.40 One would have thought that ‘common sense’ would make it unnecessary to have to say this expressly. It is difficult to see how such a statement can contribute to the sentencing process in the sense of the court having to determine the appropriate sentence. It could only be significant if the offence has produced in the victim a kind or degree of harm beyond that which common sense tells us – that, as we have seen, is the province of an expert psychiatric report. At most, such a victim impact statement might be useful to a ‘rookie’ judge who is hearing a case like this for the first time – but beyond that, it is hard to see how it would add to the material before the sentencing court. Furthermore, the relevance to sentencing of harm completely outside reasonable contemplation is in itself problematic.41 There are two ways of expressing this. First, the normal principles of criminal responsibility fix blame on an offender only for harm which is reasonably to be expected of a particular criminal activity. For example, an offender guilty of ‘low-end’

The victim’s role in Singapore’s criminal process 213 outrage of modesty, say the briefest touch on a relevant part of the victim’s person, should probably not be punished more severely simply because it so happens that the victim has a history (unknown to the offender) which makes him or her suffer more badly from such an incident. The other way to say it is that the ‘bottom line’ of a criminal prosecution is that the offender is punished for the kind of criminal activity he or she has engaged in and the kind of harm he or she has caused, for that is the extent of the public interest – not for the specific unusual and unforeseeable harm actually caused to a particular victim. Again, the redress for the particular harm caused to a particular victim is appropriately the concern of the civil law. It is not surprising then that after a decade of experience, we are not in any better position to tell if victim impact statements actually influence sentencing. We certainly have no evidence that they do. Although the courts will refer to such statements in their sentencing judgments, they are mentioned together with a host of other aggravating or mitigatory factors and rounded off with a particular sentencing decision ‘based on the all the circumstances’.42 My guess is that victim impact statements actually do not affect actual sentences handed down, but courts nevertheless mention them for the symbolic gesture and perhaps therapeutic purpose of victim recognition. A word should perhaps be mentioned about victim representations pleading for leniency.43 An instance of the context in which this happens is where the offender and victim belong to a family unit and the offender is the primary breadwinner – to put the offender in jail for a long time would directly harm the victim. There is evidence that such representations have been acted upon with the court deciding on sentence rather lower than it would have otherwise been. It is not entirely clear, and the court does not explain, why the adverse impact (on the victim) of a severe sentence ought to reduce the offender’s punishment. Again, the primary purpose of criminal punishment is to deal with the public dimension of the harm caused by crime – the fact that an otherwise appropriate sentence would cause hardship to the victim is not strictly relevant. Perhaps a mitigatory effect is best understood, if not completely justified, in that there is a difference in moral force between a victim wanting satisfaction for a harm already done and a victim pleading that further harm not be inflicted.

Compensation orders Unlike the use of victim impact statements, the power of the sentencing court to award a compensation order against the offender in favour of the victim has been in existence for over a century.44 Under such an order, a criminal court directs the offender to pay a certain sum of money to compensate the victim for harm suffered because of the crime. Yet it has not been the practice of courts in Singapore to resort to such orders routinely, although it has on occasion made use of them.45 It is not entirely

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clear why the courts have not used compensation orders more extensively, but I would venture a guess that a significant reason is that the whole idea of compensation orders sits very uneasily in the criminal process. Perhaps this was already obvious to the drafters of the provisions in the Criminal Procedure Code on compensation orders. One might have thought that courts ought to have been directed, in every case in which harm has been caused, to at least consider the award of compensation orders, and to have been compelled to state the reasons why a compensation order was not awarded. Instead, the Code says, rather half-heartedly, that the court ‘may, in its discretion’ make a compensation order.46 Why enact such a power but give it so little bite? The key must be the instinctive unease with a criminal court dabbling in ‘compensation’ instead of punishment. The courts have consistently declared that, while a compensation order is conditional upon a criminal conviction,47 it is not another form of punishment and is not to be used to add to the punitive value of a sentence.48 The shape and flow of the criminal justice system, apart from the kind of exceptions discussed in this chapter, are driven by the need to punish the offender for a public wrong, not to compensate the victim for a private injury. The need to compensate the victim for an injury unlawfully caused is properly the concern of the civil court. Perhaps the strongest reason for the insertion of compensation orders in the criminal process is that victims of successful criminal prosecutions ought not to be put to the emotional and fiscal costs of taking up a civil claim against the offender. If there is any force in this at all, it is for the civil process to be fixed so that legitimate claims are not effectively denied because of unnecessarily cumbersome procedures, and not for the criminal justice system to engraft an anomalous ‘civil’ function on itself. It is not difficult to illustrate the kind of confusion that compensation orders have caused. The courts have always said that the one and only reason for them is the need to assist victims in obtaining compensation for the injury which they have suffered because of the crime. Ideally victims should seek compensatory redress through the civil courts, but that would be unduly onerous for some victims – so compensation orders provide a simple avenue to bypass the civil process. Yet at the same time, the courts also declared that it is unnecessary for the award of a compensation order for the demonstration of a valid civil claim.49 How can this be? If the only rationale is the simplification of procedure, how is it that compensation orders can now be ordered, even where a civil claim would have failed? A second example can be seen in the effect of non-compliance with a compensation order. If indeed compensation orders are not punitive, then it ought to follow that a compensation order cannot have greater force than a (civil) judgment debt. Yet the Criminal Procedure Code says that unsatisfied compensation orders can be enforced by imprisonment in default thereof.50 How can this be? What appears to have begun life as procedural simplification seems to have acquired substantive force.

The victim’s role in Singapore’s criminal process 215 I do not question the need to fashion a legal system in which victims of crime are adequately compensated for harm caused by criminal activity. The institution of compensation orders fails miserably – the courts have made it clear that such orders will issue only in the clearest of cases,51 both in terms of offender responsibility for the injury and of the quantification of the order. It bears repetition that it ought to be the business of the civil justice system to respond to the charge that its processes have become too user-unfriendly.52 Perhaps it is time that the custodians of the civil process think creatively about how the process can be simplified and streamlined for victims of crime. Perhaps a criminal conviction in which there is ‘quantifiable harm’ can operate as a means of initiation of a civil claim. Perhaps all or some of the material which was before the criminal court can be automatically made admissible evidence at the subsequent civil phase. Perhaps the offender can be allowed to elect to consent to summary (civil) judgment without going through the formal pleading process.

Victims and the prospect of a greater role in the criminal process The prospect of the victim acquiring a decisional role in the criminal process is not favourable – that would explain why the criminal justice system has been so reluctant to do anything particularly radical in this regard. I do not discount the symbolic and other good psychological effects of measures such as affording the victim the right to be informed of the progress of the prosecution,53 or of the avenue of submitting representations, through impact statements or otherwise, to the criminal court.54 But we do have to face the fact that victims can have no decisional role without serious prejudice to the primary rationale of the criminal justice system – the punishment of a public wrong. This justifies the use of public funds and of governmental institutions in the prosecution and enforcement of the findings of a criminal court. It is not as bad as it sounds – in the vast majority of cases, the public interest will coincide with the need for victim satisfaction – but it cannot be denied that where they do diverge, the public interest must prevail in a criminal prosecution. We have seen that the exceptions to the decisional role of the victim which the law has been willing to make in Singapore are both lukewarm and highly problematic. I do not hold out much promise for similar attempts to do so in the future. It would be far more fruitful, in my view, to pursue a number of other things. First is the enhancement of the non-decisional role of the victim in the criminal process. Examples include the right to timely provision of information about the progress of the prosecution and the reasons for prosecutorial decisions made thereon, and perhaps the right to make written submissions to the sentencing court. Second is a serious rethinking about the civil process which ought to be the primary means by which a victim seeks redress for a private wrong. It will not do, as appears to have been the case, to simply assume that the civil process must now and

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forever be too onerous for victims of crime to have recourse to. I have made a number of suggestions in this regard in the course of this discussion, and I would add to that, perhaps, enhanced government legal aid for the pursuit of a civil claim in the context of a criminal offence.55 Perhaps a third thrust might be to explore solutions outside of the court system. For example, it has been cogently argued that it is short-sighted and insufficient for the State to leave crime compensation to the uncertain means of the offender who will probably face employment problems in the near future, and that a system of State compensation ought to be set up.56 There is no doubt that much more can be done, and ought to be done, for victims of crime, but we need to be careful about asking for the right things, and asking for them in the right way.

Notes 1 Article 35(8) of the Constitution of the Republic of Singapore. 2 The High Court in PP v. Norzian bin Bintat (1995), para 18, did suggest to the contrary: It is not disputed that in certain circumstances an aggrieved person may commence a private prosecution for certain offences without the consent of the Attorney General. Thus, it is uncontroversial that the [Public Prosecutor] does not have the sole discretion to institute or conduct criminal proceedings.

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It is quite wrong to put the cart before the horse in this fashion – the question is not whether the Public Prosecutor has the sole discretion, assuming that private prosecutions are constitutional, but whether private prosecutions are constitutional in view of Article 35(8) of the constitution. With respect, the correct approach is taken by Sornarajah (1996) who argues that it is the constitution which must be given ‘primacy’. It was mentioned in Raffles (1823), minute 13. This concept found its way into what is perhaps the first reported decision to mention it in R v. Sultan Mohamed (1884), and is quite alive today – see, for example, the Magistrates’ Court’s recent decision in Ngow Pui Fong Davinia v. Heng Siew Inn Rosalind (2006). It is evident from the chapters in this volume that private prosecutions exist elsewhere, for example, in India and Taiwan. Section 336(8) of the Criminal Procedure Code. An example is Jasbir Kaur v. Mukhtiar Singh (1999). Tan (2002) was cited but not clearly with approval or disapproval in Jasbir Kaur v. Mukhtiar Singh (1999), para 16. There is no known instrument or document setting out the terms of the purported delegation. This concededly arguable issue is particularly hazy because of the peculiar position of the Public Prosecutor who clearly exercises executive power (as the power of prosecution must be) but whose office is constituted in a manner which more resembles that of the judiciary (as evidenced by the provisions on security of tenure). Even so, executive power which is regularly delegated must be done by some positive act of perhaps the appointment of the delegate – no such appointments exist for the normal private prosecution. An exception is where the consent of the Public Prosecutor is expressly required by statute: for

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example, the prosecution of corruption offences under Section 33 of the Prevention of Corruption Act. Section 336(3) of the Criminal Procedure Code. Section 247(1) of the Criminal Procedure Code confers the right to appeal only to ‘parties’. The High Court in Jasbir Kaur v. Muktiar Singh (1999), para 15, got round this difficulty by baldly declaring that the private prosecutor is ‘clearly’ a party – it is of course far from clear. Section 336(6) of the Criminal Procedure Code. Jasbir Kaur v. Muktiar Singh (1999), paras 22–4, observed that the court will have to choose between defiance of clear statutory words and the ‘difficulty’ of the court simultaneously holding that the private prosecutor may appeal but may not appear. The relationship of the police and the Public Prosecutor appears to be this – the Public Prosecutor cannot direct the police to do anything, but can indicate to the police that if they want a prosecution, they will have to satisfy him of the need and sustainability of it. The police do not act under the orders of the Public Prosecutor but of the Minister of Home Affairs. There must, of course, be a high degree of cooperation in day-to-day dealings. Potential civil plaintiffs who do not have a crime to hitch on to face the same sort of burdens – what of their right to bring a claim? Small Claims Tribunals Act, which was enacted in 1985. Section 5 of the Small Claims Tribunals Act lays down the jurisdictional limits. The implicit assumption in the Criminal Procedure Code and older statutes that there is such a thing as a private prosecution date from such a time – for example, the Criminal Procedure Code itself was enacted more than a century ago. My colleague Wing-Cheong Chan has alerted me to what (until recently) was the practice of the police and prosecution in being very reluctant about prosecuting for family violence. He is of the view that private prosecution can play a major role in allowing victims to do what the State ought to be doing. I am entirely sympathetic to victims of family violence faced with such prosecutorial policies, and do concede to the practical use of private prosecution as a stop-gap measure to correct ‘faulty’ prosecutorial policy. However, in terms of long-term institutional design, it would be far better to tackle the broader issue of redress against a decision of the State not to prosecute. Apart from the very weak traditional avenue of judicial review of prosecutorial discretion, Singapore has no formal mechanism for someone unhappy with a non-prosecution decision. It is evident from this volume that other jurisdictions in Asia have given victims the right to subject such prosecutorial decisions to formal review. Article 35(8) of the Constitution of the Republic of Singapore. There are, of course, problems with ‘settlements’ in the context of criminal proceedings, more popularly called ‘plea bargaining’, but that is beyond the scope of this discussion. Section 199 of the Criminal Procedure Code prescribes the composition of Penal Code offences. Notwithstanding the ambiguous wording of Section 199(1), the High Court has held that the consent of the court is required for all compositions: Wong Sin Yee v. PP (2001). Section 199A allows for composition of nonPenal Code offences which are expressed either in legislation or subsidiary legislation to be compoundable. It is unclear whether the approval of the court is required for the composition of non-Penal Code offences, although there appears to be no reason why the regime should be any different from the composition of Penal Code offences. PP v. Norzian bin Bintat (1995). And occasionally an apology of some sort.

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23 The parties (i.e. offender and victim) do not need in practice to apply in all cases. If, for example, no prosecution has been initiated, no application need be made. But if subsequently prosecution is initiated, presumably by the Public Prosecutor, or by the victim who has perhaps changed his or her mind, the consent of the court is required to terminate the proceedings. 24 Section 199(4) of the Criminal Procedure Code. Section 199A(5) of the Criminal Procedure Code (for non-Penal Code offences) contains the slightly different formula of ‘no further proceedings shall be taken against that person in respect of such offence’. It is not yet clear whether there is any difference in meaning, although there seems to be no reason why there ought to be. 25 Article 35(8) of the Constitution of the Republic of Singapore. 26 PP v Norzian bin Bintat (1995). 27 PP v Norzian bin Bintat (1995), para. 16–17. 28 Either at the close of prosecution’s case, or at when all the evidence and submissions are in. There is perhaps one truly exceptional situation – the doctrine of ‘abuse of process’ which apparently allows the court to ‘stay’ a prosecution where, for example, the prosecution would have been ‘oppressive’: Gunalan s/o Govindarajoo v. PP (2000). This exceptional judicial power is best seen either as a corollary of the court’s inherent power to protect its own processes, or as a special kind of constitutional judicial review of the discretionary power given to the Public Prosecutor. 29 It is telling that, except for the holding in PP v. Norzian bin Bintat (1995) itself, there appears to be no other reported decision in which the court has approved of a composition against the wishes of the Public Prosecutor: see, for example, the recent decisions of Chua Tian Bok Timothy v. PP (2004); and PP v. Teo Kern Yam (2005). Perhaps the court eventually realized the practical and conceptual problems with ‘countermanding’ the Public Prosecutor after it had so boldly acquired the power. I do not, of course, underestimate the massive practical problems of continuing with a prosecution in which the victim absolutely refuses to cooperate. 30 For example, in Chua Tian Bok Timothy (2004), para 20, the court disapproved of an agreement reached for a sum of S$7,500 for minor injuries, labelling it as ‘attempting to buy the victim out for a princely sum’. 31 The list of judicially created ‘non-compoundable’ offences grows: Chua Tian Bok Timothy (2004) (road rage); Ho Yean Theng Jill v. PP (2004) (maid abuse); PP v. Mohamed Nasir bin Mohamed Sali (1999) (‘aggravated’ outrage of modesty). 32 Then Chief Justice Yong Pung How announced the use of victim impact statements so that ‘the criminal justice system will be enhanced by recognising the trauma suffered by crime victims’: Lim (1997). 33 A fairly good indication of the guidelines for the use of victim impact statements is to be found in the Subordinate Courts publication by Kaur et al. (2003), Chapter 7. 34 Provided, of course, the victim does it voluntarily. 35 Kaur et al. (2003: 99) boldly declares that ‘the purpose of a victim impact statement is to assist the court in meting out an appropriate sentence’. The Chief Justice’s articulation of ‘recognising the trauma’ suffered by the victim is subtly different: Lim (1997). 36 Kaur et al. (2003) is certainly right to say that ‘[i]t is an elementary principle that the damaging and distressing effects of a crime on the victim represent an important factor in the sentencing decision’. 37 Which might perhaps be caused by an overwhelming desire for revenge, or by the lack of objectivity in general, or by the lack of sufficient knowledge of medical science.

The victim’s role in Singapore’s criminal process 219 38 The courts should have no difficulty handling such expert reports – they do so routinely in, for example, cases in which unsoundness of mind (or insanity) or diminished responsibility is pleaded. 39 By this I mean the sentencing judge’s inference or prediction of what an ordinary victim, in the position of the particular victim, would have suffered. 40 For example in PP v. Mohamed Noh Hafiz bin Osman (2003), victim impact statements were tendered in a sexual assault case to the effect that the victims were so traumatized that they ‘were fearful of male strangers and did not dare to go out alone any more’. Without wishing to downplay the seriousness of such psychological scars, it must be observed that these effects cannot be unknown to any sentencing judge. 41 An example of harm of ‘questionable relevance’ is perhaps to be found in PP v. Selvaraju s/o Satippan (2004), where the offender had kidnapped and threatened to kill a nine-year-old victim, and the victim said in her victim impact statement that she ‘has developed a phobia of dark-skinned Indian men as they remind her of her attacker’. The court did not make a specific ruling on this portion of the victim impact statement, and it is difficult to see how it could have affected the sentence given. Sam Garkawe has alerted me to the situation where the offender knows of the unusual susceptibility or sensitivity of the victim. There is no doubt that, in such a situation, the unusual harm done to the victim will be relevant. However, one would have thought that in such an exceptional situation (I have not come across such a reported case in Singapore) the victim’s special susceptibility and the offender’s knowledge thereof would have emerged from the prosecution’s case, or at least from the victim’s testimony. 42 For example, the sentence in Selvaraju (2004), was said to be based on ‘all the circumstances’ including the ‘immeasurable amount of psychological damage’ done to the victim. What was not articulated was whether the victim impact statement, in particular, played any significant role and if so which part of it. 43 A particularly striking instance was the reduction in sentence for a father who had raped his disabled daughter five times – it was on the basis that a very long jail term would add to the hardship of his family who would have to do without his support for as long as he was in jail: Tan (1999). 44 See Yeo (1984) at footnote 6 therein. 45 A definitive study on the popularity of the compensation order has yet to be done, but as a very rough indication, in only one reported decision is a compensation order even mentioned since 2005. Yeo (1984: 236), suggests that ‘[t]he existing provisions for victim compensation have been shown to be ill-utilized by our courts primarily because of a lack of clear guidelines as to their use.’ This does not explain why the courts have not for more than a century chosen to fashion such guidelines. That the courts are quite able to do so if they want to is illustrated by the courts’ development of elaborate sentencing guidelines with little or no prompting from the legislature. 46 Section 401(1) of the Criminal Procedure Code. 47 Section 401(1) of the Criminal Procedure Code provides that it is only ‘[t]he court before which a person is convicted of any crime or offence’ which has the power to make a compensation order. 48 PP v. Lee Meow Sim Jenny (1993), para 28. Although one might suspect something rather more than just compensatory in a few instances where compensation orders were made: for example in PP v. Lee Seck Hing (1992) (road rage context which the court has declared a distinct antipathy to); and in Lim Poh Eng v. PP (1999) (particularly egregious case of medical negligence). 49 Kaur et al. (2003), could not have failed to notice these two conflicting propositions which stand side by side at page 62:

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Michael Hor Compensation orders were introduced as a convenient and rapid means of avoiding the expense of resort to civil litigation. . . . A compensation order may be made in respect of injury, loss or damage which would not necessarily be actionable. . . .

50 Section 403 of the Criminal Procedure Code. 51 Kaur et al. (2003), page 64. I must again concede that if changes are not made to the civil process or State-funded compensation, the practical expedient of compensation orders against the offender cannot be denied. 52 There are likely to be formidable obstacles in the way of civil justice reform to make it easier for plaintiffs to sue. Official fear of increasing litigiousness is evident – litigation, it would seem, is not ‘productive’ activity as far as the economy is concerned. Yet it is evident from this volume that several jurisdictions in Asia have simplified the civil process in the context of harm caused by crime. 53 An increasing ‘informational’ right in favour of the victim might eventually run up against the predominant culture of official secrecy, symbolized by the Official Secrets Act (1985), a piece of legislation brought in from England in the 1930s and which has remained largely intact in Singapore, notwithstanding the fundamental changes that have happened in England itself. 54 An increased ‘representational’ role for the victim is perhaps the least controversial, but one can predict official sensitivity to the ‘complication’ of the criminal process, with one other party to contend with, and the resultant fear of increased cost and inefficiency. 55 The Legal Aid and Advice Act (1996), does not give any special dispensation to victims of crime. 56 See Yeo (1984). The issue of State-funded compensation is likely to be the most difficult reform for it appears to run against the official stance against ‘welfarism’. The Singapore government does not want to give the impression that anyone in need can simply run to it and ask for relief. The ‘slippery slope’ issue will also be foremost in official reaction – if State-funded compensation is allowed for victims of crime, what of State-funded criminal legal aid for accused persons, and health care. The challenge for advocates of victim’s rights is to craft a scheme in which the government does not appear to be involved in paying for the victim’s compensation.

References Kaur, J., Chay, Y.F., Chionh, M., Chong, K.W., Hoo, S.P., Ng, J., See, K.O., Tan, M. and Tey, T.H. (2003) Sentencing Practice in the Subordinate Courts, 2nd edn. Singapore: LexisNexis. Lim, L.H. (1997) ‘Victim Impact Statements to Protect the Public’, The Straits Times, 2 March. Raffles, T.S. (1823) Minute by the Lieutenant-Governor. Reprinted in 1968 as ‘Raffles’ Singapore Regulations – 1823’, Malaya Law Review, 10(2), 248 at 286. Sornarajah, M. (1996) ‘The Attorney-General’s Powers Over Criminal Prosecution’, Singapore Academy of Law Journal, 8, 47–67. Tan, O.B. (1999) ‘Mercy Shown to Child Rapist’, The Straits Times, 2 April. Tan, Y.L. (2002) Criminal Procedure, 2, para. 603. Singapore: Butterworths Asia. Yeo, S.M.H. (1984) ‘Compensating Victims of Crime in Singapore’, Malaya Law Review, 26(2), 219.

The victim’s role in Singapore’s criminal process 221 Legislation and treaties Criminal Procedure Code (1985). Chapter 68. Official Secrets Act (1985). Chapter 213. Prevention of Corruption Act (1993). Chapter 241. Legal Aid and Advice Act (1996). Chapter 160. Small Claims Tribunals Act (1998). Chapter 308. Constitution of the Republic of Singapore (1999). 1999 Rev. edn.

Cases Chua Tian Bok Timothy v. PP (2004) Singapore Law Reports, 4, 514. Gunalan s/o Govindarajoo v PP. (2000) Singapore Law Reports, 3, 430. Ho Yean Theng Jill v. PP (2004) Singapore Law Reports, 1, 254. Jasbir Kaur v. Mukhtiar Singh. (1999) Singapore Law Reports, 2, 349. Lim Poh Eng v. PP. (1999) Singapore Law Reports, 2, 116. Ngow Pui Fong Davinia v. Heng Siew Inn Rosalind. (2006) Unreported decision of the Singapore Magistrates’ Court, 3. PP v. Lee Meow Sim Jenny. (1993) Singapore Law Reports, 3, 885. PP v. Lee Seck Hing. (1992) Singapore Law Reports, 2, 745. PP v. Mohamed Nasir bin Mohamed Sali (1999) Singapore Law Reports, 4, 83. PP v. Mohamed Noh Hafiz bin Osman. (2003) Singapore Law Reports, 4, 281. PP v. Norzian bin Bintat. (1995) Singapore Law Reports, 3, 462–76. PP v. Selvaraju s/o Satippan. (2004) Singapore Law Reports, 3, 615. PP v. Teo Kern Yam (2005) Unreported decision of the Singapore District Court, 88. R v. Sultan Mohamed. (1884) Kyshe Reports, 2, 116. Wong Sin Yee v. PP. (2001) Singapore Law Reports, 3, 197.

11 Victims of crime in Taiwan’s criminal justice system Jaw-Perng Wang

Introduction Many Taiwanese victims used to feel alienated from the criminal justice system. There are various reasons behind this phenomenon. First of all, their opinions were sometimes ignored or even disregarded in the criminal procedure. In deciding whether to prosecute an offence or to make an appeal, prosecutors did not necessarily pay attention to what victims thought. Even if they did not like a prosecutor’s decision, victims did not have an effective channel to challenge it. In sentencing a defendant, a judge did not even ask for the victims’ opinions. It was very often that victims did not know or understand the progress of the case or the result of the procedure after they reported the offence to the authorities. No officials would keep them informed of the procedure. Second, harsh and unfriendly procedures would sometimes thwart victims from participating in the proceedings. Many victims choose not to testify in order to dodge the harsh and vigorous cross-examination launched by defence lawyers. Without the victim’s testimony, it is sometimes difficult to convict the very defendant who has harmed them. In some offences, victims would not like the judges or prosecutors reopening, in a public trial, wounds which had healed after the crimes. Third, victims are very often ignorant of the law and/or simply lack the knowledge and skills to face the complicated procedure. Victims do not know their status or rights in the proceedings. Victims do not assert their right sometimes because they do not know their rights, not because they waive their rights. Even if they know and want to assert their rights, their rights might not be implemented because of the complexity of the procedure. Fourth, criminal justice did not give what some victims desire most, monetary compensation. Penal punishment against a defendant is certainly the justice that victims pursue. However, for many victims, what matters most is monetary compensation. Many times, victims suffer physical or psychological damages caused by crimes. Penal punishment against the offender would not help victims recover from their loss or damages. A criminal prosecution against a defendant is not an important concern for many

Victims of crime in Taiwan’s criminal justice system 223 victims. Even if the offender is convicted in criminal proceedings, they might have to file another, and different, civil action against the offender. Even when they clear all the obstacles in winning a civil action, their civil claims might not be satisfied because most criminals are insolvent. Some of the above reasons are justified, whereas some are not. For example, a defendant is supposed to have the right to confront the witness against him at trial. This right has a constitutional origin. Although it is extremely unpleasant for victims to face the offender again, the law still demands that the victim come in front of his assailant in a court of law or else a victim’s statements cannot be admissible. It is, however, not impossible to seek a compromise between the defendant’s confrontation right and that of the victim. For example, if the presence of the defendant really traumatized a young victim’s ability to testify, the court can have the authority to order the victim to testify in another room with only prosecutors and defence lawyers present. Some of the above reasons behind a victim’s alienation from the criminal procedure are simply unwarranted. It is possible, for example, to provide legal aid to victims who wish to know, but do not know, their rights. Notifying the victim of the progress of the case and obtaining their opinion before making important decisions relating to their case would not hamper the efficiency of the criminal procedure. It would instead enhance a victim’s confidence in the criminal justice system. In the last decade, the Taiwanese government has paid great attention to victim’s rights and redrafted its Code of Criminal Procedure (CCP), as well as passed new laws such as the Sexual Assault Crime Prevention Act, Witness Protection Act and Crime Victims Protection Act. Taiwan has endowed victims more rights and has done a lot to eliminate factors that might thwart a victim’s willingness to participate in criminal proceedings. The next part of the chapter discusses a victim’s rights to participate in the criminal procedure in Taiwan. Following that, a description is given of the shields in Taiwan a victim could expect which protect him against re-victimization caused by harsh and vigorous confrontation at trial. A discussion then follows about the assistance designated to help victims in criminal procedure. Victims’ concerns about monetary claims will be discussed in the last part of the chapter.

Participation in criminal proceedings The right to file complaints and private prosecution Like most countries of the world, a victim of crime in Taiwan may file a complaint with the police or prosecutor. If at the conclusion of the investigation there is sufficient evidence to support the guilt of the accused, a prosecutor will file the prosecution with the court and act as a victim’s representative in court.

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It was not clear initially under the CCP whether a victim may be represented by a lawyer or an agent to go through the whole proceedings. In 2003, the CCP made it clear that a victim may authorize an agent to file the complaint. Once a victim has authorized an agent, the victim does not have to appear at the prosecutor’s hearings or police investigation unless the prosecutor or the police believe it is necessary to hear from the victim personally.1 The controversial question is whether a victim may file the suit directly with the court without any previous investigation conducted by the police or prosecutor. Unlike victims in the United States, victims in Taiwan have the right to initiate a private prosecution against the accused. Victims of any kind of crime may in principle file the prosecution against the offender in Taiwan under the CCP.2 The only limitation on the private prosecution, premised on Taiwan’s traditional concept of morality, is that victims may not initiate a prosecution against a lineal ascendant or spouse.3 In filing a private prosecution, a victim becomes a private prosecutor and plays the same function as a Public Prosecutor at trial. However, because victims do not necessarily have the knowledge of law, they do not act efficiently at trial. For this reason, the CCP of 2003 requires that a victim shall retain a lawyer to file a private prosecution.4 The effect of the new provision is so significant that the numbers of private prosecutions filed with district courts dropped from 5,380 in 2002 and 3,956 in 2003, to 1,540 in 2004. To prevent groundless litigation, the court may, before trial, examine the private prosecutor-victim and the accused, and collect or investigate the evidence. After the examination and investigation, the court may dismiss the private prosecution if it finds that a prosecutor will not prosecute the case.5 The private prosecution has the same effect as that of a public prosecution. In other words, unless the private prosecution is groundless, the court must try the case and the accused must answer the case. In addition, the agent of a private prosecutor may perform any act that may be performed by a Public Prosecutor at trial.6 If a defendant is acquitted, a private prosecutor has the right to appeal the case just like a Public Prosecutor. Unlike in Germany, in Taiwan victims who file a private prosecution are not required to pay costs involved in the private prosecution. Court fees as well as the witness’s daily fees and travelling expenses are paid for by the government, not the private prosecutors. This applies regardless of whether the victim is poor or rich. In 2002, 2003 and 2004, there were 5,380, 3,956 and 1,540 cases filed with the district courts in Taiwan respectively. They constituted about 3.9 per cent, 3.1 per cent and 1.2 per cent of the new caseloads in district courts, respectively.

Victims of crime in Taiwan’s criminal justice system 225 The right to review by a court of the prosecutor’s decision not to indict One controversial issue in Taiwan is what victims can do in a case where the prosecutor refuses to file a prosecution against the offender. Before 2002, a prosecutor’s decision not to prosecute could not be checked by a third party. The prosecutor’s decision not to prosecute or decision of deferred prosecution must be served on the victim who filed the complaint.7 If the victim who filed the complaint is not satisfied with the decision, he or she may apply for the prosecutor’s decision to be reconsidered.8 If the prosecutor who made the decision not to prosecute or decision of deferred prosecution finds the application for reconsideration well grounded, he or she must either continue the investigation or file a prosecution with the court.9 If he finds the application groundless, he must send his whole file to the chief prosecutor at a higher court.10 If the chief prosecutor at the higher court finds the application for reconsideration well grounded, he may order the prosecutor at the lower court either to continue the investigation or to file a prosecution with the court.11 If the chief prosecutor at the higher court also finds the application groundless, he must dismiss it. Before 2002, the decision not to prosecute became final at this point, and the complainant could not apply to any other authority for further reconsideration. In 2002, Article 258-1 was added to the CCP to give the complainant another channel to challenge the prosecutor’s decision not to prosecute.12 Under Article 258-1, after exhausting the remedy within the prosecutorial system, the complainant may apply to the court to open a trial. If the court finds the application for opening a trial groundless, it shall dismiss it. At this time, the decision not to prosecute becomes final and the accused can never be prosecuted except for reasons specified by law.13 If the court finds the application well grounded, it shall order the opening of a trial. The order is, therefore, deemed as a prosecution. As a matter of course, the accused is deemed as being prosecuted. However, the ‘defendant’ may appeal the court’s order to a higher court. The purpose of Article 258-1 is to impose an independent third-party check on the prosecutor’s decision not to prosecute. This article has also attracted a lot of criticism from prosecutors and scholars. Scholars believe the article confuses the nature of the court. A court should not be a supervisor of a prosecutor, and should not be involved in pre-trial investigation. Interestingly, in 2003, 2004 and 2005, there were respectively 1,048, 893 and 725 applications for opening a trial under Article 258-1, but the court approved only 5, 10 and 2 of them respectively. The right to be heard Before 1997, victims were not guaranteed the right to be heard at trial in Taiwan. Of course, victims may be subpoenaed as witnesses to testify

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against the defendant. However, they are not necessarily subpoenaed in every case. Even when they were subpoenaed to testify at trial, they are only allowed to state the facts, but not their opinions. In this sense, Taiwanese victims did not have the right to be heard at trial. In January 1997, Taiwan passed the Code of Sexual Assault Crime Prevention. Its Article 12 provided that the court must give the victim who filed the complaint the opportunity to state his or her opinions at trial unless he or she failed to be present without good reason after being legally summoned, or had expressed their unwillingness to be present.14 This is the first time a victim is afforded the right to be heard at trial. However, the right was limited to the victims of sex offences only.15 Victims of other crimes still did not enjoy the right to be heard at trial. In the same year, the right to be heard was expanded to all victims of different offences. In December 1997, the CCP was amended so that all victims have such a right. Under Article 271, Section II, of the CCP, the court must summon the victim or his or her family member to state their opinions at trial, unless they failed to be present without good reason after being legally summoned or had expressed their unwillingness to be present, or unless the court considered it not necessary or not appropriate to summon them. The 1997 amendment of CCP only allows victims to passively wait for the court’s notice to appear and state opinions at trial. In 2003, the victim movement succeeded in changing the CCP and gave victims a positive right to be heard at trial. Article 271-1 of the CCP of 2003 provides that victims who file the complaint may retain an agent to make statements at trial. However, the court may order the complainant to appear in court if necessary. Consequently, victims of all kinds of offences in Taiwan now enjoy the right to be heard at trial. The right to be notified of the procedure Victims enjoy the right to be notified of the progress and outcome of the case in Taiwan. After the conclusion of the investigation, a prosecutor must issue a written decision to prosecute, decision not to prosecute or decision of deferred prosecution. Under the CCP, this written decision must be served on victims who filed the complaint.16 As stated above, if a victim who filed the complaint is not satisfied with the prosecutor’s decision not to prosecute or decision of deferred prosecution, he may apply for reconsideration. However, a complainant must make the application within seven days after receipt of the prosecutor’s written decision. If proper notice of the prosecutor’s decision is not given, a complainant’s right to apply for reconsideration would never expire. At trial, the court is required by the CCP to summon the victim or his or her family member and provide them with opportunities to state their opinions, as stated above.17 Although the CCP has no provision requiring a

Victims of crime in Taiwan’s criminal justice system 227 verdict to be served on victims,18 court clerks are required to send verdicts to victims under the regulations promulgated by the Taiwan High Court. A court clerk will be subject to administrative discipline if he or she fails to deliver the verdict to the victim. Accordingly, a victim always enjoys the right to be notified of the progress and result of the procedure in the criminal proceeding. High regard of victim’s opinion Victims’ opinions are highly regarded, and sometimes decisive, in the whole criminal procedure in Taiwan. Once an investigation is concluded, a prosecutor must issue a decision to prosecute if he has found that the evidence of the accused’s guilt is sufficient.19 Even if the evidence of the accused’s guilt is sufficient to prosecute, a prosecutor still has the discretion to issue a ruling not to prosecute,20 or a ruling of deferred prosecution21 in less serious crimes. In deciding whether to prosecute in practice, a prosecutor normally looks at the victim’s intention. If a victim insists on pressing the charge, a prosecutor will normally issue a decision to prosecute. On the other hand, if the case is less serious and a victim ‘settles’ the case with the accused, a prosecutor would normally respect the victim’s intention and make a decision not to prosecute or to defer prosecution. Accordingly, a victim’s intention would become a decisive factor in the prosecutor’s decision to prosecute. The victim’s opinions also play an important role in the prosecutor’s decision whether to ‘bargain’ the case with defendants. The tremendous increase in caseload after Taiwan’s adoption of the adversarial system gave birth to ‘plea bargaining’ in 2004. With effect from 9 April 2004, a prosecutor may bargain with a defendant for a plea of guilt.22 After consulting with the victim for his or her opinions, a prosecutor may bargain with a defendant over the scope of the sentence and other matters, such as compensation. If a defendant comes to an agreement with the prosecutor and pleads guilty, a prosecutor may motion to the court for the ‘negotiation procedure’. Under the CCP, a prosecutor is not required to get the consent from the victim before motioning for the negotiation procedure; a prosecutor is required only to consult with the victim’s opinion. In practice, however, most prosecutors would not motion for a negotiation procedure without getting the consent from victims. The major reason is that prosecutors do not like to be seen as colluding secretly with defendants. If it is done with the victim’s consent, however, prosecutors can easily justify their decision to bargain with the accused and avoid any criticism. A victim’s opinion plays a more important role in the prosecutor’s decision to appeal. As a general rule, only the parties have the right to appeal. In a private prosecution, a victim who is the private prosecutor-victim has the right to appeal. In a public prosecution, only the Public Prosecutor has the right to appeal. However, under Article 344 of the CCP, a Public Prosecutor

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shall not reject the victim’s request to file the appeal unless the request is obviously unreasonable. Because of this provision, Public Prosecutors pay great attention to the victim’s opinions in making the decision to appeal. In practice, Public Prosecutors would normally file the appeal when victims provide some reasons of dissatisfaction with a judgment of the lower court. Access to the file Under the principle preserving the secrecy of investigations, a victim or a complainant does not have the right of access to the prosecutor’s file. As stated above, a victim has the right to request the court to review a prosecutor’s decision not to prosecute or decision of deferred prosecution. This right will, however, become futile if a victim cannot know what evidence a prosecutor has in his file. For this reason, the CCP of 2003 provides that a victim’s attorney may examine or make a handwritten copy or photographs of the prosecutor’s investigation file and evidence. However, this right may be restricted or prohibited if the subject matter being examined involves other cases that shall not be disclosed or shall be kept secret.23 After prosecution, a victim or a complainant has no right of access to the file because he or she is not a party of the case. There are, however, three channels through which a victim may gain access to the file. As stated above, the 2003 CCP provides that victims who file the complaint may retain an agent to make statements at trial. If a victim retains a lawyer as his agent, his agent may inspect, examine, make notes or take photographs of the material in the case file and the evidence in that stage of trial.24 A victim may access the file through his agent lawyer. Second, a victim may file a private prosecution with the court. A victim who files the private prosecution becomes a party of the case, and has the right of access to the whole file. The last channel is to file the Supplementary Civil Action, which will be discussed later in this chapter. After filing the supplementary civil action, a victim becomes a party of the civil case and has access to the file under the CCP.

Shields in the criminal proceedings Out-of-court statements A defendant did not have the right to confront his witness in criminal proceedings before. In many cases, the Supreme Court held that a defendant did not have the right to confront his witness, and it was in the court’s discretion to allow the witness to be confronted.25 In other words, a defendant did not have the right to cross-examine the witness against him or her, nor the right to meet the witness face to face. Nevertheless, a victim’s outof-court statements made before a prosecutor or at the police station were admissible against the defendant at trial. It was very common that a judge

Victims of crime in Taiwan’s criminal justice system 229 would not subpoena a victim to testify at trial if such a victim had made a statement before to a prosecutor or the police. The court could rely on a victim’s out-of-court statements to convict defendants. At trial, a judge might also examine a victim-witness without the presence of a defendant or his lawyer. Any victim’s statements made under such a situation was still admissible against the defendant as long as the judge read to the defendant the contents of statements and showed him or her the records of statements. Under this practice, a victim may be exempted from the defence lawyer’s vigorous and unpleasant cross-examination. The traditional practice shielded victims from re-victimization and humiliation caused by crossexamination at trial. In 1995, the Constitutional Court in Taiwan declared that the accused has the constitutional right to confront his witness.26 The significance of this decision is that it declared not only that a defendant has the right to confront his witness, but also that the right has a constitutional origin. In 2003, Article 159 of the CCP was amended to recognize the hearsay rule and reinforce the defendant’s right of confrontation. It provides that out-of-court statements of any person other than the defendant are inadmissible unless otherwise provided by law. Under the new provision, statements made by victims at the police station are not admissible unless they comply with certain exceptions. In other words, victims have to repeat their statements at the police station and at trial. The victim must be cross-examined by a defence lawyer at trial. Unless that is done, his or her out-of-court statements will not be admissible against the defendant. However, the Sexual Assault Crime Prevention Act of 2005 creates an exception of the above hearsay rule. Under the Sexual Assault Crime Prevention Act, a victim’s statement at the police station may be admissible against the defendant at trial if the victim is unable to make a statement due to physical or psychological injury resulting from the sexual assault, or unable to or refuses to make a statement due to physical or psychological pressure caused by inquiries or cross-examination.27 The legislative intent is obviously to protect victims of sexual offences from the humiliation and revictimization caused by cross-examination at trial. The constitutionality of the hearsay exception recognized in the Sexual Assault Crime Prevention Act is unknown yet. Taiwan’s Constitutional Court held in 2004 that ‘statements made by any person other than the defendant shall not be admissible at trial except that the declarant is objectively unable to be cross-examined.’28 The court did not clarify what constitutes ‘objectively unable to be cross-examined.’ Since the above provision in the Sexual Assault Crime Prevention Act was passed in 2005, its constitutionality has not been challenged. Nonetheless, the above hearsay exception is limited only to the statements made by victims of sexual assault offences.29

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Protective measures at trial Several laws were passed in the last few years to protect the safety of victims and to prevent their dignity from being ridiculed in public by the defendant’s vigorous cross-examination at trial. The Sexual Assault Crime Prevention Act has taken many measures to protect victims of sexual offences from being humiliated or re-victimized at trial. Generally, trials are required to be open to the public except in situations where they will interfere with the national security, public order or morality.30 Since its promulgation in 1997, the Sexual Assault Crime Prevention Act has provided that trials of sexual assault crimes are not open to public unless victims agree.31 The purpose of creating an exception to the general rule of public trial is clearly to protect the victims from being humiliated by repeating the details of the sexual offence in public. As stated above, a defendant at trial has the constitutional right to confront his or her witnesses, including victims. The right includes the right to face the witness, as well as the right to cross-examine the witness. Under the Sexual Assault Crime Prevention Act, a trial judge has the discretion to order the examination of the victim to be carried out outside the courtroom. The defendant can still hear or see the examination of the victim via audio or video transmission or any other suitable means. However, a trial judge must, under the Act, take the above measure if a victim is unable to speak freely or completely at trial due to mental disability or physical and psychological injury.32 As for the right of cross-examination, a defendant has the right to ask anything in cross-examination which is related to the matters raised in direct examination or the credibility of the witness. In theory, a defendant is supposed to have the right to impeach a victim-witness using his or her previous sexual history in a trial of sexual offences. However, the Sexual Assault Crime Prevention Act provides that in a trial of sexual offences, a defendant or his or her defence lawyer shall not question or raise the sexual experience that the victim had other than with the defendant, unless the judge considers it to be necessary.33 The legislative intent again is to protect victims from unnecessary humiliation caused by a defence lawyer’s crossexamination. Other Taiwanese laws aimed at protecting witnesses as a whole have the same effect of protecting victims. For example, the Organized Crime Prevention Act of 1996 provides two major protections for witnesses at trial. First, a defendant is denied the knowledge of the identity of the witness. Under the CCP, a defendant, after being prosecuted, has the right of access to the whole file and evidence of the investigation. This right allows a defendant to know the identity and address of all witnesses. To protect a witness’s safety, the Organized Crime Prevention Act requires that any information containing the name, sex, date or place of birth, or any other information capable of identifying the witness shall be sealed by prosecutors or judges.

Victims of crime in Taiwan’s criminal justice system 231 Defendants have no access to the above information. In practice, witnesses’ real names normally will be replaced with the letters A, B or C. Second, a defendant is sometimes denied the right of confrontation. As stated above, a defendant has the constitutional right of confrontation. However, the Organized Crime Prevention Act provides that a trial judge, upon his own motion or a witness’s or a victim’s motion, may deny a defendant’s request to confront his witness when there are facts sufficient to justify an apprehension that the victim or the witness is subject to violence, coercion, intimidation or other retaliatory actions. In such a situation, a trial judge may also deny a defence lawyer’s reviewing, copying, or video taping any information or documents capable of identifying the said victim or witness.34 The constitutionality of above provisions in the Organized Crime Prevention Act is unknown yet, but this is the practice commonly followed in Taiwan. The Witness Protection Act of 2000 gives witnesses/victims positive and concrete protections. Under the Act, when the person or property of a witness/victim, or, a person who is closely related to such witness/victim, is in jeopardy due to his or her testifying before the prosecutor or the court, the witness or victim may apply to the prosecutor or the court for a protective order. A prosecutor or a trial judge may, upon his own motion, also issue a protective order. A prosecutor or a judge may even take preliminary measures to protect a witness if the protective order is unable to be issued in time in emergency circumstances. In a protective order, a prosecutor or a judge may take any of the three major protective measures articulated in the Act. First, the confidentiality of the witness’s identity. The true name or identity details of the witness shall be replaced by a code name. The signature of the witness should be substituted with his or her fingerprint. Any information of the protected witness such as the date of birth, address, identification number or passport number and other information that is capable of identifying the witness shall be stored and sealed in an envelope. Unless otherwise provided by law, any record or document that is stored and sealed in the envelope shall not be examined or made available to any agency, group or individual other than prosecutors or trial judges. At trial, a protected witness may conceal his or her identity by wearing a mask, changing his or her voice, appearance, using video communication or other forms of segregation.35 The protection of the witness’s identity is reinforced by severe penal punishment. Any government official who reveals, discloses or hands over papers, documents, pictures, information or things capable of identifying the protected witness to others is subject to imprisonment of between one and seven years. It is also a criminal offence even if the disclosure of identity was made negligently by any government official. Any person who is not a government official and obtains papers, documents, pictures, information or things capable of identifying the protected witness within the scope of his authority or employment, reveals, discloses or hands over these to others, shall be sentenced to imprisonment of not more than three years or detention, or be fined not more than NT$500,000.36

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Second, emphasis is placed on ensuring that the witness is safe. To protect the witness, a prosecutor or a trial judge may order the police to assign a bodyguard for the witness or, the person who is closely related to such a witness, within a certain period of time. If necessary, a trial judge or a prosecutor may issue an order to prohibit or restrain a specific person to act in a particular way or to prohibit or restrain a specific person from approaching the witness or the person who is closely related to such witness, or approach his or her residence or work place.37 It is a criminal offence for any person to act in violation of the protective order.38 Third, assistance can be given to the witness’s life and work. If it is necessary for a witness, or a person who is closely related to such a witness, to change his or her place of residence or work, a trial judge or a prosecutor may designate an agency to assist him or her in getting a short-term relocation and change to a new job.39

Assistance in criminal proceedings Legal aid Before 1998, victims could not get any legal aid from the government or any official organization. Victims did not enjoy the same right that indigent defendants had, being that of the right, under the CCP, to counsel. The traditional concept was that prosecutors would and could take care of victim’s interests in criminal proceedings. In other words, victims did not need any legal assistance because prosecutors, who are experts in law, act as their agents. However, it is inevitable that prosecutors, like any civil servants, would sometimes neglect victims’ needs or interests. The 1988 Crime Victims Protection Act was the first, in Taiwanese history, to provide victims with legal aid. Under the Act, with the aim of assisting crime victims or their family members, the Ministry of Justice and the Ministry of the Interior jointly established 21 crime victim protection institutions in Taiwan. One of the functions of such institutions is to provide free legal aid to victims in civil and criminal proceedings.40 Between 2000 and 2004, these institutions offered legal aid to 10,522 people. The legal aid offered by the Crime Victims Protection Act is not applicable to all victims, but is limited to family members of the deceased victims or victims who are seriously injured. In 2004, Taiwan passed the Legal Aid Act to provide free legal aid to those who are indigent or are unable to receive proper legal protection for other reasons. Under the Legal Aid Act, anyone, not limited to the criminal accused, who is indigent may apply for legal aid, which include legal consultations, drafting of legal documents, or retaining a lawyer. Accordingly, victims who are indigent may ask for free legal aid under the Legal Aid Act. Victims who are not indigent but are seriously injured may get free legal aid under the Crime Victims Protection Act.

Victims of crime in Taiwan’s criminal justice system 233 The right to be accompanied Some young, disabled, or victims of sexual offences might not be able to repeat the facts clearly or to express their opinions freely before the authorities. They might desperately need their parents, social workers, or doctors to stay with them when they are questioned by the authorities. The conventional concept of the secrecy of investigation, led to the practice in the past that a victim was not to be accompanied by anyone during the investigation hearings. Under the principle of secrecy of investigation, only the person subpoenaed could be present in the investigation hearings. For this reason, a subpoenaed victim, when questioned by the police or testifying at the investigation hearings, could not request to be accompanied by his or her parents or social workers. The above practice changed for sexual offences in 1997 when Taiwan passed the Code of Sexual Assault Crime Prevention. In Article 15, the code provides that the victim’s statutory agent, spouse, certain close relatives, parents, family members, doctor, psychiatrist, or social workers may accompany him or her during the investigation or trial and state their opinions. In other words, social workers or others who are not subpoenaed by a prosecutor or summoned by the police might accompany sexual victims to appear at investigative hearings to assist or protect victims. The code has changed the centuries old concept of secrecy of investigation. However, this is limited to sexual offences and sexual victims only. In the following year, the protection of victims expanded to all other offences. In 1998, amendments were made to the Code of Criminal Procedure, Article 248-1, such that when a victim is examined during the stage of investigation, his statutory agent, spouse, certain close relatives, family member, doctor or social worker may be present and state their opinions. The same provision even applies to the examination of victims conducted by a judicial police officer or judicial policeman. As a result of the above amendment, victims of all kinds of offences may be accompanied by his or her relatives, doctors or social workers while attending the investigative hearings conducted by either prosecutors or the police.

Monetary claims Exemption of court fees What concerns many victims is the monetary claims against offenders. To file a civil action in Taiwan, a plaintiff must provide court fees of about 1.1 per cent of the value he is seeking from the suit.41 A plaintiff could never ask for refund of the fees even if he won the suit. He could only ask the defendant to reimburse the fees in the suit. However, a plaintiff is burdened with the risk that a defendant might not have any assets to pay back the fees. Only an indigent plaintiff may motion the court to exempt him from the

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court fees. The requirement of the court fees sometimes becomes an obstacle for victims to seek for justice. The ‘Supplementary Civil Action’ in the CCP provides victims a very good channel to recover monetary damages. Under Article 487 of the CCP, any victim may bring a supplementary civil action and claim damages against the accused or another person who may be liable according to civil law. The benefit of bringing a supplementary civil action is that the victim, who is the plaintiff in the supplementary civil action, does not have to pay any fees or costs of the suit.42 Basically, a supplementary civil action shall be tried under the same rules of civil procedure except for some specific provisions provided in the CCP. There were 8,338, 8,191 and 7,143 supplementary civil cases filed with the district courts in Taiwan in 2002, 2003 and 2004 respectively.43 Even if a victim does not take advantage of the ‘Supplementary Civil Action’ provided in the CCP, he or she can still be exempted from the court fees under the Crime Victims Protection Act of 1998.44 The purpose of the Act is to protect the family member(s) of deceased victims or the seriously injured victims of a criminal act. However, the right of exemption from the court fees is limited to family member(s) of deceased victims or the seriously injured victims. Enforcement of settlements made in the criminal action The CCP provides many channels for victims to ‘settle’ the case with and claim monetary damages against offenders. The settlement even has the same legal effect as a final civil judgment rendered by a court. As stated above, even when the evidence of the accused’s guilt is sufficient to prosecute, a prosecutor has the discretion to issue a ruling not to prosecute or a ruling of deferred prosecution in less serious crimes. If a victim ‘settles’ the case with the accused in a less serious case, a prosecutor normally will issue a decision of deferred prosecution. In such a case, a prosecutor will, in his written decision of deferred prosecution, record the settlement amount of compensation. Under the CCP, such a written decision of deferred prosecution constitutes a ground for civil compulsory enforcement.45 In other words, a victim does not have to go through another civil procedure to enforce his rights. As also stated above, with effect from 9 April 2004, a prosecutor may bargain with a defendant for a plea of guilt. In practice, most prosecutors would not motion for a negotiation procedure without getting consent from victims. Again, a victim will normally give his consent to prosecutors only after he has ‘settled’ the case with the defendant. In this sense, the criminal proceeding becomes a bargaining process between victims and defendants. If a prosecutor agrees with the settlement between victims and defendants, the court may approve the motion for a negotiation procedure and render the guilty verdict without a trial. The settlement amount of

Victims of crime in Taiwan’s criminal justice system 235 compensation will be noted in the court’s record or verdict. Under the CCP, such a record or verdict constitutes a ground for civil compulsory enforcement.46 Again, a victim does not have to go through another civil procedure to enforce his or her rights. Compensation by the government Even though the CCP offers victims some avenues to claim monetary damages, they might not get any compensation at all because most of the criminal defendants are penniless. In 1998, Taiwan passed the Crime Victims Protection Act to ensure that victims might get some monetary compensation. Under the Act, family member(s) of a deceased victim or a seriously injured victim of a criminal act is entitled to apply for compensation from the government. The items and scope of the compensation are as follows: 1 2 3 4

the cost of medical treatment is limited to no more than NT$400,000; the cost of a funeral is limited to no more than NT$300,000; the payment to the victim’s statutory dependent is limited to no more than NT$1,000,000; and/or the lost or reduced work ability or the increased living expenses of a seriously injured victim is limited to no more than NT$1,000,000.47

The application for compensation shall be decided by the Committee for Compensation to Criminal Victims, which is located in every district of the district courts. If a victim’s application is urgent, the committee may, before making a final decision on the compensation claim, even make the payment to the victim as a provisional compensation, which shall not exceed NT$400,000.48 After paying the above compensation to victims, the government has the right to ask reimbursement from a convicted defendant or others liable for indemnification of the victim.49 From its inception in 1 October 1998 to 31 December 2004 there were 4,701 applications for compensation. The government paid 2,634 people a total amount of about NT$822 million during this period.

Conclusion The victim’s rights were not highly regarded in Taiwan’s criminal procedure in the past. There are three main reasons for this neglect in victim’s rights. The first was premised on the concept that a prosecutor could and would take care of victims’ interests in the criminal proceedings. For example, the traditional concept was that a victim did not have to state their opinions at trial because prosecutors would act on the victim’s behalf. The second reason was that endowment of the victim’s rights would jeopardize the defendant’s rights. The traditional concept was that the victim’s rights were always in conflict with the defendant’s rights. The defendant’s rights would

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be in jeopardy if the criminal justice system favoured the victim’s rights. However, some of the defendant’s rights are protected by the constitution and they cannot be violated on the ground of protecting victims. The final reason was the cost involved. Most victims could not get any compensation from the criminals because the latter were normally insolvent. The issue was not whether the government should compensate victims, but whether the government could afford to compensate victims. The victim movement has gained much success in Taiwan in the past decade. Most of the major proposals made by victim protection groups have been adopted into law. Taiwan has done a lot to give victims more rights and protections in the criminal procedure by amending many provisions of the CCP and passing new specific laws such as the Sexual Assault Crime Prevention Act, the Crime Victims Protection Act, etc. The victim’s rights and protections in Taiwan’s criminal procedure are now significantly different from the past. Currently, a victim has the right to ask the court to check a prosecutor’s decision not to prosecute or decision of deferred prosecution. He or she also enjoys the right to be heard, the right to be notified of the procedure, and the right to be accompanied even at the investigation stage. Through many different channels, victims may have access to the prosecutor’s or court’s files and know exactly what happened. In many important stages in the criminal proceedings, the victim’s opinions are highly regarded by prosecutors or judges. Victims who are indigent or seriously injured may get free legal aid under the law. For monetary damages, many amendments to the CCP in the last decade have cleared unnecessary obstacles for victims to make their claims. Family members of a deceased victim or a seriously injured victim may get compensation from the government. Some of the victim protection measures might face challenge on constitutional grounds. For example, the Sexual Assault Crime Prevention Act of 2005 admits a victim’s out-of-court statements against a defendant at trial if the victim is unable to, or refuses to, make a statement due to physical or psychological pressure caused by cross-examination. It is very likely that the provision of the Sexual Assault Crime Prevention Act might not pass constitutional scrutiny for violating the defendant’s right of confrontation. Some of the victim protections might also draw a backlash. For example, under the CCP, a Public Prosecutor shall not reject the victim’s request to file the appeal unless the request is obviously unreasonable. Consequently, Public Prosecutors would normally file the appeal whenever victims provide some convincing reasons behind their dissatisfaction with a judgment of the lower court. The result is that fruitless and futile appeals burden the appellate courts and the accused. A possible amendment to the CCP is to ask a Public Prosecutor to exercise diligence in considering whether to appeal even when victims request for appeal. Whether we could do more to protect a victim’s rights in criminal procedure is always an important but difficult issue in Taiwan. Some advocate,

Victims of crime in Taiwan’s criminal justice system 237 for example, that victims shall make statements of the facts only once in the course of the proceedings. If they make statements at the police station, a prosecutor or a judge must not ask them to repeat the facts again. This proposal is, of course, contrary to the defendant’s right of confrontation. The democratic Taiwanese government is very sensitive to the needs of victims. It is my opinion that Taiwan has done a lot to protect victim’s rights, and that it will not hesitate to do more whenever the proposal is feasible and constitutional.

Notes 1 Article 336-1 of the CCP. 2 The exception is provided in Article 319 Section III of the CCP which reads, ‘If a part of the facts of an offence has been prosecuted by a private prosecution, the remaining facts although may not be subject to a private prosecution is considered in the prosecution, but this may not be done if the remaining part, which may not be prosecuted by a private prosecutor, constitutes a more serious offence or its trial of the first instance is under the jurisdiction of the high court, or if the circumstances of Article 321 exist therein.’ 3 Article 321 of the CCP. 4 Article 321, Section II, of the CCP, was amended on 14 January 2003 and is effective from 1 September 2003. 5 Article 326 of the CCP. 6 Article 329 of the CCP. 7 Article 255, Section II, of the CCP. 8 Article 256, Section I, of the CCP. 9 Article 257, Section I, of the CCP. 10 Article 257, Section II.vvv, of the CCP. 11 Article 258 of the CCP. 12 Article 258-1 of the CCP provides that ‘If the complainant disagrees with the ruling of dismissal specified in the preceding article, he may, within ten days after receipt of written ruling of dismissal, retain an attorney to make an application in writing, to the concerned court in first instance, for setting the case for trial.’ 13 Article 260 of the CCP provides that ‘If a ruling not to prosecute has become final,... no prosecution of the same case shall be initiated except under one of the following conditions: 1. New facts or evidence is discovered; 2. Any one of the circumstances for retrial exists as specified in Article 420, Section I, Section II, Section IV, or Section V.’ 14 Article 12 of the Code of Sexual Assault Crime Prevention was deleted in 2005 because the same provision was established in the Code of Criminal Procedure in 1997. 15 Article 2 of the Sexual Assault Crime Prevention Act provides that ‘The definition of sexual assault crime refers to offences of Articles 221 to 227, 228, 229, 332.2.2, 334.2, 348.2.1 of the Penal Code and its special laws.’ 16 Articles 255II and 263 of the CCP. 17 Article 271II of the CCP. 18 Article 227 of the CCP provides that ‘If there is a written decision, a true copy of the written decision shall be served on the parties, agent, defense attorney, or other persons concerned unless otherwise specially provided.’

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19 Article 251 of the CCP provides that ‘If the evidence obtained by a public prosecutor in the course of investigation is sufficient to show that an accused is suspected of having committed an offence, a public prosecution shall be initiated.’ 20 Article 253 of the CCP provides that ‘If a public prosecutor considers it appropriate not to prosecute a case specified in Article 376 after having taken into consideration the provisions of Article 57 of the Penal Code, he may make a ruling not to prosecute.’ Article 57 of the Penal Code provides that ‘When a sentence is imposed, all circumstances of the case shall be considered, and special attention shall be given to the following factors to determine the sentence: 1 2 3 4 5 6 7 8 9 10

the accused’s motive; the accused’s purpose; provocation at the time of the offence; means employed to commit the offence; living conditions of the offender; conduct of the offender; general knowledge and intelligence of the offender; ordinary relations between the offender and the victim; dangers or damages caused by the offender; attitude of the offender after committing the offence.’

21 Article 253-1, Section I, of the CCP provides that ‘If an accused has committed an offence other than those punishable with the death penalty, life imprisonment, or with a minimum punishment of imprisonment for not less than three years, the public prosecutor, after considering the matters specified in Article 57 of the Penal Code and the maintenance and protection of public interest, deems that a deferred prosecution is appropriate, he may make a ruling to render a deferred prosecution by setting up a period not more than three years and not less than one year thereof, starting from the date the ruling of deferred prosecution is finalized.’ 22 Unlike the practice in the United States, Taiwan’s CCP limits plea bargaining (negotiation procedure) to non-serious offences only. Under Article 455-2 of the CCP, the negotiation procedure is not applicable to the following offences: an offence punishable with death penalty, life imprisonment, or with a minimum punishment of imprisonment for not less than three years or that the court of appeal has jurisdiction of the first instance over the case. For example, offence of murder or kidnapping for ransom is not ‘negotiable’. 23 Article 258-1 of the CCP. 24 Article 271-1 Section II, of the CCP. 25 Supreme Court, 26 Sun 1907; 78 Tai Sun 1488; 76 Tai Sun 6679; 72 Tai Sun 7770. 26 The Interpretation 384 of Grand Justice. 27 Article 17 of the Sexual Assault Crime Prevention Act provides that ‘Should the victim at trial fall into one of the following categories, the statement which he or she made to the prosecuting officer, judicial police officer or judicial policeman’s investigation may be used as evidence after proving the existence of special circumstances indicating its reliability and its necessity in proving the facts of criminal offence: 1. The victim is unable to make a statement due to physical or psychological injury resulting from the sexual assault incident, or 2. The victim is present at trial but is unable to or refuses to make a statement due to physical or psychological pressure caused by the inquiries or cross-examination.’ 28 The Interpretation 582 of Grand Justice. 29 For a definition of sexual assault offences, see note 15 above.

Victims of crime in Taiwan’s criminal justice system 239 30 31 32 33 34 35 36 37 38 39 40 41 42

43 44

45 46 47 48 49

Article 86 of the Court Organization Act. Article 18 of the Sexual Assault Crime Protection Act. Article 16 of the Sexual Assault Crime Protection Act. Article 16 of the Sexual Assault Crime Protection Act. Article 12 of the Organized Crime Prevention Act. Article 11 of the Witness Protection Act. Article 16 of the Witness Protection Act. Article 12 of the Witness Protection Act. Article 17 of the Witness Protection Act. Article 13 of the Witness Protection Act. Articles 29 and 30 of the Crime Victims Protection Act. Article 77-13 of the Code of Civil Procedure. The only exception is Article 503 of the CCP, which provides that ‘If a criminal proceeding results in a judgment of “Not Guilty”, “Exempt from Prosecution”, or “Case Not Entertained”, the court shall dismiss the suit of the plaintiff by a judgment; Provided, that upon application by the plaintiff, the court shall transfer the supplementary civil action to the civil division of a court having jurisdiction.’ If a case is transferred pursuant to the proviso of this article, the plaintiff must pay the costs of the suit. See: www.judicial.gov.tw/juds/index1.htm (last accessed 2 May 2006). Article 28 of the Crime Victims Protection Act provides that ‘In the event a victim or a person as described in Article 6 of this Law has instituted an action against the injurer, through a legal procedure other than the ancillary civil action with criminal procedure, claiming the indemnification of damages provided for in the various Items of Paragraph 1, Article 9 hereof, he/she shall be exempted temporarily from the court costs arising from such lawsuit.’ Article 253-2 of the CCP. Article 455-4 of the CCP. Article 9 of the Crime Victims Protection Act. Articles 21 and 22 of the Crime Victims Protection Act. Article 12 of the Crime Victims Protection Act.

References Legislation and treaties Code of Criminal Procedure (1928). Promulgated 28 July 1928, amended 23 June 2004. Code of Civil Procedure (1930). Promulgated 26 Dec. 1930, amended 25 June 2003. Court Organization Act (1932). Promulgated 28 Oct. 1932, amended 3 Feb. 2006 Penal Code (1935). Promulgated 1 Jan. 1935, amended 2 Feb. 2005. Organized Crime Prevention Act (1996). Promulgated 11 Dec. 1996. Code of Sexual Assault Crime Prevention (1997). Promulgated 22 Jan. 1997, amended 5 Feb. 2005. Sexual Assault Crime Prevention Act (1997). Promulgated 22 Jan. 1997, amended 5 Feb. 2005. Crime Victims Protection Act (1998). Promulgated 27 May 1998, amended 10 July 2002. Witness Protection Act (2000). Promulgated 9 Feb. 2000. Legal Aid Act (2004). Promulgated 7 Jan. 2004.

12 A new horizon of victim support in Japan Tatsuya Ota

Development of victim support in Japan The victim support movement in Japan can be divided into four periods, namely the development of victimology (the late 1950s to the 1970s), State compensation (the 1980s), the new victim support movement (1990 to 2003) and the comprehensive victim support movement (2004 onwards). The first era is the period when victimology was initially introduced to Japan and gradually developed by a few victimologists. Victimology was introduced to Japan by Dr Osamu Nakata in 1958 (Nakata 1958) and studied thoroughly by Dr Koichi Miyazawa (Miyazawa 1965). However, victimology did not become mainstream in the study of criminal justice in Japan. In fact, some denied the raison d’être of victimology, insisting that it was nothing more than part of criminology; others criticized that victimology could jeopardize offenders’ rights as well as their rehabilitation (Miyazawa 2000; Morosawa 1997). During its infancy, victimologists and its advocates were deemed as ‘retributivists’ or ‘adherents of the death penalty’. Thereafter victimology gradually attained the status of a ‘discipline’; however, victimology as a discipline was separate from victim support in practice. Little attempt was made to establish a victim support system even after victimology, as a discipline, became relatively well known among academics and practitioners in Japan. Many victims continued to be ignored, neglected or maltreated by insensitive people, the mass media and even the criminal justice agencies. In the late 1970s, a change took place. With growing public interest after the occurrence of a terrorism case and numerous victim compensation legislation enacted in other parts of the world, the Japanese government initiated the drafting of the Crime Victim Benefits Payment Act, which was passed in 1980. This was the first attempt to extend assistance to crime victims in Japan, which signified the dawn of victim support in Japan. The financial plight of crime victims was partly improved by the crime victim benefits system; however many problems confronting crime victims still remained to be solved. In spite of the Crime Victim Benefits Payment Act, Japan failed to make advances in victim support for ten years following its

A new horizon of victim support in Japan 241 establishment, except for the founding of the Japanese Association of Victimology in 1990 as the first academic society of victimology in Asia. In fact, it was another 15 years before the Japanese government embarked on a new victim support scheme. In 1991, a symposium was held commemorating the 10th anniversary of the crime victim benefits system (Miyazawa et al. 1991). At the symposium, a crime victim called for the establishment of psychological support for crime victims, which triggered off the new victim support movement of the 1990s. After this symposium, a survey team of the Japanese Association of Victimology conducted the first comprehensive victim survey in Japan to reveal the reality and the needs of crime victims. This survey report, published four years later, marked a milestone in the history of victim support in Japan (Miyazawa et al. 1996). Based on the survey findings and a policy recommendation report submitted by a research group headed by Dr Koichi Miyazawa (Crime Victims Relief Fund, 1996), the National Police Agency (NPA) launched a policy of victim support in 1996, which encompassed a variety of victim support measures such as a victim liaison system and the prevention of secondary victimization in the course of investigation. This was the dawn of a new era of victim support in Japan. Subsequently, the Ministry of Justice, the Supreme Court and other government organizations also embarked on victim support reform. Many victim-support-related legislation were enacted and a variety of new victim support systems were introduced before and after the new millennium. The development of the victim support system in the latter part of the 1990s in Japan was rapid and dramatic even in comparison with Western countries with an advanced victim support system. As a result, however, the victim support system in Japan lacked a comprehensive and unified policy, since it had been developed by individual government agencies. Legal provisions on victim support were also scattered through separate Codes and Acts, and there was no comprehensive legislation. In 2004, the Crime Victim Basic Act (‘Basic Act’) was enacted to provide fundamental principles to policies of crime victim support, which was followed by the Crime Victim Basic Plan (‘Basic Plan’) in 2005 that was to design a fundamental plan for the victim support scheme to be established. Under the Basic Act and Basic Plan, a variety of victim support measures is being examined and will be established within two years. In this sense, the year 2004 was another turning point for victim support in Japan. The purpose of this chapter is to give an overview of the victim support scheme established in the last 25 years in Japan and to examine some controversial issues to be resolved.

Victim compensation The Japanese government established a victim compensation system in 1980 by enacting the Crime Victim Benefits Payment Act. This legislation

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was proposed amidst the backdrop of a stream of victim compensation laws enacted in other countries, but was triggered in particular by a terrorist incident in Tokyo in 1974 and the lobbying by a victim group (Asano 1980; Fujinaga 1975). Under the crime victim benefits payment system, crime victims are entitled to three types of victim benefits, namely bereavement benefits, disability benefits and serious injury and disease benefits. Bereavement benefits are payable to the bereaved families of victims killed and disability benefits are payable to victims themselves who were disabled by the criminal conduct. Serious injury and disease benefits, which were newly established when the Crime Victim Benefits Payment Act was amended in 2001, are payable to victims suffering from certain serious injuries or diseases without any permanent disabilities (Higashikawa 2001). These monetary payments for crime victims are meant to alleviate the victims’ economic distress by paying lump sum ex gratia awards, not to make reparation for damage suffered by victims. This is the reason that the terminology of ‘benefits’ is used instead of ‘compensation’ in the Act. A crime victim can be paid a certain amount of benefits based on the degree of injury suffered and the victim’s average income, except for the newly established serious injury and disease benefits, where the amount is equivalent to the medical expense actually paid by the victims. Therefore, as far as bereavement benefits and disability benefits are concerned, crime victims need not submit bills of receipts and need not disclose the use of the benefits. Another unique characteristic of the Japanese crime victim benefits system is that the amount of the benefits awarded is determined in proportion to victim’s average income before the time of victimization. Accordingly, the higher a victim’s income is, the higher the benefits paid to the victims or bereaved families, within the minimum and maximum limit for each age group. At present, the bereavement benefits range from 15.73 million yen (US$131,000) to 3.2 million yen (US$27,000); and disability benefits range from 180 thousand yen (US$1500) to 18.492 million yen (US$154,000). The average amount of bereavement benefits and disability benefits provided per victim amount respectively to 4.54 million yen (US$41,000) and to 2.35 million yen (US$21,000) (National Police Agency 2006a). Some victimologists complained that the amount of the victim benefits was insufficient to improve the plight of crime victims (Morosawa 1997), but what should not be overlooked here is that about 35 per cent of victims and their bereaved families who were paid the victim benefits had no income at all at the time of victimization, including minors and the aged (Okumura 2000a), and victims with a high income tend to be ineligible for the victim benefits because they can be paid other kinds of public benefits such as work insurance (Miyazawa 1997). The eligibility of disability benefits was limited to the crime victims suffering from more than a fourth degree of serious handicap, where, for example, a victim lost one leg or arm above the knee or elbow. As a result of

A new horizon of victim support in Japan 243 the 2001 amendment of the Act, however, the eligibility of disability benefits was largely expanded from the fourth degree to fourteenth degree of handicap, which indicates, for example, the handicap of losing the function of a little finger or toe of one hand or leg. Moreover, disability benefits and serious injury and disease benefits which were newly established by this amendment are now payable to victims who received medical treatment for more than one month, including more than three days of in-patient treatment without any permanent disabilities. It can be said that the victim benefits system of Japan has been appropriately implemented since its enactment. The 2001 amendment of the Act is also regarded as a drastic reform. However, there still remain some problems to be solved (Ota 2001a). First, the eligibility of disability benefits should be expanded to trauma or light post-traumatic stress disorder (PTSD). The present standard does not exclude victims suffering trauma or PTSD without any physical damage, but in practice the disability benefits only cover victims suffering serious mental disturbance or functional disturbance to the nervous system. As a result, it is very rare for the victims of sexual offences to be paid disability benefits, although they are forced to bear the cost of legal abortion, extended medical counselling, resignation or dismissal from their jobs. Second, the crime victim benefits system does not cover victimization resulting from negligence or domestic violence. However, victims of criminal negligence cases, except for traffic accidents, should be granted eligibility for victim benefits. In principle, the system is also inapplicable to domestic violence cases because of the risk that offenders will eventually benefit from the benefits paid to victims, if they live together thereafter (Ohya 1977; Okumura 2000a; Saito 1977). However, excluding victims of domestic violence from the victim benefits system may cause injustice to some victims, for example, children who have lost their mother because their father killed the mother. The scope of the victim benefits system should be expanded to domestic violence in exceptional situations even though the general rule of non-payment in such cases is applied, and payment through trusts, scholarships or installments can be used. Third, non-resident victims from other countries such as tourists are ineligible for the victim benefits of Japan mainly due to technical problems like means-testing. They are unlikely to be awarded victim compensation from their home countries too because many countries do not have a victim compensation system or do not authorize extra-territorial application of compensation. Conversely, Japanese citizens victimized overseas are also not eligible for the victim benefits of Japan, partly because of the concept of the limits to a nation’s responsibility and partly due to technical problems like fact-finding. They may also not receive any compensation in the country where the crime occurs because such a scheme may not be available there. These ‘international’ victims fall between the gaps of the compensation

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system. This gap should be plugged by granting compensation to them under certain conditions. The budget of the benefits system is another problem. The crime victim benefits system of Japan operates from the general national budget without any special source of revenue. As the government faces inevitable financial difficulties, it is important to explore the feasibility of new sources of revenue, for example, fines, administrative fines or a victim surcharge paid by offenders, or from profits gained from prison labour, in order to tackle the future increase of the budget. The Crime Victim Policy Promotion Council set up in the Cabinet Office in 2005 also recommended that the crime victim benefits system be reviewed in terms of the range of serious injury and disease benefits and eligibility of domestic cases, in addition to the examination of other sources of financial support for crime victims (Crime Victim Policy Promotion Council 2005).

Victim notification The NPA launched the Basic Policy Concerning the Measures for Supporting Crime Victims (National Police Agency 1996) to set forth basic principles of victim support by the police in 1996 after more than a decade of inactivity after the crime victim benefit system was established (Tamura 1996). One of the victim support schemes established by the police according to the Basic Policy was the victim liaison system (Abe 1999; Victim Policy Research Group 2000). Under the victim liaison system, victims would be notified of the progress of the police investigation, apprehension and identification of suspects, the name and address of the prosecutors’ office to which the case was referred and so on. Particular police officers were assigned as liaison police officers, who would be in charge of responding to inquiries from victims, together with investigation officers in charge of the case, as well as making arrangements or offering guidance related to liaison with victims. The victim liaison system enabled crime victims to get some information regarding their cases in the early stage of criminal justice proceedings without waiting for the trial or sentence, although such notification is, in principle, applicable only to the victims of personal crimes like murder, assault, rape, traffic negligence cases resulting in the death of victims, hit-and-run cases, domestic violence and stalking. Following police initiatives in the victim liaison system, prosecutors’ offices also established a victim notification system in 1999 to inform crime victims of the progress of criminal proceedings by setting up a national standard, under which prosecutors would inform victims of the final decision of prosecution, summary of alleged offences, main reason for non-prosecution, custody and bail of offenders, trial schedule, sentence, appeal and so on (Yazawa 1999). Moreover, at the beginning of 2001, the prosecutors’ office reformed the victim notification system so as to notify victims or family members of the release of offenders (Tanojiri 2001a). However, even

A new horizon of victim support in Japan 245 under the reformed system, victims would only be informed of the date of the termination of imprisonment, if inmates are not released yet, and they are not notified of planned release on parole. Moreover, such limited notification was inadequate for the victims’ need to know how their offenders were treated in the criminal justice system, as well as useless in protecting crime victims from their offenders’ retaliation. In 1997, a victim of rape was killed by her assailant, who was just released from prison, in retaliation for the complaint made by her, although this was a case that happened before the establishment of victim notification system (Tokyo District Court 1997 (wa) Case No. 133, 1999.5.27). In the wake of the outcry against this case, the NPA re-established a re-victimization prevention system in 2001 to take measures to protect crime victims from re-victimization by the same offender or the crime organization the offender belongs to, and the Ministry of Justice also launched a circular to allow prenotification of offenders’ release to crime victims in conjunction with the revictimization prevention system of the NPA (Sugiyama 2002). According to this circular, victims could be informed in advance by prosecutors of the release schedule, including parole, and the offender’s area of residence. However, it must be mentioned that pre-notification of offenders’ release is mainly aimed at protecting victims from the retaliation of offenders released from prison. It follows that crime victims are not always notified of offenders’ release as a matter of course (Ota 2002). In addition to these victim notification systems, crime victims and other specific persons were allowed to inspect or copy trial records or juvenile hearing records even before the case is finalized, if the records are deemed to be necessary for the pursuit of damages or other legitimate reasons by the Crime Victims Protection Act and the amended Juvenile Act respectively. Last, the proposal that crime victims be allowed to have access to information on the progress of correctional treatment of the inmates, parole hearing, parole supervision, probation and so on, is being debated under the Crime Victim Support Basic Plan launched by the government in 2005 (Crime Victim Policy Promotion Council 2005).

Protection of crime victims Prevention of secondary victimization The prevention of secondary victimization is one of the fundamental requisites of victim support. Prior to the recent victim support movement, certain legal provisions were available in the Criminal Procedure Code (CPC) and Criminal Procedure Regulation to protect victim witnesses from intolerable emotional pressure brought about by their exposure to the defendant’s or the public’s eye during their testimony at the trial. These provisions allowed the examination of witnesses on a day other than the trial date, the examination of witnesses at places other than the court room, the examination

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of witnesses without the presence of the defendant(s), the examination of witnesses without the presence of the specific hearer (the specific hearer is required by the court to leave the court room), limitation on questions asked in examination relating to the privacy of a witness, and holding the trial in camera. Restriction on bail under the CPC as well as criminalization of witness intimidation in the Penal Code can also play an important role in witness protection. However, these provisions have been sparingly applied in only a few cases and they have not played a sufficient role in alleviating stress on victims or to prevent the secondary victimization incurred during the trial. The CPC was therefore amended to introduce some measures to protect witnesses testifying at the trial, that is, the witness attendant system, shielded testimony by the use of a screen, and testimony via closed-circuit television (CCTV) (Kamimura 2000; Kawamura 2000; Matsuo 2001). CCTV testimony and the video-recording of testimony was an innovative measure to prevent secondary victimization of victims in the criminal proceedings of Japan, although in the course of the debates on the legislation, lawyers were concerned that the new measures could lead to the restriction of cross-examination (Taguchi 2000). However, CCTV testimony has been fairly used since its introduction, and in 2005, the Supreme Court ruled that CCTV testimony is constitutional (Supreme Court 2005). A witness attendant system was also introduced under the amended CPC, where a witness attendant may attend on the witness during the testimony to alleviate his or her fear or stress (Ota 2000b). In general, a parent of a juvenile witness, a family member of a sexual offence victim or victim support volunteers from private organizations may be deemed appropriate as witness attendants. However, the witness attendants are not allowed to object directly against inappropriate questions directed to the witness or to give advice to the witness about the testimony. It is suggested that a victim counsel be established in the future to protect the victim’s interest as well as give legal advice to the victim in and out of the courtroom. To give guidance in criminal procedure as well as to make necessary arrangements for crime victims, victim support staff were assigned from retired assistant prosecutors or staff at all prosecutors’ offices in 2000 (Tanojiri 2001b). Making use of their previous expertise, victim support staff are in charge of consultation with crime victims, giving explanations and notifications to them, escorting them to the court and arranging victim support with related government agencies or private organizations. The police, following the Basic Policy Concerning Assistance for Crime Victim, have also introduced a variety of victim protection schemes, especially for victims of sexual offences at the stage of investigation (Tamura 1996; Victim Policy Research Group 2000; Yasuda 1996). In 1996, every prefectural police department appointed a sexual offence investigation guidance director and sexual offence investigation guidance officers at their headquarters to offer general guidance in the investigation of sexual

A new horizon of victim support in Japan 247 offences, to analyse trends in sexual offences and to provide training of specialized officers. Female police officers were also assigned at the investigation units for sexual offences at each prefectural police headquarters or major police department, to be engaged in the questioning of female victims, the collection of evidence, acting as escorts to the hospital and liaison with victims. An evidence collection kit for sexual offences was also introduced to alleviate victims’ sense of shame and the psychological burden accompanied by the collection of evidence from their bodies. Moreover, the police have undertaken the following reforms to alleviate victim’s mental burden and protect their privacy during the course of investigation: 1 2 3 4 5 6 7 8 9

improvement of attitude in accepting criminal complaints or crime information; first approach to the crime scene without using police uniform or patrol car; due care to time, place and attitude in questioning victims or inspection of the crime scene; introduction of a specialized limousine for questioning victims at the crime scene or taking victims to necessary places; installation of a victim suite for questioning victims at the police station; appropriate keeping, and expeditious return, of victims’ belongings used as evidence; establishment of a counselling office at prefectural police headquarters and a nationwide hotline ‘9110’ for victim counselling; recruitment of counsellors or training in counselling for police officers; payment of travel expenses to victims who are asked by the police to appear for questioning.

In addition, victim support officers from each division at the police department were also designated to provide certain crisis intervention, including officers from the criminal investigation division, the traffic division, the community safety division and the public security division (Ohta 1999; Victim Policy Research Group 2000). Some were also designated from officers in charge of the night shift so as to provide victim support for cases happening at night. Victim support officers are supposed to escort crime victims to their homes and the hospital, to accompany them in evidence collection and questioning at the police department, to provide necessary information about victim support available to them and to provide nonprofessional care and consultation. Prevention of re-victimization Another requisite of victim protection is the prevention of re-victimization. This task is very important especially in Japan because many victims have

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been intimidated or injured by Boryokudan or Yakuza members (Japanese Mafia). In Japan, 21 organizations are officially classified as Boryokudan by the National Public Safety Commission according to the Anti-Boryokudan Act, and about 86,300 persons are identified as Boryokudan members by the police (National Police Agency 2006b). As mentioned above, in 1997 a shocking murder happened in Tokyo: a victim of rape was killed by her assailant just after his release from prison, in retaliation for her giving information to the police. It was found by a subsequent survey that most revictimization cases were cases of intimidation, extortion and assault, including murder, which were committed by male habitual offenders (70 per cent of them were Boryokudan members) as retaliation for informing the authorities of the crime or because the victims themselves were easy targets (National Police Agency 1997). Against this background, the police have undertaken some reforms in the field of victim protection since 1996 (Victim Policy Research Group 2000). In practice, police officers in charge of the police box are supposed to visit victims or go on patrol around victims’ residences periodically upon their request, if there is a substantial risk of victimization or re-victimization against them. In 1999, these practices were endorsed by an amendment to the Criminal Investigation Rule, which added a provision to keep the victim’s identity a secret and to take necessary protective measures (Kurokawa 2000). Moreover, the re-victimization prevention system established in 1997 was reformed in 2001 (Ota 2002; Takahashi 2001). Under the new system, the police may designate victims, their families or other related persons as the object of protection and afford protection to victims, if satisfied that there is a risk of retaliation against them in the light of the motivation, situation, organizational background of offence, relationship between offenders and victims, offenders’ attitude, and if organizational and continuous protection is deemed to be necessary. In particular, the police are supposed to protect victims during needy periods by collecting information, maintaining a liaison with them, understanding victims’ needs, providing guidance about self-protection, guarding victims, understanding offenders’ behaviours, and providing warnings against offenders. As and when the need arises, the police may request the prison, parole board or probation office to provide information on the release of inmates, in order for the victim to take protective measures, and may further provide such information to the victims, when deemed necessary. Protection of domestic violence victims The National Police Agency launched the General Instructions Concerning Police Measures toward Spouse Violence and the Basic Policy Concerning the Measures for Protecting Females and Children in 1999, which set forth basic principles of support and protection for female and child victims,

A new horizon of victim support in Japan 249 including victims of domestic violence (Kishida 2001). Two years later, some Parliament members took the initiative to draft a law to protect family members from the recurrence of domestic violence and to support their rehabilitation, which was passed as the Prevention of Spousal Violence and the Protection of Victims Act in 2001. Despite the fact that Japan was way behind in legislation governing domestic violence, the Act was a very simple law that authorized the court to issue a protection order mandating a perpetrator to not approach the victim or locations related to the victim, or to issue an exclusive occupation order demanding that the perpetrator leave the residence shared by the victim upon the victim’s request, if the court was satisfied that there was a high risk that the victim would suffer additional violence from the spouse that may result in serious damage to life or limb. The breach of a protection order is an offence punishable by imprisonment for less than one year or a fine of less than one million yen. This legislation was a step towards protecting victims of domestic violence in Japan, but there were some defects in the scope of the Act, especially the narrow coverage of protection, which was limited to a party of the marriage or marriage-like cohabitation (but excluding the ex-spouse, victim’s children, other family members, and support persons); the limited types of protection orders; the lack of interim protection orders and counselling orders; the short validity period of a protection order (two weeks for an occupation order), and the time-consuming application procedures (Gender Equality Council 2003). Some of the problems of the protection orders were resolved when the Prevention of Spousal Violence and the Protection of Victims Act was amended in 2004. First, the applicant and the object of protection were expanded to an ex-spouse and the victim’s children. Second, the period of the occupation order was expanded from two weeks to two months and a re-application of the occupation order was allowed. In practice, during the three years of enforcement of the Act up till 2004, about 5,600 applications for protection orders were filed and protection orders were issued for about 80 per cent of the cases processed (Gender Equality Bureau 2005). The period of time required for issuing a protection order was 11.7 days on average. Violations of orders amounted to 141 cases by the end of 2004. On the other hand, the women’s guidance centres in each district, which were established by the Prostitution Prevention Act but have almost lost their raison d’être, were re-formed as Spousal Violence Counselling and Support Centres based on the Prevention of Spousal Violence and the Protection of Victims Act. The centres were supposed to provide counselling, medical advice, temporary shelter, referral services, information, support in applying for protection orders, and so on. Women’s protection shelters, set up by the Prostitution Prevention Act, were also expected to provide temporary shelter. At the end of 2004, 121 women’s guidance centres were administered by local governments and 51 women’s protection

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shelters were maintained by local governments or private organizations (Gender Equality Bureau 2005). The Stalking Control Act, passed in 2000, was another police initiative to protect victims of domestic violence. Victims of domestic violence, especially victims living separately from their spouses or divorced victims, often become a target of stalking. In that sense, the stalking legislation is one of the tools available to victims of domestic violence seeking protection from their perpetrators. The Stalking Control Act of Japan is unique in that each prefectural public safety commission is empowered to issue an injunction against the stalker, upon the victim’s request, if he violates the warning given by the commissioner of prefectural police headquarters or the chief of the police department. Not only the violation of the injunction, but also the repetition of the stalking itself are punishable offences. During 2004, more than 13,000 stalking cases were reported to the police, and 1,221 warnings and 24 injunctions were issued (National Police Agency 2005). Of the 24 injunction cases, the perpetrators of six cases were arrested because of violations of the injunction. These are not statistics on stalking specifically related to domestic violence, but they do show that while warnings have a certain effect on preventing the recurrence of stalking, those who were issued injunctions are at a high risk of recurrent stalking. Besides these legal measures, some protective measures are also available for specific victims of domestic violence, namely, child abuse and elder abuse, based on the Child Abuse Prevention Act and the Aged Abuse Prevention and Carer Support Act. These measures are not discussed in this chapter.

Victim participation in the criminal proceedings Victim impact statement In Japan, a victim’s right to be heard in the decision-making process of criminal proceedings is not guaranteed by the law. Many commentators have been negative toward granting a victim rights to be heard in criminal proceedings mainly because they are concerned that such victim’s rights could undermine the offender’s rights or could result in a highly punitive justice system. However, a significant reform was carried out by the judiciary on this issue. In 2000, when the CPC was amended, the victim impact statement was introduced in judicial proceedings after a long debate over its merits and demerits (Shiibashi 2000). Of course, even before the amendment of CPC, crime victims were occasionally offered the opportunity to testify at the trial as witnesses on the impact of a crime on them or their views on the punishment of offenders. However, such opportunities have been left to the prosecutors’ discretion. Victims had no option but to listen from the court gallery unless prosecutors called the victims as witnesses.

A new horizon of victim support in Japan 251 The reason the judiciary of Japan had decided to adopt the victim impact statement is that: (1) it could meet the victims’ need to participate in the criminal proceedings and secure the victims’ and the citizenry’s trust in the justice system, (2) it could provide direct input of the victimization to the court, which can contribute to proper sentencing, and (3) it could make offenders become aware of the reality of the damage they inflicted, which may have positive effects on their rehabilitation (Matsuo 2001). A victim impact statement aims to offer an opportunity for victims to express their feelings or views about the case during the trial/sentencing (both procedures are not divided in Japan), and not to establish criminal responsibility against the defendant. A victim impact statement is not the testimony of a witness. Accordingly, the facts stated by victims during the victim impact statement are inadmissible as evidence for fact-finding, but could be taken into consideration in sentencing. Victims making an impact statement are not cross-examined. But either party or judge can ask questions to clarify the meaning of the statement or the relevancy of the statement. Recently, sentencing in serious criminal cases has tended to be more severe than ever. In fact, some commentators pointed out that the introduction of a victim impact statement might result in harsher sentencing (Kato 1999; Okumura 2000b; Segawa 2000). However, trained judges are unlikely to be unduly influenced only by victim impact statements under the established sentencing guidelines. The recent increase in sentences meted out is more likely to be a sign of the court’s tougher attitude towards criminal responsibility in view of the public opinion asking for a ‘tougher criminal policy’. This attitude could also be found in the government’s amendment in 2004 to the Penal Code to raise the maximum imprisonment term and penalty of some types of offences. A victim impact statement was also introduced to the juvenile procedure by an amendment to the Juvenile Act in 2000 (Kawaguchi 2001; Kawaide 2001; Yoshinaka 2001). In contrast to a victim impact statement made during a trial, victims of juvenile cases are not necessarily allowed to make statements during a juvenile hearing, although the Juvenile Act does not prohibit it explicitly. The Act provides that the family court (juvenile court) shall hear crime victims by itself or order family court researchers to hear crime victims, upon their request. In practice, victims are usually heard by the judge or family court researchers on an occasion other than a juvenile hearing. The family court can disallow victims to be heard if satisfied that such a statement is inappropriate, after taking into consideration the characteristics of the case or the progress of the hearing or inquiry. The establishment of a victim impact statement in juvenile cases is quite important because victims of juvenile cases are not, in principle, allowed to attend a juvenile hearing held in camera by the family court.

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Parole and victim statement In Japan, prison inmates are eligible for parole after serving one third of the sentence in the case of a determinate sentence or ten years in the case of an indeterminate sentence, if they are regarded as penitent. The parole board may grant or dismiss parole after taking account four factors, namely, the inmate’s feeling of contrition, willingness to undergo rehabilitation, recidivism risk and public feelings. In practice, the victims’ feelings or views could also be taken into consideration as part of ‘public feeling’ (Research and Training Institute of the Ministry of Justice 2003). Therefore, prior to a parole hearing, a parole board may ex-officio make probation officers probe victims deeper to examine their views or feelings about the cases. This procedure is called a ‘victim feeling inquiry’ or a ‘victim inquiry’ (Kitazawa 1994). However, according to the internal regulations of the parole board, victim inquiries are targeted only at victims of certain serious offences, namely murder, injury causing death, property crime causing considerable amount of loss, and excludes rape (Matsumoto 1997). Probation officers make first contact with victims for the inquiry regardless of their wishes. Many victims are contacted by probation or parole officers suddenly for a victim inquiry many years, sometimes 15 to 20 years, after the inmates’ imprisonment, which made victims confused and uneasy. Conversely, the parole board does not provide victims willing to express their views with such opportunities. Victims are not the subject of this procedure, but the object of the inquiry (Ota 2000a). Even though some victims consent to the inquiry and express their views on the case, those statements or views have little influence toward a parole decision, except for a very limited case of the inmate serving an indeterminate sentence. In Japan, parole applications are rarely rejected except for those by inmates sentenced to indeterminate imprisonment, mainly because only the warden of the prison is allowed to apply for parole after screening the case carefully. Most parole applications are therefore granted even though many victims express negative feelings toward their offenders and parole. Moreover, the present practice of victim inquiry is unjust in the sense that the parole board takes the result of the inquiry into consideration only when they happen to contact and interview victims. The Experts Panel on Victim Support, in the Basic Plan released at the end of 2005, put forward a suggestion, that the victim’s opinion should be more aggressively sought and taken into consideration in parole decisions. This proposal appears desirable from the viewpoint of victim support. However, taking into consideration the victims’ views in the parole process, which is a rehabilitative measure for offenders, is contradictory. Under this scheme, either parole would never be granted or crime victims would be dissatisfied with the result if parole is granted. To be fair, victims should be given a chance to make a statement of their feelings or views about the case after the offenders have started serving

A new horizon of victim support in Japan 253 their sentences. However, the victim statement should never be reflected directly in the parole decision itself, but should be used to decide how to treat the offenders in correction or in parole supervision after release (Ota 2000a). For example, in case victims are scared of the encounter with the offenders released, the parole board and probation officers may select the appropriate residence of parolees or impose an injunction as a special condition. If victims wish the offenders to restore the damage inflicted, the parole board may attach due conditions to the parole decision, or probation and parole officers may also make necessary and appropriate guidance to parolees. This is much better than the present practice or that proposed in the Basic Plan, which could result in unrealistic expectations by victims and make them suffer grave disappointment at the parole decision. Victim’s involvement in prosecution With regards to victim participation in the criminal proceedings, the most drastic change is the reform of the prosecution inquest system. The prosecution inquest, consisting of 11 laymen who would be selected every six months by ballot from among citizens, is a quasi-law enforcement panel legally authorized to judge the legitimacy of non-prosecution made by prosecutor. At present, there are 201 prosecution inquests all over Japan. In Japan, a prosecution can be initiated only by prosecutors, who can exercise discretion in deciding whether or not to prosecute offenders, based on the Principle of Opportunity or Oppotunitätprinzip. Private prosecution is not allowed in Japan, so crime victims are not permitted to get involved directly and proactively in the decision-making process of prosecution against the offenders. The only redress for victims dissatisfied with the prosecutors’ decision not to file the prosecution is the prosecution inquest, which was established to control the exercise of the prosecutor’s discretionary power in the prosecution. Crime victims, if they are not satisfied with prosecutors’ decision not to initiate a public action in the criminal case concerned, can file an application to the prosecution inquest to examine whether or not the decision not to prosecute was proper. Upon the application, or ex-officio, the prosecution inquest may examine the case and make a decision amongst the following: ‘non-prosecution was proper’, ‘non-prosecution was improper’ and ‘prosecution should have been initiated’. The difference between ‘nonprosecution was improper’ and ‘prosecution should have been initiated’ is that the latter is where the prosecution inquest is convinced that prosecution should have been initiated, whereas the former is where the inquest holds that re-investigation is necessary, although it has not decided that prosecution should be initiated. In 2004, about 2,600 applications were filed and processed by prosecution inquests all over the country, but the decisions ‘prosecution should have been initiated’ or ‘non-prosecution was improper’ were rendered only

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to five per cent of them (Research and Training Institute of the Ministry of Justice 2005). However, the real question is not the low rate of ‘prosecution should have been initiated’ decisions, but the effect of the decisions. The decision of the inquest is sent to the chief of the district prosecutors’ office, but the decision is not legally binding on him. He is not obliged to file a prosecution even in the case where the prosecution inquest made a decision that ‘prosecution should have been initiated’. As part of justice reform movement, especially with the citizenry’s participation in justice system, the Prosecution Inquest Act was amended drastically in 2004 so that the ‘second’ decision that ‘prosecution should be initiated’ made by the prosecution inquest required the prosecutor to file the prosecution (Ito 2004). According to the amended Act, the prosecution inquest had to examine the legitimacy of the second non-prosecution decision made by the prosecutor once again after making the first decision of ‘prosecution should have been initiated’. If the prosecution inquest made the second decision of ‘prosecution should be initiated’ by at least a majority of eight to three, the court has to designate a lawyer (counsellor-at-law) as a prosecutor, who is obliged to file a prosecution against the said offender. Generally speaking then, the prosecution inquest was ‘substantially’ empowered to decide a prosecution, although in fact a lawyer designated by the court initiates the prosecution and establishes criminal responsibility against the defendant. It cannot be estimated how many decisions of ‘prosecution should be initiated’ will be made by the prosecution inquest after the enforcement of the amended Act partly because prosecutors in Japan originally makes the decision to file or not to file a prosecution with care, and partly because even the prosecution inquest might hesitate to make a decision of prosecution in a clear-cut case. However, the system in which crime victims could be involved indirectly through the prosecution inquest in the decision-making process of prosecution against offenders is significant in the prosecution system of Japan, where prosecutors have long monopolized the power to decide on a prosecution. Moreover, the introduction of such a prosecution inquest system might have a secondary effect, leading to prosecutors deciding on non-prosecution with care, especially for suspended prosecution. This holds a major significance for the practice of prosecution in Japan as about 40 per cent of all offences dealt by prosecutors resulted in a suspended prosecution (Research and Training Institute of the Ministry of Justice 2005).

Victim support organizations The Victim Support Network Direct support or crisis intervention for crime victims has been provided by private organizations like Tokyo Rape Crisis Centre or self-help groups

A new horizon of victim support in Japan 255 since the 1980s, but these organizations or groups aimed mainly at supporting a specific type of crime victims. The first victim support organization which covered a variety of crime victims was set up in 1992 by Professor Akira Yamagami at Tokyo Medical-Dental University, which provided guidance and psychological counselling. At first, the office was located on the campus, but the organization was developed into the Victim Support Centre of Tokyo as a public-interest corporation thereafter in 2000. Subsequent to the establishment of this centre, many victim support organizations were established one after another with the cooperation of prefectural police headquarters (Tomita 2003). Further progress was achieved when these organizations were united under the Victim Support Network in 1998. At that time, only ten organizations were members of the network, but 40 victim support organizations joined the network by 2006. It is hoped that such victim support organizations will be established in all 47 prefectures in the near future. The Victim Support Network released a Declaration of Crime Victim Rights in 1999, which is comprised of seven clauses, namely the right to fair treatment, the right to be notified, the right to recovery of losses, the right to be heard, the right to assistance, the right to be protected from re-victimization, and the right to peace and a safe life (Yamagami 1999). This is not an official declaration or resolution which is legally biding on the government, but it has profound implications for the future fundamental policy of victim support in Japan. Crime victim early support organizations In 2002, a new attempt was initiated so that a private victim support organization could provide early assistance or crisis intervention to crime victims without delay just after the occurrence of a crime, in cooperation with local police. According to the Crime Victim Benefits Payments Act, amended in the previous year, each prefectural public safety commission (a committee supervising local police, which is comprised of lay persons selected from society) can designate certain victim support organizations as crime victim early support organizations (VESOs), if the organizations meet conditions prescribed by the Act. One of the purposes of the Act is to enable a private organization to provide high-quality services to crime victims, and the private organization is expected to provide prompt support to crime victims by contacting them at an early stage after victimization. For that purpose, VESOs are entitled to get information on victims and their cases directly from the police. Before that, the police were not allowed to disclose information on victims to third parties including victim support organizations due to concerns over personal data protection. All the police could do was to let crime victims know the address of victim support organizations or escort them there if they wish, which sometimes caused delay. It is hoped that the VESO designation

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system and coordination with the police can provide a springboard for the development of victim support by private organizations. To be designated as VESOs, victim support organizations are required to be able to carry out certain activities, namely: (1) publicity of victim support, (2) counselling services for crime victims, (3) helping victims to apply for State compensation and (4) direct support for crime victims including providing goods or services. Moreover, crime victim counsellors or crime victim support staff working for VESOs have to meet certain qualifications for their tasks. However, there are only a few organizations who meet these conditions currently, partly because most crime victim support organizations in Japan were set up within these four or five years, and partly because some of them were founded based on other existing organizations such as the suicide prevention hotline, which had limited its scope to telephone counselling only. By the end of 2005, only 8 out of 40 organizations were designated as VESOs. Victim support organizations in Japan are required to expand into a variety of victim support services as well as to train counselors and support staff (Ota 2001b; Tomita 2003). In addition, victim support organizations have to be financially stable for the development of services, but many organizations are currently facing a serious financial problem without public aid. According to the Crime Victim Basic Act, the central and local governments are legally obliged to implement the necessary policies including finance, tax and information provision. Hopefully, the central and local government will establish public subsidies for victim support organizations and a tax exemption system. Future plans for victim support activities In 2004, the Comprehensive Legal Aid Act was passed to establish the new Legal Aid Centre of Japan. The centre was supposed to provide victim support services in addition to a variety of legal services such as information referral service, civil legal aid, projects to resolve shortage of attorneys in certain areas, and court-assigned attorneys for suspects and defendants. In particular, the centre is obliged to provide information or introduce to the victim lawyers versed in victim support and/or specialized organizations. The Ministry of Justice is also developing a plan to introduce volunteer victim support probation officers as volunteers as well as victim support officers as government officers. The wording of volunteer victim support ‘probation’ officers is confusing and contradictory in a sense because volunteer probation officers were originally supposed to supervise and support offenders as probationers or parolees, not to support crime victims. In fact, in Japan, about 50,000 volunteer probation officers are assigned by the Minister of Justice to help the limited numbers of probation officers with supervising and supporting probationers and parolees. However, the Bureau of Rehabilitation and After-care of the Ministry of Justice, which

A new horizon of victim support in Japan 257 has jurisdiction over community supervision against probationers or parolees, is working out a plan to make certain volunteer probation officers provide sustained assistance to crime victims instead of offenders. Of course, it does not mean that a volunteer probation officer in charge of probation or parole supervision against an offender also provides support for crime victims of the said offenders concurrently. The task of volunteer victim support probation officers and volunteer probation officers might well be totally separated. The reason the Ministry of Justice plans to assign volunteer probation officers as new victim support volunteers is that the planned new victim support volunteers are required to have knowledge or even experience in criminal justice work, especially probation or parole, because they are supposed to provide assistance to crime victims whose perpetrators are under probationary or parole supervision. Moreover, volunteer probation officers are empowered to access task-related personal data and obliged to keep them secret by law, namely the Volunteer Probation Officers Act, which is desirable in terms of victim support and the consideration given to privacy issues. Above all, it is much easier to make use of existing systems than to establish totally new systems from the beginning. Nevertheless, many volunteer probation officers or probation officers are concerned about the development of this new plan not only because the new task is dissimilar in character to their original task of probation or parole, but also because they are anxious about their potential role conflict as ‘probation officers’ and ‘victim supporters’ (Sato 2000). However, victim support is not necessarily contradictory to the rehabilitation of offenders or the safeguarding of their rights (Ota 2003). Some victims are concerned about the release of offenders from criminal institutions and their rehabilitation, others are willing to contact offenders under community supervision for the purpose of negotiation for reparation or mediation. As offenders are supervised and supported by probation officers and volunteer probation officers, crime victims should also be advised and supported by specialized officers and volunteers.

The Crime Victim Basic Act and the new horizon of victim support in Japan The Crime Victim Benefits Payment Act was enacted in 1980 and amended in 2001 after 20 years of implementation. The CPC and the Juvenile Act were also amended in 2001 respectively to add some victim-related provisions. Moreover, many pieces of legislation were passed to protect specific types of victims like female and juveniles, namely the Crime Victims Protection Act, the Prevention of Spousal Violence and the Protection of Victims Act, the Stalking Control Act, the Child Abuse Prevention Act and the Aged Abuse Prevention and Carer Support Act.

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However, legal provisions on victim support and the victim’s legal status were scattered through these codes or Acts, and there was no comprehensive legislation to provide a fundamental policy and principle of victim support. With growing public opinion following the occurrence of a few heinous criminal cases and due to the lobbying by victim support advocates, the Crime Victim Basic Act was enacted in 2004. The enactment of this legislation was a landmark event in the history of victim support and victimology in Japan. The Crime Victim Basic Act is a law to provide a fundamental principle and policy of crime victim support. It covers not only crime victims in the legal sense but also victims of ‘quasi-criminal acts harmful to the mind or body’. The Act requires the central and local government to improve the legal status of victims and accord them protection in the course of criminal proceedings, to establish a system that helps victims claim for damages, as well as to establish a system of reparation in the criminal proceedings. It is also of great significance that the Act requires the government to implement victim support policies in the field of health, medical service, welfare, housing and employment, which are all required for victims to get on with their daily lives. Based on the Crime Victim Basic Act, the Crime Victim Policy Promotion Council was established in the Cabinet Office in 2005 to design a plan on victim support. The Crime Victim Basic Plan is the result of eight months of debate at the Council (Crime Victim Policy Promotion Council 2005). The Basic Plan encompasses a wide range of crime victim support such as the recovery of victims’ losses, providing stability in their lives, health and medical care, welfare, security, victims’ participation in the criminal proceedings, information provision, counselling, and support for private organizations. These measures and systems are required to be established within two years. If the planned measures are successful, victim support in Japan will be expected to change drastically in the near future. Japan’s status will then be elevated from a developing country into a developed country in the field of victim support.

References Abe, S. (1999) ‘The Liaison System for Victims by Police’, The Journal of Police Science, 52(5), 47–63. Asano, S. (1980) ‘Basic Concept of Crime Victim Benefits Payment System’, The Journal of Police Science, 33(11), 1–14. Crime Victim Policy Promotion Council. (2005) The Crime Victim Basic Plan. Tokyo: The Cabinet Office. Crime Victims Relief Fund (ed.) (1996) Report from the Research Group on ‘Victim Assistance Program’ of the Police. Tokyo: Crime Victims Relief Fund. Fijinaga, K. (1975) ‘Problems of the Compensation System for the Criminal Victim’, The Journal of Police Science, 28(6), 52–84. Gender Equality Bureau (ed.) (2005) White Paper on Gender Equality 2005. Tokyo: Gender Equality Bureau.

A new horizon of victim support in Japan 259 Gender Equality Council (ed.) (2003) On the Enforcement of the Spouse Violence Prevention Act. Tokyo: Gender Equality Council. Higashikawa, H. (2001) ‘Amendment of the Crime Victims Benefit Payment Law’, The Journal of Police Science, 54(7), 1–10. Ito, E. (2004) ‘On the Amendment of the Prosecution Inquest Act’, Gendai Keijiho, 67, 56–60. Kamimura, M. (2000) ‘The Overview of the Act to Amend a Part of Criminal Procedure Code and Prosecution Inquest Act’, Jurist, 1185, 2–7. Kato, K. (1999) ‘Victims’ Participation in the Criminal Proceedings’, Jurist, 1163, 30–8. Kawaguchi, S. (2001) ‘Due Attention to Crime Victims in Juvenile Cases’, Horitsu no Hiroba, 54(4), 28–34. Kawaide, T. (2001) ‘Reform of Fact-Findings and Enhancement of Victim Support in Juvenile Case’, Jurist, 1195, 17–26. Kawamura, H. (2000) ‘The Purpose and Outline of Two Legislations concerning Crime Victim Protection’, Gendai Keijiho, 19, 10–15. Kishida, N. (2001) ‘Present Situation and Future Prospects of Victim Support of the Community Safety Divisions of the Police’, The Journal of Police Science, 54(7), 84–100. Kitazawa, S. (1994) ‘Victims in Probation and Parole’, Japanese Journal of Victimology, 4, 70–85. Kurokawa, S. (2000). ‘On the Amendment of Criminal Investigation Rule’, in Miyazawa, K., Kunimatsu, K., Ohya, M., Yamagami, A. and Shibashi, T. (eds), Victim Support Series 2: The Present Situation of Crime Victim Policy. Tokyo: Tokyohorei, 33–6. Matsumoto, M. (1997) ‘Reconsideration of Social Feeling: With Special Reference to Victim Feeling’, Hanzai to Hiko, 112, 53–73. Matsuo, K. (ed.) (2001) Commentary: Two Acts concerning Crime Victim Protection. Tokyo: Yuhikaku. Miyazawa, K. (1965) Basic Theory of Victimology. Tokyo: Sekaishoin. —— (1997) ‘In Support Activity for Victims’, The Journal of Police Science, 50(4), 67–93. —— (2000) ‘The Meaning of Victim Support’, in Miyazawa, K., Kunimatsu, K., Ohya, M., Yamagami, A., and Segawa, A. (eds), Victim Support Series 1: Basis of Crime Victim Support. Tokyo: Tokyohorei, 1–40. Miyazawa, K., Young, M.A., Yamada, H., Ohya, M., Taguchi, M., Yamagami, A., Sekine, H. and Morosawa, H. (1991) ‘Feature: the 10th Anniversary of Crime Victim Benefit System’, The Journal of Police Science, 44(12), 40–84. Miyazawa, K., Taguchi, M. and Takahashi, N. (eds) (1996) Crime Victims in Japan: An Empirical Study. Tokyo: Seibundo. Morosawa, H. (1997) ‘The Present Situation and the Imperative of Crime Victim Support Scheme’, Horitsu no Hiroba, 50(3), at 4–10. Nakata, O. (1958) ‘Mendelsohn’s Victimology’, Japanese Journal of Legal Medicine and Criminology, 24(6), 8–15. National Police Agency. (1996) Basic Policy Concerning the Measures for Supporting Crime Victims. Tokyo: National Police Agency. —— (1997) On Research Findings on Re-victimization Case and Future Response. Tokyo: National Police Agency. —— (1999a) General Instructions Concerning Police Measures toward Spouse Violence (NPA tei-sou-ichi, No. 47). Tokyo: National Police Agency.

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—— (1999b) Basic Policy Concerning the Measures for Protecting Females and Children (NPA otsu-sei, No. 16). Tokyo: National Police Agency. —— (2005) White Paper on Police 2005. Tokyo: National Police Agency. —— (2006a) The Implementation of Crime Victim Benefits System in 2005. Tokyo: National Police Agency. —— (2006b) Trends in Boryokudan in 2005. Tokyo: National Police Agency. Ohta, H. (1999) ‘Current Situation and Problems of Victim Assistance Activities by the Police’, The Journal of Police Science, 52(8), 1–18. Ohya, M. (1977) Victim Compensation. Tokyo: Gakuyoshobo. Okumura, M. (2000a) ‘The Present Situation and Problems of Victim Support’, in Miyazawa K., Kunimatsu, K., Ohya, M., Yamagami, A., and Segawa, A. (eds), Victim Support Series 1: Basis of Crime Victim Support. Tokyo: Tokyohorei, 193–251. —— (2000b) ‘The Two Acts for Protection of Victims and the New Measures for Them’, The Journal of Police Science, 53(11), 54–80. Ota, T. (2000a) ‘Victim Assistance in Community Correction: With Special Reference to Victim Notification of Parole Information and Victim Statement (2)’, Hanzai to Hiko, 124, 58–66. —— (2000b) ‘Witness Attendant during Testimony and Mandatory Consideration for Victim’s Attendance at Trial as Hearer’, Gendai Keijiho, 19, 27–34. —— (2001a) ‘A Comparative Study on Victim Compensation (2): Imperatives of Crime Victim Award Payment System of Japan’, Hogaku Kenkyu, 74(6), 63–92. —— (2001b) ‘Victim Assistance in Japan: The Present and the Future’, Victim Support Centre of Tokyo, Centre News, 5, 7–14. —— (2002) ‘Present Trend of Victim Assistance in Japan’, Korean Journal of Victimology, 10(1), 25–66. —— (2003) ‘New Trends in Victim Support Scheme in Japan’, in Ota, T. (ed.), Victims and Criminal Justice: Asian Perspective, Tokyo: Keio University. Research and Training Institute of the Ministry of Justice (ed.) (2003) Community Supervision and Aftercare. Tokyo: Research and Training Institute of the Ministry of Justice. —— (2005) White Paper on Crime 2005. Tokyo: Research and Training Institute of the Ministry of Justice. Saito, S. (1977) Essential Problems of Victim Compensation System. Tokyo: Kazamashobo. Sato, S. (2000) ‘Victims and Community Supervision’, Horitsu no Hiroba, 53(2), 39–45. Segawa, A. (2000) ‘Paying Attention to Victims in the Criminal Justice System’, in Ohya, M., Atsumi, T., Hiraragi, T., Kato, H., Morosawa, H., Segawa, A., Takahashi, N., Ida, M. and Ota, T. (eds), Festschrift for Koichi Miyazawa, Vol.1: New Trends in Victimology. Tokyo: Seibundou, 91–117. Shiibashi, T. (2000) ‘Victim’s Right to Express Their Feelings or Views’, Gendai Keijiho, 19, 43–8. Sugiyama, N. (2002) ‘On Notification and Information of Offender’s Release for Prevention of Rental Care of Victim’, Jurist, 1163, 80–6. Taguchi, M. (2000) ‘Introduction of New Type of Witness Examination: Video-Link and Screen’, Gendai Keijiho, 19, 21–6. Takahashi, R. (2001) ‘Establishment of Re-victimization Prevention Policy:

A new horizon of victim support in Japan 261 Including Establishment of Victim Notification of Offender’s Release’, Keisatsu Koron, 56(11), 19–24. Tamura, M. (1996) ‘Basic Ideas and Policy of Victim Assistance Program of the Police’, The Journal of Police Science, 49(4), 1–28. Tanojiri, T. (2001a) ‘Notification of Offender’s Release to Victims’, Tsumi to Batsu, 38(4), 77–79. —— (2001b) ‘Public Prosecutor’s Office’s Engagement in Crime Victim Support by’, Horitsu no Hiroba, 54(6), 18–26. Tomita, N. (2003) A History and Development of Civil Institute of Victim Support in Japan, Korean Journal of Victimology, 11(2), 293–316. Victim Policy Research Group (ed.) (2000) Crime Victim Scheme of Police, New edition. Tokyo: Tachibanashobo. Yamagami, A. (1999) ‘Mental Care of Victim’, Jurist, 1163, 80–86. Yasuda, T. (1996) ‘Victim Assistance Program of the Criminal Investigation Divisions of the Police’, The Journal of Police Science, 49(4), 29–56. Yazawa, K. (1999) ‘Victim Information Program’, Journal of Police Science, 52(5), 64–77. Yoshinaka, N. (2001) ‘The Amended Juvenile Act and Strengthening Victim’s Rights’, Gendai Keijiho, 24, 61–5.

Legislation and treaties Penal Code (1907). Law No. 45. Juvenile Act (1948). Law No. 168. Criminal Procedure Code (1948). Law No. 131. Criminal Procedure Regulation (1948). Supreme Court Regulation No. 32. Prosecution Inquest Act (1948). Law No. 147. Volunteer Probation Officers Act (1950). Law No. 204. Prostitution Prevention Act (1956). Law No. 118. Criminal Investigation Rule (1957). National Public Safety Commission Regulation No. 18. Crime Victim Benefits Payment Act (1980). Law No. 36. Anti-Boryokudan Act (1991). Law No. 77 Child Abuse Prevention Act (2000). Law No. 82. Crime Victims Protection Act (2000). Law No. 75. Stalking Control Act 2000. Law No. 81. Prevention of Spousal Violence and the Protection of Victims Act (2001). Law No. 31. Comprehensive Legal Aid Act (2004). Law No. 74. Crime Victim Basic Act (2004). Law No. 161. Aged Abuse Prevention and Carer Support Act (2005). Law No. 124.

Cases Supreme Court. (2005) The 1st Petty Bench, 2004-(a)-Case No. 1618, 2005.4.14 Sentence. Tokyo District Court 1997 (wa) Case No. 133, 1999.5.27

13 Victims: the forgotten stakeholders of the Indonesian criminal justice system Harkristuti Harkrisnowo

Introduction The past few decades have witnessed a considerable spread in the support of crime victims worldwide. The primary reason behind this spread is definitely due to a reaction to the lack of attention and assistance accorded to victims of crime, legal or otherwise, while defendants and the accused receive more than ample attention, as provided for in the laws of criminal procedure all over the world. Victims’ sufferings have also been recognized internationally in the United Nations’ Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power in 1985. Of course, this human rights instrument was produced after a lengthy struggle for access to justice for crime victims, by civil society movements all over the world. The Declaration does not merely address crime victims, but also victims of abuse of power who are victimized by the State and/or its officials. It cannot be denied that Indonesia has both types of victims. Unfortunately, however, the victims’ movement has only recently emerged, and only in large urban areas, in line with other nationwide social movements at the end of the twentieth century, after the collapse of the Suharto regime. It is not an exaggeration to say that, in the past seven years, the number of crime victims in Indonesia has multiplied to an astronomical figure. This situation started from 1998, with the violent conflicts occurring in many parts of the country (Jakarta, West Borneo, Poso, Ambon, Papua, Mataram, Aceh, etc.), which created thousands of victims of murder, rape, manslaughter, mutilation, arson, destruction of property, etc., to the latest suicide bombings, leaving hundreds of innocent people, Indonesians and expatriates alike, dead and seriously wounded. The number added to the already high figures of victims of traditional/street crimes as well as nontraditional crimes. Despite the large number of crime victims, the existing legal regime has almost no provision for protecting and providing services to the victims of crime. As a result, all of the suffering must be borne by the families of the victims alone. This condition is exacerbated by the fact that criminal justice officers in Indonesia have the tendency to be highly legalistic, positivistic and formalistic in nature, such that only those provisions

Victims in the Indonesian criminal justice system 263 stipulated in the laws are implemented, while developments outside the law, such as developments found in the victim-oriented movement, remain unheeded. Naturally, this situation is greatly influenced by the traditional civil law system, which places complete reliance on written rules and regulations, even though their role is no longer limited to what Montesquieu said, that they serve only as ‘la bouche qui prononce les paroles de la loi’. This positivistic stance has been increasingly criticized by the public because judges and other criminal justice personnel believe that the legal system does not provide space for interpretation. This situation may also be attributed to the prevalent attitude of the lawmakers, as well as those involved in the criminal justice system, that the basic objective of the system is to detect and punish offenders, to rehabilitate them in a correctional institution, and thus protect the public. Yet, it is common knowledge that, in actual fact, none of these objectives has been met, for many offenders still roam the street freely, exoffenders still commit crimes and the public is still not free from the menace of crime. This condition also reveals the existing mindset, that since the State is representing the victims, the latter no longer has any place in the criminal justice system, except for the benefit of the prosecutor. Hence, the poor victims are left alone to heal their wounds, to pay for medical and other services and to find ways to return to their previous condition. But that is not all, for when a person is victimized, the suffering is not all that she or he has to experience; there is always a possibility of secondary victimization. This victimization happens during the processing of the crime, where the victim must endure the whole criminal justice process, the unsympathetic treatment accorded by law enforcement officers and other court officials, the pain of repeating such experiences to the public during a court hearing, not to mention the time spent in the police station and the courts. This kind of victimization could also emerge from the verdict delivered by the court, which is highly positivistic, leaving almost no room for victims to be appreciated, except as a witness. A noteworthy example occurred in Indonesia only recently, in late February 2006, when an eight-year-old child was brought to trial for assaulting another child during a brawl. The Indonesian media exposed this case since only children less than eight years old are protected from the media. According to the Indonesian Law on The Child and Juvenile Court, a child less than eight years old shall not be brought to trial, but the case should be disposed of by the police at a much earlier stage, instead of being brought to the stage of criminal proceedings. The child concerned was not put in custody, until he failed to appear in court in two consecutive trials. The judge then ordered him to be put in custody, and this was where the media picked up the story and relayed it across the nation. Naturally, the public was enraged by this ‘inhumane treatment’. The clamour created turned the little perpetrator into a victim of a child abuse case by the justice system. On the bright side, this case has brought to light the drawbacks of

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the juvenile justice system in this country, which have largely been either received indifferently or unpublished. While everybody is busy with the child perpetrator, the unfortunate victim was left unattended and received no media coverage, no medical services and no restitution whatsoever. This incident clearly indicates that a crime victim – even a child, who should have more attention – is not provided any appropriate protection by the law. Understandably, many victims would prefer to remain silent, especially those who were victims of property crimes of minor value, thus preventing the criminal process from being set in motion. It is not surprising that the media has reported that innumerable criminal cases have gone unprocessed all over Indonesia. The majority of the unprocessed cases was due to a lack of evidence, especially victim and witness testimonies. Apparently, the reluctance of the victims and witnesses to testify, is one of the most quoted reasons for their not coming forth to participate in the criminal justice system, which in turn prevents the criminal justice system from ‘dispensing justice’ accordingly. This reluctance of the victim and witness stems from various reasons, as reported by some victim-related studies, the majority of which cite distrust of the proceedings and lack of legal and other protections given to them (Sentra HAM 1999). This distrust of legal proceedings is to be understood as a reflection of the distrust of the whole criminal justice system, from the police force to the correctional institution. In addition, it is well known that the plight of crime victims has long been ignored, notably, not only by the criminal justice system, but by other public agencies as well. Ironically, offenders who are wounded whilst being apprehended by the police will receive medical services, paid for by the government, while the victim is compelled to cover the medical costs from their own resources, for injuries inflicted by the offender. It is little wonder that victims have become reluctant to get involved in the criminal justice system. Furthermore, there is a fear of the possibility of retaliation and intimidation, since there is no legal protection accorded to them. In Indonesia, this is exemplified by the alleged mass rapes against women of Chinese origin in Jakarta in mid-May 1998, cases which have never been legally processed even until today, most probably because none of the victims had enough nerve or trust to report their victimization to the law enforcement agencies. Intimidation and retaliation are reported to be the main factors behind this non-reporting of crime (Reksodiputro and Mudzakkir 2003). Similar conditions are experienced by victims in the various conflict areas in Indonesia, such as Poso, Ambon, Aceh and Papua. However, even if the crime is reported, and processed up to the trial stage, there is still no guarantee that the victim-cum-witness would be treated properly and be provided adequate services, including protection during the trial. One example is a case involving a ‘gross violation of human rights’ allegedly commited in East Timor, i.e. genocide and crimes against humanity,

Victims in the Indonesian criminal justice system 265 according to the Human Rights Court law that was brought to court. The whole of the criminal proceedings drew a lot of attention from the media and public at large, both at the national and international levels. Unfortunately, in this very first set of court proceedings to try cases involving gross violations of human rights occurring in East Timor in 1999, many witnesses, whose names were already filed with the court registrar, failed to appear even though they had been summoned appropriately and promised a high level of protection. The absence of the witnesses in the proceedings is indicative that they have misgivings about their security when asked to testify. In such cases, where the alleged perpetrators are the military and those in power, who would be brave enough to put their life at stake to testify against them in open court proceedings? To whom will they run for help in case of reprisal from the perpetrators or their group? The tragedies exemplified by the above cases are similar to the sufferings of other so-called victims of ‘ordinary crimes’, especially those who experienced crimes of violence committed by those close to them, for example, domestic violence (including wife abuse, marital rape and incest), and rape (including date rape). It is very unfortunate indeed that these poor people receive no protection (legal or non-legal) whatsoever, either from the government or from society at large. This situation is significantly different for defendants. The Indonesian Criminal Procedure Code has stipulated for a large number of rights to be accorded to the defendant to protect his or her human rights during the criminal process. This situation of protecting defendants, while leaving the crime victims largely neglected, has been occurring in other parts of the world as well.

Victims: a short story It is generally admitted that the unavailability of evidence as well as the prevalence of serious crimes is a source of great public concern. It has been identified that many cases could not be processed properly, thus creating public misgivings on the effectiveness and efficiency of the law, including the integrity of legal personnel and professionals. A number of studies reveal that the justification which law enforcement officials present for not processing a case, in most situations, is a lack of evidence. Needless to say, the success of the criminal justice process is highly dependent upon the discovery and submission of evidence before the court. In Indonesia, the criminal justice processes pertaining to various crimes, especially serious crimes like gross violation of human rights,1 corruption, terrorism, and drug trafficking, have shown that, during the past few years, the issue of evidence is very significant to the success of the process, since the lack of it would allow the defendants to walk freely out of the courtroom, regardless of the fact that so much time, energy and money was spent in the process. Nonetheless, the victims/witnesses hardly receive sufficient

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notice from law enforcement agencies about their cases (National Law Commission 2003; Pollard 2000; Sentra HAM 1999). One terrifying type of victimization in Indonesia, which occurred during the Suharto regime but was seldom exposed in the media, involved the socalled State policy which victimized people, mostly of the lower class. They were victims of abuse of power. Some of the most cited cases, which occurred during the Suharto era, involved crimes committed by the military in specific areas such as Papua, Aceh, East Timor, Lampung and Jakarta (Tanjung Priok) (Reksodiputro and Mudzakkir 2003). Since 2002, some of these cases have been brought to the courts, even though the verdicts brought disappointment to victims and/or their families. However, during the New Order era, these atrocities had naturally been covered up by the government for fear of demands for investigation, and there were no publicly accessible information and records. Regrettably, even in the present day, nothing has been done seriously to alleviate the victims’ suffering, legally or otherwise. The second type of abuse of power which occurred during Suharto’s regime related to the relinquishment of land or land expropriation without the full consent of the owner or appropriate compensation. These illegal actions, although legitimized, were done in the name of ‘development’, which needed a ‘sacrifice’ from certain groups of people. After the dethroning of the Suharto regime, during the transitional period, some of the victims lashed out in vengeance by destroying the areas where the land which they formerly owned were located, while the police looked on helplessly, since these people numbered in the hundreds. Some of them did succeed in repossessing their lands, while others failed to do so. Thus, not all of the victims received what they deserved. Not surprisingly, in such events, there were always marauders joining these people, taking advantage of the chaotic situation, and in some cases they were much more persistent than the actual owners. Again, the fate of most of the victims remained unchanged. Such was the general condition of victims, which was again confirmed by a victim and witness study conducted in Indonesia in 1999, by the Human Rights Study Center. This study revealed that victims, as well as witnesses, received very little attention from either society or the criminal justice system (Sentra HAM 1999). Society does show some pity on victims, but no actual actions are taken with regard to these people. On the other hand, some would even assert that victims and witnesses are merely pawns in the hands of the criminal justice agencies, used to benefit these agencies in convicting the defendant (Mudzakkir 2001; Reksodiputro 1994). Such injustices have not come to an end in Indonesia. Despite pressure from various groups to build a legal and social mechanism for helping victims of crime, little has been achieved in this area. The fact that a draft Victim and Witness Protection Bill has been submitted to the government (casu quo the Ministry of Justice) in 2000, and that since 2001 it has been on the agenda of

Victims in the Indonesian criminal justice system 267 the legislature, does not necessarily mean that its enactment has been seriously considered by both institutions. Unfortunately, due to the lack of quantitative data on the number of victims and the injuries they might suffer, it might not be easy to convince both the legislature and the executive on the urgency of enacting the draft Victim and Witness Protection Bill. Yet, even if there is a list providing figures of crime victims, this list may not be a reflection of the real number of victims, for the so-called ‘invisible victims’ are believed to be triple or even quadruple the number reported in the official record (Reksodiputro 2006). Apart from the victims’ reluctance or fear of retaliation, some reports reveal that many crime victims fail to make a report, due to their own ignorance that they have been victimized, for instance, those who were victims of environmental crimes, domestic violence, false advertising and trafficking in persons. In addition, there is also a group of victims who is barely known to the public as ‘victims,’ i.e. the victims of abuse of power, whose protection has already been recognised in 1985, in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. For illustration, the number of victims of land expropriation during the Suharto regime, is as follows in Table 13.1. In cases where farmers resisted the land expropriation, violent reactions were noted and were alleged to have been committed either by the State apparatus or by a group of people whom the State apparatus did nothing to prevent or prosecute. Some of the cases were recorded by NGOs, as seen in Table 13.2. The victims listed in Table 13.2 are only those who were identified by various non-governmental organizations (NGOs), which worked relentlessly. There are other thousands of victims who are not identified yet, due to various reasons. Furthermore, the cases of those victims who have been identified may be treated inconsistently from each other because of the absence of a national policy to resolve such cases. The different results stem Table 13.1 Number of victims in land expropriation cases Name of village

Province

Lands expropriated (hectares)

Families affected

Grati Nyamil Kunir Pungguk Nyinyir Kedung Ombo Sunggal Tj Bulan Martoba Percut Tuntungan

East Java East Java East Java East Java East Java Central Java North Sumatra South Sumatra West Sumatra North Sumatra North Sumatra

8,000 90 80 36 100 4 districts 167 12,000 54 1,236 1,000

12,000 400 400 150 600 27,000 200 100,000 130 2,000 1,800

– 13 – 6 1 8 – 2 13 – – – 1 – –

– 6 – – – 0 – – 6 – – – – – –

2 148 16 169 3 68 89 22 216 – 15 – 6 8 12

– 45 – 104 – 8 3 21 7 – 1 – – – –

Aceh North Sumatra Riau South Sumatra Bengkulu Lampung West Java Central Java East Java East Kalimantan Central Kalimantan South Kalimantan South Sulawesi Central Sulawesi Southeast Sulawesi

– 4 1 1 – 2 – 2 8 – – – – – –

Assault Murder Shooting Kidnapping Illegal arrest

Province

Table 13.2 Victims of violence against farmers and their defenders

– 115 83 – – 9 – – 68 – – – – – –

– 110 300 3,152 – 0 154 – 11,000 3,229 – 259,164 21 – –

28 434 208 571 10 198 391 108 529 – 35 – 2 18 27

Destruction Destruction Terror of property of lands

– 2 – – – 3 – – 7 – – – – – –

– – – – – 1 – – – – – – – – –

Enforced Rape disappearance

Victims in the Indonesian criminal justice system 269 from several variables, for instance, the number of victims, the amount of money involved, the persistence of the NGOs and the sensitivity of the local government and legislature. As for different types of crime victims, Tables 13.3 and 13.4 concern two types of serious crimes which usually involve the victimization of women and children: domestic violence and trafficking in persons. The victims of domestic violence are worth noting, because they tend to suffer their injuries in silence, instead of reporting their victimization; thus, the culprits remain unpunished. Victims of trafficking in persons are also in dire need of protection, since most of them are usually people coming from the lower classes. Presented below are figures indicating the number of cases of domestic violence brought to the attention of the Women Legal Aid Centre in 1998 to 2002 (Table 13.3) (LBH APIK 2003), and of the number of cases of trafficking in persons during the 1999–2003 period (Table 13.4) (Criminal Investigation Unit 2004). The figures shown in Table 13.3 are, of course, not representative of the rate of domestic violence in Jakarta, for only a small number of people would come to this centre to ask for its assistance. A much larger figure is to be found out there, for most victims of domestic violence tend not to report their victimization, especially when the perpetrator is someone very close to them or someone they love (or used to love). Keeping ‘the skeleton in the

Table 13.3 Number of cases of domestic violence reported to Women Legal Aid Centre/LBH APIK JAKARTA (1998–2002) Type of case

1998

1999

2000

2001

2002

Breach of promise Child abuse Economic violence Physical violence Psychological violence Rape Sexual harassment Sexual violence Violence in dating relationship

0 0 58 33 119 1 2 3 0

0 0 58 52 122 10 5 15 0

3 0 85 69 174 0 1 1 0

14 0 16 82 76 0 0 0 0

5 1 135 86 250 0 0 7 7

Table 13.4 Legal actions against perpetrators of trafficking in persons (1999–2003) Year

Number of cases

Court disposition

Percentage (%)

1999 2000 2001 2002 2003

173 24 179 155 125

134 16 129 90 67

77.46 66.67 72.07 58.06 53.60

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closet’ is deemed necessary so that the victim’s family is not stigmatized as an ‘abusive family’. Fear of further or more serious victimization by the same perpetrator if the case is reported, blaming oneself for the occurrence of the crime or a pure lack of knowledge that such behaviour is a crime are other factors which keep domestic violence cases from law enforcement officers. However, there are also cases where police officers advise the victim to ‘reconcile with the perpetrator’, reflecting the perception of law enforcement personnel that domestic violence is a ‘domestic’ case that should be solved by the parties themselves (LBH APIK 2004). These problems are expected to be partly resolved2 by the enactment of a Law on Eradication of Domestic Violence, which will be explained later in this chapter. These victims of trafficking in persons, again, have to deal with their own victimization without any significant help from the government (Naibaho 2004). It is true that they were requested to appear before the court to testify against the perpetrator, but this was for the interests of the State and not with respect to their own suffering. Similar to other victims of crime, there are no significant measures, legal or social, to assist these victims in coping with physical, psychological and other problems caused by their victimization, so that they can continue living their lives. The victims of trafficking in persons must also suffer further disappointment, for the judiciary tends not to inflict severe punishment against the perpetrators, even though the crime carries a six-year sentence of imprisonment according to the Indonesian Criminal Code. Further study reveals that lenient punishment was given, because the relevant provision in the Indonesian Criminal Code merely stipulates the offence of ‘trading in women and children,’ the elements of which are not as elaborate as those in international instruments (Harkrisnowo 2003). Responding to this predicament, especially that faced by victims of human trafficking, the government and legislature are at present preparing a Bill on Human Trafficking. A 2003 research study conducted by the Human Rights Study Center of the Faculty of Law, University of Indonesia, also revealed that, in addition to their poor education and limited knowledge, the lack of victim and witness protection constitute part of the problems faced by victims of human trafficking (Sentra HAM 2003). Such findings were also made during the first phase of a pilot project on human trafficking research in the Philippines (Nissinen 2004) and also in the Mekong countries (United Nations Office on Drugs and Crime 2004).

Victims in the existing legislation Despite the fact that the primary party who is injured and suffers as a result of criminal acts is the victim, one can hardly find any specific legal provisions in the Indonesian legal system directed towards victims of crimes. This is clearly a reflection of the lawmakers’ attitude towards crime victims. The

Victims in the Indonesian criminal justice system 271 enactment of the Human Rights Court law in 2000 indicates a slight shift towards better (legal) treatment of victims, but this is only limited to victims of heinous crimes. But first, let us see how the Criminal Procedure Code makes provision for crime victims. The Criminal Procedure Code Various legal research articles assert that, in essence, legal protection for crime victims and witnesses should constitute a set of rights available to them for use in the criminal justice process, as a form of appreciation for their contributions towards the process, instead of merely being treated as ‘a tool of the law’. The present Indonesian Criminal Procedure Code, sadly, has not achieved that level of protection towards this vulnerable group of people. In 1981, the Indonesian legislature enacted a new Criminal Procedure Code,3 which was then hailed as a corpus magnum, or literally, a great (legal) creation. It was considered as a great law, in comparison with the then existing criminal procedure laws enacted in the mid-1800s, during the Dutch colonial period, which did not contain human rights protection for the offender and was very different from the law of criminal procedure applied to the Dutch themselves at the time. Due to this defect in the colonial law on criminal procedure, the new law is very much offender-oriented, in accordance with the universal trends in the human rights movement during that time. Regretfully, however, the law appears to neglect and ignore the existence of victims, the actual party injured in the commission of a crime; there is no legal protection provided therein for them. There is, however, one single article which allows an ‘injured party’ to sue the defendant for damages incurred, in the same criminal process where the defendant is tried. The term ‘injured party’ is of course inclusive of the crime victim, as defined in the elucidation of the article itself. By incorporating the civil process into the criminal process, the lawmakers intended to speed up the procedures, and cut down the cost of civil litigation. Speeding up legal procedure is necessary, since civil litigation alone can take up to eight years to conclude at the Supreme Court level. And this is not all, because there is always a possibility of Supreme Court Judicial Review, after the stage of cassation is completed. The cost of civil litigation is also known to be expensive and most people prefer not to settle their case through the courts for this very reason. Thus, the availability of this clause is expected to ease the pain of the victim. People praised this article and called it ‘a new-found concept’, a victimoriented concept, for it recognized the pain suffered by crime victims, that they did not have to initiate a separate civil action against the perpetrator to sue for damages. Yet, contrary to what people believe (Harahap 1993; Lamintang 1984), this is not a new-found concept at all, for similar stipulations could be found a century and a half ago in Article 163 of the Dutchmade Strafvordering of 1847 (Criminal Procedure), during the colonial

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period. Such provisions, however, were only applicable to the Europeans and those equated with the Europeans; they were off-limits to the locals in Indonesia (the Dutch Indies, as it was called then) and the ForeignEasterners. This is only a trivial example of the different human rights protections accorded to different classes of people during that time.4 In summary, the legal stipulation allowing a joinder of civil suit in a criminal case did exist during the colonial period, even though it was limited to Europeans only. Coming back to the present Criminal Procedure Code, in spite of its existence, its implementation presents a picture which is similar to the conditions existing before its enactment. It should be noted, though, that as in other countries, Indonesian victims can always sue a perpetrator for damages based on civil law procedure. Interestingly, this provision has not been widely used by victims, which may be due to ignorance, reluctance or pure apathy towards the legal system as a whole. A research study on this issue revealed that, the courts’ verdicts on restitution for crime victims after 1981, were not significantly different from those issued before the new Law (Mudzakkir 2001). In addition, the courts, following the example of the Supreme Court, the last bastion of justice, appear to remain positivistic on the legal position of a crime victim. The following Supreme Court decisions are examples of how Supreme Court judges perceive the interests of crime victims. The first two cases involve the scope of ‘damages’ entitled to restitution; and the next two cases involve errors made by court officials. 1

2

3

4

In Case No. 26.K/Pid/1988 (issued on 24 September 1991) the court turned down a claim made by a victim who sued the prosecutor who filed an incorrect dossier, a mistake which led to the defendant’s acquittal. The court in Case No. 2107.K/Pid/1987 (issued on 22 August 1990) ruled that a request for restitution must be attached to the dossier, otherwise the court cannot grant restitution. The court in Case No. 296.K/Pid/1987 (issued on 15 March 1991) ruled that that a crime victim cannot submit a motion to the court if the prosecutor changed the indictment which results in the case being declared null and void. The Supreme Court also ruled that a crime victim is not entitled to sue a prosecutor based on what the latter did for the prosecution. In Case No. 1558/K/Pid/1998 (issued on 22 January 1999) the prosecutor failed to include a charge of slander; thus the offender was acquitted. The victim sued the prosecutor for damages, but his claim was turned down by the Supreme Court.

The above decisions are not too different from rulings in civil cases. One can conclude from them that, first, the court remains highly positivistic;

Victims in the Indonesian criminal justice system 273 second, the court tends to narrow the scope of the rights of a victim, instead of broadening it based on today’s human rights centred approach; and third, the court believes that technical and procedural errors made by court officials which injure the victims of crime are not eligible for restitution/ compensation. Clearly, with the Supreme Court following such principles, it would be very difficult to introduce a victim-oriented approach into the justice system. Perhaps it is not completely correct to assert that the Criminal Procedure Code only contains one article pertaining to victims. If a victim does become a witness in court proceedings, Article 1.26 of the Criminal Procedure Code provides that ‘a witness is a person who could provide information for the interest of investigation, prosecution and trial about a criminal case that he himself or she herself has heard, seen or experienced’. In conjunction with this, there are several articles in the Criminal Procedure Code which could be used to protect the interests of the victim, i.e. in cases where they serve as a witness in court proceedings. Hence, in this kind of cases, that of victims as witnesses, there are further provisions which are, ironically, also applicable to the defendants as well: 1

2

3 4

5

6

Information from a defendant or a witness to the investigator shall be given without any coercion from any party, in all kinds or forms (Article 117 para 1). Information given by a defendant or witness shall be recorded in a report of proceedings, signed by the investigating officer, and by those who gave the information, after he or she agrees upon its contents (Article 118). No entrapping questions should be asked of the defendant or witness (Article 166). If a defendant or witness does not speak the national language (Bahasa Indonesia), the chairman of the panel of judges shall appoint an under-oath translator to correctly translate everything that needs to be translated (Article 177). If a defendant or witness is deaf or mute, the chairman of the panel of judges shall appoint a person who is familiar with the defendant or witness (Article 178). A witness or an expert witness who has appeared in a court of law, abiding the summons from the court in order to provide testimony at all stages of the proceedings, shall be entitled to reimbursement of expenses as regulated by the law (Article 229).5

Regrettably, the stipulations cited above carry no sanction if violated, and few victims would argue before the courts that their rights have not been respected, as discovered by research conducted by Sentra HAM (Sentra HAM 1999). To make matters worse, these provisions are only applicable to victims who come forward to law enforcement officers to give their

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testimony. They do not cover those victims who are reluctant to report their victimization, whatever the reasons behind this non-reporting, or those who come forward but decline to have their identities revealed in the courts of law, due to fear of retaliation from the offender. It is very clear then that the obligations of the victim as a witness far exceeds his or her rights. The undoubtedly weak position of a victim and witness within the criminal justice process is one of the reasons why few people would voluntarily come to testify in court, unless they have a special interest in having the case resolved. Yet, the Indonesian legal system allows a crime victim to decide whether the case should be processed or not, for certain types of crimes. These are crimes which are considered to constitute a violation of the victims’ right to privacy should the case be processed without the consent of the victims. Examples of such crimes found in the Indonesian Criminal Code include: • • • • • • • • • •

Article 284 on adultery; Article 287 on a sexual relationship with a female, other than one’s wife, whose age is under 15; Article 293 on deceitful acts leading to commission of obscene acts with a minor; Article 319 on defamation; Article 321 on defamation against a deceased person; Article 322 on revealing confidential information which should be protected by a person due to his or her job or profession; Article 332 on abducting a female against her will; Article 367 on theft by family members of the victim; Article 369 on blackmail; Article 376 on embezzlement by family members of the victim.

In addition, there are situations where the victim/witness would prefer their victimization not to be legally processed, due to the following reasons: 1 2

3

4

The information he or she possesses might incriminate himself or herself because a witness is not accorded the right against self-incrimination. The information would incriminate the witness’s partner in crime. In such cases, Indonesian prosecutors would tend to split the cases among the defendants, so that each defendant would be another’s witness. Whether this act constitutes a violation of their human rights remains to be debated. There is a possibility of the victim/witness being intimidated, harassed and threatened by the defendant, for the victim has no legally protected rights. Despite the fact the law states that a witness is entitled to reimbursement of his or her expenses, in reality this has practically never been done, since the funds available are very limited.

Victims in the Indonesian criminal justice system 275 5

Instead of feeling protected, the victims would often feel threatened by the demeanour of the law enforcement officials.

The provisions of the Indonesian Criminal Code mentioned below further worsen victims’ victimization by the justice system, instead of delivering justice in their interests. The Indonesian Criminal Code The Indonesian Criminal Code,6 which was enacted in 1918 by the Dutch colonial authorities, ironically completes the sufferings of crime victims, for it places a legal obligation on a victim (who acts as a witness) and a witness in general, which, unlike the above Criminal Procedure Code, carries criminal sanctions. The Indonesian Criminal Code stipulates that should a witness intentionally refuse to appear before the court at the designated time after being appropriately called by the court, he or she will be subject to nine months of imprisonment for a criminal process or six months for a civil process (Article 224). One has to admit, however, that this article is rarely used by the law enforcement agencies. Article 522 of the Indonesian Criminal Code provides a mitigating factor in conjunction with such cases such that if the witness unintentionally fails to appear before the court at the designated time, he or she is subject to a fine of 900 rupiahs. However, if the failure to appear could be attributed due to some legally justified excuse presented before the court, the victim/ witness is not subject to punishment. It is very clear then that the obligations of crime victims as witnesses far exceed their rights. These articles, however, are rarely used, thus, the courts’ perceptions on the position of victims or witnesses who fail to appear before them is unknown. The Human Rights Court law In 2000, Indonesia enacted the Law No. 26 of 2000 on the Human Rights Court. This is a unique law, one which is different from any other law in the whole world, for it is the only law in the world where a State establishes a national tribunal for gross violations of human rights. In other countries, gross violations of human rights cases are usually brought to international tribunals. The content of this law, which borrowed from many existing concepts, such as from the Convention on the Prevention and Punishment of the Crime of Genocide, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Rome Statute of the International Criminal Court, has led to many debates amongst the legal community, because exemptions from many basic principles of criminal law, both substantive and procedural, have been carved out. The exceptions include the following: criminal responsibility is not merely

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liability based on fault; it does not have jurisdiction over an alleged defendant who is a minor (under 18 years of age); the minimum sanction is ten years of imprisonment and the maximum sanction is 25 years of imprisonment (the Indonesian Criminal Code carries a maximum of 15 years of imprisonment); exemption from the statute of limitations; and an exemption from the doctrine of non-retroactivity is allowed for gross violations of human rights cases which occurred before this law was enacted. In terms of procedural criminal law, pre-investigation is conducted by the National Commission of Human Rights instead of by the police;7 it allows the State to detain suspects for a longer period as compared to ordinary crimes; a time limit is set for each stage of the criminal justice process;8 a specific court is created; and the panel of judges consists of two career judges and three ad-hoc judges.9 In connection with the protection of victims, the most important issues are found in several provisions, which provide protection to victims and witnesses in gross violations of human rights cases. The kinds of protections accorded to them are as follows: 1

2

3

Should an investigation into a gross violation of human rights be terminated, the victim or his/her family can request for a pre-trial hearing, to determine whether the termination was appropriate or not.10 Victims and witnesses are entitled to physical and mental protection from threats, intimidation, terror and violence; such protection is to be provided by law enforcement agencies.11 Victims are entitled to compensation, restitution and rehabilitation, and the court shall provide for such entitlements in its verdict.

These articles are elaborated on in the Government Regulation on Compensation, Restitution and Rehabilitation for Victims of Gross Violation of Human Rights, enacted in 2002.12 This regulation was based on the draft Victim and Witness Protection Bill. Government Regulation No. 2 of 2002 Entitled Procedure for Protecting Victim and Witness in Gross Violation of Human Rights, this regulation was originally proposed as a Law, one level higher than a Regulation. The problem was that many of its contents are not in line with the present Criminal Procedure Code. In the Indonesian hierarchy of law, a Law cannot be superseded by a lower form of law, in this case, a Government Regulation. Thus, it is understandable that at the beginning of one trial by the Human Rights Court, a defendant submitted a motion to strike down the Regulation, since it contained stipulations which were not in accordance with the Criminal Procedure Code. Following the doctrine of lex superiori derogate legi inferiori, stipulations in a regulation shall not deviate from the higher rules from which it is derived. The court

Victims in the Indonesian criminal justice system 277 however, decided that the Regulation prevails, since gross violation of human rights cases are extraordinary cases that need extraordinary legal measures instead of merely regular legal measures. The basic idea contained in this Regulation is that every victim and witness in gross violation of human rights cases is entitled to protection by law enforcement and security officers. For the first time in Indonesian legislation, a definition of a victim is provided: a victim is an individual or a group of individuals who suffer as a result of a gross violation of human rights, and who needs physical and mental protection from threats, disturbances, terror and violence. Such protection includes: 1 2 3

protection of personal safety from physical and mental threats; concealment of personal identity; and giving testimony without having to face the defendant.13

However, due to the ignorance of the victims and witnesses, their distrust towards law enforcement officers or, probably, simply their indifference, none of the witnesses is known to have applied for such protection. Not even a request for the concealment of a witness’s identity was received. As a matter of fact, despite the promises made by prosecutors that witnesses would be protected, a number of witnesses failed to appear in court without any clear and apparent reason. The above conditions show that the set of rules for protecting victims and witnesses is far from effective. In all probability, its stipulation in a Government Regulation instead of a Law has made it ineffective, since people would not believe the promises it holds. Furthermore, this Regulation is only applicable to crimes of gross violations of human rights (i.e. genocide and crimes against humanity). Victims of crimes outside this Law remain unprotected. Government Regulation No. 3 of 2002 In order to complement the above regulations, and also to fulfil the mandate of Law No. 26 of 2000, the government issued another Regulation, titled Compensation, Restitution and Rehabilitation for Victims of Gross Violation of Human Rights. This Regulation promises reparation to crime victims or their families for gross violations of human rights, either from the State or from another perpetrator. This Regulation, nonetheless, has never been utilized. None of the courts’ decisions contain any order directed to the perpetrators to pay restitution to the victims; or to the State to pay for compensation. Hence, many human rights lawyers and activists criticized prosecutors and judges for not being sensitive to the pains and needs of the victims and their families. The judges asserted that, unusual as it may be, most trials of gross violations of human rights were never attended by victims. Hence, the prosecutor was

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not able to present their victim/witness in order for the judges to make any court order. Furthermore, the victims resided in East Timor (the trial was held in Jakarta) and it would be difficult to grant them compensation or restitution if their victimization had not been established. The lack of specific procedures in the Regulation has also been blamed for the non-utilization of this compensation scheme (Mappi 2003). The inclination of law enforcement agencies to rely solely on the exact stipulations of the law is again demonstrated here. Since there are no such procedures in the Regulation, they do not want to be innovative, although they could always refer to the provision on restitutionary procedure as expressed in the Criminal Procedure Code mentioned earlier. In summary, the existence of a new law, with a new set of procedures to ease the burden and pain of victims of gross violations of human rights, has apparently not eased their pain. Unrecognized by the criminal justice process, unknown to the public at large, they have to nurse their own wounds, unassisted, unaided and unappreciated. Of course, one could always say that it was their own choice not to come forward before the court in the first place; however, the reason for their reluctance must be understood: they chose not to do so because it is hard for the State to ensure their security. In addition to the non-utilization of these laws, and the passive attitude of the officers of the court, the victims may have to witness the Supreme Court’s acquittal of the perpetrators, who may have been originally sentenced at the court of first instance.

Law on Eradication of Domestic Violence After a lengthy and heated debate in the various fora, in particular the Parliament, and supported by many marches by women activists, the Law No. 23 of 2004 on Eradication of Domestic Violence was finally issued. This law attempted to transform the essential elements of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was ratified by Indonesia through Law No. 7 of 1984 and the Declaration on the Elimination of Violence against Women, into enforceable legal provisions. Naturally, efforts to introduce this law to Parliament and the government had not been easy, especially since those opposed to the law had been working hard as well. The prevalent perception that men are entitled to ‘discipline’ their wives, sisters or daughters is one of the most difficult issues faced by activists. Even after its enactment, some people continue to voice their disapproval and dissatisfaction to it, for it opened the possibility of a woman to challenge the authority of men in the family. Moreover, some people were irritated because this law stipulates marital rape as a crime, which, according to them, is not a pressing issue. As a response to the miserable fate of victims of domestic violence, this law received applause from the civil society, and women activists in particular. The preamble of this law, asserts its raison d’être, i.e. that it recognizes

Victims in the Indonesian criminal justice system 279 that the majority of victims of domestic violence are women, hence, they should be protected and freed from violence or the threat of violence, torture and other degrading treatment.14 Nevertheless, the legal system in Indonesia has not ensured the protection of victims of domestic violence. Domestic violence is known to occur in various parts of the country regardless of the density of these areas or the income level, job or educational level of the offender and the victim. In other words, it occurs across social classes, race, ethnicity, etc. However, it is more prevalent in urban areas, where individualism prevails, since crimes committed within a household are most probably unknown to the next-door neighbour, for the structure of the city is quite different from the less populous areas. In rural areas and the less individualized areas, intimacy among neighbours is much more pronounced, and it serves as an informal social control, constraining people from misbehaving themselves, including committing domestic violence. Moreover, the social structure, which is basically patriarchal, inculcates values which are disadvantageous to women. Reports of domestic violence seldom reach law enforcement officers, for this is a crime which is considered as within the private domain of each family, thus beyond the public sphere. Thus even if it is reported, more often than not, the police would tell the victim to ‘try to reconcile’ with the perpetrator, instead of bringing this matter into the hands of the law. Various research studies have also revealed that most victims of this crime tend to cover up their victimization due to fear, and also because of a culturallyinculcated obligation to maintain the family’s honour, even if it means keeping the skeleton in the closet. Thus, in this law, we find definitions of who is a ‘victim of domestic violence’ and what is a ‘household’, both of which are totally new to Indonesian law. A ‘victim of domestic violence’ is defined as ‘anyone suffering from violence and/or threat of violence within the household’, while the ‘household’ comprises of the husband, wife, child(ren), relatives, and ‘helpers living in the house’. The ‘helpers living in the house’ are meant to cover the servants, some of whom were reported as being abused by their employers. This provision may be different from the conception of domestic violence in other countries, where the relationship between the offender and the victim does not include the employer–employee relationship. Indonesian law includes this type of relationship in its domestic violence provisions because the majority of Indonesians hire domestic workers in their household. Considered as one of the more progressive laws to protect women and children, this law proscribes specific criminal conduct differently from the provisions in the existing Indonesian Criminal Code and in some cases, even imposes harsher punishment for similar crimes mentioned in the code. For example, while battery is punishable with two years and eight months of imprisonment in Article 351 of the code, the same act, if conducted against particular victims enumerated in the law on Eradication of Domestic Violence, carries a penalty of three years of imprisonment.

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Needless to say, this law has specific chapters on victim rights (Chapter IV), victim protection (Chapter VI) and victim recovery. It is not an exaggeration to say that this law represents a new paradigm in looking at victims of crime. Victims’ rights, which have been specified under this law, include the following: 1

2

3

4

5

Protection by the family, police, prosecutor’s office, the court, lawyers, social organizations or other parties, either for the time being, or based on a court order for protection. While this provision sounds correct, one would have difficulties in implementing it, for it carries no legal sanction whatsoever. Health services in accordance with the victims’ medical needs. It is not a secret that health services cost a lot everywhere in the world. In Indonesia, it is even more so due to the low economic level of the country. Without further elaboration, this provision may carry no significance for the victims. Special treatment in conjunction with the secrecy of victim’s identities. It is not clear how their identities would be concealed, especially if the press has come into the picture. This is ironic, as recently the Indonesian press has penetrated into the private lives of the celebrities and domestic violence cases are also reported on television. Advocacy by social workers and legal counsel at each stage of the process, in accordance with the law. This clause is rather confusing, since there is no other law specifying the right of crime victims to advocacy and legal counsel. A problem may arise, since social workers and legal counsel are not found in all places. Again, there are no express consequences if this right is not respected. Religious services, whenever the victims need them.

However, it can be said that protection of victims of domestic violence is carefully provided for in this law, for without this protection, the victims may be intimidated or revictimized by the perpetrator, and, in turn, they may not want to participate fully in the process. This protection is not limited to physical protection, even though the protection by the police is the most important issue here, but includes other forms of protection and assistance as well. Of course, mere enactment of the law does not necessarily eliminate domestic violence, for the government is obliged to conduct public education and disseminate information with regard to the content of the law, so that members of society would understand its content and legal consequences. The civil society’s movement to back up this law, recently took on the form of the establishment of a Lawyers’ Alliance to deal with violence against women, and domestic violence in particular (Suara Apik 2005), consisting of various non-governmental organizations focusing on women’s

Victims in the Indonesian criminal justice system 281 issues. Unfortunately, the latest police report reveals that there is an astronomical increase of domestic violence amounting to 14,000 in 2004 and 20,000 in 2005, an increase of 42.86 per cent. Whether this figure indicates a real increase in domestic violence, or an increase in people’s awareness that domestic violence is reportable and punishable misconduct, must be subject to further research.

Victim and Witness Protection Bill In 1999, Sentra HAM, or the Human Rights Study Centre of the University of Indonesia Faculty of Law, in collaboration with the Indonesian Corruption Watch, conducted a small survey on the victim and witness protection issue. This research was initiated because many corruption and violent crime cases were not properly disposed of, due to the lack of evidence, particularly the absence of witnesses in such cases. Ultimately, the research report supported the long-held perception that victims and witnesses were not given due protection or treatment by law enforcement agencies. Hence, Sentra HAM initiated an academic draft, which later developed into a Victim and Witness Protection Bill, which is already in the hands of Parliament today.15 This research report revealed that victims and witnesses were not accorded their rights and that in almost all cases criminal justice personnel showed little sympathy towards the victims – some respondents even claimed that they were treated almost like the perpetrators themselves. This condition stems, among others, from the absence of victim and witness protection in the Indonesian legal system, in addition to the lack of compassion shown to crime victims. Unfortunately, the perception of the general public is not very different, for they perceive being a crime victim as an unfortunate fate which befalls an individual, which has to be dealt with by the individual himself or herself, or within his or her family. Questions addressed to law enforcement officers about victim protection were mostly responded to with a shrug. When asked whether there is a need for legal stipulations to protect crime victims, law enforcement officers replied that such law would not hurt them. Such indifference to crime victims is clearly not a naturally conducive environment for assisting the victims. During the criminal justice process, a lack of appreciation given to crime victims was found at different stages and among different law enforcement personnel. For example, during the investigation stage, when victims report their case, they have to wait for a lengthy period for the police to take down their statements, since the police are busy doing other things. Next, during the trial proceedings, the trial is frequently conducted many hours after the scheduled time, without any notification. Throughout this process, the study found that almost none of the victims were informed of the progress of the case, unless their testimony was needed by court officials. Information about the verdict of the court, was never relayed to the victims, so they

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would not be aware of whether the perpetrator was punished or not, and if punished, what kind of punishment was inflicted. In addition, informants participating in this research study point the finger at the law enforcement officers, who are alleged as being ignorant to the different kinds of victims, especially women and children, who need special treatment. In many cases the victims and witness are questioned lengthily, just like the accused. Since there is no stipulation in the existing law which limits the condition, timing and other issues related to the questioning of victims or witnesses, such derogatory treatment cannot be brought to court as a violation of the rights of the victim/witness. Several important issues and concepts proposed by the draft Bill are: 1

2 3

4 5

6 7

Victims and witnesses of serious crimes (corruption, gross violation of human rights, drugs, corruption, violent crimes) should be specifically protected and assisted by the State. Women and children who are victims of crime should be treated in a special manner, due to their vulnerability. There should be different categories of victims and witnesses, based primarily on the seriousness of the crime and the anticipated different needs of the victims. Protection of victims should comprise both physical and non-physical aspects. The primary obligation to protect victims should be borne by the State apparatus, and failure to meet this obligation should carry legal consequences. An independent body should be established, whose mandate is to handle victims of crime. Criminal sanctions should be stipulated for those violating the rights of crime victims.

Based on various victim and witness protection systems in different countries, various rights that should be accorded to victims and witnesses were recommended by the research team (which also drafted this Bill). Categories of victims and their respective rights should be established. For example, in addition to the ‘regular witnesses of crimes’, other categories of victims could include those who had the following crimes committed against them: •

•

Gross violations of human rights This group of victims usually have little or no access to justice, for perpetrators of this crime are generally those who are in power. Domestic violence The situation of this group of victims is almost similar to the above-mentioned group; they experience victimization by people who are closely related to them, who live together with them, and, due to this, they are inevitably scared of revealing that they have been victimized.

Victims in the Indonesian criminal justice system 283 Each of these different categories requires different considerations. Once these victims become witnesses for the court, they may be categorized according to assumptions regarding their vulnerability as victims, and the probability of their being intimidated or threatened by the perpetrator. If they become witnesses for crimes of corruption, drug-related crimes or gross violations of human rights cases, they would need the following protections: 1 2 3

4

the right to protection (from both physical and psychological threats); the right to secrecy of identity; the right not to present evidence in person in the courts (instead, for example, through teleconferencing or video-conferencing, or by submitting an affidavit); the right to relocation.

The above rights are necessary for these types of crimes as typically, the victim/witness is subordinate to the perpetrators (structurally, physically, economically, psychologically, etc.), thus making their position vulnerable if they testify against the offender before the court. Possible intimidation would diminish the objectivity and thus the value of their testimony, as has been found in several actual cases. Hence, the abovementioned rights should be accorded, in order to have the victim/witness present his or her testimony without restraint (or with the least possible restraint). In particular, for witnesses in crimes of domestic violence, due to their special relationship to the perpetrators, they would need a right to restitution from the perpetrator, and also to have the court issue an injunction against the perpetrator. In order to have their testimony actually considered by the courts, a regulation on victim impact statements need to be put in place. In addition, for victims/witnesses suffering from physical or psychological injury, the research study concluded that the State should provide the following: 1 2 3

medical assistance; psychological consultation; the right to compensation.

None of the above rights have been provided for in the Indonesian Criminal Procedure Code, and, from various discussions, it is very clear that, since these rights are way beyond those stipulated in the present Criminal Procedure Code, many law practitioners consider this reform as too advanced and too radical. But as discussed previously, a few of these rights have been incorporated into different laws, for instance, in Law No. 23 of 2004 on Eradication of Domestic Violence, Government Regulation No. 2 of 2002 on Procedure for Protecting Victim and Witness in Gross Violation of Human Rights Cases and Government Regulation No. 3 of 2002 on Compensation, Restitution and Rehabilitation for Victims of Gross Violation of Human Rights.

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Calls to deliberate on and then enact the Victim and Witness Protection Bill have been made by civil society movements, and last year Parliament established a special task force to deal with this Bill. The government, however, is worried about the financial obligations incurred, as well as the expenses to assist victims and witnesses. Yet, civil society movements argue that it is time for the government to take responsibility for the welfare of this forgotten group in the criminal justice system.

Restorative justice approach While criminal justice systems in other countries have started to implement a restorative justice approach, the Indonesian criminal justice system is still operating under the strict legal regime, and in a more retributive rather than restitutive or restorative manner. The attitude of the criminal justice system should be understood in its historical context, since the whole legal system was inherited from the Dutch colonial government. Understandably, a colonial government implements laws protecting their own interests, while the interests and human rights of the colonized people are not considered paramount. Thus, as mentioned earlier, during the colonial period, the laws applicable to the indigenous population was strikingly different from those applied to the Dutch people living in Indonesia. Yet, there was a blessing in disguise resulting from this discriminatory policy, in terms of the recognized customary law for the Indonesians. In 1918, the Indonesian Criminal Code was enacted. Within this context, a violation could be against the criminal law of the State, or against the existing and recognized customary law in the respective region. If the conduct was purely a violation of the Indonesian Criminal Code, a State judge was responsible for dealing with it. But if the conduct constituted both a violation of the Indonesian Criminal Code and a violation of customary law (hukum adat), and the violation of customary law had its equivalent in the Indonesian Criminal Code, the judge had the authority to inflict customary punishment/sanctions or punishment as stipulated in the customary law. For those violations which were not too serious, a dorpsrechter or a village judge (whose role may be similar to that of a Justice of the Peace in the AngloAmerican system) would be authorized to hear the case and might also suggest reconciliation between parties (Soepomo 1977). In traditional Indonesian legal systems – for there were hundreds of legal systems – these customary laws did not distinguish civil law from criminal law. As such, any breach of law or a dispute may be resolved with a settlement in the form of a payment of compensation or restitution to the other party, restoring the victim to his or her previous condition, making amends to the deities or gods, etc. These types of dispute resolution are still applicable in some areas, such as Bali and Maluku, where the customary law is still adhered to by the local community. Balancing the interests of the public, with that of the individual (the victim and perpetrator alike) seems

Victims in the Indonesian criminal justice system 285 to be the essence of this approach, for its main thrust is to restore the societal equilibrium, instead of merely punishing the perpetrator. The approach taken by Indonesian customary law, apparently, is similar to that of the restorative justice approach. Hence, in summary, should this traditional Indonesian approach be re-implemented within the Indonesian justice system, the probability of its rejection by the community is minimal. Application of the restorative justice approach should take into account the different nuances found in each region, yet achieve the same goal, i.e. easing the pain of the crime victims, making the offender directly responsible to his or her victims and having members of the public take part in dealing with crimes. The most difficult problem in adopting this approach would be in promoting it to criminal justice personnel, who are used to approaching criminal actions from a purely legalistic point of view.

Conclusion It would not be an exaggeration to say that the absence of laws on victim and witness protection, has a significant correlation with the failure of the criminal justice process in punishing those guilty of serious crimes in Indonesia. Various research studies have revealed that a large number of serious cases concluded with the defendant walking freely from the courtroom with a big smile on his face, due to the lack of evidence, i.e. testimony from witnesses. Despite their contributions to the criminal justice system, crime victims remain as faceless parties, whose rights are not legally protected and stipulated in the law. Not surprisingly, very few of them willingly come forward to the authorities to give their testimony. A legal regime giving protection to crime victims has recently been established in Indonesia; yet we still have a very long way to go before we can see this legal regime being fully implemented. The fact that even the judiciary has delivered verdicts which have not displayed compassion towards the rights of crime victims makes it imperative to have a law on victim and witness protection. The importance of this law is closely related to the State’s obligation to protect its subjects and keep them away from any harm due to their participation in the criminal justice process. In order for this objective to be met, we need the commitment of the decision makers, especially members of Parliament, in order to enact a Victim and Witness Protection Law. It is expected that this legal mechanism would assist the criminal justice system to operate speedily, simply, and in a less costly manner – principles which have been reasserted in the new Law No. 4 of 2004, the successor to the 1970 Law on Basic Judiciary. Finally, efforts to implement and revitalize the restorative justice approach should be encouraged, instead of mere reliance on legal mechanisms, whose implementation is in practice can never be completely guaranteed.

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Notes 1 ‘Gross violation of human rights’ is stipulated as a very serious crime in Indonesia (carrying the death penalty), based on the Human Rights Court. These crimes consist of genocide and crimes against humanity, which are defined according to various UN Conventions, as well as The Rome Statute of the International Criminal Court. 2 The enactment of a law alone cannot change social conditions where domestic violent occurs but the implementation of preventive measures is a necessary step to be undertaken. Such measures would primarily be those related to public education and sensitivity training for law enforcement officers. This is because domestic violence is closely related to society’s perception of women, their position in the social structure, and social values related to violence. 3 This replaced the old Dutch-Indies law on criminal procedure (Herziene Indische Reglement). 4 During the colonial period, the population of Indonesia was divided into three categories or classes: the Europeans and those equated with them, the Foreign Easterners (the Chinese and Indians) and the indigenous Indonesians (Article 131 Indische Staats Regeling or the Indies State Regulations contains Law on the State Institutions of the Netherlands Indie, which was promulgated on 2 September 1854, State Gazette 1852–2). A separate set of laws and regulations was applied to each of them. 5 According to information elicited from respondents coming from law enforcement organizations, this provision is hardly used due to various reasons, in particular, administrative reasons; for example, it is deemed not worth the effort of enduring the bureaucracy involved, in order to get such a small sum of money. 6 Translated from the Dutch-Indies Wetboek van Strafrecht. 7 Para 2, Article 18 of Law No. 26 of 2000 on the Human Rights Court, allows the National Commission on Human Rights to establish an ad-hoc team to conduct an inquiry or a pre-investigation into an alleged gross violation of human rights, and this team consists of representatives of the commission and also from segments of society. 8 The time limits are 90 days for investigations, 70 days to commence prosecutions, 180 days for proceedings at the court of first instance, 90 days for appeal court proceedings and another 90 days for proceedings at the Supreme Court level. While such a provision was originally intended to speed up the process, in practice it creates a problem – in particular, due to the difficulties in obtaining evidence and summoning witnesses. Ironically, this provision is silent with regard to the legal consequences of a violation of those time limits. 9 Since 2002, this court has been dealing with alleged cases of gross violations of human rights which occurred in East Timor. From its very beginning, the justice process has drawn a lot of attention, both from the domestic and from the international community. Needless to say, some even doubted that the process could ever take place, since the alleged perpetrators were the Governor of East Timor and several top-notch military and police officials. The lengthy trials were attended by many (including the military and the police, dressed in uniforms, which drew objections from civil society groups who were worried that the former would disrupt the court proceedings), and the judge frequently had to put down the gavel to restore order to the court. Most of the trials ended in conviction and sentencing of the defendants at the court of the first instance, but most of them were acquitted at the Supreme Court level. 10 The Criminal Procedure Code allows a request for a pre-trial hearing for those parties who believe that a legal action within a criminal proceeding is not justifi-

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11 12 13

14 15

able. This hearing is conducted before a single judge, and must be concluded within one week (Article 77). The Human Rights Court, Article 34. In Indonesia, a law must be followed by a Government Regulation in order for it to be implemented, and this regulation contains more technical rules for the law. In many cases, victims/witnesses are reluctant to testify in court, because they have to face the defendant, and they could be fearful for their lives. This provision makes it possible for a victim/witness to give his or her testimony via teleconferencing or video-conferencing equipment, or through a written affidavit. Law No. 23 of 2004 on Eradication of Domestic Violence, Considerations c and d. On 11 August 2006, this Bill was promulgated as Law No. 13 of 2006 by the Parliament, making it enforceable from then on.

References Criminal Investigation Unit. (2004). Annual Report 2003. Jakarta: Indonesian Police Force. Harahap, Yahya. (1993) Kitab Undang-undang Hukum Acara Pidana. Jakarta. Harkrisnowo, Harkristuti (2003) Women Trafficking in Indonesia: A Research Report. Jakarta: Human Rights Study Centre, University of Indonesia. Lamintang, PAF. (1984) Criminal Law Principles. Bandung: Sinar Baru. LBH APIK. (2003) Annual Report 2002 of the Legal Aid Centre for Women. Jakarta: LBH APIK, 2003. —— (2004) Annual Report 2003 of the Legal Aid Centre for Women. Jakarta: LBH APIK, 2004. Mappi. (2003) Synchronizing Law of Procedure for the Human Rights Court. Jakarta: Mappi. Mudzakkir. (2001) Legal Position of Crime Victims in the Criminal Justice System. Faculty of Law, University of Indonesia (dissertation). Naibaho, N. (2004) Trafficking in Children: A Document Study. Faculty of Law, University of Indonesia (thesis). National Law Commission. (2003) Annual Report. Jakarta: National Law Commission. Nissinen, S. (2004) ‘UNODC Support Philippines’ Human Trafficking Initiatives’, Eastern Horizons, Autumn/Winter. Pollard, C. (2000) ‘Victims and the Criminal Justice System: A New Vision’, The Criminal Law Review, January, 5–17. Reksodiputro, Mardjono. (1994) ‘Legal Protection for Victims of Crime’, in Human Right Issues in the Criminal Justice System. Jakarta: PPKPH, 101–109. —— (2006) ‘Victimology and the National Legal Development’. Paper presented at the Seminar at the Faculty of Law and Indonesia Victimology Institute, Indonesia University. Reksodiputro, M. and Mudzakkir (2003) ‘Victimization in Indonesia: An Expensive Lesson’, in Tatsuya. Ota (ed.), Victims and Criminal Justice: An Asian Perspective. Tokyo: Keio University Press, 83–93. Sentra HAM. (1999) Victim and Witness Protection: A Research Report. Jakarta: Sentra HAM. —— (2003) Access to Justice: A Research Report. Jakarta: FHUI.

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Soepomo. (1977) Sejarah Politik Hukum Adat. (A Political History of Customary or Adat Law) Jakarta: Djambatan. Suara Apik. (2005) Journal for Freedom and Justice (vol. 29) Jakarta: Legal Aid Centre for Women. United Nations Office on Drugs and Crime. (2004) Eastern Horizon (Autumn/ Winter). Bangkok: UNODC Regional Office for East Asia and the Pacific.

Legislation and treaties Indonesia Indonesian Criminal Code (1918). Criminal Procedure Code (1981). Law No. 8 of 1981. Law on The Child and Juvenile Court (1997). Law No. 3 of 1997. Human Rights Court (2000). Law No. 26 of 2000. Compensation, Restitution and Rehabilitation for Victims of Gross Violation of Human Rights (2002). Government Regulation No. 3 of 2002. Procedure for Protecting Victim and Witness in Gross Violation of Human Rights (2002). Government Regulation No. 2 of 2002. Law on Eradication of Domestic Violence (2004). Law No. 23 of 2004. Law on The Basic Judiciary (2004). Law No. 4 of 2004 (amending the earlier Law No. 14 of 1970). Draft Victim and Witness Protection Bill (2006). Law No. 13 of 2006.

The Netherlands-Indie Indische Staats Regeling (1854). Promulgated on September 2, 1854, State Gazette 1852–2.

United Nations Convention on the Prevention and Punishment of the Crime of Genocide. (1951) 78 U.N.T.S. 277, entered into force 12 January 1951. Convention on the Elimination of All Forms of Discrimination Against Women. (1979) A/RES/34/180, entered into force 3 September 1981. Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53. Declaration on the Elimination of Violence against Women. (1993) G.A. res. 48/104, U.N. Doc. A/48/49. Rome Statute of the International Criminal Court. (1999) U.N. Doc. 2187. U.N.T.S. 90, entered into force 1 July 2002. Statute of the Internatonal Criminal Tribunal for the Former Yugoslavia. (1993) Resolution 827 of 25 May 1993. Statute of the International Criminal Tribunal for Rwanda. (1994) Resolution 955 of 8 November 1994.

Part III

Specific victims of crime

14 Protecting child victims in Malaysia Norbani Mohamed Nazeri

Introduction Issues concerning child welfare and protection have always occupied a prominent place in Malaysia’s social history. This is evident from the fact that the Malayan Union government1 enacted legislation like The Children and Young Persons Act 1947 and the Juvenile Courts Act 1947 as early as 1947 to address the needs of children and juvenile delinquency respectively. Legislative drafters continued to monitor the social sentiments regarding child welfare, and this concern extended to the protection of women and girls. Three decades later, the Women and Girls Protection Act 1973 was introduced to rescue women and girls2 from vice activities. The Children and Young Persons Act provided for punishment for cruelty to children,3 and the Department of Social Welfare commenced a registry record of child abuse and neglect from as far back as 1947. All these measures however, did not indicate that child abuse was a social problem that deserved to be addressed by the government of Malaysia. For instance, legislation was not available until recently to protect or support victims of abuse. Fortunately, this inadequacy did not continue for long. In the 1980s, there was growing public concern over child abuse, neglect of children, child labour and other related matters concerning children which were brought to the attention of the public by the mass media, seminars and round-table discussions. These civic activities sought to generate social consciousness in order to address the growing problems. Associations like Suspected Child Abuse and Neglect (SCAN) were set up not only to support victims, but also to educate the public of the prevailing situation and to highlight the plight of the victims to relevant governmental authorities. Public outcry over child abuse escalated and reached a pinnacle when the death of baby Bala Balasundran was highlighted in the media. This was a classic case of child abuse resulting from a lack of concern for life. Baby Bala was dumped in a hospital toilet and died on 15 May 1990 from serious injuries (Fatimah Abu Bakar 2000). A few months after the death of baby Bala, on 19 December, the Department of Social Welfare set up a 24-hour

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toll-free hotline, Teledera. The hotline serves to encourage the public to come forward with reports of suspected child abuse cases. The seriousness of Baby Bala’s case caught the government’s attention, and the latter responded with the Child Protection Act 1991 to ensure the care and protection of children in need.

The Child Protection Act 1991 The Child Protection Act 1991 (‘1991 Act’) repealed the Children and Young Persons Act 1947 while maintaining its relevancy with changing time and needs. The 1991 Act was a far-reaching piece of legislation. Section 26 of the 1991 Act made it an offence for a person having the care of a child to abuse the child, and upon conviction, the person was liable to a fine not exceeding RM10,000.00 or to an imprisonment term not exceeding five years, or to both. It also defined various forms of abuse, which included, amongst other things, a child who had been or was at substantial risk of being physically or emotionally injured or sexually abused by his or her guardian. It was also an offence for the guardian, knowing of such injury, abuse or risk, to have failed to protect or to be unlikely to protect the child from such injury or abuse.4 Unfortunately, the penalty was not commensurate with the psychological and emotional trauma that the child was subjected to, and the question of how one prevents a child from being abused is also not addressed. The latter ought to be the governing cause for concern, although the penalty is a stepping stone towards a reduction of such cases. Two other provisions of the 1991 Act served to reduce child abuse cases. A Coordinating Council for the Protection of Children was set up, and its Child Protection Teams were to look into the welfare of children.5 Officers from the Department of Social Welfare were gazetted as protectors, responsible for the protection of victims of abuse. Section 19 of the 1991 Act further provided for mandatory reporting by medical practitioners6 of suspected child abuse to the Protector, or to a person who is either a social welfare officer or a police officer. Failure to report rendered the offender liable to a fine not exceeding RM1,000.00. The identity of the child was also protected from being published or broadcasted over radio or television by Section 41 of the 1991 Act.

The Child Act 2001 In 1995, Malaysia ratified the United Nations’ Convention on the Rights of the Child (UNCRC). A great deal of time was spent in dialogue on how to implement this treaty in order to protect and advance the position of children. In line with the ratification of the UNCRC, the Child Act 2001 (‘2001 Act’) was introduced. The main objective of this Act was to unify laws relating to child care, protection and rehabilitation, and to provide remedial

Protecting child victims in Malaysia 293 measures available to all courts with jurisdiction over children. This Act encompasses three governing pieces of legislation: the Child Protection Act 1991; Women and Girls Protection Act 1973; and the Juvenile Courts Act 1947. With the passing of the 2001 Act, the earlier legislation was repealed. This 2001 Act is a comprehensive piece of legislation which provides avenues and mechanisms for ensuring that the rights of children together with parental and community responsibilities are met. In line with the UNCRC, the 2001 Act defines a child as a person under the age of 18 years old7 and child abuse is also given a wide ambit under the category of a child in need of care and protection. Section 17 of the 2001 Act provides that a child is in need of care and protection if the child: 1

2 3 4 5

is physically or emotionally injured or sexually abused by his parent or guardian or a member of his extended family, or that there is a substantive risk that any of the above may occur; is neglected by the parents or guardian as they are unable or unwilling to provide him with adequate food, care, clothing and shelter; is abandoned; needs to be medically examined or investigated or treated and the parent has refused to do so; or is allowed to beg or carry out any illegal activities.

Section 17(2)(a) of the 2001 Act defines physical injury as a non-accidental application of force, such as a laceration, contusion, abrasion, scar, fracture, bone injury, burn, loss of consciousness, hair or teeth. A child is emotionally abused when he suffers from an impairment of mental or emotional functioning, mental or behavioural disorder, anxiety, depression or aggression. Sexual abuse on the other hand means that the child is a participant or observer in any activity that involves pornographic, obscene material, photograph, recording, film, videotape or performance for the sexual gratification of another person. The 2001 Act also increases the range of people responsible for the child’s welfare, thereby also increasing the protection given to the child. This is due to the fact that most of the time the child suffers the abuse in private. The Department of Social Welfare reported that the main culprits of child abuse are family members of the child, i.e. people who are supposedly responsible for the child’s well-being.8 Unlike the 1991 Act which only made the guardian of the child liable for the abuse, the 2001 Act widens the offence to include (1) parents, including foster parents, who have care, custody or control over the child; (2) guardians which include those who are in charge of or in control over the child; and (3) the extended family, i.e. persons related by consanguinity or adoption. The seriousness of the offence is reflected in the penalty. Under Section 31 of the 2001 Act, anyone found guilty of child abuse or neglect faces a fine of up to RM20,000.00 and/or imprisonment of ten years. In addition, the

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offender may be required to execute a ‘bond’ for good behaviour with sureties and other such conditions as the court thinks fit. If the offender fails to comply with the conditions of the bond, the offender is liable to pay an additional RM10,000 or face further imprisonment of five years. It is a sad but known fact that many children suffer in silence and secrecy. Many cases may not even reach the attention of the authorities concerned. Child abuse occurs in private ‘behind closed doors’, where help is non-existent, and the public has no access to such places (Abd. Hadi Zakaria 1995). The public, including the victims’ neighbours may not be aware of anything that is amiss, or even if they are aware of it, they may assume that it is a family matter that requires no intervention. Furthermore, many people presume that physical punishment inflicted on a child is used for disciplining the child and not for abusing him or her. This is where mandatory reporting plays its part to bring cases of child abuse to the attention of the authorities who have the power to intervene and investigate further. The function of reporting therefore is to identify children who need protection and help, and thereby get them into the system which could provide such protection. Child care and protection should not solely be the responsibility of parents and guardians, as the child’s family members are usually the main perpetrators of child abuse It is also not right to put the responsibility on the authorities alone. Instead, the public collectively should share this responsibility. Realizing this, the 2001 Act imposes a duty on certain members of the public who have information or knowledge of abuse cases to inform a Protector. Protectors may be the director, his deputy or any officer of the Department of Social Welfare appointed by Section 8 of the 2001 Act, and failure to inform constitutes an offence. The 1991 Act only mandated medical officers to inform. Sections 28 and 29 of the 2001 Act has broadened the informants by including child-care providers and members of the family, as well as the child’s extended family. This extension is premised on the belief that these people would be those who should be able to detect abuse if and when it happens to a child. Knowledge of child abuse may exist on four levels (Cobley 1995). Level One is where the case is unknown to anyone other than the victim or the abuser. Level Two is where the case may be known to close relatives or neighbours who do not report it. Level Three is where the case may be unknown to the authorities but known to or suspected by other persons such as teachers or doctors. Finally, at Level Four, cases are known to the authorities. In 1991, the level of reporting was at Level Three. Realizing the danger of not reporting instances of child abuse at Level Three to the authorities, the 2001 Act now mandates family members to report at Level Two. According to Section 2 of the 2001 Act, family members include a parent or a guardian, and a member of the extended family who is a household member. These people should be the first to suspect or know of such abuse

Protecting child victims in Malaysia 295 as they are physically closest to the child. Section 28 of the 2001 Act provides that if a member of the family of a child believes on reasonable grounds that the child is physically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he shall immediately inform a Protector. Failure to inform amounts to an offence and upon conviction, the family member is liable to be released on a bond on condition to be determined by the court. Failure to comply with any of the conditions of the bond would result in an offence and upon conviction, the family member is liable to a fine not exceeding RM5,000.00 or imprisonment for a term not exceeding two years, or to both. Child-care providers are also mandated to inform Protectors of any suspected child abuse cases9 as more and more parents depend on child-care providers to take care of their child while they are at work. A child-care provider is defined in Section 2 as a person who looks after one or more children for valuable consideration for any period of time. Failure to inform amounts to an offence, and upon conviction, the child-care provider shall be liable to a fine of not more than RM5,000.00 or imprisonment for a term of not more than two years, or both. In Malaysia, there are three categories of child-care providers. The first category includes family members or friends to whom parents have sent their child to for the purpose of taking care of the child. These child-care providers are paid by the parents of the child. The second category covers paid workers who work as a maid as well as a child minder to the child in the parents’ or the guardian’s house. The third category covers child minders in certain institutions where the child is sent to be cared for (Jal Zabdi Mohd Yusoff 2002). All three categories are covered in the Act. Where it is appropriate, child-care providers in all three categories have the responsibility to inform a Protector of any suspected child abuse. The new law puts a higher responsibility for medical officers to inform: the penalty for failure to do so by this group is a fine of not more than RM5,000.00 or imprisonment of not more than two years, or both.10 This penalty is greater than that provided by the 1991 Act which was a fine of not more than RM1,000.00.11 Section 27(3) of the 2001 Act also allows the medical officer to take the child into temporary custody until such time where the child is taken into custody of a Protector. The increase in the penalty for non-compliance is evidence of the government’s commitment to the protection of victims of abuse, and of the belief that mandatory reporting should serve as the main mechanism of protection. Section 3 of the 2001 Act re-established the Coordinating Council for the Protection of Children.12 Its role is to design an ‘effective management system’ for the country, recommend services, coordinate the various ministerial resources, develop programmes and render advice to the Child Protection Team. One of the duties of the Coordinating Council is to establish throughout the country groups of persons known as the Child Protection Team for the purpose of coordinating locally based services to families and

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children in cases where children are, or are suspected of being, in need of protection.13 The Child Protection Team consists of three main members: the State welfare director or district welfare officer, a medical officer and a senior police officer. This is a multidisciplinary approach to child protection with the aim of having people with sufficient authority to speak and make decisions on their respective agencies’ behalf. Its membership however, is not restricted to the above, as the team may appoint additional members as it deems fit to assist in their task. Such additional members serve on a voluntary basis, and they include those qualified to advise on relevant indigenous, ethnic, cultural or religious factors. The duty of the Child Protection Team is to assist the social welfare officers by organizing preventive, rehabilitative and supportive services. This includes the setting up of Child Activity Centres in high-risk areas to provide multiple activities according to the needs of the local community. A Protector is a social welfare officer appointed under Section 8 of the 2001 Act. Once there are reasonable grounds to show that a child is in need of care and protection, the child will be taken into temporary custody by the Protector. The child must be produced before the Court for Children within 24 hours for a protection order to be obtained. The child is then placed in a place of safety (usually the children’s home run by the Department of Social Services) with a person having ‘care and control’ over the child. Protectors have a duty to inform the parent of the child of such order. If the child is in need of medical treatment, the Protector can present the child for medical examination.14 A Court for Children is provided for in Section 11 of the 2001 Act. This Court is presided by a magistrate with two advisers, one of whom must be a woman. It should also be in a different building from the other normal courts, and if it were to be in the same building, there should be different entrances. This court hears both child protection and child offender matters. Section 15 of the 2001 Act restricts the media’s coverage of child-related cases. Details of name, address, education institution or photographs which can lead to the identification of the child concerned shall not be published in any newspaper or magazine, or transmitted through any electronic medium. Contravention of this section carries a fine up to RM10,000 or imprisonment for up to six years, or both. The gag order in cases of a child in need of care and protection only applies during the court procedure under Section 15 of the 2001 Act. However, it is also possible under Section 101 of the Subordinate Courts Act 1955 and Section 15 of the Courts of Judicature Act 1964 for a judicial officer to grant suppression orders. Parties acting for the child can make an application to the court as soon as a writ is filed to order suppression of particulars identifying the child. The court has the power to obtain a bond from the parents to exercise proper care and guardianship of the child. The court also has the power to place a child in a place of safety (usually the children’s home) for up to three

Protecting child victims in Malaysia 297 years or until he or she attains the age of 18 or, if the child has no parent or guardian, to place him or her in care or with a foster parent for two years.15 The interest of the child is the paramount consideration in making any of the orders above. Before any order is made, the Court for Children shall take into account reports prepared by the Protector on the family background, medical history and any other report by the social welfare and the medical officer. These reports must be made with care, as they affect the welfare of the child greatly. Section 30(8) of the 2001 Act further allows the court to impose visitation rights on parents whose children are ordered to be placed in a place of safety, i.e. they have to visit the child regularly and failure to do so can render one liable to a fine of up to RM5,000.00. Malaysia has come a long way in its endeavours to protect children and to ensure their best interests. The journey has not been a smooth one, but we have managed to plough on. Prior to 1991, legislation concerning children were nearly non-existent, or were set in a piecemeal fashion. The 2001 Act is enacted precisely to address this deficit. Tremendous effort was put in by those responsible for drafting the new law. They were led by a group of consultants from University of Malaya in 1996. After the preliminary draft of the Act was completed, following initial discussions, a workshop was held on 17 November 1997 by the Malaysian Crime Prevention Foundation to discuss the provisions of the draft. Participants came from the public, nongovernmental bodies and various government departments. Feedback and views from the workshop were considered, and in October 1999, the Child Bill was completed and tabled at the House of Representatives. Unfortunately, Parliament was dissolved before it was tabled at the Senate. It was tabled again in October 2000 and was finally passed on 15 February 2001. Although much effort has been put into the drafting of the Act, we are still miles away from perfection as many gaps still need to be filled. Some examples include the appointment of child advocates to represent children in care proceedings, provisions for child friendly procedures, provisions for participation of the child when his or her placement is determined and provisions for the rehabilitation of abused children. The list is never-ending. We have yet to come up with a perfect or most comprehensive child procedure and law to protect the best interests of a child.

Moving forward Like child abuse, incest was not identified as a social problem in Malaysia historically. Incest only became an offence under Section 376A of the Penal Code on 1 August 2002. The reason behind the introduction was the increasing number of incest cases reported yearly. The Royal Malaysian Police recorded 322 cases of incest between 1998 and 1999, and 459 cases between the year 2000 and 2001.16 Between 1997 and 2000, there were 480 cases of incest involving victims under the age of 19 years.17 According to Section 376A of the Penal Code, a person commits incest:

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Incest is committed where there is sexual intercourse, for example, between a father and daughter, a mother and son or a brother and sister. It was reported that 46 per cent of incest were committed by fathers and 70 per cent of victims of incest involved children under the age of 16.18 The punishment for incest is imprisonment of not less than six years and not more than twenty years, and whipping.19 Victims of incest will be protected according to the 2001 Act20 and they will be taken into custody by Protectors. Incest is another form of child abuse. It is introduced as a separate offence from the offence of rape because incest occurs within the family circle, committed by those whom the victim trusted most, and by persons who should be protecting the victim. The government believes that the impact of incest on the victim is much worse than rape as it betrays family trust and protection.21 To protect victims further, in January 2003, the Royal Malaysian Police set up a Child Protection Unit cum Victim Care Centre. The unit was set up to manage a video recording suite for victims of child abuse. The unit was set up pursuant to the project entered by the governments of Malaysia and Britain on ‘Collaborative Action Towards the Preparation of Children for Court Proceedings’. Police officers are trained in techniques of interview and managing victims of abuse, and those selected to work in this unit must have experience in managing abuse cases and have been in the force for at least four years. The purpose of video recording is to reduce the number of interviews which the child undergoes. It is believed that a child’s out-of-court statement may be the most compelling evidence available. The initial plan was for the tapes to be used in court as evidence. The government is in the process of drafting legislation concerning evidence given by children. Unfortunately the proposed legislation has yet to materialize, and what has been put forward instead to Parliament is an amendment to the Criminal Procedure Code22 on video evidence and use of a live link. Section 272B of the proposed amendment allows a witness, with leave of the court, to give video evidence through a live link video or live television link in any trial or inquiry. The amendment covers not only child victims but also adult victims whom the court thinks will be traumatized or intimidated if they are forced into giving evidence in open court. The amendment was put forward to the House of Representatives in July 2004. The House of Representatives agreed that a special committee is to be formed to look into and examine the provisions and make further recommendations. To date, the amendment has not reached the House of Representatives. For the moment, at least the existence of the Child Protection Unit lends support to victims in

Protecting child victims in Malaysia 299 creating a more conducive environment for victims to speak of their experience. Victims interviewed are between three and sixteen years old, and support is also given to the victims and their parents in transporting them to the unit and providing comfortable surroundings. It is unfortunate that such a long time is being taken for the amendment to be passed. By November 2005, 733 recordings have been made by the unit.23 The unit is facing problems in the storage of the videotapes. Equipment need to be replaced, and more officers need to be trained. A firm commitment is therefore needed from the government. The longer we wait, the more problems will surface.

Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Malaysia gained its independence from the British in 1957. Defined as those below 21 years of age. See Section 3 of the Children and Young Persons Act 1947. Section 2(2) of the 1991 Act. Section 9 of the 1991 Act. Section 2 of the 1991 Act defines a ‘medical officer’ as a medical practitioner in the service of the government, and includes a registered medical practitioner in any teaching hospital of a university. Section 2 of the 2001 Act. See www.jkm.gov.my Section 29 of the 2001 Act. Section 27(2) of the 2001 Act. Section 19(1) of the 1991 Act. Section 3 of the 2001 Act. Section 7 of the 2001 Act. Section 20 of the 2001 Act. Section 30 of the 2001 Act. It is the responsibility of the Department of Social Welfare to ensure a suitable foster parent. Hansard Malaysia, Parliamentary Debate, DR 9 August 2001, p. 99. Ibid, p. 92. Ibid, p. 99. Section 376B of the Penal Code. Section 17 of the 2001 Act. Hansard Malaysia, Parliamentary Debate, DR 9 August 2001. D.R. 16/2004 Criminal Procedure Code (Amendment) Bill 2004. Child Protection Unit, Royal Malaysian Police.

References Abd. Hadi Zakaria. (1995) Protecting Girls, Official Measures Against Underaged Girls Rescued From Moral Danger. Kuala Lumpur: University Malaya Press. Cobley, C. (1995) Child Abuse And The Law. London: Cavendish Publishing Limited. Fatimah Abu Bakar. (2000) ‘Role of the Media in Child Protection’, in Proceedings of the 5th National Conference on Child Abuse and Neglect, Malaysian Association for the Protection of Children and Malaysian Council for Child Welfare.

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Jal Zabdi Mohd Yusoff. (2002) ‘Akta Kanak-Kanak 2001: Tanggungjawab Untuk Memaklumkan’, in Siti Zaharah Jamaluddin, Norchaya Talib, Jal Zabdi Mohd Yusoff (eds), Siri Undang-Undang Mimi Kamariah, Akta Kanak-Kanak 2001. Kuala Lumpur: Penerbit Universiti Malaya.

Legislation and treaties Malaysia Children and Young Persons Act (1947). Act 232. (Revised 1980). Juvenile Courts Act (1947). Act 90. Subordinate Courts Act (1955). Act 92. (Reprint 1999). Courts of Judicature Act (1964). Act 91. (Revised 1972). Women and Girls Protection Act (1973). Act 106. Child Protection Act (1991). Act 468. Penal Code (1997). Act 574. Criminal Procedure Code (1999). Act 593. Child Act (2001). Act 611. Hansard Malaysia, Parliamentary Debate (2001). House of Representatives. Criminal Procedure (Amendment) 2004.

United Nations Convention on the Rights of the Child. (1989) A/RES/44/25, entered into force 2 September 1990.

15 Responses to victims of domestic violence in the Philippines Elizabeth Aguiling-Pangalangan

Evolution of laws on violence against women and children Family members must be allowed the opportunity to discover how best to support and nurture each other with the least interference and external rules. The 1987 Philippine Constitution recognizes “the sanctity of family life” and imposes upon the State the duty to “protect and strengthen the family as a basic autonomous social institution” (Article II, Section 12). It has been argued that to trammel the family’s autonomy and disregard its privacy, in even the smallest measure, would permit the State to unnecessarily wield authority over it. Though relationships among family members are, by and large, a private matter, this standard has been used to reinforce the erroneous belief that all events that transpire within the family should be dealt with exclusively in the privacy of one’s home. Consequently, incidents of domestic violence, which are not a recent phenomenon nor are they isolated occurrences, have been shielded from State intervention and public scrutiny. A narrow reading of the doctrine of family privacy imposes an inflexible rule that ignores the reality that some homes have ceased to be havens and that a person whose rights are violated by a member of his or her family needs State protection as much as any individual. Patriarchal societies have codified into law the husband’s power, as head of the family, to discipline his wife and children. The “rule of the thumb” guided courts in eighteenth-century England as to the extent to which a husband could chastise his wife. This rule tolerated the husband’s acts of punishing his wife with a stick that was not bigger than his thumb. Only when the stick was larger was he found to have exceeded the “moderate manner” of chastisement he had the lawful right to use (Peck 1993). In the United States, court decisions rendered in the 1850s upheld the authority of the husband “to use toward his wife such a degree of force as necessary” and further held that courts could “not interfere with the family government in trifling cases” (Peck 1993). This indecision, if not outright refusal, of public officers to get involved in what they considered a private concern continues to modern times. In the 1984 US case of Thurman v. City of Torrington (1984), a resident of the city sued its police force for violating

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the equal protection clause by repeatedly ignoring her calls for help on threats upon her life and the life of her child made by her estranged husband. The city argued that the police did so as “a means of promoting domestic harmony by refraining from interference in marital disputes” (p. 1529). Wisely, the court held that “[a] man is not allowed to physically abuse or endanger a woman merely because he is her husband. Concomitantly, a police officer may not knowingly refrain from interference in such violence and may not automatically decline to make an arrest simply because the assaulter and his victim are married to each other” (p. 1528). In the case of Warren v. State (1985), the court, aware that marital rape is characteristic of an abusive marriage, affirmed that a married woman does not give up her right to State protection from the violent acts of rape and aggravated sodomy performed by her husband. In the Philippines, both the 2005 police and social welfare records show that physical injuries/battering and rape are the most common types of reported cases of violence in the home. One in every three reported cases to the police was battering/physical injuries while 17.2 percent were rape cases. Similarly, the social welfare department served a total of 1217 cases of physical abuse/battering or 28.8 percent, while sexual abuse cases accounted for 6.8 percent (National Commission on the Role of Filipino Women 2006). The National Statistical Coordination Board reported 9903 cases handled by the Philippine National Police Women’s Desk (National Statistical Coordination Board 2003; see also National Commission on the Role of Filipino Women 2004). However, these numbers are merely the tip of the iceberg since it fails to provide an accurate picture of domestic violence that should include unreported cases.

Legal basis in international and domestic laws International law The United Nations (UN) Charter and the Universal Declaration of Human Rights passed on December 10, 1948, expressly recognized the equality of all human beings as an imperative of non-discrimination on the basis of sex. These precepts have since then been re-affirmed in other international covenants like the International Covenant on Civil and Political Rights. In 1979, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Convention explicitly regarded the commission of discriminatory acts against women as an international issue that needed immediate attention and action. Subsequently, the CEDAW Committee in 1992 passed a General Recommendation that prohibited not just gender-based discrimination but, more specifically, gender-based violence. The Declaration on the Elimination of Violence against Women, adopted in 1993, prescribed the steps that each Member State should take to elimi-

Domestic violence in the Philippines 303 nate all forms of “gender-based violence.” Its preamble states that that “violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifies their enjoyment of those rights and freedoms.” It draws a direct link amongst the proliferation of violence against women, the invalidation of their human rights and the failure of the normative system in societies to protect these rights (AguilingPangalangan 2003). Article 4 of the Declaration requires States Parties to “condemn violence against women” and “pursue by all appropriate means and without delay a policy of eliminating violence against women.” With regard to children, the UN adopted the Convention on the Rights of the Child (CRC) on November 20, 1989. Pursuant to the Universal Declaration of Human Rights that children are entitled to special care and assistance, the CRC identified rights of children as being indivisible and interdependent, and at the same time, separate and distinct from the rights of adults, even those of women; hence, the need to adopt a separate convention in this respect. In the CRC, State Parties pledged to take appropriate measures to protect the child from any form of physical or mental violence inflicted by the parent, guardian or any person who has care of the child and to ensure that no child shall be subjected to cruel, inhuman or degrading treatment or punishment. The Philippines is a signatory to both the CEDAW and the UN CRC. As such, it is committed to take steps and enact measures that will ensure the preservation and protection of both women and children against all forms of violence. The International Conference on Population and Development (1994) plays a crucial role in shaping the discourse on violence against women. It identifies violence against women as one of the elements hazardous to reproductive health. It recognizes that “equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the physical integrity of the human body, require mutual respect . . . ” (para. 7.34). Governments are thus urged to hold “active and open discussions of the need to protect women and children from any abuse, including sexual abuse, exploitation, trafficking and violence.” The Fourth World Conference on Women (Beijing Declaration and Platform for Action) recognizes that the status of women has advanced but that “progress has been uneven, inequalities between women and men have persisted and major obstacles remain, with serious consequences for the well-being of all people” (para. 5). One of its grimmest outcomes is violence against women, which it defines as: Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. (para. 114)

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The international community, governments, non-governmental organizations and private groups as well are “called upon to take strategic action” in this critical area. In the Philippines, the National Commission on the Role of Filipino Women (NCRFW) has a specific mandate to monitor and assess national implementation and compliance with international treaties and policy documents on women such as CEDAW and the Beijing Declaration and Platform for Action. It is part of a multi-agency mechanism to ensure monitoring and implementation of Philippine’s international obligations. The NCRFW is a member of a working group on economic, social and cultural rights within the Coordinating Committee on Human Rights which oversees implementation of CEDAW and other treaties, and prepares government responses to issues involving economic, social and cultural rights, part of which is the protection of women’s rights. In addition, our Commission on Human Rights (CHR), established in 1987, monitors the government’s observance of international human rights treaties. In coordination with the CHR, the inter-agency Coordinating Committee on Human Rights, created in 1997, keeps track of, and provides information about, human rights violations that were committed in the country and prepares comprehensive reports for submission to UN human rights bodies. Philippine laws and policies The reference to women and children in the Declaration of Principles of the 1935 Philippines constitution is limited to the protection the State must afford working women and minors while the 1973 Philippines constitution recognizes the role of the youth, but not of women, in nation-building. It is only in the 1987 constitution that that we see overarching State policies on women and children. The State now recognizes the vital role of the youth (Article II, Section 13) and of women in nation-building and the duty to ensure the fundamental equality before the law of women and men (Article II, Section 14); the need to adopt a comprehensive approach to health development which gives priority to the needs of the underprivileged, women and children (Article XIII, Section 11); its duty to provide safe and healthy working conditions for working women (Article XIII, Section 14); and the right of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development (Article XV, Section 3). The Philippine Congress has adopted laws that protect women and children against various forms of violence. One vital piece of legislation is RA 8369, known as the Family Courts Act of 1997, which established family courts and gave them exclusive original jurisdiction to try and decide cases of “domestic violence against women and children.” It is interesting to note that family courts were created some seven years before the passage of a law defining with particularity the acts that constituted domestic violence.

Domestic violence in the Philippines 305 RA 8369 merely gives a general definition of cases of domestic violence against women as those: which are acts of gender-based violence that result in physical, sexual or psychological harm or suffering to women; other forms of physical abuse such as battering or threats and coercion which violates a woman’s personhood, integrity and freedom of movements. Another significant law is Executive Order 123, which created the Bureau of Women’s Welfare tasked with “promoting women’s welfare, with special attention to the prevention and eradication of exploitation of women in any form.” Likewise, the Philippine National Police was reorganized by The Philippine National Police Reform and Reorganization Act of 1998 (RA 8551), and women’s desks were established to focus on cases of abuses against women and children, among others. The gender and development budget policy, mandated by the Women in Development and Nation Building Act (RA 7192), directed all government agencies to allocate at least 5 percent of official development assistance funds received from foreign governments and multilateral organizations for programs and activities for women. The 1998 General Appropriations Act expanded this by requiring all government agencies to reserve a minimum of 5 percent of their total appropriations, for gender and development programs.

The Anti-Violence Against Women and Their Children Act The development of laws pertaining to anti-violence against women and children reflects the disparity between the power exerted by males and females. The law serves as an equalizer by protecting vulnerable members of society comprised of women and children, from abuses or excesses committed against them. The underlying principle for the Anti-Violence Against Women and Their Children Act (“Anti-VAWC Act”) of 2004 is “to protect the family and its members, particularly women and children from violence and threats to their personal safety and security” (Section 2). Its policy declaration underscores the need to exert “efforts to address violence committed against women and children” (Section 2). The guiding principle of the new law is the protection of the family unit, and it does so by penalizing acts of violence against women and children that make up the family unit, or who potentially make up a family unit, as in the case of sexual and dating relationships. The inclusion of the latter is a welcome departure from Philippine Civil Code provisions that are clearly anchored on Catholic teachings that define family and extends State sanctioned safeguards only to relationships formed within a valid marriage. The Anti-VAWC Act aims to address, prevent and punish all forms of

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violence – i.e., physical, sexual, psychological, and also, economic abuse – through the active involvement of a wide institutional network that includes the local government units (down to the barangay level), police force, judiciary, executive offices (such as the Department of Social Welfare and Development and the Department of Justice, among others), with the support and participation of non-government entities. Women and children who are victims of violence are entitled to protection orders issued against their offenders. Since the commission of violence is considered a “public crime” under Section 25 of the Act, offenders go through the regular court processes, and those found guilty are meted out appropriate penalties by way of fines and/or imprisonment on top of paying damages. A study of the Revised Penal Code (RPC) passed in the 1950s, and the Anti-VAWC Act reveals that most acts designated by the new law were already punished under the RPC. The new law is, however, not a superfluity given that it contemplates how harm caused by the violent conduct of one of the parties is magnified in an intimate relationship. Likewise, it penalizes the aggressor not just for the actual injurious consequences of certain acts but for also the likelihood of such results coming about. The Anti-VAWC Act recognizes that the environment of vulnerability is exacerbated within an intimate relationship. Despite the violence, the wife may hesitate to leave the husband given that she may be physically unable to defend herself from his abuse and is frightened that her attempt to leave would only provoke another violent episode. Similarly, she may have become emotionally or economically dependent on him for support. At the risk of stating the obvious, the cycle of violence inherent in the Battered Woman’s Syndrome plays a crucial role in the wife’s ability or inability to decide. After the initial stages of “tension-building” and “acute battering,” the third distinct and repeated stage is marked by “extreme contrition and loving behavior by the battering male” (State v. Kelly 1984: 193–4). Due to the profuse pleas of forgiveness, promises of undying love and dramatic determination to reform himself, it is not unusual for the wife to stay, optimistic that the husband’s demeanor would truly improve and their relationship become peaceful, if not happy. Dating relationships, which contemplate situations where “the parties live as husband wife without the benefit of marriage or are romantically involved over time and on a continuing basis” also fall within the ambit of the Anti-VAWC Act (Section 3(e)). A possible reason for its inclusion is that the vulnerability as well as the psychological and emotional dependence found in marriage is present as well in dating relationships. The Anti-VAWC Act provides a comprehensive definition of “violence” as: Any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person

Domestic violence in the Philippines 307 has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. (Section 3) Significantly, the law contemplates violence an “act or series of acts” committed by “any person.” Two points are noteworthy here. First, the law includes even a single act of violence. Laws and courts generally do not contemplate one violent incident as constituting a ground for divorce or legal separation on the basis of cruelty. To illustrate, Article 55 of the Family Code requires “repeated physical violence or grossly abusive conduct” to be a ground for legal separation. Clearly, what is punishable in the Family Code is a course of conduct which often refers to a pattern of behavior constituting at least two acts, which evidence a continuing purpose. This narrow view disregards the intensity or gravity of the harm inflicted and instead uses the number of attacks as the only gauge of its severity. Under the Anti-VAWC Act, there is no need to wait for the batterer to get “three strikes” before he is out. Second, the law also refers to the aggressor as “any person” which means that even a woman with whom the other woman has or had a sexual or dating relationship would fall under the Act. From this definition, the AntiVAWC Act may also extend to those in violent lesbian relationships. It is unfortunate however, that this reading is muddled with the use of the pronoun “his” and “he,” thereby assigning a specific gender to the assailant. A central change introduced by the Anti-VAWC Act is its characterization of violence as a public offense, which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. The law further provides that victim-survivors found by the courts to be suffering from Battered Woman Syndrome do not incur any criminal or civil liability notwithstanding the absence of any of the elements of self-defense under the Revised Penal Code. Self-defense absolves a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even if this belief was later proven wrong. In the American case of State v. Kelly (1984), the wife claimed that she stabbed her husband in self-defense, believing he was about to kill her. The court held that the expert testimony offered was directly relevant to her state of mind, one of the critical elements at the time of the stabbing. The doctor’s testimony established the truthfulness of her stated belief that she was in imminent danger of death. The exemption for a woman suffering from Battered Woman Syndrome from all criminal and civil liability applies even in the absence of prior unlawful aggression perpetuated on the woman. The prerequisite of

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unlawful aggression is now replaced by violence as defined in the AntiVAWC Act. This provision is an obvious reaction to the case of People v. Genosa (2004), decided prior to the passage of the Anti-VAWC Act, which held that “unlawful aggression is the most essential element of self-defense. It presupposes actual, sudden and unexpected attack – or an imminent danger thereof – on the life or safety of a person.” In that case, the court also declared that: Impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendant’s use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger. Considering such circumstances and the existence of Battered Women’s Syndrome, self-defense may be appreciated. The court reiterated that “aggression, if not continuous, does not warrant self-defense. In the absence of such aggression, there can be no self-defense – complete or incomplete – on the part of the victim.” With Section 26 of the Anti-VAWC Act, a battered woman suffering this syndrome has no burden of proving the justifying circumstance of self-defense. In addition, the law also prevents criminal, civil, or administrative liability from attaching to any person, private individual, police authority or barangay official who responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim. This is crucial to the enforcement of the Anti-VAWC Act considering that Article 26 of the Civil Code allows the institution of a civil action for damages against a person who pries into the privacy of another’s home or meddles in another’s private life or family relations. Without the explicit exception in the Anti-VAWC Act, any person who comes to the aid of a victim will be courting a civil suit. Queries can be raised as to the constitutionality of this Act. However, one must place this law in the context of current social and legal structures. There exists a State interest in passing the Anti-VAWC Act that is to put an end to gender-motivated violence. Although the law is penal in character, its true nature is preventive and protective. It imposes penalties and restrictions to emphasize that victimization of one’s significant other jeopardizes not only that individual’s health and safety but that of the public as well. Further, the 1987 Philippines Constitution unequivocally imposes on the State the duty to provide policies, strategies and mechanisms to enable women to reach their full potential and actively participate in nation building by eliminating the disparate power relationship between men and women.

Laws protecting children Specific to children, the Philippine Congress enacted Republic Act No. 7610, otherwise known as The Special Protection of Children Against Child

Domestic violence in the Philippines 309 Abuse, Exploitation and Discrimination Act (“Child Abuse Law”) in 1991. The law throws a wider safety net over children, including those in especially difficult circumstances, children in armed conflict situations, and those belonging to indigenous communities. The Child Abuse Law also provides strict penalties for those who commit acts of abuse or violence, such as prostitution, trafficking and employment of children. It was enacted to strengthen State policy “to protect and rehabilitate children gravely threatened or endangered by circumstances which affect or will affect their survival and normal development and over which they have no control” (Section 2). It allows the State to intervene on behalf of the child: When the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same. (Section 2) Child abuse, as defined in the Child Abuse Law refers to the maltreatment, whether habitual or not, of the child which includes any of the following: 1 2 3 4

psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; unreasonable deprivation of his basic needs for survival, such as food and shelter; or failure to immediately give medical treatment to an injured child resulting in serious impairment of his or her growth and development or in his or her permanent incapacity or death.

Section 27 enumerates those who may file a complaint on cases of unlawful acts committed against children. They are the: 1 2 3 4 5 6 7

offended party; parents or guardians; ascendant or collateral relative within the third degree of consanguinity; officer, social worker or representative of a licensed child-caring institution; officer or social worker of the Department of Social Welfare and Development; barangay chairman; or at least three concerned responsible citizens where the violation occurred.

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As in the Anti-VAWC Act, this provision allows any concerned citizen such as neighbors and local officials to file the complaint. No longer will the child have to suffer in silence and bear the sole responsibility of saving himself or herself. The Child Abuse Law asserts that the welfare of the child is the paramount consideration in matters regarding his care, custody, education and property. Parents are directed to provide the child with adequate support and should the parent fail to do so, the State shall extend its assistance and protection to the child. Thus, in cases of abuse, the child is immediately placed under the protective custody of the Department of Social Welfare and Development (DSWD) (Section 28). The parent and those exercising parental authority, such as guardians and heads of institutions having care and custody of the child, suffer criminal liability in the event that the child is abused. The law takes a novel view and regards the welfare of children as the responsibility of the entire community. As such, Article 87 of the Child and Youth Welfare Code directs every barangay council to organize a local Council for the Protection of Children to draw and implement plans for the promotion of child welfare. Furthermore, Article 166 of the same code requires all hospitals, clinics and private physicians to report within 48 hours of knowledge of any case of maltreatment, abuse or exploitation of the child to the provincial fiscal or local Council for the Protection of Children or the nearest unit of the DSWD. Reaffirming established government policies, Executive Order No. 275 was signed in 1995, creating a committee for the special protection of children from all forms of neglect, abuse, cruelty, exploitation, discrimination and other conditions prejudicial to their development.

Legal and other remedies Women In the case of People v. Genosa (2004) the Supreme Court recognized in an en banc resolution that the Battered Woman Syndrome exists as a posttraumatic stress disorder and allowed a partial re-opening of that case to admit evidence of the presence of the said disorder, and to determine how it affected the conscious will of Genosa. In January 2004, the court declared that the syndrome might qualify as a justifying circumstance, provided some conditions are present. The case displayed the legal artistry of the justices and the limits of statutory construction in an effort to accommodate Battered Woman Syndrome. The court, however, noted that that the lack of a law on domestic violence does not allow it to go further, as the court can only do what the law empowered it to do. With the passage of the Anti-VAWC Act, the legal field in the area of domestic violence has undergone significant transformation. Not only does the law now give more protection to casualties of domestic violence, but

Domestic violence in the Philippines 311 also recognizes Battered Woman Syndrome as a justifying circumstance. Thus, the law considers the batterer who is eventually killed by his wife as the aggressor, and the battered wife, the victim. More changes to the family law and civil procedure can be anticipated as a consequence of the Anti-VAWC Act. The Family Code has increased the number of grounds for legal separation to include physical violence and abusive conduct as well as retaining the former ground of “attempt by the respondent on the life of the petitioner.” However, except for the case of Goitia v. Rueda (1916), there are very few cases on legal separation based on the ground of marital violence. I posit two explanations: first, such cases no longer reach the Supreme Court, but are threshed out in the lower courts, or, second, that there is an increasing preference for filing suits for declaration of nullity under Article 36 of the Family Code, instead of mere legal separation. An example is the case of Tuason v. Court of Appeals (1996), where the lower court’s decision granting a decree of nullity of marriage due to psychological incapacity based on the husband’s physical abuse of his wife, was upheld. An interesting but complicated case is that of Sy v. Court of Appeals (2000) where Filipina Sy filed a criminal action for attempted parricide against her husband. She testified that in the afternoon of May 15, 1988, she went to the dental clinic owned by her husband but operated by his mistress, to pick up her son. While she was talking to her son, the boy ignored her and continued playing with the family computer. Upset, Filipina took the computer away from the boy and spanked him. At that instance, her husband, Fernando, pulled her away from their son and punched her in the different parts of her body. Fernando choked her when she fell on the floor, and released her only when he thought she was dead. Filipina suffered from hematoma and contusions on different parts of her body as a result of the blows inflicted by her husband. Although this was not the first time Fernando maltreated her, the trial court of Manila convicted Fernando only of the lesser crime of slight physical injuries, and sentenced him to 20 days’ imprisonment. Filipina later filed a new action for legal separation against Fernando on the following grounds: (1) repeated physical violence; (2) sexual infidelity; (3) attempt by respondent against her life; and (4) abandonment of her by her husband without justifiable cause for more than one year. The court granted the petition on the grounds of repeated physical violence and sexual infidelity, issued a decree of legal separation and awarded her custody of her daughter but not her son. Not content, Filipina filed a petition for the declaration of absolute nullity of her marriage to Fernando on the ground of psychological incapacity. She asserted that the earlier judgment for legal separation based on Fernando’s violent acts was proof of his psychological incapacity that existed at the time of their marriage but which manifested itself later. This time, the court found that the couple had been living together without incident for ten years before the disturbances in their

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relationship came about, and dismissed the case. Herein lies the limitation of nullity of marriage as a civil remedy for domestic violence. For the suit to prosper it must be shown that the husband’s violence is evidence of his psychological incapacity to fulfill essential marital obligations of love, mutual respect and fidelity and that this condition existed from the time of the celebration of the marriage. Its juridical antecedence, incurability and gravity must be established (Pineda 1992). Nevertheless, the Sy case strengthens my observation that legal separation suits based on marital violence have become infrequent since declaration of nullity of marriage has become more available and appealing. This is so in view of the fact that a decree of nullity severs marriage bonds and allows erstwhile spouses to remarry, as opposed to legal separation, which keeps the marriage bonds unbroken. The State interest in the preservation of the family is epitomized in the law that requires members of the family to show proof of earnest efforts to compromise before civil suits against each other could prosper. Article 58 of the Family Code requires a cooling-off period of six months from filing before the court shall hear a case for legal separation and Article 56 mandates that “no legal separation may be decreed unless the court has taken steps toward reconciliation.” Unfortunately, no express exception is made for the grounds for legal separation which center on violence perpetrated on the party by his or her spouse. When efforts to compromise fail, the court shall consider the possibility of amicable settlement or of a submission to alternative modes of dispute resolution. Section 14 of the 2002 Rule on Declaration of Nullity of Void Marriages and Annulment of Voidable Marriages allows the judge to refer the case to a mediator or may mediate by him- or herself. Compromise agreements made and signed by the parties during mediation or pre-trial are subject to the court’s approval but are immediately executory. Only when mediation is unavailable or unsuccessful may the court proceed to the pretrial conference. The Anti-VAWC Act clarifies that in cases of legal separation where violence is alleged, the requirement of efforts to compromise does not apply. Instead, the court shall proceed to the main case and its other incidents. There is no need to await a “cooling-off” period or amicable arbitration of six months before the court may hear the case. Reconciling the spouses involved in the “cycle of violence” is counterproductive to the relationships in that family and separation of the two spouses should be done in the earliest time possible. Compromise and mediation have no place here, lest it give the impression that violence committed against a person in an intimate or filial relationship is a matter that the parties can negotiate about. The determinants of power are dominance, decision-making and the relative levels of resources and as a result, abuse takes place when the stronger takes advantage of the weaker (Frieze and

Domestic violence in the Philippines 313 Browne 1993). Although alternative dispute resolution is available in civil cases, it has no place in cases of violence against women and children. Children In the case of People v. Cloud (1996), Robert Cloud was convicted of parricide for the death of his son, three-year-old John Albert. The case arose from an incident when the offender and his grandmother rushed the victim, covered in dried blood, to the hospital. When the doctor pronounced the child dead, the grandmother started screaming at the father, claiming that he killed his own son by beating him up several times. A concerned citizen who witnessed this incident at the hospital approached a civil liberties organization that, after investigation, discovered that the offender had left his home in Manila and taken his entire family with him. Thereafter, counsel for the organization requested for the exhumation of the victim’s body. The National Bureau of Investigation submitted an autopsy report finding evidence of physical abuse. On the strength of such report, a warrant of arrest was issued against Cloud. The court found the accused guilty beyond reasonable doubt of the crime of parricide and sentenced Cloud to suffer the penalty of reclusion perpetua. This case is an excellent example of close cooperation between various NGOs bringing about the prosecution of offenses against children. Moreover, the participation of a concerned citizen can go a long way in helping to bring justice to the victim and his family. Government agencies should follow this case as a model on how to implement the law and various State policies.

Government and community responses Victims of domestic violence are entitled to support services and access to all legal remedies provided for under the Anti-VAWC Act, the Child Abuse Law, the Family Courts Act, the Revised Penal Code, the Child and Youth Welfare Code, the Family Code and other special laws. The Anti-VAWC Act safeguards the rights of victims of domestic violence and grants additional remedies not only by way of strict adherence to procedure but also by giving attention to the respect and dignity with which government officials should treat them at all times. It clarifies that a victim suffering from Battered Woman Syndrome is not disqualified from having custody of her children, and in no case may the custody of the children be given to the perpetrator. The Child Abuse Law has also established safeguards for the rights of children who are victims of domestic violence. It identifies the persons authorized to file a complaint and those who may have protective custody of the child. It imposes a confidentiality clause on them so that the name of the child is withheld from the public.

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Government interventions The Philippine National Police Reform and Reorganization Act of 1998 required the formation of women’s desks in all police stations throughout the country to administer and attend to cases involving crimes against chastity, sexual harassment, abuses committed against women and children and other similar offenses. The Philippine National Police (PNP) records show that there were a total of 9480 cases of violence against women reported in 2000 while the National Statistics Coordination Board reported 9903 cases handled by the PNP women’s desk in the same year (De Vela, Roy-Raterta, Aguiling-Pangalangan 2005). The National Commission on the Role of Filipino Women (2004), in its 2004 report, identifies physical abuse and wife battering as constituting from 58 percent to 62 percent of cases of violence against women. This does not take into account other victims of domestic violence who, by choice or circumstance, did not or could not report the violent attacks. Oftentimes, the number of reported cases is only a fraction of the actual number of domestic violence incidents. However, although there are women’s desks, the police officers who receive the complaints or respond to the scene of a family disturbance may lack the necessary gender sensitivity, as well as knowledge of the pervasiveness, seriousness and patterns of domestic abuse, and this could render the established women’s desks ineffectual. The Rehabilitation Unit of the Department of Social Welfare and Development operates a 24-hour Crisis Intervention Unit, which receives walk-in, referred and rescued individuals and families in crisis situations. It also serves as a venue in providing integrated services that include protection and provision of immediate psychosocial services. The complete range of services including medical, legal and psychiatric interventions are provided as well as a limited number of temporary shelters staffed by social workers who are trained in counseling. To lend a hand to the department, local government units are tasked with providing support in terms of counseling, rehabilitation programs and livelihood assistance. The Department of Health must also provide medical assistance to victims. Barangay officials and law enforcers have the duty to respond immediately to requests for assistance or protection of the victim and are thus empowered to confiscate any deadly weapon in possession of the perpetrator or is in plain view and arrest the suspected perpetrator when causing any acts of violence or when there is imminent danger to the life or limb of the victim. The transfer of the victim to a safe place, clinic or hospital, and assistance in removing her possessions from the house are among their other urgent responsibilities. Last, in Section 43 of the Anti-VAWC Act, the victim is entitled to paid leave in addition to other paid leave under the Labor Code. Any employer who prejudices the rights of the victim becomes liable under Article 288 of the Labor Code. It provides that any violations shall be punished with a fine

Domestic violence in the Philippines 315 of P1000–P10,000, and/or imprisonment of between three months and three years. It is noteworthy that the Anti-VAWC Act extends government assistance to offenders, in order to make them realize that they have wronged people they were supposed to love and by this, harmed their victim as well as wounded the community. Section 41 directs the DSWD to provide rehabilitative counseling and treatment to perpetrators, including psychiatric treatment or confinement if necessary. To prevent the batterer’s escape, courts expedite the issuance of a hold departure order in cases prosecuted under the Anti-VAWC Act. Needy victims are exempted from payment of docket fees and other expenses and provided free legal assistance. The waiver of fees is likewise extended to non-indigent victims when there is immediate necessity due to imminent danger or threat of danger in applications for a protection order. The law makes it the duty of prosecutors and court personnel to inform the victim of these privileges. The Anti-VAWC Act directs barangay officials and courts to conduct hearings on applications for protection orders that shall take priority over all business or proceedings. Barangay protection orders shall be issued on the same day it is applied for and may be granted ex parte. Upon its expiration after 15 days from issuance, the victim may file for a temporary or permanent protection order from the Family Court. The courts can grant additional reliefs such as granting custody of the children to the petitioner, directing possession and use by the petitioner of personal properties regardless of ownership, ordering the respondent to stay away from the petitioner, her home or office and directing the respondent to give monetary support. The law also authorizes the court to impose a bond to keep the peace on any person against whom a protection order is issued. Community-based support While there were support groups for women and children victims before the Anti-VAWC Act became law, these were spontaneous responses to fill in the lacuna in national programs. Laws showed very little concern for the state of mind of the victim. The victim’s right to security was not sufficiently addressed, except with regard to the Anti-Rape Law and the Child Abuse Law. No special thought was given to the situation that is atypical for most crimes but endemic in cases of violence against an intimate partner – that the victim shares the same house as the perpetrator. Now that the Anti-VAWC Act makes domestic violence a public crime that may be prosecuted upon a complaint filed by an individual with personal knowledge of such incident, it has paved the way for support and advocacy groups to intervene on behalf of victims. The victim herself is not required to obtain a barangay protection order. On the other hand, when a victim requests for assistance, this should be immediately reported to

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government offices such as the DSWD or the Social Welfare Departments of local government units and to accredited NGOs as well. Failure to do so exposes these officers to fines and criminal and civil liabilities. These provisions thus strengthen the role of the community in ascertaining that gendermotivated violence ceases to exist. The contribution of NGOs is significant. These community-based programs aim at increasing the people’s awareness through informal education, participatory meetings and consultations where the communities are involved in decision-making as well as networking with officials and staff of the local and national governments. The DSWD has also launched the National Family Violence Prevention Program, a community-based strategy of preparing family members to protect themselves against violence and to resolve conflicts. It mobilizes the communities and inter-agency structures to consolidate efforts in support of families at risk or already exposed to family violence. Our government renders assistance to victims, mainly through the DSWD. One area of concern is that, though there are several NGOs which give aid to abused women and children, the government has not been able to effectively coordinate the activities of these institutions. Since the funding of the various civic groups does not come from the government, the DSWD has no authority to direct their programs. As a result, there is an inefficient delivery of support services to victims, leading to the lack of awareness on the part of the victims as to what remedies and services are available to them. This can be remedied by providing direct financial assistance to NGOs or by closely cooperating with these groups. By way of comparison, under the Violence Against Women Act (VAWA) of the United States, support services for victims of violence are, for the most part, provided by civic or non-governmental organizations. The role of the federal government is to provide funding for specific projects, which it will grant to qualified institutions. Other support The University of the Philippines-Philippine General Hospital (UP-PGH) women’s desk was formed in response to the Anti Rape Law of 1997. The women’s desk is a crisis center for women survivors of violence. Its services include paralegal counseling not only for the victims, but also for the doctors who will serve as expert witnesses. Other services include intervention such as individual and group therapy, crisis counseling and stress management, advocacy efforts and production of materials for dissemination on issues relevant to abuse of women, personal advocacy for the individual and networking with other concerned agencies. The University Center for Women’s Studies in the University of the Philippines offers crisis counseling service that is supervised by a clinical psychologist, and staffed by trained female volunteer counselors. Through

Domestic violence in the Philippines 317 its networking and referral system, it provides medical treatment, legal assistance, police protection, and shelters. In helping women victims of violence, the center follows a standard procedure that is similar to women’s desks all over. The victim personally approaches the organization and speaks to a counselor. Through this dialogue, the counselor is able to determine the needs of the victim. If there is a need to do so, the organization brings the victim to an authorized health officer who can document injuries and obtain a medical certificate, or to the police to make a sworn statement or file a complaint. The center, through its contacts is likewise able to help the victim get legal assistance or temporary housing, as the case requires. The support system given victim-survivors of domestic violence will not be complete without the inclusion of health-care workers whose job is to document the injuries, whether physical or mental, provide the victim immediate information of their rights and remedies, and automatically give a medical certificate for free. Section 31 of the Anti-VAWC Act requires them to be conversant not only with the medical aspect of abuse but further demands that they act as paralegals. Under Article 142 of PD 603, the DSWD or its authorized representative having knowledge of a child who is neglected, abandoned or abused may petition the court for the involuntary commitment of this child. If the court approves the petition, the care and custody of the child is transferred to the DSWD or a licensed child placement agency or individual, who shall then become the legal guardian of the child. This has the effect of terminating the rights and authority of the parents or guardian over the child. The abused child may also be placed in foster homes that are supervised by the DSWD and are run by married couples, who are licensed only “after thorough investigation of their character, background, motivation and competence to act as foster parents” (Article 67, PD 603). The law prefers the placement of the child in a foster home, rather than in an institution, especially if the child is under nine years of age. There are other institutions, coordinated and supervised by the DSWD, that offer protection and shelter for the child, such as child-caring institutions, shelter-care institutions and receiving homes. Under the “Lingap para sa Mahihirap Program”, the DSWD established child/youth crisis centers for each local government unit to provide medico-, legal- and psycho-social services. The DSWD provides psychological or psychiatric intervention and also organizes a peer support or survivors group to aid in the abused child’s rehabilitation. Ideally, the DSWD should likewise extend educational assistance to the child, as well as self-employment assistance to the family (such as capability building and skills training) in order to help improve the economic conditions of the child’s family.

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Conclusion The Anti-VAWC Act offers a unified mass of substantive and procedural laws that will give immediate succor to a woman or child who is a victim of violence. It recognizes that recourse to criminal law under provisions of the Revised Penal Code was unsatisfactory. Some victims blame themselves for provoking the offenders and are haunted by guilty feelings for turning against their own family and sending them to jail. This situation is exacerbated when the offender is the sole breadwinner and putting him behind bars will have tremendous impact on the family’s very survival. The inadequacy of a purely criminal law remedy is intensified by the de facto policy of law enforcers to treat intra-family disputes differently and less seriously. Most of all, a primarily criminal law response fails to protect women who do not report the abuse. Likewise, characterizing violent acts as tortious conduct or a quasi-delict, merely gives rise to an award for damages but fails to shield the victim from future acts of violence. It simply indemnifies her for loss or impairment of earning capacity and moral damages for the physical suffering, mental anguish, and social humiliation she has already suffered. An important consideration in policy-making is the extent to which concrete remedies can be made available to women and child victims of violence. The government must prioritize programs for women in the community, livelihood projects and skills training that provide both job and life skills for victim-survivors in order for them to join the workforce. The impact of the Anti-VAWC Act on the lives of women and their children can be assessed when we see the success rate of the Inter-Agency Council in ensuring a strong prospect for job placement for the victims as a vital step to attaining economic independence. The Anti-VAWC Act’s shortcoming is its silence on the need for prevention programs. However, this function may be implied in its drive for awareness. Education is the key component here. More specifically, prevention programs, to be successful, must start in schools, the place where social norms are consistently taught and later strengthened in the workplace. A case handled by law students of my university illustrates the extent of lack of information and education on violence against women and children. A 43-year-old woman complained of the repeated beatings she suffered in the hands of her live-in partner. When she could no longer tolerate his abusive conduct, she left for work and did not return at the end of the day. The only way she could successfully escape was to leave at home her young son, a child by a previous relationship. She sought advice from our law students who informed her for this wonderful law that protected women and children victims of violence. Several trips to the barangay to file for a protection order fell on deaf ears. None of the barangay officials had heard of the law or of a barangay protection order. When this was explained to them, one official expressed disbelief that the woman could be a battered

Domestic violence in the Philippines 319 wife when beatings were “merely occasional.” Although the students apprised the women of her right to file an administrative case against the officials, she preferred to focus her attention to getting custody of her child. When she went back to her home, she learned that her partner had taken on a mistress and had sent her son to the mistress’s relatives in one of the islands south of the Philippines. She has not found her son to this day. This is a sad story made more tragic by the lack of knowledge and compassion of people entrusted by the law and society to uphold the rights of citizens. Budgetary constraints usual in developing countries make slow and difficult the task of educating the public as to new laws and effecting a change in perspectives and values. In contrast, the VAWA of the US appropriates funds for information dissemination on violence committed against women and children. The Anti-VAWC Act emphasizes the importance of safeguarding the rights and welfare of women and children and sends a message, in plain and unambiguous terms, that Congress thinks this a grim and pervasive concern. At the end of the day, government programs have to be backed up with real money so that the remedies that the law envisions for women and children victims of violence – shelter, employment, a life lived in security and peace, reintegration in society – will actually exist. Creative ways should be found to arrange for a national domestic hotline to coordinate and provide help for domestic violence. An idea worth exploring is giving a tax break to telephone providers offering such a service which can be realized without the government handing out cold cash. The significance of the Anti-VAWC Act is ineffaceable as it involves every member of the community in this great effort to end violence within the family. Positive community response lessens the humiliation, isolation and powerlessness that battered women and their children experience. It is crucial to their renewing not only their self-respect but their zest for life. Community initiatives make it possible for each individual “fearlessly to contend against evil, and to make no peace with oppression” (Ryan 1994). The community is thus educated that violence within the home must not remain untrammeled, that every one will be held accountable for tolerating injustice and that we are empowered when we empower others.

References Aguiling-Pangalangan, E. (2003) Reproductive Health, Rights and their Progeny: Norms in Case and Statute Law. Manila: Reprocen. Frieze, I.H. and Browne, A. (1989) “Violence in marriage”, in L.E. Ohlin and M. H. Tonry (eds), Family Violence. Chicago, IL: University of Chicago Press. International Conference on Population and Development. (1994) Programme of Action. A/CONF.171/13: Report of the ICPD (94/10/18). National Commission on the Role of Filipino Women. (2004) Report on the State of Filipino Women 2001–2003. Manila, Philippines: National Commission on the Role of Filipino Women and Canadian International Development Agency.

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—— (2006) Factsheet on Filipino Women. Manila, Philippines: National Commission on the Role of Filipino Women. National Statistical Coordination Board. (2003) A Statistical Handbook on Women and Men in the Philippines. Manila, Philippines: National Statistical Coordination Board. Peck, E. (1993) “Criminal Approaches to Family Violence”, in L.E. Ohlin and M. H. Tonry (eds), Family Violence. Chicago, IL: University of Chicago Press. Philippine Commission on Population. (2003) “From Family Planning to Reproductive Health: A Paradigm Shift in Policies and Programs”, in Philippines Country Report to the 5th Asia and Pacific Population Conference. Available online at: http://popcom.gov.ph/pdf/5APPC06.pdf (last accessed June 1, 2006). Pineda, E. (1992) The Family Code of the Philippines Annotated. Manila: Central Bookstore. Raterta, R., de Vela, M. and Aguiling-Pangalangan, E. (2005) “ICPD+10: A Country Report”, in E. Aguiling-Pangalangan (ed.) 10 Years after Cairo: Between Commitment and Realization of Reproductive Health in the Philippines. Manila: Reprocen. Ryan, M.J. (1994) A Grateful Heart. San Francisco, CA: Conari Press.

Legislation and treaties The Philippines Revised Penal Code (1930). Act No. 3815. 1935 Constitution. The Civil Code of the Philippines (1949). Republic Act No. 386. 1973 Constitution. Child and Youth Welfare Code (1974). Presidential Decree 603. The Labor Code of the Philippines (1974). Presidential Decree No. 442. Creating a National Commission on the Role of Filipino Women (1975). Presidential Decree No. 633. Reorganizing the Ministry of Social Services and Development (now referred to as Ministry of Social Welfare and Development) (1987). Executive Order 123. The Family Code of the Philippines (1987). Executive Order No. 209. 1987 Constitution. Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (1992). Republic Act No. 7610. Women in Development and Nation Building Act (1992). Republic Act No. 7192. Creating a Committee for the Special Protection of Children from all forms of Neglect, Abuse, Cruelty, Exploitation, Discrimination and other Conditions Prejudicial to their Development (1995). Executive Order No. 275. The Anti Rape Law (1997). Republic Act No. 8353. Family Courts Act (1997). Republic Act No. 8369. General Appropriations Act of 1998. Republic Act No. 8522. Philippine National Police Reform and Reorganization Act (1998). Republic Act No. 8551. Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (2003). A.M. 02-11-10-SC. Anti-Violence Against Women and their Children Act (2004). Republic Act No. 9262.

Domestic violence in the Philippines 321 United Nations Charter of the United Nations. (1945) 59 Stat. 1031, T.S. 993, entered into force 24 October 1945. Universal Declaration of Human Rights. (1948) U.N. Doc A/810 at 71. International Covenant on Civil and Political Rights. (1966) U.N. Doc. A/6316, 999 U.N.T.S. 171, entered into force Mar. 23, 1976 Convention on the Elimination of All Forms of Discrimination Against Women. (1979) A/RES/34/180, entered into force 3 September 1981. Convention on the Rights of the Child. (1989) A/RES/44/25, entered into force 2 September 1990. Declaration on the Elimination of Violence against Women. (1993) G.A. res. 48/104, U.N. Doc. A/48/49. Beijing Declaration and Platform for Action. (1995) A/CONF. 177/20 and A/CONF. 177/20/Add.1

The United States Violence Against Women Act (2000). PL-106-386.

Cases The Philippines Goitia v. Rueda. (1916) G.R. 11263, November 2, 1916. People v. Cloud. (1996) G.R. No. 119359, December 10, 1996. People v. Genosa. (2004) G.R. No. 135981, January 15, 2004. Sy v. Court of Appeals. (2000) G.R. No. 125292/ G.R. No. 127263, April 12, 2000. Tuason v. Court of Appeals. (1996) G.R. No. 116607, April 10, 1996.

The United States State v. Kelly. (1984) 97 N.J. 178, 478 A.2d 364. Thurman v. City of Torrington. (1984) 595 F. Supp. 1521. Warren v. State. (1985) 255 Ga. 151, 336 S.E.2d 221.

Part IV

Support services for victims of crime

16 Present and future developments in victim services and victim rights A view from the United States Marlene A. Young

Introduction Fear is arguably central to the study of criminology and victimology, although in many ways it is the least studied. Fear of death, destruction of identity, and destruction of values drives the search for safety and security both at an individual level and in the consolidation of individuals in communities and cultures. It appears that the human species is the only living organism that can conceive of things in the future and can understand that its own death, while unpredictable in its timing, is inevitable. This knowledge is at the root of existential terror in human beings as they confront their ultimate helplessness and possible meaninglessness. Societies are constructed through the development of mutually acknowledged, reciprocal obligations among individuals, with protection from threats from an organizing force. Social, religious and legal structures evolve, among other reasons, to both protect individuals in their day-to-day lives as well as to help acutely distressed individuals. Thus, the innate fears of the individual result in the need for emotional attachment to others, which leads to the building of societies. Societies become a critical reference for feelings of safety and security. The communal dynamics are a source both of protection and assistance as individuals negotiate the dangers of existence. Within this context, crime may be viewed as a violation of not only a legal framework but also of individuals, of individual rights, and of society as a whole. Violence prevention at any level should be seen as a primary obligation of governments to protect the individuals they govern. Whenever societal protections fail, assistance to the victims is inherently demanded. Violence prevention promotes and sustains safety and security. The reparative mission of the justice system should be to enforce the order of law and to restore a sense of safety and security to victims and the general community. Providing victims’ rights and services, then, does more than give humane treatment to people who deserve it; it should be seen as essential components of the whole justice enterprise.

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In order to accomplish this, societies must clearly answer such questions as: Who is a victim? What is a criminal victimization? What is justice? These definitions will necessarily vary among societies. Answers to these questions based on research and practice have shaped both the establishment of victim service programs in the United States and the articulation of principles that translate into policies and programs in the legal structures.

Research on victimization Research on victimization and the birth of the field of victimology primarily grew out of the field of criminology as a result of the realization that the study of crime involved not only the criminal and the State but also the person victimized. Understanding the relationship between the criminal and the victim was expected to provide more insight into both crime control and crime prevention. Hence, it was not surprising that when the US government began to look at the serious problem of criminal violence in the late 1960s and early 1970s, as crime rates rose, there were efforts to measure crime not only by police records but through victimization surveys. These surveys of the general population elicited information about whether respondents had been victims of crime and if so, what their losses were (primarily in physical or financial terms). Questions were also posed on levels of fear among the populace regarding crime, since fear might interfere with social integration and with the effective functioning of both police and prosecutors. Problems with these initial surveys included: a lack of sophistication in the questions posed; a misunderstanding of the impact of victimization; and the fact that many of the surveys were conducted primarily with a goal towards better criminal justice management within the status quo. The value of this work was that it directed attention toward the need to understand better the impact of victimization, particularly with regard to its psychological effects. This was underscored by the fact that the surveys revealed that the fear of crime was much higher and more widespread than the actual risk of being victimized. As one commentator noted: “Moral panic abounds – particularly about mugging, sexual assault and violence – which is out of touch with reality.” (Young 1988: 165). It also brought research to focus on victimizations that occurred when State laws were violated. In this, it served as a precursor to the assessment surveys of crime victims, more common today, regarding their needs and gaps in services prior to the establishment or the expansion of victim service programs. As victimologists were discussing the theory of victimology and developing surveys of victimization, there was a concurrent development in the field of traumatology. This work focused on the psychological impact of individual and social catastrophes. In the United States, this field of inquiry and service closely paralleled the recognition – almost an awakening – of

Victim services and victim rights: a view from the United States 327 the effect of trauma in veterans of the Vietnam War and similar effects that were seen in survivors of homicide victims and victims of rape. The acknowledgment of post-traumatic stress disorder (PTSD) as a formal diagnosis in the psychiatric nomenclature in 1980 resulted in an explosion of scientific studies on how people react to all sorts of trauma, including, most significantly, criminal victimization. Fear is a defining feature of becoming traumatized and hence researchers in both victimology and traumatology began to revisit the role of fear in the study and impact of victimization. Initially, that research helped confirm the usefulness of many innovative practices that were being employed by practitioners in the field of crime victim services. The research also helped practitioners refine their skills and become more aware of how interventions in trauma can be either successful or unsuccessful. At the intersection of traumatology and victimology, the field of victim assistance radically changed. In the 1970s, most of those concerned with victims focused on problems in the criminal justice system and how those bureaucracies could be made friendlier to victims. In the 1980s, greater emphasis was placed on what was considered to be the central issue in the aftermath of trauma – the emotional injuries inflicted on the victim, including fear and terror. The new perspective meant that the question “who is the victim?” needed a more expansive answer. In today’s world, the answer to that question revolves around the extent to which a victim is traumatized rather than type of event that caused the psychological reactions – and to look beyond the direct victim of that event to others who, by virtue of what they witnessed or how they were related to the victim, were themselves injured and deserving of help. The new emphasis also compelled a re-examination of the nature of victimization to expand beyond conventional crime to include other catastrophic events, such as natural disasters and accidents, and acts of terrorism, genocide and war – this latter group may be said to include elements of conventional crime. The broadening in focus also suggested a shift in the concepts of justice. “Justice” should not be limited to the response to violation of State law but also violations of what could be defined as human rights. Nor could justice be defined strictly in terms of conventional justice systems that focused on the treatment of offenders, but rather must be defined with a recognition of the centrality of the victim and the social and cultural context of the victimization. The doing of justice should address both the needs of society and the restoration of the victim. This opened the way to rethinking the role of the victim in conventional systems as well as to considering alternative systems of justice, such as transitional justice or restorative justice. Finally, a broader view of victimization provoked an understanding the impact of victimization on communities as a whole rather than the more narrow concerns of the impact of victimization on the individual. Attacks on cultural values and institutions through terrorism or genocide raise

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inherent fears about the survival of the social network from which individuals have sought protection. The impact of traumatization is also increased when collective populations are harmed by the very institutions to which their members turn to when they are in need, a kind of betrayal that often occurs in cases of abuse of power. All these changes were reflected in the development of a new framework for establishing services in response to victimization.

Victim service programs In the United States, as in most countries, the framework for victim service programs has focused on crime victims. It has incorporated the use of research and planning to help implement and expand basic program elements. Recognizing the value of research, the National Organization for Victim Assistance (NOVA) began developing standards for victim service programs as early as 1980. The process involved site visits to fifty programs recommended as excellent by practitioners in the field. They covered law enforcement-based and prosecutor-based programs, as well as independent, community-based programs. These site visits resulted in a publication entitled The Victim Service System: A Guide to Action (“Guide to Action”) (Young and Stein 1983). This was followed by a Delphi study of victim service providers and a series of regional conferences in which over 1,000 victim service providers were given the opportunity to review and critique the proposed standards as they were being developed. The initial findings were published in 1988. The standards have been formally revised four times since then, most recently in 2005. The purpose of the process was: To promote standards for implementing programs and for individuals who work with victims and witnesses in order to better assist them in dealing with emotional trauma, participating in the criminal justice process, obtaining reparations, and coping with associated problems caused by the impact of victimization. (Young and Stein 1983) The Guide to Action posits that a service program should seek to ensure that either the program itself or other agencies within its community provide nine basic elements of services to all victims; ranging from crisis intervention, assistance with practical problems, to counseling and advocacy throughout the process, to the prevention of victimization. The service elements are described in terms of the provision of emotional support, direct assistance, and information. This parallels the description of services in the United Nations’ Handbook on Justice for Victims of Crime and Abuse of Power (United Nations Office for Drug Control and Crime

Victim services and victim rights: a view from the United States 329 Prevention 1999). In connection with each element of service, a description of basic activities that are central to the recovery of individual victims or witnesses is outlined. Additional activities that would enhance benefits to the victim are also suggested. A program need not provide the entire continuum of program elements. If other competent services already exist in the community and the program can refer victims to it, duplication can and should be avoided. If a needed service does not exist, then the program should either provide it directly, or help to promote its establishment. All programs should include outreach services and provide relevant information for all the programs’ clients. Thus, attention must be paid to offering multilingual services, services for people with various disabilities and culturally appropriate services. While communities should ideally seek to assist all victims, programs are urged to prioritize the implementation of services based upon resources, the expertise of the program staff, existing service institutions, and an analysis of the needs of the jurisdiction. Each cooperating program should plan to phase in full service to victims over time. In setting priorities, programs are encouraged to use a systematic approach to take into account the severity of the victimizing event based on its impact on the victim. Since in many cases witnesses and relatives of the direct victims are traumatized, programs are encouraged to ensure that they too receive services as needed. All programs should have an ongoing, multidisciplinary strategic planning process across service agencies that identifies gaps and generates services through community partnerships and determines the responsibility of each member of the partnership. Ideally, all program services should be available on a 24-hour basis, although most programs do not have the resources to do this. Nonetheless, through collaboration, most communities can sustain 24-hour crisis services through a telephone hotline, on-scene response, home visits or walk-in services. Most programs can provide ongoing services as well either by their staff or trained volunteers or through appropriate referrals. The following are the eight program elements. Crisis intervention While crisis intervention has had many definitions over the years, the essential features practiced by victim service providers involve helping victims feel safe and secure, providing them with an opportunity to explain and describe their experience along with reassurance that their reactions are not unusual and problem-solving for the immediate future. This has translated into a formula known as R.S.V.P. in English: Respond with Safety and security, Ventilation and validation, and Prediction and preparation. This has been a structure used by crisis interveners since the late 1970s, and it has been validated by traumatologists over the years. As Bessel van der Kolk, a preeminent psychiatrist has summarized from his research, “After safety is

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assured, psychological intervention may be needed. People have to learn to put words to the problems they face, to name them, and to formulate appropriate solutions” (Van der Kolk 2002: 47). Research on trauma has also taught interveners about the importance of memory and the fact that traumatized people are often dominated by traumatic memories of the past. Hence, the intervener needs to incorporate skills that help the victim distinguish clearly between the past, present and future. Crisis intervention services are seen as absolutely essential to a good victim assistance program. The importance of this was driven home to me early in my career. Jillean Englethorn taught me that lesson. I was in the process of reporting as a volunteer to a hospital one night when I noticed a young woman clad only in a paper gown and paper shoes sitting outside the front door of the medical center. She had a handful of newspapers on her lap. I walked over and asked her if she was okay. She said she didn’t know. She had been raped; she had reported it; the sheriff had taken her statement; she had been examined for evidence; they had taken her clothes; and now she didn’t know how she was going to get home. She was stunned and in shock. She needed to be provided with physical safety and a sense of emotional security. She needed a chance to tell her story – not just review the so-called facts of her case. She needed to be reassured that her emotional reactions were valid. And she needed to have someone help her understand what to expect next and figure out how she might begin to cope with problems that faced her. While crisis counseling is the core of activities involved in the early response to victims, it is recommended that each of the following additional services be provided within this program element when appropriate: • • •

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Death notification services and support for people when it is necessary for them to identify the body of a deceased loved one. Notification of the victimization to the immediate family (unless the victim does not want them notified) or to friends the victim designates. Communities should be prepared to provide crisis response to all members communities directly affected by a major catastrophe as soon as possible. Other assistance that should be considered includes dependent care, cleanup of the crime scene, emergency property repairs, protection through restraining orders, and relocation services.

Ongoing counseling Post-trauma counseling should be available to victims whether or not there is an investigation of a crime. Post-trauma counseling is an extension of crisis intervention but enhances it through education, an emphasis on health

Victim services and victim rights: a view from the United States 331 and physical well-being, and the integration of appropriate referrals for concurrent problems. For most victims of personal catastrophe, the fears of death or serious injury are primary, and that fear generates a sense of loss of control and helplessness. The sense of surviving an overwhelming event and being besieged with an avalanche of conflicting and extraordinary emotions leave victims with a terror of the unknown that lies ahead of them. Education on the kinds of reactions that may affect them over time can be exceedingly helpful. That education may involve a range of information on post-traumatic stress, emotional responses to grief, coping with death and dying, and other subjects that affect their trauma. When I visited Japan after the Great Han Shin earthquake in Kobe, I was amazed with how useful the simple description of potential traumatic reactions was to many of the victims and survivors. They seemed to need to better understand the roller-coaster of emotions and physical reactions they were undergoing. As a result, one of the simple things that we did was to distribute a paraphrased copy of PTSD as described in the Diagnostic and Statistic Manual IV of the American Psychiatric Association. The copy focused on the three primary elements of PTSD and emphasized that these symptoms were not necessarily signs of PTSD but were usually signs of acute or ongoing stress. This seemed to be very understandable and enormously helpful to those who received them. In putting words of understanding to an emotional experience that was bewildering and itself frightening, helped to extract some of the terror of that experience and free the mind to attend to immediate coping needs. Counseling should also involve a focus on helping victims regain physical well-being. Physical health often deteriorates as people try to deal with the stress of victimization even when they have not directly suffered physical injury. A common theme is to encourage victims to consult with a physician or other health care provider during the aftermath of trauma. Significant health changes should be noted and either referrals made or simple suggestions can help. For instance, a well-known victim advocate and the survivor of the murder of her four sons, Betty Jane Spencer, remembered that she stopped eating and drinking liquids after the deaths of her sons. She couldn’t bring herself to consume anything, because every time she started to, she remembered her sons could no longer consume anything. She became dehydrated to the point that she was taken to an emergency room. Exercise, exposure to humor, and confirmation that tears are an appropriate and useful biological and psychological response to extraordinary stress are very helpful. Post-trauma counseling should involve spiritual interventions. Interveners should be aware of and prepared to respond to spiritual needs of victims. Perhaps the most important of all social institutions that bind together communities are those with a spiritual basis. These may be the

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institutions of predominant religions but often in non-Eurocentric societies they may be based on other orientations. Many service providers are not prepared to respond to some of the issues in counseling outlined here but they should be able to provide appropriate referrals to mental health professionals, culturally-appropriate religious or spiritual leaders, social support groups, and legal services both in the civil and the criminal justice system. Advocacy Many times victims feel that the lack of assistance and understanding of social and criminal justice institutions is more harmful than the original victimization. The act of being engaged in social activities in a purposeful manner not only involves a commitment to restoring a social fabric but may provide victims a personal reason for living. Some traumatologists have indicated that, “Emotional attachment is probably the primary protection against feelings of helplessness and meaninglessness” (McFarlane and Van der Kolk 1996: 24). They may want to become advocates in their own case or to work with others. Some choose to have someone represent them in public forums but many also become ardent participants in helping those who represent them in defining their issues. Indeed, activism has an important therapeutic role in helping victims get on with their lives. There are ten reasons why victim activism can be therapeutic for survivors (Young 2004: 38–9): •

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Focus – When one’s world has been thrown into chaos by trauma, there is a need to restructure order through focus on specific functional activities. Catharsis – Activism can provide a way to express intensely frightening emotions in a safe and socially-acceptable way. For instance, anger may be expressed in outrage at unresponsive laws and a determination to change them – instead of venting at family members. Relationships – Many victims and survivors lose touch with once-close friends and family. Those friends or relations may be afraid of the emotional upheaval in the victim’s life, may not know what to do or say, or may blame the victim. Victim activism often gives survivors a chance to form new “families” and relationships bound together by trauma and commitment. Repetition – A vital part of healing is “telling your story,” as is clear in the understandings that shape crisis intervention and post-trauma counseling. Victim impact panels, legislative testimony, speak-outs, support groups and so forth, all provide opportunity for telling and retelling the story.

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Self-esteem – Victimization is often a humiliating, degrading experience. Activism can give victims tangible evidence of their accomplishments and self-worth. Testimony – Victims not only need to tell their story but to have it validated through the knowledge that someone listened to and believed the story, and it made a difference. Insight – Activism provides a way to hear from others who have suffered similar traumas as well as from people who work in the field. Hearing other people’s experiences can help clarify one’s own experiences, and teach others valuable insights. Integration – An important therapeutic goal for many is to be able to incorporate the story of their own tragedy into their lives. Activism allows victims to restructure their lives and recognize how their victimization and survival has altered them forever. Purpose – For many, the impact of crime shatters their sense of meaning and purpose in life. Their plans are thrown asunder. A person whose life has been centered around her child dies a special kind of death when that child is murdered. Activism can be the key to developing a sense of triumph over tragedy and providing meaning for both that woman’s life and her deceased child. Hope – Activism may provide survivors with hope. The nine elements of activism described above and its positive benefits lead to a reestablishment of hope and a new life for victims and survivors.

Advocacy by the victim often helps – advocacy for the victim is often essential. A program should be prepared to provide assistance with victim compensation or private insurance applications. Victims may need intervention on their behalf with sustaining their credit, maintaining their housing or employment, dealing with medical institutions (particularly where a forensic examination is involved, a concern about HIV infection exists, or where family violence is involved), assistance with relocation or shelter, assistance with dealing with the media, document replacement and other practical problems. I remember the case of Mary Jimenez, a native Mexican, the wife of Robby Smith, an American. They met while they were in graduate school in Mexico City. He abused her shortly after their marriage began. In the attack that precipitated her leaving him, he broke her nose and arm and then cleaned out their apartment. She was then an immigrant by marriage in the United States and had been given a “green card” designating her as a legal resident. When she called for assistance, she had been in hiding for four weeks because she did not have her actual green card and was afraid she would be deported without her two children. She was desperate and did not know how to speak English well enough to make herself understood without an advocate to translate for her and find the right person in the

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immigration department who could help her. She found that help – but others have not. Support services during criminal justice investigation These services are critical. Law enforcement officers are usually the first contact a victim has with the criminal justice system and how victims are treated at this stage can affect the way they feel about the entire criminal justice process as well as how quickly they are able to establish a new life. As a friend of mine once put it in practical terms: “a law enforcement officer can help to turn a victim into an effective witness” (Ahrens, Stein and Young 1980: 6). In the United States, more and more law enforcement officers are receiving crisis intervention training and are using it as a part of their interviewing techniques – and more and more victim service providers are working alongside law enforcement officers during the initial response to the reported crime. Crisis intervention services are important at this stage, as are support and accompaniment to proceedings involving the identification of the accused, to other criminal justice interviews and to forensic examinations. Support service includes assistance with victim compensation or insurance applications; payment of costs of forensics examinations and arrangement for bills to be received by the payer, not the victim; assistance with requests for victim restitution; application and enforcement of protection orders; provision of shelter or safe places for victims; and assistance with prompt return of property when it is recovered. The return of property can be a struggle but it is seen as so important that it is included in many bills of rights in the United States and is so designated by the Council of the European Union Framework Decision on the Standing of Victims in Criminal Proceedings. In one infamous case, a victim, Betty DeHarsh, tried to retrieve her son’s car after he had been murdered. He was murdered in the state of Arizona on his way home to the state of Nebraska. He had just been discharged from the Navy to help care for Betty. During the investigation of the case, his car had been impounded for several months by the police. It took the intervention of a Navy admiral to arrange for the car to be transported to Nebraska – without the storage fees normally assessed to the victim. At all stages of service, information about what is going on is important. It becomes even more important when the criminal justice system is involved. The right to information is recognized in all 50 states and the federal criminal justice system, as will be reviewed below. Information should be accurately and expeditiously given. This includes information about case status, the criminal justice process and victim rights that are applicable at each stage, information on the detention of the suspect and bail, any measures to promote reparations, protection of evidence in a

Victim services and victim rights: a view from the United States 335 forensic examination and information about available protection and prevention programs. It may also include information on restorative justice programs. Since many such programs in the United States are triggered by the possibility of the case being diverted from conventional court processes, victims need to know their rights in such a diversion, including the right not to participate, thus keeping the case in the regular system. Support services during prosecution Some programs provide crisis intervention services in the initial contact with victims but do not have them available at later stages. Yet, personal support from a trained crisis intervener is useful at all stages, including the actual prosecution of a case. So it is recommended that such services be available throughout all proceedings, including hearings, interviews and trial. The importance was underscored to me when I accompanied Jack Russell, whose sister had been murdered to the sentencing hearing in which he would provide a victim impact statement. When the murderer was brought into the courtroom, he seemed palpably evil. I shivered with fear, even though I was not going to be giving a statement and there were law enforcement officers in the room. As we stood to acknowledge the judge, I felt Jack reach over and take my hand. He was shaking too. This anecdote does not describe a crisis counselor – me – performing at the top of my professional abilities. But it is a helpful reminder that the “crisis intervention” often needed during the hard times of the justice process is the presence and support of someone the victim trusts. It should be noted that the perception of “evil” has only occasionally been addressed in traumatology and victimology. It is significant that some mental health professionals recently are referring to it: “In addition, many trauma survivors, including rape and torture victims, have come face to face with human evil, witnessing people taking pleasure in inflicting humiliation and suffering” (Van der Kolk 2002: 3). Direct assistance of the kind reviewed here usually includes coordination of victim appearances at hearings, interviews, and the trial with the goal of minimizing the number of appearances; providing or reimbursing transportation expenses or arranging for parking; employer, landlord, creditor intercession services; assistance with restitution requests and enforcement; assistance with victim participation in the criminal justice process (including implementation of all rights for presenting victim information at critical stages in the decision-making including input on bail, charging, diversion, dismissals, plea bargains, continuances and sentencing); and provision of safe places in the courthouse for victims separate from the accused or defense witnesses when they are attending hearings or interviews.

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Many programs also offer appropriate clothing to the victim if necessary – some even have closets of available clothes so victims can pick styles and sizes. Other program enhancements are often offered. Transportation may be provided for victims and witnesses, particularly those with disabilities and the elderly. Full restitution requests are routinely prepared and presented by the prosecutor. All victims are, or should be, given help in preparing a victim impact statement for use at plea bargains and at sentencing. And rehearsals and courtroom walk-throughs are made available to all victims. Information should be regularly provided to victims regarding issues of prosecution, status and other events that might be of concern to victims. General information on victim rights and available services should be repeated over and over again, and this should be provided in an appropriate language, communicated through appropriate cultural means and provided through all methods possible. In some countries, person-to-person contact may be best, in other cultures telephone communications may be a viable conduit for information. Radios are most useful in Rwanda. Email might be most useful in Western Australia. Many victims are not fully capable of understanding their rights when they are first told about them because they are in a crisis. Research shows that a portion of the prefrontal cortex may shut down during a traumatic event. High levels of arousal may interfere with both the ability to put one’s feelings into words as well as the ability to discern incoming verbal messages. Hence repetition is of the utmost necessity. Victims need information about the responsibilities of all criminal justice personnel to victims, and what sanctions, if any, are available if these responsibilities are not met. They need to know what is expected of them in the criminal justice process at each stage of the proceedings. Most victim and witness programs have a call-in system to provide current case status information and some of them provide proactive contacts with victims and witnesses, if requested. Support services after case disposition An increasing number of service programs routinely provide personal support and accompaniment during all appeals or hearings on motions for retrials, or those involving probation revocation, parole or clemency. Some programs work with corrections departments to provide alternative ways for victims to testify at hearings. One innovation that emerged during the 1980s was the use of video recordings as a vehicle for testifying at parole hearings. One of the first cases involved Betty Jane Spencer, mentioned above. The young men who murdered her boys were caught and sentenced to life without parole. But, after they spent ten years in prison, they began to exercise their right to appeal for gubernatorial clemency (not parole) – and could do so every year for the rest of their lives. She found it onerous to

Victim services and victim rights: a view from the United States 337 go back in to a hearing room in the State prison to testify over and over again – once a year for each of the four convicted murderers – so she asked for and received permission to give her testimony by videotape. Some programs provide personal support during civil legal proceedings, as in child custody hearings related to a domestic violence case or in a trial for damages caused by the crime. Others offer support and assistance with participation in restorative justice programs or victim-offender intervention services, upon request of victims. Restitution issues are a primary concern for victims in the aftermath of their victimization but they arise most urgently during the sentencing process when restitution is ordered and thereafter when victims pursue enforcement of the order of restitution. Programs may work with other agencies to ensure enforcement of the orders through monitoring restitution payments and other techniques. Programs may also work with the prosecutor or the probation department to get prompt revocation of probation when restitution payments are not made or when other violations of probation occur. The victim’s need for information in these processes is met by corrections or probation programs. Many agencies supervising convicted offenders have their own victim service programs that also work with local programs. Upon request, information is typically made available about the offender’s status, release or escape. One enhancement in this area is to provide victims with information on where the offender will be released and a picture of the offender at the time of release in case the offender’s appearance has changed. It is persuasively argued that the fears that victims have do not end with their final sentence and so if the offenders are released, victims need to know (from their perspective) who is most likely to victimize them again. In the United States, victims have the right to notification of parole hearings, and often exercise them with the aid of service providers. In addition, some programs try to proactively notify victims if they become aware of current media events that may retraumatize victims. Victimization prevention This element of victim service programs may be the most difficult to define or describe. Most would argue that the first issue for the public and its victims is their safety. Hence, the government and individuals have an obligation to protect potential victims from victimization to the extent possible. But it is obvious that neither crime nor other forms of victimization can be completely obliterated – it is a hope that the numbers of people victimized can be reduced and that the consequences mitigated. For victim service programs, this means that they have a responsibility to promote victimization prevention for both the individual and the community. Studies reveal that crime prevention information is the most sought after kind of assistance by those recently-victimized and when provided, is

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considered among the most effective of services (see Davis, Taylor and Titus 1997). Victim service providers should be expected to provide education on crime prevention techniques for neighborhoods and communities. They should seek to educate the public on the scope of crime and the reality of what may be expected in their jurisdiction. They should also seek to inform the public on the consequences of crime for an individual and his or her family and community. Victim service programs should also promote other integrative services. These should include the promotion of multidisciplinary approaches to victim assistance. Most programs have a training component for at least law enforcement professionals and some also train prosecutors. Training for judges is less well developed, but states such as California have a mandatory continuing education program for their judges, and it includes a victim component. Education of professionals who work directly with victims, such as school personnel, the health and mental health professions, the legal profession, spiritual leaders and the media, is also encouraged. Victim advocates support the design and implementation of preparatory educational programs on victim issues for students of those “allied professions” as well as training and education programs for active professionals. In the totality of educational materials aimed at the professions whose members impact on the lives of crime victims, four publications have had a major influence. These are the Final Report of the President’s Task Force on Victims of Crime (1982), Frontiers and Fundamentals (Young 1993), New Directions from the Field: Victims’ Rights and Services for the 21st Century (US Department of Justice, Office for Victims of Crime 1998) and The Community Crisis Response Team Training Manual (Young 2004), now in its fourth edition. Professionalization of victim services in the United States There has been a growing professionalization of the victim assistance field in the United States. Many programs now require forty hours of pre-service victim assistance training and an additional sixteen hours of in-service training yearly. Most states have victim service program networks and annual training conferences for their members. There is now a national program of accrediting victim advocates and a national program of certification for crisis responders – the latter are specialists in delivering crisis intervention to large numbers of victims of community-wide traumas. But in the United States, the aspirations for professionalism extend beyond the education and skills of those who work with victims. They include an examination of the social and legal matrix of their services.

Victim services and victim rights: a view from the United States 339 New Directions from the Field offered these five global challenges to guide the search for victim rights and services for the twenty-first century: •

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To enact and enforce consistent, fundamental rights for crime victims in federal, state, juvenile, military and tribal justice systems, and administrative proceedings. To provide crime victims with access to comprehensive, quality services regardless of the nature of their victimization, age, race, religion, gender, ethnicity, sexual orientation, capability or geographic location. To integrate crime victims’ issues into all levels of the nation’s educational system to ensure that justice and allied professionals and other service providers receive comprehensive training on victims’ issues as a part of their academic education and continuing training in the field. To support, improve and replicate promising practices in victims’ rights and services built upon sound research, advanced technology, and multidisciplinary partnerships. To ensure that the voices of crime victims play a central role in the nation’s response to violence and those victimized by crime.

These are ambitious goals. But, they have resonance for the structure of victim service programs on a national and international level.

Victim rights: policy and implementation The development of victim rights in the United States was based on efforts to rethink ideas of criminal justice. The predominant philosophy in most large societies in modern times has been that those systems are there to address criminals in terms of the harm done to society rather than to the individual victim. Within that conceptual framework, victims served in peripheral roles as observers or witnesses. In the new conceptual framework justice, victims are seen to be the most important injured parties in crime. Thus, they should have a central role as participants in justice systems that should seek to address the harm done to them. Since loss of control and fear are primary harms brought on by victimization, justice should involve restoring control and mitigating fears of revictimization. Restoration of a sense of control means that victims are given opportunities to be involved in the dispensation and decision-making with regard to what happened to them. Mitigation of fear may be accomplished by reestablishing a sense of safety through holding offenders accountable for the action, providing victims reassurance of society’s concern for them, as well as redressing their financial, physical and emotional needs. This redefinition of the purpose of the justice system resulted in the following five key principles of victim rights, most of which are pursued as legal rights within the criminal justice system but are also reflected in the services outlined above.

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Rights to protection There are two primary issues to be considered under rights to protection. The first is the general issue of protection prior to victimization that could be claimed by any member of society – the right to be safe from crime. This would entail an obligation by society to “take reasonable measures to pursue the safety and security of persons and property” (Waller 1996: 94). Most countries have attempted to address this issue through reactive, retributive or prevention policies, but few have articulated this as a basic right. Victim rights in the United States have never included safety prior to victimization as a right, and as indicated above, crime prevention is rarely an integrated service within victim assistance programs. It is suggested that the need for this right to be recognized is reflected in the comprehensive Guidelines for the Prevention of Crime that were accepted by the United Nations Economic and Social Council in 2002. It is significant that these guidelines explicitly bring victim issues into their conceptual framework. In summarizing the wide range of approaches to crime prevention, the guidelines emphasize “focusing on the risk and protective factors associated with crime and victimization” or “social crime prevention” and by “providing assistance and information to potential and actual victims” or “situational crime prevention” (United Nations Office on Drugs and Crime 2004: 10–11). Rights to protection in the United States are instead confined to the second issue, that is, rights in the aftermath of crime. The first such right is the right to protection against intimidation or harassment from the accused, his or her relatives and associates. Laws to implement this right generally include recognizing intimidation and harassment as crimes that enhance penalties to be imposed on the underlying offense, the provision and enforcement of protective orders restraining the accused and others from contact with victims, and the establishment of waiting areas in court houses that separate victims and prosecution witnesses from defendants or defense witnesses. Many laws provide special protections for vulnerable victim populations. Some of them enhance penalties when a crime is committed against particularly vulnerable groups, such as children or elderly people. Some laws expand the definition of crime to include hate or bias crimes that target specific populations, such as racial, ethnic or religious minorities and homosexuals. Protective strategies and laws aimed at assisting and protecting domestic violence victims include mandatory arrest and “no-drop” policies in prosecution. Child victims may receive extra care when they are witnesses in cases through special courtroom accommodations such as the use of videotaped testimony, the use of closed-circuit cameras, the use of one-way mirrors such that children do not have to see the accused, or the allowance of personal support for a child in the witness stand. Rape shield laws have

Victim services and victim rights: a view from the United States 341 been enacted to protect sexual assault victims from the intrusive and intimidating explorations by defense attorneys into their past sexual history. Legal reforms in the standards for release on bail have been enacted to provide protection for victims. Whereas previously in the United States the general standard for such release was whether the accused would return to attend a trial or hearing, many laws now include a consideration of whether the accused poses a threat to the victim or the community at large. Rights to information and notification The right to information about the status of a case has been recognized throughout the world as critical to meeting victim needs. Every victims’ bill of rights in the United States includes this provision as does the 1985 UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power and the 2001 Council of the European Union’s Framework Decision on the Standing of Victims in Criminal Proceedings. What was missing in some of the initial laws on this issue were the types of information that were required, the necessity for the information to be accurate, and the timeliness of the provision of information. Today most laws include words to the effect of the right to “timely notification” of “accurate and appropriate information.” They specify the following critical events in which timely information should be given to victims: 1 2 3 4 5 6 7 8 9 10 11 12

court schedule changes pre-trial release bail release plea agreements sentencing final disposition probation revocation decisions parole decisions pardon or clemency decisions work release prison release escape

Rights to participation The most contentious issue in the field of victim rights has been the assertion of a right to participate in the justice process. While research has underscored the importance to victims of participation in a meaningful way, there has been resistance by many for whom victim participation invades traditional prerogatives – judges, prosecutors, defense attorneys and corrections officials. Despite their concerns, all 50 states now have statutes and some 32 states have constitutional amendments that allow such participation (for a

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listing go to www.nvcap.org). Participation includes the right to attend the proceedings. This is reinforced by in the federal system through the Victims’ Rights and Restitution Act of 1992 which allows victims “to be present at all public court proceedings related to the offense” with the exception of when the court determines that the victim’s testimony would affect or be affected by the testimony of others – a right reinforced in the 2004 Crime Victims Rights Act, with its rigorous sanctions in cases of non-compliance. Other general rights to participation include allowing victims to have input at the plea bargaining stage and allowing victim impact statements at sentencing and parole hearings. Some states have gone further, allowing victims to have input on charging decisions, while it is common for inviting victim input in bail hearings, and allowing not only victim impact statements but statements of opinion regarding an appropriate sentence. An unsettled issue concerns what rights a victim may have to “standing” or to be recognized as a party to assert their rights. Some have argued that the UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power calls for the right to “standing” for victims (Waller 1996: 82) and some nations have accorded such status for victims. However, in the United States the very right of victims to assert their rights has not yet been fully recognized, and remains in jeopardy, at least for the present. Rights to reparations As Marvin Wolfgang noted in 1965, “The victim of a crime has historically and almost universally enjoyed the right to reparations. This right was confiscated by the state in the form of fines without due consideration for the victim” (Wolfgang 1965: 334). In the 40 years since this remark was made, all 50 states have passed state victim compensation laws (for a listing, go to www.nacvcb.org). Although the programs vary widely in terms of victim eligibility and benefits, there seem to be a universal acknowledgment that state compensation is a necessary component of an effective response from society to victims. It serves two legitimate goals: to serve as a source of symbolic social recognition for victim suffering and to respond to victims in a just, expeditious and equitable manner. In the United States, state compensation programs’ financial assistance is usually limited to payments for health, mental health or funeral expenses. It is always the benefit of last resort, discounting any insurance, restitution or other form of compensation – and offers only token compensation for some property losses, like the replacement of eyeglasses. The common explanation is that compensation programs in the United States and around the world do not have the resources to truly make the victims whole. This does not discredit the value of recognizing rights of victims to recover their losses, but does emphasize the complexity of relying upon State compensation as anything like a complete response.

Victim services and victim rights: a view from the United States 343 The other major form of reparations is the right to restitution. In the United States, restitution is defined as repayment of a victim’s losses by the offender. In all states and in the federal justice system, restitution is a sentencing option, is generally declared a right and in a growing number of jurisdictions, a judicial order for full restitution for the victim’s monetary losses is mandatory. The problems surrounding restitution are numerous. Most stem from the fact that most restitution is “offender based,” so that the amount of restitution is often decided based on the offender’s ability to pay and it is usually considered as a part of other sanctions. It is not seen as a valid recompense for addressing victim losses outside other sentencing options. Most victim advocates and victims view restitution as an independent source of reparations that should be due to victims in full in addition to penalties such as fines, incarceration, or community service that address offender behavior directly. Some argue that requiring orders of “full” restitution are unrealistic since many offenders could not make good on all the losses they have imposed. But the symbolic value of the formal recognition of the full debt owed by the offender is highly significant to many victims. And there is an argument that “most offenders probably could make more restitution than they typically do” (Smith and Hillenbrand 1997: 250). Rights to be treated with dignity and compassion This set of rights is probably the most difficult to enumerate but it is significant that the first articulation of victim rights in the United States included the “right to be treated with dignity and compassion” and most of the bills of rights in the United States include reference to a right to be treated with dignity and compassion or respect. It is echoed in key international documents. The UN Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power begins with the statement, “Victims should be treated with compassion and respect for their dignity.” The UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime states as its first principle, “Every child is a unique and valuable human being and as such his or her individual dignity, special needs, interests and privacy should be respected and protected.” The Council of the European Union’s Framework Decision on the Standing of Victims in Criminal Proceedings includes in its preamble: “The rules and practices as regards the standing and main rights of victims need to be approximated, with particular regard to the right to be treated with respect for their dignity . . . ” The key components to these rights are the right to services in response to financial, physical, emotional and social needs provided by trained personnel both within and outside of the criminal justice system; and the right to be treated with sensitivity and compassion by those with whom they have contact with in any social or justice institution. The primary factor in

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implementing these rights is the allocation of resources to provide funding for education, training and performance evaluation of service providers as well as funding for establishment and maintenance of service components. In the United States, such funding is primarily based on a merging of federal, state and local funding streams. It is perhaps illustrative to review a little of the history of how this funding and resulting services have progressed at the federal level, since finding money for services and training is a major obstacle in most countries. The most prominent source of financing comes from the federal Victims of Crime Act of 1984 (VOCA). This legislation established the Office for Victims of Crime (OVC) and established a Crime Victims Fund, based on the collection of fines from federal criminals that is used to support State compensation and local victim assistance programs. This program has been crucial in the explosion of programs and training for service providers over the last twenty years. But it has not been without challenges from the United States Congress. From 1990 through 1995, deposits of federal fines ranged between $128 million and $234 million. But one very large fine in 1995 caused the fund to rise to nearly $530 million the next year. The statute’s “shock absorber” – the State victim assistance administrators’ authority to pay out any one year’s grant over a three-year span – made the big increase manageable. Three years later, however, deposits jumped to nearly $1 billion, and even as OVC and its constituents pondered how to manage this new windfall, Congress stepped in by imposing a cap of $500 million (holding the balance in reserve). Congress has maintained the use of caps in the years following, with the amount creeping up in most years. The Congressional intrusion into the direct management of VOCA’s trust fund was tempered by the relative stability of the fund at about twice the level it enjoyed at the start of the decade. The trend of providing ever more services to larger number of victims continued. By the 1990s, there were effective services available in some communities heretofore under-served – communities defined by type of crime (such as homicide, domestic violence among same-sex partners or against male partners), or communities defined by geography (such as low-income urban dwellers and rural Americans), or communities within the larger community (such as immigrants and residents of Indian Reservations). The expansion of services meant expanding the understanding of compassion in new ways. It also meant establishing worthy prototypes and “best practices” that still reached only a minority of the intended victims. The pattern continues: there are not enough resources for victim services of any kind for hard-to-reach populations. Adding to the available VOCA funds was the federal government’s 1994 commitment to preventing violence against women and helping its victims. The Violence Against Women Act of 1994 (VAWA) packaged some 30

Victim services and victim rights: a view from the United States 345 grant programs – a substantial amount aimed at the scourge of domestic violence – with an initial authorization of almost $1 billion over five years. While VAWA advocates experienced some disappointments in the way the programs were designed and focused, they generally took pride in the fact that annual appropriations usually came close to the dollar ceilings authorized, and that the 1998 reenactment (“VAWA II”) included many improvements they had sought. The 2005 reauthorization sustained the statute’s larger goals. In 2005, two additional significant things took place. First, the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act (honoring five homicide victims whose loved ones became champions of the victim rights’ movement) was enacted. The Crime Victims’ Rights Act (CVRA, as it is commonly referred to) contains what is by now a standard litany of eight victim rights (a slight expansion on those listed in this chapter) – but has enforcement provisions found in no other such statute in the United States. It also authorizes funding, including for the establishment of free legal clinics, seeking to make sure the new law is fully implemented. It remains to be seen if this experiment in statutory reform meets its promise not only of delivering meaningful, enforceable rights for crime victims in the federal justice system but also as a model for states to emulate. While trial courts have been spotty in enforcing the rights, and appeals courts have been weak in policing the lower courts’ enforcement obligations, one federal appeals court recently ordered a trial court to re-sentence an offender – this time allowing the victim to participate – and added this commentary: Finally, we recognize that under [the Act], we were required to “take up and decide [this] application forthwith within 72 hours after the petition [had] been filed.” We acknowledge our regrettable failure to consider the petition within the time limits of the statute, and apologize to the petitioner for this inexcusable delay. It may serve as a small comfort for petitioner to know that, largely because of this case, we are in the process of promulgating procedures for expeditious handling of CVRA’s mandamus petitions to ensure that we comply with the statutes strict time limits in future cases. As victim participation in the criminal justice system becomes more common, we expect CVRA claims to become more frequent, and thus encourage district courts to modify their own procedures so as to give full effect to the CVRA. (Kenna v. US Dist. Court for the Central Dist. of California: 1018) That struck perhaps the most hopeful note yet that victim rights on the books may be fully honored in practice. But the second most remarkable event in the years since the Crime Victims’ Rights Act was adopted was most discouraging – at first.

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In early 2005, the President’s proposed budget to Congress contained a recommended “rescission” of every cent in VOCA’s Crime Victims Fund at the end of fiscal year 2006, a small step in helping to reduce the large federal deficit but a huge blow to the nation’s premiere victim-oriented program. That led to a firestorm, not only from the 4,500 local service agencies receiving VOCA funds but from many times that number within the broader victims’ movement and its supporters in the public – and in public office. In 2006, Congress adopted the Justice Department’s appropriations bill, where any such rescission would have to have been adopted. It did not contain any such rescission language – and indeed, not one member of either House of Congress expressed any support for the idea. Although many in the United States view that rejection of the “raid” on VOCA as a negative victory – blocking something bad rather than moving care for victims forward – it will also be seen as the strongest demonstration to date that the victims’ movement in the United States is more than a social cause. It is also one with a powerful political constituency. That sense of empowerment is, to the surprise of many, to be tested once more – the most recent Presidential budget proposal again calls for draining VOCA’s Crime Victims Fund. This time, activists in the United States victims’ camp are determined to not merely defeat the proposal but to get Congress to adopt legislative protections so VOCA will be protected from such assaults in the future. The United States has placed victims squarely in its political agenda by the force of its financial commitment to victim rights and services, but victim assistance professionals see the need to do more and that will require more resources. This is the growing trend around the world. The Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice adopted at the high-level segment of the Eleventh United Nations Congress on Crime Prevention and Criminal Justice (1995) includes Paragraph 17 as follows: We recognize the importance of giving special attention to the need to protect witnesses and victims of crime and terrorism, and we commit ourselves to strengthening, where needed, the legal and financial framework for providing support to such victims, taking into account, inter alia, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The emphasis on providing a financial framework for victims is significant as is the reference in the Council of the European Union Framework Decision on the Standing of Victims in Criminal Proceedings that suggests the “recognition and funding of victim support organizations” by each Member State.

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Conclusion The last 30 years in the United States has produced nothing less than a revolution in the way victims are understood and how responses to their needs are constructed. That revolution has been accompanied by rapid, complex, turbulent and unpredictable change on all fronts. That change will dramatically transform our world once again. Competition for dwindling resources, rapidly expanding populations, and the effects of globalization may also expand the numbers of victims and their needs. The goals and structure of justice may need to be re-examined. New definitions of crime will emerge. New insights into the effects of traumatization and its transmission both intergenerationally and cross-culturally will be articulated. New responses to crime and violence will be driven by international forces that transcend national barriers. The United States has served as a laboratory for experiments in victim rights and services in recent decades. In that, the experience of its victims’ movement can provide lessons, for good or ill, that may help others seeking to accomplish similar goals or to invent new ones. In turn, the experiments and experiences of other countries will help the United States reinvent its own ways of meeting the onslaught of change. The challenge of change is to overcome our fears of the unknown and to face them head on with as much knowledge as we can. As Jawaharlal Nehru wrote: Nothing in the world that is alive remains unchanging. All Nature changes from day to day and minute to minute – only the dead stop growing and are quiescent. So it is with the life of man, the life of a nation and the life of the world. (Bradley, Daniels and Jones 1975: 118)

References Ahrens, J., Stein, J.H. and Young M.A. (1980) Law Enforcement and Victim Services. Washington, DC: National Organization for Victim Assistance. Bradley, J.P., Daniels, L.F. and Jones, T.C. (1975) The International Dictionary of Thoughts. Chicago: J.G. Ferguson Publishing Company. Davis, R.C., Taylor, B.G. and Titus, R.M. (1997) ‘Victims as Agents: Implications for Victim Services and Crime Prevention’, in R.C. Davis, A.J. Lurgio and W.G. Skogan (eds), Victims of Crime, 2nd edn. Thousand Oaks, CA: Sage Publications, 167–82. McFarlane, A.C. and van der Kolk, B.A. (1996) ‘Trauma and its Challenge to Society’, in B.A. van der Kolk, A.C. McFarlane, and L. Weisaeth (eds), Traumatic Stress. NY: The Guilford Press, 24–45. President’s Task Force on Victims of Crime (1982) Final Report. Washington, DC: The Task Force. Smith, B.E. and Hillenbrand, S.W. (1997) ‘Making Victims Whole Again: Restitution, Victim-Offender Reconciliation Programs, and Compensation’, in

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R.C. Davis, A.J. Lurgio and W.G. Skogan (eds), Victims of Crime, 2nd edn. Thousand Oaks, CA: Sage Publications, 245–56. United Nations Office for Drug Control and Crime Prevention. (1999) Handbook on Justice for Victims on the Use and Application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) New York: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention. United Nations Office on Drugs and Crime. (2004) Promoting the Prevention of Crime: Guidelines and Selected Projects. Available online at: www.unodc.org/pdf/ crime/publications/promoting_prevention_crime.pdf (last accessed 15 May 2006). US Department of Justice, Office for Victims of Crime. (1998) New Directions from the Field: Victims’ Rights and Services for the 21st Century. Washington, DC: US Department of Justice, Office of Justice Programs. Van der Kolk, B.A. (2002) ‘In Terror’s Grip: Healing the Ravages of Trauma’. Cerebrum, 4, 34–50. Waller, I. (1996) ‘Victims of Crime: Justice, Support and Public Safety,’ in Y. Danieli, N.S. Rodley, L. Weisaeth (eds), International Responses to Traumatic Stress. Amityville, NY: Baywood Publishing Co. Wolfgang, M. (1965) ‘Victim Compensation in Crimes of Personal Violence,’ Minnesota Law Review 50, 223–41. Young, J. (1988) ‘A Risk of Crime and Fear of Crime: a Realist Critique of Surveybased Assumptions’, in M. Maguire and J. Pointing (eds), Victims of Crime – A New Deal? Philadelphia: Open University Press, 164–76. Young, M.A. (1993) Frontiers and Fundamentals. Washington, DC: National Organization for Victim Assistance. —— (2004) The Community Crisis Response Team Training Manual. Washington, DC: National Organization for Victim Assistance. Young, M.A. and Stein, J. H. (1983) The Victim Service System: A Guide to Action. Washington, DC: National Organization for Victim Assistance.

Legislation and treaties Europe Framework Decision on the Standing of Victims in Criminal Proceedings. (2001) Official Journal of the European Communities, L 82, 22 March 2001.

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA/RES/40/34, U.N. Doc. A/40/53. Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice. (2005) A/RES/60/177. Guidelines on Justice in Matters Involving Child Victims and Witnesses. (2005) E/2005/20.

Victim services and victim rights: a view from the United States 349 United States Victims of Crime Act (1984). PL 98-473. Victims’ Rights and Restitution Act (1992). PL 101-647. Violence Against Women Act (1994). PL-103-322. Crime Victims Rights Act (2004). PL 108-405. The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims Rights Act (2004). Title I, Justice For All Act of 2004, PL 108-405.

Cases Kenna v United States District Court for the Central District of California (2006). 435 F.3d 1011.

17 The needs of victims of crime in Korea Effective counseling strategies and techniques Keun-jae Chung

Introduction The past three decades have seen a five-fold increase in the total number of crimes taking place in Korea. Since 1990, there has been a steady increase in the rate of violent crimes and in the decade from 1990 to 1999, the overall crime rate in Korea increased 1.5 times (Joo 2003). As crime has increased, so too have the number of victims suffering from serious physical injuries as well as mental illnesses such as anxiety, depressive disorders and post-traumatic stress disorder (PTSD). In addition to this, victims of crime often had to deal with rather complicated legal and financial issues related to the crime. However, because of the deep-rooted cultural beliefs and traditions in Korea, particularly in relation to gender equality and the status of women in society, many victims of violent crimes have been neglected and ignored. This is particularly the case for victims of sexual and domestic crimes. In addition to the cultural factors that have hindered some victims from receiving adequate support, the socio-political situation in Korea has not helped either. Until the mid-1990s in Korea, the political leaders, all former military commanders, did not pay much attention to issues of social justice or human rights. Since then, however, awareness of human rights issues has grown and issues such as gender discrimination and the need for victim support services have received more attention from the government. This has led to the provision (by government and civic organizations) of financial assistance and support services for victims of crime in the form of counseling and basic direct services. This chapter will outline the needs of the victims of crime in Korea, focusing on the effects of PTSD. It will then examine some important aspects of counseling, including effective counseling skills and techniques. It will be argued that in providing effective counseling to victims of crime, it is essential to consider the unique cultural background and beliefs of the Korean people as well as the socio-political setting. It must be noted that this chapter does not take a systematic approach with theoretical hypotheses or

The needs of victims of crime in Korea 351 empirical research data, but rather it attempts to present a discussion of my varied experience in Korea as a psychiatrist and as a volunteer counselor and executive board member of the Gimcheon-Gumi Victim Support Center which is a non-profit, non-governmental organization.

The needs of victims of crime in Korea The needs of victims of crime are varied and wide-ranging. Consider the case below of a 16-year-old victim of sexual assault “Soon Yi” (a pseudonym) who received support from the Gimcheon-Gumi Victim Support Centre in Korea. After Soon Yi reported that her father sexually assaulted her, a policeman approached Gimcheon-Gumi Victim Support Center seeking assistance for her. A counselor from the center met Soon Yi immediately to find out about her situation and assess her needs. Soon Yi lived in a small village in the city of Gimcehon with her 74-yearold grandmother, a younger brother (aged 13 years) and her father (aged 37 years), who had been sexually assaulting her for a year. Her mother had left home three years ago because she could no longer tolerate her husband’s violence. The whole family lived in poverty. Soon Yi and her family’s needs were assessed as follows: First, Soon Yi had to be moved urgently to a safer environment so that she would be protected not only against her father’s continued abuse, but also from public exposure as a victim of incest (with its associated “shame” to her). Second, Soon Yi and her family needed to receive some financial assistance for their day-to-day survival. Third was the issue of education and the need for both Soon Yi and her brother to continue schooling elsewhere. Then there was the need for the victim to receive ongoing medical aid in the form of psychiatric consultations. With the help and support of the Gimcheon-Gumi Victim Support Center, temporary accommodation was provided at the Gumi Community Welfare Center located in a neighboring region, and Soon-Yi’s grandmother was granted a family allowance. In addition, the center arranged for both Soon Yi and her brother to continue their education at another school in a neighboring city, and the victim received the ongoing medical aid she required. In the following year, Soon Yi entered a technical school and found employment with a company that provided her with lodging. The Victim Support Center supported Soon Yi for two years until she recovered from the trauma and was well settled. Through the police investigations, she finally made contact with her mother and they were reunited. As can be seen from Soon Yi’s case, victims of crime require various types of support. While there may be some similarities in the needs of victims of crimes, it can be argued that there are also considerable differences in the needs of, and approaches to, victims of crime in Korea as compared to those in Western countries. This is to be expected, considering

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our different historical and cultural backgrounds as well as our different beliefs and ideologies.

Cultural factors The Korean culture and way of life have long been influenced by the Confucian ideology and moral codes. These stress the importance of conforming to authority and avoiding conflict with others (Joo 2003). Although recently there has been an increasing awareness of human rights issues and gender equality in Korea, traditional Confucian beliefs including male superiority and dominance over females are ever-present in many areas of Korea. Traditionally, women in Korea are expected to be obedient to men throughout their lives. First, women are expected to obey their fathers; after marriage, they are expected to be subservient to their husbands; and later in life, when their children have grown up, women are expected to “obey” their son(s). This view of women has meant that sexual and domestic violence against women have not, until recently, been seen as a serious offence, but rather as just another form of violence. Because of this, many victims of sexual and domestic violence in Korea (who are predominately women) are reluctant to seek help or go to a victims’ support center. While some victims of domestic violence may run away from home and seek to live independently in a Western society, many in Korea remain in their homes worried about their children’s wellbeing and future. Many of these women are also anxious about how the violence may affect their children, or they are overly concerned about their “honor” such that they keep it a secret. This pressure to “keep it a secret” is made worse by the fact that domestic violence has, in the past, been regarded as “a family issue” and has thus been neglected in the community. For victims of domestic violence, their inner hostility and anger caused by the violence they have suffered at the hands of their husband or other family members often lead them to feel helpless and paralyzed. Victims of domestic violence also often suffer from low self-esteem and are unable to trust those around them. This can sometimes result in a feeling of hostility towards those who are trying to help them such as counselors, policemen or even the court. In addition to victims of sexual and domestic violence, another group of vulnerable victims with special needs are the young victims of school violence. Generally these children have special needs as they tend to be physically weaker, deformed or disabled, and/or intellectually subnormal or mentally disabled to some degree. The school system in Korea is highly competitive and children who are over-anxious or depressed because of parental pressure placed on them to attain high academic results may also become victims of school violence (Hong et al. 1999). As mentioned earlier, victims of crime suffer not only from the physical injuries sustained from the abuse, but also from mental illnesses such as

The needs of victims of crime in Korea 353 anxiety, depressive disorders or acute stress reactions, which can arise as a result of the traumatic experience. Trauma can also lead to PTSD.

Post-traumatic stress disorder PTSD is a major psychological problem for victims of crime. It can be defined as: the development of characteristic symptoms following exposure to an extreme traumatic stressor . . . [which] include persistent reexperiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal. (American Psychiatric Association 2000: 463) Victims with PTSD often exhibit a great number of health problems such as gastro-intestinal or pseudo-neurobiological symptoms, chronic illness, increased mortality and earlier onset of dementia as well as greater functional impairment. The incidence of suicide attempts in patients with PTSD has been found to be as high as 20 percent (Davidson et al. 1991). Despite the gravity of PTSD, the cultural prejudice and social stigma associated with mental illness in Korea often lead to reluctance by those with PTSD to seek psychiatric help. As a consequence, many people with PTSD miss out on the benefits of early intervention and proper treatment. Some victims with PTSD, who have low self-esteem or problems with personal relationships and are disconnected from others, refuse to go a support center or hospital. On the other hand, some sufferers of PTSD seek help but are misdiagnosed. Reasons for misdiagnosis include low awareness of PTSD, a high rate of comorbidity (such as anxiety, depressive disorder and substance related disorders), the victim’s denial of the trauma or minimization of psychological sufferings, and overly high diagnostic thresholds set by clinicians (Davidson and Connor 1999). Also, some victims may present somatic symptoms that may not be clearly associated with the trauma, only complaining of their physical discomfort, and other co-occurring problems can mask or intensify PTSD. These can include psychiatric problems (such as depression, dissociations, self-destructive behavior), alcohol or drug abuse, and physical complaints or chronic pain with no medical basis. In addition to this, some sufferers of PTSD may not receive adequate treatment because their counselors may try to control the symptoms through counseling, neglecting the important fact that PTSD is an illness requiring specialized medical management. It is important to note that even when faced with overwhelming trauma, most victims of crime do not experience PTSD symptoms. Individual pre-

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existing biological and psychological factors and events that happened before and after the trauma must be considered. Pre-traumatic risk factors associated with PTSD include presence of childhood trauma, personality pathology (such as borderline paranoid, dependent, antisocial personality disorder traits), inadequate family or peer support system, being female, genetic vulnerability to psychiatric illness, recent stressful life changes, recent excessive alcohol intake, poor physical health and financial problems (Sadock and Sadock 2003, 2005). The onset of PTSD is also related to the severity and nature of the traumatic experience. Etiological factors The following etiological factors can be identified in PTSD: Psychodynamic factors The trauma can reactivate previously quiescent and unresolved psychological conflicts. A pre-exisiting conflict might be symbolically re-awakened by the new traumatic event. Traumatic events may resonate with childhood traumas and the inability to regulate these may aggravate the situation. The revival of the childhood traumas result in regression and the use of defense mechanisms of repression, denial, reaction formation, undoing and guilt (as a defense against underlying helplessness) (Sadock and Sadock 2003, 2005). Cognitive behavioral factors The cognitive aspects of PTSD are the lack of processing or rationalizing the trauma and the attempt to avoid experiencing the trauma by avoidance techniques. Some victims are eager to receive the secondary gains such as monetary compensation, increased attention or sympathy and the satisfaction of dependency needs. These gains reinforce PTSD and its persistence. Biological factors The biological theories of PTSD have developed from measures of biological variables in clinical populations. Intense stress is accompanied by the release of endogenous, stress-responsive neurotransmitters such as catecholamines (epinephrine and norepinephrine) and indolamine (serotonine), hormones of the hypothalamic-pituitary-adrenal axis (cortisol, glucocorticoid, vasopressin, oxytocin) and endogenous opioid. Hyperactivity of the autonomic nervous system is manifested in increased blood pressure and pulse rate, and abnormal sleep architecture (sleep fragmentation, delayed sleep latency). The neuroanatomical effects reveal decreased hippocampal volume, activation of amygdale, activation of sensory area, decreased activation of

The needs of victims of crime in Korea 355 Broca’s area during flashbacks and marked right hemispheric lateralization (Van der Kolk, McFarlane and Weisaeth 1996). Diagnosis of PTSD The DSM-IV diagnostic criteria for PTSD specify that the symptoms of reexperiencing, avoidance and numbing, and hyper-arousal must have lasted more than one month. If the symptoms have lasted less than three months, it is acute PTSD; if it is three months or more, the disorder is chronic. If the onset of the symptoms is six months or more after the stressful event, it is with delayed onset. For those whose symptoms manifest in less than one month, the diagnosis may be acute stress disorder. Treatment of PTSD As with the treatment of most other illnesses, the earlier the treatment for PTSD commences, the more effective it will be. As mentioned previously, even though PTSD is a mental illness with a psychological background, the rapid developments in the field of research on human minds in terms of biological etiologies have made psycho-pharmacological treatment the most efficient method of treating PTSD. Other major approaches to the treatment of PTSD are psychotherapy (including supportive, education as well as group or family therapy) and cognitive-behavioral therapy. In supporting victims of crime with PTSD or other mental illnesses, counseling plays a vital role.

Supporting victims of crime: the role of counseling Counseling is a professional activity provided by a trained and qualified expert. It is a face-to-face relationship based on mutual trust and intermediated by the language. The counselor focuses on the problems and conflicts faced by the victim, and the victim himself or herself makes decisions based on the insights gained through counseling. The first step of counseling is a face-to-face meeting between the victim and the counselor. This enables the counselor to evaluate the issues, problems and conflicts. This initial meeting is the start of the learning process in the relationship between the victim who needs assistance, and his or her counselor who provides the support (Jung and Park 1978). It is a continuous process based on a relationship of mutual trust as well as the counselor’s “generous acceptance” and empathic understanding (Jang and Moon 2003). Counseling is also extremely complex as the counselor works to help the victim solve the conflicts in his or her daily life and to grow in emotional maturity. Through face-to-face consultations with a well-trained specialist, the victim develops his or her adaptation skills and improves his or her quality

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of life. The information exchanges between the counselor and the victim enable the counselor to understand the victim’s difficulties and to provide some coping behaviors and strategies. Through ongoing counseling, the thoughts, feelings and behaviors which the victim experienced before counseling commenced can change and the real problems faced by the victims can gradually be resolved. In this way, the victim is able to progress and continue his or her growth as a human being.

Elements of counseling At the Gimcheon-Gumi Victim Support Center in Korea, the counselors’ work is based on fundamental elements of counseling including unconditional acceptance, empathy, attentive listening, transparency, honesty and confidentiality. These terms are explained briefly below. Acceptance “Acceptance” means that every person is considered to be a valuable human being, deserving of equal treatment. In other words, individual personalities should be accepted and respected. The counselor should be mindful of the fact that the victims have their own inner world which is completely different from the counselor’s and their right to live in their inner world should be acknowledged and respected. This means that the counselor has to accept both the positive and the negative or destructive aspects and behaviors. Even the victim’s contradictions are considered as “facts” and the counselor then has to work out the victim’s real motivations as well as the intended meaning behind the contradictions. The victim’s thoughts, emotions, attitude and personality traits are reflected during the counseling process, and the counselor should take care not to prejudge or anticipate the victim’s reactions. Rather, the counselor should observe, and listen to his or her client carefully and interview them without bias (Jang and Moon 2003; Lee 2005). Empathic understanding Another essential characteristic for a counselor working with victims of crime is empathy or the ability to display empathy. Human beings by their very nature desire to be understood. Whilst it is dangerous to generalize across the whole Korean population, it can be argued that most victims of crime in Korea long to be acknowledged and accepted. They want to be with those who understand and approve of them. It is thus important to keep in mind that counseling is a vehicle through which a person’s “inside world” can be reached and where he or she can experience his or her innate emotions. It also enables a person to understand what he or she is feeling and to resolve underlying issues or problems.

The needs of victims of crime in Korea 357 Attentive listening Understanding begins with careful listening. Careful listening is not only about hearing the verbal message in concrete terms but also understanding the state of the victim. Honesty and transparency In order for the counseling sessions to be effective, the counselor-victim relationship must be open and honest. This means that the victim should feel safe and comfortable enough to honestly reveal details of the crime and how they feel. Confidentiality When counseling victims of crime, the most sensitive and intimate information is disclosed. In order to establish an environment of open and honest exchange, an assurance of confidentiality is vital.

Objectives and goals of counseling The target objectives of counseling may be established for each consultation and goals are set for each stage of the counseling process. The development of basic trust is the main focus for each stage of the interview. This allows information to be gathered, problems and conflicts to be identified, and solutions to be found. In the middle stages, actions are set for intervention and for ventilation of suppressed feelings which can have therapeutic effects. The final stage brings a cessation of the counseling relationship as well as ongoing monitoring of the after-care. Objectives and goals should be set in view of the victim’s cultural background, value systems and present situation. In cases when the victim’s motivations are unclear or when he or she is not opening up about his or her issues and expectations, the goal of the counselor is to find out the “real” meaning behind the victim’s words. Dream analysis, interpretation of ideals and fantasies, and talk of desires can also be used to check the meaning of the victim’s words in the setting of goals.

Effective skills in counseling Counselors of victims of crime require a great deal of expertise and knowledge about the structure and development of the mind, as well as a sound academic background and extensive field training. Effective counselors will also have specific personal characteristics to enable them to fulfill numerous concurrent roles such as helper, supporter, friend, expert and adviser. These characteristics include a high level of self-awareness, a mature defense mechanism, flexible adaptation measures and a strong sense of ethics.

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In addition to this, an effective counselor should possess highly developed skills in counseling. Some of these are examined below. Interview skills Interviewing is an art and a skill, and each counselor has his/her own interviewing style. It provides the structure for the interaction between a counselor and a victim (Johnson and Yanca 2001), and each interview should have a specific purpose or goal. Generally, the purpose is to obtain the information needed to carry out some tasks, or to work together to meet a victim’s needs and help solve his or her problems. Each interview should be carried out in a manner that encourages interaction and a positive relationship. It is clear that we are moving more towards a view of counseling as a “time-limited service,” which means that counselors must place importance on the efficient use of time in accomplishing maximum effectiveness. This means developing and accomplishing goals and objectives that will bring about the necessary changes. Communication skills Effective communication is essential in the counseling process. The counselor uses verbal communication skills to elicit information, clarify meaning and provide positive feedback and support to the victim. Through verbal communication, the victim of crime can communicate his or her thoughts, attitudes, and emotions, and convey his or her intentions (Eum et al. 2001). By verbalizing his or her feelings, the victim becomes more aware of his or her feelings and attitude, and this realization can be applied to the real life situation. This helps to enable the victim to recognize and manage the problem or conflict. However, it is important to keep in mind that often, a victim’s verbal expression can be hindered by his or her emotions, and the meaning can only be obtained by observing non-verbal and paralinguistic elements such as posture, appearance and facial expressions as well as vocal elements such as tone and pitch. Thus the counselor has to consider both the emotions being expressed verbally and those that are being suppressed. Nonverbal communication and observation skills Nonverbal messages can offer substantial information about a person’s attitude or emotions and they can contradict the verbal expressions (Eum et al. 2001). Information about a person’s feelings or emotions can be obtained by observing nonverbal behavior. Body language for example, such as the way a victim sits or behaviors such as thumping his or her fist on the desk, can reveal something about his or her mood or attitude. The way a person begins and ends sentences may give clues about attitudes, and shifts in

The needs of victims of crime in Korea 359 conversation can indicate that a particular topic is painful, taboo or not something to discuss. Moreover, association of ideas can often give an indication of unspoken feelings, and inconsistencies or gaps can be an indication either that the material being discussed is threatening, or that the victim is unwilling to openly share his thoughts and feelings about the topic or issue. Listening skills The counselor should show, through active listening, that he or she is with the victim in his or her struggle to deal with his or her difficulties and problems, and reflect an attitude of openness and acceptance. Effective listening skills involve a good sense of timing that allows the focus to be on the victim and what is being said, not shutting down communication by giving premature evaluation and advice. Questioning skills In many respects, questions can be used to control the interview. Those with highly developed questioning skills use a variety of question types to elicit information from the victim. They also avoid asking the victim too many questions as he or she may feel bombarded or put on the spot, and thus “close up.” Interpreting skills Interpreting skills refer to the counselor’s ability to make meaning of the victim’s message and to clarify what has been said. For example, paraphrasing and summarizing often clarify what has been said and enhance understanding. By focusing, guiding and directing the discussion, the counselor enables the process of the work together to proceed toward the desired outcome. Climate-setting skills Empathy, genuineness and non-possessive warmth in interpersonal relationships are qualities that lead to understanding, openness and honesty, all of which are enabling factors in the work of counseling. As mentioned earlier, empathy is the capacity to communicate to the victim that the counselor accepts and cares for the victim by accurately perceiving the victim’s messages and by providing the victim with concrete feedback. Genuineness is the capacity of the counselor to communicate to the victim that the counselor is trustworthy. It is expressed by being willing to let the victim know the counselor as a person in ways that meet the victim’s need for such information. Non-possessive warmth is the capacity

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to communicate to the victim both concern and a desire for intimacy, and is displayed through positive regard and respect for the victim and through thoughtfulness and fondness (Johnson and Yanca 2001).

Special considerations in counseling victims of crime in Korea The first point to consider when counseling Korean victims of crime is the historical and social background of the country. Korea has a long history of being attacked and invaded by other countries, and because of the hierarchical nature of Korean society, many Koreans have been oppressed by those in higher, more powerful positions. This has led to many Koreans having underlying feelings of inferiority and “self-pity.” For counselors, this means that they have to take more care to avoid being seen as critical or patronizing. For example, if the counselor mentions his or her view of the crime and the victim’s responsibility in the crime, or if the counselor compares the severity of the victim’s crime with other crimes, then the victim may feel that they are being criticized and thus react defensively or refuse to open up during the counseling session. This means that the counselor has to take particular care with the language used to give the impression that he or she is treating the victims as an equal. The second point is the indirect nature of communication in Korea. What this means is that unlike people in many Western countries such as the United States or Australia, Koreans tend to be indirect in expressing their ideas or emotions. Therefore, the counselor has to take care not to dismiss victims who seek counseling for seemingly trivial or minor matters which seem to be unrelated to the crime. Rather the counselor should try to identify the real reasons why the victim has sought counseling and what he or she expects from the sessions. As Korean society is extremely fast-paced, it is also possible for the counselor to fall into the trap of “rushing” and press for answers to questions. Thus, it is important for him or her to allow the victim enough time to talk spontaneously and freely without coercion or any interruptions. As mentioned previously, Koreans learn to suppress their feelings and conceal their emotions. Open expression of one’s thoughts and emotions is considered to be an indication of immaturity and is thus discouraged. This has important implications for the counselor as it means that the victims of crime, like many other Koreans, may often “control” or restrain their verbal and nonverbal communication messages (Hong 2001). There are also specific considerations in counseling Korean victims who are children, adolescents, and the aged. Counseling children In any culture, children who are victims of crime should be given special consideration and differential treatment depending on their age and devel-

The needs of victims of crime in Korea 361 opmental stage. In counseling young children, it is more difficult to communicate effectively because of their limited linguistic ability to express themselves fully. Also, many children are afraid of being interviewed by an unfamiliar adult counselor and are apprehensive as to whether they are being believed or not. Recommended techniques and tools for making the counseling session more enjoyable include using toys such as dolls or puzzles, drawing pictures or playing games (Kang et al. 2005). While there may be some universal counseling techniques and tools that are useful regardless of the cultural background of the children, special consideration should be given to the cultural context in which a Korean child has been raised, and the approach to counseling a Korean child may have to be different in some ways, to the approach adopted in various Western countries. Korean society is hierarchical and children are taught to obey, respect and sometimes fear their elders. Korean children who perceive an adult counselor as a “public official” may be frightened of being punished or scolded as a result of the crime or traumatic event. The counselor has to alleviate the child’s fears by acknowledging his or her fears and building an atmosphere of complete trust and confidentiality. Moreover, working with Korean children may bring the added challenge of working with over-protective and domineering parents. Korean parents, particularly those who view their child as being their “possession,” can be over-protective or dominating and thus hinder the counseling process by wanting to take control of their child. In these circumstances, family counseling is inevitable (Kang et al. 2005). Finding out how the family members communicate with one another, clarifying what the role of each family member is and understanding the familial interactions are very important steps in understanding the victim’s trauma and establishing plans for personal development and social rehabilitation. Group counseling is a very effective strategy to enhance social adaptation and to control the familial conflicts. Counseling adolescents Adolescence extends from the beginning of sexual maturity to the achievement of independent adult status, and it is usually a stressful period of emotional turbulence caused by the tension between biological maturity, and emotional and economic dependence. Korean adolescents are used to violence as it is a common feature of the school environment and is not considered to be a serious problem. Therefore, some adolescent victims, most of whom are over-sensitive, self-centered and have problems adapting to different situations, suffer in silence for a long time. They are apt to be more confused and frightened by re-experiences or similar stimuli to the traumatic event. They are so much more emotional and sentimental than adults that they often cannot express themselves clearly without bursting

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into tears. The traumatic experiences cause a trend of mutual distrust and a suspicion or apprehension about the future. They may also suffer from extreme anxiety, poor concentration and temporary memory impairment. Sometimes adolescent victims also show regressed behavior or insist on staying at home with their parents (Lee 2005). To understand and support the adolescent victim, parental assistance and participation is essential. It is also important to educate parents about the issues facing their children. Counseling the aged The traditional Korean ethics of respecting the aged has broken down steadily as Korea becomes more industrialized and fast paced. These developments have led to a change in the value system, resulting in the collapse of the extended family and a trend towards a nuclear family. This has arguably led to an increase in crime against the elderly. For example, a 75-yearold woman was admitted into the hospital recently with a femur fracture. Her son, aged 38 and unmarried, had been assaulting her since her husband passed away four years ago, and attacked her whenever she refused to give him money. The neighbors reported the victim’s son to the police. The victim even tried to hide the assault from her daughters because she was worried that her son might be arrested and punished. This is true of many aged Koreans who hide their real problems and inner sufferings because of the fear of their problems being publicized or of causing their family to suffer some disadvantage. The victim in this case was deeply ashamed about being attacked by her own son. She suffered from fear, insomnia, depression, and suicidal thoughts. In addition to the medical support and treatment, both physical and psychiatric, the victim received supportive counseling as well. Through psycho-education, she understood that her son had some psychological problems that need to be treated and that she should not be embarrassed by her son’s assault because he was mentally ill. Through counseling, the victim was also encouraged to regain her self-esteem. This case shows the type of abuse which is increasing in prevalence and severity. It also reveals the changes that are taking place in the value system and culture in Korea. Various socio-cultural factors such as the vicious cycle of poverty, gender discrimination, poor inter-familial relationships, and psychodynamics can lead to neglect or abuse of the aged (Choi 2004). Others In addition to the specific considerations outlined above, the following considerations for Korean victims of crime should be noted because of the unique Korean culture and traditions.

The needs of victims of crime in Korea 363 Victims of crime are usually nervous and may have feelings of anxiety and inferiority. Therefore, making them feel relaxed through genial conversation is the first important step. In doing this, it may be necessary to encourage and motivate those who are passive or lack incentive to participate actively in the session. Because there is a stigma attached to mental illness in Korea as well, people are often ashamed about visiting a mental clinic. This is why it is important for the counselor to help the client understand that a mental illness is a disorder of the human body and should be treated like any other physical disease. Also, because mental features such as extreme nervousness, severe anxiety, depressed mood, psychic numbing and state of dissociation may develop after a traumatic event, victims may not feel their physical pain and suffering. Thus it is important that medical explanations and advice should be accepted, and that physical examinations and treatment as well as psychiatric evaluations and therapy should be received. Although this chapter has focused on the role of effective counseling in supporting victims of crime, the importance of network formation should not be ignored. This involves the victim support center forming positive relationships with the local community to support victims and render aid (Lee 2005). It also involves maintaining close contact with the public offices (such as the city council, education board, Prosecutor’s office, taxation office, police station and employment office).

Conclusion The past decade has seen a significant increase in the number of crimes in Korea. The victims of these crimes suffer not only from physical injuries – often the traumatic experience leads to the onset of mental illnesses such as anxiety, depressive disorders and PTSD. The first step in assisting victims of crime is counseling through face-to-face contact, telephone and via email. Even though counseling on its own is not sufficient to treat mental illness, it plays an important role in supporting victims of crime in Korea. This chapter has discussed the special needs of victims of crime in Korea and has examined some effective counseling skills and techniques. In providing effective counseling to victims of crime, it is essential to consider the unique culture and beliefs of the Korean people as well as the socio-political setting. This may indeed mean that we adopt an approach to counseling and other forms of victim support that is quite different to the approach taken in the West.

References American Psychiatric Association. (2000) DSM-IV-TR Diagnostic and Statistical Manual of Mental Disorders 4th edition. Arlington, VA: American Psychiatric Association, 463–68.

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Choi, S.H. (2004) Counseling for the Elderly and Residential Protection. Seoul: Hyun Hak-sa. Davidson, J.R.T. and Connor, K.M. (1999) ‘Management of PTSD: Diagnostic and therapeutic issues’, Journal of Clinical Psychiatry, 60 (Supp.18), 33–8. Davidson, J.R.T., Hughes, D., Blazer, D.G. and Georges, L.K. (1991) ‘Post-traumatic stress disorder in the community: an epidemiologic study’, Psychological Medicine, 21, 713–21. Eum, M.Y., Kim, S.C., Oh, H.K. and Yoon, H.M. (2001) Social Work Practice. Seoul: Hak Ji-sa. Hong, K.J. (2001) Process of Counselling. Seoul: Hak Ji-sa. Hong, K.J., Kim, T.H., Nahm, S.I. and Oh, I.S. (1999). Counseling for Youth. Seoul: Korea Youth Counseling Institute. Jang, S.C. and Moon, S.T. (2003). Counseling Psychology. Seoul: Dong Moon-sa. Johnson, L.C. and Yanca, S.J. (2001) Social Work Practice, A Generalist Approach. Boston: Allyn and Bacon. Joo, H.J. (2003) ‘Crime and crime control’, Social Research, 63, 239–63. Jung, W.S. and Park, S.S. (1978) The Principles of Counseling. Seoul: Gyo Yook Gwa Hak-sa. Kang, L.H., Park, M.S., Lee, B.J., Soe, S.J., Son, B.D., Nahm, J.R., Jun, K.H.,Yang, S.M., Baik, E.R., Son, Y.C. and Hwang H.W. (2005) Child Welfare. Seoul: Dae Wang-sa. Lee, Y.K. (ed.) (2005) Policy and Practice on the Prevention of Crime. Seoul: the National Committee for the Prevention of Crime, Department of Justice. Sadock, B.J. and Sadock, V.A. (2003) Kaplan & Sadock’s Synopsis of Psychiatry 9th edition. Philadelphia: Lippincott Williams & Wilkins, 623–31. —— (2005) Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 8th edition. Philadelphia: Lippincott Williams & Wilkins, 1775–7. Van der Kolk, B.A., McFarlane, A.C. and Weisaeth, L. (eds) (1996) Traumatic Stress. New York: The Guildford Press.

Part V

Compensation and restorative justice

18 Compensation orders in Singapore, Malaysia and India A call for rejuvenation Wing-Cheong Chan

If one were to ask any lay person as to what are the appropriate aims of the criminal justice system, ensuring that an offender make good the damage they have caused to the victim of the offence will inevitably be prominently featured (Shapland, Willmore and Duff 1985; Tan, A. 2005; Tan, C. 2005). This is hardly surprising because historically, there has been no clear cut division between the civil law and criminal law (Wolfgang 1965; Christie 1977). That a person who causes damage through his act should personally bear the cost of making good that damage was known in Anglo-Saxon England through the payment of compensation or ‘bot’ to his victim, and a fine or ‘wite’ to the king for breaching the peace (Softley 1978). This was the way things stood until around the twelfth and thirteenth centuries in England, when a distinction emerged between criminal acts committed feloniously and civil wrongs, which were a matter for legal action between the parties concerned only. In the case of the former, the property of a felon was forfeited to the king and there was little the victim could do to recover his property or obtain damages (Pollock and Maitland 1898). Why should there be such a large gulf between the civil law and the criminal law in terms of holding an offender accountable for the consequences of his conduct? Is it possible to find a space in the criminal law for this aim as well? In this chapter, I seek to answer these questions by looking at the ‘compensation order’ that can be made by the courts of Singapore, Malaysia and India in a criminal case.1 As these countries share a common legal heritage by virtue of being former British colonies, it will also be useful to make comparisons with the corresponding order available in England. Although in this chapter I refer to the power of the court to order an offender to pay monetary damages to his victim as a ‘compensation’ order, the more common terminology in today’s usage for this is a ‘restitution’ order2 instead because the term ‘compensation’ is used now for situations where the State pays damages to the victim of the crime. However, since the legislation in Singapore, Malaysia, India and England refer to damages paid by the offender as ‘compensation’, the same terminology will be adopted in this chapter.

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Comparison of the legal provisions In the case of England, a general power existed under Section 4 of the Forfeiture Act 1870 for ‘any person aggrieved’ to apply to a court convicting a person for felony to award a sum of money as ‘compensation for any loss of property suffered by the applicant through or by means of the said felony’.3 Little use was apparently made of this power and the Advisory Council on the Penal System, in its report in 1970, recommended that a new power to be given to the courts to order an offender to pay compensation. This was enacted as Section 1 of the Criminal Justice Act 1972, and later reenacted as Section 35 of the Powers of Criminal Courts Act 1973. It has since been revised twice.4 It is now possible to give a compensation order in England as a sole order instead of being in addition to any other penalty; where a fine and a compensation order are considered appropriate but the offender has insufficient means to pay both, preference is to be given to compensation; and a court has to give reasons if it chooses not to make the order. These reforms make it clear that it is the wish of the English legislature that more use should be made use of the compensation order and indeed that has been the direction taken by the courts following the amendments made to their law (Tarling and Softley 1976; Softley 1978; Newburn 1988; Moxon, Corkery and Hedderman 1992). Furthermore, it can be seen that the English compensation order enacted in 1972 is wider than its 1870 predecessor in three ways. First, compensation can be made for ‘any personal injury, loss or damage’ and not just for ‘loss of property’. Second, the personal injury, loss or damage could result from the offence for which the person is convicted, or from ‘any other offence which is taken into consideration by the court in determining sentence’. Third, the compensation order may be made by the court ‘on application or otherwise’ – which shows that the court may make the order on its own motion.5 In comparison, a wide power to order compensation already existed in Singapore, Malaysia and India before the English reforms. Under Section 420(1) of the Criminal Procedure Code passed in 1900 in the Straits Settlements,6 it was provided that: The Court before whom a person is convicted of any crime or offence may in its discretion make . . . the following orders against him in addition to any other punishment namely . . . (b) an order for the payment by him of a sum . . . by way of compensation to any person . . . injured in respect of his person, character or property by the crime or offence for which the sentence is passed. Other than the deletion of the words ‘in addition to any other punishment’ in 1954,7 the same wording of the provision can now be found in the respective Criminal Procedure Codes of Singapore and Malaysia.8

Compensation orders in Singapore, Malaysia and India 369 It can be seen that, unlike their 1870 English counterpart, the provision in Singapore and Malaysia already do not require an application to be made by the victim of the offence; and compensation is not limited to loss of property. The word ‘injury’ in fact bears a wide meaning in the criminal law of Singapore and Malaysia. It means ‘any harm whatever illegally caused to any person, in body, mind, reputation or property’,9 which would include mental distress or psychological trauma as a result of the offence. In both of these countries, compensation orders had been granted in cases involving property loss as well as personal injury.10 In the case of India, the original provision in her Code of Criminal Procedure (which dates back to 1898) was also broader than its 1870 English counterpart in that compensation can be made for ‘any loss or injury caused by the offence’. This provision read: Whenever . . . a Criminal Court imposes a fine . . . or a sentence . . . of which fine forms a part, the Court may . . . order the whole or any part of the fine recovered to be applied . . . (b) in the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court. (Section 545) A clear priority can be seen between a fine and a compensation order in that preference should be given to the latter. As mentioned above, this was not to be achieved in England until its own compensation order was refined in 1982. However, the court in India has to decide if a fine is called for in the first place and not work backwards from what compensation the victim should receive (Palaniappa Gounder v. The State of Tamil Nadu, 1977); and the sum for compensation cannot be imposed in addition to a fine (QueenEmpress v. Yamana Rao, 1901). Under the provision in India, the compensation order can only be granted if the court is convinced that the victim would be able to recover ‘substantial’ compensation in the civil courts. The word ‘substantial’ was deleted in 1973 when the Code of Criminal Procedure was re-enacted to allow for compensation orders even where only nominal damages can be recovered (Law Commission of India 1969), but the unfortunate identification of a compensation order as essentially a civil claim continued in that the court must be convinced that the victim can recover damages in a civil court. I shall return to this point below. It remained under this provision, however, that the compensation order can only be made if the court imposed a fine.11 In 1973, the following new subsection was added as Section 357(3) when the Indian Code of Criminal Procedure was re-enacted: When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the

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Wing-Cheong Chan order to the person who has suffered any loss or injury by reason of the act for which the accused has been so sentenced.

The clear advantage of this addition is that the compensation order can be granted even as a sole order. Arguably there is also no need to show the ‘loss or injury’ is recoverable in civil law as well under this subsection. However, it would be odd if there is a need to show that the claim for ‘loss or injury’ would succeed in civil law in one subsection but not in another and a court may take the position that the requirement is needed here as well. From this short survey of the legal structure of compensation orders in England, Singapore, Malaysia and India, it can be seen that there has been general convergence of penological thinking on this issue. Several key developments are pointed out below as well as areas where further reform may be needed. First, compensation is not limited to cases of property loss or damage. These may be the simplest cases to prove and quantify the compensation required, but other forms of harm such as personal injury, mental trauma or even defamation of character occasioned by the offence can also be compensated. Costs of medical treatment can be compensated (Lim Poh Eng v. PP, 1999), which should also include rehabilitative therapy and medical tests necessitated by the offence, such as pregnancy or HIV tests in the case of sexual assault. However, in the early Indian case of Imperatrix v. Narayan Vamanaji Patil (1896), it was held by the court that an order for compensation for losses caused by the victim’s inability to attend to his work because of his time being taken up with the prosecution of the accused was improper. In terms of future development, such indirect losses should also be covered since the aim of the compensation order is to require the offender to make good the damage or loss that he has caused. Second, the present approach only grants compensation to the direct victim of the offence. Others who have incurred losses by giving assistance to the victim cannot reclaim the sums spent (Mohamed Johan Mutalib v. PP, 1978; Lim Poh Eng v. PP, 1999). There is, however, no reason for this inconsistency. In the Singapore case of Lim Poh Eng v. PP (1999), the appeal court held that the victim’s husband’s employer, a private company, could not be paid compensation for the victim’s medical fees, which it had paid, even though it had paid this amount on the basis that the victim was covered by the medical benefits as a dependent of its employee. The result was that the victim was overpaid for the medical fees incurred by her and the husband’s employer would have to recover the sums paid through another means. Third, greater use of compensation orders by the criminal courts is desired by the legislators as can be seen by the amendments in all the countries mentioned to make it available as a sole order, instead of it being only possible in addition to another order made by the court such as a fine.12

Compensation orders in Singapore, Malaysia and India 371 Fourth, where a fine as well as a compensation order is deemed appropriate, but the offender is of limited means, preference is to be given to a compensation order. Fifth, a court may on its own motion make a compensation order without any application to do so by the prosecution or the victim of the offence. Sixth, while the compensation order operates on similar principles applicable in civil cases in that the victim’s losses must be causally related to the offender’s acts,13 and that the amount ordered cannot exceed the loss which the victim suffered,14 the compensation order belongs to the criminal, and not civil, justice process. This can be seen from the fact that a compensation order can be given as the sole order by the criminal court, and that nonpayment of compensation can result in enforcement proceedings used in enforcement of fines.15 There are two features of the English compensation order not found in their counterparts in Singapore, Malaysia and India, which may be usefully considered when the orders are reviewed in the latter jurisdictions. The first is that a compensation order can be ordered in England even for damage caused by offences for which the offender is not convicted but were only taken into consideration. This refinement is desirable since the offender would, by agreeing to have the other offences taken into consideration, have admitted to having committed them and he should therefore make good those damages too. Furthermore, whether a charge is proceeded with may depend on superfluous considerations such as the ease with which the charge can be proved and it would not be fair to discriminate between offences in this way. In the Indian case of Ram Prasad v. Emperor (1935), it was unfortunately held that no compensation can be ordered for offences which the offender may have committed but for which he has not been charged. Yeo (1984) suggests that the words ‘for which the sentence is passed’ in the Singapore provision may be read as enabling the compensation order to be made in respect of all the crimes that the offender has committed against the particular victim, even though they were only taken into consideration for sentencing.16 However, the courts in Singapore, Malaysia and India have so far not adopted this approach and for the sake of clarity, an amendment along the lines of the English provision is recommended. The second desirable feature of the English law is that the court is required to give reasons for its failure to make a compensation order. Although in practice reasons can always be found to justify a failure to make the order such as there being no application for the order to be made or a lack of information about the extent of loss or injury (Moxon et al. 1992), it is nevertheless a useful device to remind the court of its duty to consider the desirability of making the order in the circumstances, and the fact that reasons must be given opens the decision up to judicial review. This requirement was found in England to have a ‘very substantial impact on the use of compensation orders, particularly violent offences’ (Moxon et al. 1992: 29),

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even though the courts still give the order more readily in cases of property damage and theft cases than in personal injury cases because of the difficulty of assessing the appropriate level of damages and culpability in the latter (Newburn 1988; Moxon et al. 1992).17

Encouraging use of compensation orders While academic and public opinion are fully in support of greater use by the court of compensation orders, cases where this has been imposed are few.18 Why has this been the case? In a survey conducted by Yeo (1984) on fourteen Singapore District Judges and magistrates, it was found that the top four reasons given for not making a compensation order were: 1 2 3 4

lack of guidelines in computing sums to be paid; lack of judicial precedent in making compensation orders; no application for compensation by the prosecution; and the victim has resort to civil remedies.

The study noted that the lack of such orders was not due to ignorance or oversight of the existing provisions in the law. The first three reasons are practical difficulties of implementation, which will be discussed here. The fourth reason is a conceptual one which will be dealt with in the following section. The first two reasons given above are closely connected: as more judges grant compensation orders, the corpus of law will be built up on when such orders should be made and how the amount should be computed. Judges have never shied away from considering novel claims in tort, nor have they claimed to be unable to quantify the compensation amounts due in such claims. It should be noted that compensation orders in Singapore, Malaysia and India have been made in a range of situations involving property loss as well as personal injury.19 The third reason for the failure to make compensation orders had also been encountered in England, where it was found that the order was most likely to be granted if a request for compensation had been made to the court (Newburn,1988). In one study, it was found that the numbers increased if the prosecution mentioned the word ‘compensation’ during the court appearance which may not even be linked to a specific application (Shapland et al. 1985).20 It is unfortunate that not placing a specific requirement for the victim or the prosecution to make a request for compensation in the criminal process is used as a reason for not ordering compensation – because no one asked for it. The better approach is stated by Yeo (1984: 229): While there may be a duty on then part of the prosecution to make [recommendations for compensation orders] in appropriate cases, there is equally a duty on the judge or magistrate, as sentencer, to consider the making of such an order on their own initiative.

Compensation orders in Singapore, Malaysia and India 373 The courts in India have been directed to consider the making of a compensation order by their highest appellate court. In Sarwan Singh v. State of Punjab (1978: para. 10), the Supreme Court of India said: If the accused is in a position to pay the compensation to the injured or to his dependents to which they are entitled, there could be no reason for the court not directing such compensation. And in the case of Hari Krishan and State of Haryana v. Sukhbir Singh (1988: para. 10), the Supreme Court of India again said: [Section 357(3) of the Code of Criminal Procedure] is an important provision but the courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. . . . This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. . . . It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way. However, in order to ensure that more compensation orders are made by the courts, three reforms should be made. First, the legislatures in Singapore, Malaysia and India could introduce a provision, like the one in England, in their respective laws to require the judge to consider in every case whether a compensation order is suitable, and to give reasons in the event that the order is not made. Another possible reform is the one introduced in Scotland soon after compensation orders became available, where the procurator fiscal (the independent prosecutor) must consider if there is an identifiable victim who suffered damage or injury (see Shapland et al. 1985: 148). If there is, the victim is sent a form which asks about the extent of the damage or injury, together with a leaflet about the compensation order. The victim completes the form and returns it to the procurator fiscal, who submits it to the judge at the time of sentence. This systematic procedural device will overcome the complaint that there is insufficient information about the extent of the loss or damage suffered by the victim before the criminal court (see Newburn 1988). Finally, guidance could also be given to the courts as to the sums which would be appropriate in personal injury cases, depending on the type of injury. Such guidance was given to the English criminal courts based on what was given out in their State compensation scheme (Moxon et al. 1992). In the context of Singapore, Malaysia and India, the sums could be based on

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what the local courts had awarded in civil negligence cases involving personal injury or on their workmen’s compensation schemes.

Conceptual difficulties The fourth reason given above for the lack of compensation orders is one which legally trained persons have the hardest time in challenging.21 Compensation orders are seen as merely aiding the victim to obtain damages which he would be entitled to anyway under the civil law. This view was clearly expressed in the English case of Inwood (1974: 73): Compensation orders were not introduced into our law to enable the convicted to buy themselves out of the penalties for crime. Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation when the criminal clearly has means which would enable the compensation to be paid. The role of the criminal court is therefore focused on the punishment of offenders – a responsibility that has been entrusted to the State. If what the victim is after is the payment of monetary damages, this should be pursued by the victim in a private action in the civil courts. The above quotation has unfortunately been endorsed by two Singapore cases over the years: PP v. Lee Meow Sim Jenny (1993) and PP v. Donohue Enilia (2005). In the latter case, the then Chief Justice of Singapore who decided the case even said (at para. 47): It is already well-established law that a compensation order is not part of the sentence, nor is it a form of punishment for an offence. . . . The objective of granting a compensation order is to recompense victims of crime for their injuries or losses suffered. It may act as a token of remorse on the accused’s behalf, but it is not targeted at punishing the accused, nor is it an enhancement of the sentence imposed upon him. The focus is on redressing the victim’s loss in a justifiable manner. It is submitted that it was wrong of the Singapore court to look to an English case decided in 1974 to decide on the proper approach to compensation orders in Singapore. This approach fails to acknowledge the amendments made to the English system since then, and the fact that the compensation order had always been broader in Singapore than in England. International instruments have also endorsed the concept of compensating victims of crime: see paras. 8 and 9 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985); paras. 10, 11 and 14 of the Council of Europe’s Position of the Victim in the Framework of Criminal Law and Procedure (1985); and art. 9 of the Council of the European Union’s

Compensation orders in Singapore, Malaysia and India 375 Framework Decision on the Standing of Victims in Criminal Proceedings (2001).22 However, at the heart of the issue is the divide in the minds of those who are legally trained between criminal law (which is to punish offenders and thereby serve the public function of controlling crime in society) and civil law (which is to resolve private disputes between individuals by returning them to the status quo ante). If that is the case, then naturally the civil remedies cannot ‘punish’ an offender and they, logically, can have no place in the criminal justice system.23 But this divide between the civil law and the criminal law was unmistakably breached when the law was amended to allow a court to make a compensation order as the only order consequent upon a conviction. It is time to recognize the shifts in penological thinking. The criminal justice system had for a long time been thought to be punitive in character in the way mentioned above. Compensation orders could only gain a place in this system by being seen to support – but not adding to – the punishment meted out. It is therefore said that compensation orders helped to make offenders more accountable for their acts and impressed on them the severity for their actions. Alternatively, when rehabilitative ideals were in ascendance, compensation orders were also said to aid an offender’s rehabilitation by requiring him or her to make reparations for those of his or her acts which have harmed others.24 Both approaches are now criticized by the victims movement as being offender-based arguments which are not motivated by concerns for the victim. It is not the intention of this chapter to evaluate the arguments made by those who advocate the adherence of the criminal justice system to its traditional punitive role and those who advocate a fundamental re-orientation of the entire criminal justice system towards reparative justice. To my mind, the better approach is the middle course where there is room for both. While there may be inevitable inconsistencies in a system of justice that embodies both punitive and reparative elements, it is possible for both to co-exist, thus allowing the system to have a range of available weapons in its efforts to control crime.25 Let us look briefly at two of the arguments against compensation orders in particular. A frequently made objection, which was already referred to above, is that the compensation order is nothing more than a convenient means of obtaining civil redress within the criminal process. Since the wrongdoer would be liable for the damages anyway in civil law, the compensation order does not have a penal quality in terms of imposing something unpleasant or exacting an additional loss, to justify its place in the criminal process as a ‘sentence’. This explains why some judges still cling on to the idea that the compensation order is made ‘in addition to the punishment to be meted out’ (Ho Yean Theng Jill v. PP, 2004, para. 37) or that it is not ‘an alternative to a sentence’ (PP v. Donohue Enilia, 2005, para. 21) even though the law had been amended to allow for compensation orders as the sole penalty.

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Similarly, in a leading commentary on the Indian Code of Criminal Procedure, it was said that: Compensatory process involves no penal consequences. Compensation could be ordered under Section 357(3) [of the Indian Code of Criminal Procedure] . . . is not part of punishment. (Nagaratnam 1996: 3874) However, as pointed out by Zedner (1994), this objection ignores the fact that in the vast majority of cases, compensation orders extract money from offenders who would not otherwise be required to pay because most victims would not spend the time or expense to pursue their civil claims against the offender. Furthermore, a compensation order, even if imposed as the sole penalty, is only imposed after the offender is convicted. This means that the offender suffers the stigma and shame associated with a guilty verdict, which is not the same as being a losing party in a civil suit. Where the payment of the amount ordered under the compensation order is not made, the order can also be enforced in the same way as a fine (which in the case of Singapore and India includes imprisonment in default).26 Thus, a compensation order is different from redress in the civil process. Another objection against reparative justice in general is that it ignores the fundamental basis of criminal liability, which is the offender’s mental attitude, and not the degree of harm suffered by the victim (which is the centrepiece of the reparative approach) (Ashworth 1985). Hence, attempts, conspiracy, conduct crimes and possession-type offences are all deemed to be criminal regardless of any harm done because of the offender’s evil intent. One possible way to overcome this objection is for the concept of ‘harm’ to be broadened. A person who causes fear of injury being inflicted can also be seen as causing harm even though no one is physically hurt by it. In that way, attempts, conspiracies and even victimless offences which engender a sense of insecurity in the individual or in the community can be seen as potential harms. But, as Zedner (1994) concedes, there are difficulties in drawing a link between the sense of insecurity and the culpability of individual offenders, and the approach may allow a disproportionate intrusion into the lives of petty offenders and young delinquents. It should also be noted that even where culpability is based on the offender’s intent to commit the offence in the traditional view, the degree of harm caused plays a large role in determining what offence the person is ultimately charged for and the sentence to be meted out. An example given by Zedner (1994) is that in the case of interpersonal violence, without any change in the offender’s mens rea, the crime charged can vary between simple assault and manslaughter, depending on the degree of harm caused. Harm is therefore already recognized in the traditional approach as determining the seriousness of the crime. She argues that recognizing the place of harm caused can also give better balance to the current system of liability

Compensation orders in Singapore, Malaysia and India 377 which places too much emphasis on the offender’s state of mind. Under the present approach, a crime committed negligently but causes irreparable harm to many (such as in cases of environmental disasters) is punished far more leniently than a crime committed deliberately but where only one person is affected.

Suggestions for the future A lingering suggestion from the quotation given above in the case of Inwood (1974) is that there is a danger that the compensation order will only benefit offenders who can ‘buy’ themselves out of the criminal justice system. This danger was referred to in Singapore in Ho Yean Theng Jill v. PP (2004). There is also the concomitant danger that impecunious offenders may be forced to short periods of imprisonment in default or driven to further crime if asked to pay compensation. It is suggested that one way of overcoming this problem is by broadening the concept of compensation from only the payment of monetary damages to the possibility of the offender being made to personally repair the damage caused to the victim where possible (reparation in kind). Monetary damages are just one aspect of the wider concept of making amends for the damage caused to the victim. A comparison can be made with the ‘community service order’ practised in Singapore to shed some light on how this possibility can be developed and used either on its own or in combination with the payment of monetary damages.27 Another reason for the courts not granting compensation orders as often as they could is that the quantification of the loss suffered by the victim is unclear. It is sometimes said that the better course of action in such cases is for the victim to institute civil proceedings than for the criminal court to entertain a long drawn out dispute. On the other hand, it is also said that a court should adopt a broad common sense approach in assessing the amount of compensation without being too enmeshed in technical details of law.28 In the English case of Chappell (1984), it was even said that a criminal court may make a compensation order against an offender where there was no right to sue in the civil courts. To some extent, the difficulty with quantification can be lessened by requiring the prosecution to ask the victim to submit medical or psychological reports on the extent of the injuries in doubtful cases,29 and there is certainly no need to require the damage or injury to be proven to a degree that will satisfy a criminal court or to require that the victim open himself up to cross-examination by the offender.30 As noted by the Advisory Council on the Penal System (1970: para. 78): It may be that some victims tend to inflate their assessment of loss or damage when reporting to the police but in practice the courts will have to accept this assessment, unless there is any good ground for disputing

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Moreover, on a proper appreciation of the compensation order as explained above, it can be seen that there is no need for the court to be unduly concerned with awarding the same amount of compensation as the victim would obtain in civil damages in any case. In the criminal sphere, a symbolic gesture of reparative justice will be achieved by granting compensation which approximates what the victim had suffered. Studies have found that what causes victims the most dissatisfaction with the compensation order scheme is when they do not receive adequate information about the orders and delay in payments, not the quantum of compensation (Shapland et al. 1985; Newburn 1988). If the victim is not satisfied with the amount of compensation ordered, he or she can of course seek recourse from the civil courts.31 However, the compensation order, even if improved along the lines suggested above, is still limited in its scope in providing justice to victims of crime. Such an order can only be made if several steps take place: the offender must be identified, apprehended and charged for the offence; he or she must be convicted by the court; the court must find it a suitable case to make a compensation order; and the offender must have the means to pay the damages (if monetary) and be willing to comply with the order. It is well known that many offences are not reported to the police in practice (which could be because the offender is unknown or because of fear or embarrassment and so on), and that even if the offence is reported, the police may not be able to apprehend the offender. There is also no certainty that the court will convict the offender, who could have a defence available or the case against him or her could be weak. When a compensation order is made, the offender may not comply with it, or he or she may not have the financial means to do so, especially if he or she is sentenced to a term of imprisonment as well. The last point means that compensation orders may be suitable, in most cases, where the offence is a minor one which does not attract a custodial penalty. In order to overcome these problems with offender-based compensation schemes, a State funded compensation scheme has been set up in many countries. Although limited in the amount of compensation and eligibility criteria, it can nevertheless provide victims of crime with some compensation when offender-based schemes fail.32 The call for State compensation schemes is not new (Yeo 1984). Unfortunately, Singapore, Malaysia and India (except for the state of Tamil Nadu) all do not have State-funded compensation schemes. It is a regrettable state of affairs that there are no

Compensation orders in Singapore, Malaysia and India 379 known moves to either improve its offender-based compensation scheme nor to enact a State compensation scheme for victims of crime in these countries. The role that compensation plays in meeting the financial, physical, emotional and social needs of crime victims must be recognized (Young 2003). It will do well for these jurisdictions to seriously consider the importance – even if a symbolic one – of reparations by the offender for victims of their crimes.

Notes 1 Other countries in the Asian region which were former British colonies and have retained the common law legal system in their countries include Sri Lanka, Pakistan and Brunei, but it is not the intention of this chapter to examine the legal systems of all these countries in detail. 2 A wider meaning is therefore now given to the term ‘restitution’ which in the past meant simply the return of property (or its money equivalent) to the victim of the crime. 3 Other more specific provisions which enable a court to order compensation in certain situations, such as when a probation order is granted, can be found in England as well as in Singapore, Malaysia and India. This possibility in the case of probation orders was not made much use of in England (Radzinowicz and Hood 1986) and it probably fared no better overseas (in the case of Singapore, see Yeo 1984). In countries which follow the civil law system, a partie civile procedure may be available where the victim pursues a civil claim against the offender in the same proceedings as the criminal trial. See the chapters in this volume for Asian countries which practise this system. 4 By the Criminal Justice Act 1982 and the Criminal Justice Act 1988. 5 The lack of an identified party to make the application also means that none is ultimately responsible for doing so. The victims of the crime are unlikely to be involved in the proceedings or know of the legal provisions allowing them to make the application. This defect is remedied somewhat by the requirement added later that the court direct its mind as to whether a compensation order should be granted and to give its reasons if it does not. 6 The Straits Settlements comprised Singapore, Penang and Malacca. The latter two are now part of Malaysia. This provision originally appeared in 1892 as Section 391 of the Criminal Procedure Code but the entire code lapsed when it was not passed and had to be re-introduced eight years later. In 1976, the individual criminal procedure codes of Penang and Malacca were repealed and a uniform code applied to all the constituent States of Malaysia, which was essentially a re-enactment of the earlier code. 7 By Ordinance No. 8 of 1954. 8 Section 401(1) Criminal Procedure Code (Singapore); s. 426 (1) Criminal Procedure Code (Malaysia). In the case of PP. v. Ng Tick Chuan (1948), which was decided before the deletion of the words ‘in addition to any other punishment’, it was held that a compensation order cannot be made unless some punishment was ordered. 9 The definition of the word ‘injury’ can be found in s. 44 Penal Code (Singapore) and s. 44 Penal Code (Malaysia). The same definition applies in India, s. 44 Penal Code (India). 10 For loss of property cases, see e.g. Kok Kee Kwong v. PP (1972); Yeo Siow Yee v. PP (1974); Radin Ibrahim bin Gusti Yassar v. PP (1988). For personal injury

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13 14

15

16

17

18

19 20

21

Wing-Cheong Chan cases, see e.g. Raja Izzuddin Shah v. PP (1979); PP v. Lee Seck Hing (1992); Lim Poh Eng v. PP (1999). In re Bastoo Dumaji (1898); Munney Mirza v. King-Emperor (1925); Girdhari Lal v. State of Punjab (1982). In practice, few sole orders of compensation are made probably because judges do not see compensation as a punishment in its own right (see discussion in text). In the case of England, one study found that compensation orders were used as the sole penalty in only 6 per cent of cases before the magistrates’ courts, while 52 per cent of compensation orders were made in combination with a fine (Moxon et al. 1992). For example Muniandey v. PP (1955) (Malaysia); PP v. Donohue Enilia (2005) (Singapore). E.g. Emperor v. Maung Thin (1909) (India); Shib Das v. Emperor (1923) (India); PP v. Donohue Enilia (2005) (Singapore). See also s. 401(4) Criminal Procedure Code (Singapore); s. 426(4) Criminal Procedure Code (Malaysia); and s. 357 (5) Code of Criminal Procedure (India) where a victim is allowed to pursue his or her civil remedies separately for damages beyond the amount paid under the compensation order where the latter is lower. Section 403 Criminal Procedure Code (Singapore); s. 431 Code of Criminal Procedure (India). In the case of Malaysia, enforcement of the compensation order by way of imprisonment in default of payment is specifically disallowed, s. 426(2) Criminal Procedure Code (Malaysia) and see Muniandey v. PP (1955). This argument would similarly apply to the Malaysian and Indian provisions. The Indian case of Ram Prasad v. Emperor (1935) was decided before the new s. 357(3) was added to the Indian Code of Criminal Procedure and therefore did not consider this point. In Newburn’s study (1988), it was also found that sentencers had found difficulty in ascertaining who was the victim and who was the offender in personal injury cases as these may involve some form of provocation by the victim. The same concern that compensation should only be given to the ‘innocent’ were expressed in the Indian cases of Mohammad Shah v. Emperor (1934) (no order of compensation to the relations of the deceased when the fight is the result of encroachment made by the deceased and his family on the field of the accused) and Maung Sein v. Emperor (1935) (no compensation for dependents of the deceased who had with full knowledge and of her own free will consented to being attended to by an unqualified midwife at the time of her delivery); and in the Singapore case of PP v. Donohue Enilia (2005) (the suggestion that the compensation order for a foreign worker’s unpaid wages would not have been appropriate if she had continued to work for her employer despite knowing that her work permit had been revoked by the authorities). For the view of academics in Singapore, see Yeo (1984), Woon (1992) and Chan (2003). However, where a compensation order is imposed, the amount ordered can be high – in the Singapore case of Lim Poh Eng v. PP (1999), the court ordered that the offender, a practitioner of traditional Chinese medicine, reimburse S$39,066.02 for the medical fees incurred by the victim owing to the negligent medical treatment she had suffered. See note 10 above. The reference could be in any context such as in a specific application for compensation, merely reminding the judge of his powers, or citing the making of a compensation order in the sentence for a previous conviction (Shapland et al. 1985: 137). See Chapter 10, ‘Clashing Conceptions of the Victim’s Role in Singapore’s Criminal Process’, in this volume. The Singapore courts tied themselves in knots around the issue whether a compensation order was a ‘sentence’ for purposes of

Compensation orders in Singapore, Malaysia and India 381

22 23

24 25 26 27

28 29 30 31 32

its appellate jurisdiction, see PP v. Lee Meow Sim Jenny (1993) and Lim Poh Eng v. PP (1999). The issue was finally side-stepped in PP v. Donohue Enilia (2005) when it was noted that the court could also entertain appeals against ‘any other order’. See also pp. 18 and 72 of the Final Report of the President’s Task Force on Victims of Crime (1982) in the US. See Hor, note 21 above. The tangled lines go deeper: under Singapore’s Criminal Procedure Code, a fine is defined as including ‘compensation adjudged upon any conviction’ (s. 2) and the measures to enforce payment of compensation is same as enforcement of a fine (ss. 224 and 403). See views expressed in para 9 of the report of the Advisory Council on the Penal System (1970). However, its rehabilitative impact according to US studies is unclear (Castellano 1992), but compare with Galaway (1992). See Zedner (1994) for a fuller discussion. Other measures in the field of reparative justice include victim-offender mediation and family conferencing. See note 15 above. In a study by the Subordinate Courts’ Research and Statistics Unit (1998), it was found that the community service order had been effective. Of 97 probationers who had completed their community service orders as required under the terms of their probation order, only four per cent breached their probation orders and three per cent had re-offended. Seventy-five per cent felt that they have made amends for their offences by rendering their services to the community. The order is now expressly recognised by legislation and may be ordered separately from probation under section 44(1)(f) of the Children and Young Persons Act. Galaway (1992) however makes a distinction between repairing community losses from repairing victim losses, so while he would be in favour of calling schemes which require an offender to render personal services in order to make good a victim’s loss as victim restitution, he would equate community service orders with fines or probation. In my view, this overlooks the important feature that community service seeks to repair the damage caused, and that the community can also be said to be harmed by the offence by its collective loss of security. This gives rise to the conflict noted by Hor, note 21 above, of the court claiming to grant compensation on the basis of civil law principles but not doing so since the same rigours of proof need not be satisfied. See the recommendation to adopt the Scottish procedure above. Cf. PP v. Donohue Enilia (2005), para 23. Or persuade the Public Prosecutor to appeal against the compensation order made by the court. This includes a refusal of the court to make a compensation order, see PP v. Donohue Enilia (2005). Care must be taken when devising the State compensation system to ensure that victims do not fall between the gaps of the two. Complaints against a State compensation system include insufficient funding, inadequate dissemination of information of its availability, and stringent eligibility requirements.

References Advisory Council on the Penal System. (1970) Reparation by the Offender. London: Her Majesty’s Stationery Office. Ashworth, A. (1985) ‘Punishment and Compensation: Victims, Offenders and the State’, Oxford Journal of Legal Studies, 6, 86–122. Castellano, T.C. (1992) ‘Assessing Restitution’s Impact on Recidivism: A Review of the Evaluative Research’, in Emilio C.Viano (ed.), Critical Issues in Victimology. New York: Springer Publishing Co., 233–47.

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Chan, W.C. (2003) ‘Victim-Offender Mediation, Making Amends and Restorative Justice in Singapore’, in Tatsuya Ota (ed.), Victims and Criminal Justice: Asian Perspective. Tokyo: Keio University. Christie, N. (1977) ‘Conflicts as Property’, British Journal of Criminology, 17, 1–15. Galaway, B. (1992) ‘Restitution as Innovation or Unfilled Promise?’, in Ezzat A. Fattah, Towards a Critical Victimology. New York: St. Martin’s Press, 347–71. Law Commission of India. (1969) Forty-first Report: The Code of Criminal Procedure 1898. New Delhi: Government of India, para. 46.12. Moxon, D., Corkery, J.M. and Hedderman, C. (1992) Developments in the Use of Compensation Orders in Magistrates’ Courts since October 1988. Home Office Research Study No. 126. London: Her Majesty’s Stationery Office. Nagaratnam, R. (1996) Sohoni’s The Code of Criminal Procedure, 1973 (19th edn), vol. 4. Allahabad: Law Book Company. Newburn, T. (1988) The Use and Enforcement of Compensation Orders in Magistrates’ Courts. Home Office Research Study No. 102. London: Her Majesty’s Stationery Office. Pollock, F. and Maitland, F.W. (1898) The History of English Law before the time of Edward I (2nd edn), vol. 2. London: Cambridge University Press. President’s Task Force on Victims of Crime. (1982) Final Report of the President’s Task Force on Victims of Crime. Washington, DC: Government Printing Office. Radzinowicz, L. and Hood, R. (1986) A History of English Criminal Law, vol. 5. London: Stevens. Research and Statistics Unit. (1998) Subordinate Courts’ Study of the Effectiveness of Community Service Orders. Research Bulletin, October, issue no. 14. Shapland, J., Willmore, J. and Duff, P. (1985) Victims in the Criminal Justice System. Aldershot: Gower Publishing Company Limited. Softley, P. (1978) Compensation Orders in Magistrates’ Courts. Home Office Research Study No. 43. London: Her Majesty’s Stationery Office. Tan, A. (2005) ‘When Offenders are Fined, turn Proceeds over to the Victims’, Today, 24 October. Tan, C. (2005) ‘Salving the Wound with Money’, Today, 19 October. Tarling, R. and Softley, P. (1976) ‘Compensation Orders in the Crown Court’, Criminal Law Review, 422–28. Wolfgang, M.E. (1965) ‘Victim Compensation in Crimes of Personal Violence’, Minnesota Law Review, 50, 223–41. Woon, W. (1992) ‘Compensation Orders in Criminal Cases’, Singapore Academy of Law Journal, 4, 359–63. Yeo, S.M.H. (1984) ‘Compensating Victims of Crime in Singapore’, Malaya Law Review, 26, 219–37. Young, M.A. (2003) ‘Meeting Victim Needs: What is the Role of Victim Compensation in Recovery’. Paper presented at the National Roundtable on Victim Compensation, 10 June 2003. Washington, D.C.: National Center for Victims of Crime. Zedner, L. (1994) ‘Reparation and Retribution: Are They Reconcilable?’, Modern Law Review, 57, 228–50.

Compensation orders in Singapore, Malaysia and India 383 Legislation and treaties Britain Forfeiture Act (1870). c. 23. Criminal Justice Act (1972). c. 71. Powers of Criminal Courts Act (1973). c. 62. Criminal Justice Act (1982). c. 48. Criminal Justice Act (1988). c. 33.

Europe Position of the Victim in the Framework of Criminal Law and Procedure. (1985) Recommendation No. R(85) 11. Framework Decision on the Standing of Victims in Criminal Proceedings. (2001) Official Journal L 82, 22 March.

India Penal Code (1860). Act 45. Code of Criminal Procedure (1898). Act 5. Code of Criminal Procedure (1974). Act 2.

Malaysia Penal Code (1997). Act 574. Criminal Procedure Code (1999). Act 593.

Singapore Criminal Procedure Code (1985). Cap. 68. Penal Code (1985). Cap. 224. Children and Young Persons Act (2001). Chapter 38.

Straits Settlements Criminal Procedure Code (1900). Act 21.

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. (1985) GA Res 40/34, U.N. Doc. A/40/53.

Cases Britain Chappell. (1984) Criminal Appeal Reports (Sentencing), 6, 214. Inwood. (1974) Criminal Appeal Reports, 60, 70.

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India Emperor v. Maung Thin. (1909) Criminal Law Journal, 10, 78. Girdhari Lal v. State of Punjab. (1982) All India Reports, Supreme Court, 1229(2). Hari Krishan and State of Haryana v. Sukhbir Singh. (1988) All India Reports, Supreme Court, 2127. Imperatrix v. Narayan Vamanaji Patil. (1896) Indian Law Reports, Bombay, 22, 438. In re Bastoo Dumaji. (1898) Indian Law Reports, Bombay, 22, 717. Maung Sein v. Emperor. (1935) All India Reports, Rangoon, 471. Mohammad Shah v. Emperor. (1934) All Indian Reports, Lahore, 519. Munney Mirza v. King-Emperor. (1925) All India Reports, Oudh, 110(1). Palaniappa Gounder v. The State of Tamil Nadu. (1977) All India Reports, Supreme Court, 1323. Queen-Empress v. Yamana Rao. (1901) Indian Law Reports, Madras, 24, 305. Ram Prasad v. Emperor. (1935) All India Reports, Rangoon, 199. Sarwan Singh v. State of Punjab. (1978) All India Reports, Supreme Court, 1525. Shib Das v. Emperor. (1913) Criminal Law Journal, 14, 659.

Malaysia Kok Kee Kwong v. PP. (1972) Malayan Law Journal, 1, 124. Mohamed Johan Mutalib v. PP. (1978) Malayan Law Journal, 1, 213. Muniandey v. PP. (1955) Malayan Law Journal, 231. PP v. Ng Tick Chuan. (1948) Malayan Law Journal Supplement, 159. Radin Ibrahim bin Gusti Yassar v. PP. (1988) Malayan Law Journal, 3, 237. Raja Izzuddin Shah v. PP. (1979) Malayan Law Journal, 1, 270. Yeo Siow Yee v. PP. (1974) Malayan Law Journal, 1, 54.

Singapore Ho Yean Theng Jill v. PP. (2004) Singapore Law Reports, 1, 254. Lim Poh Eng v. PP. (1999) Singapore Law Reports, 2, 116. PP v. Donohue Enilia. (2005) Singapore Law Reports, 1, 220. PP v. Lee Meow Sim Jenny. (1993) Singapore Law Reports, 3, 885. PP v. Lee Seck Hing. (1992) Singapore Law Reports, 2, 745.

19 Assessing the use (and misuse) of restorative justice in the criminal justice system James Dignan

Questions concerning the use and misuse of restorative justice in the criminal justice system can be answered at a number of different levels. The first and most obvious response is to describe the aims of restorative justice, particularly from the standpoint of the victim. However, the existence of other aims also needs to be borne in mind since it cannot be taken for granted that they will all be compatible, whether in theory or in practice. A second response would be to look at the functions that restorative justice processes can perform and also the context within which they are used: whether they are restricted to certain types of offences, offenders and victims, and at what point in the criminal process they may operate. A third response would be to offer a strategic assessment of the way policy-makers have sought to utilise restorative justice processes as a means of reforming the criminal justice system focusing, in particular, on the scale of any such reformation. A fourth and final response would be to offer a political assessment of the broader policy objectives that restorative justice initiatives might be made to serve. The responses enumerated so far concentrate mainly on the uses of restorative justice. Questions regarding its possible misuse are equally important and likewise invite a variety of responses. First and, again most obviously, the term ‘restorative justice’ may itself be misused in the sense of being applied inappropriately. Second, there is always a risk with any social policy initiative that it may be prone to operational malfunction, which may be because it fails to have the desired effect, is used in a way that was not intended, or has other unintended or unanticipated consequences. So, it is legitimate to ask whether restorative justice initiatives within the criminal justice system are liable to malfunction in this way. A third type of misuse relates to the possibility of implementation failure which, if sufficiently serious, could make it difficult or even impossible for restorative justice initiatives to achieve their aims even if they are not prone to malfunction. Finally, a fourth type of misuse concerns the possibility that restorative justice might be used disingenuously or improperly to serve other ulterior or objectionable purposes. The questions raised in the above two paragraphs provide the main focus of this chapter. The first section will offer an assessment of the way

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restorative justice has been used in a criminal justice context by examining its aspirations, the purposes it has been made to serve, the manner and extent of its utilization by policy-makers and also its place in the broader political agenda. The second section will seek to assess its vulnerability to various forms of misuse including terminological inexactitude, operational malfunction, implementation failure and manipulation for ulterior and improper political purposes. The first question that needs to be addressed, however, relates to the aims of restorative justice, particularly from a victim’s standpoint.

Assessing the uses of restorative justice Main victim-oriented aims of restorative justice The term ‘restorative justice’ is taken here1 to refer to a variety of processes that seek to engage victims, offenders and sometimes members of the wider community in deliberations that focus on the impact of a particular offence and the most appropriate ways of responding to it. One of the main aims associated with restorative justice initiatives is to help to ‘restore’ victims in the aftermath of an offence by both addressing the harm that may have been sustained and also helping victims to ‘move on’ and ‘get over’ their experience. It is claimed that restorative justice provides a forum within which victims may seek to recover material reparation to offset or make good any financial loss or damage to property. Within such a forum victims may also be offered an apology which, if sincerely offered, may help to repair some of the emotional upset caused by an offence and, possibly, achieve a degree of reconciliation between the wrongdoer and the person who has been wronged. Meeting an offender could also potentially help to alleviate some of the psychological damage caused by an offence, either by offering a sense of ‘re-empowerment’ or by providing victims with an opportunity to ‘confront the demons’ of their anxieties and nightmares and, thereby, to face them down (Gehm 1998: 26). The other potential benefit that restorative justice offers to victims is an opportunity to take part in a process that acknowledges their perspective and gives them some ‘say’ in how the matter should be resolved. There can be little doubt that certain restorative justice processes are able to secure some of the above benefits for specific victims in particular instances. The extent to which restorative justice initiatives are capable of reliably and routinely realizing these potential benefits for victims generally in practice, however, is a matter of considerable debate and it is not possible to review the extensive literature on the subject here.2 Summarizing greatly, it can safely be said that the great majority of victims who experience restorative justice respond enthusiastically to the process, which they mostly consider to be fair and supportive, though findings with regard to the

Restorative justice in the criminal justice system 387 various victim restoration outcome measures are rather more equivocal. This is not surprising, however, since victims are anything but homogeneous with regard to their personalities, the nature and extent of their victimization or the way they respond to it. Moreover, there are obvious limits to the ability of any purely social process to ‘restore’ physical injury,3 just as there are often practical limits on the extent to which offenders are capable of restoring financial or material loss in full even where victims would like this to happen.4 Doubts have also been raised with regard to the effectiveness of apologies as a means of securing reconciliation between victims and offenders, especially where they do not belong to the same moral/social community, as is often the case in contemporary Western societies (Bottoms 2003: 98). Securing restorative outcomes for victims presents a major challenge for restorative justice in itself, but this aim is rarely pursued in isolation. Many restorative justice initiatives are also motivated by a desire to devise more appropriate or more effective ways of dealing with offenders. For a while, mediation aimed at securing reparation was promoted as a more constructive and less punitive way of dealing with at least certain categories of offenders.5 More recently, various forms of conferencing have been advocated as a means of avoiding the stigma that is often associated with conventional criminal justice processes and seeking to integrate offenders more closely into the community once the offence itself has been satisfactorily resolved. Other initiatives have been prompted by more overtly communitarian sentiments and seek to ‘democratize’ the criminal justice process by developing more inclusive and decentralized decision-making processes as an alternative to state-administered trial and sentencing procedures. The fact that restorative justice may espouse multiple aims raises important questions regarding their compatibility and prioritization that will be considered further in subsequent sections examining the operation and implementation of various restorative justice initiatives in a variety of mainly common law jurisdictions. The next section looks at the way restorative justice processes have been used within a criminal justice context and also the stages within the criminal justice process at which they operate. Main operational uses of restorative justice within a criminal justice context The conventional criminal justice process comprises a number of actions or decisions that may be taken by a variety of formal agencies from the time that an offence is detected or reported, to the implementation of a penalty following a conviction and the imposition of sentence. The most important of these activities are shown in Table 19.1, which also shows the four main stages or ‘intervention points’6 at which restorative justice initiatives have mainly been invoked.

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Table 19.1 Intervention points for restorative justice initiatives Possible intervention points

Criminal justice activity

Scope for restorative justice intervention?

Pre-prosecution

Detection Investigation Preliminary determination

No No Yes

(2) Alternative forum for post-conviction deliberation

‘Moral discourse’

Yes

Trial process ‘Outcome’ (3) Disposal

Fact-finding Conviction or acquittal Determination of sentence or outcome

No No Yes

(4) Post-sentence

Implementation of penalty

Yes

(1)

Differentiating between the various activities and phases of the criminal justice process in this way helps to make the obvious, but often overlooked, point that despite frequently being portrayed in highly dichotomous terms, the scope for restorative justice to ‘displace’ criminal justice is rather limited in practice. More specifically, none of the contemporary restorative justice processes appear to be capable of discharging either the investigative or formal fact-finding and adjudicative functions that are undertaken by the conventional criminal justice system. In this section, I will illustrate the scope for restorative justice initiatives at each of the four main intervention points featured in Table 19.1. The first main intervention point offering scope for a restorative justice approach to be adopted occurs at the pre-prosecution phase once the preliminary investigations have been completed and it has to be determined how the case should be dealt with. In the past, the key decision involved a straightforward choice between prosecution and diversion from prosecution, either by discontinuing the case or issuing a formal caution instead; but the availability of restorative justice processes greatly extends the range of possible options. One possibility is for cases that would otherwise have been prosecuted to be referred instead to an informal procedure such as victim–offender mediation and dealt with informally in accordance with a negotiated outcome between the victim and the offender. During the 1980s, a number of mediation and reparation schemes were established in England and Wales to facilitate such arrangements for both juvenile (see Davis, Boucherat and Watson 1987; Davis 1992) and adult offenders (see Dignan 1990, 1992). A second possibility is that restorative justice interventions become part of a more extended pre-prosecution tariff of measures aimed at reducing the risk of re-offending in respect of offenders who would almost certainly have been dealt with in the past by means of a straightforward caution. This

Restorative justice in the criminal justice system 389 approach is more likely to involve the restorative justice process known as conferencing rather than victim–offender mediation, and often involves the police acting as conference facilitators. One well-known local initiative in England and Wales was pioneered during the late 1990s by the Thames Valley Police, who developed a system of ‘restorative conferences’ for both juvenile and adult offenders. At around the same period, a radical reform of the English youth justice system was introduced to replace the discretionary system of police cautioning with a much more structured statutory system of pre-trial disposals. This involves the imposition of a single reprimand for first-time minor offenders followed by a single ‘final warning’ for a subsequent offence. Offenders in receipt of a final warning are normally required to participate in a ‘change programme’ that is designed to confront and address their offending behaviour. Various interventions are available including the possibility of writing a letter of apology to a victim or even meeting with the victim, though this is relatively unusual in practice.7 A third option is for the prosecutor to identify cases where a suspect who has been charged but has yet to appear in court to be dealt with instead by means of a caution linked to a possible restorative justice intervention. In England and Wales, a ‘conditional caution’ scheme8 of this kind has recently been introduced for adult offenders, who are not affected by the aforementioned reform of the juvenile cautioning system. The new scheme enables first time or minor adult suspects who admit their offence to be given a conditional caution subject to conditions that are either aimed at rehabilitation (such as attending alcohol or drug dependency programmes) or reparation. The latter can include involvement in a restorative justice process of some kind, though in practice it is probably more likely to involve offenders being required to make an apology, pay modest compensation or undertake practical reparative tasks such as cleaning graffiti. The second main intervention point offering scope for a restorative justice approach to be adopted involves the use of an alternative forum in place of the conventional criminal court to deliberate about how an offence should be resolved and dealt with. Before an offender can be dealt with in this way, however, one essential precondition is that he or she admits responsibility for any harm caused by the offence since it is generally accepted that restorative justice processes do not provide an acceptable means of determining guilt or innocence. Various kinds of ‘alternative fora’ have been adopted in different parts of the world, the best-known being the ‘family group conference’ as pioneered in New Zealand9 and subsequently adopted in many other countries including Northern Ireland (see below; see also Dignan, 2006 for details). In England and Wales the reform of the youth justice system has resulted in the introduction of a rather different kind of alternative forum known as a ‘youth offender panel’ (YOP). YOPs now deal with most young people facing prosecution for the first time provided they are willing to plead guilty. The normal procedure in such cases involves the youth court imposing a ‘referral order’ on a young offender instead of

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sentencing them in the normal way. This obliges a young offender to attend one or more meetings convened by a panel comprising two lay members of the community (who are drawn from an approved list) and a member of the local youth offending team. The latter is a multi-agency organization that is responsible for co-ordinating and delivering youth justice services within each local authority area. The youth offender panel concept draws on an eclectic mix of influences including New Zealand family group conferences, Scottish children’s hearings and North American reparation boards. Procedurally, the panel’s role is to provide a forum in which the young offender, his or her parents, panel members and, where appropriate, victims can discuss the offence and its impact and, if possible, reach an agreed outcome that takes the form of a ‘contract’. Outcomes mainly take the form of reparative or rehabilitative measures; restrictions on movement are also possible, but not if they entail physical constraints or electronic monitoring. Assuming that a contract is agreed and successfully completed, one distinctive aspect of the referral order process is that the conviction is considered ‘spent’ for the purpose of the Rehabilitation of Offenders Act, 1974.10 Where agreement cannot be reached, or the contract is breached, the young offender is referred back to the court to be re-sentenced. The third main intervention point for restorative justice approaches within the regular criminal justice system occurs at the sentencing stage. For many years, the sentencing powers of the courts in various countries have been amended to embrace a variety of potentially restitutive or reparative measures such as compensation orders or community service orders. However, these measures lack many of the attributes associated with restorative justice processes since they simply involve the imposition of reparative outcomes and do not attempt to engage key players such as the victim, offender and other interested parties in the decision-making process itself. Nevertheless, there are a number of conventional sentencing measures that do potentially offer scope for restorative justice processes to operate in conjunction with the regular sentencing process. One such measure is the deferred sentence which, as its name suggests, allows a court to postpone the imposition of a penalty for a specified period of time.11 This power, which is available in a number of common law jurisdictions, enables the court to assess the behaviour of the offender for a while before passing sentence, normally on the basis of a pre-sentence report (PSR). Although the measure is used relatively infrequently in England and Wales, it did form the basis of some early restorative justice initiatives (see e.g. Marshall and Merry, 1990: 76). More recently, a number of other sentencing disposals have been introduced as part of the recent youth justice reform programme that also enable restorative justice processes to be conducted in conjunction with the sentencing process. The best known of these involves the ‘reparation order’12 that was introduced in 1998 as a routine low-level penalty for rela-

Restorative justice in the criminal justice system 391 tively minor young offenders. The reparation order is intended to help prevent further offending by bringing home to young offenders the consequences of their criminal actions as they undertake reparation13 either for the benefit of the direct victim – provided the latter consents – or for the community. Various kinds of reparative activity are possible for offenders who are dealt with in this way. One option is to meet with the victim to discuss the offence and its consequences and to negotiate an appropriate outcome. Alternatively, reparation could involve the offender writing a letter of apology to the victim or undertaking some form of practical reparative task though financial reparation is not permitted unless ordered separately as part of a compensation order. The fourth and final principal intervention point for restorative justice approaches within the regular criminal justice system occurs at the postsentencing stage during the implementation of a penalty. In principle, this could be done irrespective of the nature of the sentence – whether it involves imprisonment or a community penalty – though in practice, the relatively few initiatives of this type in England and Wales have mostly involved adult offenders serving custodial sentences for serious or relatively serious offences. In the past, the approach that has most commonly been used is victim–offender mediation involving one or more tripartite meetings between the principal protagonists and an independent mediator. More recently, however, the government has funded a number of pilot projects to test the scope for restorative justice to be used with more serious adult offenders, and one of these has involved the use of conferencing that is facilitated by criminal justice practitioners in the Thames Valley area.14 Having looked at the different ways in which restorative justice processes may be used within a criminal justice context and the main stages at which they are likely to operate, the next section examines the range of strategic options that are open to governments when seeking to implement such measures. Strategic utilization of restorative justice measures by policy-makers The recent emergence of various restorative justice responses to criminal wrongdoing has presented governments with a range of possible strategic options, the most important of which are set out in Table 19.2. Governmental responses towards restorative justice can be depicted as a continuum ranging from merely tolerant15 to facilitative, supportive or committed and, if acted upon, are likely to affect its relationship with the regular criminal justice system. Although governmental responses may vary over time and space, more or less the full range of responses has been exhibited at one time or another by governments within the United Kingdom, from which all of the examples in Table 19.2 are drawn. Prior to the youth justice reforms of 1998, the Westminster government’s attitude towards restorative justice was merely tolerant or lukewarm inas-

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Table 19.2 Attitudes towards restorative justice Government’s attitude towards restorative justice

Relationship between restorative justice and the criminal justice system

Examples

Tolerant

Separatist

Mediation and reparation schemes (pre-1998)

Facilitative

Additive

Final warning, reparation order (1998)

Supportive

Partially substitutive

Referral order (1999)

Committed

Replacement

Northern Irish youth conferencing (2002)

much as it was prepared to fund a small number of short-term pilot mediation and reparation projects in the 1980s (see Marshall and Merry 1990). However, these projects mainly operated as ‘stand-alone’ initiatives on the margins of the criminal justice system. A change of government in 1997 brought a willingness to facilitate the introduction of at least some elements of a restorative justice approach by integrating a number of reparative measures such as the reparation order within the total inventory of sentencing disposals available to the (youth) court. Here, restorative justice is seen as a possibly useful additional tool that might be made available for sentencers to use in specific circumstances along with the many other options available in the sentencing ‘toolbox’. One year after the introduction of the first tranche of youth justice reforms, the government’s attitude toward restorative justice became even more supportive as it implemented the second, even more radical, phase of its youth justice reform programme, as envisaged in an earlier policy document (Home Office 1997). This involved the introduction of the referral order which, as seen above, resulted in a potentially restorative justice process being prescribed as a semi-mandatory replacement for the regular prosecution and sentencing process, at least for a particular category of young offenders. This was a relatively self-contained reform measure, however, which had little impact on the way the rest of the youth justice system operated, let alone the wider criminal justice system. This is as far as the youth justice reform programme has progressed to date, at least in England and Wales. In another part of the United Kingdom, however, the Northern Irish government has shown an even greater degree of commitment towards restorative justice by introducing a comprehensive system of youth conferencing in 2002, based on the New Zealand system of family group conferencing. The effect, here, has been to integrate a restorative justice approach as a mainstream response for most young offenders who are facing prosecution. Provided they admit the offence and consent to the process, the Public

Restorative justice in the criminal justice system 393 Prosecution Service in Northern Ireland is now authorized to refer young offenders to a diversionary youth conference.16 Moreover, the great majority of young offenders17 appearing before the Northern Irish youth courts are also liable to be referred to a court-ordered youth conference provided they admit guilt or are convicted, and so long as they consent to the process. In many respects, the new Northern Ireland conferencing system resembles the much better known New Zealand system of family group conferencing, both in respect of its scope and also the process itself.18 One distinctive feature, however, is that the conference coordinator has to be a civil servant employed within a government department, a stipulation which rules out both the police and community representatives acting as coordinators.19 So, for very many Northern Irish young offenders, restorative justice processes have now replaced the more conventional criminal justice process, as has also happened in New Zealand since the introduction of family group conferences in 1989. Important as they are in their own right, these differences in implementational strategy could also have important implications for the way restorative justice processes are likely to operate in practice, including their liability to ‘malfunction’ and also their vulnerability to ‘implementation failure’. Both aspects are discussed in the second part of this chapter. Meanwhile, this first part will conclude with a brief look at the broader policy context within which the above restorative justice developments have taken place. Assessing restorative justice’s contribution to broader policy objectives The restorative justice developments that have been described above have not emerged from a vacuum. Indeed, part of the appeal of restorative justice for policy-makers is that it resonates well with a number of other recent policy priorities. The first and most obvious of these priorities relates to a dramatic reorientation of the criminal justice policy agenda over the past four decades. Far greater prominence is now accorded to meeting the needs of crime victims and addressing their concerns, following a much longer period of victim neglect by policymakers (see also Dignan 2005). While restorative justice initiatives clearly form part of a much broader raft of victim-focused initiatives,20 their specific contribution relates to the scope afforded for victims to participate in a procedurally fair process and engage with the offender on their own terms (Daly 2002, 2003). A second important policy preoccupation has centred on reversing the dramatic decline in public confidence in criminal justice agencies in general, and the operation of the youth justice system in particular.21 This lack of public confidence is linked to widespread ignorance regarding the operation of the youth justice system and the sentencing practice of youth courts. One response to these concerns has been to introduce more inclusive youth

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justice processes such as the newly introduced youth offender panels, which seek to encourage wider public participation while also attending to the needs and interests of youth crime victims. At a somewhat more abstract level, such initiatives could also be seen as part of a more general policy of ‘disengagement’ on the part of the contemporary State (Braithwaite 2000; see also Bottoms 2003). In recent years, the State has increasingly withdrawn from a wide variety of activities ranging from purely commercial ones to certain criminal justice functions, including certain aspects of policing, imprisonment and even dispute settlement processing activities. In some jurisdictions, this generalized ‘legitimacy deficit’ is compounded by the fact that the legitimacy of the courts and criminal justice system is politically contested by a significant constituency within the overall population that feels alienated by a criminal justice system it feels has been imposed on it. Examples include New Zealand, Canada and Northern Ireland, all of which have introduced restorative justice initiatives in response to deeply felt concerns on the part of minority sectors of the population that existing criminal justice institutions were either culturally or politically biased and therefore inappropriate. Finally, part of the appeal of restorative justice for some is that it offers a plausible and promising agenda for radically reforming the existing criminal justice system. Refocusing the criminal justice system in accordance with restorative justice principles is advocated22 as a means of securing a better deal for victims, a more humane and constructive way of dealing with offenders and a more rational and cost effective response to crime that would benefit the wider community. Another attraction of such a reform programme is that it offers a way of curbing the excessive, expensive and frequently counter-productive use of imprisonment and the extensive litany of problems with which it is associated (see Cavadino and Dignan 2002). Until now, however, with the partial exception of New Zealand, the adoption of restorative justice initiatives by governments around the world has not been prompted by this more radical reform agenda and has been much more modest in its aspirations. So far, this chapter has focused mainly on the aims of restorative justice and the way it has been used operationally, strategically and also politically in pursuit of a variety of broader policy objectives. In the second half of the chapter, I will consider some of the ways in which restorative justice could actually or potentially be misused.

Assessing restorative justice’s vulnerability to misuse Terminological misuse The term ‘restorative justice’ is easier by far to describe than to define, and the absence of a precise and universally accepted definition is a source of much confusion.23 Its use is restricted in this chapter to a variety of processes

Restorative justice in the criminal justice system 395 that seek to engage victims, offenders and sometimes members of the wider community in deliberations that focus on the impact of a particular offence and the most appropriate ways of responding to it. However, the term is sometimes used much more loosely to embrace the whole range of measures that have been adopted in recent years in order to promote the ‘restoration’ of victims in its broadest sense. Thus, it may also be used to encompass victim compensation initiatives, victim support networks and the introduction of procedural reforms such as victim impact statements within the criminal trial process. The main problem with this less precise usage is that it glosses over the most distinctive aspects of restorative justice – its inclusive and deliberative elements – thereby masking its particular strengths and also weaknesses compared with other victim focused reforms. The ‘inclusive’ aspect of restorative justice means that, unlike other forms of victim assistance such as victim support and State-funded compensation initiatives, restorative justice processes can only function where an offender has been apprehended and convicted or at least is willing to accept responsibility for the offence. On the other hand, the ‘deliberative’ aspect of restorative justice sets it apart from other superficially similar procedures such as victim impact statements or victim allocution measures that provide a one-way channel of communication between victim and court but fall short of the two-way dialogue that restorative justice processes facilitate. Moreover, criticisms that are well-founded when directed against the former aspect may carry much less weight in a restorative justice context, which means that critics who fail to appreciate this important but subtle distinction can inadvertently take aim at the wrong target.24 Another form of terminological imprecision is to use ‘restorative justice’ as a generic term encompassing all outcomes that may seek to ‘restore’ victims or hold offenders directly accountable for the consequences of their criminal acts whether or not they emanate from an inclusive and deliberative restorative justice process. Thus, it is sometimes used to refer also to various penalties that are imposed by criminal courts provided they are broadly reparative in nature, including compensation orders, community service and reparation orders. The problem with this usage is that it glosses over the important distinction between ‘reparation’ that is imposed upon an offender by a court and reparation to which an offender may be prepared to agree in the wake of a restorative justice encounter. Although both are intended to have reparative outcomes, the way they are viewed by both victims and offenders themselves is likely to be quite different. Moreover, policy-makers who fail to make this distinction may believe – or seek to persuade others to believe – that their commitment to a restorative justice approach is stronger than it really is.

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Operational malfunctions?25 Criminal justice reforms do not always operate in the way they are intended to, and have been known to malfunction spectacularly.26 Restorative justice initiatives could likewise be said to malfunction if they systematically fail to deliver the benefits they are said to bestow on victims or if they have unintended or undesirable consequences for victims or others. Is there any evidence that this is the case? The evidence that was very briefly reviewed above suggests that victims who take part in restorative justice processes tend to report reasonably favourably on their experience in comparison with those who are dealt with by conventional criminal justice procedures. The proportion of victims who take part in restorative justice processes is very variable, however, and very low victim participation rates have been reported in some studies, particularly in England and Wales where it has rarely exceeded 15 per cent, irrespective of the type of restorative justice intervention.27 These English findings are out of line with the much higher victim participation rates that have been reported elsewhere,28 which suggest that they are more likely to be the result of implementational problems (see below) rather than systemic failings on the part of the restorative justice process itself. One of the main criticisms of restorative justice stems from a concern that it could result in offenders being dealt with inconsistently or with disproportionate severity compared with the upper limits that are likely to be enforced by the criminal courts. With regard to the charge of inconsistency, it is undoubtedly the case that victims will differ not only with regard to the degree of harm they experience as the result of an offence, but also in their views of the appropriate reparation. This cannot be seen as a malfunction of restorative justice since the provision of appropriate reparation that victims and offenders can mutually agree on is one of its explicit aims. With regard to the ‘proportionality’ objection, if offenders routinely emerge from restorative justice processes with obligations that exceed the upper limits likely to be imposed by the criminal courts, this could be viewed as a malfunction since it would be an unintended and undesirable consequence. There is no reliable evidence that this is the case, however. On the contrary, on the relatively few occasions when the decisions reached in restorative justice processes have been reviewed by the courts, they have tended to increase rather than reduce the punitiveness of the outcome that was agreed to by the parties (Maxwell and Morris 1993; Bonta, Rooney and WallaceCapretta 1998). Most of the criticisms that have been directed against restorative justice initiatives are concerned about its potential impact specifically on offenders or its effectiveness in reducing the reconviction rate and so are less relevant in this context.29 However, it is sometimes argued that restorative justice is an inappropriate response to certain types of offending behaviour such as domestic violence. This is partly because it removes such matters from the

Restorative justice in the criminal justice system 397 criminal justice arena and thereby ‘trivializes’ them, and partly because of the power imbalance in such an arena, which makes it more difficult to secure justice for the victim. Many restorative justice schemes refuse to accept such cases, but some advocates reject the criticism, pointing out that restorative justice initiatives extend the range of options open to victims, many of whom are for various reasons unable to invoke the assistance of the conventional criminal justice system (Morris and Gelsthorpe 2000). Implementation failure As we have seen in the previous section, there is little credible evidence that restorative justice initiatives – at least where they are implemented properly – are prone to malfunction in the way that some criminal justice reforms have been. Successfully implementing such initiatives within a criminal justice context is far from straightforward, however, particularly where they are introduced on a piecemeal basis as a supplementary addition to the existing range of criminal justice procedures as opposed to supplanting them as in New Zealand or Northern Ireland. Recent experience in England and Wales highlights a number of significant implementational problems that can arise in such circumstances (see also Dignan 2005). In contrast to the experience in some other jurisdictions, restorative justice initiatives in England and Wales have usually been introduced30 as part of a much wider ranging package of reforms that are motivated by other considerations. This can often result in irreconcilable tensions between different sets of policy objectives. For example, one of the aims underlying the reparation order, which was introduced in 1998, was to ensure that victims were consulted about the possibility of the offender undertaking reparation and the also form that this should take. However, another aim of the youth justice reform package was to speed up the processing of young offenders through the courts, which made them reluctant to adjourn the case in order to facilitate the consultation process (Holdaway et al. 2001: 87). Moreover, the task of consulting victims was rendered even more difficult by the simultaneous adoption of a new data protection regime, which was interpreted to mean that victim contact details could not be disclosed to reparation workers without first obtaining their consent. This not only increased the time taken to complete the consultation but also meant that the potentially sensitive issue of reparation would first need to be raised by the police31 who were not trained as reparation workers, and for whom it might not be the highest priority. A second type of restorative justice intervention based on the practice of police-led cautioning, has been pioneered by the Thames Valley Police. In other jurisdictions (notably Australia), somewhat similar initiatives have been introduced on a statutory basis, which has not happened in England and Wales even though the old system of juvenile cautioning was radically

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overhauled and established on a statutory basis in 1998, and despite the government’s frequent endorsements of the Thames Valley initiative. Instead of mandating this approach, however, the government has merely published official guidance which endorses without prescribing it (Home Office 2000; Home Office and Youth Justice Board 2002). The effect is to encourage local police forces to adopt the Thames Valley approach in order to make final warnings more meaningful and effective, but without making it compulsory. The third set of restorative justice initiatives, based on the introduction of youth offender panels that now deal with the great majority of young offenders who are convicted for the first time, appears to avoid some of the weaknesses associated with the previous two sets of measures. Unlike the police-led conferencing procedure, victim participation in the panel meeting process is explicitly provided for in a clearly articulated statutory scheme. Disappointingly, however, as we have seen, the victim participation rate is no better than for either of the other two sets of initiatives. Non-availability of victim contact information (see above) is partly to blame, though the pilot evaluation found that this was only a problem in 10 per cent of cases with identifiable victims (Crawford and Newburn 2003). Implementation seemed to be a far bigger problem: over two-fifths of non-attenders whose identity was known were not offered a realistic opportunity to attend a meeting, one-third cited other reasons for not attending and only just under one-quarter declined to have any involvement in the process. Three key factors have been associated with the implementation problems experienced by the youth offender panel initiative (Crawford and Newburn 2003; Dignan 2005). First, the new procedure was introduced very shortly after a series of extremely wide-ranging reforms that were intended to transform the youth justice system and the way it operates. These new reforms ran the risk of facing ‘initiative fatigue’ even before they had the time to properly settle down. Second, there is evidence that some youth justice workers felt varying degrees of resistance towards aspects of the reform programme with which they felt uncomfortable, including their newly assigned responsibilities with regard to victims. The third and final factor relates to the possible ambiguity between two key elements of the new system: victim participation and community involvement. In a context of limited resources, a plethora of new initiatives and an uneven commitment to the principle of ‘working with victims’, there is a risk that panels might prioritize the goal of community involvement at the expense of the rival goal of victim participation. Insofar as this was true of the youth offender panel scheme,32 it suggests a more systemic failing on the part of this type of restorative justice initiative as opposed to a mere implementation weakness. However, the same criticism would not apply to processes such as family group conferencing, where the notion of ‘community’ is defined much more narrowly.

Restorative justice in the criminal justice system 399 Misuse or abuse of restorative justice for improper political ends? Seeking to address the legitimate concerns of victims after decades of neglect is generally viewed as a laudable objective, particularly if it can be done – as its supporters claim – without, at the same time, riding roughshod over the interests of offenders. Trying to find an appropriate balance between these two potentially conflicting sets of interests is not a straightforward task, however, even when striving diligently to maintain an evenhanded approach. When the talk turns, as it increasingly has in England and Wales in recent years, to the need to ‘rebalance the criminal justice system in favour of the victim’ (Home Office, Lord Chancellor’s Department and Attorney General 2002: 14), however, it raises a number of additional concerns. One such concern relates to the implicit presumption that the introduction of victim-focused reforms will necessarily and inevitably be at the expense of offenders. A second, even more disturbing concern, is that the desire to ‘rebalance the criminal justice system at the expense of offenders’ might constitute the primary motivation for advocating such reforms. If true, this would not only call into question the sincerity of those promoting them but could also fuel suspicions that victims were being cynically manipulated or even duped by politicians and policy-makers in pursuit of a highly controversial ‘hidden agenda’. David Garland (2001: 142) has given voice to these concerns, suggesting that the recent discovery of the victim by penal policy-makers needs to be understood in the context of a decisive shift in the treatment of offenders towards a more repressive and exclusionary approach. Paraphrasing Garland, the adoption of more overtly partisan victim-focused policies serves both instrumental and expressive purposes. Thus, they help to deflect demands by those campaigning for better safeguards for offenders and improvements in the treatment of prisoners by suggesting that innocent victims are worthier and more deserving recipients of their concerns and compassion than culpable offenders (Garland 2001: 180). At the same time, they also help to demonstrate that ‘something is being done’ about the consequences of crime to allay the concerns of those who fear they might be victimized. Much of what Garland says about contemporary developments in penal policy and concomitant victim-focused policy initiatives sounds plausible; but not all of it. Certainly there are examples of stereotypical images of victims being invoked to fuel increasingly polarized penal policies that are based on the assumption of an irreconcilable dichotomy between the interests of victims and offenders. But this is not generally true of the kind of restorative justice initiatives that have been discussed in this chapter. At most, it could be argued that the language of meeting the needs of victims has been used to justify dealing more punitively with relatively minor young offenders who might previously have been dealt with informally while paying lip service to the notion of victim participation. Even here, the

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criticism has much more force in a specifically English context than it would in other jurisdictions such as New Zealand or even Northern Ireland.

Conclusions Finally, I will offer eight brief conclusions that I believe are supported by the foregoing assessment. First, restorative justice processes potentially offer crime victims a response to their victimization that is distinctively different from other victim-focused initiatives and which is widely welcomed by them as being procedurally just. However, the imprecision with which the term ‘restorative justice’ itself is frequently used is a source of confusion for supporters, critics, evaluators and policy-makers alike. Second, as Bottoms (2003) has also noted, there has so far been very little debate among policy-makers concerning those cases for which restorative justice represent the most appropriate response (and why). This is despite the fact that restorative justice processes are now being used in many countries for an increasingly wide range of offence types, involving offenders of varying ages. Conversely, whether there are particular types of offences (or types of offender) for which restorative justice processes represent an inappropriate response is a question that also merits further consideration. Third, there is no evidence as yet that restorative justice is prone to the kind of systemic malfunction that has beset other criminal justice reforms, though more research is needed on its ability to routinely deliver restorative outcomes (as opposed to a sense of procedural justice) to victims. Fourth, addressing the needs of victims is only one of a number of aspirations espoused by restorative justice advocates, among whom there is an unresolved tension between those favouring a more individualistic victimcentred approach and those who promote a more communitarian version of restorative justice. Policy-makers contemplating restorative justice reforms also need to reflect on the priority that should be accorded to each of these aspirations, and whether this might vary according to the type of case under consideration. Fifth, restorative justice processes are adaptable and flexible in operation and can be invoked at various stages of the criminal justice process. However, they cannot effectively discharge all the functions expected of a criminal justice system, notably those associated with detection, investigation and legal fact-finding and so, for this reason alone, it seems highly unlikely that restorative justice will ever completely displace the criminal justice system. Sixth, policy-makers who are interested in introducing restorative justice reforms are faced with a wide range of implementational strategies. However, the risk of implementation failure is high, particularly where restorative justice measures are adopted as an ‘add-on’ without regard to the

Restorative justice in the criminal justice system 401 possibility of tension with other public policy goals such as speeding up the criminal justice processes or safeguarding data protection. Seventh, there appears to be a variety of legitimate public policy reasons why restorative justice might be of interest to policy-makers: as a more appropriate way of addressing the concerns of crime victims; a way of making good the criminal justice system’s ‘legitimacy deficit’; or as the basis of a more rational/humane and less counter-productive/damaging set of penal responses to offending behaviour. Eighth, however, if policy-makers are sincere in wishing to promote a more victim-focused restorative justice approach, it is important that they respond to evidence of implementation failure. Failure to do so is likely to fuel suspicions that victims are being manipulated in pursuit of a hidden and more repressive penal policy agenda.

Notes 1 The meaning of the term has been the subject of extensive debate. The approach adopted in this paper is set out more fully in Dignan (2005: 2–10). The processes themselves, and their possible benefits for victims are discussed in Dignan (2005: 107–26); see also Braithwaite (1999), Miers (2001) and Schiff (2003). 2 For general overviews see Dignan (2005: 132–56), Kurki (2003) and the references referred to in note 1 above. With regard to the victims of juvenile offenders see also Immarigeon (1999) Strang (2001). 3 This does not preclude the possibility that restorative justice processes may help to alleviate some of the symptoms associated with serious violent offences such as the experience of post-traumatic stress disorders (‘PTSD’). 4 Some researchers have reported that victims are more interested in ‘token’ amounts of compensation or even purely ‘symbolic’ reparation (e.g. Shapland, Willmore and Duff 1985: 123) whereas others (e.g. Davis 1992: 171) deny that material restitution is unimportant for victims. 5 See Dignan (2005, ch. 4) for a fuller account of the various processes referred to in this paragraph. 6 Miers (2004: 30) uses the same term, though in a somewhat more restricted sense; see also Dignan (2006). 7 A pilot study found that victims were contacted in just 15 per cent of cases, and that only seven per cent of victims were involved in any kind of reparative activity, whether involving direct reparation, including mediation (four per cent); or indirect reparation (three per cent) (Holdaway et al. 2001). 8 Criminal Justice Act 2003, ss. 22–7. In the past, similar informal initiatives of this kind were often referred to as ‘caution plus’ initiatives, though these usually involved the police as opposed to prosecutors acting as ‘gatekeepers’. 9 See e.g. Maxwell (2005). 10 This ‘wiping clean of the slate’ is consistent with Braithwaite’s (1989) theory of reintegrative shaming which opposes indelible or indefinite shaming on the grounds that it is stigmatic and likely to be counter-productive. 11 In England and Wales courts are allowed to defer sentencing for up to six months.

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12 Another somewhat similar measure aimed at more serious young offenders is known as the ‘action plan order’. Both were introduced by the Crime and Disorder Act 1998. 13 Young offenders may be ordered to undertake up to 24 hours of reparative activity that has to be completed within three months. 14 This is also being evaluated and the study is not yet completed, though the first interim report is available; see Shapland et al. (2004). 15 Logically the range of responses could also include a ‘hostile’ attitude on the part of government, which could threaten the very existence of restorative justice initiatives. This has not so far been the case, at least within the three governments (English and Welsh, Scottish, and Northern Irish) comprising the United Kingdom. Nor am I aware of such a response in any other jurisdiction. 16 The scheme is not intended for minor or first-time offenders, with whom the police are expected to deal by means of a restorative caution or an informal warning, which might also have a restorative theme. 17 Offenders facing a murder charge are not eligible to be dealt with in this way. Moreover, for those charged with terrorist offences or offences which, in the case of an adult, would be triable only on indictment, a referral to a youth conference is not mandatory, though it is permissible. 18 There are some important differences, however. For example, victims who participate in youth conferences are not required to withdraw from the conference once the focus turns towards the negotiation of a youth conference plan, as is the case in New Zealand. 19 The Northern Ireland Criminal Justice Review Commission (2000) had recommended that the conferencing service should be based in a separate arm of a proposed Department of Justice, which would also supply the coordinators, but this proposal was not included in the legislation. 20 With which they often confused; see below. 21 The 1998 British Crime Survey found that the public had least confidence in the juvenile justice system, out of all aspects of the criminal justice process (Mattinson and Mirlees-Black 2000). A later survey (Mirlees-Black 2001) found that only one quarter of those questioned felt that the criminal justice system met the needs of victims. 22 See in particular Walgrave (2000), Braithwaite (2002), Dignan (2002). 23 The best-known and most widely-cited definition was proposed by Tony Marshall (1999: 5) in the following terms: ‘Restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of that offence and its implications for the future’. This definition has not been universally accepted, and is somewhat limited as an aid to conceptual clarification (see Walgrave 2000; Roche 2001; Daly 2002; Dignan 2005). 24 See the debate between Ashworth (1992, 1993) and Cavadino and Dignan (1997) which illustrates this point. 25 This section is concerned with serious operational failures or imperfections that are associated with a systemic weakness or fundamental defect in the process itself. Failings that may be attributed to implementational shortcomings are dealt with in the next section. 26 One of the clearest and best known examples is the suspended sentence of imprisonment, whose ‘malfunctions’ in an English context were described in detail by Bottoms (1981). See also Pease (1985). 27 In the Thames Valley police-led conferencing scheme the victim participation rate was 14 per cent (Hoyle 2002: 103; Hoyle, Young and Hill 2002, Table 1). In the youth offender panel evaluation it was 13 per cent (Crawford and Newburn 2003: 187). In the youth offending team pilot evaluation, the proportion of repa-

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28

29 30

31 32

ration cases involving mediation between victim and offenders was just nine per cent (Holdaway et al. 2001: 89). In New Zealand Maxwell and Morris (1993) report that the victim participation rate for family group conferencing soon after it was introduced was 50 per cent while in Australia some police-led conferencing schemes have recorded victim participation rates of 80 per cent (e.g. Strang 2002: 121) or more. But see Morris (2002), who reviews and assesses a wide range of criticisms directed against restorative justice from a variety of perspectives. Prior to 1998, restorative justice initiatives tended to operate on a small-scale, piecemeal basis and were frequently beset by a variety of implementational difficulties including insufficient resources, low referral rates and problematic relationships with mainstream criminal justice agencies. As ‘authorised data holders’. The pilot evaluation reported highly variable levels of victim participation, suggesting that the frequency and scale of implementational problems are likely to have been affected in part by more local considerations.

References Ashworth, A. (1992) ‘What victims of crime deserve’. A paper presented to the Fulbright Colloquium on Penal Theory and Penal Practice, University of Stirling, September 1992. —— (1993) ‘Some Doubts About Restorative Justice’, Criminal Law Forum, 4, 277–99. Bonta, J., Rooney, J. and Wallace-Capretta, S. (1998) Restorative Justice: An Evaluation of the Restorative Resolutions Project. Ottawa: Solicitor General Canada. Bottoms, A.E. (1981) ‘The Suspended Sentence’, British Journal of Criminology, 21, 1–26. —— (2003) ‘Some Sociological Reflections on Restorative Justice’, in A. von Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds), Restorative Justice and Penal Justice: Competing or Reconcilable Paradigms? Oxford: Hart Publishing. Braithwaite, J. (1989) Crime, Shame and Reintegration. Cambridge: Cambridge University Press. —— (1999) ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’, in M. Tonry (ed.), Crime and Justice: A Review of Research, vol. 25. Chicago, IL: University of Chicago Press. —— (2000) ‘The New Regulatory State and the Transformation of Criminology’, British Journal of Criminology, 40, 222–38. —— (2002) ‘In Search of Restorative Jurisprudence’, in L. Walgrave (ed.), Restorative Justice and the Law. Cullompton: Willan Publishing. Cavadino, M. and Dignan, J. (1997) ‘Reparation, Retribution and Rights’, International Review of Victimology, 4, 233–53. —— (2002) The Penal System: An Introduction. London: Sage. Crawford, A. and Newburn, T. (2003) Youth Offending and Restorative Justice: Implementing reform in youth justice. Cullompton: Willan Publishing. Daly, K. (2002) ‘Restorative Justice: the Real Story’, Punishment and Society, 4, 55–79. —— (2003) ‘Mind the Gap: Restorative Justice in Theory and Practice’, in A. von

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Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds), Restorative Justice and Penal Justice: Competing or Reconcilable Paradigms? Oxford: Hart Publishing. Davis, G. (1992) Making Amends: Mediation and Reparation in Criminal Justice. London: Routledge. Davis, G., Boucherat, J. and Watson, D. (1987) A Preliminary Study of Victim Offender Mediation and Reparation Schemes in England and Wales. Home Office Research Study 42, London: HMSO. Dignan, J. (1990) Repairing the Damage: An Evaluation of an Experimental Adult Reparation Scheme in Kettering, Northamptonshire. Sheffield: Centre for Criminological and Legal Research, University of Sheffield. —— (1992) ‘Repairing the Damage: can Reparation be made to Work in the Service of Diversion?‘ British Journal of Criminology, 32(4), 453–72. —— (2002) ‘Restorative Justice and the Law: the Case for an Integrated, Systemic Approach’, in L. Walgrave (ed.), Restorative Justice and the Law. Cullompton: Willan Publishing. —— (2005) Understanding Victims and Restorative Justice. Maidenhead: Open University Press. —— (2006) ‘Juvenile Justice, Criminal Courts and Restorative Justice’ in G. Johnstone and D. Van Ness (eds.), Handbook of Restorative Justice. Cullompton: Willan Publishing. Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press. Gehm, J. R. (1998) ‘Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical Frameworks’, Western Criminology Review. Available online at: http://wcr.sonoma/edu/v1n1/gehm.html. Holdaway, S., Davidson, N., Dignan, J., Hammersley, R., Hine, J. and Marsh, P. (2001) New Strategies to Address Youth Offending: The National Evaluation of the Pilot Youth Offending Teams. RDS Occasional Paper No. 69. London: Home Office. Also available online at: www.homeoffice.gov.uk/rds/index.html. Home Office. (1997) No More Excuses: A New Approach to Tackling Youth Crime in England and Wales. Cm.3809, London: Stationery Office. —— (2000) Circular Introducing the Final Warning Scheme: Revised Guidance, London: Home Office. Also available online at: www.homeoffice.gov.uk/yousys/ youth.htm. Home Office, Lord Chancellor’s Department and Attorney General. (2002) Justice for All. Cm 5563, London: The Stationery Office. Home Office and Youth Justice Board for England and Wales. (2002) The Final Warning Scheme Guidance for the Police and Youth Offending Teams. London: Home Office. Hoyle, C. (2002) ‘Securing Restorative Justice for the “Non-participating Victim”’, in C. Hoyle and R. Young (eds), New Visions of Crime Victims. Oxford: Hart. Hoyle, C., Young, R. and Hill, R. (2002) Proceed with Caution: An Evaluation of the Thames Valley Police Initiative in Restorative Cautioning. York: Joseph Rowntree Foundation. Immarigeon, R. (1999) ‘Restorative Justice, Juvenile Offenders and Crime Victims: A Review of the Literature’, in G. Bazemore and L. Walgrave (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime. Monsey, NY: Criminal Justice Press.

Restorative justice in the criminal justice system 405 Kurki, L. (2003) ‘Evaluating Restorative Justice Practices’, in A. von Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds), Restorative Justice and Penal Justice: Competing or Reconcilable Paradigms? Oxford: Hart Publishing. Marshall, T.F. (1999), Restorative Justice: An Overview. London: Home Office Research and Development Statistics Directorate. Marshall, T. F. and Merry, S. (1990) Crime and Accountability: Victim/Offender Mediation in Practice. London: HMSO. Mattinson, J. and Mirlees Black, C. (2000) Attitudes to Crime and Criminal Justice: Findings from the 1998 British Crime Survey. London: Home Office. Maxwell, G.M. (2005) ‘Alternatives to Prosecution for Young Offenders in New Zealand’, in T. Wing Lo, D. Wong and G. Maxwell (eds), Alternatives to Prosecution: Rehabilitative and Restorative Models of Youth Justice. Singapore: Marshall and Cavendish Academic. Maxwell, G.M. and Morris, A.M. (1993) Family, Victims and Culture: Youth Justice in New Zealand. Wellington, NZ: Social Policy Administration and Victoria University of Wellington. Miers, D. (2001) An International Review of Restorative Justice. Crime Reduction Research Series Paper 10. London: Home Office. —— (2004) ‘Situating and researching restorative justice in Great Britain’, Punishment and Society, 6(1), 23–46. Mirlees-Black, C. (2001) Confidence in the criminal justice system: findings from the 2000 British Crime Survey. London: Home Office Research Findings 137. Also available online at: www.homeoffice.gov.uk/rds.pdfs/r137.pdf. Morris, A. (2002) ‘Critiquing the Critics: a Brief Response to Criticisms of Restorative Justice’, British Journal of Criminology, 42(3), 596–615. Morris, A. and Gelsthorpe, L. (2000) ‘Re-visioning Men’s Violence Against Female Partners’, Howard Journal of Criminal Justice, 39(4), 412–28. Northern Ireland Criminal Justice Review Commission. (2000) Review of the Criminal Justice System in Northern Ireland. Belfast: The Stationery Office. Pease, K. (1985) ‘Community Service Orders’, in M. Tonry and N. Morris (eds), Crime and Justice: An Annual Review of Research, vol. 6. Chicago, IL: University of Chicago Press. Roche, D. (2001) ‘The Evolving Definition of Restorative Justice’, Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice, 4(3–4), 341–53. Schiff, M. (2003) ‘Models, Challenges and The Promise of Restorative Conferencing Strategies’, in A. von Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds), Restorative Justice and Penal Justice: Competing or Reconcilable Paradigms? Oxford: Hart Publishing. Shapland, J., Atkinson, A., Colledge, E., Dignan, J., Howes, M., Johnstone, J., Pennant, R., Robinson, G and Sorsby, A. (2004) Implementing Restorative Justice Schemes (Crime Reduction Programme). A Report on the First Year. Home Office Online Report 32/04. London: Home Office, available online at: www. homeoffice.gov.uk/rds/pdfs04/rdsolr3204.pdf Shapland, J., Willmore, J. and Duff, P. (1985) Victims in the Criminal Justice System. Aldershot: Gower. Strang, H. (2001) ‘Justice for Victims of Young Offenders: The Centrality of Emotional Harm and Restoration’, in A.M. Morris and G. Maxwell (eds), Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing,.

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—— (2002) Repair or Revenge: Victims and Restorative Justice. Oxford: Clarendon Press. Walgrave, L. (2000) ‘How Pure Can a Maximalist Approach to Restorative Justice Remain? Or Can a Pure Model of Restorative Justice Become Maximalist?’, Contemporary Justice Review, 3(4), 415–32.

Legislation and treaties Rehabilitation of Offenders Act (1974). Chapter 53. Crime and Disorder Act (1998). Chapter 37. Criminal Justice Act (2003). Chapter 44.

Index

Note: page references in bold indicate tables Abdul Karim v. State of Karnataka (India 2001) 170 academic societies of victimology 114–15 acceptance 356 accidents in Korea 177, 183 accused persons see defendants Act for the Granting of Compensation to Aggrieved Parties and Accused in a Criminal Case (Thailand 2001) 118–19, 205–6 Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (Korea 1994) 125–6, 127, 132, 184 Act on Special Cases concerning Expedition, etc. of Legal Proceedings (Korea 2005) 183 action civile see civil actions action plan orders 402n12 activism, victim 332–3 adolescents: counseling in Korea 361–2 advocacy 332–4 Aftercare Association, Taiwan 139 aged, the: counseling in Korea 362 agents ad litem 152 All India Democratic Women’s Association v. State (India 1998) 167 Anti Rape Law (Philippines 1997) 315, 316 Anti-Violence Against Women and Their Children Act (AntiAWAC) (Philippines 2004)

305–10, 311, 312, 313, 314–15, 317, 318–19 Antragsdelikte 131–2 appeal: right to in Taiwan 227–8 Arunachalam v. P.S.R. Sadhanantham (India 1979) 166 Asia: compensation 118–22; historical development of victimology 113–15; notification 122–4; participation 130–6; protection against secondary victimization 124–7; reparation for damages in criminal proceedings 115–18; support organizations 136–9, 140; victims’ right to be heard 127–30; victims’ rights 56–7 assistance see compensation; restorative justice; support services Balasundran, Bala 291–2 Bangkok Declaration, Synergies and Response: Strategic Alliances in Crime Prevention and Criminal Justice (UN 2005) 15–16, 82–3, 346 barangay protection orders 315, 316, 319 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN 2005) 15 Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (UN 2002) 14

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Index

Battered Woman Syndrome 306, 307–8, 310, 311, 313 Beijing Declaration and Platform for Action (Fourth World Conference on Women 1995) 303, 304 benefits payment system, Japan 242–4 Bhagwant Singh v. Commissioner of Police (India 1985) 164–5 Bill of Rights, USA: campaign to amend 63–4 Bills of Rights 62, 67, 68 Boryokudan 248 bounties for reporting crimes 182 Brazil 18 Brunei: criminal complaints and compoundable offences 130–1 Bureau of Women’s Welfare, Philippines 305 case disposition: support services in USA after 336–7 cautions 388, 389 CCP see Code of Criminal Procedure (Taiwan 1928) CCTV (closed-circuit television): testimony via 127, 186, 246 CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) (UN 1979) 302, 303, 304 Chang Kan Mei, Professor 113 Chappell (England 1984) 377 Charter for Women Victims of Crime and Violence (India 2005) 29–34 Child Abuse Law (Philippines 1991) 309–10, 313–14, 315 Child Act (Malaysia 1991) 292–7 Child Protection Act (Malaysia 1991) 292, 293 Child Protection Teams, Malaysia 292, 295–6 Child and Youth Welfare Code (Philippines 1974) 310 child-care providers in Malaysia 295 children 343; counseling in Korea 360–1; Japan 125, 251; protection in Malaysia 291–9; protection in the Philippines 309–10, 317

Children and Young Persons Act (Malaysia 1947) 291, 292 China: improving victims’ rights 155–9; victims and Criminal Procedure Law 151–5 Cho, Kyoon Seok 175, 177 Chockalingam, Professor Dr K. 29, 115 CHR (Commission on Human Rights), Philippines 304 civil actions: China 153, 154; Indonesia 116–17; Japan 118; Korea 117; Philippines 117; Singapore 207; support in USA during 337; Taiwan 117, 234; Thailand 116, 204 Civil and Commercial Code (Thailand 1925) 195, 196 Civil Procedure Code (Thailand 1935) 195 Code of Criminal Procedure (CCP) (Taiwan 1928) 129, 223, 236; and assistance 233; and monetary claims 234, 235, 239n42; and participation 224, 225, 226, 227–8, 228, 237n1, 238n22; and protection 227 Code of Criminal Procedure (CrPC) (India 1973): classification of offences 161; and compensation orders 369, 369–70, 376; and investigation process 163, 164, 170–1; and participation 165–6, 166–7, 167, 168, 169; and premature ends to trials 170 Code of Sexual Assault Crime Prevention (Taiwan 1997) 226, 233 Commission on Crime Prevention and Criminal Justice, UN 15, 16 Commission on Human Rights (CHR), Philippines 304 Committee on Judicial Reform, Korea 176 Committee on Justice and Support of Victims of Crime, Abuse of Power and Terrorism, UN 46–8 common law systems: history of victims’ rights in 54–6; procedural neglect of victims 97; reforms within 98 communication skills and counseling 358–60 communities: impact of victimization on 327–8

Index community service orders 377, 381n27 compassion: right to be treated with 342–6 compensation 115–16, 118; character of 119–22; China 154–5, 156, 157–9; comparison of legal provisions 368–72; conceptual difficulties with compensation orders 374–7; encouraging the use of compensation orders 372–4; establishment of schemes in Asia 118–19; future of 377–9; Indonesia 277–8; Japan 241–4; Korea 174, 181–3, 191n2; Singapore 213–15, 219n45, 219n47, 220n56, 368–79; Taiwan 233–5; Thailand 204–6; UN and 43–4; USA 342; welfare policies 102–4 Compensation, Restitution and Rehabilitation for Victims of Gross Violation of Human Rights (Indonesia 2002) 277–8 composition of offences 210–12 compoundable offences 130–1, 170, 203, 209–10 Comprehensive Legal Aid Act (Japan 2004) 256 conferencing system 389–90, 392–3 confidentiality and counseling 357 Confucian beliefs 352 Congress on Crime Prevention and Criminal Justice, Bangkok 2005 11, 15 Constitution of the Kingdom of Thailand (1997) 194, 200 Constitutional Court, Korea 134–5 Convention Against Transnational Organized Crime (UN 2001) 14, 15, 61, 75n15 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) (UN 1979) 302, 303, 304 Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism (WSV 2006) 24, 34–50, 60 Convention on the Rights of the Child (UN 1989) 15, 303 Conventions 60 Coordinating Council for the Protection of Children, Malaysia 292, 295

409

counseling 355–6; crisis 330; effective skills in 357–60; elements of 356–7; objectives and goals of 357; posttrauma 330–2; special considerations in Korea 360–3 Court for Children, Malaysia 296–7 court fees: Taiwan 233–4 courts: Thailand 197, see also criminal justice systems; trials Coy v. Iowa (USA 1988) 65–6 CPC (Criminal Procedure Code) (Japan 1948) 126, 245–6, 250, 257 CRC (Convention on the Rights of the Child) (UN 1989) 15, 303 crime 165, 194, 325; Korea 177, 182, 350; non-reporting in Indonesia 264; Thailand 194 crime prevention 337–8 Crime Prevention Committees, Korea 189–90 Crime Victim Aid Act (Korea 1987) 118, 122, 174, 181 Crime Victim Basic Act (Japan 2004) 140, 241, 256, 258 Crime Victim Basic Plan (Japan 2005) 130, 140, 241, 258 Crime Victim Benefits Payment Act (Japan 1980) 120, 122, 138, 240, 241–2, 255, 257 Crime Victim Policy Promotion Council, Japan 244, 258 Crime Victim Protection Act (Korea 2005) 140–1, 175, 176, 179–81, 188 Crime Victim Protection Association, Taiwan 139 Crime Victim Protection Committee, Korea 180 Crime Victims Fund, USA 344, 346 Crime Victims Protection Act (Japan 2000) 118 Crime Victims Protection Act (Taiwan 1998) 119, 120, 139, 232, 234, 235 Crime Victims’ Rights Act (CVRA) (USA 2004) 345 Criminal Code (Indonesia 1918) 270, 275, 284 criminal complaints 130

410

Index

Criminal Investigation Rule (Japan 1957) 122, 248 Criminal Justice Act (Britain 1972) 368 criminal justice system 5; defendant/ complainant roles 93–4; victimization and use of criminal law 91–3 criminal justice systems: China 151–9; and compensation orders 375; exportation of 82; India 160–70; Indonesia 262–3, 264, 265–6, 281–2; Korea 177–8; models of 85–8; not optimal remedy for victims 92; policy options for reforms 89–90; procedural development and reform 97–9; and secondary victimization 58; Singapore 207, 215–16; Taiwan 222–37; Thailand 198, 200–6; USA 334–5; use of restorative justice 387–91, 388, 393–4, 396–8, see also criminal proceedings criminal mediation 118 Criminal Procedure Code (CPC) (Japan 1948) 126, 245–6, 250, 257 Criminal Procedure Code (Indonesia 1981) 116, 134, 265, 271–5, 286n10 Criminal Procedure Code (Korea 1954) 123–4, 185, 186 Criminal Procedure Code (Singapore 1985) 127, 208, 210, 214, 217n17, 217n20, 218n24 Criminal Procedure Code (Thailand 1935) 195, 199–200 Criminal Procedure Law (China 1996) 151–5 criminal proceedings: initiation of in India 161–2; notification of progress of 122–4; protection 124–7; Taiwan 223–33; USA 334–7, 342; victim participation in Japan 253–4, see also criminal justice systems; prosecution; trials criminal responsibility 93 criminalization: of defendant and victim 94; and victimization 92–3 crisis intervention 329–30, 334, 335 CrPC see Code of Criminal Procedure (India 1973) culpability 93, 376 cultural defense 94 culture: Korean and victims 352–3; and

seriousness of offences 95; traditional practices within minority 98; and transferability of 83–9 custom: as a source of law in Thailand 196 CVRA (Crime Victims’ Rights Act) (USA 2004) 345 Daejon Victim Support Center, Korea 138 damages 115; China 156, see also compensation David, René 82 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN 1985) 14, 15, 17, 34, 54, 59–61, 160, 343 Declaration of Crime Victim Rights (Victim Support Network, Japan 1999) 255 Declaration on the Elimination of Violence Against Women (UN 1993) 302–3 Declarations 60 defendants: actions and personality 93; doubts regarding role of 94; plea bargaining in Taiwan 227, 234; right to put questions to in China 153 defendants’ rights 55, 75n10; in Australia 74n8; clashes with victims’ rights 64–73; Taiwan 223, 228, 229, 230 defense attorneys: Thailand 198 Delhi Domestic Working Women’s Forum v. Union of India (India 1995) 162, 168 Department of Social Welfare and Development (DSWD), Philippines 310, 314, 316, 317 desert sentencing 101 dignity: right to be treated with 342–6 disability benefits: Japan 242, 242–3 disease benefits: Japan 242 domestic violence 301–2; Indonesia 269, 269–70, 278–81; international action on 302–4; Korea 184–5, 352; lack of compensation for in Japan 243; protection of victims in Japan 248–50; protection of victims in the Philippines 304–19

Index DSWD (Department of Social Welfare and Development), Philippines 310, 314, 316, 317 duties and rights 89 ECHR (European Convention for the Protection of Human Rights and Fundamental Freedoms) (1953) 62 education and training: for professionals in USA 338; WVS and 22–3 empathic understanding 356–7 England: compensation orders 368, 371–2, 372, 373, 374, 377; restorative justice 389–90, 390–1, 397–8 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1953) 62 European Union (EU): Framework Decision on the Standing of Victims in Criminal Proceedings (2001) 18, 61, 343, 346; State obligations to crime victims 61 evil 335 expert witnesses 152 families: Philippines 301 Family Code (Philippines 1987) 307, 311, 312 Family Courts Act (Philippines 1997) 304–5 family group conferences 389, 393, 398 fear 325, 326, 327 files: access to prosecutor’s in Taiwan 228 financial assistance see compensation; legal aid fines 370–1, 381n23 Forfeiture Act (Britain 1870) 368 Fourth World Conference on Women 303–4 Framework Decision on the Standing of Victims in Criminal Proceedings (EU 2001) 18, 61, 343, 346 France: implementation of international standards 18; police and reported offences 162; pre-trial inquiry 163–4 funding: for compensation systems 121–2; governments 19, 19–20; for support services in USA 344

411

General Appropriations Act (Philippines 1998) 305 Giddens, Anthony 86 Gimcheon-Gumi Victim Support Centre, Korea 351, 356 Goitia v. Rueda (Philippines 1916) 311 Gosita, Professor Arif 114 governments: funding compensation 102, 378–9; and funding of support services 19–20, 19; future steps needed to help victims 20; implementation of international standards 17–19; policy options for reforms 89–91; responsibilities for victims’ rights 104; and restorative justice 391–4, 392; welfare policies 102–3 Griffith, Sir Samuel 82 Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (UN 2005) 15, 343 Guidelines for the Prevention of Crime (UN 2005) 15 Hari Krishan and State of Haryana v. Sukhbir Singh (India 1988) 116, 373 harm: determining seriousness of crime 376; to victim and sentencing 101 High Courts, India 166, 167, 168, 169 H.N. Rishbud v. State of Delhi (India 1995) 163 Ho Yean Theng Jill v PP (Singapore 2004) 377 Hong Kong: compensation 116, 118, 119–20, 120, 121; support services 136, 137; victim impact statements 129; victimization surveys 114; Victims of Crime Charter 123; video testimony 127 human rights 53, 74n3; victims’ rights are human rights 57–64, see also defendants’ rights; victims’ rights Human Rights Act (UK 1998) 76n24 Human Rights Court law (Indonesia 2000) 275–6 ICTY (International Criminal Tribunal for the former Yugoslavia) 66, 67, 68

412

Index

Imperatrix v. Narayan Vamanaji Patil (India 1896) 370 imprisonment rates 88 incest: Malaysia 297–8 incidental civil actions 153, 154 India: Charter for Women Victims of Crime and Violence 11, 29–34; compensation orders 116, 119, 369–70, 370, 371, 373, 373–4, 376, 378–9; compoundable offences and withdrawal from prosecution 170; initiation of proceedings 161–2; investigation process 163–5; Mallimath report 11, 26–7; spread of victimology 113, 115; trials and participation 165–9 Indian Society of Victimology (ISV) 115 Indonesia: civil actions 116–17; criminal justice processes 264, 265–6, 284; customary laws 284–5; legal system 262–3, 270–84; praperadilan 134; secondary victimization 263–5; support services 136; victimization surveys 114; victimology 114, 115; victims 262, 266–70, 267, 268, 269 Indu Bala v. Delhi Administration (India 1991) 166 informal systems 98, 99, see also restorative justice information: provision in USA 336, 337, 337–8, 341; right to in Thailand 202–3; UN and right to 39–40, see also notification institutions: tranferability from nation to nation 81–9 International Conference on Population and Development (1994) 303 International Criminal Court 14 International Criminal Tribunal for the former Yugoslavia (ICTY) 66, 67, 68 International Organization for Victim Assistance (IOVA) 16–17 international standards 82–3; support services 13–17 International Symposia on Victimology 23 International Victimology Institute (INTERVICT) 16 interview skills and counseling 358

investigation procedures: India 163–5; support services in USA during 334–7, see also criminal justice systems Inwood (England 1974) 374, 377 IOVA (International Organization for Victim Assistance) 16–17 Israel: victim declarations 95 ISV (Indian Society of Victimology) 115 Japan: civil actions 118; compensation 118, 119–20, 121, 122, 241–4; Crime Victim Basic Act (2004) 140, 258; introduction of victimology 113, 240; involvement in prosecution 131–2, 135, 136, 253–4; legislation on fundamental principles for victims 18–19, 28–9; notification 122–3, 124, 244–5; parole boards and victim inquiries 129–30, 252–3; protection 247–50; protection against secondary victimization 125, 126–7, 245–7; support services 137, 137–8, 240–1, 254–7, 257–8; victim impact statements 128, 250–3; victimization surveys 114 Japanese Association of Victimology (JAV) 114–15, 241 Jasbir Kaur v. Muktiar Singh (Singapore 1999) 217n10, 217n12 J.K. International v. Government of the National Capital Territory of Delhi (India 2001) 168 judges: and compensation orders 372, 375; Thailand 198; USA 338 judgments: petitioning against in China 153–4; reporting in Thailand 197 judicial reconciliation systems 183, 192n3 justice 101–2, 327; UN and access to 38–9, see also restorative justice Juvenile Act (Japan 1948) 251, 257 juvenile victims: counseling in Korea 361–2; Japan 125, 251, see also children KAV (Korean Association of Victimology) 115, 178 kidnappings 13

Index Kimchon Victim Support Center, Korea 138 Korea: Antragdelikte 131–2; civil actions 117; compensation 118, 119–20, 121, 122, 174, 181–3, 191n2; constitutional petitions 134–5; counseling 356, 360–3; crime 177, 350; crime victim assistance 175–7; criminal justice system 177–8; culture and victims 352–3; government support 190; legal system 179–81, 183–7, 191; needs of victims of crime 351–2; nonprosecution decisions 134; notification 123–4; Prosecutor’s Office and National Police 187–8; protection against secondary victimization 125–6, 127; “ruling applications” 135; support services 137, 138–9, 140–1, 178–9, 188–90, 191; victim impact statements 127–8; victimization surveys 114; victims’ rights 174, 179 Korea Sexual Violence Relief Centre 178 Korean Association of Victimology (KAV) 115, 178 Kuldip Singh v. State of Haryana (India 1980) 166 Labor Code (Philippines 1974) 314–15 Law on the Child and Juvenile Court (Indonesia 1997) 263 law enforcement officers: USA 334, see also police Law on Eradication of Domestic Violence (Indonesia 2004) 270, 278–81 legal aid: China 156–7; Japan 256; Korea 186–7; Taiwan 232 Legal Aid Act (Taiwan 2004) 232 legal cultures 83, 85 legal institutions: policy options for international standards 89–91; transferability from nation to nation 81–9 legal scholars: Thailand 197 legal systems: classification of 84–5; Indonesia 262–3, 270–84; Korea 183–7; Philippines and domestic violence 304–19; Thailand 194–7

413

leniency: victims pleading for 213 Lim Poh Eng v. PP (Singapore 1999) 370, 380n18, 381n21 listening skills 357, 359 Litigation Promotion Act (Korea 1981) 117 Malaysia: compensation orders 368–9, 370, 371, 372, 373, 373–4, 378–9; criminal complaints and compoundable offences 130–1; protection of child victims in 291–9; support services 136 Mallimath Committee report (India 2003) 11, 160, 161, 162, 171n1; extracts from 26–7; recommendations 163, 165, 169, 170, 170–1 Manne Subbarao v. State of Andhra Pradesh (India 1980) 166 Maryland v. Craig (USA 1990) 66 Maung Sein v. Emperor (India 1935) 380n17 mediation: “criminal” in Japan 118; Korea 190; schemes in England and Wales 388 Medichetty Ramakistiah v. State of Andhra Pradesh (India 1959) 168 Miyazawa, Dr Koichi 113, 114, 240, 241 Mohammad Shah v. Emperor (India 1934) 380n17 Morazawa, Hidemichi 16, 28 Nakata, Dr Osamu 113, 240 National Commission of Human Rights, Indonesia 276 National Commission on the Role of Filipino Women (NCRFW) 304 National Commission on Women in India 11 National Organization for Victim Assistance (NOVA) 328 National Police Agency, Korea 176, 188 National Police Reform and Reorganization Act (Philippines, 1998) 305, 314 NCRFW (National Commission on the Role of Filipino Women) 304 norms: importation of international 82–3

414

Index

notification 122–4; Japan 244–5; Taiwan 226–7; Thailand 202; USA 341 NOVA (National Organization for Victim Assistance) 328 offences: Antragsdelikte 131–2; cognizable and non-cognizable in India 161, 162; composition of 210–12; compoundable 130–1, 170, 203, 209–10, see also sexual offences offenders: and compensation 121–2; culpability 93, 376; individualization of 100; notification of release 245, 337; restorative justice and 99, 387, 388–91, 396–7, 399; restriction orders and 116, see also defendants; sentencing offenders’ rights 55, 56, 75n10; clashes with victims’ rights 64–73 Official Secrets Act (Singapore 1985) 220n53 Organized Crime Prevention Act (Taiwan 1996) 230–1 out-of-court statements 228–9 Packer, Herbert 85 parole 71; hearings in USA 336–7; submissions to parole boards 71–3, 76n30; and victim inquiries in Japan 129–30, 252–3 participation: Japan 250–4; in prosecution 130–6; rights of 53, 54, 65, 69; rights in USA 341–2; submissions to parole boards 71–3; Taiwan 223–8; Thailand 201–2, 203; in trials in India 165–9; victim impact statements 69–71 Penal Code (Malaysia 1997) 297–8 Penal Code (Thailand 1957) 195 People v. Cloud (Philippines 1996) 313 People v. Genosa (Philippines 2004) 308, 310 People’s Courts, China 151, 152, 153, 154 People’s Procuratorates, China 151, 152, 153 Philippines: civil actions 117; compensation 119; domestic violence 301, 302; legal system and domestic violence 304–13; support services 137, 313–18 plea bargaining: Taiwan 227, 234

pleaders 165, 166 police: England and Wales 389, 397–8; France 162; India 161–2, 164; Japan 122, 125, 244, 246–7, 248; Korea 124, 176, 188, 189; Malaysia 298; Philippines 305, 314; Singapore 217n13; Thailand 198; USA 334 political economies and criminal justice systems 86–8 post-trauma counseling 330–2 post-traumatic stress disorder (PTSD) 58, 243, 327, 331, 353–5 power, abuse of: Indonesia 266–7, 267 Powers of Criminal Courts Act (Britain 1973) 368 PP v. Donohue Enilia (Singapore 2005) 374, 380n17 PP v. Mohamed Noh Hafiz bin Osman (Singapore 2003) 219n40 PP v. Ng Tick Chuan (Malaysia 1948) 379n8 PP v. Norzian bin Bintat (Singapore 1995) 216n2, 218n28 PP v. Selvaraju s/o Satippan (Singapore 2004) 219n41 praperadilan 134 Praveen Malhotra v. State (India 1990) 166 preliminary hearing system 134 Presidential Commission on Judicial Reform, Korea 176, 185, 186 Prevention of Spousal Violence and the Protection of Victims Act (Japan 2001) 249 private prosecution: China 152, 154, 155–6; not allowed in Japan 253; Singapore 208–9, 216n2, 217n17; Taiwan 133, 224, 237n2; Thailand 132, 203 probation officers: Japan 252, 256–7; Thailand 198 Procedure for Protecting Victim and Witness in Gross Violation of Human Rights (Indonesia 2002) 276–7 professionalization: victim services in USA 338–9 prosecution: Antragsdelikte 131–2; cases withdrawn in India 170; complaints and compoundable offences 130–1;

Index discontinuance in Singapore 210–11; non-prosecution 152, 202–3, 225, 264; preliminary hearings and constitutional petitions 133–5; “ruling applications” and prosecution inquests 135–6; support in USA during 335–6; victims and decision to proceed with in Indonesia 274–5; victims’ involvement in Japan 253–4; victims’ position in China 155, see also private prosecution prosecution inquest system, Japan 136, 253–4 Prosecutor v. Tadic (ICTY 1995) 66, 76n22 prosecutors: Thailand 198 Prosecutor’s Office, Korea 175, 187–8, 189 Prostitution Prevention Act (Japan 1956) 249 protection: against secondary victimization 124–7; child victims in Malaysia 291–9; domestic violence victims in the Philippines 304–19; Indonesia 273, 276, 277, 281–4; Japan 245–50; secondary 96; Taiwan 228–32; Thailand 200–6; UN and 39; victims’ right to 65–8, 340–1; of victims of specific crimes in Korea 184–5 Protection of Informants, etc. of Specific Crimes (Korea 1999) 186 Protectors (children), Malaysia 292, 294, 296 PTSD (post-traumatic stress disorder) 58, 243, 327, 331, 353–5 Public Prosecutor, India 165–6, 167, 168, 170 Public Prosecutor, Singapore 208, 209, 209–10, 211, 216n8, 217n13, 218n28 P.V. Narasimha Rao v. State (India 1997) 167 quasi-prosecution 135, 136 Queen Empress v. Durga (India 1894) 168 Queensland Criminal Code 82 R. v. Privitera (Australia 1997) 75n10 Ram Prasad v. Emperor (India 1935) 371, 380n16

415

rape: definitions of 93 re-victimization: prevention of in Japan 247–8 reconciliation systems 183, 190, 192n3 referral orders 390, 392 Rehabilitation of Offenders Act (England 1974) 390 reparation 386; orders 390–1; rights to in USA 342–3, see also compensation; restitution research: on victimization 326–8; WVS and 21 restitution 116; Indonesia 272, 277–8; Thailand 204; UN and 42–3; USA 337, 343, see also compensation restorative justice 98–9, 385–6, 400–1, 402n23; contribution to broader policy objectives 393–4; implementation failure 397–8; Indonesia 284–5; misuse or abuse for improper political ends 399–400; operational malfunctions 396–7; operational uses 387–91, 388; and social and political structures 86; terminological misuse 394–5; UN and 42; USA 335; use by policy-makers 391–3, 392; victim-oriented aims 386–7 retributive punishment 99–100 Revised Penal Code (Philippines, 1930) 306 Right to Information Act (India 2005) 164 rights: “Asian values” and 89, see also defendants’ rights, human rights; victims’ rights “ruling applications” 135 Rwanda: system of community justice 18 Sarwan Singh v. State of Punjab (India 1978) 373 school violence: Korea 352 Scotland: compensation orders 373 secondary protection 96 secondary victimization 58; Indonesia 263–4; prevention in Japan 245–7; protection against in Asia 124–7

416

Index

sentencing: India 169; Japan 251; Korea 183; punitiveness of 99–102; restorative justice and 390–1; and specific victim categories 94–5; suspended sentences 85, 106n7; victim impact statements and 69, 70, 212; victim not involved in China 155 services for victims 21–2, see also support services Sexual Assault Crime Prevention Act (Taiwan 2005) 229, 230, 238n27 sexual offences: handling cases in India 162; protection schemes in Japan 125, 127, 246–7; protection for victims in Korea 125–6, 132, 184 sexual trafficking 185, see also trafficking Shiv Kumar v. Hukam Chand (India 1999) 167 Singapore: compensation orders 116, 213–15, 368–9, 370, 371, 372, 373–4, 374–5, 377, 378–9; criminal complaints and compoundable offences 130–1; power of ‘composition’ 209–12; private prosecution 208–9; testifying via CCTV 127; victim and the criminal process 207, 215–16; victim impact statements 129, 212–13; victimology 113 small claims tribunal, Singapore 209 social institutions: development of 81; transferability from nation to nation 81–9 societies: categorization of 84–8; tradition and 88; and victim-related policies 91 Spousal Violence Counseling and Support Centers, Japan 249 Stalking Control Act (Japan 2000) 250 standards: international 13–17 State v. Kelly (USA 1984) 307 statements: out of court 228–9, see also victim impact statements Strait Settlements 368, 379n.6 support services 136–41; Japan 122, 240–1, 254–7; Korea 126, 175–7, 188–90, 191, 351–2, 360–3; Philippines 313–18; Taiwan 233; UN and 40–2;

USA 328–39; WVS strategy 21–2, see also compensation; notification Supreme Court, India 162, 163, 164, 166, 167–8, 170 Supreme Court, Indonesia 272 Supreme Court, Thailand 197 surveys, victimization 114, 241, 326 Sy v. Court of Appeals (Philippines 2000) 311–12 Taiwan: assistance in criminal proceedings 232–3; civil actions 117; compensation 119, 120, 120–1, 121, 121–2, 122; criminal justice system 222–3, 235–6; participation 131–2, 133, 223–8; private prosecutions 133; shields in criminal proceedings 228–32; spread of victimology in 113; support services 137, 139; victim impact statements 129; victimization surveys 114 Taiwan Society of Criminology 115 Tamil Nadu, India 119 terrorists acts 13 Thailand: civil actions 116; compensation 118–19, 204–6, 233–5; compoundable offences 131; criminal justice system 198, 200–4; legal system 194–7; private prosecutions 132; support services 136–7; victimization surveys 114; victimology 113–14; victims of crime 199–200 Thakur Ram v. State of Bihar (India 1966) 166 Thurman v. Torrington (USA 1984) 62–3, 301–2 traffic accidents: compensation for victims in Korea 183 trafficking 13, 61; Indonesia 269, 270; Korea 185 training and education: for professionals in USA 338; WVS and 22–3 transplants, legal 83–4 trauma 243, 327; post-trauma counseling 330–2; PTSD 58, 243, 327, 331, 353–5 treaties: Thailand and international 195 trials: Korea 183–4, 186; participation in India 165–9; premature endings in India 170; protection during 126–7;

Index victims’ right to be heard in Taiwan 225–6, see also criminal proceedings Tuason v. Court of Appeals (Philippines 1996) 311 UN Commission on Crime Prevention and Criminal Justice 15, 16 UN Committee on Justice and Support of Victims of Crime, Abuse of Power and Terrorism 46–8 UN: Bangkok Declaration, Synergies and Response: Strategic Alliances in Crime Prevention and Criminal Justice (2005) 15–16, 82–3, 346; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) 15–16, 82–3, 346; Basic Principles on the Use of Restorative Programmes in Criminal Matters (2002) 14; Convention Against Transnational Organized Crime (2001) 14, 15, 61, 75n15; Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) (1979) 302, 303, 304; Convention on the Rights of the Child (1989) 15, 303; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) 14, 15, 17, 34, 54, 59–61, 160–1, 343; Declaration on the Elimination of Violence Against Women (1993) 302–3; Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005) 15, 343; Guidelines for the Prevention of Crime (2002) 15; Universal Declaration of Human Rights (1948) 302 UN Congress on Crime Prevention and Criminal Justice, Bangkok 2005 11, 15 UNAFEI (UN Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders) 12 Union Public Service Commission v. Papaiah (India 1997) 165 United Kingdom: compensation orders

417

368, 371–2, 372, 373, 374, 377; restorative justice 389–90, 390–1, 391–3, 397–8; victim personal statement scheme 168–9 United States of America 347; campaign to amend Bill of Rights 63–4; defendants’ and victims’ rights 65–6; domestic violence and victims’ rights 62–3, 301–2; research on victimization 326–8; state governments and victims’ rights 63; victim rights’ 339–46; victim service programs 17–18, 328–39 Universal Declaration of Human Rights (UN 1948) 302 values: Asian 88–9 VAWA (Violence Against Women Act) (USA 1994) 316, 319, 344–5 VESOs (Japanese victim support organizations) 138, 255–6 victim assistance see compensation; restorative justice; support services victim compensation see compensation victim impact statements (VISs) 69–71, 95, 127; Hong Kong 129; Japan 128, 250–1; Korea 127–8; and prioritization of victims 95–6; Singapore 129, 212–13, 218n32, 218n33, 218n35, 219n40, 219n41, 219n42; Taiwan 129 victim inquiries, Japan 129–30, 252 victim liaison system, Japan 122, 244 victim movements 54–5, 93, 236 victim notification see notification victim personal statement (VPS) scheme, UK 168 victim support see support services Victim Support Network, Japan 137, 255 Victim and Witness Protection Bill (Indonesia draft 2006) 266–7, 281–4 victim-precipitation 94 victimization: identifying 91–3; prevention in USA 337–8; psychological losses involved in 58–9; rates 12–13; research on 326–8; secondary 58, 124–7, 245–7, 263–4; surveys 114, 241, 326; UN commitment to reduce 37–8

418

Index

Victimologist, The 23 victimology 54, 74n5, 326; academic societies in Asia 114–15; courses in 22; International Symposia on 23–4; in Japan 240; spread of in Asia 113–14 victims 13, 36, 327; categories of 92; and criminal law 93–4; differentiation between categories of 94–6; future action for recognition and justice for 20–4; Indonesia 262–3, 265–70, 267, 268, 269, 277; role in different legal systems 84; Thailand 199–200 Victims of Crime Act (VOCA) (USA 1984) 17–18, 344, 346 Victims of Crime Charter, Hong Kong 123 victims’ rights 52, 73n1, 74n2, 179; are human rights 57–64; Asia 56–7; China 155–9; classifying 64–5; history in common law countries 54–6; Korea 174–5; participation 53, 65, 69–73; protection 65–8; and sentencing 100; Taiwan 235–6; Thailand 200–6; to be heard 127–30; USA 339–46; whose responsibility? 104–5 video recordings: interview recordings in Malaysia 298–9; testimony via 127, 186, 246 Violence Against Women Act (VAWA) (USA 1994) 316, 319, 344–5 VISs see victim impact statements Volunteer Probation Officers Act (Japan 1950) 257 VOVCA (Victims of Crime Act) (USA 1984) 17–18, 344, 346

VPS (victim personal statement) scheme, UK 168 vulnerable victims 96, 127 Wales: restorative justice 389, 397–8 Warren v. State (USA 1985) 302 Watanavanich, Professor Prathan 113–14 welfare policies 102–3 witness attendance system, Japan 246 Witness Protection Act (Taiwan 2000) 231–2 Women in Development and Nation Building Act (Philippines 1992) 305 Women and Girls Protection Act (Malaysia 1973) 291, 293 women’s desks, Philippines 316–17 women’s protection centers, Japan 249–50 WSV (World Society of Victimology) 11, 15, 16, 19; mission to advance research, services and awareness for victims 20–4; Convention on Justice and Support for Victims of Crime, Abuse of Power and Terrorism (2006) 24, 34–50, 60 Yamagami, Professor Akira 255 Young, Dr Marlene 13, 16 youth conferences 392–3 youth justice systems 393–4 youth offender panels (YOPs) 389–90, 398