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The Plight of the Victim

The Invisible Victim

by Robert Reiff
Basic Books, 219 pp., $11.95

The charge that we coddle criminals and neglect victims is often heard as a cry from the hysterical right but it embodies a substantial, if distorted, truth. Criminals do get a lot more attention than their victims for many reasons. First, victims frighten us. Like someone struck by cancer or by an automobile, the person who suffers criminal violence reminds others disturbingly of the inscrutable nature of fate’s game plan. It was surely not fear of contagion alone that caused people to shun lepers but also the psychic difficulty of viewing such vivid evidence of life’s random cruelty.

Crime victims also embarrass us in a number of ways. They carry the marks of the aggression and rage we sense in others and within ourselves, the release of which is both frightening and shameful. They mutely reproach us for our good fortune and make challenging claims on our store of compassion and charity that we feel guilty about meeting inadequately. Like Philoctetes, the victim himself may be embarrassed by his wound. Some people are said to be ashamed to admit that they have cancer and this is in part because they sense and share the uneasiness that public acknowledgment of that feared disease arouses. In the same way the courts have always held it to be defamatory to say untruly that a woman has been raped, even though this would not be her fault and should not cause a right-thinking person to think less of her.

When victims are not frightening or embarrassing us they may bore us with their steady, drab presence. The supply of victims (whether from crime, illness, or accident) has always been plentiful and over time we have accommodated to them as to the weather. Indeed, we always find ways to make more victims. As modern medicine has made much illness less terrifying, we are replacing one scourge with another by encouraging a terrible rate of traffic accidents. But perhaps victims can be tolerated only by not taking them seriously. The contemplation of serious illness or accident or being the victim of a violent crime remains so distressing that we strive to regard them as hideous misfortunes which with luck won’t happen to us. Dangers like inflation or economic depression threaten us in a more bearable way and so are the comfortable subjects of constant public concern.

Victims are frightening but not interesting while criminals are frightening and fascinating. Criminals have let loose the aggression that we have tamed, so with some buried faculty we may envy them. And criminals present such a stimulating cluster of moral and social problems. What is guilt? When are defendants properly held responsible and what kinds of excuses should we recognize? Can a theory of retribution be defended morally? Are conventional modes of deterrence effective? Can we reform people? These are lovely questions for intellectuals and inescapable ones for administrators and politicians because, after all, the criminal not the victim is the problem. Except in refined theories of victimology, victims don’t make crimes—criminals do. In this sense, therefore, they deserve more of our attention than the victims.

But this of course is only to say that criminals (unlike victims) are people we have to deal with and that dealing with them presents intractable difficulties. It is not a justification for neglecting to assist crime victims and Dr. Reiff’s book is an indictment of this neglect and a plea and proposal for more action.

Why, after all, should we help victims of crime? If it is only the criminal who has behaved wrongly to the victim, should it not be only the criminal’s responsibility to make the harm good? The answer derives from a recognition of social insurance obligations arising from the presence of acute need. We have long come to see that fault does not exhaust the reasons for requiring compensation. Manufacturers and distributors of products may be held strictly liable for injuries caused to consumers through defects, even though they cannot be shown to be at fault. This legal theory is sometimes called “enterprise liability” and it reflects a judgment that the capacity of a person or an institution to absorb a loss may sometimes be a consideration as important as the location of blame in working out schemes of compensation for injury. The cost of the product will spread the loss over all its users, saving the victim from a catastrophic economic blow.

But people suffer loss in life from misfortune where responsibility even in the broader sense of enterprise liability is hard to fix. A child is born blind or retarded; a man is injured by a falling tree in a storm; an old woman is robbed and battered. In the absence of private resources many will want to argue that the state has a duty to give assistance. Such a duty will have to be based on a conception of fairness and the social contract that attaches importance to questions of need and human dignity. We could express the idea loosely as a matter of insurance by arguing that there is a whole continuum of risks inherent in being a human being. All of us run these risks and if we can rely on help through a mutual insurance or compensation scheme, this softens the loss both economically and emotionally.

In so far as this duty to aid or compensate is concerned there is nothing special about being a crime victim as opposed to being a victim of illness or accident. It is true that crime victims (unlike other victims) suffer from willful human acts that the state has a duty to prevent where possible, but this is not a sufficient reason for imposing liability on the state. The failure to prevent most crime does not make the state at fault, for most crime is probably not preventable. If a duty to compensate is assumed, it must be derived from a general principle that government and other publicly accountable institutions should treat people with fairness.

Dr. Reiff argues in his book that government at present does little to shoulder that obligation. Victims of crime, if otherwise eligible, are helped by general programs for medical insurance and unemployment payments, but many of them suffer a sudden, dreadful loss of health and goods that gives rise to an urgent need for disaster aid. They do not get it. Our social services can respond magnificently when the need is huge and encompassing (as with tornadoes and floods), but they largely ignore the steady, drizzling regiments of crime victims.

There is no federal program for the aid of crime victims and fewer than half the states have compensation schemes. The best of these is said to be in New York and this is the one that Dr. Reiff has studied most closely and shows to be inadequate, giving too little and too late. The poor, who of course make up the great majority of crime victims, are so cynical about the compensation program that when the author participated in a scheme that set up an experimental Crime Victims Service Center in the Bronx he and his colleagues could hardly get any customers. Suspicion was so rife that the most strenuous efforts to find clients produced over several months only seventy-eight victims willing to believe that anyone was likely to do anything to help them. And then Dr. Reiff’s own counselors in the Service Center found state and city agencies so stubbornly frozen and unhelpful that they came to share the despair of their clients.

The most surprising thing about Dr. Reiff’s book is that he seems surprised by all this. That a society so deaf to the claims of many of its people and so mired in selfishness should ignore the special needs of a particularly embarrassing group of people is entirely to be expected, as the author, a psychiatrist, should very well understand. Dr. Reiff chides us for this neglect with commendable force and compassion, but his urgings are marred by the air of triteness and naïveté that pervades his book. Having made a special study of the matter he emerges with conclusions like the following: “It appears to me that elderly whites are victims far more than other whites.” (I never made a special study but that appeared to me also.) His legal comments are unsophisticated and occasionally ludicrous as when he explains that the police could not prosecute a certain murder because they could not find the habeas corpus—a statement wrong in its conclusion, not just in its use of terms. While we may certainly endorse his criticism of current compensation schemes and his recommendation that stronger and more expeditious ways be found to aid the victims of violent crimes, his book has remarkably little that is new to say on the subject.

But he does advance a companion thesis that is dangerously wrong-headed. This involves a shotgun attack on most aspects of the criminal justice system (“criminal injustice” system Dr. Reiff calls it) for being “unfair to victims” and (yes, our old friend) coddling criminals at the expense of the victim. Victims, the author tells us, are “an oppressed minority” often mistreated more than the offender. Many contentions are packed into this sweeping claim.

In so far as it means that officials in the criminal justice system are sometimes insensitive to victims’ feelings and needs it is a valid criticism. Police see their job as catching criminals or keeping order and often brush victims off once they have been squeezed for information. Prosecutors want victims to talk, identify, and testify but don’t sustain, support, or assist very much. Courts postpone and continue cases to suit lawyers and seem heedless of witnesses (victim or not) who must show up again and again, suffering inconvenience and expense. Much could be done in these respects to treat victims (and witnesses generally) with more dignity and practical assistance.

But Dr. Reiff goes far beyond this and suggests that the very nature of our trials and plea bargaining system is unfair to victims. He describes the criminal justice system as “archaically offender oriented,” and expends much wrath on the adversarial or, as he calls it, gladiatorial aspect of our criminal trials which, he believes, devalues the search for truth and glorifies the image of the successful lawyer as “one who can make wrong appear right.” This is a misconceived attack.

Compensating victims of crime is not and cannot be a prime concern of a criminal justice system which must be designed to determine guilt and assign punishment to offenders. Certainly the criminal process should deal gently and sympathetically with victims but this can only be incidental behavior and not its reason for existence. The concept of the victim does occupy a central place in the legislative construction of a code of crimes and tariff of punishments, for we conceive of a crime and the appropriate sanction for it according to the crime’s actual or potential harm. Then the extent of the injury to the particular victim reenters the proceedings as a crucial and final consideration in fixing the sentence. But during the investigation of an incident or the trial of a defendant nothing can properly be allowed to impede the fair assessment of culpability in a legal and constitutional way.

Dr. Reiff is troubled that a victim may be exposed to harsh cross-examination in the course of a trial. He says that a victim should have a constitutional right to remain silent and he attacks what he sees as viciously clever defense lawyers who confuse and torment victim-witnesses so that the guilty contrive to be acquitted.

Defendants, of course, would not object to victims remaining silent. If they did, convictions would often be very difficult or impossible to obtain. What Dr. Reiff wants is that victims should be allowed to testify against a defendant but should be protected from cross-examination by defense counsel. This is a monstrous proposal that could be justified only by the intolerable assumption that anybody charged must be guilty and so doesn’t deserve a trial with due process of law. It would destroy the Sixth Amendment’s guarantee that an accused has the right to confront the witnesses against him and could only be enforced if the Fourteenth Amendment were repealed. Dr. Reiff seems unaware of all this.

Rules of evidence are supposed to protect witnesses against an irrelevant or unduly oppressive cross-examination. But it is no doubt the case that the skill of a forceful cross-examiner can shake the credibility of a witness (whether a victim or not) so that perhaps some guilty defendants escape conviction. This provides no reason for censuring defense lawyers who have to do a not always pleasant job thrust upon them by the shape of our procedures. Those who practice law with conscience (as do most) will be troubled if their efforts lead to the release of someone who might properly have been convicted, but they will strive again and again for the same result for reasons that have an excellent moral foundation.

The legal concept of guilt is not that someone did something but rather that twelve people are convinced beyond a reasonable doubt that he did it after listening to the presentation of evidence in a highly stylized manner that our traditions and Constitution have characterized as being the fairest way to proceed. The fairness of this presentation is possible only through an adversarial style in which, as Chief Justice Burger reminds us, all three legs of the tripod (judge, prosecutor, and defense counsel) must be strong. To fail to defend an accused with all the vigor allowed by the rules is thus always an offense to the morality of the system for the prosecutor is not likely to show a corresponding lack of sharpness.

This cannot be changed by talk of fairness to the victim. A victim has no right that anyone should be convicted but only that due diligence should be used to bring the probable offender to a fair trial. Indeed, every citizen, including the victim, has a right that the defendant should be acquitted if a jury has not been persuaded beyond a reasonable doubt under the rules. The moral logic of the system does not assume that results of trials will always be perfectly consonant with “truth” (an unattainable ideal), but only that trials should be conducted according to rules. Perhaps some of the rules should be changed (though certainly not the way Dr. Reiff believes), but defense lawyers should not be blamed for playing a part without which fairness under the rules would be impossible. This is like blaming the actors for a badly written play.

There is a reasonable point obscured by Dr. Reiff’s more hectic reproaches. Every citizen has a right that the harm inflicted by an offender should be justly taken into account in fixing the disposition and sentence in a case. It is of course the prosecutor who has the duty of making representations on this point to the court, but it may be that the pressures of calendar and business make the prosecutor (and the judge) dangerously forgetful of this duty. This is most dramatically evident in some plea bargains and we must remember that most cases are disposed of by pleas.

Dr. Reiff raises the possibility of creating an office of victims’ advocates who should have a right to present the case from the victim’s point of view during plea negotiations and trials, and to register on the record disapproval of a sentence they regard as inadequate. Continental Europe has long been familiar with the lawyer for the parti civil (the victim) at a criminal trial doing exactly this and also asking the court to enter a judgment for restitution or compensation to the victim by the defendant. Restitution schemes rarely amount to much (because most criminals aren’t the prudent thrifty types who are likely ever to pay back anything), but the presence of a victim’s advocate to keep the prosecutor up to the mark is an idea that deserves elaboration, though it is much more practical in Europe where attorneys play only a modest, even a retiring role in a criminal trial.

But a desire to redress our neglect of victims ought primarily to be carried out by better social insurance and other therapeutic measures of direct assistance. There may be good reasons why the adversarial aspect of our criminal trials should be modified but they mostly have to do with unfairness to the defendant, and have no connection with the plight of the victim of crime.

Letters

The Voice of the Victim May 1, 1980

The Voice of the Victim May 1, 1980

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