Victims’ rights: do they work?
Crime victims cannot always fully exercise their rights, said Maarten Kunst, Professor of Criminology, in his inaugural lecture on 26 October. His mission is to find out why exactly this is and to see whether change can be brought about.
Kunst explained how until the late 20th century the prevailing view was that victims share some responsibility for the crime. The more culpable the victim, the lighter the perpetrator’s sentence. In 1948, German criminologist Hans von Hentig even drew a comparison with hunters and their prey in the animal kingdom. Each plays a specific, reciprocal and inescapable role and the same was true, said Von Hentig, for the perpetrators and victims of crime.
As late as 1971, American criminologist Menachem Amir published a study of 627 rape cases in Philadelphia and concluded that in 19% of these cases some form of culpability for the rape lay with the woman herself. This elicited strong opposition, particularly from feminist circles, but the idea of provocation held sway for a long time and victims were consequently not accorded any rights. Kunst: ‘Victimology, my specific field of interest, therefore has some wrongs to right with victims.’
More rights in recent decades
Having had to, as Kunst puts it, ‘watch from the sidelines’ for so long, crime victims have been granted more rights in recent decades, in particular for serious crimes with a penalty of eight years or more. The most apparent change is the right to make a victim impact statement during the trial about the defendant’s guilt and the punishment they should receive. The victim is also allowed to view the case files and request compensation from the defendant via the criminal proceedings. The Violent Offences Compensation Fund was set up in the Netherlands to provide financial compensation to victims. There are a number of problems relating to victims’ rights, Kunst explained in his lecture, that he wants to research further.
There are legal limitations to victims’ rights: you may only make a victim impact statement if a serious crime has been committed. However, some victims of more minor crimes would also like to be accorded this right. A 60-year-old voluntary investigating officer, for example, who, having told three fishermen they were not allowed to light a fire on a jetty, was thrown into the water and, once he had climbed back onto dry land, hit with a fishing chair. The maximum penalty for this was three years, so the officer did not have the right to make a victim impact statement. This is only possible if the maximum penalty is eight years or more. The officer felt this was unjust. ‘Something similar also applies to the right to compensation from the Violent Offences Compensation Fund for the victims of serious crimes,’ says Kunst. Here too restrictions apply to who can claim compensation from the fund. Kunst wants to research whether the legislator and fund’s assumptions about the effects of different types of crime are correct and the limitations are justified.
Inability to exercise rights
Another problem that many victims face is the inability to exercise their rights. Kunst: ‘Judges can declare an application for compensation to be inadmissible because considering this would, in their view, put “disproportionate pressure on the criminal trial”. The victim then has to turn to the civil court for compensation.’
Kunst quotes Norwegian researcher Nils Christie, who coined the terms ‘ideal’ and ‘non-ideal’ victim. Christie gives the example of two women who are both assaulted. One, a weak, elderly woman, is mugged on her way home. The other is assaulted by her husband, but stays with him even though she could be financially independent. ‘According to Christie,’ said Kunst, ‘the elderly woman is much more likely to be recognised as a victim. This can mean that the second woman’s case is dropped and she stands no chance of compensation. I want to look more precisely at any inequality that arises from this idea of ideal and non-ideal victims.’
Hindrances to exercising rights
‘We saw an extreme example of hindrances to exercising one’s rights,’ Kunst said, ‘in the trial of Gökmen Tanis, the man who shot and killed four tram passengers and seriously injured a further six. He kept interrupting the victims’ impact statements, until the judge had him removed from court. But victims often direct their statement at the defendant.’ This is one reason why the Minister for Legal Protection wants to make it compulsory for defendants to be in court during proceedings. Kunst can see echoes of a consumer-based approach here: victims who should be able to leave the court as satisfied customers. Kunst: ‘Satisfaction, however, is closely linked to a consumer’s expectations of a product, so is it true that increased rights, such as making it mandatory for the defendant to attend the proceedings, will increase victim satisfaction? That is another thing I want to research.’
More rights for victims?
Kunst also noted that there is an enduring feeling in the Netherlands, also among politicians, that we do not treat victims well. ‘That’s why people are looking into whether victims should be accorded more rights. But I think it is more important to begin by looking at their current rights, ensuring these can be exercised and examining whether they do what they’re supposed to do.’
Text: Corine Hendriks
Photo of Lady Justice and gavel : Tingey Injury Law Firm. Photo of gun: Max Kleinen. Photo of barbed-wire fence: Markus Spiske. Source: Unsplash