Sign In
0 Items (
Search
Comments (31)
In 2003, based on my various roles as police chaplain, prison visitor and parish priest, and with some experience in youth advocacy, I was invited to participate in a meeting with a young offender. In a police interview this offender had confessed that, in company with another 17-year-old whom he had declined to name, he had broken into a home belonging to an older couple. The home had been chosen because the couple had a regular routine which made it easy to predict when they would not be home. In addition, the offenders believed the couple could easily be overpowered if they did return home unexpectedly.
It had been suggested to the offender that if he was willing to meet with the victims, express repentance and a willingness to make amends, this might make a difference to sentencing. This was described to me as “restorative justice.” It was a process, I was told, that was “victim-centred”.
Social workers and the offender’s solicitor had not been willing to supply me with any details about exactly what the offenders had done in the couple’s home. Police were more forthcoming. I was able to meet with the couple at their home prior to the scheduled meeting with the offender.
He and his companion had defecated on the lounge room carpet, urinated on furniture, pulled paintings and photographs from the wall, destroyed personal property including items that had been gifts at the couple’s wedding forty years previously, and stolen cash, credit cards and a few items of jewellery. The couple were pensioners and did not have contents insurance. They had been left to clean up the mess as best they could. There were stains on the carpet, and there was still a distinct and unpleasant odour in the home. They explained that they no longer felt safe but had nowhere else to go. They could not afford to replace carpets or furniture. Some items; photos of family now deceased, paintings, glassware and porcelain which had been wedding gifts, and jewellery that included the woman’s engagement ring, which had not been recovered, were not replaceable.
The couple did not wish to meet with, see, or talk to the offender. But they had been told that they might reach “closure” by explaining to him the hurt they had suffered, then listening to him talk about his background and why he done what he had done, and express his remorse. If they felt able to offer him forgiveness, they were told, that would be good for them and him.
During the preparatory meeting, at which the couple were not present, the offender asked what the meeting was for. The social worker explained that this was to help him prepare for his meeting with the couple whose home he had broken into, to give him ideas about what he should say.
Offender: Oh yeah. So I should say, like, I’m sorry?
Social Worker: Yes, that’s right. But you have to look sorry too.
Me: Are you sorry?
The youth looked for reassurance to the social worker, who nodded.
Offender: Oh yeah. For real.
Me: What would you do if someone broke into your parent’s house and did what you did?
Offender: I live with me mum.
Me: OK, so if someone broke into your mum’s house and did what you did?
Offender: I’d kill the c***.
Me: So you know what you did was wrong. You know that it caused harm, and you are willing to make amends?
Offender: Yeah
Me: Does that mean you are happy to pay to get their carpets replaced, to buy them new furniture, and to co-operate with police in apprehending your companion and getting the couple’s jewellery back?
A horrified expression contorted the youth’s face and he looked once more to the social worker for a cue.
Social worker: Ah, no, no. That’s not what this is about. It’s about achieving a better outcome for the victims, and for [the offender].
RESTORATIVE justice claims to be an alternative to retributive justice. Instead of identifying and punishing offenders, it is said to be victim-centred, focussed on remedying harm and on reconciliation. Yet despite the fact that restorative justice claims to be victim-centred, I could not see at the time, and still do not see, how any part of that process was directed at achieving a better outcome for the victims. What exactly was being restored to them?
A clarification may be needed at this point. This paper is particularly concerned with restorative justice in the context of crime and responses to crime. There are other contexts in which it is sometimes suggested the philosophy and processes of restorative justice may be applied, for example, in schools and workplaces. Those situations are not part of this discussion, although they will be mentioned briefly later.
There are various ways of understanding what constitutes a crime. These include the view that a crime is any action defined as a crime by law or custom in a particular jurisdiction. Alternatively, a crime is something that everyone in a particular culture recognises is wrong and deserving of punishment. Or a society may hold some combination of these views; for example, that there are some crimes that are crimes because they are obviously wrong (eg, rape), while others are crimes because they are defined as such in common law or legislation (eg, possession of marijuana).
What all of these definitions have in common is that crimes are actions (or sometimes failures to act) in which the community as a whole takes an interest. They are not taken simply to be the private actions of persons which concern only themselves, or even the actions of one person against another, but actions which cause harm to the community. This is so even when the action is indeed at first sight that of one person against another — for example, when a drunken party-goer punches a stranger in the head outside a nightclub.
The view of almost all societies, from tribal groups to modern industrial states, is that when any member of the community is grievously harmed, the whole community is harmed. This means the whole community has an interest and is involved, whether directly, or through a delegated group, or by proxy through police and courts, in understanding what happened, in taking suitable action to remedy the harm done, in punishing offenders, and in preventing further harm from occurring.
The justice system in any society, however differently expressed, is the structures and processes which, when a crime has occurred, enable a society to:
♦ Identify what has happened including events, perpetrators, victims, and harm done.
♦ Remedy the harm if possible
♦ Punish offenders
♦ Prevent further harm from occurring
These structures and processes are not, and cannot be, successful in every detail and at every time. It may not be possible to ascertain every detail of a crime, or every perpetrator, or all the harm that was done. It may not be possible, even with rehabilitation programmes or an extended period of incarceration, to prevent criminals from offending again. The priority given to each aspect of these processes may vary according to culture, government policy, public opinion, or fashions in philosophy or social practice.
Restorative justice is sometimes described as an alternative to retributive justice. Retributive justice, we are told, focusses on punishment of offenders. Restorative justice seeks to arrive at a consensus about how best to remedy harm and restore relationships.
But this dichotomy is misleading. No modern liberal democracy has a justice system whose primary focus is retribution. On the other hand, there is little evidence that restorative justice, at least in the setting of criminal justice, is in practice victim-centred or primarily concerned with remedying harm and genuine restoration.
In fact, for many victims, not only is nothing restored in restorative justice, but their experiences of loss and pain are glossed over in a process which seems designed to benefit not them, but the offender. John Braithwaite noted (British Journal of Criminology 2002 42 pg 570) “We actively seek to persuade participants that they ought to listen respectfully, but we do not urge them to forgive.” The first thing that comes to mind here is that it is an astonishing dismissal or belittling of victims’ experiences, or at least a gross lack of sensitivity, to suggest to a woman who has been raped that she ought to listen respectfully while the man who violated her speaks, or to a man whose child has been murdered that he owes a duty to the murderer to be silent while the murderer talks about his feelings.
Regardless of Braithwaite’s assertion to the contrary, many victims do feel coerced into participating, and pressured into expressing forgiveness. Braithwaite’s own views about this are expressed more revealingly in the paper Principles of Restorative Justice: “… if a victim rejects an apology, choosing to hate, the ideal is that the conference empowers them to do so… ” These are the options, apparently – forgive, or be a hater.
Although restorative justice conferences make declining to forgive an option, this is regarded as indicative of personal failure, vindictiveness or weakness. This is very far from being victim-centred.
Being the victim of a crime does not create or impose any obligation on the perpetrator of the crime. Apart from the duty to be truthful, a victim owes nothing to a person who has violated their property or person. That includes participation in programmes designed to produce better outcomes for the offender.
It is sometimes claimed that restorative justice reduces recidivism and, by offering an alternative path to traditional judicial procedures, reduces incarceration. This, it is suggested, is not only a benefit to offenders and society, but also to victims, since the changes in thinking and behaviour in offenders engendered by the restorative justice process mean fewer offences committed and therefore fewer victims.
There are at least three issues with these claims.
FIRST, even if these claims were true, they do not make restorative justice victim-centred. Victims of crime are not simply part of some anonymous conglomeration whose harms, needs, and interests can be treated as if they were a single object. They are individual human beings. A possible marginal benefit for victims as a whole is not the same thing as, and may even be opposed to, caring for and meeting the needs of a particular victim.
Second, there is very little evidence that restorative justice does reduce recidivism and incarceration rates. There are many studies which claim it does, but the credibility of these is impaired by small sample sizes, poor study design, deficient analysis, and the remarkable co-incidence that in almost every instance, researchers find exactly the results they are hoping to find.
Finally, where restorative justice practices have been implemented within the criminal justice system, they are implemented in addition to, and not as an alternative to, normal courtroom and sentencing procedures. It is hard to see how it could be otherwise, since once a crime is demonstrated to have been committed, the prosecution of the alleged offender rests with the relevant government authority, not with the victim. This is because, as explained above, part of the definition of a crime is that it is a harm so serious that the whole society considers itself to have been harmed. Despite the interminable frippery of American law and order TV shows, there is no such thing as a victim deciding “not to press charges.” The broader community has been harmed, and the broader community decides the action to be taken.
Restorative justice conferences inevitably add an extra layer of bureaucracy to an already expensive and for many people, confusing and over-long process, while adding nothing of value.
In democracies where rule of law is taken seriously, understandings of what is just are moulded by the values of the community. Different groups in society may have different views about what acts or omissions should be considered crimes, the threshold for delineating crimes and torts, and what is the appropriate response to particular crimes. In a state which takes representation seriously, all of these perspectives will go into the mix of ideas that eventually coalesces into legislation, regulation or policy. This is part of what democracy means.
Regardless of how distasteful it may be to some academics, most people believe a measure of punishment is appropriate in at least some criminal cases. Where offenders have used sexual violence against children, where vulnerable people to whom every cent matters are cheated out of income or savings, where a family is murdered, or in instances similar to the one I described at the beginning of this paper, most kind and reasonable people will insist that punishment is called for. More than this, they believe that a failure to punish is a failure to act justly. Refusal to punish perpetrators of serious crime is injustice to victims.
This does not mean ordinary citizens or victims of crime are vindictive. In most people’s view, it would be wrong for offenders who cause grievous harm to suffer no consequences. Those consequences, however, are not simply retributive. They are to be purposeful.
The purposes of consequences imposed by society for criminal acts may be summarised under the following headings:
♦ Protection of society against further offences for the duration of any incarceration.
♦ To deter those tempted to criminal acts, and to deter criminals from reoffending.
♦ To rehabilitate prisoners: to model respectful and positive thinking and behaviour, and to offer classes and programmes to give prisoners skills for life.
Restitution is sometimes added to this list. Restitution via incarceration is the theory that prisoners are paying their debt to society by being imprisoned. This is clearly nonsense. A criminal does not pay his debt to society by costing society $250 per day ($400 per day if capital and maintenance costs are included) to keep him in prison.
Consequences imposed by courts for criminal acts are not imposed randomly. Within guidelines and accustomed practice, they are adjusted for particular circumstances including the severity of the crime and offender’s background, including prior offending. This makes it clear that even if restorative justice really is victim-centred and focussed on restoration, restorative justice and retributive justice are not the only two possible options. The dichotomy between restorative justice and retributive justice claimed by the former’s proponents should be rejected.
In recent years, restorative justice has been suggested as an effective method of bringing about reconciliation in schools and workplaces. Conferences between bullies and the bullied in schools, for example, can help to bring about a deeper understanding of the situation and feelings of victims by the bullies, and encourage them to apologise, take responsibility and amend their thinking and behaviour. In a similar way, conferences in the workplace between those whose work has been claimed by a workmate, or who have been the victims of unfair discrimination, can restore relationships and set the stage for more positive, open, and productive workplaces. However, this is no more than appropriating to the cause of restorative justice practices which are well-established common-sense conflict resolution and behaviour management techniques.
Even in schools and workplaces, explicit introduction of restorative justice does not seem to bring about any positive change. Some research shows that replacing school disciplinary procedures with restorative justice conferences has a negative impact on student behaviour and academic outcomes, while the same practice in the workplace leads to more lost time and victims feeling less safe and less satisfied with the outcome of disputes.
Provisions for restitution in some tribal and ancient civilisation legal codes are also sometimes claimed by restorative justice proponents as precursors of contemporary restorative justice practices. In fact they are simply evidence that remedying harm has been part of most justice systems, at most times, in most parts of the world.
Theory is important. When based on careful, objective research, it can give new insights, make useful predictions, and help set priorities for practice. The most important question for criminological theory, for justice, and for offender rehabilitation is “What works?” Restorative justice does not work. It offers no benefits or solutions in practice. Nothing is restored. Like Marxism, restorative justice theory is a failed coagulation of idealism and coercion. It is time it was discarded.
I lived in a flat in South Yarra from Feb 1993 until August 1996. We were broken into in Nov 95 and then again three times in one week in August 96, which was the catalyst for us to move out. And yes, that’s three times in one week – Monday, Tuesday and Thursday. The Ds disturbed the burglar(s) on Tuesday, but the scumbags came back again on Thursday to finish their job. They even removed the window frame to get the big TV out. It’s fair to say I never wanted restorative justice (as it happens, we got the stuff restored because it was found in a Prahran Cashies), but I would have loved to administer retributive justice with a heavy object.
” it was found in a Prahran Cashies”
They don’t call it Crime Converters for nothing.
Another descriptive term is “licensed receivers”.
“The couple did not wish to meet with, see, or talk to the offender. But they had been told that they might reach ‘closure’ by explaining to him the hurt they had suffered, then listening to him talk about his background and why he done what he had done, and express his remorse. If they felt able to offer him forgiveness, they were told, that would be good for them and him..”
Let us recast that slightly, and blend it with a counterfactual:
“Hitler’s many victims did not wish to meet with, see, or talk to the former Fuhrer. But they had been told that they might reach ‘closure’ by explaining to him the hurt they had suffered, then listening to him talk about his background and why he done what he had done, and express his remorse. If they felt able to offer him forgiveness, they were told, that would be good for them and him..”
Maybe that would have worked had Hitler survived, been pulled out of his Berlin bunker and had gone into the dock at Nuremburg. But it has, perhaps, a problem or two.
Restorative justice features in the Old Testament. But it was really restorative: the crook in many crimes had to pay up. That’s how it should work. The thug in the story above should have been hit with a garnishee debt for the full ‘restorative’ quantum. Then a few years in jail to ‘restore’ public safety from his depredations.
|
In my experience in law enforcement (of an obscure Act that we’ll leave aside), the best ‘education’ for behaviour change was stiff penalties (I think it was about $50k for obstructing my officers, for instance), vigorous enforcement, and appropriate issue of penalty notices. Worked every time.
Quote: Despite the interminable frippery of American law and order TV shows, there is no such thing as a victim deciding “not to press charges.”
.
There is in some countries, and in my opinion, sometimes a very good thing, as in this example from Indonesia:
.
A 13yo boy hopped in his father’s muscle car (allegedly without permission) and took his mates for a joyride which ended in a prang in which 6 people died. In Indonesia at that time the age for “adult” criminal penalties was (still is?) 12, so the boy was looking at serious jail time in a serious jail.
.
But father was very wealthy and offered to buy the families of the deceased a freehold house each and pay private school and tertiary fees for their other children until they completed their education if they did not press charges – the nominal victims were dead and so their parents, who surely were also victims, got to make that decision.
.
Nothing would bring the dead back to life, so wasn’t that a better outcome than the 13yo spending years in an adult prison and the victims’ families foregoing what his father gave them?
Yes it was a better outcome.
Going forward, a lot would depend upon what Dad did to his lad. If the son remained an entitled little p….. , then the likelihood of future misery would be guaranteed.
Another, in my opinion, good example, albeit less so obviously good than the previous, in the Indonesian Province of Bali:
.
An Australian tourist, a WA lawyer, was walking down the street with an open bottle of beer in his hand when he needed to, or at least decided to, urinate. So he entered the front yard of a private residence and urinated on the base of the household shrine.
.
The man of the house remonstrated with the tourist who responded by belting him on the head with the beer bottle.
.
Police were called and took the tourist into custody. After negotiations the resident said he would accept $A35,000 to not lay charges. The tourist facing a spell in the “notorious” Kerobokan Penitentiary paid the money and was summarily deported.
.
How “good” that is depends on balancing considerations of the finances of the family and what difference $35k made to them with what would be appropriate punishment for the tourist.
Ah lawyers, don’t you just love them.
I think that is called “blood money”, and exists in most Muslim jurisdictions.
When a person has dozens or over a hundred convictions, things have gone beyond a nice chat with the latest victims. Or, when a person has committed more than one crime, things have gone beyond a cup of tea with a social worker watching on.
Typically in these instances it is the ineffectiveness of the punishment, and the failure to imprison or detain, which has broken down. The underlying assumption that the criminal deserves more consideration than the victims is at play.
How often do we hear that a repeat offender is out on bail, or that a hoon driver who kills has no licence?
The kind of justice that works is the kind they practise in Singapore.
Australia’s reoffending rate for criminals convicted of violent crimes including rape and murder, ranges from 47% to 63% depending on State/Territory.
In Singapore, it’s 1.45%. The difference?
They deliver corporal punishment – strokes of the rattan, which are extraordinarily painful and never forgotten by the offender.
Since most violent offenders are profoundly stupid and sociopathic, the rattan works because it penetrates their stupidity, permanently. When a violent thug who has injured someone cops 6, 8 or 12 strokes of the rattan (as well as their custodial sentence), they almost never reoffend again.
1.45%. It works.
Exactly.
A ridiculous suggestion, we are much too civilised.
I’m sure saying ‘sorry’ damages the self esteem of the perpetrator, and needs to be stripped from the Restorative Justice protocol.
I found it amusing when, a few years back, some teenage American kid was doing some creative artwork with spray cans in Singapore, and he was apprehended and sentenced to some number of strokes of the rattan cane. Big outrage in America, and I think it was President Bill Clinton who tried to intervene on the boy’s behalf, and succeeded in having the penalty reduced from 6 strokes of the cane to 4, or something like that. Personally, I think that if a juvenile offender is caught painting all over public and private property, their hands should be amputated. Sounds a bit harsh, perhaps, but it would insure that the vandal wouldn’t re-offend; pretty difficult to use a spray can without any hands!
Actually, I think it would be a good idea to adopt a sort of “gulag” system in Australia, where the criminals would be pressed into labour to repay their debt to society. We had it once, and it was instrumental in the establishment of the Australia we know today.
I have no idea how any victim could engage in this kumbaya version of “restorative” BS. Using the example by Pater Wales above the only restorative justice should mean restoring victims’ items destroyed, by tapping in to the crims inevitable lifetime centrelink payments, after they’ve served jail time. No meetings thank you.
Can imagine these miscreants bragging to mates about sitting down with a nice cuppa with their victims after doing “community service” and how easy it all was. Emboldens them to do it all again. No way.
An anti-social male fathers a son and either does not marry the mother or deserts her and quellue surprise the son turns out as anti-social as his parents and will go onto do ensure the pattern repeats. As per the discussion with the adolescent logic and reasoning just doesn’t work with the underclass and corporal punishment does.
Another aspect of youth crime is the insistence on infantalising these criminals with journalists and pokiticians leading the way. Senator Paterson referred to the criminals who murdered the doctor in Melbourne a week ago as ‘young boys’ and his host Credlin called them ‘kids’. Now infantalising them this way might suit the female dominated educational system but these crims are not children. They are post-pubescent male adolscents, nascent adults or adults-in-the-making. They have testosterone in their brains and are learning to become adult males or men from women, people who have never become men and cannot guide these crims on the path of learning to accept rrsponsibility for their actions and the consequences of antisocial behaviour.
Centuries ago the consequences would have been execution but today they receive no consequences and to the contrary go on to reproduce their antisocial genes. Juvenile execution is a poor way of teaching consequences even if it means others are spared the behaviours but at the very least a return to corporal punishment is called for.
I remember 20+ years ago when Mark Latham told his electorate that corporal punishment should be re-introduced in schools (Bring back the cane).
Not long after that he was made Leader of the Opposition, but on the condition that he recant his support for corporal punishment, which he did, in his words at least but I doubt he’d changed his mind.
That was a superb article- it is a pity that our universities have degraded to the extent that such clear-thinking and logical opinions are not tolerated in the institutions and that the pappy ‘solutions’ with their hypocrisy intact, are implemented by our justice system- presumably a result of self-promotion by ‘experts’.
As a person with criminal law experience I can attest to the attitudes of the offenders described by Mr Wales. I can also attest to the saccharine attitudes of the social workers and psychologists involved. While, as a defence advocate, I cynically used the naïveté/dishonesty of the psychologists and social workers, I nevertheless, together with my clients, (privately on my part at least), had contempt for their smug world-view.
I acted for many hundreds of offenders, as I can see that Mr Wales has, and I carry with me a deep respect for the criminal justice system. This was sorely tested when serious cases in which my client was proved guilty resulted in nominal sentences (a ‘slap on the wrist’).
There is nothing ‘restorative’ in being weak, and that is how it is viewed, both by the offender and by the victim. It is, as Mr Wales pointed out, essentially unjust. Even as a defence advocate, I knew that, although such outcomes suited me professionally, they abused the criminal justice system.
As Mr Wales also pointed out, another level of the ever-present bureaucracy is added, with the social workers prompting the responses by the offender- they do not ask the questions that will give them an inconvenient truth. How in these circumstances is there anything ‘restorative’ in such a charade? The whole institution, the social workers, the victim, the accused, the courts and police, are all engaged in a massive pretence. How is that not corrosive for the criminal justice system itself?
The courts operate to administer justice-a duty which, as Mr Wales pointed out, is owed to the community at large. That is why the informant in criminal matters is the state, not the victim.
We are seeing the results of a generation of academics engaged in a lot of self-promotion by invoking novel ideas based purely upon tearing down existing structures. Their advance through academia was not guaranteed by affirming that the existing systems operated well and by reforming aspects that required improvements. Instead, to get attention, the academic institutions required the image of the critic, so as to generate the excitement of remedying all the ills of society – essentially the institution demands that the revolutionary is rewarded and those affirming the existing structures despised.
Anyone with practical experience becomes aware of the wisdom of the legal practices that have been developed over hundreds of years to protect the legitimacy of the legal process. This is never so attention-grabbing as the protests or pushes to change and destroy what is there.
I have been before tribunals where the rules of evidence have been abandoned as the result of notions playing upon the chippy idea of ‘’doing away with the lawyers’ -as though ‘anyone can do this’.
The result on these occasions was absolute abuse – where gossip and prejudicial, non-probative evidence has been admitted , to the prejudice of a fair hearing on the facts. These tribunals and the idea of ‘doing away with the rules of evidence’ were concoctions that, like socialism, play upon the envy of the target audience. The rules of evidence were developed over many hundreds of years of hearing cases and working out that gossip is unreliable and that the facts must be established as far away from emotional hyperbole as possible. However, the universities produce graduates who are rewarded for tearing down, rather than building up. The rules of evidence are presented as massaging the envy and self-pride of the target audience as rules devised by white men that operate to hide rather than reveal to people who are just as capable as the lawyers.
People must become aware of the actions of those who are engaging in an undermining of our institutions. It is insidious and pervasive. Articles such as this one, written concisely and from the perspective of experience, serve a purpose far more important than simply the individual issue.
I agree with everyone but disagree with one point.
It was only after the 1950s that most prosecutions became state-centred or public. For most of Australian and English history, prosecutions were private – and so they should be, because it is silly to suggest that the ‘community’ is the victim. But it is undoubtedly easier to treat it that way.
Given the amount of offenders that don’t get prosecuted by police, the loss of this institution is another win for the big state which now controls access to the criminal justice system – and which increasingly is a system to give justice to criminals and not to their victims.
I disagree. Anything that is a breach of the law is a crime against the state, and it is incidental that individuals might be the object of that crime. If the onus of prosecution were to be imposed on the affected individuals, where do they get the resources, firstly to investigate, identify and arrest the perpetrators; secondly, to fund any prosecution and; thirdly to impose any penalty likely to consume state resources.
It is a pox on the administration of the legal system that the media, and particularly the radical feminist movement, has been allowed to persist in using the nonsensical and entirely false terms “victims and survivors” when referring to people, particularly those complaining of sexual assault. If there is any lesson to be learnt from the recent Higgins/Lehrmann fiasco, it is that no crime has been committed until it is objectively proven by independent investigation and, until then, nobody is a victim or survivor but simply a complainant. Private citizens, inevitably biassed in any case, simply do not have the necessary resources.
The majority of prosecutions in history were private. This is simply how it was. Why wouldn’t it be? Most governments had little resources or ability to fight petty crime – which is still the case.
But most importantly of all, the state is not a victim. Society is not a victim. The actual victims are not ‘incidental’ – they are the ones who have had their legal rights violated and no one else.
The couple in the story are victims. The state does not care about crime or its victims which is why so many people are disappointed with the police and why this article exists.
This is just another branch of the Nanny State: the criminal justice is being run exclusively for the government and its supporters.
There is no “victim” until a crime has been established. That is the main lesson from Higgins /Lehrmann. I forget much of my legal history, but we eventually arrived at our current legal system because the victim v perpetrator system, if it were ever as simple as that, was unsatisfactory.
Whatever the truth of the matter, the state, ie society or the community, is the only authority with the resources and the objectivity to investigate and determine whether a crime has been committed, and to provide justice.
How do you propose that that your “victims” pursue justice? They’d better have deep pockets, and they cannot punish their perpetrator by committing another crime.
Since truth is objective there most certainly is a victim even without a trial or conviction – otherwise we could stop people being victims by having no trials!
I agree with you about the Higgins fiasco. But just because it was a fiasco does not mean victims are not real. Women do get raped. Men do get assaulted and murdered. Terrorists do blow people up, especially in Israel. There is a big difference between saying there are no victims without a trial and saying that we should not have media witch hunts.
–
As for the practical questions – this is very interesting precisely because most prosecutions in the past were private. This was something people could do and could hire lawyers and investigators for. Evidently the cost was not impossible. Prisons have always been state owned. I don’t want to abolish the police but people should be entitled to access the criminal justice system if the police refuse to prosecute. Otherwise the system exists for the government and not the people.
I’d like to see an authoritative source for your argument that prosecutions were private in the (however so distant?) past. I certainly have no recollection of any such thing from my study of British legal history. But my memory is getting dimmer by the day.
I accept your argument about victims, except to the extent that the number of dubious claims of rape is so significant that feminist arguments that all women should be believed are fatuous. Google Bettina Arndt on the subject.
The Cardinal Pell case is another example of a dreadful miscarriage of justice because complainants were treated by the media and police as victims despite clear evidence that no crime had been committed. Once again the media exploited the “victim” farce.
I can only repeat myself to say that the State is the only legal and practical authority to provide justice. The Victorian government under Dodgy Dan was utterly corrupt, and there are plenty of other examples, but generally it works fine. The alternative leads to people taking the law into their own hands and inevitably leads to anarchy.
For Private Prosecutors, see Chapter 2 Section 7 of “The Changing Role of the Modern Prosecutor: has the notion of the “Minister of Justice” Outlived its Usefulness?” page 77.
This thesis identifies many of the same issues as you –
BUT
Given that Dan Andrews was corrupt, why should you need his permission to access the criminal justice system? This should be allowed.
Thanks, I’ll chase it up.
You should be able to find it online. I forgot to add that private prosecutions could help in the USA when anti-Trump rioters aren’t prosecuted by corrupt attorneys.
This might be a case for which traditional Aboriginal practices provide a practical answer. As any indigenous knowledge holder would attest, retributive spearing of the offender was the way to go, sometimes courtesy of many of the victim’s relatives. Pity could be expressed by offering the penitent offender a protective, hand-held shield.
The shortcoming of the Aboriginal system is the process of determining who has done what to whom. Was it not the case that whatever person or persons had the power, would be the ones who meted out the “justice”? I saw a thing on the TV once, showing the supposed superiority of the Aboriginal law over “White Man’s law”. In the scene, the person who had wronged another party would apologise to the injured party; but, who determines which person or persons is the perpetrator, and which person or persons are the victims? The endless cycle of violence in Aboriginal communities is the reality, unless one group has complete power over another.