The Rule of Law model and conceptions of objectivity

11In the United States, the expanding role of victims in criminal prosecution initially led some jurists to reiterate the requirements of the Rule of Law model, which demands the strict application – that is to say, involving the least amount of interpretation possible – of the law in the cases that fall under its purview. In this model, the formal rationality that must prevail is incompatible with any emotion. This is the case argued by Toni Massaro, a law professor primarily known for her work on emotions in court and the position of rape victims in trials. [13] Rationality is thus seen as an indispensable measure which fights arbitrariness and guarantees that all individuals will be judged in the same way by the law. References to the Rule of Law model have thus been at the root of many opinions expressed by Supreme Court justices against Victim Impact Statements [14] and in favour of the recommendations made to the jury to exclude “sentiment, sympathy or passion” from their decision, whether these feelings were for the plaintiff or the defendant. [15]

12In contrast to the requirements of this model, some jurists have proposed re-evaluating the role of emotions, empathy, and narrative in the criminal justice system. [16] Such experts have developed another, “broader” conception of objectivity. According to these experts, the Rule of Law model is inherently unrealistic. The work of a judge is necessarily, whether s/he likes it or not, influenced by emotions. It is thus better to integrate the emotional dimension into the organisation of criminal trials. Martha Nussbaum, a philosopher and a professor of law and ethics, outlines the work of a judge by comparing it, much as in Adam Smith’s theory of an impartial spectator, to the work of the reader of a novel. In this setup, a judge may experience, thanks to the power of his or her imagination, the emotions of the different parties in the trial and the full complexity of their stories without, however, being personally affected. His or her ruling can therefore be “both emotionally sympathetic and, in the most appropriate sense of the word, neutral”. [17]

13Among the jurists who have defended this broader definition of objectivity, all have not supported Victim Impact Statements, however. Despite recognising emotions as valid and inescapable elements in a criminal trial, some jurists have worried about the problems that could arise if the expression of these emotions was further encouraged. They expressed reticence with regard to Victim Impact Statements and mentioned the risk of arbitrariness linked to emotional excess. This is the position of Susan Bandes, a law professor, in an oft-debated article. [18] Without taking a stand against the new practice, she is careful to outline both the advantages and risks that it offers, depending on the different configurations present in the courtroom.

14Other authors have, on the contrary, argued that Victim Impact Statements make a new form of objectivity possible, one whose contribution is undeniable because it allows judges to formulate a more “individualised” ruling, by expanding the range of realities that they take into account. [19] In different articles, emphasis has been placed on the judge’s growth in “experience” and “understanding”; on the reduction of “ignorance” concerning victims; as well as on the establishment of “shared social meanings”. [20] Decreasing the social distance between judges and litigants is at the heart of these debates. This is why Jennifer Culbert, a political science professor who is otherwise rather critical of Victim Impact Statements, admits that the necessity of knowing the victims can be a valid issue, in that the latter rarely belong to the same social sphere as judges or juries. [21] In this light, the fight for minority rights plays an important role in the American debate. [22]

15Finally, some jurists who could be described as “comprehension radicals” proved to be somewhat sceptical with regard to the ability of criminal proceedings to bring together – even with the use of Victim Impact Statements – the necessary conditions for the expression of authentic emotions, spontaneous narratives and true empathy. This is the position held by Martha Minow, a Harvard law professor, who has criticised the rather poor imagery of victims, to which Victim Impact Statements inevitably seem to lead. [23] According to these authors, the criminal process cannot evolve in this direction. It would be preferable to establish other mechanisms to bring about a better understanding between the various parties involved.

The nature and legitimacy of pressures on the justice system

16In France, the effects of the increased presence of individual victims and victims’ associations on the objectivity of criminal prosecution have been examined from the angle of the nature and legitimacy of the pressures exerted on the justice system. [24] This debate is somewhat reminiscent of the controversies that dogged scientific institutions when they began to open up to new forms of expertise, especially in the 1980s and 1990s. [25] Jurists became polarised, some emphasising the role of checks and balances in the proper functioning of the justice system, and some expressing concern about the threat that these counter-balancing measures could pose to the system’s independence. As in the United States, but on a more collective level, a broader notion of objectivity was pitted against a limited or “hard-line” vision.

17On the one hand, legal experts have highlighted the merit of granting actors outside of the justice system the ability to sue state representatives in situations deemed to be abnormal. This argument emerged very early on in the debate. In an article published in 1988 by Olivier Kuhnmunch, a trial judge in the Court of Cassation, it was argued that victims’ associations could play a role in mitigating the difficulties experienced by the public prosecutor’s office due to the “complexification” of criminal law. From this perspective, it would be better to see “lawsuits explode rather than be stifled”. [26] In fact, if the public prosecutor’s office was alone on the side of “individual” victims in such a context, it “could only very poorly fulfil its duties”, Kuhnmunch argues. This position was revived in connection with several emblematic trials in the 1990s and 2000s: the Papon trial, the contaminated blood affair, the terrorist attacks, and the serial murderer Émile Louis. In all of these cases, the mobilisation of victims was seen to have achieved more than the criminal justice system. This perspective has been echoed by Antoine Garapon, a former juvenile court judge, who teaches at the École nationale de la magistrature (National School for Magistrates) and is the author of a number of works on the justice system. [27] This is likewise the view of Pierrette Poncela, a professor of criminal law who, having analysed the consequences of the contaminated blood affair, believes that the errors committed would never have reached the public eye without the work of victims’ advocates in the criminal system. [28] Despite being more favourable to strict controls over victim participation in the justice system (to counter the risk of the process’s “privatisation”), Xavier Pin, a law professor, likewise admits that on this specific point, the power wielded by victims’ associations can be useful. [29]

18However, despite being fairly common among French jurists, this belief is not shared by all. Some legal experts have strongly contested the pressure exerted on judges by victims’ associations, supported by public opinion and the media, both from inside and outside the judicial sphere. Daniel Soulez-Larivière, a lawyer and member of the Paris Bar, is a good example. As the author of many works on the justice system and the legal profession, and as a member of many judicial review boards, he has acted as a defence attorney in several high-profile cases involving numerous plaintiffs, in particular in the industrial and environmental sectors (the Erika tanker catastrophe, the explosion of the AZF factory). In a book co-authored with psychoanalyst Caroline Eliacheff, he describes in polemical terms the ambiance of certain hearings characterised by the usually presence of victims acting as civil parties. The authors speak of “the rot having settled in”, of judges having become “the servants of victims”, and of “political trials of a new kind”. [30]

Equity in the American system

20In the United States, jurists have addressed equity in the binary framework of prosecution and defence that characterises the American criminal justice system. Some experts believe that the expanded presence of victims in the system is part and parcel of the fair balance between resources awarded to plaintiffs and defendants. From their perspective, there has hitherto been an imbalance, be it with regard to the rights each party was granted, their capacity to act, or the attention they received. Justice Scalia thus ruled in favour of Victim Impact Statements in the Supreme Court, arguing that although defendants have long had the ability to be heard and to present the circumstances behind their actions, victims had until now lacked any capacity to express themselves. [31] The fact that defendants were “active”, while victims were forced to remain “passive” was deemed problematic. This is one of the arguments touted by the victims’ rights movement in the United States that has (unsuccessfully) pushed, since the end of the 1990s, for a Constitutional amendment. The proposed amendment was primarily designed to restore balance to a situation where only those accused of a crime were seen to possess Constitutional rights. [32] Against this notion of a new balance of resources between victims and the accused, other jurists upheld the necessary asymmetry of the roles in the criminal justice system. In their view, victims cannot be treated in the same fashion as defendants and, to this end, be granted the right to testify. [33] In fact, the Constitutional rights of defendants are first and foremost designed to shield them from possible abuses in the state’s exercise of its official powers. As victims are not faced with this threat, it is therefore unfounded for them to demand “equivalent” Constitutional protections.

The many forms of equity in France

21In France, the fact that victims and victims’ associations are able to be present in the criminal justice process as civil parties alters and complicates the terms of the debate. One approach to the problem consists in examining equity between pairs of actors in the criminal justice process. When jurists look at equity between the public prosecution and the defendant, they are usually concerned about the expanding role of victims. In 2004, Thierry Lévy, a wellknown Parisian defence lawyer, published a highly polemical criticism of the rise of victims in the criminal justice process, and more broadly of the emergence of “victim rhetoric” and a “cult of the victim” throughout society. [34] The defence of equity is central to his work. According to Lévy, the prosecution has long held an abnormally dominant position in France and the new prerogatives granted to victims have only reinforced this situation. The balance between prosecution and defence, which used to exist in the “judicial duel” (where two arguments competed “with the same tools […] under a judge’s impartial gaze” [35]) was destroyed by the emergence of the inquisitorial model under the absolute monarchy. Under the guise of distancing victims’ “thirst for vengeance” from the process, an imbalance was established between the prosecution and the defence, during the reign of the “authoritarian state”. This inequality was in turn bolstered by the rise of victims in the criminal justice system. Lévy speaks of the latter as “new masters”, who are “even more blind, irrational and threatening’ than their predecessors. [36]

22Other jurists, while believing that on the contrary, a balance between the prosecution and the defence had been established before the rise of victims, agree that this phenomenon has introduced a new risk of inequity, since victims are essentially a weapon for the prosecution. This position is expressed by Hervé Henrion, author of a legal dissertation on the presumption of innocence, when he states that victims’ associations, as “civil parties”, act as support for the “forces for the plaintiff”. [37] Despite his interest in strengthening the role of victims, Henrion is not indifferent to the aforementioned risk. In a similar vein, Denis Salas, a magistrate teaching at the École nationale de la Magistrature and the author of numerous essays on the law, argues that civil parties constitute a “second prosecution team”, and that the new powers they have been granted can seem excessive, especially with regard to sentencing. [38]

23When it is a matter of examining the balance between the prosecution and victims, debate surrounding doctrine has instead favoured re-evaluating the presence of victims. The state has notably been criticised for having deprived victims of the right to defend themselves and to press charges under the Ancien Régime. This historical view of the prosecution’s role has in particular been defended by one of the main advocates for victimology in France, law professor Robert Cario. [39] He argues that a first step towards recognising the rights of victims was made during the Revolution, when the protection of “individual rights” was enshrined. From this perspective, the increased presence of victims in the criminal justice system is a logical continuation of this trend.

24Jurists who analyse equity in the context of the relationship between victims and the accused likewise tend to have a positive view of the recent developments in criminal law which grant victims the possibility of “taking the stand in the context of the interaction that pits them against the presumed innocent”. [40] Some have demanded far-reaching changes in favour of victims in this face-to-face with the accused. This is the perspective adopted by Xavier Bébin who, after obtaining a Masters from Sciences Po on theories of punishment and the defence of a “utilitarian” approach focused on crime prevention, [41] went on to study criminology at the Conservatoire national des arts et métiers (CNAM). Bébin is currently Secretary-General of the Institut pour la Justice, an agency created in 2007 as “an association of citizens, victims and experts mobilised to promote justice that is more protective of citizens and more equitable with regard to victims’. The agency frequently communicates with elected officials and government representatives, takes part in public debates to defend victims, and mobilises legal experts for publications and conferences. In a publication that has all the trappings of a manifesto, Bébin systematically lists, in the form of a long appeal for victims, the sequences in the criminal justice process where the latter are not, even today, on a level playing field with the accused. [42]

25In addition to these different ways of looking at equity between pairs of actors, some jurists have, although more rarely, attempted to look at all three actors (the prosecution, the defence, and the victims) symmetrically. In such a scenario, the trial is no longer seen as the setting for a confrontation between a pair of antagonistic parties, but rather as an arena that favours the deployment of a “communicational” dynamic, in a Habermasian sense. This approach leads jurists to support expanded prerogatives for victims, but for different reasons. The different actors in a criminal trial are seen as all participating in a collective attempt to elaborate the legal truth, each party contributing its own perspective to the effort. Hervé Henrion thus refers to a change in the model of the criminal trial, to which he believes the 15 June 2000 Law on the Presumption of Innocence and Victims’ Rights contributed. [43]

The relationship between the suffering of victims and the calculation of punishment

26In the debate surrounding the role of victims in the criminal justice system, defence lawyers often refer to another key expectation: the need to ascertain the extent and nature of the suffering of victims that will be taken into account, both when establishing the pertinent facts of the case and when determining a sentence. The matter of establishing how much, and what kind of suffering victims can legitimately manifest is still a polarising issue. Both in the United States and in France, jurists have defended the active distancing of victims’ pain and suffering. Given the increased presence of victims, they point to the risk that criminal sanctions could be determined depending on the intensity of the suffering expressed during a hearing. Justice Scalia’s position in favour of Victim Impact Statements was thus criticised as introducing the idea that “punishment should be keyed not to the defendant’s moral guilt, but to the total harm caused by his actions, whether direct or tangential, intended or unintended, foreseeable or unforeseeable”. [44] The criminal would thus be burdened with society’s “abstract need” to compensate for the criminal harm done, beyond the simple evaluation of the act itself. [45] In France, Caroline Eliacheff and Daniel Soulez-Larivière likewise observed that victims can themselves be blinded by this confusion and by the desire to see “the criminal sanction measured against the pain suffered”. Given the fundamentally incalculable nature of pain and suffering, punishment thus risks never being deemed severe enough. [46] Some authors have linked this excessive consideration for the suffering of victims to a deep-seated societal trait: the alleged tendency to “sanctify” suffering. [47]

27Other legal experts have, on the contrary, argued that the sentence for an offence commonly incorporates considerations about the degree of pain suffered by the victims. In his defence of Victim Impact Statements, Paul Gewirtz thus reminds us that “the acts done with the same state of mind may have different legal consequences depending on the actual harm caused”. [48] This notion does not, however, preclude the existence of differences between jurists with regard to the best way of organising victim testimony. Some have in fact called for victim testimony to be limited to what is strictly necessary to determine the legal qualification of responsibility. Jurists on this side of the argument worry that calculating sentences based on suffering will cloud a judge’s reasoning, at times without he or she realising it, regardless of whether this bias is ultimately to the detriment of the accused or in his or her favour. Lynne Henderson, a law professor who is somewhat reticent with regard to Victim Impact Statements, also points out that, abnormally, judges show more clemency towards rapists when their victim(s) are able to control their display of suffering when testifying. [49] Other experts have seemed less concerned. Supreme Court Justice Souter, in support of Victim Impact Statements, maintains that in cases of homicide, for example, the accused must be confronted with all the “foreseeable” consequences of the actions of which he or she stands accused. The relatives of the deceased are thus invited to testify regarding the pain they suffered after the death of their loved one. [50] Experts like Justice Souter consequently encourage opening up the process to anything that could possibly (but not necessarily) end up being pertinent to the sentence. The 1982 Federal Victim and Witness Protection Act provides for a “pre-sentence report” that includes all the elements related to the damage (financial, physical, psychological, etc.) suffered; these elements are considered as “useful tools in determining equitable penalties during the sentencing of a convicted offender”. [51]

Measuring the suffering inflicted on defendants

28Appropriately regulating the suffering inflicted on defendants is likewise a central concern in debates on criminal law. Although all jurists seek to identify clearly the terms of legitimate violence, their often-conflicting views are situated along a spectrum which ranges from the “toughest” positions to the “most measured” ones. Here we explicitly connect the doctrinal debate concerning victims with this conflict, at all stages of the criminal justice process: before, during and after the hearing.

29Let us first look at those positions that seek above all to limit the violence endured by the accused. On this end of the spectrum, jurists generally represent a victim figure who is likely to unleash excessive emotions and accusations against the defendant, and who thus needs to be circumscribed. Some of these experts also worry about the risk of stigma that ordinary citizens may face, even before the hearing takes place, once victims are granted unwarranted powers. [52] Hearings are also evaluated from this angle. The emotional expression of victims within a hearing is seen no longer merely from the angle of its effect on the judge and his or her objectivity, but also from the angle of the violence that this expression inflicts upon defendants. In the United States, the same jurists who wish to incorporate compassion into interactions between judges and victims nevertheless warn about the dangers of other emotions – such as hatred and anger – that Victim Impact Statements may encourage. In France, legal professionals have described situations where the dignity of the accused was violated during criminal hearings characterised by the overwhelming presence of civil parties. [53]

30With regard to calculating sentences, some jurists have similarly expressed concern about a general trend towards reinforcing the “repressive” function of the criminal justice system, to which the increased presence of victims is seen as contributing. In the United States, “liberal” jurists have expressed alarm at the rise of the Crime Control Model promoted by conservatives during the 1980s, which holds increased repression as a key to reducing crime. They have pointed to the risks of collusion and manipulation between advocates for this repressive policy and victims’ rights movements. This is the position adopted in the middle of the 1980s by Robert Elias, a professor of political science specialised in public law, in a text often cited by American experts who are worried about the conservative appropriation of victims’ rights movements. [54] Robert Elias further developed his argument in a subsequent work published in 1993. [55] Drawing on more than a decade of hindsight, Elias demonstrates what he believes to be the total failure of this repressive policy in the fight against crime.

31On the other hand, some jurists wish to embrace the vindicatory dimension of victim participation. In France, some experts thus defend the value of recognising the “public action” of victims, independently of their civil action. This is the position held by Philippe Bonfils, a lawyer and professor of law. [56] Bonfils defends the recognition of what he calls the “criminal victim”, whom he clearly differentiates from the “civil victim” who is seeking compensation (including in a criminal court). Another perspective has recently emerged, which is resolutely in favour of the increased presence of victims, fighting against the neglect that the latter are seen to have suffered due to the dominance of the “anti-repressive” legal stance. This is the fight against “criminal dogmatism” to which Xavier Bébin has committed himself. [57]

Limiting or expanding the purpose of criminal prosecution

33One line of investigation has focused on the proliferation of objectives attributed to criminal prosecution, independent even of the content of such objectives. Two different perspectives can be highlighted here. Mireille Delmas-Marty’s work is a good example of the first perspective. A law professor, Delmas-Marty has been directly involved in changes to criminal law: in particular, she was a member of the Penal Code Reform Commission (1981-86) established by Robert Badinter, and, as president of the sub-committee on “Criminal Justice and Human Rights”, drafted a report on the reform of criminal procedure, in which she deals with the status of victims several times. [59] Delmas-Marty pushes for clarity in the distinction between the different branches of the law and their respective functions. [60] According to her, none of these different aspects of the law should “become blurred” by the excessive proliferation of the functions associated with them. Any trend moving towards “a lack of precision in legal categories’ is seen as “a threat of disorder”. If the rise in victim participation is not properly controlled, it could contribute to the “patchwork” nature with which criminal law is currently threatened. [61]

34Other jurists, however, have called for a wider conception of the criminal justice system, situated at the crossroads of many different purposes, even if tensions might inherently make this configuration difficult. For Frédéric Gros, a professor of political philosophy, “a monstrous punishment is a punishment restricted to a single purpose”. [62] According to Gros, the truth of a criminal sanction lies in “the movement from one purpose [of the criminal justice system] to another”. It is thus necessary to think about the plurality of objectives linked to the criminal justice system. Antoine Garapon views the development of new objectives as a means to exit the “crisis of punitive symbolism” that our societies are currently experiencing. This crisis is seen as a result of serious doubts regarding the rehabilitative virtue of prison (which is to give criminals the means to reintegrate into society) and its safety (reducing crime). [63]

Victim compensation

35Another aspect of the debate on how open the criminal justice system should be to new objectives, linked to the increased presence of victims in the courtroom, is the question of how compatible each of these new objectives may be with the traditional aims of criminal trials. In the United States, victim compensation plays an important role in debates on measures that seek to make “restitution” to the victim an additional penalty; [64] or in the French case, in debates on the very presence of civil parties in a criminal trial. As early as 1985, law professor Lynne Henderson expressed scepticism regarding the expansion of the functions fulfilled by the criminal justice system. Referring to classic authors such as Jeremy Bentham and Raffaele Garofalo, she emphasises that “compensation to victims is not a good end in and of itself”. [65] The criminal justice system must be recentred on its four traditional objectives: retribution for the crime, prevention of the crime, the rehabilitation of defendants, and their neutralisation. In France, while Philippe Bonfils proposes a significant re-evaluation of criminal law by fully recognising the capacity of victims to “support or trigger public action”, he nevertheless suggests limiting civil action to civil courts. [66] He criticises the confusion created by bringing public and civil suits into criminal proceedings. Other experts have expressed concern about the system if punishment is excessively endowed with a function of symbolic reparation for the victims. This is the position held by law professor Maria Luisa Cesoni, and anthropologist and psychiatrist Richard Rechtman. [67] Without denying the importance of measures that seek, from the victim’s point of view, to repair the crime committed, these two authors would prefer for this operation to take place outside of the criminal justice system rather than within it. Working from the notion of psychological reparation, they follow a unique line of reasoning but ultimately agree with critics of the “privatisation of the criminal justice system”. [68] Yet other jurists believe that the contemporary crisis of criminal law is linked to the growing trend of victims expecting compensation, and thus launching criminal proceedings that in fact create a completely different situation: that is to say, the accusation of an individual and his or her possible criminal sanction. The philosopher Paul Ricœur emphasises this issue. [69] According to him, we are witnessing “the social resurgence of accusation”, linked to victims’ expectations regarding compensation. Victims thus come to see the responsible parties (in terms of compensation) as the guilty parties (in terms of criminal sanctions). In order to avoid this problematic trend, Ricœur suggests that it would be better to dissociate indemnification practices – viewed as a technique to manage the risk dimension of human interactions – from the imputation of responsibility. [70]

The therapeutic objective

36The question of the psychological and psychotherapeutic dimensions associated with criminal trials is now an important element of jurists’ normative work on the presence of victims in the justice system. Sometimes working in collaboration with psychological specialists, jurists view the “effects” of trials on the psychological well-being of victims in a variety of different ways. Some experts have been very sceptical with regard to the effective contribution of criminal justice to the “recovery process”. In their view, as a result of the very nature of its organisation, including when it incorporates “free style narratives”, the trial system should not be mistaken for a psychotherapeutic mechanism. Lynne Henderson draws on her personal experience as a rape victim, as well as her competencies as a law professor, when she affirms that, in this sense, “despite the success of the criminal trial, I learned very early that the recovery takes place independently of the criminal process”. [71] Victim Impact Statements could even present non-negligible risks to the dignity of victims. [72] With regard to the contribution of the trial to the grieving process, different arguments are invoked to describe this as a “red herring”: the duration of the trial is generally too long, it “abusively” brings the deceased back to life, the punishment meted out can only be seen as “disproportionate” with the extent of suffering. [73] Most frequently, such considerations feed into a critique of the expanded role of victims in the criminal process, even if this critique is made in the interest of these same victims.

37Other experts have expressed more confidence in the therapeutic benefits of criminal trials. Raymond Verdier, a specialist in legal anthropology, consequently emphasises the value of laws that, by granting victims “their true place in the criminal process”, allows them to be “recognised as such in order to be able to grieve”. [74] Other experts, more warily, call for a detailed assessment of the effects of a trial depending on the nature of the crime, the characteristics of the victim(s), and the practices of the magistrates and lawyers involved. Leonore Walker, a lawyer specialised in violence against women, thus observes that “it is dangerous to make any unilateral conclusions about how testimony impacts on women violence victims. Clinical data from the field makes it clear that, for some women, testifying is a horrendous experience and sets back their healing but for others it is wonderful and saves years of psychotherapy”. [75] A new field of research has even emerged in the United States to try to assess these phenomena objectively, focusing on the notion of “therapeutic jurisprudence”. David Wexler, a law professor, is one of its leading proponents. [76] Pamela Casey, a psychologist, David Rottman, a sociologist, and Wexler have all been consultants to the National Center for State Courts, a non-profit organisation created by Supreme Court Justice Warren Burger in 1971 in order to support American courts with programmes, studies, and counsel. [77]

38Finally, independently of the opinion that one may have regarding the effects of the trial system, some jurists have challenged the very legitimacy of this therapeutic outcome. Although now coming from a different angle, here we find once again criticisms of the confusion between “private” and “public” interests. In this perspective, the confusion is attributed to the problematic evolution of how our societies deal with loss and misfortune. With the decline of religious practices, it is suggested that public trials are now seen as a substitute for private funeral rites. [78] Already sceptical regarding the therapeutic benefits of the trial process, authors such as C. Eliacheff and D. Soulez-Larivière have ironically suggested that perhaps some victims use the trial to try to “speak to the dead”. Referring to certain trials, where “hundreds of victims who had lost their mother, father, brother, sister, husband, wife or partner […] unabashedly displayed their private affairs in public”, these authors paint the picture of “a perverted judicial stage”. [79]

Victim empowerment

39In both France and the United States, jurists have also examined the increased presence of victims in the criminal justice system from the perspective of empowerment. This objective is central to the position developed by Robert Cario, an advocate for victimology in France: “Regardless of the expression used, the strategy implemented is empowerment: the victim, at the centre of the process, must remain as much as possible master of his or her own affairs.” [80] Studies have been conducted with victims via questionnaires, in order objectively to describe the effects of their participation in the process. The work done by Edna Erez, a sociology professor in the Department of Criminology, Crime and Justice at the University of Illinois (Chicago), illustrates this approach. Several of her articles published between 1990 and 2000 are based on studies conducted in the United States and a number of other countries (Poland and Australia in particular); their conclusions tend to be favourable to legal processes and systems that allow for greater victim participation. [81]

40From a more critical perspective, some jurists have examined the effects of criminal trials in terms of victims’ “ability to take responsibility” [“responsabilisation”] and “ability to feel in control” [“autonomisation”] when faced with misfortune. Jurists who have adopted this approach believe that the increased presence of victims in the justice system is illusory in relation to the requirements for true empowerment. Although they confirm the importance, for individuals, of wanting to be “active” when confronted with the misfortune that befalls them, such experts are extremely wary of the effects of these individuals’ participation as victims in the criminal justice system. This kind of involvement is seen as focusing on the past, rather than investing in the future. Due to the trial’s inherent logic, it would inevitably drive these individuals to shift the burden of responsibility onto others, to minimise their own ability to act at the time of the offence, and to neglect their future responsibilities. Against the harmful effects of over-investing in penal logic, Lynne Henderson and Martha Minow, both American law professors, talk instead of the positive impact of forgiveness. Referencing Hannah Arendt in particular, both emphasise that victims, in distancing themselves from the crime by forgiving their offenders, are no longer alienated in a “reactive” mode and regain their ability to act. [82]

The reconstructive purpose

41Finally, debate surrounding the role of victims in the criminal justice system has been marked by the significant efforts of some jurists to formulate what the “reconstructive” or “restorative” purpose of the trial process might look like. In the United States, the rather diverse movement that has emerged around the notion of restorative justice is more focused on alternatives to the criminal justice process than on internal transformations to the system. [83] This is primarily linked to the limited role played by victims in the American legal system. Since it is characterised by the greater presence of victims, the French criminal justice system grants jurists greater latitude to conceive of a restorative objective within the system itself. [84] Antoine Garapon explains this objective in the context of “relational” law. Through the face-to-face confrontation between the victim and the defendant, the trial must simultaneously affect both parties. The victim must find in the trial the possibility of moving beyond “the feeling of disdain” experienced by anyone who has been the victim of a crime. [85] The criminal, on the other hand, must find a kind of rehabilitation in the trial. While this reconstructive aim overlaps with a number of other objectives recently added to the trial process (empowerment and therapeutic jurisprudence), it is unique in that it introduces the need for symmetry – for both the victim and the accused to be influenced by the process. According to Garapon, “the abuser and the abused” must regain their “ethical ability” to awaken “their particular capacities, which have been dulled by institutional paternalism”. [86]

42The normative work of jurists on restorative justice sometimes involves looking far back in history and opposing the “modern” view of the justice system, which is careful to distance itself from vengeance, with the more positive approach of vindicatory systems. Consequently, according to Raymond Verdier, the “state’s confiscation of vengeance” as undertaken by the justice system has a number of different effects: “1. It destroys the relation between the offender and the victim. 2. It places criminal justice and civil justice in opposition to each other. 3. It makes criminal justice an exclusively punitive form of justice, while ignoring the mechanisms of compensation, conciliation and reconciliation employed by vindicatory justice.” [87] The emphasis placed on the restorative aim of the criminal justice system is thus argued to coincide with a vision of the law in which, by re-examining its own history, it seeks to find new legitimacy – through change – for certain modes of victim participation that the criminal justice system had hitherto fought against.

The political purpose

43Beyond the normative work of jurists on these possible objectives of the criminal justice process, the increased presence of victims has also prompted lively debate concerning the political aims attributed to criminal justice, and more specifically concerning its ability to sustain a “true” form of political action in society, resisting perverted or diminished versions of politics. Although not a new step, the relationship between the criminal justice process and political action has thus been re-examined in light of the growing power granted to associations as civil parties, especially in France. This aspect of the legal discussion is less present in the United States, where the possibility for collective action by victims has been established outside of the criminal justice system, through class action lawsuits. [88] It is thus essentially in France that views are expressed on how the criminal justice process can contribute to political action.

44Two approaches stand out. On one side, some jurists believe that the criminal justice process can play a role in reviving or sustaining political action by serving as a weapon for collective mobilisation. These experts thus refer to the American “cause lawyering” movement, wherein social actors wield the law as an instrument to enforce a certain number of collective imperatives in the public sphere. [89] Other experts have on the contrary pointed out the potential dangers to political action that could be caused by the increased participation of victims in criminal justice. Two concepts occupy a strategic position here: the notion of a “democracy of opinion”, first of all; [90] and the notion of “penal populism”, which forms the keystone of an insightful work by Denis Salas. [91] The problem that Salas observes is not the place occupied by victims in the criminal justice process as such, but rather how this role is exploited. Victim testimony, he argues, is used in convergent ways by judicial, political and media powers to “radicalise the right to punish”; a phenomenon that is characteristic of the transformations that occurred during the 2000s, according to Salas. [92]

45The issue of the emotions provoked by the suffering of victims occupies a central place here. While American jurists approach this issue primarily from the angle of maintaining objective judgment during face-to-face interactions between judges and victims (see above), the French perspective is interested in a reflection on public space and the effects of the “spectacle of suffering” from a distance. [93] Consequently, although the jurists who have adopted this perspective remind us of the central role of compassion in democracy (often in reference to de Tocqueville), they emphasise its problematic nature when it is instrumentalised in the public space. The notion of a “politics of pity”, derived from the work of Hannah Arendt, thus occupies a key place in the normative work of jurists. In this approach, the “compassionate occasions” engendered by the succession of isolated occurrences (current events, catastrophes, and crimes) thus constitute the cause for political action today. [94] This transformation is often associated with the “ebbing of ideologies”. [95] Consequently, the juxtaposition of immediate moral reactions to “scandalous” events – often promoted by both the media and judicial powers – would come to be substituted for the contentious encounter between collective narratives that are both structuring and contradictory, a trait of true political action.