Supporting and Protecting Victims: Making It Happen

National Victims Conference
London, England
April 28, 2004

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Keynote Speaker
Susan Herman, Executive Director
National Center for Victims of Crime

I am deeply honored to be here with you at this important conference.  On the other side of the Atlantic, we look at the progress that theUnited Kingdom has made in providing support and compensation for crime victims with great admiration and some envy.  We applaud your efforts to develop national policies that benefit crime victims and sometimes wish we had the same ability to launch initiatives that reach throughout the nation.  So, I am humbled by the invitation to bring an American perspective to the deliberations of this conference.

I should state at the outset that I do not pretend to have detailed knowledge of the workings of your system of justice, much less the reform proposals currently under consideration to benefit crime victims.  But I do understand that you are considering some ambitious new undertakings to improve witness participation.  In that spirit, I would like to offer my reflections on the evolution of victims' rights in America with the hope that it will add a different perspective on your work and the challenges you face.

Over the past thirty years, victim advocates in America have helped create a remarkable body of policies, statutes, and state constitutional amendments that provide victims rights within the criminal justice system.  There are two distinct categories of rights - the right to be informed and the right to participate.

During this period, the American criminal justice system began to treat victims as more than just pieces of evidence in a trial.  Victims were given access to information about the criminal justice process - when certain decisions were made, what the process was all about, where the defendant was at any given time, etc.  At the heart of these reforms was the notion that if victims had more information about how the system functioned, they would be more likely to "cooperate" and therefore more prosecutions would be successful.

Susan Herman with Cherie Blair, wife of Prime Minister Tony Blair, during reception at 10 Downing Street.



For many advocates, however, merely informing victims about the criminal justice system was not enough, so beginning in the 1970s a number of advocates began to argue that victims had a right to meaningful participation in the decisions made about the crime they experienced - the right to be present and be heard.  The victims' movement developed a new legal role for victims in the criminal justice system by creating the right to consultation before plea agreements, the right to provide victim impact statements, the right to be heard at sentencing, the right to participate in parole hearings and in pardon or commutation proceedings.  Now, 32 of the 50 American states have amended their constitutions to include these and many other victims' rights. 

As we review this history, however, we should make a sober assessment of the outcomes.  Even with hundreds of victims' rights established by law, victims in America are still unsatisfied with their actual access to information and actual level of participation.  A recent study conducted at the National Center for Victims of Crime found that even in states with strong legal rights for crime victims, nearly two-thirds of victims were not informed of the pretrial release of the accused, half of all victims in cases resulting in plea agreements were not given an opportunity to consult with the prosecutor prior to the plea agreement, and nearly half were never notified of the sentencing hearing at all.  And these are states with strong legal rights for crime victims.

So, while we can celebrate our success at enacting legislation, basic victims' rights still need to be implemented and enforced.  

But I draw a deeper lesson from this history. 

This movement to secure many rights for victims in criminal proceedings can also be traced to a time in the early 1970s when American criminal justice officials were very concerned with the low level of participation by victims and witnesses in the criminal justice system.  In 1973, our Justice Department published our first national victimization survey, showing for the first time that half of all crime victims did not report their crimes to the police.  Other surveys showed that many victims did not come to court to participate in criminal prosecutions.  The implication was clear: criminals were going free, and cases were being lost, because, as you say, "no witness, no justice." 

This interest in a more effective system of detecting, solving, and prosecuting crimes coincided with the rallying cry of a nascent victim advocacy movement seeking greater respect for victims.  While the victims' movement argued for more sensitive treatment of victims in the courtroom, more attention to victims' needs, and greater accountability of offenders through restitution, the government looked for ways to keep victims in court. 

These two strands came together to promote the policy goal of increasing victim participation in the justice system.  With police and prosecutors on the one hand, because they knew "no witness, no justice," and victim advocates on the other, because they believed victim participation was not only good for victims, but also made for better, more informed decisions, regardless of the outcome. 

And what does the research tell us about these developments?  The story of the Victim/Witness Assistance Project, or VWAP, an initiative of the Vera Institute of Justice in the early 1970s, tells an important story.  This was one of two large-scale projects funded by the federal government as a response to the startling findings of the first victimization study.  A million dollars was spent in one county in New York City to make it easier for victims to come to court.  The project constructed a day care center so victims could drop their children off while going to court, offered counseling to those suffering from trauma, provided assistance with victim compensation, notified all victims and witnesses of their court dates by phone and computer-generated letters, and developed a program to allow victims and witnesses to stay at work on court dates, calling them only if their testimony was actually needed.  Yet, a million dollars later, while victims appreciated the services, the evaluation found that the rate of appearances in court was exactly the same as before the program started.

The Vera Institute of Justice took these disappointing research findings and developed two new initiatives - one providing mediation services in cases involving parties who knew each other before the criminal incident, and one offering victim advocates who would appear in court to ensure that the victim was heard when appropriate.  These new initiatives, both creating more meaningful roles for victims, were somewhat more successful.  In the first initiative, victims were more satisfied with the mediation process than with court proceedings; in the second, courtroom attendance went up. 

While this research is narrow in scope and relatively old, these findings highlight an important lesson to be drawn from the original Victim/Witness Assistance Project's failure to improve victim participation.  Efforts to make the criminal justice system less burdensome for victims may make the system less burdensome, but without more, they don't change the central reality that the criminal justice system is about offenders, not victims.  Without more, victims will continue to be disappointed in our system of criminal justice, and their level of participation is not going to increase significantly.  Thirty years later, the level of reporting crime in America has not changed much, and the level of attendance in court hasn't either.  Participatory rights are extremely important, but we must do so much more. 

Imagine for a moment that instead of just tinkering with our offender-oriented criminal justice system to try to increase witness participation, we made helping victims rebuild their lives a priority.  Imagine deciding that justice required no less.  Imagine we were inspired by the words of Alexander Solzhenitsyn, who once said, "Justice is conscience, not a personal conscience but the conscience of the whole of humanity.  Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice."

At the National Center for Victims of Crime, we call our vision of justice for victims "Parallel Justice."  We believe that the pursuit of justice for victims does not depend on the arrest and adjudication of offenders.  We believe that justice for victims should include meaningful participation in the criminal justice system, but it should not be limited to that.

Let me explain.

When offenders are brought to the bar of justice they are held accountable by the state for harms suffered by individuals.  The state serves as our conscience.  There is a societal response to the offender that says, "You violated the law, and we will hold you accountable, punish you if it is appropriate, isolate you if needed, and offer you services to help reintegrate you back into the community."

The individuals who have been harmed by crime - the victims of crime - should have a comparable experience of a societal response to them.  Our collective conscience must respond to them as well.  Under a system of Parallel Justice we would say to them, "What happened to you is wrong, and we will help you rebuild your life."  And, for the most part, this can happen outside the context of the criminal justice system. 

In our vision of Parallel Justice, we believe that society should hold offenders accountable for the harms they have caused.  We also believe there is a separate social obligation to repair the harm caused by crime.

For me, Parallel Justice is an important guidepost for victim advocates because it changes the conversation we have been having about the appropriate response to victims of crime.  For the last 30 years, while many advocates have been focusing on social services for victims, others have worked hard to make the criminal justice system more responsive to victims' needs - to make sure that victims are respected, are included, and are heard.  Parallel Justice joins these efforts and provides a new framework for justice.

Certainly, it is important to make the criminal justice system more responsive to victims.  But the idea of Parallel Justice requires us to decouple the pursuit of justice for victims from the administration of justice for offenders.  We seek more than victims' rights to participate in the criminal justice system.  And we seek services that are more than charity.  We seek a separate path to justice for victims.

What does that mean?  It means that when we consider justice for victims, we must always begin and end by asking what is it victims need to rebuild their lives, and what is our obligation to them?  In answering these questions, we should not be limited by the framework of the criminal justice system.  For instance, prosecutors in America would say that the most significant problem that impedes successful prosecution of cases is witness intimidation. Yet, we continue to limit our focus to system-centric remedies - such as relocating victims and witnesses during the life of a trial. The system may only need witnesses to be safe during that period, but the witnesses usually need permanent relocation or other ways of staying safe for a much longer time.

I often think of the September 11 victims in this context.  After the attacks, our response to the victims did not begin by asking, "What is the appropriate role for victims in the investigation, prosecution, adjudication, and sentencing of offenders?"  Rather, we asked, "What do these victims need?"  As a result, we saw an unprecedented array of creative and helpful responses.

We must remember that the vast majority of victims have no involvement in the criminal justice system; they never see a courtroom, and their offender is never arrested.  So, we must develop ways to provide justice to all crime victims, not just those in the system.

The concept of Parallel Justice changes the paradigm.  Instead of asking victims to seek justice solely through the criminal justice process, we instead ask victims to define the problems they face - and then we do our best to address them. In this new world, there would be a victim-oriented justice process that would kick in with the occurrence of a crime and attend to the needs of victims of all crime, violent and non-violent.  Offenders, communities, and society-at-large would be asked to help victims rebuild their lives - to help reintegrate victims back into productive community life.

Offenders who are apprehended can make restitution, and, if they acknowledge responsibility for the crime, they can contribute to a victim's well-being in ways nobody else can. 

Along these lines, I believe restorative justice programs have much to offer victims who want to participate in them.  Unlike the traditional criminal justice system, restorative justice, like the mediation programs I mentioned earlier, offers victims a highly participatory process.  Restorative justice gives victims an opportunity to:

• Tell their story and be heard, to reconnect with their community;
• Rebuild their relationship with the offender, if one exists;
• Get important information and, sometimes, experience empathy from the offender, the community, or both;
• Receive an apology and/or an expression of remorse from the offender; and
• Receive restitution.

But victims often need much more.

We know that some victims move on with their lives fairly easily, but many suffer continuing trauma without the services and support they need.  Victims often suffer lowered academic performance, decreased work productivity, and severe loss of confidence. Mental illness, suicide, and drug and alcohol abuse are far more common among crime victims than the general public.  Research comparing battered women to women who haven't been abused shows they are 5 times more likely to attempt suicide, 15 times more likely to abuse alcohol, 4 times more likely to abuse drugs, and 3 times more likely to be diagnosed as depressed or psychotic. 

The data is similar for victims of sexual assault.  We also know that victimization during adolescence can be particularly harmful.  Abused and victimized adolescents are more likely to suffer from physical and emotional problems than non-victimized youth.  The National Center's recent report, "Our Vulnerable Teenagers" (available on our Web site) also shows that the single greatest factor in predicting criminal behavior on the part of teenagers is not teenage pregnancy, drug use, or truancy, but whether they have been a victim of crime.

It is clear that although we tend to think of the damage caused by crime in terms of individual victims, there is also an enormous toll on families, communities, and society-at-large.  When a significant portion of the 23 million Americans who become victims of crime each year remain psychologically, physically, and financially unstable, there are real consequences.  We all suffer.

So, repairing the harm is often far more complicated than apologies, restitution, and relationship-building.  It can require long-term mental health counseling, assistance with safety planning, relocation, and any number of services required to rebuild a life - emergency day care for the parent who needs to get a job to handle new crime-related expenses, substance abuse treatment for the traumatized victim who has turned to drugs, an escort or companion for the victim now too afraid to leave home or go to the store alone, employment counseling or training for the victim who no longer can perform his or her old job, or even something as simple as new locks or windows for a victim's home.

Many victims' needs cannot be met by individual offenders or small communities because there is only so much they can do.  The extent to which a victim can be  "restored" should not be limited by the capacity of the offender and the community.  When victims need more than empathy, restitution, and relationship building, restorative justice, like the traditional criminal justice system, falls short.  Again, this is not to say that restorative justice does not offer something of value.  Like the criminal justice system, it is simply of limited value.

By contrast, beyond the offender and the community, in a system of Parallel Justice, there is also a role for society-at-large, represented by the state, in repairing the harm.  Only the government can marshal the many resources needed to address victims' long-term complicated problems.  The day care, the employment counseling and training, the substance abuse treatment, or the housing needs of victims usually cannot be adequately addressed by offenders and communities alone.  Society as a whole should be asked to play a role.

Because Parallel Justice requires that the state helps victims rebuild their lives, we must ask in what forum that should take place.  When over half of victims in America never report the crime to the police, and when only one in five crimes ever results in an arrest, we need more than a criminal court to provide a communal response to victims.  We must not limit our focus to offender-oriented systems that are not designed to address victims' needs.

Instead, we argue for a separate, comfortable, non-adversarial process where society listens to reports of crime and tells victims "What happened to you was wrong and we will help you rebuild your life."

I am often asked why I speak of Parallel Justice and not victims' justice - or, for that matter, why don't I talk about this as a fuller, more complete vision of justice.  For me, the term Parallel Justice does two things.  First, it underscores the need to create a separate path to justice for victims - apart from the criminal justice system, but relating to it. Second, it highlights the contemporaneous nature of these paths.  We must respond to and reintegrate both victim and offender, and much of the work can take place at the same time, with options for connections or interactions.  If you like, you can visualize a ladder - two paths to justice that are connected by rungs, opportunities to interact.

There are many ways to promote Parallel Justice for victims.  Providing comprehensive emergency and long-term services to crime victims is a part of Parallel Justice. Implementing and enforcing the full body of victims' rights is a part of Parallel Justice. Making victims' safety a higher priority is part of Parallel Justice. Being honest with victims about what the criminal justice system can and cannot do is a part of Parallel Justice.  Marshalling every possible resource to help victims rebuild their lives is Parallel Justice.

Let me be clear, if I haven't been already.  In my view, seeking active participation of victims and witnesses in the criminal justice system is an extremely worthwhile goal.  The criminal justice system promotes public safety and justice.  And it is true, "No witness, no justice."

I also believe that if we spent more time providing justice to victims - helping victims rebuild their lives - they would be more likely to participate in the criminal justice system.  If we provide Parallel Justice to victims, it will be easier for victims to understand and accept some of the limitations of the criminal justice system.

We believe when we are able to offer Parallel Justice, more victims will come to support participation in the criminal justice system as a civic duty.  They will be less likely to see the system as a disappointing expression of justice.  To paraphrase Alexander Solzhenitsyn, we should recognize that justice is an expression of our conscience, a reflection of our humanity.  That vision of justice is larger than the criminal justice system; it involves more than giving testimony in a courtroom.  It requires us to provide support to our fellow citizens who have been harmed by crime, to listen to their needs, and to help them rebuild their lives.

So I congratulate you for taking great steps to make victims' experience with the criminal justice system more meaningful and less harmful.  I hope you will be realistic about the likelihood that these reforms alone will improve victim participation. And I urge you to continue to find additional ways to help victims of crime rebuild their lives.

Thank you.