Electronic copy available at: http://ssrn.com/abstract=1727197

Electronic copy available at: http://ssrn.com/abstract=1727197

Trends and Issues in Victimology

Electronic copy available at: http://ssrn.com/abstract=1727197


Edited by

Natti Ronel, K. Jaishankar and Moshe Bensimon

Trends and Issues in Victimology, Edited by Natti Ronel, K. Jaishankar and Moshe Bensimon This book first published 2008 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Copyright © 2008 by Natti Ronel, K. Jaishankar and Moshe Bensimon and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-0069-4, ISBN (13): 978-1-4438-0069-3

TO THE VICTIMS OF TERRORISM AND VIOLENCE. LET US PRAY THAT EXPANDING THE RIGHT KNOWLEDGE INTO THE RIGHT HANDS WILL CONTRIBUTE TO THE ATTENUATION OF HUMAN EVIL AND CONSEQUENT SUFFERING.

TABLE OF CONTENTS

Foreword ..................................................................................................... x Gerd F. Kirchhoff Editors’ Introduction ................................................................................... 1 Between perception and victimization: Trends and issues in victimology Natti Ronel, K. Jaishankar & Moshe Bensimon Part I: Justice for victims Chapter One............................................................................................... 12 Ideology and the behavior of perpetrators and victims of violence Noach (Norman) Milgram Chapter Two .............................................................................................. 32 An informal approach to delinquents and their victims: An alternative to standard punishment Uri Timor Chapter Three ............................................................................................ 57 Family-group conferencing in Israel: The voices of victims following restorative justice proceedings Esther Shachaf-Friedman & Uri Timor Chapter Four.............................................................................................. 88 Restitution: A multilateral penal approach Sharon Aharoni-Goldenberg and Yael Wilchek-Aviad Chapter Five ............................................................................................ 112 Malimath Committee and crime victims: Resurrecting the forgotten voices of the Indian criminal justice system K. Jaishankar, P. Madhava Soma Sundaram & Debarati Halder

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Table of Contents

Part II: Issues of sexual victimization Chapter Six .............................................................................................. 130 Reclaiming power?: Women victims of sexual violence and the civil legal system Yifat Bitton Chapter Seven.......................................................................................... 150 Sexual assault victims: Empowerment or re-victimization? The need for a therapeutic jurisprudence model Hadar Dancig-Rosenberg Chapter Eight........................................................................................... 175 Blaming victims and bystanders in the context of rape Inna Levy & Sarah Ben-David Chapter Nine............................................................................................ 192 Victims of sexual harassment in modern work places in India P. Madhava Soma Sundaram, K. Jaishankar & Megha Desai Chapter Ten ............................................................................................. 205 The relationship between childhood victimization, drug abuse and PTSD and adult delinquency in a prison population Sarah Ben-David & Ili Goldberg Part III: Illustrated examples of victimization Chapter Eleven ........................................................................................ 222 Alienation and emotional distress among relocated youth following the Gaza Disengagement Avital Laufer & Mally Shechory Chapter Twelve ....................................................................................... 242 Criminal victimization and social networks in India Nandini Rai Chapter Thirteen...................................................................................... 264 Soldier suicides: A victimological perspective Ehud Bodner


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Chapter Fourteen ..................................................................................... 283 A survey of stalking victims in India K. Jaishankar, Megha Desai & P. Madhava Soma Sundaram Chapter Fifteen ........................................................................................ 300 Abused Druze women’s strategies of resistance Brenda Geiger Epilogue................................................................................................... 319 Leslie Sebba Scientific Committee of Reviewers ......................................................... 325 About the Editors..................................................................................... 327 About the Authors ................................................................................... 329 Subject Index ........................................................................................... 337

FOREWORD GERD F. KIRCHHOFF

I am very much honored by the editors that they gave me the chance to give some introductory impressions about the reader in front of you. I have read the articles in this volume with a kind of breathless attention, fascinated by the wind of contemporary diversity in the writing of authors who somehow concentrate all on victims. The freshness of the wind going through the pages of this book, and sometimes the strengths of the arguments are rejuvenating. My thoughts went often back to the first symposium on victimology in Jerusalem (1973). Were these contributions possible thirty five years ago? What has changed since then? While I read the different contributions, I tried to find a connection from the first International Symposium on Victimology (1973) and the intellectual climate of victimology in 2008. When in 1973 for the first time the victimologists of the world assembled in Jerusalem to bring together what was known in the scientific world about the victim, the editors of the proceedings of that symposium called “Victimology” a relatively new development within the study of crime and deviance (Drapkin & Viano, 1974). The notion of victimology was a central issue. The struggle for self definition dominated. It was a necessary attempt to define, and such definitions have a function: the function to attempt to already contain the dynamic field. And what was it? An emerging discipline? A field? A focus? A subtitle? A party of criminology? Was it more? The symposium looked at society’s reaction, at prevention and treatment of victims of crime including restitution and compensation. The position of the victim in the criminal justice system was a main topic, no wonder in a symposium that was largely molded by criminologists and criminal lawyers. Two further volumes of the proceedings deal with special victimizations, characterized by the crimes: homicide, mass violence, genocide, sex offences and rape, white collar crime, traffic offences and related victimization. This all intended the deliberations to be held within a certain discipline, within criminology. In 1973, society’s reactions were primarily seen as reactions of the formal system of social


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control. Indeed the 1973 symposium was successful in starting a discourse in the international community of scholars. Not equally successful was the attempt to contain victimology in the limits set up by the Conclusions and recommendations of the symposium. Thirty five years after the 1973 symposium, I look at this edited volume, as a radical contribution to the growth of Victimology in the 21st century. Representatives of a new generation of scholars present their research. Obviously, they are no longer concerned about the debate whether victimology is a science in its own right, whether it is part of criminology or not. Obvious is that the notion of victimology is no longer such a central topic. Victimology has matured, from a relatively new development in criminology to the social science of victims, victimizations and the reactions towards both – with reactions and interactions comprising the most important field: reactions of victims, informal reactions of the social environment leading to secondary victimization on one side, to the criminal justice reaction as one important reaction of the formal system of control on the other side. No longer is the main arena of the reactions the formal system of social control – victimology studies the field of victim assistance as its own domain. Twenty years ago, in 1988, the General Rapporteur of the 2nd Jerusalem Symposium, Paul C. Friday (1992), asked: “Since when has treatment become a part of victimology?” (p. 8). Analyzing this question with the methodology of Friedemann Schulz von Thun (2006), we recognize its factual content. We look at the self disclosure of the sender, at the relationship to the partner and at the appeal in the communication. Friday’s question included an astonished and somehow unenthused statement – treatment and counseling as one reaction towards victimization had indeed claimed and recovered a prominent place in the field. Victimology was on the move. Therapists and counselors were more and more heard. Almost intolerable for academic scientists, even the victim activists and the volunteer sector took the microphones. For many critical observers, the domination by criminologists seemed to be followed by a domination of the helping professions and volunteer spokesmen and spokeswomen. This was a time when the consensual façade in victimology broke dissolved, to use a phrase from general social theory (Seidman & Alexander, 2008). Even if this façade is dissolved, it is still clear that the victim is in the center of victimology, not attacks, crimes, or reactions of the criminal justice system. In this framework, reasoning about the characteristics of punishment belongs to our field as long as the victims are in the center. Insofar, Sarah Ben-David’s (2000) “Victim’s Victimology” remains valid. I find that in this collection of chapters, the

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Foreword

disciplinary focus has widely disappeared. The discussion is less closely tied to specific disciplines like criminology or law. That of course means a loss of control at one side and that might be deplored. The disappearance of the disciplinary focus was deplored when the observed separation from victimology and criminology became obvious. This is no longer the case. Are the authors all victimologists? Not at all. A victimologist is mainly involved in scientific work, in research and in teaching, in rephrasing, remolding and reinforcing the paradigms of victimology. Few authors of this book are full time involved in this endeavor, a consequence of the disappearance of the disciplines. Nevertheless, they all contribute to the knowledge which will be picked up by others, e.g. by victimologists, and which will be brought under the roof of a theoretical construct. It is difficult to see this emerging roof. Clear seems to me that the attempts to built an overarching theoretical frame have lost its urgency. In this respect this book is a postfoundationalist product (see Seidman & Alexander, 2008, p. 2. who I follow in the next lines). Foundationalism has obviously lost attraction; victimology shares this with other social sciences. Social theory experts observe that many scientists have downshifted scientism – the provision of logical chains of propositions and models that can be empirically tested and will be worked in into systems of knowledge. Instead of research testing theory, post-foundationalist arguments try to explain how social analysis involves a multilevel argumentation. Nowadays, a greater variation of approaches is accepted to a broader extent, than forty years ago. It is not that abstract generalized thinking is no longer required – but we, social scientists, argue from a socially situated point of view. That situation has geographical and philosophical dimensions. There is a much more tolerant rationality at work. Many methodologically quite diverse contributions are worth while to be taken notice of and to be taken into account. In this respect, victimology is not going in different paths that social science generally do. This might be an outcome of the growing awareness that social consequences shape our thinking, that is, our own positions are part of influencing social life. The chain of reasoning moves between analytical philosophical reasoning, empirical data analysis and principal statements. At the same time, social scientists think about the practical social implications. This edited collection reflects another trend in social science, that is, a decline in the hegemony of what we might call scientist methodology. What does it say about the project of positivism in social science in general? We observe that no longer the methodological statistical considerations are in the foreground of concern. In the scientist period, the


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seventies with their enormous gain in insights, the Victim Surveys influenced the scene for the next thirty years, starting from local victim surveys to the grand International Crime Victim Surveys. The methodological intelligence and the scrutiny of empirical science had reached a level that obviously was difficult to maintain, let alone to improve. Cost considerations may play an additional role – obviously research has not always the ability to attract great sums of money to be invested. A consequence is that like in other social sciences, the project of positivistic methodology has lost its hegemonic rule. We find in this book less exalted level of empirical data collections or intense sophisticated statistical manipulation of data. Instead we find much more tolerance towards philosophical excursions. No wonder that we find a higher acceptance of qualitative research and reasoning. No doubt, the social reaction towards victims is still of crucial importance. Even if we argue from a socially situated position, how far is it possible (and how far is it necessary) to maintain the scientific distance between the observer and the victims? Many authors of this volume are from Israel. They are of course “socially situated”, somehow involved in the great tensions and contradictions in their society. In a very direct way, many authors appear to be bystanders – and bystander become part of the victimizing interaction. The special situation of Israel finds its precipitation in many contributions. Experiential reasoning for most authors is accepted. If we see the authors as observers and bystanders, the position of the observer is clearly included in their constructions of reality – they are the architects and the masons as well and the inhabitants of their house. They communicate with us, the readers, in the same floor or in the neighborhood. In listening, the reader experiences a sharpened awareness of the situated character, whether the authors are from Israel or from India. What determines the reaction towards victimization? One answer is given: Ideology, not injury determines one’s reaction “to attack”. Attack might not be synonymous with victimization. The statement claims to be true for battered women – a topic that is impressively documented in a small qualitative study on the “liberation” of battered Druze women. What makes the liberation possible? The experience of challenged solidarity of people in the nearest social environment. The statement claims equally to be true for Israelis who are prepared to make great sacrifices and concessions in their search for peace, versus, Israelis who seek, by confrontation and military force, to punish terrorists and regimes that foster and rewards terrorism. Ideology in scientific debates is taken seriously concrete and that opens the possibility to do research on the victims of such ideologies, even if the authors do not loose the contact

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Foreword

with the ground and instead escapes into the heaven of abstract theorizing. That is one of the advantages of the articles in this reader – they are refreshingly concrete, if they want. Sometimes they are too concrete for my taste – when women are existentially disappointed and feel misunderstood by the criminal justice system – should not the analysis turn to the dimensions which feed these disappointments? What is the role of members in the therapeutic community in exploiting these feelings of the witnesses? Is the time over when dialogues between the helping system and the justice system lead to the invention of the “Child Interrogator”? What happened to the obviously high quality of that dialogue? Sometimes the theoretical ambition for my taste is too high and I would prefer to see more contact to the ground. The ideas about restorative justice are so much needed for the justice system. I remember the concrete dialogue between lawyers who were informed by victimology and proponents of the traditional system as documented in Judith Karp (1992). The philosophical and theological arguments demonstrate how much mutual understanding is needed to find solutions that are able to bridge the contrasts. In all mutual understanding, the helping system and the judicial system are both parts of the system of social control – but their tasks and means must be different. High theoretical ambition cannot obscure this societal factum. I have read this book with a kind of breathless tension and with an intellectual joy. Its contributions triggered many theoretical questions. This book not only reflects the current intellectual climate in social science, but it has also posed certain challenges. It is a challenge to understand victimology again in the context of social science in general. It is certainly worth to find its way into the hands not only of victimologists but of many other people, scientists and the representatives of concerned publics. The practical implications of the articles of this book call for intense study and efforts. I am grateful to the editors that they gave me the honor to introduce this book but even more that they challenged me to think about contemporary victimological contributions of such diverse character and high quality. Mito, Japan, October 2008 Gerd Ferdinand Kirchhoff Professor of Victimology


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References Ben-David, S. (2000). Needed: Victims’ Victimology. In P. C. Friday & G. F. Kirchhoff (Eds.), Victimology at the transition from 20th to the 21th century (pp. 55-72). Monchengladbach: Shaker Verlag & WSVP. Drapkin, I., & Viano, E. (1974). Victimology: A new focus, vol. 1. Theoretical Issues in victimology. Lexington: Lexington Books. Friday, P. C. (1992). The faces of victimology. Report of the General Rapporteurs, Part 1. In. S. Ben David & G. F. Kirchhoff (Eds.), International faces of Victimology. Papers and essays given at the VIth International Symposium on Victimology in Jerusalem 1988 (pp. 1-15). Moenchegladbach: WSV Publishing. Karp, J. (1992). Restitution as a penal sanction. In S. Ben David & G. F. Kirchhoff (Eds.), International faces of Victimology. Papers and essays Given at the VIth International Symposium on Victimology in Jerusalem 1988 (pp. 220-226). Moenchegladbach: WSV Publishing. Seidman, S., & Alexander, J. C. (2008). Introduction. In S. Seidman & J. C. Alexander (Eds.), The new social science reader (pp. 1-26). London & New York: Routledge. Schulz von Thun, F. (2006). Miteinander redden 1 – Stoerungen und klaerungen (43 edition, p. 25-60). Reinbeck bei Hamburg: Rowohlt. (In German).

EDITORS’ INTRODUCTION BETWEEN PERCEPTION AND VICTIMIZATION: TRENDS AND ISSUES IN VICTIMOLOGY NATTI RONEL, K. JAISHANKAR AND MOSHE BENSIMON

It is late in the morning. Sally, a young woman, who works as a secretary, leaves her office in a rush, without notice, and finds shelter in a near-by office of another department of the same firm. Her face reveals her fear and anxiety. She cries uncontrollably, but her tears give her no relief. She calms down slowly, but says nothing. The woman, whose office she fled to, knows what has happened. “Is he still there?” Sally nods her head in affirmation. The loud voice of a grown man calling out again for “his friend” elicits more tears. She tries to calm down again. She drinks the coffee that is offered, waits a bit, looks at a small mirror on the wall to check that there are no more signs of crying, and heads back to her office. This isn’t the first time and she knows that he is already gone, because he never stays long. Now she is back at her desk and ignores the stare of the other secretary in the room who wants to know why and where Sally disappeared. She relaxes for a moment, but she was wrong: he has not left. He comes out of the office of the director of Sally’s department. He is a well-dressed man in his early sixties, a high ranking director of another firm that her department deals with. He hurries towards her: “Here you are, my friend. I couldn’t leave without a kiss. Kiss me!” The demand is clear. Sally is unable to move, speak, or resist. She drops her eyes in surrender. The man hugs her in a seemingly friendly manner, but holds her tight against his long frame to feel her soft body, and kisses both her cheeks. Satisfied, he leaves the room. The director who accompanied him as he came out of her inner office, the other secretary who is sitting next to Sally, and another woman who looked in when she heard the man’s boisterous shouts – all three women smile, as if what they have witnessed was an amusing, harmless

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Editors’ Introduction

interaction. For Sally it is no smiling matter, she says nothing, but gazes motionless. Hours later, in her therapist’s office, she explains why she continues to act the way she does when this man harasses her sexually. For Sally these episodes are a nightmare. First, because she is unable to resist him and gives in. Second, because the other women, who witness these recurrent episodes of sexual harassment, say nothing and do nothing to protect her. They have no reason to do so because they think there is nothing wrong, only harmless horseplay. For Sally these episodes elicit memories of the rape she experienced as a young adolescent. She doesn’t want to be touched by this man. Her body tells it clearly. Her face cries it loudly, but not her voice. And the people around do nothing but ignore. Even worse, they smile, maybe because they don’t see, maybe because the man is an important client. He is, therefore, much more important than Sally, a mere secretary. No, Sally will not complain to the woman in charge of sexual harassment issues in the firm. She will continue to do what she done before – to avoid him as possible, to suffer in silence, and to cry afterwards with friends and her therapist. For how long? It is too early to know. Let us hope that with the aid of her therapist and friends, Sally will change something. Even if Sally changes, what about other members of her department? Will they come to see things differently and do something about it? What about the harassing man, will he change his behavior? What about us? Do we recognize when someone is being victimized and are we prepared to do something about it? This story, taken from clinical practice, is one example of many in which bystanders fail to perceive that someone is being victimized. A colleague victimologist asserted: “Victimization is perception” (Andzenge, 2005). Examples are widespread. From individual level to group or cultural level, the subjective perceptions of those involved as “victims” has significant impact upon the degree of their victimization. Furthermore, the subjective perceptions of others involved also affect the experience and the subsequent behavior of victims. The number of “the others” is legion: Friends, relatives, bystanders or citizens who become aware of the event(s), parties with a vested interest (e.g., law enforcement agencies and voluntary organizations), and the perpetrators themselves. They all bring to the “objective” episode their subjective perception of the event (Hulsmann, 2006). Sally’s story taken from real-life, reminds one of Rashomon, the famous Akira Kurosawa film of 1950: The rapist, the raped women, her helpless husband, and a forth party. Each perceives the event differently. The variety of perceptions, including that of the direct victim, works together to continue this victimization and like episodes.


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Sally regards the man’s behavior as abusing and humiliating. Despite her repeated traumatization and perceived public humiliation, she sees no other option except submission, dissociation from what is happening, and emotional numbness. The perpetrator apparently enjoys his encounters with Sally, probably never thinks about the misery he is inflicting on her, and may even assume that she enjoys these episodes as much as he does. His rank and his gender-based permit, if not legitimize his use and abuse of Sally’s body. As long as he thinks that he can continue with the same behavior, he would not stop it (Ronel, in press). The behavior of the women, who witness assaults on Sally’s body, dignity, and well being, exacerbate Sally’s sense of loneliness during and following the harassment, creating a form of learned helplessness. These women are all aware of the widespread phenomenon of sexual harassment, its legal implications, and the social opprobrium attached to it. If they fail to recognize the phenomenon when it is occurring before their eyes, they are themselves accomplices to these actions and their recurrence. To conclude, victimization is perception, but certain perceptions may cause or support further victimization. Perception determines whether what took place is an aggressive act vented upon another or not. The failure of others to identify perpetrator and victim reinforces the perpetrator’s behavior and intensifies the sense of helplessness and abandonment of the victim. Therefore, at times perception is victimization. The centrality of perception in victimology thinking, research, and intervention is manifest when we examine the process of victimization in social conflicts. For example, a recent study of settlers Jews in Gaza Strip during their forced evacuation by the Israeli authorities (The “Disengagement” process), relates development of victimization and changes in perception by victims and aggressors in the course of this process, as manifested in the corresponding changes in the collective singing of the evacuated and the responses it evoked (Bensimon, 2008). Likewise, during therapy, change in victims’ perceptions and their emotional responses is central to the progress of recovery (e.g. Ronel, 2008; Winkel, 2007). Moreover, the term “victimization” itself comes to be perceived as a negative label. People who were victimized reject this label and prefer terms that stress their ability to master adversity (van Dijk, 2006, 2008). An example of change in terminology is the way Jews caught up in the Holocaust came to be described following their immigration to Israel. At the end of the Second World War, Jews who survived were called Holocaust Rescued, implying that they remained alive because of the efforts of others. More recently, many wish to be called Holocaust

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Survivors. The new term reflects a change of status from passive victims to active resisters who remained alive because of their own efforts. Ben-David (2000) introduces “Victim’s Victimology”, a need-based orientation in victimology research and practice. This orientation focuses on the perceptions of victims and calls for a scientific methodology for victims’ expressing their needs and interests. This orientation is a paradigm shift (Zehr, 1995) in which the self-perceived needs of victims become the primary focus rather than their rights, as determined by society (Sebba, 2000). Admittedly giving voice to victims’ needs also gives voice to victims’ rights, the former adds a new dimension. The old paradigm that emphasizes the rights of victims may be regarded as an instance of a just morality, while the new paradigm emphasizes a caring moral ethic (Gilligan, 1993). Caring includes not only the protection of vicitms’ rights and interests, but also creating opportunities for their needs to be met. Current theory in victimology expresses this paradigm emphasizing both an action-oriented field, as well as a scholarly and scientific one (van Dijk, 1997). A major action targets a transformation of perceptions in any level, from individual to institutional to cultural and societal. Trudging behind the progress of victimology, modern societies show signs of approximate transformation. From ones that consciously or by ignorance, fostered victimization by mistreatment, maltreatment and even re-abuse of former victims, modern societies move towards declaring the well caring for victims and their attempt to reduce and prevent various types of victimization (Balloni & Bisi, 2004; Kirchhoff, 2004; Waller, 2005). Central to the change process of societies is a change process of perceptions of various agents within those societies. Albeit the declaration of victims’ prone policy and the inclusion of procedures within the criminal justice system that attempt to keep victims’ legal rights, the implementation still meets victims’ needs only partially (Sebba, 2000; Svensson, 2007). Therefore, the perceptions of society’s agents are still in a need for transformation, as current victimology suggests. Some of the chapters of this edited volume indeed call for such a change. The following chapters are grouped in three sections: Justice for victims, issues of sexual victimization, and illustrated examples of victimization. Most of the chapters are based on presentations in an International Conference “Victimology and Law”, May 8-9, 2007, at BarIlan University, Ramat Gan, Israel. The first section targets perception and the process of change in perception as they affect victimology and justice for victims. In Chapter One, Noach Milgram postulated that ideology is inherent in perception


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and critical in understanding the mind set of victims. Ideology, whether manifest or below awareness, contributes to the construction of perceptions and proactive and reactive behavior. Noach provides innovative and provocative illustrations of the power of ideology in his studies on battered women and victims of Palestinian terrorism. Uri Timor proposes in Chapter Two a different view by challenging the perceptions that underlie retributive punishment. Uri presents an alternative solution to the conflict between offender and victim that is based on Jewish theoretical formulations and restorative approaches. He advocates transferring at least partial responsibility for the offender-victim conflict to the prevailing social order; this recommendation is consistent with Jewish tradition attributing to the community some degree of responsibility for the transgressions that take place within its confines. Esther Shachaf-Friedman and Uri Timor present in Chapter Three, findings from a study of victims’ perceptions in family–group conferences with juvenile delinquents. Based on the analysis of these perceptions, Esthi and Uri suggest practical guidelines to prepare and implement restorative justice processes in victim-focused intervention. The same pragmatic victim-needs and rights approach was presented by Sharon AharoniGoldenberg and Yael Wilchek-Aviad in Chapter Four on restitution to victims of property offences. Victim-focused restitution is contrasted with the prevalent legal procedures applied to property offenders that do not help the direct victims, according to Sharon and Yael. In the fifth and final chapter in this section, K. Jaishankar, P. Madhava Soma Sundaram and Debarati Halder describe and discuss the position of the victim in ancient, medieval, British and modern India; the authors analyze the role of Malimath Committee in restoring the forgotten voices of crime victims in the Indian criminal justice system. Jai, Madhavan and Debarati illustrate the process of change that a developing society goes through when attempting to adopt the thought of modern victimology, and at the same time, to integrate it with ancient Indian wisdom. Sexual harm and offences usually leave distinctive mark on individuals who were sexually victimized. The sexual violation of intrapersonal intimacy calls for particular understanding and intervention. The second section addresses this issue specifically. Yifat Bitton offers in Chapter Six a feminist perception of the treatment of women victims of sexual violence in the justice system that is needed to prevent further victimization and to overcome the consequences of the initial victimization. Yifat calls for reorientation of tort litigation to enable women victims of sexual violence to reclaim the power that was brutally taken from them. Hadar DancigRosenberg highlights the gap between therapeutic dialogue and legal

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dialogue in Chapter Seven and calls for accommodating existing judicial processes to the unique needs of sexual assault victims. Hadar suggests that while the adversarial system of judicial procedures is likely to remain, it must undergo reforms that will advance therapeutic goals in behalf of the victims. Inna Levy and Sarah Ben-David broadens in Chapter Eight the discussion on sexual victimization by focusing on a neglected group, the “innocent” bystanders. Reviewing theoretical and empirical literature, Inna and Sarah address the way bystanders are perceived and offer models of bystander blaming. In Chapter Nine, P. Madhava Soma Sundaram, K. Jaishankar and Megha Desai address sexual harassment in the modern work places in India. In their empirical pilot research, Madhavan, Jai and Megha describe the prevalence and characteristics of sexual harassment in a major Indian city, Mumbai. In the final chapter of this section, Chapter Ten, Sarah Ben-David and Ili Goldberg present the results of a study of male prisoners. Their study establishes the relationship of past traumatizing experiences in sexual offenders, their PTSD symptoms and drug dependency, and their own perpetration of sexual crimes. Sarah and Ili found that prisoners who were sexually abused in the past and who developed a cognitive avoidance style tended to become sexual offenders as adults, while those who developed drug dependency tend to exhibit non-specific criminal behavior. The third section of the book illustrates and analyses several examples of victimization. In an empirical research design, Avital Laufer and Mally Shechory investigated in Chapter Eleven distress levels in Israeli youth, 18 months after they were forced to leave their homes during the Israeli government mandated disengagement from the Gaza Strip. Avital and Mally found direct relationships between perception of the traumatic experience, feelings of alienation, and distress level. In Chapter Twelve, Nandini Rai presents a novel focus on known phenomena. She offers a socio-geographical analysis of the distribution of criminal victimization from the perspective of places with specific identities. Nandini asserts that reduced social interaction and a decline in mutual trust in the society make the places of interaction unsafe. In Chapter Thirteen, Ehud Bodner reviews the major factors in the etiology of suicide among soldiers and in the failure of professional authorities to provide help to soldiers at risk. Soldiers who attempt suicide may be perceived and consequently treated as disturbed youth who are trying to manipulate others rather than as victims of their own suffering. Ehud presents some practical suggestions for the prevention of suicidal behaviors in soldiers. K. Jaishankar, Megha Desai and P. Madhava Soma Sundaram target in Chapter Fourteen the stalking phenomenon in India and relate this form of


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victimization to a transformation in social-cultural perception of this phenomenon. Jai, Megha and Madhavan present results from a survey of college students that indicate patterns of repeated intrusions and harassment techniques. They document victim reluctance to report this behavior, and effects of stalking on the victims. In the closing chapter in this section, Chapter Fifteen, Brenda Geiger presents a qualitative research of domestically abused Druze women, a group whose voice is rarely heard. These women have to struggle on two fronts: (a) to content with their abusive spouses; and (b) to contend with the context-relevant ideology, norms and perceptions of their extended families. Their family attempts to force them to reconcile with the abusive spouse and to reconcile themselves to continued abuse. As Noach Milgram indicated in the opening chapter of this book, ideology may deny the natural human rights of victims. Brenda presents, however, an optimistic picture of the struggle of abused Druze women and their successful claim for rights and power. When one types in the word ‘victimology’, the automatic spelling correction in the word processor indicates that the term does not exist. More than 60 years after Beniamin Mendelsohn coined this term (Dussich, 2006), one may ask, is the field a discipline and a profession manned by only a few experts? Is victimology the private “playground” of victimologists and a few others who show some interest? Are we still in the early stage of this field? We strongly believe that the answer is in the negative. Victimology is an established field with growing international impact. Therefore, the current volume reflects the current status of the field. It is not an introductory text to the field but, on the contrary, it treats victimology as a mature field of study and practice with many achievements to its credit and many challenges. While working on this book, we received enormous assistance from many friends and colleagues and our pleasant duty is to thank them all. First to be mentioned is Keren Cohen-Louck, the devoted coordinator of the international conference that preceded the book and with the same breath, our colleagues who served as members of the Conference Steering Committee: Sarah Ben David, Ruth Kannai, Simha Landau, Stephen Levin, Ron Shapira and Mally Shechory. We also would like to thank Malka Or-Chen, Hadas Elharar, Sylvie Lipsker and Liron Maor who provided the Conference with the necessary administrative assistance. We thank those organizations that sponsored the Conference: Bar-Ilan University’s – Faculty of Law and Department of Criminology; The Ariel University Center of Samaria and its Multidisciplinary Social Sciences Department and Department of Criminology; and The Israeli Society of Criminology. We are grateful to our colleagues, members of

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the Scientific Committee of this book, who provided thorough scientific reviews of each chapter. We also thank our publisher, Cambridge Scholars Publishing, and the kind and helpful contact people in the publishing house – Carol Koulikourdi and Amanda Millar. Finally, we are happy to thank our beloved families who provided us with their love, support and patience during the arduous task of bringing this book to publication: Gila, Dror and Tohar Ronel; Debarati Halder and D. J. Mriganayani; Shira, Michael and Netta Bensimon.

References Andzenge, R. (2005). Cultural and geopolitical contexts of victimization in the developing countries. Paper presented at the XXI Post Graduate Course on Victimology, Victim Assistance, and Criminal Justice, Dubrovnik, Croatia: Inter University Center. Balloni, A., & Bisi, R. (2004). The evolution of victimology: A view over Italy and Europe through research. International Perspectives in Victimology, 1(1), 52-72. Ben-David, S. (2000). Needed: Victim’s victimology. In P. C. Friday & G. F. Kirchhoff (Eds.), Victimology at the transition from the 20th to the 21st century (pp. 55-72). Monchengladbach: Shaker Verlag & WSVP. Bensimon, M. (2008). Intergroup distancing and proximity through music: The case of the Israeli traumatic disengagement from the Gaza Strip. Paper presented at the XXIV Post Graduate Course on Victimology, Victim Assistance, and Criminal Justice, Dubrovnik, Croatia: Inter University Center. Dussich, P. J. J. (2006). Victimology – past, present and future [Electronic Version]. Resource Material Series, 70, 116-129. Retrieved 8.9.2008 from http://www.unafei.or.jp/english/pdf/PDF_rms/no70/p116129.pdf. Gilligan, C. (1993). In a different voice. Cambridge, MA: Harvard University Press. Hulsmann, L. (2006). The problematic relationship between victims and criminal justice: How to prevent secondary victimization. Paper presented at the XXII Post Graduate Course on Victimology, Victim Assistance, and Criminal Justice, Dubrovnik, Croatia: Inter University Center. Kirchhoff, G. F. (2004). Victimological research in Germany. International Perspectives in Victimology, 1(1), 84-108.


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Ronel, N. (2008). Grace Therapy for recovering victims: A restorative 12step based therapy. In P. Madhava Soma Sundaram, K. Jaishankar & S. Ramdoss (Eds.), Crime victims and justice: An introduction to restorative principles (pp. 399-408). New Delhi: Serials Publications. —. (in press). The criminal spin. In K. Jaishankar (Ed.), International perspectives on crime and justice. Newcastle upon Tyne, UK: Cambridge Scholars Publishing. Sebba, L. (2000). Victims’ rights and legal strategies: Israel as a case study. Criminal Law Forum, 11(1), 47-100. Svensson, K. (2007). Victim support in a changing welfare state. Social Work and Society, 5(2), 123-134. van Dijk, J. J. M. (1997). Introducing victimology [Electronic Version]. Lecture delivered at the Ninth Symposium of the World Society of Victimology at the Free University of Amsterdam on August, 25-29, 1997. Retrieved 27.8.2008 from http://rechten.uvt.nl/victimology/other/vandijk.pdf. —. (2006). The mark of Abel; Reflections on the social labeling of victims of crime [Electronic Version]. Lecture delivered on the Occasion of the Official Acceptance of the Pieter van Vollenhoven Chair in Victimology, Human Security and Safety at Tilburg University on November 24, 2006. Retrieved 27.8.2008 from http://www.tilburguniversity.nl/intervict/news/06-11-24-rede.pdf. —. (2008). In the shadow of Christ? On the use of the word “victim” for those affected by crime [Electronic Version]. Criminal Justice Ethics, Winter/Spring 2008. Retrieved 27.8.2008. Waller, I. (2005). The UN’s efforts and the basic act on crime victims, etc. Paper presented at the Voices of Crime Victims Change Our Society: Proceedings of the 2nd Symposium of the Tokiwa International Victimology Institute, January 20-21, 2005. Winkel, F. W. (2007). Post traumatic anger: Missing link in the wheel of misfortune [Electronic Version]. Official Acceptance of the INTERVICT Office of Professor of Psychological Victimology at Tilburg University on October 17, 2007. Retrieved 27.8.2008 from http://pbotest9.kub.nl:7779/intervict/publications/oratiefww.pdf. Zehr, H. (1995). Justice paradigm shift? Values and visions in the reform process. Mediation Quarterly, 12(3), 207-216.

PART I: JUSTICE FOR VICTIMS

CHAPTER ONE IDEOLOGY AND THE BEHAVIOR OF PERPETRATORS AND VICTIMS OF VIOLENCE NOACH (NORMAN) MILGRAM

Abstract This chapter makes general and specific assertions about ideology: (a) ideology is ubiquitous in human deliberations and subsequent actions; (b) ideology determines definition of victim and victimizer in violent encounters; (c) ideology affects decisions by battered women whether to remain with abusive partners or to separate and seek legal recourse; (d) Western ideology favors acts of forgiveness and condemns feelings and acts of retribution, thereby restricting the emotion and behavioral repertoire of battered women; (e) ideology affects endorsement by Israeli civilians of lenient versus harsh retaliation against the Palestinian Authority, its armed militias, and citizenry in response to terrorist attacks; (f) ideology affects corresponding endorsements by Israeli combat soldiers as well as their readiness for conciliatory relations with Israeli Arabs. Assertions (b-e) were amenable to empirical confirmation and were confirmed both by findings in the research literature and by the author’s own research findings.

Introduction This chapter is both a theoretical essay on a number of related topics and a summary of empirical research including research conducted by the author. As such, the chapter makes general and situation-specific assertions about ideology defined as attitudes, beliefs, values, and assumptions about important issues in life and then provides empirical evidence in their support. The assertions are as follows: (a) Ideology is inherent in all human deliberations and subsequent actions. (b) Ideology is a crucial variable in the responsibility attribution patterns

Ideology and the Behavior of Perpetrators and Victims of Violence

13

of individuals and groups and determines the target individuals and groups whom the former hold responsible for past and anticipated actions. As such, it determines the personal and societal definition of victim and victimizer both for observers and for participants in violent encounters. (c) Ideology in the form of beliefs and assumptions about interpersonal violence affects the decisions reached by victims of domestic violence, with some battered women choosing to remain with their abusive, unrepentant partners and others separating from their partners and even initiating legal procedures to prosecute them. (d) The overwhelming support in Western society for acts of forgiveness, forbearance, and letting go versus actions associated with the desire for retribution, restitution, and taking revenge place restrictions on the emotional and behavioral response repertoire of battered women in particular and victims of violence in general. (4) Ideology affects the response intentions of Israeli civilians who become victims of persistent, unpredictable terrorist attacks, with some attempting to mollify their attackers and others endorsing retaliation. (5) Ideology also affects the response intentions of Israeli combat soldiers to attacks upon their person and their comrades, families, friends, and neighbors, with some endorsing lenient versus harsh retaliation against Palestinians in the Palestinian Authority on the one hand and readiness for conciliatory versus non-conciliatory social relations with Israeli Arab citizens on the other.

The authoritarian personality Assertions about the primacy of ideology run counter to (a) pronouncements by social and political scientists following World War II that ideology had become irrelevant, and to (b) the widely held assumption that poverty, racial discrimination, and exploitation are necessary, if not sufficient, causes of violence and conflict (Jost, 2006). There was considerable research on the psychosocial antecedents and tragic consequences of virulent ideologies, fascism and communism, following World War Two. The motivation behind the research of a group of psychologists at Berkeley (Adorno, Frenkel-Brunswik, Levinson, & Sanford, 1950) was to identify the familial and cultural variables that accounted for the unquestioning obedience and moral disengagement of citizens of an enlightened Western democracy-turned totalitarian regime in committing crimes against humanity. Following the collapse of both Nazi and Communist ideologies in the aftermath of World War II and the Cold War, social scientists drew the conclusion that the age of ideology was

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over. Some claimed that there were no longer differences in ideological content between the Left and Right (Apter, 1964); and if there were substantive differences, most people were unable or poorly motivated to apply the logical analysis that would demonstrate to them inherent distinctions between ideologies (Converse, 1964). Others claimed that the so-called major ideological constructs, liberal and conservative, did not differ in content and if they were, in fact, different, these differences did not exercise a systematic effect on behavior, including political behavior (Lane, 1962). Jost1 (2006) has written an extensive, authoritative summary of these claims and provides convincing evidence to the contrary. He focuses on the growing cleavage in public opinion in the United States and in Western Europe between the liberal Left and the conservative Right as evidence of political ideological conflict. He documents the influence of liberal versus conservative ideology on presidential elections over the past three decades. He also notes the rise of religious fundamentalism in the United States, India and other countries, and most prominently throughout the Muslim world, and concludes that religious ideology with imperialistic political overtones as well as the more secular political ideology are alive and well, for better and for worse, in the world today.

The ubiquity of ideology Some researchers (e.g., Baumeister. 1991; Jost, 2006) have taken the position that human beings have a built-in program to find meaning in their lives by adopting and/or adapting existing ideological belief systems. When we consider that “an ideology is an organization of beliefs and attitudes – religious, political, or philosophical in nature… institutionalized or shared with others” (Rokeach, 1969, pp. 123-124); that “ideologies unify thought and action” (Kerlinger, 1984, p. 13); and finally that political ideology is an interrelated constellation of moral and political attitudes that possess cognitive, affective, and motivational components (Tedin, 1987, p. 65), it is difficult to understand why ideology was ever declared extinct or why it is not prominent in all research on behavior in general and in research on the behavior of people exposed to stressful and violent life events in particular. Ideology may permeate a society without its members giving it much attention in placid times and places, but it

1

This section draws heavily on a comprehensive review of this issue by Jost (2006).


15

takes center stage when there are threats to the lives, property, and values of individuals and/or societies (e.g., war, famine, natural disasters, and threats to ideological bases of daily life). The relationship between stress and ideology is made clear in the conceptual model of stress that follows.

When life threatens ideology, ideology threatens life People experience stress reactions when there is threat, perceived or actual, actual damage to things of value to them, or when there is an insufficient return to the individual or the society for the investment and the sacrifice made (Hobfoll, 1989). Hobfoll’s cognitive theory of stress and coping states that (a) people experience distress when they perceive that their material resources (e. g., people, property) and psychological resources (e. g., status, beliefs, values) are threatened and (b) they respond by investing resources (e.g., time, effort, money, and ideological convictions) in order to prevent resource loss. Ideology as a major human resource is a double-edged sword in many respects. First, when people come to believe that their ideology is under attack, (a) they may respond by adopting even more extreme forms of this ideology and retaliate with a dedicated resolve that produces genocide and Islamic homicide bombers, or (b) they may respond by defeating malevolent dictatorships (e.g., German, Japanese, and Russian) while preserving in theory and practice a democratic ideology. Second, nations engaged in a military conflict may accept defeat and unconditional surrender and as a consequence reject or drastically modify the ideology with which they initiated the conflict (e.g., Germany and Japan after the Second World War). Other nations may accept military defeat, massive slaughter of their people and mass expulsion from their homeland, with some modifications in their ideology, but without loss of national identity or societal collapse (e.g., the Jewish people who survived the Roman conquest of Judea). Nations go to war to protect national sovereignty, natural resources, geographical boundaries, and to guarantee the security and prosperity of their citizens. They also go to war to protect and/or to promulgate their hallowed ideological heritage of religious, cultural and political institutions. This is true for freedom fighters on the one hand and for homicidal terrorists on the other, provided that there are ideologically relevant contexts for the actions of either category (Ashby & Malley-Morrison, 2007).

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Ideological construction of villains and victims The ideological orientation of each party to a violent conflict affects its subsequent behavior according to whom it defines as aggressor and aggrieved victim (Pettigrew, 2003). Ideologically-based definitions of their victims by perpetrators of violence enable perpetrators to achieve a state of moral disengagement (Bandura, 1999). When disengaged from the peacetime prohibitions that govern their lives prior to the outbreak of war, people become able to maim and kill other human beings and to claim that their cause is just, as did German and Japanese soldiers successfully (author’s ironic italics) during the Second World War.

Psychological and contextual analysis of the making of a homicide bomber Moghaddam (2006) has presented a comprehensive analysis of Islamic homicide bombers and how a given ideology permits bombers to perceive innocent people as people who threat and harm them and to perceive their role in causing their death as that of victims redressing just grievances and achieving cherished ideals. Moghaddam attributes the hatred and destructive intentions and actions of Islamic terrorists and their supporters to various stressors: (a) Members of their people, members of their own family, relatives, friends, neighbors and/or fellow citizens suffered insult and injury at the hands of the “Western imperialist nations” in peacetime as well as in the course of military conflict. (b) Their current beliefs, values, and traditions (in short, their perception of the past and future achievements of the Arab people in the service of Islam) have been threatened or damaged. (c) As a consequence of these ideologically based perceptions and interpretations of their experiences, Islamic terrorists regard themselves morally justified in engaging in pre-emptive large-scale retaliation on civilian “infidel” populations or on suspected traitors in their midst. Moghaddam (2006) identifies the various stages by which the recruit is first recruited, indoctrinated, trained, isolated from countervailing influences, and memorialized in advance of his intended homicidal actions. The final stage guarantees his commitment to carry through the ultimate destructive act. The Islamic homicidal bomber is the epitome of a self-perceived victim transformed into a mass murderer.


17

Ideology and violence in a given society Ideology also affects attitudes and practices within a given society as well as between societies. For example, honor slaying is a cultural institution in Islamic Arab society (Ali, 2003; Mir-Hosseini, 1993). When Arab women dress immodestly, appear to be sexual indiscrete, or divorce their husband, they are killed by a male family member, usually the father or the brother. Western observers may be outraged when they read that three Palestinian women in Gaza were killed in honor slayings (Abu Toameh, 2007), but many Moslem observers are not; they are marching to the cadence of a different ideological drummer. In their view, the family is the victim, the woman who has sullied the honor of her family by indiscrete behavior is the perpetrator, and the man who murders his daughter or sister is restoring family honor in the proper, prescribed manner, and merits the respect of others.

Do victims blame themselves for what happens to them? If one ideology attributes to the “other” responsibility for whatever troubles the potential aggressor, a complementary ideology enables the “other” to accept responsibility for causing the trouble. Some victims acknowledge personal or collective culpability for the suffering they endure. These kinds of misplaced attributions account for the response of some members of ethnic minorities to persecution. For example, throughout the 19th century large groups of Jews attributed anti-Semitism to what they regarded as egregious behavior by other Jews; Western secular Jews blamed the traditional dress, manners, and religious practices of Eastern European Jews for the bad name Jews in general were acquiring. The early political Zionists made a similar attribution error when they attributed anti-Semitism to Jews not having a national home or country of their own; they asserted that once Jews have their own country, attitudes will change (Hazony, 2000). The history of the Jewish people in the first half of the 20th century and of the State of Israel during the second half indicates that attributing anti-Semitism to the behavior of Jews is not only naïve, it is malicious and anti-Semitic in and of itself, whether the attribution is made by Jews or non-Jews. The phenomenon of blaming the victim cuts across cultures and continents. Ideology and self serving attributions permit “good people,” who do not commit grievous crimes against others, to blame victims of violence for what happened to them (Johnson, Mullick, & Mulford, 2002). It is commonplace to blame the rape victim for having dressed the way she was dressed, or for being out so late at night; or to blame the man who had

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a heart attack for having been too active, too inactive, too fat, too thin, too anything that fits the particular circumstances. Research has shown that people who have a general tendency to blame “others” also tend to blame specific target groups more than people who do not; by contrast, there is no relationship between the general tendency to blame society and to blame victims. People might well attribute the responsibility for victim blaming in society to the way in which society educates its members to engage in victim blaming, but they do not so in a consistent manner (Johnson et al., 2002).

The belief system of battered women Some victims in turn blame themselves personally. Research has shown that some battered women blame themselves and resign themselves to live with their abusive partners and to suffer repeated beatings for many years (Hyden, 1995). They remain with their abusive partner for many reasons, among them a maladaptive belief system (Women’s Rural Advocacy Programs, 2007). There is voluminous research on the ethnic, economic, and personal-social characteristics of battered women and battering husbands and on the demographic circumstances that place women at risk for domestic violence (Bornstein, 2006; Chronister, 2006; Chronister & McWirther, 2003; Chronister & McWirther, 2004; Figueredo, 2001). This research demonstrates a two-way interaction between objective societal circumstances and personal-social characteristics of women exposed to chronic domestic violence. Interventions designed to empower battered women focus both on the maladaptive belief systems that perpetuate wife battering and on the social forces that engender learned helplessness and these maladaptive beliefs to begin with (Nabi & Horner, 2001; Warren & Lanning, 1992). In my research, I have chosen to focus on battered women’s belief systems because they illustrate how victims attribute responsibility to themselves for suffering caused by others. A survey of ideology-relevant research findings on domestic violence in Israel (Haj-Yahia, 1998; Milgram, 2007a; Sadik, 2007) and elsewhere indicates that women who elect to stay with their abusive partners differ from those who leave in their assumptions about (a) who is responsible for the battering, (b) standards for judging the male batterer and the battered female, (c) probability of behavior change by the batterer, (d) dire consequences of confronting the batterer, and (e) the self esteem and self sufficiency of the battered woman.


19

These differences are reflected in the degree of adherence to the following beliefs culled from many studies (e.g., Haj-Yahia, 1998, 2002, 2005; Launius & Lindquist, 1988; Milgram, 2007a; Rubenstein, 2004): (1) He (the abusive partner) is not really responsible for his violent actions. (2) He is going through a difficult time and when his work difficulties and personal problems are resolved, his behavior will change dramatically and he will no longer be violent. (3) She (the battered woman) is responsible for his violent outbursts because she is not sufficiently sensitive to his moods or needs; if she becomes more sensitive to his needs and is careful not to provoke him, he will not be provoked and will not become abusive. (4) He will become more violent toward her and/or the children if she makes any drastic change in her life pattern (e.g., if she protests, leaves, and/or presses charges against him; it is wiser not to retaliate because that will only make things worse). (5) She has an ambivalent relationship with the abusive partner and needs to have him around because he is occasionally kind and considerate or because she wants more children. (6) She cannot manage by herself; she lacks the skills to support herself and her children. (7) She applies a double standard to violent actions by men and women. By nature women are not self assertive and are not supposed to respond aggressively; something is wrong with women who do. Men, one the other hand, have a short fuse and their aggressive nature must be taken into consideration, not much can be done about it. (8) She will suffer social humiliation if she “goes public” and acknowledges that she is being battered; it is wiser to minimize the physical and psychological punishment she is taking. The conclusion reached by integrating the studies cited above (HajYahia, 1998; Milgram, 2007a; Rubinstein, 2004) is that battered women who sustain these beliefs will remain with their partner, despite past and present abuse and the high probability of future abuse.

Forgiveness: A blessing or a barrier in the response recourse of battered women? Prevailing attitudes about retribution, retaliation, and recourse to justice versus forbearance or forgiveness make it difficult for the woman who wishes to leave the home to follow through, to protect herself and her children, to prosecute her abusive partner, or even to give vent to her

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Chapter One

righteous indignation. Many theorists and practitioners in Western countries condemn expressions or actions of revenge or retaliation and advocate forgiveness, forbearance, or letting go as the most appropriate response to insult and abuse (McCollough, Pargament, & Thoresen, 2000; Worthington, 1998). Some extend the forgiveness imperative beyond insult and abuse that occur within the family and circle of friends to psychological and physical abuse of a criminal order (Smedes, 1984). One study indicates that forgiveness plays a significant role in the intention of battered women living in domestic shelters to return to their abusive partners (Gordon, Burton, & Porter, 2004); the study would appear to recommend forgiveness-based return without regard for whatever may be the best interests of the battered women. By implication, battered women are asked to strive to forgive the abusive partner and to forego thoughts and actions to get even. Such a recommendation is not common. In general, women in sheltered settings are advised to leave their abusive partners, but the forgiveness theme may persuade women and their families to take a course that is not in the best interests of these women. The act of forgiveness has a built-in virtue: it makes many people feel better. The act of letting go and forgiving elicits a parasympathetic response associated with such pleasurable activities as eating a good meal, getting a good sleep, enjoying a sensual experience. By contrast, “never forget and never forgive” is an innervating experience that elicits the emergency action of the sympathetic system (Witvliet, Ludwig, & Vander Laan, 2001). According to forgiveness adherents, wanting to get even and doing something about it is bad for the victim and bad for the body politic (Enright & Coyle, 1998; McCollough, 2000). Some theorists and researchers disagree and assert that taking action within the law against the aggressor restores a sense of empowerment, emotional equilibrium, and self esteem (Bies & Tripp, 2001; Frijda, 1994; Minow, 1998; Schoenfeld, 1966; Seton, 2001; Strang, 2002; Vidmar, 2001); Waldman, 2001). Moreover, many therapists who deal with crime victims permit and even encourage verbal expressions of anger, and recommend actions with the law; these actions include making demands and following through with actions within the law that punish the violence perpetrator in particular, and by legal enactment, criminals in general (Milgram, 1998). Mothers of victims of vehicular homicide have been working for years to tighten the laws regarding drunken driving and to institute more harsh penalties for drunken driving and vehicular homicide and have been successful in doing so (Weiss, 1986). Victims of sexual molestation and rape have also recovered through individual empowerment efforts


21

(Resnick, 2001; Thompson, 2000) and through becoming active in selfhelp and crime prevention groups (Young, 1988). These activities do not contradict forgiveness if the perpetrator expresses remorse and makes some form of restitution. Support for the view that people who commit violence against others should receive their just desserts may be found in the demand of the public in movies, novels and life situations that the guilty not go unpunished, that punishment fit the crime, and people who commit harmful acts against others suffer for their transgressions (Brison, 1993; Gelernter, 1999; Jacoby, 1985). If forgiveness makes some people feel better and behave constructively in some circumstances, retribution makes other people feel better in the same or other circumstances (Cardi, Milich, Harris, & Kearns, 2007; Gordon, Burton, & Porter, 2004; Simpson, 1998). In the section that follows, data are presented in which Israelis citizens are presented as victims of aggression initiated by the Palestinian Authority and its various paramilitary units. Many, perhaps most Israelis clearly perceive themselves in this light, although they may disagree about the circumstances that brought about and maintain this violent conflict. Palestinians may also perceive themselves to be victims of Israeli aggression. 2

Ideological differences in battered Israelis When one tallies up the thousands of mortar shells directed against civilian targets, and the thousands of civilian Israeli casualties caused by

2

It is evident that Palestinians living in areas under the control of the Palestinian Authority perceive themselves to be victims of Israeli aggression (Pettigrew, 2003). I propose two reservations, however, to accepting this claim: first, one must demonstrate that the declared policies and premeditated behavior of the Israeli government and its armed forces toward Palestinian civilians qualifies for the term terrorism as defined by Moghaddam (2006) and quoted in this chapter; second, one must review the actual historical context of the past century and the current realities of the Israeli-Arab conflict to understand the context of the ongoing conflict (Ashby & Malley-Morrison, 2007). With regard to claims and counterclaims, there is no factual support for the claim that the Israeli government and armed forces deliberately target Palestinian civilians. On the other hand, the avowed policies and actions of the Palestinian Authority and the militias operating within its territory have been to inflict as much damage as possible, given their current military capacities, on Israeli civilians. As for the historical context, space does not permit me to go into this question.

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Chapter One

these shells and by homicide bombers (Bleich, Gelkopf, & Solomon, 2003), all within the past decade, one may conclude that Israelis residing in all parts of the country have been exposed to recurrent terrorist attacks. According to findings based on the theory of relative risk appraisal, Israelis perceive themselves to be under terrorist attack (Marshall et al., 2007). Terrorism is defined here as: “Politically motivated violence, perpetrated by individuals, groups, or state-sponsored agents, intended to bring about feelings of terror and helplessness in a civilian population in order to influence decision-making and to change behavior” (Moghaddam, 2006, p. 9). The first part of this definition matches the intentions of the Palestinian Authority and its various paramilitary units from the time of Arafat’s arrival in Gaza to the present day. The second half of the definition matches the affective and behavioral response of large segments in Israeli society. This definition is also applicable to the abusive atmosphere in which battered women live and makes it possible to formulate a provocative analogy between (a) battered women who remain with their abusive partners because of the beliefs listed earlier, and (b) those Israelis who apply corresponding beliefs and practices in response to Palestinian terrorism.

The ideological response of Israelis to Palestinian attack The data summarized in this section were collected over the past decade on civilian residents of cities, towns or settlements in Israel and Judea and Samaria (Milgram, 2006; Milgram, 2007b; Milgram, 2007c, 2008a3) and on Israeli combat and rear echelon soldiers (Milgram, 2008b). Some of the data refer to differences between self-designated Left and Right Wing Israelis as to the causes of the Israeli-Palestinian conflict and the ways to resolve the conflict. The empirically-based beliefs of the Israeli Left Wing about this specific intractable ethno-national conflict are listed below; each belief is translated into the corresponding belief of women who remain in an intractable violent domestic relationship. These data show that participants who designate themselves as politically Left differed from the Right on in the following comparisons:

3

Some material and references in this paper, and particularly the closing Biblical commentary appeared in a paper (Milgram, 2008a) published in a Hebrew journal. The present chapter introduces topics and issues that were not dealt within the prior publication.


23

(a) The Israeli Left blames the Israeli government more and the Palestinians less for the current conflict and the tragic loss of life and limb on both sides. Translation: victims blame themselves for the suffering they experience at the hands of their aggressors. (b) The Israeli Left blames the Zionist movement and Orthodox Judaism for the so-called “racist” policies and actions of the past that created the refugee status of Palestinians 50 years ago and as a consequence, brought about the Israeli-Palestinian conflict. Translation: victims are blamed and are to suffer today because of the “original sin” committed by them or others associated with them in the distant past (e.g., grievances about past actions committed by victims or members of their family). (c) The Israeli Left insists that only negotiations will resolve the ArabIsraeli conflict, rejects out of hand military solutions in general, and condemns any actions by the Israeli army that cause injury and death to non-combatant Palestinians. Translation: the only solution to the domestic violence is negotiation and compromise with the abusive party. (d) The Israeli Left believes that answering violence with violence creates a circle of violence that is worse than before. Translation: confrontation, retaliation, punishing the society that nourishes and supports terrorist attack is counter-productive in the same way that aggressive actions by battered women against their violent partners will only make things worse. (e) The Israeli Left is ready to make concessions even at grave collective sacrifice to persuade the Palestinians to live with Israelis in peace. In the name of compromise and peace, the Left endorses punishing other victims of one’s own society, driving Israeli inhabitants of Gaza, Judea and Samaria from of their homes, destroying their communities, and ceding these areas to the Palestinian Authority. Translation: battered women place their lives and the lives of their children in jeopardy in order to achieve a period of quiet until the next act of aggression erupts. (f) The Israeli Left believes that when Israel makes these painful sacrifices, Palestinians and the other Arab nations will renounce violence. Translation: if battered women make enough compromises to their abusive partners, the battering will cease. (g) The Israeli Left (represented by a small organization aptly called “Peace Now”) believes that the transformation of terrorist and enemy to peaceful neighbor will be achieved quickly. Translation: the transformation of abusive partner or terrorist into loving partner or friendly neighbor will be immediate and permanent. (h) The Israeli Left believes that peace must be achieved with the Palestinians because it is intolerable that Israel continues to live by the sword and suffer world-wide opprobrium. Translation: any sacrifice is

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Chapter One

worthwhile to avoid the moral dilemma about using violence to deter violence and to avoid social disgrace. (i) The Israeli Left judges the behavior of Palestinians by a different standard than it applies to Israelis (Rubenstein, 2007). Extreme manifestations of Arab nationalism and Islamic fundamentalism are understandable; manifestations of these phenomena among Israeli Jews are reprehensible and must be exorcised. The actions of Israelis living in Judea and Samaria to defend their lives and property from attack are challenged, if not condemned outright. Translation: Arabs and men who abuse their female partners are by nature aggressive; by contrast, enlightened Israelis and battered women are different and must make allowances for those who harm them. Israeli Left-Right ideological differences are only of academic or pejorative interest unless it can be shown that these differences lead to different behavioral consequences. The following series of studies investigated the relationship between ideological measures and opposing kinds of behavioral intentions: endorsement of harsh retaliatory actions against Palestinian Arabs and readiness for social intimacy with Israeli Arabs.

Ideology, injury and intentions Two consistent findings emerge from studies over the past decade of civilian and military response to attack (Milgram, 2007b; Milgram, 2008b): (a) The extent of injury (to self, family, and/or friends) reported by participants is unrelated or weakly related to the severity of retaliation or punishment to be imposed upon Palestinian perpetrators (selective retaliation) and upon their communities (collective retaliation). Participants in these studies who reported many instances of personal and extended victimization were no different from participants who suffered few instances when it came to endorsing mild versus severe forms of retaliation against Palestinian terrorists and their supporters. (b) By contrast, participants’ ideology as assessed by political designation (Left-Right) and validating context-related ideological measures was consistently related to retaliatory intentions. Israelis, military and civilian, who identified themselves as Left rather than Right endorse more mild punishments for terrorists who caused injury and death (e.g., 30 years in prison versus the death penalty). Combat soldiers identified with the Left rather than the Right were more ready for social relations with Israeli Arabs (e.g., invite as guests to one’s home, have as residents in their neighborhood). The conclusion: ideology, not injury, determines one’s response to attack. This is true for battered women who remain in the abusive


25

environment versus those who leave. It is equally true for Israelis who are prepared to make great sacrifices and concessions in their search for peace versus Israelis who seek, by confrontation and military force, to punish terrorists and regimes that foster and rewards terrorism. Similar findings relating context-free ideological measures (e.g., strong adherence to moral imperatives and religious traditions, and weak appreciation of human diversity) to endorsement of military response rather than negotiation were found in American college students (Henderson-King, D., HendersonKing, E., Bolea, Koches, & Kaufman, 2004).

Four closing comments Confirming comment: The mass killers of modern times (Hitler, Stalin and Mao Zedong) were experts in persuading their followers that they were justified in killing their perceived enemy. These ideologically-driven aggressors committed monstrous acts against defenseless people in order to achieve their ideological ends. The same is true of terrorist organizations today (e.g., Al Qaeda, Fatach, Hamas, Hezbollah). Qualifying comment: It is important to stress that endorsement of large-scale, collective retaliation for perceived or actual attack is not alien to Western democracies. At the beginning of World War Two the United States placed thousands of American citizens of Japanese descent in internment camps; toward the end of the War, allied bombers caused the death of thousands of civilians in Dresden and other German cities that posed no military threat to the Western Allies. More recently, a nationwide study in the United States of public attitudes toward retaliation in violent conflict was conducted prior to and immediately after 9/11 (McAlister, Bandura, & Owen, 2006); people surveyed following 9/11 endorsed severe forms of collective retaliation against presumed terrorist and civilian targets in Afghanistan and Iraq than people polled before these horrendous terrorist attacks. Ethical comment: As researchers and professional interventionists, we are morally justified in condemning inhumanities committed by any individual, collective, or nation. We are morally and professionally committed to conduct research and to initiate psycho-educational programs to modify self blaming and other beliefs that sustain victimization, whether of battered women or of battered societies. Controversial comment: The Biblical story of Cain and Abel raises some of the ideological issues presented in this chapter. When we read the Agadot (legends) associated with the relevant biblical text (Leibowitz, 1966), we learn that the brothers make gift offerings to God, God favors

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Abel’s offering over Cain’s, and as a consequence the brothers have words, and Cain kills Abel. When God confronts Cain, the murderer shows no remorse or contrition. On the contrary, he responds with “Am I my brother’s guardian?” This is a rhetoric question to be answered in the negative. He is not his brother’s keeper. He is not responsible for his brother’s actions or the consequences of his own actions. Cain, like Abel, is a victim, the victim of circumstances beyond his control. Abel provoked him by unwisely competing with him for God’s favor. Second, God should not have played favorites. Third and most important, God created humans with emotions and he equipped Cain with strong emotions. If Cain did not have these emotions, he would not have become incensed and committed murder. God replies that humans have vile sordid passions as well as noble ones, but insists they have the capacity to control the former and are, therefore, responsible for their actions. This was the majority opinion of the commentators at the time, but there was a dissenting opinion that gave support for Cain’s arguments. A speaker voiced the same dissenting opinion at a symposium in which I participated (Center for Stress and Trauma Victims of Ethno-National Conflict, 2004, December 20). The symposium, titled Trauma in National Crisis: Rupture and Hope, dealt with the anticipated uprooting of 8000 Israelis from their homes in Gush Katif (Gaza Strip). The symposium was, in effect, dealing with the Biblical brothers, Cain represented by the Israeli government, and Abel by the Jewish settlers in the Gaza region who would be uprooted by force if necessary and whose communities would be leveled to the ground. The speaker’s opinion was that the contemporary Cain and Abel were both victims of the human condition; it was as much Abel’s fault as it was Cain’s, and ultimately the fault lay in human nature. The speaker was saying that people in general and people who perpetrate violent acts in particular are no more responsible for their violent actions than are their victims. By implication, the speaker places the victims discussed here - Abel, battered women, and Israeli civilian casualties of indiscriminate terrorist attack - on the same moral plane as Cain, battering husbands, and homicide bombers, respectively. My ideological bias is apparent: People are responsible for their decisions and their subsequent actions without regard for the circumstances prevailing at the time; they also bear the consequences of the decisions and actions of their leaders.


27

References Abu Toameh, K. (2007, October 25). Three women killed in ‘honor’ slayings. The Jerusalem Post, p. 4. Adorno, T. W., Frenkel-Brunswik, E., Levinson, D. J., & Sanford, R. N. (1950). The authoritarian personality. New York: Harper. Ali, K. (2003). Muslim sexual ethics: honor killings, illicit sex, and Islamic law. Research report: Feminist Sexual Ethics Project. Waltham, MA: Brandeis University. Apter, D. E. (Ed.) (1964). Ideology and discontent. New York: Free Press. Ashby, M., & Malley-Morrison, K. (2007). Attitudes toward war in the Middle East from an extremism model perspective. International Psychology Bulletin, 11, 8-14. Bandura, A. (1999). Moral disengagement in the perpetration of inhumanities. Personality and Social Psychology Review, 3, 193-209. Baumeister, R. F. (1991). Meanings of life. New York: Guilford Press. Bies, R. J., & Tripp, T. M. (2001). A passion for justice: The rationality and morality of revenge. In R. Cropanzano (Ed.), Justice in the workplace: From theory to practice, Vol. 2, (pp. 197-208). Mahwah, NJ: Lawrence Erlbaum. Bleich, A., Gelkopf, M., & Solomon, Z. (2003). Exposure to terrorism, stress-related mental health symptoms, and coping behaviors among a nationally representative sample in Israel. Journal of the American Medical Association, 290, 612-620. Bornstein, R. F. (2006). The complex relationship between dependency and domestic violence: Converging psychological factors and social forces. American Psychologist, 61, 595-606. Brison, S. J. (1993). Surviving sexual violence: A philosophical perspective. Journal of Social Philosophy, 24, 5-22. Cardi, M., Milich, R., Harris, M. J., & Kearns, E. (2007). Self-esteem moderates the response to forgiveness instructions among women with a history of victimization. Journal of Research in Personality, 41, 804-819. Center for Stress and Trauma Victims of Ethno-National Conflict (2004, December 20). Symposium on Trauma in Civil Conflict: Rupture and Hope. Tel-Aviv: Author (In Hebrew). Converse, P. E. (1964). The nature of belief systems in mass publics. In D. E. Apter (Ed.), Ideology and discontent (pp. 206-261). New York: Free Press. Chronister, K. M. (2006). The intersection of social class and race in community intervention research with women domestic violence survivors. American Journal of Community Psychology, 37, 175-182.

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Chronister, K. M., & McWirther, E. H. (2003). Women, domestic violence and career counseling: An application of social cognitive career theory. Journal of Counseling and Development, 81, 418-424. Chronister, K. M., & NcWirther, E. H. (2004) Ethnic differences in battered women’s perceptions of career barriers and supports: A pilot study. Journal of Career Assessment, 12, 169-187. Enright, R. D., & Coyle, C. T. (1998). Researching the process model of forgiveness within psychological interventions. In E. L. Worthington, Jr. (Ed.), Dimensions of forgiveness: Psychological research and therapeutic perspectives (pp. 139-161). Radnor, PA: Templeton Foundation Press. Figueredo, A. J., Corral-Verdugo, V., Frias-Armenta, M., Bachar, K. J., McNeill, P. L., Kirsner, B. R., & Castell-Riz, I. (2001). Blood solidarity, status and honor: The sexual balance of power and spousal abuse in Sonora, Mexico. Evolution and Human Behavior, 22, 295-328. Frijda, N. H. (1993). The lex talionis: On vengeance. In S. H. van Goozen, N. E. van de Poll, & J. Sargent (Eds.). Emotions: Essays in emotions (pp.263-289). Hillsdale, NJ: Lawrence Erlbaum. Gelernter, D. (1998). What do murderers deserve in a responsible society? Vengeance has its virtues. UTNE Reader, 1999, pp. 52-53 (taken from Commentary, April, 1998). Gordon, K. C., Burton, S., & Porter, L. (2004). Predicting the intentions of women in domestic violence to return to partners: Does forgiveness play a role? Journal of Family Psychology, 18, 331-338. Haj-Yahia, M. M. (1998). Beliefs about wife beating among Palestinian women: The influence of their patriarchal ideology. Violence against Women, 4, 533-558. —. (2002). Beliefs of Jordanian women about wife-beating. Psychology of Women Quarterly, 26, 282-291. —. (2005). Can people’s patriarchal ideology predict their beliefs about wife abuse? The case of Jordanian men. Journal of Community Psychology, 33, 545-567. Hazony, Y. (2000). The Jewish State: the struggle for Israel’s soul. New York: Basic Books (Perseus Books Group). Henderson-King, D., Henderson-King, E., Bolea, B., Koches, K., & Kauffman, A. (2004). Seeking understanding or sending bombs: Beliefs as predictors of responses to terrorism. Peace and Conflict: Journal of Peace Psychology, 10, 67-84. Hobfoll, S. E. (1989). Conservation of resources: A new attempt at conceptualizing stress. American Psychologist, 44, 513-524.


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Hyden, M. (1995). Verbal aggression as prehistory of women battering. Journal of Family Violence, 10, 55-71. Jacoby, S. (1985). Wild justice: The evolution of revenge. London: Collins. Johnson, L. M., Mullick, R., & Mulford, C. L. (2002). General versus specific victim blaming. Journal of Social Psychology, 142, 249-263. Jost, J. T. (2006). The end of the end of ideology. American Psychologist, 61, 651-670. Kerlinger, F. N. (1984). Liberalism and conservatism: The nature and structure of social attitudes. Hillsdale, NJ: Lawrence Erlbaum. Lane, R. E. (1962). Political ideology. New York: Free Press. Launius, M. H., & Lindquist, C. U. (1988). Learned helplessness, external locus of control, and passivity in battered women. Journal of Interpersonal Violence, 3, 307-318. Leibowitz, D. (1966). Studies in the book of Genesis: in the footsteps of early and late commentaries. Jerusalem: World Zionist Organization Department of Torah Education and Culture in the Diaspora (In Hebrew). Marshall, R. D., Bryant, R. A., Amsel, L., Suh, E. J., Cook, J. N., & Neria, Y. (2007). The psychology of ongoing threat: Relative risk appraisal, the September 11 attacks, and terrorism-related fears. American Psychologist, 62, 304-316. McAlister, A. L., Bandura, A. & Owen, S. V. (2006). Mechanisms of moral disengagement in support of military force: The impact of Sept. 11.Journal of Social and Clinical Psychology, 25, 141-165. McCollough, M. E. (2000). Forgiveness as human strength: Theory, measurement and links to well-being. Journal of Social and Clinical Psychology, 19, 43-55. McCollough, M. E., Pargament, K. I., & Thoresen, C. E. (Eds.) (2000). Forgiveness: Theory, research, and practice. New York: Guilford Press. Milgram, N. (1998). Therapist handling of retribution, forbearance, and forgiveness themes in criminal victimization. Research Report. TelAviv University. —. (2006). Ideology, injury and intentions in Israeli civilians exposed to terrorist attack. Research Report. Ariel University Center of Samaria (In Hebrew). —. (2007a). Beliefs of battered women: Infinite tolerance for interminable violence. In A. L. Comunian & R. Roth (Eds.), International perspectives in psychology (pp. 141-146). Achen, Germany: Shaker Verlag. —. (2007b). Ideological warfare in the West: Left and Right ideologues in Israel. In A. L. Comunian & R. Roth (Eds.), International perspectives in psychology (pp. 405-412). Achen, Germany: Shaker Verlag.

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—. (2007c). Le syndrome de la gauche Israelienne [The syndrome of the Israeli Left]. Revue d’idees controverses, 4, pp. 346-360. (In French) —. (2008a). The power of ideology: The case of Left versus Right Wing ideology in Israel. Social Issues in Israel, No. 6, 157-161 (In Hebrew Journal). —. (2008b). The effect of conflict-related injury and conflict-related ideology on retaliatory and conciliatory intentions of Israeli soldiers. Research Report. Ariel University Center of Samaria (In Hebrew). Minow, M. (1998). Between vengeance and forgiveness. Boston MA: Beacon Press. Mir-Hosseini, Z. (1993). Marriage on trial: A study of Islamic family law, Iran and Morocco compared. London: I.B. Tauris & Co. Moghaddam. F. M. (2006). From the terrorists’ point of view. London: Praeger (Greenwood Publishing). Nabi, R. L., & Horner, J. R. (2001). Victims with voices: How abused women conceptualize the problem of spousal abuse and implications for intervention and prevention. Journal of Family Violence, 16, 237-253. Pettigrew, T. F. (2003). Peoples under threat: Americans, Arabs, and Israelis. Peace and Conflict: Journal of Peace Psychology, 9, 69-90. Resnick, J. L. (2001). From hate to healing: Sexual assault recovery. Journal of College Student Psychotherapy, 16, 43-63. Rokeach, M. (1968). Beliefs, attitudes and values. San Francisco: Jossey-Bass. Rubenstein, A. (2007, January 9). The silence of the Left. The Jerusalem Post, p. 14. Rubinstein, L. S. (2004). What is battered women’s syndrome? Retrieved August, 4, 2008, from http://www.divorcenet.com/states/oregon/or_art02 Sadik, N. (2007, November 30). Domestic violence – breaking the cycle. Jerusalem Post (Metro Section, p. 18). Schoenfeld, C. G. (1966). In defense of retribution in the law. Psychoanalytic Quarterly, 35, 108-121. Seton, P. H. (2001). On the importance of getting even: A study of the origins and intention of revenge. Smith College Studies in Social Work, 72, 77-97. Simpson, K. (1998). The victim’s dilemma: If forgiveness is divine, then why does revenge feel so sweet? UTNE Reader, 1999, pp. 54-55 (taken from The American Scholar, Summer Issue). Smedes, L. B. (1984). Forgive and forget: Healing the wounds we don’t deserve. New York: Harper & Row. Strang, H. (2002). Repair or revenge: Victims and restorative justice. Oxford: Oxford University Press.


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Tedin, K. L. (1987). Political ideology and the vote. Research in Micropolitics, 2, 63-94. Thompson, M. (2000). Life after rape: A chance to speak? Sexual and Relationship Therapy, 15, 325-343. Vidmar, N. (2001). Retribution and revenge. In J. Sanders & V. L. Hamilton (Eds.), Handbook of justice research in law (pp. 31-63). New York: Kluwer Academic/Plenum Publishers. Waldmann, P. (2001). Revenge without rules: On the renaissance of an archaic motif of violence. Studies in Conflict & Terrorism, 24, 435-450. Warren, J., & Lanning, L. (1992). Sex role beliefs, control, and social isolation of battered women. Journal of Family Violence, 7, 1. Weiss, R. S. (1986). Will it always feel this way? For the parent whose child has been killed by a drunk driver. Irving, TX: Mothers Against Drunk Driving (MADD). Witviliet, C. V., Ludwig, T. E., & Vander Laan, K. L. (2001). Granting forgiveness or harboring grudges: Implications for emotion, physiology, and health. Psychological Science, 121, 117-123. Women’s Rural Advocacy Programs (2007). Why women stay: the barrier to leaving. Retrieved August 4, 2008, from http//www.letswrap.com/dvinfo/whystay.htm. Worthington, E. L., Jr. (Ed.) (1998). Dimensions of forgiveness: Psychological research and theological perspectives. Radnor, PA: Templeton Foundation Press. Young, M. A. (1988). The crime victims’ movement. In F. M. Ochberg (Ed.), Post-traumatic therapy and victims of violence (pp. 319-329). New York: Brunner/Mazel.

CHAPTER TWO AN INFORMAL APPROACH TO DELINQUENTS AND THEIR VICTIMS: AN ALTERNATIVE TO STANDARD PUNISHMENT URI TIMOR

Abstract This chapter questions the standard objectives of punishment, and proposes different objectives and alternative methods of coping with a growing number of incidents of delinquency. These methods are based on practices developed in traditional Jewish society and in other traditional societies which have used restorative practices. I propose the transfer of a significant portion of responsibility for dealing with delinquents and their victims to the informal social order. As is customary in the traditional Jewish community, there would be a focus on teaching normative behavior, helping and handling the weak and underprivileged members of the community, and on primary prevention of delinquency in its midst. Delinquent occurrences would mainly be handled by restorative justice proceedings in order to repair the physical and emotional damage caused to the victims. The delinquent would acknowledge his/her responsibility, and would be rehabilitated within the community, thus avoiding stigmatization.

Introduction There is a widespread feeling of frustration with the performances/activity of the law enforcement system, especially in association with the criminal justice system. Again and again we find that the system is unable to cope

An Informal Approach to Delinquents and their Victims

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with steadily increasing crime rates. Its sanctions are not effective and it does not pay attention to the needs of the victims. This chapter proposes an alternative way of dealing with the increasing crime problem. It opens by describing the shortcomings of the current criminal justice system and then suggests an alternative approach based on communal and informal social control. It proposes the adoption of some aspects of traditional Jewish society and from restorative justice practices to prevent crime to begin with, and to handle criminals in a constructive manner in cases where prevention has failed.

Minimizing informal social control and the weakening of the community in modern society Numerous traditional societies around the world had high community involvement and social solidarity, as well as significant social control (Weitekamp, 1999). In the 19th century and at the beginning of the 20th century, parallel to the processes of industrialization and urbanization, a decrease in the power of the communities began, as did a subsequent reduction in the commitment of its members toward the community (Wollmann, 2006). Residents of rapidly growing cities were characterized by increasing heterogeneity, anonymity, and social alienation (Wirth, 1938). Interpersonal relations became more superficial and less binding, which subsequently weakened the power of the families and the communities to influence and educate their children. One of the outcomes of this reality was the rise in juvenile delinquency (Kornhauser, 1978). Modern society, mainly urban society, is often characterized by a high level of social alienation and a low level of social accountability. This reality has been explained by the social integration theory in urban neighborhoods. According to that theory, as the city’s population grew, people became strangers to each other. The sense of community weakened along with the partnership in values and social commitment. One of the outcomes was a high level of delinquency (Shaw & McKay, 1969). This theory was made more nuanced at the end of the 20th century with the addition of references to the influences of political factors in the social disintegration processes (Bursik & Grasmick, 1993; Goode, 2001). Darley and Latane (1968) explained the tendency of individuals in an alienated society to deny accountability to others by diffusion of responsibility, so that none of the individuals see themselves as responsible for what is happening around them.

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Aggravation of the formal punishment The late 20th century saw the acceleration of a trend developed in the United States and subsequently in other countries. There was a transition from an inclusive society which sees importance in the social and economic integration of all its members, including the deviants, to an exclusive society. The exclusive society responds to deviation within it with ostracism and exclusion from social activity and the workforce, and even from social services such as medical care, housing and security (Young, 2002) The authorities adopted liberal and neo-liberal approaches in the spirit of the exclusive perspective, claiming that the welfare society approach no longer applies to our times. In their opinion, this was meant to ensure social integration for marginal groups in society. In effect, it created a low, dependent and delinquent class culture, whose members lacked the desire to adapt themselves to social requirements, to go out into the workforce and take responsibility (Murray, 1984). This development is also explained with disappointment from the outcomes of the penal policy, which was accepted in the mid 20th century, and which gave preference to the rehabilitation of criminals. It was formed after the publishing of research reports, which indicated the inefficacy of the criminal rehabilitation programs; particularly after the publishing of the Martinson Report (Martinson, 1974). In this report, Martinson claimed that a rigorous examination of rehabilitation programs showed that there were no differences in recidivism between criminals who received rehabilitative treatment and those who did not. According to Martinson, none of the programs which were examined actually contributed to criminal rehabilitation (nothing works!).1 Pragmatically, in the United States and in other countries, stricter and more intolerant punishment was developed as a suitable retaliation for criminal behavior. These were based on the severity of the crime alone, by using mottos such as “zero tolerance” and “just desert” (von Hirsch, 1976). This policy was based on the assumption that imposing stricter punishment and ostracizing delinquents from society would bring about law and order in society, and decrease the suffering that criminals cause to law-abiding citizens. The Broken Windows theory was developed based on this perspective (Wilson & Kelling, 1982), according to which the authorities must react immediately and gravely to every violation of the law, regardless of its severity. The theory’s influence led to the increased 1

Many researchers who examined criminal rehabilitation programs do not agree with Martinson’s extreme conclusions, and point to the rehabilitative potential of various programs (Hollin, 1999; Palmer, 1975).


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use of imprisonment. A “three strikes and you are out” policy was developed in many states in the U.S., where a third conviction dictates a prolonged incarceration, even as long as life imprisonment (Austin, Clark, Hardyman & Henry, 1999). According to this perspective, excluding criminals and other people considered dangerous, and imprisoning them in detention houses and jails can ensure the community’s safety and security (Beckett, 1997). The authorities approached delinquency in this way, and it was manifested, as stated, in strict formal punishment.

Types of formal punishment Since types of formal punishment are seen as a central tool in social control, a discussion of its various approaches, characteristics and social implications is relevant.

Retributive punishment The development of strict retributive punishment in the United States and in certain countries in Western Europe won ideological philosophical support by applying the perspectives of thinkers such as Kant and Hegel, whose thinking seemed suitable for the new policy. The principle of retribution is based on a deontological approach (Duff & Garland, 1994), which requires a balance between crime and punishment. Since the calculation of this type of balance is virtually impossible, Walker (1991) recommends discussing proportionality. According to the social contract perspective, it can be claimed that all of us have mutual rights and obligations. In contrast to law-abiding citizens, the criminals upset the balance between obligations and rights and subsequently obtain advantages and gains illegally. Punishment and incarceration of the criminals cause them damage which neutralizes the advantages they gained illegally. Therefore, it allegedly restores the balance to its state prior to the criminal act.

Critique of retributive punishment A precondition to punishment is equal and fair treatment to all. In a society that discriminates between rich and poor, and between black and white, and in which citizens do not receive equal and fair treatment, there is no balance to begin with. If there is no balance at the outset, one could rightly ask what it is that punishment is allegedly meant to restore. The laws and the obligations make it more difficult for the disadvantaged

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Chapter Two

social strata, which are socially deprived from the start. Studies in different countries prove that punishing delinquents from the underprivileged strata exacerbates social inequality (Fajnzylber & Lederman, 2000; Murphy, 1973). Studies also show that socioeconomic status, race and ethnic origin influence the arrest, conviction and punishment of an offender, where offenders from the lower socioeconomic statuses and the ethnic minorities have a higher chance of being convicted and imprisoned (Hood & Cordovil, 1992; Reiman, 1998). These claims question the legitimacy of the criminal system and of retributive punishment in particular. In fact, penal justice and fair trial are possible only when there is social justice and a more equitable distribution of social resources (Arrigo, 1999; Rawls, 1980). According to the retributive approach, deterring the offenders or changing or rehabilitating them are irrelevant to punishment. The delinquent must be punished according to the requirement of absolute justice and according to the interest of society as compensation for the damage caused to it. The aspiration to justice is an abstract concept and not given to objective quantification. This type of punishment does not compensate the victim and society with regards to physical or economic losses that they suffered. Concurrently, it also does not contribute to the rehabilitation of the criminals, both with regards to their status in society and to their future as positive persons, and occasionally even exacerbates their delinquency. In fact, there is no objective criterion to determine what punishment the offender deserves. The concept of “Just Deserts” expresses an emotional reaction at best, but not a suitable and scalable solution to crime. The aspiration for revenge is a natural human attribute. It is a manifestation of a primordial human ambition to harm and hurt whoever harms you. The victims want to make victims of their offenders (Jones, 2003). The retributive penal perspective does not rule out this emotional aspiration, but regulates it and gives it legal legitimacy. Many perceive the criminal justice system as a tool that makes revenge possible for the individual victim and society against those who have wronged them (Jacoby, 1983; Ledewitz & Staples, 1993). The criminal justice system often satisfies this aspiration using severe punishment (Ibid). The problem is that the punished frequently see themselves as victims as well, whether due to the circumstances of the difficult life that lessened their options of succeeding in legitimate ways, or whether because of the punishment, arbitrary in their eyes, with which they have been burdened. The offenders may then respond with a repeated stab at society, and the cycle continues (Gavin, 2005). The strain theory explains such behavior, in that people who feel


37

they have been denied basic rights are likely to experience frustration and depression that push them to engage in crime as revenge against the individuals and society which did not treat them properly (Agnew, 2000).

Deterrent punishment Deterrence focuses on the aim of punishment and not on its causes. Similar to preventive punishment, rehabilitative punishment and victim compensation, deterrence anticipates the future and attempts to improve it. This is in contrast to retribution, which refers to the offender’s past actions. According to the deterrent model, justifiable punishment is measured according to its outcomes, which are meant to reduce the specific offender’s criminal acts and to deter other potential offenders from committing similar crimes. This objective is based on the presumption that the criminals are rational human beings with free choice, who will therefore weigh the gains and losses that the act would entail prior to committing a crime. The presumption is that if the price of the crime (anticipated punishment) is higher than the anticipated gain, the criminal will forcibly abstain from committing the crime (Beccaria, 1995; Bentham, 1997).

Critique of deterrent punishment The penal system, according to the deterrent perspective, may impose heavy and severe punishments on convicted persons not only to deter them and others from being involved with crime but also punish innocent people in order to deter the masses (Hart, 1968). An additional shortcoming of deterrent punishment of the individual is the social stigma that accompanies it, which is frequently not abolished even after the person has been deterred and has ceased committing crimes (Shoham & Rahav, 1983). The stigma theory explains why it is difficult for a person punished by the criminal justice system to go back to a normative life. Labeling the former criminals, for example, preserves their personal image as deviants and prevents them from exploiting legal opportunities. As a result, it excludes them from normative society and forces them to associate with other criminals (Ibid). Studies from different countries show that specific types of punishment, such as prison, often do not deter the offenders and do not teach them a lesson (Gendreau, Goggin & Cullen, 1999; Morgan, 1997). Prison is not an institution that qualifies the offender to be more normative, since its negative influences override its positive ones (Allen, 1981; Hallett, 2002).

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This critical approach sees prison as an institution that teaches techniques and attitudes which justify crime and the criminal lifestyle, and which actually launches the incarcerated one on a criminal career. Another critique is related to gain and loss considerations. Delinquents do not often weigh the price of the crime in a rational manner. Criminals are not always aware of the punishment and usually believe that they will not be caught. Moreover, expressive crimes are often motivated by emotional outbursts such as anger and not by rational considerations (Chambliss, 1967), and therefore are not affected by rational considerations. Formal punishment in general deters only some of us to a certain extent, and mainly those who conform to standard norms (Sherman, Smith, Schmidt & Rogan, 1992). A more effective deterrent than punishment is the reaction of significant others whose opinion matters to us. A reaction that is related to informal control such as shame or threat to our reputation is more of a deterrent than punishment (Braithwaite, 1989). Many educators and criminologists claim that we do not obey the law because of selfish instrumental claims or fear of punishment, but that we acknowledge the ethical justification of the law and appreciate the people who have made these laws (Kohlberg, 1979; Hirschi, 1969).

Preventive punishment The critique regarding the costs and benefits of the various types of punishment such as retributive, deterrent and rehabilitative have contributed to the development of preventive punishment, whose purpose is to exclude the criminals from society and prevent them from harming society again. This punishment is currently manifested mainly in incarceration.

Critique of preventive punishment Prevention focuses on the good of non-criminal society. It is not interested in deterring or rehabilitating criminals. Excluding them from society for a specific period will ensure that society is not harmed during this period. From this perspective, it is possible that the punishment that will be imposed upon them will be severe and disproportionate to the crime they committed, since it not only refers to the crimes they committed but also to the theoretical crimes that they might commit if they will not be imprisoned for a lengthy period. In fact, such prevention entails a double punishment, since the criminals are punished both for the crimes that they committed and for the crimes they have not yet committed, based


39

on the assessment that they will commit them if they are not locked up. The ethical question here is whether it is fair to punish people for crimes that they have not yet committed (Monahan, 1981). This ethical question entails technical problems; we cannot predict the risk level that a person will indeed commit additional crimes (Stone, 1985). The effectiveness of preventive imprisonment is also in question, as mentioned above. Imprisonment usually ends with the convict’s release. A lengthy incarceration may also cause convicts various types of damage that will affect both their life and their surrounding society after their release. Convicts lose some of the life skills they had prior to their imprisonment. During this long period they lose their proficiency in different domains and become often passive and unproductive (Camp, Gaes, Langan & Saylor, 2003; Goffman, 1961). The convicts also develop relationships with other criminals, and are exposed to criminal culture and criminal perspectives and learn various criminal techniques (Ibid and Sutherland & Cressey, 1970). Totalitarian institutions such as mental hospitals and prisons contain people unfit to fulfill the freedom and responsibility required of them in modern western society (Rotenberg, 1983). In prison, the convicts - who have inferior social and moral skills to begin with – often, lose more of their meager skills, and they will have an even more difficult time managing independently as law-abiding citizens when they are released and return to society (Visher & Travis, 2003). In addition to losing coping skills, the released prisoners are often faced with social alienation and rejection from society, which is dubious of them, does not want to get close to them and is unwilling to employ them (Maruna & Le Bel, 2003). As a result of these factors, a high percentage of released convicts returns to crime and is re-incarcerated, Studies report that more than half of inmates released from prison in the United States are re-imprisoned within three years of their date of release (see Camp & Camp, 1997). In Israel, more than 60% of all criminal convicts in prison are repeat offenders (Timor, 2006). Imprisonment does not affect convicts alone. Its effects are also hard on their family members, and mainly on their children who suffer physical and emotional damage both from an absent parent and from the way society treats them (see Murray, 2005), and it significantly increases their chances of becoming delinquents themselves (Reed & Reed, 1997).

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Rehabilitative punishment Another objective of future-aimed punishment is the rehabilitation of criminals. Freudian psychology, followed by the psychodynamic approach, saw a person’s criminal behavior as the result of unconscious conflicts originating in early childhood. This approach is partially deterministic, since according to it certain behaviors do not depend on the individual’s choices: “criminal behavior is often the outcome of fantasies, fears and defenses originating in early childhood, and which the individual does not have conscious control over” (Hospers, 1996, p. 27). However, appropriate psychological therapy may help individuals understand and cope with their problems, and abstain from criminal acts. A consequence of this approach is that punishment must take the individuals’ special psychological circumstances into account, and not punish them too harshly in certain cases.2 In the 1940’s, 50’s and 60’s, rehabilitation and therapy became central goals of punishment. The premise was that it is possible to rehabilitate criminals by giving them group or individual therapy, such as vocational training programs, drug or alcohol rehabilitation programs, etc. (Amos & Wellford, 1967). The belief in rehabilitation was undermined after the Martinson Report (1974) was published. Palmer critiques Martinson’s conclusions, claiming that there is no one rehabilitation program that will help all delinquents (Palmer, 1975). A rehabilitation program can be very effective for a specific type of criminal and fail with another type. Moreover, it is not possible to rehabilitate criminals who do not want to be rehabilitated. According to Palmer (1975), rehabilitation programs help certain criminals who are suited to and interested in rehabilitation. Therefore, in his opinion, there is no value in imposing therapy or rehabilitation on the criminal. The Israeli Prison Service reached a similar conclusion in recent years, that it is pointless to invest in rehabilitation programs for all the inmates, including those that are not suited and lack motivation. Therefore, when it defined its goals, it chose to write the following “… giving remedial tools to all the inmates suited to this, in order to improve their ability to fit into society upon their release” (The Prison Service, 1998). Toward the beginning of the 21st century, the use of rehabilitative and therapeutic models came back in vogue somewhat, 2

In The Proposal for Penal Law Amendment - Structuring Judicial Discretion in Sentencing, Jerusalem, (Ministry of Justice, 1997) the following extenuating psychological circumstance was proposed, “The crime was committed in a state resulting from a severe psychological disorder in which the accused’s capability was significantly limited.”


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either as an antithesis to the retributive punishment policy that spread in the United States and to the rapid growth of the inmate population there (Seiter & Kadela, 2003), or from the presumption that giving cognitive and social skills will enable the delinquents to constructively cope with the outcomes of their actions, and change their attitudes and misguided presumptions about the world around them (Hollin, 1999). Concurrently, the medical model has returned with theories related to biological determinism and treatment programs based upon these theories. These theories connect sex offenses and violent offenses with the various levels of hormones in the body (such as testosterone). According to these theories, as long as we do not treat the hormonal problems of such offenders, we will not be able to relate to them as having free choice, and we will therefore not be justified in punishing them. Also, according to these theories, chemical therapy is necessary to improve the behavior of sex offenders and violent offenders (Kafka, 2003). This type of treatment enables them to control their sexual obsession or violence; therefore, in certain countries it is a precondition for releasing such offenders from prison. In recent decades, researchers have reported the detection of certain genetic codes associated with violent behaviors (Brunner, Nelen, Breakefield, Ropers & Van Oost, 1993; Jones, 2003). According to these reports, a portion of certain human behaviors may not be subject to free choice, and therefore it will not be justified to punish offenders for these behaviors but rather to treat them in order to free them, if possible, from obeying antisocial genetic codes. It is reasonable to assume that in the future more kinds of deviant behavior will be recognized as affected by hormones or genetic codes. The sociological study also attests to a certain degree of social determinism. For example, individuals who spent their formative years in poor socioeconomic conditions, including exposure to high levels of violent crime, will have habits and motivations were formed by these conditions. As a result, their self-control over these behaviors will be limited (Kadish, 1987). In fact, as long as their life conditions have not improved and their perspectives have not changed, we cannot refer to them as having high levels of free choice, and it will be unfair to punish them as we would punish criminals who grew up in good socioeconomic conditions (Jones, 2003).

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Compensating the victims, repairing the damages and rehabilitating the offenders The formal justice system usually ignores the victims’ needs just as it ignored the offenders’ needs before they committed any crimes. The system often sees the state and its laws as the principal victims of crime and thereby ignores the physical and psychological damage caused to the victims. The system gives many fines as punishment, paid to the state treasury, and seldom gives punishments that require the offenders to compensate their victims (Fattah, 2000). The damage caused to the victims is usually material, but it is often also psychological. It includes loss of psychological confidence, caused not only in cases of physical assault such as rape, but also resulting from breaking and entering and the subsequent invasion of privacy (Kearon & Leach, 2000). Victims often feel ashamed, guilty, and feel a loss of self-confidence and a recurring sense of victimization when the court questions their credibility and does not relate to their needs (Montada & Lerner, 1998). Additional victims who are indirectly harmed by the crime are the victims’ relatives, the community and the state. The crime victims are surrounded by neighbors and friends who have also been hurt either emotionally or economically. The criminals’ families, their parents, children, and spouses also suffer from the crime and the offenders’ incarcerations. The crime damages the environment in which it occurs. It damages the quality of life, lowers property values, and occasionally also causes residents in the stricken neighborhood to abandon it and move elsewhere. The taxpayer also suffers. The law enforcement authorities are forced to invest money, time and labor to catch the offenders, arrest them, and process them through the criminal system. The crime also damages the criminals themselves, of course. Their punishment and imprisonment causes them to lose their jobs, sustain economic losses and stigmatization. Stigmatizing the criminals as former convicts increases, as stated, their chances of repeating their mistakes. It is actually possible to deal with the rehabilitation of criminals immediately after their conviction within closed therapeutic frameworks that focus on the specific problems of various types of criminals, such as drug addicts, violent offenders and sex offenders. It is possible currently to contribute to the rehabilitation of such criminals by using extensive professional knowledge that has accumulated over time in Israel and various other countries. Countries such as Germany, the United States, England and Scandinavia have a range of public and private treatment programs, such as behavioral, cognitive or socio-therapeutic programs


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which are relatively successful in coping with convicted offenders with relative success, some within the prison system and some in special institutions outside the prisons (Bollinger, 2002; Friendship, Blud, Erikson & Travers, 2002; Rawlings, 1999; Schweitzer, 2003). In Israel, special prisons for the exclusive treatment of unique convict populations such as juveniles, drug-addicted convicts, and domestic violence offenders have begun to appear in recent years. The intermediate assessment regarding the efficacy of therapy in such a structure is positive (The Prison Service, 2003, Weisburd et al, 2005). This developmental direction gives delinquents a chance to break the cycle of crime. In summary, acknowledging the damages caused to the victims, the offenders, their families, their communities, and to every other third party by means of a policy of compensation, correction and rehabilitation, is preferable with regard to the good of society over retributive punishment, deterrence and exclusion. Treating, compensating and rehabilitating the victims, treating the indirect victims and even the criminals may correct, or at least minimize, the damages ensuing from the offenders’ crimes. This will make it possible for the victim to be empowered and rehabilitated, repairing the damages to the secondary victims, and the positive integration of the criminals into community life. All this on the condition that they have acknowledged the outcomes of their actions, repaired the damages they have caused the victims and the community as much as possible and committed themselves to abstaining from further crime.

Interim conclusion The damages of standard punishment outweigh its benefits. Delinquency in Israel and in other countries is increasingly on the rise3 (Israel Police, 1987-2007; Garland, 2001). Those who are occasional criminals frequently become recidivists. The standard punishment stigmatizes the delinquents and thereby minimizes their chances of rehabilitation. When it sends offenders to prison, it also causes them to lose the skills they will

3

In the 20 years between 1986 and 2006 the level of crime in Israel rose, based on the number of investigation files that the police opened, from 5,250 for every 100,000 residents, to 5,710 per 100,000 residents – a relative increase of 11.4% (Israel Police, 1987-2007). Referring to the dark figures of crime, the Crime Victimization Survey, 2001 reveals that the number of offenders against households in Israel rose by 10% between the years 1990-2000 (Central Bureau of Statistics, 2002).

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need to live as law-abiding citizens in the future. This kind of punishment has also caused the inequality in society to rise. The responsibility of dealing with delinquency falls on the formal control agent and the formal penal system. Both of them focus on punishing the criminals and largely ignore the direct and indirect crime victims, which are not usually represented in trial, and are not usually awarded fair compensation for the damages they have incurred. Concurrently, social and community control, which has a higher potential of preventing delinquency, is increasingly diminishing (Hirschi, 1969; Elliott, Huizinga, & Ageton, 1985).4 This social control, which did not prevent the delinquents’ fall to crime, is not required to give an account of its failures, improve its functioning and commit to more effective preventive behavior in the future. Convicts suffering from learning disabilities or attention deficit disorders can pose as an example of the detriments of criminal punishment. Seventy percent of all the criminal inmates in Israel suffer from learning disabilities or from attention deficit disorders, compared to only 10-15% among the entire population in Israel (Einat & Einat, 2008), and similar statistics in other countries such as Sweden (Lindgren, Jensen, Dalteg, Meurling, Ingvar & Levander, 2002). This finding allows us to conclude with a high probability, that there is a correlation between learning disabilities and attention deficit disorders and delinquency. Indeed, numerous studies show that learning disabilities and attention deficit disorders are risk factors for future delinquent behavior (Kirk & Reid, 2001; Moody, Holzer, Roman, Paulsen, Freeman, Haynes & James, 2000; Samuelsson, Herkner & Lundberg, 2003), since their disabilities have not been properly diagnosed or their unique learning requirements have not been adequately met (Seeman, 1999). If this is the case, then the responsibility for their fall to delinquency can be placed not only on them but also on the social frameworks in their communities, which did not pay sufficient attention to their objective difficulties (Ibid), and also often labeled them as emotionally disturbed or intellectually challenged (Ritchie, 1986). Later in life, when some fall into delinquency, they are brought to trial and penalized with punishments whose damages outweigh their benefits. In prison they are exposed to criminal influences that exacerbate their delinquency. They are labeled as criminals, which makes 4

Regarding this issue, the sociologist Edwin Sutherland said already in 1924 that the control of deviant behavior depends mainly on the influence of the group in which the person is a member – “Not the fear of punishments imposed by law enforcement representatives is what deters the individual, but the fear of losing status in his group” (Sutherland, 1924, p. 374).


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it difficult for them to integrate into normative society, and their objective attention deficit or learning disorders are not treated appropriately. This penal response is not only unfair, it is also detrimental in that it perpetuates their delinquency and contributes to society’s continued disassociation from the responsibility of attending to the needs of individuals with functional difficulties in society.

Alternative treatment of law-breaking behavior as treated by the community and informal control The criticism of the outcomes of the formal penal system’s actions has resulted in calls to strengthen the informal control, to transfer authorities to extra-governmental agencies, to empower the communities and to transfer some of the responsibility for the behavior of their members to them. Communities have the ability to influence the ethical behavior of its members and prevent their delinquency from the start, or at least to minimize it (Etzioni, 1993). This can be concluded from the example of community control in Jewish society presented below. This is in contrast to the formal control frameworks, which frequently tend to remove weak groups from society, label them as deviants and impose criminal punishment upon them (Garland, 2001). The community has the ability to pressure its members in various ways such as influencing social leaders (Bjaras, 1991) and causing reintegrative shaming (Braithwaite & Mugford, 1994). Key concepts in the community approach are “community involvement”, “partnership”, “active citizenship”, “helping those that help themselves”, “creating mutual security” and more (Garland, 2001, p. 124). In Britain, for example, the understanding of the limitations of formal punishment and legal sanctions caused the state to acknowledge the need for pluralist social control and it began to include informal civilian and community agencies to act against crime and the disruption of social order (U.K. Parliament, 1998). However, community control is not always enough. Many communities are not sufficiently unified for effective control of delinquents and for the rehabilitation of victims and others do not see the need to allocate resources for these purposes (Wilson & Kelling, 1982). The community potential in reducing and treating delinquency is limited to some degree and is not always fulfilled (Crawford, 1999). There are even communities where a significant part of their members are offenders, a situation which encourage its members to turn to crime (Ibid). An option of compensative and corrective constructivist treatment is required. This would be an approach which places the needs of the

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victims at its center, reinforces the community and convinces it to fulfill preventive and rehabilitative roles so that motivations for delinquent behavior are decreased from the start. Treating transgressors will focus on requiring them to make restitution to the victims while concurrently socially and financially rehabilitating the offenders. Those convicted of serious crimes that have expressed a desire to rehabilitate, would be sent to closed treatment centers5 for the time required to rehabilitate them. Convicts who do not express an interest in rehabilitation would be sent to regular prisons (Bianchi, 1994). A constructivist treatment model to prevent delinquency on the one hand, and deal with offenders and their victims on the other hand, can be found in the social control practices of the traditional Jewish society.

Community responsibility in Judaism Alongside the demand to deal formally with transgressors in lawenforcement frameworks,6 in Judaism there is a parallel demand from the informal social system for reciprocal responsibility. Here responsibility is placed on the public and leaders of the various communities to protect the lives and welfare of their community members and to care for their needs. This demand is expressed in the Talmud as “All Jews are responsible for one another” (Sanhedrin, 27, 2 based on Leviticus, 26: 9-18). This community responsibility includes the obligation to prevent delinquency in the first place, to give a personal example of law-abiding behavior, to help and rehabilitate the victims and enable the offenders to change their ways and repent. Following are a few examples of these obligations from Jewish source texts: A. Obligation to prevent delinquency. Community leaders must work towards reducing conflict and crime in their areas of responsibility. The existence of crime indicates that they did not properly fulfill their jobs. In Deuteronomy, for example, it is stated that if a corpse is found in a field, the closest town to the dead body should be identified and located and the leaders of that same town should be called and forced to swear that their 5

This will require some of the prisons to be turned into closed treatment centers that will support treating various convict populations, such as violent offenders, sex offenders and drug-addicted criminals. 6 In Judaism, there is of course also a demand for formal punishment, whose objectives are relatively similar to those of modern society, such as retribution, prevention, deterrence, rehabilitation and victim restitution. This last objective occupies a central place in property and corporal offences (Rambam, Mishna Torah, Damages Laws).


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hands “did not shed this person’s blood, nor did we see it happen” (Deuteronomy 21, 1-7). In other words, they must swear that they acted in earnest to prevent criminal acts in their communities, and that the murder did not stem from their improper functioning and neglect. B. Personal intervention of community members in an attempt to persuade criminals to change their ways. According to the reprobation commandment, when people commit a crime, their community members must admonish them and influence them to stop, and if those community members do not do it, they themselves are sinners: “Do not hate your brother in your heart. Rebuke your neighbor frankly so you will not share in his guilt.” (Leviticus 19: 17). C. Giving a personal example of law-abiding behavior. In Joshua 7:1 it states that despite the prohibition to plunder the city of Jericho, the Israelites pillaged, and one man who was later executed paid the price: “Israel has sinned; they have violated my covenant, which I commanded them to keep. They have taken some of the devoted things; they have stolen, they have lied, they have put them with their own possessions.” Why was God angry with them? Because they did not give a positive personal example in that they pillaged (Joshua 7:11). D. Assisting people in trouble. There is an obligation to help people in any sort of physical or financial danger. It is obligatory to physically rush to help a person in trouble. In Leviticus 19:16 is says, “Do not do anything that endangers your neighbor’s life.” Regarding damage to property, it says in Deuteronomy 22:1-4, that it is a duty to return lost property to a person– “If you see your brother’s ox or sheep straying, do not ignore it, but be sure to take it back to him. If the brother does not live near you or if you do not know who he is, take it home with you and keep it until he comes looking for it. Then give it back to him. Do the same if you find your brother’s donkey or his cloak or anything he loses. Do not ignore it”. E. Abstaining from stigmatizing delinquents and willingness to accept former criminals back into the community. When offenders repent and cease to commit offences, it is forbidden to remind them of their crimes, and their stigma as offenders must be nullified, so that they do not go back to criminality (Mishna, Baba Metzia, 4, 10). Along this rationale, do not judge them in an extreme manner, which will not enable them to continue their life in a reasonable fashion. For example, it is sufficient to collect the value of a roof beam that someone stole to build his house and not to destroy his entire house in order to return the beam to its rightful owners (Facilitation of Rehabilitation, Gitin, 55. p.1). Such obligations also manifested in later periods, in the life of different Jewish communities around the world, which drafted guidelines and

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obliged the public to adhere to them. The purpose of the guidelines was, among other things, “to repair the social ethic and discipline, and not to ruin and overstep this discipline” (Alon, 1978, p. 615). The guidelines required to give the young people a comprehensive education and to place an educational yoke on them, “so that they are not left with any leisure time to engage in nonsense” (Shtipansky, 1993, p. 304). Parents were required to strictly educate their children not to engage in mischief and commit crimes. For example, parents were required to scold youth and punish them when they did indecent things, and concurrently – to serve as personal examples of decent behavior (Shtipansky, 1993). Communities were required to appoint special supervisors to control youth behavior at the seminaries and at the synagogues “to guide them on the right path, to avert them from evil, to admonish them, and to beat them when necessary” (Ibid, p. 338). These guidelines were meant to prevent criminal behavior, correct the ethics in Jewish society, and preserve them (Alon, 1978). Similar guidelines, published in our time by the rabbis, leaders of ultraorthodox communities in the State of Israel, continue to obligate the members of their communities. For example, in his book “The Haredis”, Amnon Levy describes the role of supervisors in the yeshivas7 “as people that restrain the boys’ behavior and supervise yeshiva life. They are the supervisors, those that do the dirty work at the yeshiva. They are supposed to ensure that the young men go to classes to study, that they don’t smuggle newspapers in, and that they don’t become unruly” (Levy, 1989, p. 176). In summary, it can be said that the social community control mechanisms and arrangements in the traditional Jewish community reduced the need for the intervention of formal control in enforcing norms and abiding the law, and ensured normative social life by observing the law (Achituv, 1995; Warren, 1972).

The development of social control to prevent illegal behavior by adopting social control components from traditional Jewish society Concurrently, similar to traditional Jewish society presented here, the development of an informal social system is recommended. This system would stress the need for primary prevention8, would deal with educational and value-based fostering of its members, develop suitable 7 8

Jewish theological seminaries. Preventing the factors that can cause the fall to delinquency.


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living conditions for them, assist the disadvantaged members and help delinquents to attain rehabilitation. This social system would require the communities to give an account of what occurs in their midst. In cases of extreme negligence and the overlooking of their essential needs, such as education and basic and decent existential physical, emotional, social and recreational needs, those responsible for these aspects of the community would be required to explain their failures and occasionally even resign from their positions. In extreme cases, when criminal activity develops as a result of alleged failures and malfeasance on the part of community functionaries, these functionaries would stand trial alongside the delinquents, on the suspicion that they contributed to the delinquents’ succumbing to criminal ways. Making the community activity subject to wide social critique is meant to deter community functionaries from neglecting their obligations, to improve the community functioning in education, economics and rehabilitation, and to decrease delinquency.

Restorative justice as an alternative to punishment or as a parallel proceeding The restorative justice approach for coping with criminal behavior is increasingly developing in the world alongside the existing approaches. This approach proposes an alternative method of dealing with delinquents and their victims, supported by the community and informal control. It has a number of characteristics that resemble those mentioned in the previous section in the proposal for alternative punishment, such as emphasizing the needs of the victims and including the community in the process. The restorative justice approach is based on the acknowledgement that criminal behavior causes damage to all sides: the victim, the community, and the offender. These three sides are the central parties to the conflict (Sherman & Strang, 2007). This approach differs fundamentally from the standard approach, according to which the state and its laws are the main victims of the crime. The state, via law enforcement institutions, punishes or rehabilitates the offender; responsibility is taken from all parties, the victim is neglected and the state turns the conflict into an asset. Studies conducted in countries in which restorative justice proceedings are conducted, report a high level of satisfaction among the participants (Mirsky, 2003), and the relatively low level of recidivism of the former delinquents who underwent restorative justice proceedings (Nugent, Umbiet, Wiinamaki & Paddock, 2001). (For a detailed description of the restorative justice practice see chapter 3 in this book).

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Summary In summary, to deal effectively with increasing delinquency, the need for the negative traits of criminal punishment should be minimized as much as possible. These traits include the detrimental effects of imprisonment which are manifested in reinforcing the criminal worldview, a worsening of criminal behavior, a concurrent loss of skills for normal functioning and a powerful social stigma, which prevent the integration in normative society and perpetuate delinquency. Instead of punishment, a policy should be adopted that will transfer a significant portion of the responsibility for social order to the community, accompanied by appropriate legislation. The community will focus on teaching normative behavior, assisting and treating the underprivileged members, and primary prevention of delinquency in its midst. Delinquent occurrences will mainly be handled by restorative justice proceedings, which will make it possible to repair the physical and emotional damages caused to the victims, actually acknowledging the responsibility on the part of the delinquents, and rehabilitating them in the community while avoiding their being stigmatized. In such cases, the community will take responsibility for repairing its impaired functioning and improve the resources that did not prevent the fall to delinquency.

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Montada, L., & Lerner, M. (Eds.) (1998). Response to victimization and belief in a just world. New York: Plenum Press. Moody, K. C., Holzer, C. E., Roman, M. J., Paulsen, K. A., Freeman, D. H., Haynes, M., & James, T. N., (2000). Prevalence of dyslexia among Texas prison inmates, Texas Medicine, 96, 69-75. Morgan, R. (1997). Imprisonment: Current concerns and a brief history since 1945. In M. Maguire, R. Morgan & R. Reiner, The Oxford Handbook of Criminology (pp. 1137-1194). Oxford: Oxford University Press. Murphy, J. G. (1973). Marxism and retribution. Philosophy and public Affairs, 2, 217-43. Murray, C. (1984). Losing ground. New York.: Basic Books. Murray, J. (2005). The effects of imprisonment on families and children of prisoners. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 442-462). Cullompton: Willan. Nugent, R., Umbriet, M., Wiinamaki, L., & Paddock, J. (2001). Participation in victim-offender mediation and reoffense: Successful replications. Research on Social Work Practice, 11(1), 5-23. Palmer, T. (1975). Martinson revisited. Journal of Research in Crime and Delinquency, 35, 133-152. Rawlings, B. (1999). Therapeutic communities in prisons: A research review. The International Journal for Therapeutic and Supportive Organisations, 20, 177-193. Rawls, J. (1980). Punishment. In J. Feinberg & H. Gross, (Eds.), Philosophy of Law (pp. 577-581). Belmont, Ca: Wadworth. Reed, D., & Reed, E. (1997). Children of incarcerated parents. Social Justice, 24(3), 152-169. Reiman, J. (1998). The rich get richer and the poor get prison. Boston: Allyn and Bacon. Ritchie, M. (1986). The influence of referral information on the diagnostic classification of exceptional children. International Journal of Disability, Development and Education, 33(3), 181-186. Rotenberg, M. (1983). Dialogue with deviance. Philadelphia: ISHI. Samuelsson, S., Herkner, B., & Lundberg, I. (2003). Reading and writing difficulties among prison inmates: A matter of experiential factors rather than dyslexia problems. Scientific Studies of Reading, 7, 53-73. Schweitzer, R. (2003). Sex crime recidivism: Evaluation of a sexual offender treatment program. Journal of Interpersonal Violence, 18(1), 1292-1310.


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Seeman, L. (1999). The sociological implications of untreated dyslexia. Retrieved August 1, 2007, from http://www.etni.org.il/dyslexia2.htm Seiter, R., & Kadela, K. (2003). Prisoner reentry: What works, what does not, and what is promising. Crime and Delinquency, 49(3), 360-388. Shaw, C. S. & McKay, H. (1969). Juvenile delinquency and urban areas. Chicago: University of Chicago Press. Sherman, L., & Strang, H. (2007). Restorative justice: The evidence. London: The Smith Institute. Sherman, L., Smith, D., Schmidt, J., & Rogan, D. (1992). Crime, punishment and stake in conformity: Legal and informal control of domestic violence. American Sociological Review, 57, 680-690. Shoham, G. S. & Rahav, G. (1983). The mark of Cain, Tel Aviv: Shocken (In Hebrew). Shtipansky, I. (1993). The regulations in Israel – The communities regulations. Jerusalem: Mossad Harav Kook (In Hebrew). Stone, A. (1985). The new legal standard of dangerousness: Fair in theory, unfair in practice. In C. D. Webster., M. H. Ben-Aron & S. J. Hucker, (Eds.), Dangerousness: Probability and prediction. Psychiatry and public policy (pp. 13-24). New York: Cambridge University Press. Sutherland, E. (1924). Principles of criminology. Philadelphia: Lippincott. Sutherland, E., & Cressey, D. (1970). Criminology. Philadelphia: Lippincott. The Prison Service, (1998). The policy towards the prisoner – the strategic statement. Ramla: The Prison Service (In Hebrew). —. (2003). “Beit Hatikva” (“House of Hope”) The department for treatment of domestic violence offenders. Zohar Lebeit Hasohar (A window into the prison), 7, 90-97, (In Hebrew). Timor, U. (2006). Rehabilitating criminals in Yeshivas and in Kibbutzim – Constructing a non-criminal world view and instilling alternative behavior patterns. Megamot: Behavioral Science Quarterly, 44(3), 507-530, (Journal In Hebrew). U.K. Parliament (1998). Crime and disorder act. London: Office of Public Sector Information. Visher, C. A., & Travis, J. (2003). Transitions from prison to community: Understanding individual pathways. Annual Review of Sociology, 29(1), 89-113. Von Hirsch, A. (1976). Doing justice: The choice of punishment. N.Y.: Hill and Wang. Walker, N. (1991). Why punish? Oxford: Oxford University Press. Warren, R. (1972). The community in America. Chicago: Rand McNally.

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Weisburd, D., Shoham, E., & Gideon, L. (2005). The effect of length of treatment on likelihood of recidivism: Drug rehabilitation at the Sharon Prison. Jerusalem: Israel Anti Drug Foundation (In Hebrew). Weitekamp, E. G. M. (1999). The history of restorative justice. In G. Bazemore & L. Walgrave, (Eds.), Restorative juvenile justice: repairing the harm (pp. 75-102). St Louis: Criminal Justice Press. Wilson, J. Q., & Kelling, G. (1982). Broken windows: The police and neighborhood safety. The Atlantic Monthly, March, 29-37. Wirth, L. (1938). Urbanism as a way of life. American Journal of Sociology, 44(1), 3-24. Wollmann, H. (2006). The fall and rise of the local community: A comparative and historical perspective. Urban Studies, 43(8), 14191438. Young, J. (2002). Crime and social exclusion. In M. Maguire, R. Morgan & R. Reiner (Eds.), The Oxford Handbook of Criminology, 3rd. Oxford: Oxford University Press.

CHAPTER THREE FAMILY-GROUP CONFERENCING IN ISRAEL: THE VOICES OF VICTIMS FOLLOWING RESTORATIVE JUSTICE PROCEEDINGS ESTHER SHACHAF- FRIEDMAN AND URI TIMOR

Abstract The Kedem family group conferencing program was one of the very first programs in Israel to implement the values of restorative justice and victim-offender conferencing. Restorative justice is considered to be a victim-focused intervention, although in practice this is not always the case. Phenomenological analysis was used to examine the outcome of the Kedem program from the victims’ point of view. Salient themes that emerged from the victims’ narratives were identified, and topics related to victims’ participation in restorative justice processes were addressed. Practical guidelines for the preparation and implementation of restorative justice processes are suggested, in order to minimize the risk of re victimization.

Introduction Restorative justice (RJ) is an alternative to the legal process for addressing crime and interpersonal injury. It is founded on the principle of giving those who are most directly affected by the wrong deed (the victims, offenders, their families, and their communities) the opportunity to be directly involved in restitution for the harm incurred (Bazemore & Walgrave, 1999; Braithwaite, 2002a; McCold & Wachtel, 2002; MenkelMeadow, 2007; Sherman & Strang, 2007; Sherman et al., 2005; Strang et al., 2006; Umbreit, Vos, & Coates, 2006; Van Ness, 2002). In particular,

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the RJ process places special emphasis on the interests of the victims of the offenses (Bennett, 2007; Strang, 2003). The theory underlying RJ seeks a more sensitive response to victims of crime (Christie, 1977; Zehr, 1995, 2002). This is consistent with the findings of research in victimology, which has shed light on the effects of deliberative harm and injury on human lives and needs (Ben David, 2003; Brown, 1994; Christie, 1977; Fattah, 2000; Goodey, 2005; Reeves, 1989; Weitekamp, 1999; Wright, 1996, 1999) and supports a critical reevaluation of the interventions offered by legal systems (Hulsman, 1986). The concept of RJ is based on the logic that restorative processes are more effective in doing justice than the penal system, because they deal directly with the harm rendered by the offense (Ruth & Reitz, 2003; Strang et al., 2006; Sherman & Strang, 2007; Wright, 2008). Furthermore, these processes have been shown to reduce rates of recurrent offending, minimize the stigmatization of criminals, and encourage offenders to take responsibility for their wrongdoing and make amends to the victims (Braithwaite, 1989; Ruth & Reitz, 2003; Strang et al., 2006; Sherman & Strang, 2007; Wright, 1996, 1999). A review of recent RJ literature reveals a shift from apologetic writing such as “Restorative justice – Why yes?” (Gabbay, 2005), to a more empirically based “RJ – How?” (Braithwaite, 2002b; Johnstone & Van Ness, 2007; Menkel-Meadow, 2007; Raye & Warner Roberts, 2007; Roche, 2004; Umbreit et al., 2006; United Nations Office on Drugs and Crime – Vienna [UNODC], 2006). The empirical data enables a better understanding of the internal dynamics of RJ processes and their outcomes, and has led in turn to the development of new definitions and concepts (Boyes-Watson, 2000; Johnstone & Van Ness, 2007; Mackay et al., 2007; Marshall, 1996; McCold, 2000; Umbreit, 1994; Walgrave, 2002; Zehr, 2002). RJ emphasizes the importance of acknowledging loss and its meaning as perceived by the victim. Lack of such acknowledgment undermines the ability of victims to recover from injuries and may lead to re-victimization, as well as limiting offenders’ ability to take full responsibility for their actions. The RJ process is designed to provide victims (who are usually ignored by the legal system) with an opportunity to tell their story, express their thoughts and feelings, and present questions that are not answered elsewhere. Research has shown that a conclusive response to these needs leads to a sense of comfort and relief (Achilles & Zehr, 2001; Bennett, 2007; Price, 1988; Schiff, 2007; Sherman et al., 2005; Sherman & Strang, 2007; Umbreit, 1994; Umbreit et al., 2006; Wright, 1996).

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RJ processes have been practiced in Israel since the 1990s (AviharShachaf, 2004; Rivkin & Shmaia-Yadger, 2007; Yanai, Sharvit, & Grabli, 2001). One of these programs, Kedem, is a pioneering project initiated by the Juvenile Probation Service, in which RJ values are implemented within the framework of family group conferencing (FGC). According to Israeli law, the Juvenile Probation Service handles young offenders between the ages of twelve and eighteen – the age of criminal liability. In some cases, at the discretion and under the supervision of the probation officer, it may also deal with youngsters who are slightly over eighteen. FGC is a specific type of RJ process that was initially developed in New Zealand under the Young Persons and Family Act, 1989 as an alternative to legal proceedings. It has been adopted with slight changes in Australia, Canada, North America, Europe, and other places around the world. According to the New Zealand system, the government assigns a facilitator who enables families of victims and offenders to search together for restitution of the injuries caused by the crimes in which they were involved. Initially, the main distinction of FGC compared with other RJ practices was that in addition to the direct victims and offenders, family members and supporters of both sides were also included in the process. The New Zealand model places special attention on the need of the young offender’s family to assume responsibility, reflected among other things in the private time given to them during the conferencing to discuss private matters and make decisions (Alder & Wundersitz, 1994; Hassall, 1996; Morris & Maxwell, 2003; Raye & Warner Roberts, 2007). As the program spread to other places in the world, it was developed, expanded, and modified according to the respective social and legal contexts. Most of the FGC programs today maintain the basic features of the original New Zealand model, but some tend to place the offenders and their families, and not the victims, in the center of the process. In many cases, the victim may not even be present (Alder & Wundersitz, 1994; Hassall, 1996). In developing its experimental RJ program, Kedem, the Israel Juvenile Probation Service tried to follow the original FGC model from New Zealand as closely as possible. In the pilot stage of Kedem, probation officers referred young offenders to the program after consultation with the attending police officer and according to specific criteria, such as severity of the offense and offender’s confession. In the experimental Kedem program, the criteria were that the offense be of “moderate” severity – neither very minor and nor very serious. Offenses such as murder, family violence, sexual assault, or drug abuse were excluded. The most common offenses included in the program were robbery (41%); burglary (27%) and assault

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(27%) (Rivkin et al., 2007). Once a case was approved, it was referred to a coordinator who was not associated with any of the formal agencies involved (the police, probation service, etc.). The coordinator’s first task was to obtain informed consent to participate from the offender, the victim, and their families. (Another criteria for implementing the FGC process in the Kedem program was the victim’s agreement (Rivkin et al., 2007)). Next, the coordinator met separately all those expected to participate in the FGC – the victim of the offense and his or her supporters, the offender and his or her family as well as other meaningful others, the arresting police officer, the probation officer, and other professionals – in order to prepare them for the conference. The coordinator was also responsible for setting the time and place and organizing the conference (Avihar- Shachaf, 2004; Rivkin & ShmaiaYadger, 2007). The meeting was comprised of three different phases (Rivkin & Shmaia-Yadger, 2007): 1. Discussion of the offense and related concerns: The coordinator presented the purpose of the meeting and norms of interaction, introduced the participants, explained the offense and its legal implications, and ensured that the victim, the offender, and their families had an opportunity to express their views and concerns. 2. Private time for the offender’s family: The offender’s family discussed private issues and developed a proposal that included the offender’s apology and compensation to the victim, and well as measures to be taken in order to address the expressed needs and concerns regarding the offense. 3. Consolidation and confirmation of a restitution program: The offender’s family presented the suggested program to the victim’s party and the professional participants. The entire group discussed it, reached consensus on each of the sections, and signed an agreement. The offender’s probation officer was responsible for following up the implementation of the plan approved in the conference. If the offender’s family failed to develop a program or if the agreement was not implemented, legal proceedings were renewed (Rivkin & Shmaia-Yadger, 2007). The pilot stage of the Kedem FGC program was implemented by the Juvenile Probation Service of the Israel Ministry of Welfare, the Israel Police Force, the Public Defender’s Office, Ashalim Organization and others. The Engleberg Center for Children and Youth at the Myers - JDCBrookdale Institute performed an evaluation of the program (Rivkin & Shmaia-Yadger, 2007), which included the collection of data from the first


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three years of the pilot (2000-2003). One of the authors of the present chapter was involved in the Engleberg Center research for six months, providing an opportunity to collect qualitative data from cases that had been completed by the end of 2003. The present chapter is based on an analysis of that qualitative data.

Method In order investigate whether the victims involved perceived the RJ processes of the Kedem program as serving their interests, in-depth interviews were conducted with participants and subjected to qualitative phenomenological analysis (Seidman, 1991; Spradley, 1979). The interviews were conducted 3 to 24 months after the FGC session was held. The sample included all participants who took part in Kedem FGC Program between 2000 and 2003 and agreed to be interviewed by the researcher. These included seven victims, five offenders, and nine supporters. Only in one case did we have the opportunity to interview both the victim and the offender of the same case. In general, most of the offenders interviewed described higher levels of satisfaction than the victims did (Avihar- Shachaf, 2004). Thus in this chapter it is decided to omit the offenders’ narratives. The present discussion refers to the interviews with the victims only (seven interviews). One telephone interview lasting between 30 and 90 minutes was conducted with each participant. The interviews were transcribed simultaneously or shortly after they took place (within the same day, if simultaneous transcription would have interfered with the flow of conversation). According to guidelines from the Engleberg Research Center, a semi-structured questionnaire (Umbreit & Fercello, 1997) was used. In our view, this questionnaire might not adequately capture the unique perspective of the Israeli context, as it is a direct translation to Hebrew of a questionnaire based on empirical research of similar programs in the USA, Canada, and Australia (Umbreit & Fercello, 1997) and was translated into Hebrew. We believe that it fails to incorporate cultural and social influences specific to Israel, while focusing on issues that may be irrelevant to this local context. To compensate for this limitation, in-depth interviews were conducted prior to administration of the questionnaire. This practice is consistent with the flexibility offered by qualitative- phenomenological research methods (Spinelli, 2002). The purpose of the in-depth interview was to reveal unique perceptions that might be influenced by the local social structure and culture, gender of the participant or any other social aspect. The interviewer first explained

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the research and terms of confidentiality to the participant and verified consent to participate. This was followed by an open-ended question: “Please tell me how you came to participate in the Kedem program and what you think and feel about it?” (All interviews were conducted in Hebrew. The excerpts here were translated by the authors). The participants were given as much time as needed to answer. The interviewers asked questions or intercepted only in order to clarify or to encourage the participants to elaborate; an effort was made not to disturb the flow of speech and thought. Prior to the interviews, we prepared a list of topics on which we sought information; participants who did not address these issues were asked additional open-ended questions during the interviews. The second part of the interview consisted of the semistructured questionnaire. The interviewer explained that this part was aimed at gaining a better understanding of what the participant had said until that point. In a few cases, this questionnaire helped the participant address themes that had not yet been raised in the interview. The purpose of the research was to sensitively seek the variety of voices and attain an understanding of the subjective categories used by the participants (that is, the victims participating in the Kedem program). Qualitative methodology is useful in the effort to understand the subjective experience and feelings of participants in a new field of research (Allen & Jensen, 1990; Denzin, 1989; Minichiello, Aroni, Timewell & Alexander, 1990; Strauss & Corbin, 1994), such as restorative justice in Israel. The subjective insights are important in this case, as it concerns a new intervention method (Sherman & Strang, 2004). The unique point of view of the participants is crucial to responsible intervention that genuinely addresses the needs of its clients (Bowers, 1987). This is particularly true in the case of RJ, which is aimed at addressing the emotional needs of victims (Bowers, 1987; Sherman & Strang, 2004). A lack of such assessment is liable to result in re-victimization. We performed a thematic content analysis of each of the texts produced from the interviews in order to identify the main categories and themes discussed by the victims after FGC (Charmaz, 1983, 1995, 2000; Dey, 1993; Shkedi, 2003, 2004; Strauss, 1987; Strauss & Corbin, 1990, 1994). This was followed by an analysis of the relations among the themes that emerged from participants’ descriptions. Two additional levels of analysis (a structural discourse analysis and a statistical-linguistic analysis) were performed; these are beyond the scope of the present chapter.


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The sample The sample included all the people who participated in the Kedem – FGC Program between 2000 and 2003 and agreed to be interviewed at the time these interviews were conducted (between October 2002 and March 2003). At that time 56 cases of FGC had been concluded, and eleven of their victims initially agreed to be interviewed. Out of this group, seven actually agreed to schedule an interview. In cases where the participants were minors, their parents’ informed consent to conduct the interviews was requested. Three of the participants were women. One was in her late thirties, married, working as a teacher, and living in the center of Israel (V1); the second was sixteen years old and studying at a high school in southern Israel (V4); the third woman was in her early forties, married, mother to two teenagers, and working as an alternative therapist (V7). The other four participants were a man in his late twenties with no formal education, employed, and living in a small town in the south of Israel (V2); a man in his early forties with no formal education, unmarried, running his own independent business, and living in a big city in the center of Israel (V3); a fourteen-year boy studying at junior high in a city in southern Israel (V5); and a man at his mid-thirties, married and father to a child, employed in a high-tech company, living in a city in southern Israel (V6). The sample is very small. From the researcher’s experience it was very difficult to gain access to victims who took part in FGC. One of the reasons could be the need of intermediation of few organizations in the recruit process in order not to violate privacy concerns. Another reason which was mentioned by one of the organizers of the program was that “people might want to get on with their lives, put their past behind and not re-open their wounds”. Participation in the Kedem program might have other meanings to victims who chose not to participate in the research, who might have other experiences, we were not able to discover. One concern of using such a small sample could be exaggeration of the experiences we were able to discover (Miller, 2000)*. Due to this small sample and its non-representative nature, our aim here is not to generalize about victims who participate in FGC process, but to provide a rich analysis of the meanings they attach to their participation.

*

We are grateful to Prof. Elmar Weitekamp for drawing our attention to this book.

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Findings The content analysis revealed several themes that recur within and across the narratives. The eight main themes are (1) referral to Kedem and preparation for the conferencing; (2) the decision to participate and informed consent; (3) helping the young offender; (4) an alternative to legal proceedings; (5) a sense of empowerment and balance of power within the process; (6) professional intervention; (7) the reaction and cooperation of the offender and his or her party (perceived fairness, honesty, sincerity); and (8) post-procedural effects. These themes are discussed in detail below.

Referral to Kedem and preparation for the conferencing Generally speaking, victims reported positive feelings following the initial intervention. Some reported positive feelings about the preparation phase, in spite of ambivalence regarding the process itself. He prepared me well, but I can’t remember what especially helped . . . his guidance . . . helped me feel it was fair. (V5)

The participants expressed high expectations. They did not want to experience pressure during the preparation and wanted attentive, sensitive, personal, and humane treatment. They conveyed a need for order, accountability, and transparency in the preparation. They did wonderful work…gave me confidence… understanding of what was really about to happen and that it would be OK . . . they did work that helped me feel confident with myself . . . the preparation was good. . . I gained confidence… the information given was good. (V3)

The participants who sensed that their expectations had been fulfilled reported that they had felt sensitivity towards them and their needs, enabling them to feel confidence and trust. Participants, who felt these expectations had not been met, responded harshly. [The program coordinator] located me . . . I’m still not sure how . . . the coordinator phoned [and asked me] about the possibility of meeting . . . There was this uncomfortable situation . . . I don’t know what the reason was, why he had come to my home. (V1)

This victim reported pressure, confusion, and discomfort concerning the initial contact with the program. She felt the coordinator had come talk to her at home even though she had tried to convey her hesitance.


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Another participant commented that the explanations were not clear, but they nevertheless helped because they gave her a good feeling of empathy and lacked pressure. She more or less explained what is it all about. She didn’t explain so well but I understood . . . more or less, but I guess it was enough. Without her I wouldn’t have gone to the meeting. She prepared me in a good manner and didn’t push. (V4)

The decision to participate and informed consent In the participants’ narratives, the theme of referral and preparation for the conferencing is related to the theme of informed consent. During the preparation, participants expressed a need to feel that the decision to participate was their own (“I agreed”; “I went”), that they were given a genuine choice (the coordinator “didn’t push”, “offered the possibility”), and that they were provided empathy, legitimacy, and understanding of their individual concerns in deciding whether or not to participate. It was a matter of time . . . whether to become engaged or not . . . but at the end I went. (V6) (authors’ emphasis) I was given the possibility . . . I decided to do this . . . but the will of both sides is needed . . . I agreed immediately. (V3) (authors’ emphasis) She prepared me in a good manner and didn’t push. (V4)

These descriptions indicate a sense of procedural justice (Deutsch, 2000; Tyler, 2000). When these needs were not met, there were strong indications of pressure and an external motive (“because I was asked”) was cited for the decision to participate. I went because I was asked to . . . I’m not sure how . . . I told [the coordinator] that I wasn’t interested . . . I don’t know what the reason was. (V1)

The participants reported different reasons for deciding to participate, some instrumental and others emotional. The instrumental reasons included seeking compensation, seeking a secure setting in which the problems could be solved pragmatically, and the desire to take part in the decisions concerning the offender. In the beginning my husband wanted compensation. (V7)

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Chapter Three I hoped that in the meeting he would see that he knew me and then admit and pay and compensate. (V3) My parents asked me. They said we could get compensation and take part in the decision about what would happen to him. (V5)

The emotional reasons included the desire to receive answers to questions, satisfy their curiosity, and receive acknowledgment and justification of their sense of injury, as well as the need to confront and see the reactions of the offenders and the wish to help the offenders avoid recurrences. I was interested in knowing why he did what he did and making him understand what it did to me . . . it was important for me to meet him because I wanted to know the reasons. (V4) I wanted to meet them to see how their parents would react. (V5) I’m a curious person . . . one that has to know. There were questions I wanted to present to the boy and see how he and his parents reacted. (V6)

A subgroup of the emotional reasons is that of feelings of pressure and guilt. These feelings reflect the power of social and normative influences that may lead to participation (Raven, 1992). The participants described fears of failing to live up to perceived social expectations from friends, colleagues, or superiors at work. There was this uncomfortable situation with the principal of the school, who wasn’t satisfied. I was under pressure. (V1)

An effort to avoid guilt for having complained to the police was evident in their accounts. I was given a possibility that these fellows against whom I had filed a complaint would say hello to me if we met on the street … I didn’t have to ruin their lives . . . I was willing to do anything to minimize the damage for them. (V3) It is obvious to me that he is a human being and this is why I agreed. Obviously I didn’t want him to go to prison and have that on my conscience. (V1)

A sense of social pressure to forgive was apparent. I’m a teacher and I should understand. . . he is a kid. (V1)


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I understood that it was about time to forgive him. (V4)

The need to maintain a self-image of a good, helpful citizen vis à vis the offender was indicated: To contribute and donate or not. (V6) I came to see if I might I know him . . . maybe to help . . . it’s always good to help. (V3)

This subgroup of emotional reasons for these victims’ participation, which may represent society’s expectations from them, seem to be connected to the notion of helping the young offenders.

Helping the young offender All participants reported that they sensed they were expected to help and understand “the child,” as expressed explicitly by one of the participants. [The coordinator] explained that this was to help the child . . . to try and help him. (V2)

Some of the participants associated this expectation with the need to help members of the future generation complete their military service. In Israel, where universal conscription is practiced, the army may decide not to draft a convicted individual and participation in Kedem may influence that decision so that young offenders are enlisted nevertheless. [They] didn’t care about me. I’m out of the game . . . what is important is the future generation and his future . . . and that he could go into the [IDF] pilots’ course. (V1) They were soon to be enlisted in the army . . . the concern was that they would miss serving [if they had a criminal record]. (V3)

This social expectation that they would help the young offender seemed to prevail especially among adult victims, and particularly women in therapeutic or educational professions. [They] gave me the feeling that the problem was mine . . . because I am the adult and he is a child . . . but he is no longer a child, he was 18 . . . I’m the victim of violence. (V1)

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Another female victim (V7) who fulfilled these social expectations of cooperating in helping the “future generation” reported that she felt highly appreciated and was told by the coordinators she had “insight and awareness [that] professional therapists usually gain only after years of experience.” Such social expectations are considered problematic in RJ literature, as they suggest that the consent may not be fully voluntary (Umbreit, 1994; Vanfraechem, 2002; Wright, 1996). This might also be related to the unique cultural context of the Israeli society, which is a multicultural melting pot with a past of dominant collectivist and communitarian characteristics, merged with a strong movement towards individualism, atomization, and a loosely integrated society at the beginning of the twenty-first century (Kelman, 1998; Zalmanovitch, 1998). The collective memory and linguistic institutions of Israeli society draw from beliefs about the pioneer settlers of the 1920s and 1930s, who symbolize the renewal of the Jewish people. These young settlers were influenced by the socialist spirit that swept through Europe in the early twentieth century, and wished to create collective settlements based on that ideology. The image of the pioneer settlements became the model for a Zionist community based on cooperation and solidarity. These beliefs have an important symbolic position in the Israeli and Zionist ethos, which included many collectivist qualities that reflected a tendency to value communitarian perceptions (Olshtain, 1989; Olshtain & Weinbach, 1987a, 1987b; Weinbach & Brosh, 1986). Collectivist cultures tend to emphasize homogeneity and collective identity. Much value is given to group dependence, relational priorities, an informal approach, and the social network. Individual aspirations may be secondary to the need to maintain group solidarity and harmony (LaBaron, 1997). These constructions of the nation’s renewal include the notion of military service as a key to entering Israeli society and as the nation’s melting pot. Army service symbolizes the renewal of the Jewish people and its ability to protect itself following the Holocaust and anti-Semitic persecution (Lisak & Horowitz, 1989). Thus, the desire to help the younger generation fulfill the ideal of serving in the army and maintaining the security of the society might influence and subordinate individual needs. Such expectations may indicate the influence of these prevailing values, which undermine the individual’s ability to freely resist participation (Dingwall, 1988). The research revealed a variety of attitudes and concepts regarding the involvement in helping the offender. Among these, two tendencies emerged as dominant:


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Some of the victims perceived the process as being too easy for the offender at the expense of the victim. They felt alienated by the system and doubted its ability to deal with crime and offenders, fearing that it took advantage of the victims in the process. Those who took this view perceived the process as too lenient and permissive and reported revictimization. In retrospect, I wouldn’t have gone . . . Something didn’t end right . . . [it] wasn’t to my satisfaction because his family might have had connections . . . I think even in the police. The father has a high rank in the IDF. I guess that somehow with their connections they got this bonus of Kedem . . . this privilege should only be for minors under 18. (V1) I know this is how it works . . . I see [FGC] as a set-up trying to do research . . . nothing more . . . but there is still a lot they have to learn . . . as a matter of fact, I didn’t see that it worked or changed anything . . . it is important not to be too lenient with the offender and to deter him. (V2)

Other victims pointed out the advantages of the process and perceived it as a potential factor of assistance and healing for both sides. They indicated its educational potential, the opportunity to express their feelings, receive answers to questions, and even receive restitution. These victims perceived themselves as choosing to help the offender. They saw their involvement as a gesture of good will with the hope of helping and conveying an educational message, which wouldn’t have been learned otherwise. Thus they perceived the meeting as an opportunity to do so. Anything that has to do with this project is fantastic... it is a project that gives both sides a chance to express themselves and to vent all their harsh feelings . . . in the project I felt I was compensated and I also felt that at the same time they [the offenders] felt that someone was listening to them and felt confidence . . . it is true they where told off, but they understood it was for their own sake and that we were trying to help them.(V3) Fate brought us together to learn something in life . . . It healed me . . . We [the victim and her supporter] both felt good that our deed itself was important . . . it made me feel good. (V7)

A sense of empowerment and balance of power within the process Raven (1992) suggests a relationship between informed consent and the power relations among the parties involved. These power relations emerge in the participants’ narratives about their decision to participate

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and the dynamics of the conference. The narratives indicate three motifs involving perceived power interactions within the FGC. The first motif is that of the relationship with the offender and the offender’s supporters; the second focuses on the coordinators and professionals who handle the offense, and the third is the victim’s personal sense of empowerment, control, efficacy, and involvement in handling the situation. The victims who reported satisfaction were those who felt that their own perceptions and feelings regarding the offenses, the injury, and the process were fully expressed and acknowledged by all participants, especially the offender, who “really learned his lesson” (V4). They expressed satisfaction that their voice had been fully heard and their desires and needs respected. They didn’t feel pressure from the professionals, but fairness and attentiveness. These victims initially perceived the aim of the process as helping the young offender and perceived themselves as empowered and actively involved in doing so, with the expectation of gaining almost nothing personally. They considered themselves as good, involved citizens, trying to help a youngster in need, “doing a good deed” (V7). This gave them a sense of empowerment within the process. I understood I wouldn’t be able to gain anything for myself . . . I tried to protect him. I preferred to help him so he wouldn’t do it again. (V2) I knew I had to be there since not going would have been vengeful. If I hadn’t been there it would have been different . . . [the victim’s presence] helped [the offender] rehabilitate. (V5) I cried out for him, for the child [the offender], so he would be given the compassion and the love he cries out for, and [the offender’s family] listened to us very carefully . . . I came to show his parents that they need to accept their child . . . it is like doing a good deed . . . the moment I saw [the offender] I knew I wanted nothing for myself, just that he would understand and adopt better ways. (V7)

The victims who gained a sense of empowerment and involvement in helping the offender seemed to feel some degree of superiority over the offender and equality with the coordinator. The victims who indicated less satisfaction expected to gain from the process and were therefore more dependent upon the results. Their narratives indicated less empowerment within the situation. Rather, they expressed fear and pressure regarding the results of the process. They worried that their perceptions and needs were not fully heard and acknowledged, and that the conference mainly helped the offenders. These victims expressed doubts whether the offenders had


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really learned or understood what they should have. Their descriptions indicate a power disadvantage compared with the offender and dependence on the coordinators’ intervention and responses of “the system” to their situation. The ending wasn’t to my satisfaction because [I] was under stress and much pressure which was placed on me . . . for them it was an easy way to resolve this case . . . they put you in this small and crowded room, I didn’t have the power or space to stand up and leave so I was swept in . . . I got answers even though they were not satisfying. I had hoped that they would convince me of the sincerity of his apology, but it was anemic. (V1)

An alternative to the legal system The concept of helping the young offender was associated with the participants’ views about the effectiveness of the legal system. The victims expressed varying attitudes. Some indicated an obvious preference for FGC, citing its educational and humanistic values and outcome, which were perceived as unattainable in adversarial legal proceedings. These participants emphasized the attention and time given to the specific case, involvement of the victims and the offenders, and the opportunity for expression of emotions. [The offender] got to deal with his stupidity . . . . [FGC] gave the victim the right to talk directly to his offender without any authority to silence him . . . The court, from this point of view, wouldn’t have helped . . . . The judge doesn’t care . . . without feelings . . . it’s “just another file.” Here it is different. I preferred to talk . . . so he would really understand and feel regret and so he did. (V4) [The coordinators] had authority but were very pleasant . . . humane . . . wonderful people. . . . they don’t just “take their salary and go home.”. . . They created the possibility of talking . . . they allowed the situation to flow. They listened and gave us time . . . didn’t stand with a stopwatch. . . . They were very neutral but allowed us to understand when something didn’t seem right . . .: “lets focus”, “let’s think again” . . . they didn’t say they thought it was wrong. Things were not terminated because they decided . . . they created space for our opinions. (V7)

Other participants expressed some ambivalence and doubts about FGC. They perceived the process as beneficial mostly in the case of first and minor offenses, as effective only in addition to penal methods, or as inefficient or worse (for both victims and offenders) than the legal process.

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Chapter Three It was [the system’s] solution to end the matter as quickly as possible . . . in retrospect, it was a punishment for me . . . of course [the offender] would have managed to get out easily from the regular process and I wouldn’t have had to go. (V1) I see [FGC] as a system trying [to see] what helps educate these kids . . . mediators, that’s all. In general they do a good job but there is still much more they have to learn . . . of course it helps the child . . . but what is fair is punishment. . . . FGC is a solution for a first offense . . . and also in cases where it wasn’t [the offender’s] fault . . . wasn’t in his control . . . but it helps the offender rehabilitate the first time. . . Personally, I find punishment to be more serious and effective. (V2)

Professional intervention The victims’ comments on the coordinators’ interventions referred to the preparation process and the aspects of power, distance, and empowerment within the process. The narratives indicate the need for interventions that are enabling and empowering, especially during the preparation phase. Participants attributed positive feelings to the coordinators’ interventions and presence. They indicated their need for empathy, support, protection, comparison of expectations, transparency in the decision-making process, lack of pressure, and active intervention in cases of tension or unacceptable reactions from the offender. When these needs were met, the participants reported confidence, a sense of security, and appreciation for the interventions. They did a wonderful job . . . gave me confidence [and] better understanding of what was about to happen . . . helped me feel selfconfident . . . agreed and supported what I told them . . . then the confidence returns automatically . . . they said they would check and then they went and checked and came back to me [with answers]. (V3) He understood me . . . said I could say whatever I felt, told me my rights, and so on. I was pleased. (V5)

The participants reported a sense of fairness towards themselves and the offenders. Satisfaction was indicated when the coordinator managed to balance the powers and set limits in an authoritative manner when necessary, but otherwise enabled the interaction to flow in a non-coercive method. The need for a humane touch and sensitivity was emphasized. It was fair . . . when they were authoritative with [the offender] it was justified. She was active; she initiated, made all the connections . . . she


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did a lot . . . at the meeting she allowed things to flow and intervened only in cases of tension . . . to calm things down. (V4) There was this feeling of going one step further . . . of common humanity . . . the conversation flowed and it was wonderful. Things flowed comfortably, eye to eye. [The coordinators] put themselves in an authoritative but very pleasant role . . . humane and authoritative (V7)

One participant indicated satisfaction with the presence of a lawenforcement agent, such as a probation officer or policeman. A policeman was there . . . the boy felt there were limits, a system. Otherwise he might have felt it wasn’t serious enough . . . . [The policeman and probation officer] insisted he do what he should . . . his father said “I’m responsible,” but they insisted that the boy take responsibility and the probation officer insisted on specifics. This created a framework and limits, otherwise it would have been only ”hi, bye, sorry.” (V6)

The presence of the law-enforcement professionals seemed to give this participant confidence. This finding supports the results of Walgrave’s (2003) research in Belgium that including a police representative as a participant (not a neutral coordinator of conferencing) symbolizes that it is not only a nice chat, but a matter of obligation to the public interest. Accordingly, such presence may help participants take part in such processes with greater confidence (Walgrave, 2003). Some of the participants were less satisfied with the methods of intervention. They indicated expectations that were not met, lack of an active resolution when needed to protect them and their interests, minimization of offenses, and exertion of influence and pressure before and within the process. I don’t want to be completely negative about the program . . . if things were better coordinated [it] might have been more effective. If his probation officer had been in touch with the coordinator it wouldn’t have ended like that [the offender didn’t complete the agreement but his criminal record was cleared]. (V6) If [the coordinator and probation officer] had offered more options . . . but I didn’t know what [to ask for as part of reparation agreement]. They said “work” and “study” very generally . . . were not concrete . . . but it was obvious nothing was possible, he was only a child. (V2) I wanted a private process. I thought it would be right . . . at the end it wasn’t private . . . everything just faded away . . . it turned into something

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Chapter Three everybody knew . . . I can’t know why the coordinator came but they [some colleagues and the coordinator] were putting pressure on me.(V1)

The victims indicated the need for an opportunity to express their feelings about the offense, to speak to the offender, to ask questions about the offense, and to receive answers. They expressed a desire to be heard and understood, for empathy and acknowledgement of their perceptions. Some sought justification, a sense that the process was being coordinated with order, and evidence that the coordinators were authoritative towards the offenders (and their supporters). When these needs where met, the participants indicated satisfaction and security; failure to fulfill them was experienced as re-victimization. These expectations and needs resemble those reported by Stutzman-Amstutz and Zehr (1998), and the findings regarding re-victimization corroborate research on offender-oriented RJ programs (Vanfraechem, 2002, 2003).

The reaction and cooperation of the offender (fairness, honesty, sincerity) The participants reported that the offenders were cooperative, willing, and sincere. Some said they could feel and see this in the offender’s behavior, expressions, and body language. I physically saw how much pain they felt . . . in the movement of their eyes I saw that they were sorry. It is very different from court . . . one could see how hurt the victim was and how sorry the offender was. (V3) His face said everything . . . he did FGC so he could get on with his life, since the offense would have disturbed him . . . and after he got what he wanted he didn’t keep his agreement. (V6)

Several victims felt that the offenders had abused the FGC process as an easy way out of punishment and doubted the sincerity of the process and the offender’s apology. One participant who found out the agreement had been breached saw the process itself as unjust and feared it might have also been the outcome of connections between the offender’s family and the authorities (the data revealed no such connection). The ending seemed wrong because I think the family might have had connections even in the police . . . I got answers but they were not satisfactory. I hoped they would convince me with the sincerity of his apology, but it was anemic. There where tears, [there] were dramatics and a lot of things were said, but the fact the day after [someone] who wasn’t


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at the meeting knew about it, in spite of the confidentiality agreement . . . I felt they had made a joke out of me. (V1)

In addition, the participants expressed a desire to share their feelings and thoughts and achieve understanding and justification from the offenders and their supporters. When this requirement was not fulfilled, the participants reported re-victimization. In addition, some victims sought to ask questions and receive meaningful, convincing answers. In cases of disagreement, victims wanted the coordinator, professional representatives, and other supporters to support them. As noted, lack of such interventions led to bitterness. One participant ascribed importance to the cooperation of the offender’s supporters, seeing them as partly responsible for the general situation. In fact, in all the interviews we found evidence that the victims expected the supporters of the offenders, as adults, to express understanding towards the victims and their injuries and take responsibility for their young relative’s situation, though not for the actual offense. The fulfillment of this expectation was described as helpful. I didn’t talk about that with the boy. With his mother I did. She really understood. I don’t think the boy really did understand. They prepared him for the situation . . . taught him how to talk. (V2) When the adults understood how badly hurt the victim was and the [offenders] saw their positive reactions to me, it helped [the boys] understand how wrong they had been. (V3)

One victim reported discrepancies between the parties’ description of the facts of the offense, indicating the offender’s reluctance to take full responsibility for his actions. What I didn’t like was the fact that I believe that whoever broke into the car also took the CD player. There they said that one broke in and another took the CD player. To me it sounds odd . . . I understood I couldn’t gain anything from the process . . . he was not the one who broke the window . . . I couldn’t get my money back. I had to convince myself that it was not the same one [but] I feel the boy who took the CD player is the one who broke in . . . I came [to the FGC meeting in order] to find out whether I knew him . . . I came to meet the one who took the CD player, but I’m sure that he also broke in and was afraid to confess. I hoped that in the meeting he would see me, confess, pay and compensate . . . he didn’t take responsibility. (V2)

Some of the participants who reported unpleasant feelings during the process attributed their dissatisfaction to the dynamics of their specific process and the personality of the offenders in their cases.

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Chapter Three In this specific case there was no one to talk to. (V2)

These participants thought that in other circumstances FGC would have achieved more favorable outcomes. In cases that included an apology by the offender, this seemed to play a central role in the sense of satisfaction and the feeling that the offender had taken responsibility for his actions. However, this was true only when the victim perceived the apology as sincere. For me the strongest thing was his apology. That he stood up and shook my hand. You could see he really meant it . . . he took responsibility for himself . . . I don’t think he would harm me or anyone else, he really meant [it], he and his family. (V5)

The absence of an anticipated characteristic aroused doubts about the offender’s intentions. One participant expected the offender to promise not to repeat his deeds. His failure to do so was experienced as lack of sincerity. The offender didn’t take responsibility, to the best of my knowledge . . . he said he was sorry, but he didn’t mean it. What is important is the abandonment of the sin – that the child undertakes not to do this again. Say it. Says “I promise not to do it any more” . . . in this specific case there was no one to talk to. (V2)

These feelings were expressed in the participants’ descriptions of how the process had affected their lives.

Post-procedural effects It seems that the feelings that emerged following the FGC influenced the ways in which the victims described their experiences. The effects described vary from pain and loss, indicating re-victimization following the process, on one hand, to healing, growth, and satisfaction, on the other hand. Re-victimization was indicated by the expression of harsh feelings at time of the interview, such as fear of being hurt or deceived by the process, being exploited for the sake of the offender’s rehabilitation, or a sense of alienation towards the system that enabled such outcomes. I’m still not living well with this . . . In retrospect, it was a punishment – it was a punishment for me and I have invested so much time in it. I don’t know why I agreed?! I’m not sure I didn’t lose from this situation, which didn’t do me any good. (V1)


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The purpose was to help the boy. It didn’t help me . . . I don’t think it helps. Why have they woken up only now? . . . It might help the kid, the organization. The boy couldn’t do anything except feel shame. It should be tested again . . . I’m not upset or anything. It was and now it’s over . . . I didn’t feel anything changed. The offender didn’t take responsibility. (V2) The legislation in Israel makes crime worthwhile . . . the punishments are outrageously mild, not like in the United States . . here we go backwards. The corruption begins from the government, but the citizen is the one to pay the whole price . . . I came to FGC to get my money back and to get some answers. From the first boy I got it all - no complaints. But from the second boy, nothing. And that hurts . . . the conferencing was aimed at improving my feelings but he couldn’t do that. More limits should have been imposed on him. (V6)

Participants referred to fears of being hurt again in the future or of their offender committing the same offense again. One participant didn’t fear being hurt by the same offender, but by others. Before FGC I feared he would hurt me again . . . Now I know he wouldn’t and I’m not afraid anymore . . . There were all these things the coordinator told me of how to protect myself. This offense - I don’t really remember . . . it’s over. But when I think of it I’m actually a little scared of similar deeds. (V5)

Few participants reported no real effect of the program. One participant said the anger he felt before the FGC faded away once he saw it was only a child, but apart from that he didn’t experience any real change. When I saw the car I was furious. I was really angry. I thought that if I’d catch whoever did it I would take revenge . . . but then I saw it was only a child . . . but there was no real change. There is insurance, an alarm, I have replaced the car . . . but I didn’t feel anything really changed [after the program]. (V2)

Participants who reported satisfaction with the program referred to resolution of the situation, creation of a relationship based on mutual respect, a sense of control and empowerment, ability to see the offender as a human being, less fear, healing, growth, and the ability to learn from the process. After these meetings I felt that at least I felt better (but I felt that others did, as well). I was so shocked during the weeks [after the offense] that I lost faith in people . . . I couldn’t trust . . . One thing that is important for

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Chapter Three me to express is the great feeling after the meeting . . . today we are happy to say hello to each other when we meet occasionally on the street. (V3) It helped and made things easier. I was scared to go out of my home . . . [the meeting] showed the real face of the person who harassed me [on the phone]. I felt liberated. Before, I was afraid [of who] it would be . . . then I saw it was just some boy with no self-confidence . . . at the end I was satisfied. I felt relief. I had the ability to say what I had to say . . . I felt proud, more confident. Today it doesn’t bother me any more. (V4) The boy touched me deeply. There was a personal aspect. It healed me. . . . felt good with doing this, it was important . . . it made me feel good . . . something good that I did. It also helped my partner . . . it helped our relationship. . . . I also got flowers and an apology letter from another boy, that means it has results. It expands the heart and the love . . . [you] grow from it . . . I learned a lot from this meeting. (V7)

These descriptions indicate the restorative aspects and some relief of the injuries caused by or leading to the offense (Boyes-Watson, 2000; Johnstone & Van Ness, 2007; Marshall, 1996; McCold, 2000; Umbreit, 1994; Walgrave, 2002).

The interaction among the central themes In order to better understand the interaction among the central themes of the participants’ narratives, the relationships between different themes that emerged were organized in a bidirectional graph. Table 1, based on that graph, presents the correlations between the eight themes identified in the narratives. If any of the texts refer to a relationship between one theme (the effect factor) and another (the factor affected), the corresponding cell is marked as “yes”; if not, it is marked as “no”. The number of cells marked “yes” in each column and each row were counted to determine the degree to which each factor affected or was affected by other factors. Thus for each theme we obtained a score of effect (far right column), which indicates how many other themes it was perceived to affect, and a score for the degree affected (bottom row), which indicates how many other themes are perceived as affecting it. For example, the narratives indicated that victims associated their consent to participate with their perceptions of how they were prepared, power interactions, professional interactions, offender’s reaction and post-procedural effects (a total of five themes, leading to an effect score of 5 for “consent to participate” – the second row of the table). In parallel, the victims’ perceptions of the preparation, power interaction,


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help offered to the offender, alternative to the legal system, and professional staff (a total of five themes, as well) influenced how they viewed their consent to participate – leading to a degree affected score of 5 for the theme “consent to participate” (the second column). Table 1: Interaction between Themes Effect

Factor affected Preparation

Consent to participate

Power interactions

Helping the offender

Alternative to legal system

Professional interactions

Offender's reaction

Postprocedural effects

Preparation

x

yes

yes

yes

yes

yes

yes

yes

7

Consent to participate

yes

x

yes

no

no

yes

yes

yes

5

Power interactions

yes

yes

x

yes

yes

yes

yes

yes

7

Helping the offender

yes

yes

yes

x

yes

yes

yes

yes

7

Alternative to legal system

yes

yes

yes

yes

x

yes

yes

yes

7

Professional interactions

yes

yes

yes

yes

yes

x

yes

yes

7

Offender's reaction

no

no

yes

yes

yes

yes

x

yes

5

Postprocedural effects

no

no

yes

no

yes

yes

yes

x

4

5

5

7

5

6

7

7

7

Effect factor

Degree affected

The table reveals that four themes that refer to the preparation phase (the professional interventions, the power interactions, the idea of helping the young offenders, and the concept of an alternative to the legal system) were the most influential in the victims’ experiences of the Kedem program. Each of these themes was obtained an effect score of 7 points (far-right column). The themes of power interactions, professional interventions, offenders’ reactions, and the post-procedural effects were the ones affected most by other aspects of the process (degree affected, bottom row of the table). Analysis of the table suggests that professional, empowering intervention that is sensitive to the participants’ interests and perceptions, as well as the idea of helping the offender in an alternative

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process to the legal system should have been emphasized more strongly during the preparation phase. Why wasn’t more attention given to victims’ needs? This may be a result of modern society’s cultural tendency to ignore and minimize pain and subjective grievances (Cobb, 1997; Scarry, 1985). Furthermore, pain is easily ignored due to difficulty of objectifying it. Another explanation is offered by Bowen & Boyack (2003), who found that FGC and RJ practitioners tend to focus the intervention on the responsibility of the young offender, and may therefore overlook the victims’ needs. Indeed Kedem, which was initiated by the Youth Probation Service, focused mainly on the reintegration of the young offenders in society. The present findings indicating re-victimization corroborate results from other offender-oriented RJ programs (Sherman & Strang, 2007; Umbreit et al., 2006; Vanfraechem, 2002, 2003), which suggest that these processes should focus on victims rather than on the reintegrating offenders. It seems that focus on the victims’ needs and interests in the Kedem program would lead to more restorative results.

Conclusions and practical implications The purpose of this study was to investigate the perceptions, thoughts, and feelings of victims who participated in Kedem, an experimental FGC program. The analysis was based on narratives produced by in-depth phenomenological interviews. This research method is effective in achieving a deep understanding of the subjective and unique processes by which the participants construct their experiences; thus it is appropriate for studying experimental programs such as Kedem. However, in light of the qualitative methods as well as the small sample, the ability to generalize the results to other RJ programs is limited. Therefore, further research on the interactions and influences among themes is suggested. Overall, the findings indicate that participants felt satisfaction, mutual respect, and a sense of just process and outcomes. In these cases, the participants reported that they felt their needs and expectations had been met. Such feelings indicate the achievement of restorative results (Walgrave, 2002, 2003). The same participants also indicated empowerment, sense of control, and less fear prior to the process. As a result, they felt less pressure and dependence on professional interventions. From the onset, they saw their role in the process as helping the young offenders and expected to gain almost nothing for themselves. In comparison, in the cases where re-victimization was apparent, the participants reported a sense of social pressure and indicated that their


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needs and expectations had not been met in the process. These participants felt limited control over the outcomes. Thus the results indicate that the participants who had a greater sense of confidence, empowerment, and control before the process experienced positive and restorative outcomes, while the participants who initially indicated fear, limited control, and higher dependence on its results experienced a sense of re-victimization. This suggests the need for deeper consideration of participant expectations and interests prior to the conferencing. Participants who indicate greater needs and fears, expectations of personal profit, or ambivalence about the idea of helping the offender or participating in an alternative to the legal process may not be ready yet to take part in conferencing. Participation under these conditions could potentially lead to a sense of further victimization. Based on these conclusions, it would be useful to consider four questions in conducting a successful FGC program: What are the main reasons (practical, emotional, or guilt-related) expressed by the victim for participating in the RJ or FGC program? What are the main expectations from the program’s outcomes (compensation, helping the young offender)? What are the victims’ feelings and thoughts regarding the idea of helping the (young) offender? What is the victim’s attitude towards using an alternative to the legal system? Answers to these questions might offer RJ and FGC practitioners a better idea regarding the vulnerability or potential empowerment of the victims in a meeting with the offender.

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Mackay, R. Bosnjack, M. Deklerck, J. Pelickan, C. van Stokkom, B., & Wright, M. (Eds.). (2007). Images of restorative justice theory. Frankfurt am Main: Verlag fur Polizeiwissenschaft. Marshall, T. (1996). The evolution of restorative justice in Britain. European Journal of Criminal Policy and Research, 4(4), 21-43. McCold, P. (2000). Towards a holistic vision of restorative juvenile justice: A reply to the maximalist model. Contemporary Justice Review, 3(4), 357-414. McCold, P., & Wachtel, T. (2002). Restorative justice theory validation. In E. Weitekamp & H. J. Kerner (Eds.), Restorative justice: Theoretical foundations (pp. 110-42). Cullompton, UK: Willan Publishing. Menkel-Meadow, C. (2007). Restorative justice: What is it and does it work? The Annual Review of Law and Social Science, 3, 161-187. Miller, J. (2000). One of the guys: Girls, gangs and gender. New York: Oxford University Press. Minichiello, V., Aroni, R., Timewell, E., & Alexander, L. (1990). In-depth interviewing: Researching people. Melbourne: Longman. Morris, A., & Maxwell, G. (2003). Restorative justice in New Zealand: Family group conferencing as a case study. In G. Johnstone (Ed.), A restorative justice reader: Text, sources and context (pp. 201-211). Devon, UK: Willan Publishing. Olshtain, E. (1989). Apologies across languages. In S. Blum-Kulka, J. House & G. Kasper (Eds.), Cross-cultural pragmatics (pp. 155-173). Norwood, NJ: Ablex. Olshtain, E., & Weinbach, L. (1987a). Apology: A speech act set. In N. Wolfson & E. Judd (Eds.), Sociolinguistics and language acquisition (pp. 18-35), Rowley, MA: Newbury House. Olshtain, E., & Weinbach, L. (1987b). Complaints: A study of speech act behavior among native and non-native speakers of Hebrew. In J. Verschueren & M. Bertuccelli-Papi (Eds.), The pragmatic perspective (pp. 196-208). Amsterdam: Benjamins. Price, M. (1998). Crime and punishment: Can mediation produce restorative justice for victims and offenders? [Electronic version]. Online Journal of Peace and Conflict Resolution, VORP Information and Resource Center. Retrieved February, 28, 2008, from http://www.vorp.com/articles/crime.html Raven, B. H. (1992). A power interaction model of interpersonal influence: Franch and Raven, thirty years later. Journal of Social Behavior and Personality, 7(2), 217-244.


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Raye, B. E., & Warner Roberts, A. (2007). Restorative processes. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restorative justice (pp. 211-227). Devon, UK: Willan Publishing. Reeves, H. (1989). Victim support perspective. In M. Wright & B. Galaway (Eds.), Mediation and criminal justice: Victims, offenders and community (pp. 44-55). London: Sage Publication Ltd. Rivkin, D., & Shmaia-Yadger, S. (2007). Evaluation of the KEDEM program: Family group conferences for youth offenders [Electronic version]. Jerusalem: Engelberg Center for Children and Youth, MyersJDC-Brookdale Institute. ( In Hebrew). Retrieved January, 15, 2008, from http://brookdale-en1.pionet.com/default.asp?catid={A23B143223B3-4D31-8B76-81F70B15E8D2} Roche, D. (2004). Accountability in restorative justice. New York: Oxford University Press Inc. Ruth, H., & Reitz, K. R. (2003). The challenge of crime. Cambridge, MA: Harvard University Press. Scarry, E. (1985). The body in pain: The making and unmaking of the world. New York: Oxford University Press. Schiff, M. (2007). Satisfying the needs and interests of stakeholders. In G. Johnstone & D. W. Van Ness (Eds.), Handbook of restorative justice (pp. 228-246). Devon, UK: Willan Publishing. Seidman, I. E. (1991). Interviewing as qualitative research. New York: Teachers College Press. Sherman, L. W., & Strang, H. (2004). Experimental ethnography: The marriage of qualitative and quantitative research. The Annals of the American Academy of Political and Social Science, 595(1), 204-222. Sherman, L. W., & Strang, H. (2007). Restorative justice: The evidence.[Electronic version] London: The Smith Institute. Retrieved June 13, 2008 from http://www.smith-institute.org.uk/pdfs/RJ_full_report.pdf Sherman, L. W., Strang, H., Angel, C., Woods, D., Barnes, G. C., Bennett, S., et al. (2005). Effects of face-to-face restorative justice on victims of crime in four randomized, controlled trials. Journal of Experimental Criminology, 1, 367-395. Shkedi, A. (2003). Words of meaning: Qualitative research – theory and practice. Tel Aviv: Ramot Publishers–Tel Aviv University. (In Hebrew) —. (2004). Second-order theoretical analysis: A method for constructing theoretical explanation. International Journal of Qualitative Studies in Education, 17(5), 627-646. Spinelli, E. (2002). The interpreted world: An introduction to phenomenological psychology. London: Sage Publications Ltd.

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Spradley, J. P. (1979). The ethnographic interview. New York: Holt, Rinehart and Winston. Strang, H. (2003). Repair or revenge: Victims and restorative justice. Oxford: Oxford University Press. Strang, H., Sherman, L. W., Angel, C. M., Woods, D. J., Bennett, S., Newbury-Birch, D. et al. (2006). Victim evaluations of face-to-face restorative justice experiences: A quasi-experimental analysis. Journal of Social Issues, 62(2), 281-306. Strauss, A. L. (1987). Qualitative analysis for social scientists. Boston: Cambridge University Press. Strauss, A. L., & Corbin, J. (1990). Basics of qualitative research: Grounded theory procedures and techniques. London: Sage Publications. Strauss, A. L., & Corbin, J. (1994). Grounded theory methodology: An overview. In N. K. Denzin & Y. S. Lincoln (Eds.), Handbook of qualitative research (pp. 273-285). Thousand Oaks, CA: Sage. Stutzman-Amstutz, L., & Zehr, H. (1998). Victim offender conferencing in Pennsylvania’s juvenile justice system. Lancaster, PA: Mennonite Central Committee. Tyler, T. R. (2000). Social justice: outcome and procedure. International Journal of Psychology, 35(2), 117-125. Umbreit, M. S. (1994). Victim meets offender: The impact of restorative justice and mediation. Monsey, NY: Criminal Justice Press. Umbreit, M. S., & Fercello, C. (1997). Family group conferencing program results in client satisfaction. Juvenile Justice Update, 3(6), 3-13. Umbreit, M.S., Vos, B., & Coates, R. B. (2006). Victim offender mediation: An evolving evidence-based practice. In D. Sullivan & L. Tifft (Eds.), Handbook of restorative justice: A global perspective (pp. 52-61). London and New York: Routledge. United Nations Office on Drugs And Crime – Vienna. (2006). Handbook on restorative justice programs - Criminal justice handbook series. New York: United Nations Publication. Vanfraechem, I. (2002). Implementing conferencing in a legalistic country. [Electronic version]. From a session presented at Dreaming of a New Reality, the Third International Conference on Conferencing, Circles and Other Restorative Practices, August 8-10, 2002, Minneapolis, Minnesota. Retrieved October 5, 2004 from http://www.iirp.org/Pages/mn02_vanfraechem.html —. (2003). Implementing family group conferences in a legalistic system. the example of Belgium. In L. Walgrave (Ed.), Repositioning restorative justice (pp. 313-327). Devon, UK, Willan Publishing.


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Van Ness, D. W. (2002). The shape of things to come: a framework for thinking about a restorative justice system. In, E. G. M. Weitekamp & H. J. Kerner (Eds.), Restorative justice: Theoretical foundations (pp. 120). Devon, UK: Willan Publishing. Walgrave, L. (2002). Restorative justice and the law: Socio-ethical and juridical foundations for a systemic approach. In L. Walgrave (Ed.), Restorative justice and the law (pp. 191-218). Cullompton, UK: Willan Publishing. —. (2003). Restorative conferences with serious juvenile offenders: An experiment in Belgium. [Electronic version] Paper presented at Building a Global Alliance for Restorative Practices and Family Empowerment, the Fourth International Conference on Conferencing, Circles and Other Restorative Practices, August 28-30, 2003, Veldhoven, Netherlands. Retrieved October 5, 2004, from http://www.iirp.org/library/nl03/nl03_walgrave.html Weinbach, L., & Brosh, L. (1986). Art of speech: Interpersonal communication and speech act. Tel-Aviv: University Programs Press. (In Hebrew) Weitekamp, E. G. M. (1999). The history of restorative justice. In G. Bazemore & L. Walgrave (Eds.), Restorative juvenile justice: Repairing the harm of youth crime. Monsey, NY: Criminal Justice Press. Wright, M. (1996). Justice for victims and offender: A restorative response to crime. (2nd ed.). Winchester: Waterside Press. —. (1999). Restoring respect for justice: A symposium. Winchester: Waterside Press. —. (2008). Making good: Prisons, punishment and beyond. (2nd ed.). Hampshire: Waterside Press. Yanai, U., Sharvit R., & Grabli, S. (2001). Victim-offender conferencing: A way to reconciliation and reducing crime in the community. Society and Welfare, 21(1), 27-50. (In Hebrew) Zehr, H. (1995). Changing lenses, a new focus for crime and justice (2nd ed.). Scottsdale, PA: Herald Press. —. (2002). The little book of restorative justice. Intercourse, PA: Goodbooks. Zalmanovitch, Y. (1998). Transitions in Israel’s policymaking network. Annals of the American Academy of Political and Social Science, 555(1), 193-208.

CHAPTER FOUR RESTITUTION: A MULTILATERAL PENAL APPROACH SHARON AHARONY–GOLDENBERG AND YAEL WILCHEK–AVIAD

Abstract This chapter critically examines the absence of the penal sanction of restitution in Israel – the return of stolen property by the offender to victims of property offences (as opposed to monetary compensation). It analyzes the current and suggested punitive schemes through the lenses of the three protagonists of the offence – the victim; the state and the offender. It concludes that punitive mechanisms that lack the sanction of restitution, and perhaps leave the stolen items in the offender’s hands, may be perceived as symbolic triumph of crime; obstruct the offenders’ moral rehabilitation; prove to be frustrating for the victims; and cause them to refrain from cooperating with the justice authorities. The chapter therefore suggests an integrative penal scheme, composed of restitution, compensation and fines, and accompanied by a scheme of work, designed to provide a destitute offender with the means to meet his or her liabilities under the monetary proposed sanctions.

Introduction Criminal law has historically focused on offenders and their culpability (Sebba, 2000) rather than on their victims, thus leaving them outside the criminal discourse. In fact, the Committee of Ministers of the Council of Europe noted that “the objectives of the criminal justice system have traditionally been expressed in terms which primarily concern the relationship between the state and the offender” (Council of Europe, 1985, preamble). This was, and to a large extent still is, the case in the

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sentencing stage, where the courts tend to concentrate on the offender’s prospects of rehabilitation, while ignoring the victim’s interests and needs. In fact, with regard to property offences, the typical punitive device usually imposed in most countries was and is either imprisonment or fines. Unless their stolen property was seized by the police, these typical punishments do not serve the victims’ interest in retrieving it. Otherwise, in order to get it back, the victims are constrained to employ a lawyer and initiate long and expensive independent civil proceedings against the offender (see for example, section 55 of the Israeli Torts Ordinance, [New Version]). Until several decades ago, very few countries had legislation that empowered criminal courts to order property offenders to restore the stolen goods to the rightful owners – their victims (Brienen & Hoegen, 2000; Schaffer, 1970). In recent years there has been a shift in the attitude towards the sanction of restitution that applies to the return of spoils to the victim in the criminal arena and it has been adopted in several legal regimes. For example, it is incorporated in the US Mandatory Victims Restitution Act of 1996 and in the English Theft Act 1968. Conversely, Israel does not have a penal measure that authorizes the courts to order the return of the spoils. The problematic aspects of this state of affairs may be illustrated in the case of The State of Israel vs. Natalia Sokolov, (2003). Natalia broke into Julia’s house and, inter alia, stole her gold necklace and probably caused her monetary expenses (for example, a broken lock caused by breaking into her house) and emotional stress. Natalia was sentenced to three months in prison and to a further conditional prison sentence, but the sentence did not stipulate for the return of the stolen jewelry to the victim - Julia. The considerable flaws in the current situation from the victims’ perspective necessitate the examination of a penal provision that might satisfy their interests – the return of their stolen property. In fact, the Council of Europe recommends that a government of member states “promote and encourage research on the efficacy of provisions affecting victims” (Council of Europe, 1985, Part G). This chapter addresses the question of whether the sanction of restitution should be incorporated into penal codes, in lieu of or in addition to other existing penalties in property offences, such as compensation, fines and imprisonment. The term “restitution” refers to the return of stolen property (for example, a stolen necklace) by the offender to the victim. This term should not be confused with ”financial restitution” or ”monetary restitution” – the repayment of the monetary value of the spoils. It should neither be mistaken with the term ”compensation” that refers to the monetary payment of money by the offender to the victim to cover his or her physical (for instance, a broken

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lock) and emotional harm. Sometimes this sanction may also serve to cover for some of the value of the stolen goods. This sanction is limited to monetary compensation and does not provide for the return of the specific stolen item (See for example, section 77 of the Israeli Penal Code, 1977). The first part of this chapter describes the changing role of the victim in the criminal process. The second part analyses the current methods of punishment from the perspectives of the three major protagonists in a property offence – the victim, the offender and the state. The third part examines the sanction of restitution from these three different perspectives, while analyzing the conflicting dilemmas involved in the adoption of this penalty. The last part introduces the proposed punitive scheme.

Part I: The protagonists in the punitive process This part of the chapter generally analyzes the role of the victim in the sentencing phase, while also referring to the position of the other two protagonists involved in this process – the state and the offender. Historically, the victim’s role in the criminal process has been limited to the reporting of crime, and - if required by the prosecution - to testifying at trial (Sankoff, 2007), while criminal law focused on the offender and his or her rehabilitation. Hence, the crime victims’ painful experiences as well as their material interests and needs were mostly disregarded (Barker, 2007). The immorality of this state of affairs led to the development of various victims’ movements. The Victims’ Rights Movement has brought about an alteration in the treatment of the victim in the criminal procedure as well as an analysis of crime, not only from the perspective of offender correction, but also from the perspective of the victim (Galaway & Hudson, 1975). One of the positive outcomes of this change is The Recommendation (85) 11 of the Council of Europe which stipulates: “… it must be a fundamental function of criminal justice to meet the needs and to safeguard the interests of the victim” (Council of Europe, 1985, preamble). Later on, the spirit of this movement translated into specific legislation. For example, section 142 (e) of the Criminal Justice Act 2003 (UK) provides that “the making of reparation by offenders to persons affected by their offenses” is one of the purposes of sentencing that the court must consider. Similarly, the American Congress has recently adopted the Crime Victims’ Rights Act (CVRA) of 2004, which guarantees crime victims a range of rights, including the right to be treated fairly in the criminal process. This trend has also affected the rulings of the judiciary. For instance, the Israeli Supreme Court has ruled that the aims of the criminal procedure are complex and are designed to safeguard not only the


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rights of the accused, but also those of the victim (Ploni vs. Attorney General, 2007). An additional positive outcome of the Victims’ Rights Movement’s activity is manifested in victim-impact statements. These statements serve a dual function – as a therapeutic tool for the victims (Sankoff, 2007) and as an informational source for the court. In this regard, they are designed to illuminate for the sentencing court the specific effects of a crime on its victims (Ashworth, 2005; Sebba, 2000; Long, 1995). Victim-impact statements have been adopted in many countries, including, New Zealand (the Victims of Offences Act 1987) (Sankoff, 2007) and Israel (Rights of Victims of Crime Law, 2001). Section 18 of this Law provides that the victim of crime (including victims of property offences) is entitled to provide the court, via the prosecution, with a victim statement with regard to the damage he or she incurred due to the offence, including physical, mental or material damage. While this provision does not stipulate any penal measures, we hold that the mere inclusion of the victim’s voice in the punitive process may indirectly influence the court to redress his or her needs by ordering compensation. Victim impact statements are also commonplace in the United States, where most states afford victims the opportunity to address the sentencing authority either in person or in writing, while many require the sentencing authority to consider the information provided when determining the appropriate punishment (Long, 1995). Furthermore, the newly enacted US Crime Victims’ Rights Act (CVRA) of 2004 includes the right to be heard at appropriate points in the legal process and it directly confers upon victims standing to assert their rights (Cassell, forthcoming). An additional factor that led to the elevation of the victim’s status in the criminal arena is restorative justice – a sentencing model of growing importance. Its fundamental notions are the inclusion of the victim in the criminal process and that “justice to victims should become a central goal of the criminal justice system and of sentencing” (Ashworth, 2005, 88). It targets the healing of wrong done by, inter alia, repaying the debt; victimoffender reconciliation; and bringing about an apology (Kurki, 2000; Van Ness, 1996; Van Ness & Heetderks, 2002; Zehr, 1990). According to this model, another important stakeholder in the criminal process is the community (Ashworth, 2005; Braithwaite & Makkai 1991). Restorative Justice is used by some countries as an alternative to formal prosecution (Shechory, Ben-David, & Jacob, in print). It has been generally associated with practices such as restitution, community service and Victim-Offender Mediation. Notwithstanding the great importance criminal law should attribute to the victims’ needs, their interests should not be the sole concern of the

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punitive process. Generally, safeguarding the victims’ interests and their inclusion in the penal discourse is within society’s interests. Otherwise, if the victim is denied any material benefit from the criminal procedure, she or he may refrain from pressing charges against the offender and cooperating with the burdensome process of investigation. This abstention may limit society’s ability to pursue criminal incidents effectively (Zedner, 2004) and obstruct the maintenance of law and order. This concern is echoed in the EU Recommendation, which states that safeguarding the victim’s interests is needed in order to “enhance the confidence of the victim in criminal justice and to encourage his co-operation, especially in his capacity as a witness” (Council of Europe, 1985, 11). The third player in the criminal process is the offender, whose rehabilitation is important both for the victim and for society, since it may enhance their security and guarantee the safeguard of their property. Nevertheless, we believe that the victims’ needs should take precedence over the offender’s correction, as victims are the law-abiding protagonists and lack all culpability.

Part II: Analysis of the typical sanctions in property offences In criminal legal systems that do not incorporate the sanction of restitution, the relevant traditional punishments implemented by the courts in property offences are usually imprisonment and fines. In some lesser cases (Brienen & Hoegen, 2000; Yannai, 1997), the sanction of compensation is also adopted (the other existing punishments, such as probation and Community Service, will not be analyzed in this chapter). This part will examine the merits and deficiencies of these punitive tools from the perspectives of the victim, the state and the offender.

Current sanctions – the perspective of the victim The primary material interest of victims of property offences is the correction of the harm done through the return of their stolen goods and the award of compensation for any material and emotional damage incurred by the theft (Walther, 1996). However, current punitive devices rarely achieve this interest. Imprisonment does not benefit the victims, except for mainly providing them with temporary security by confining and incapacitating the offender (Morris & Tonry, 1990). Similarly, the revenue derived from fines is paid to the Treasury – the State, rather than to the victims. Conversely, the sanction of compensation – the monetary award paid by the offender to the victim for the harm caused by the


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offence – is an important exception to the prevalent attitude of exclusion towards victims in the punitive process. Compensation may assist in meeting the victims’ financial needs and in reducing their distress (Outlaw & Ruback, 1999). It may introduce the physical, psychological and material harm suffered by the victim into the criminal discourse. Furthermore, as indicated by the Israeli Supreme Court, the imposition of compensation achieves several goals: Providing the victim of crime with an immediate remedy, without him having to wait for the civil proceedings in his case to end; in some cases, provided he is satisfied with its amount, it may also spare the victim a reencounter with the offender who harmed him during the civil proceedings; and public recognition of the hardship endured by the victim. (Bodgeser vs. The State of Israel, 2008, p. 2).

Currently, a sanction of compensation is incorporated in the criminal procedures of numerous countries. These include The Netherlands (the 1995 Terwee [Victim Assistance] Act), Scotland (Criminal Justice (Scotland) Act 1980) (Brienen & Hoegen, 2000), England (ss. 130-134 of the Powers of Criminal Courts (Sentencing) Act, 2000) and Israel (Section 77 (c) of the Penal Code, 1977). In the USA, all states have a law permitting compensation for financial losses, and 29 states mandate this sanction, unless the judge provides compelling reasons for not doing so (Ruback & Shaffer, 2005). Similarly, Recommendation 10 of the Council of Europe (1985) provides for monetary compensation by the offender to the victim. However, the mere authority to order compensation does not necessarily entail its de facto implementation by the criminal instances. In continental Europe, compensation is seldom awarded by the criminal courts, since it relies on the rare use of joint civil claims for damages (Brienen & Hoegen, 2000). In England and Wales, compensation used to be awarded in only a minority of cases (Brienen & Hoegen, 2000), but this has changed in recent years. In fact, in 2002 “over half of offenders convicted at magistrates’ courts of indictable offences of criminal damage were ordered to pay compensation” (Ashworth, 2005, p. 3). Similarly, until recently the criminal courts in Israel tended to refrain from ordering compensation (Karp, 1996). However, as mentioned in the case of Ploni vs. Attorney General, 2007, nowadays there is a growing tendency to encourage the application of section 77 of the Penal Code, 1977 (compensation). Supreme Court President Beinish (Ploni vs. Attorney General, 2007) noted that this change is attributed to the improvement of the victims’ status in the criminal arena and to the recognition of their

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right to be compensated for any bodily, mental and material loss they incurred. Another factor that may explain the increasing use of the sanction of compensation by the criminal instances is the granting of the right to make a victim personal statement to the court. Although compensation represents an important recognition of the victim’s interests in the criminal system, it is insufficient as a sole penalty for several reasons. First, the order of compensation rarely covers the full amount of the damage suffered by the victim (Brienen & Hoegen, 2000), inter alia, since it is usually restricted to a maximum sum, as is the case in Israel (section 77 of the Penal Code, 1977). Therefore it does not fully compensate for the loss occurred by the victim. In England a compensation order issued by a magistrates’ court may not exceed £ 5,000, although there is no limit on the amount of compensation orders issued by superior judicial instances (Brienen & Hoegen, 2000). Second, as compensation is limited to the transfer of money and not to specific restitution, the injured party is still deprived of his or her assets while the perpetrator of the offence may still retain them, which may prove to be frustrating for the victim. In fact, it may be assumed that victims are interested in receiving specific restitution rather than monetary restitution, since the emotional attachment to their property may exceed its objective value (Radin, 1981). Going back to our example, it seems that Julia would prefer to retrieve her stolen necklace rather than receive its value, since she is emotionally attached to it. In countries such as Israel, where the sanction of restitution is not employed, the only theoretical recourse available to victims, in order to regain their stolen property is to initiate independent civil proceedings against the offenders. However, filing a civil action is time and money consuming, and not always beneficial, since, inter alia, it requires the gathering of evidence, which is a difficult and expensive mission (Heriot, 1996). Ironically, the imposition of the traditional punishments of imprisonment and fines may render the tortuous law suit even less feasible, since they impede the criminal’s financial situation. In fact, the Council of Europe, noted that “the operation of this system has sometimes tended to add to rather than to diminish the problems of the victim” (1985, preamble). Consequently, the victims of property offences rarely file a tort. The above analysis indicates that the traditional punitive schemes barely address the interest of property offense victims – the correction of harm done through the return of their stolen goods. The absence of the correction of the material harm done to the victim may result in a frustrated victim who may possibly seek revenge.


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Current sanctions – the perspective of society When considering the society’s perspective, it seems that fines, imprisonment and compensation have an important social role in protecting the public interest. Imposing fines on property offenders may abolish the motive for property offences – the achievement of financial advantages – and thus serve as a deterrent factor (Van Slyke, Waldo & Bales, 2008). Imprisonment serves as a retributive tool to convey society’s outrage with regard to the offence (“Just Deserts”) (Abel, 2008) and it may also have a considerable general deterrent effect on potential wrongdoers (Schaffer, 1970). However, incarceration has several problems: cost analysis of imprisonment demonstrates that it entails heavy economic burdens on the state, such as expenses for prison construction, prisoner maintenance and wages for the wardens (King, 2008). It thus increases the number of victims, which include not only direct victims, but also taxpayers who bear the costs thereof (Ferri, 1917, in Galaway & Hudson, 1975). In addition, since the proceeds of fines are directed at the Treasury, they are of pecuniary importance to the state. According to Nobel laureate Becker (1968), the frequent award of compensation to victims by the offenders may increase social welfare, since it does not use up social resources and as it is rather limited to transfer payments. Moreover, as indicated by the Israeli Supreme Court (Mizrachi vs. Attorney General, 2008), the sanction of compensation serves as a deterrent factor on property offenders: The severity of property and deceit offences that involve such significant amounts of money obliges the court to convey a clear and sharp message of deterring punishment that does not spare the thief and endeavors to collect from him the fruits of his deeds.

Furthermore, to some extent this sanction may satisfy the victims, appease their frustration and possibly enhance their collaboration with the legal authorities in reporting the crime etc. Otherwise, the lack of direct interest in the outcome of the punitive process may cause the victim to lose interest in it and to refrain from cooperating with the policing authorities and the courts (Zedner, 2004). Offenders usually dispose of stolen property as quickly as possible by, for example, selling it to third parties, but in some cases they retain it or pass it on to a close person. In those instances, the absence of sanction of restitution allows the lawbreaker to retain the spoils while the injured party remains deprived thereof. We believe that leaving the stolen property in the offender’s hands symbolizes the triumph of crime and may obstruct the

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general deterrent effect achieved by other punitive devices as well as the offender’s moral rehabilitation. Furthermore, the injustice that is attached to this state of facts and the frustration caused by the lack of restoration may reduce the victims’ cooperation with the legal authorities and limit the social achievement of law and order.

Current sanctions – the perspective of criminal rehabilitation Historically, the introduction of the punishment of imprisonment in 1717 sought to substitute corporal punishment and was aimed at achieving penal correction by giving offenders the chance to repent for their sins (Leder, 2004). The beneficial effect of imprisonment is presumed to be that a released convict may be less likely to revert to criminal behavior (Lewis, 1986). However, de facto, in most cases, imprisonment does not fulfill its rehabilitative role and its promotion of occupational advancement is deficient (Leder, 2004). Rather, it results in negative psychological effects, bitterness and vengeful thoughts on the part of the criminal (Haney & Lynch, 1997; Rotman, 1994). These feelings may be due to the fact that the offender conceives this punishment as nonproportional and dehumanizing (Leder, 2004). Furthermore, it may be claimed that incarceration cultivates rather than reforms the tendency among property offenders to exploit others, since for the duration of their imprisonment they are freely provided with all their basic material needs. The end result is that prisons seem to be criminogenic (King, 2008; Vieraitis, Kovandzic & Marvell, 2007), i.e. conducive to criminal behaviour rather than correctional. The other punitive device incorporated in property offences is the fine. The imposition of fines is the most common penal measure used in England (Ashworth, 2005). Since fines are proportional to the desert of the offender – to the wrong done (Kannay, 2003) and fair with regard to the offender’s dignity, they may prevent his or her bitterness against the penal system. However, in certain cases fining may cause re-offending aimed at procuring the money required for fulfilling the court’s order, and thus obstruct rehabilitation (Morris & Tonry, 1990). Compensation has numerous advantages in respect of the offender. First, compensation forces offenders to take responsibility for the harm they cause: By accepting responsibility and repairing the damage to the victim in a tangible way, offenders may reap benefits that remain long after the criminal sanction has ended, including taking responsibility in other


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aspects of their lives and avoiding criminal behavior in the future. (Outlaw & Ruback, 1999, p. 850).

Yet, Outlaw and Ruback (1999) argue that in order for the compensation to be effective, offenders must understand its reparative intent. Furthermore, the payment of compensation may contain an element of purification for the offender and serve as a “symbolic-educative-moral” assistance in his or her rehabilitation (Bodgeser vs. The Attorney General, 2008). Notwithstanding the impressive merits of the sanction of compensation from the offender’s position, it may have some disadvantages too. One problematic aspect of this type of economic sanctioning, which also applies to fines, concerns the fact that it may hinder the offender’s financial rehabilitation and cause his or her return to crime in order to pay the debt. In fact, Miller (1981) found that property offenders ordered to compensate their victims as a condition of their probation had a more difficult probation experience, with more revocations filed against them and more health and money problems. This concern is manifested in the English requirement for the courts to take into account the offender’s economic means when deciding to make an order of compensation (Powers of Criminal Courts [Sentencing] Act 2000). Therefore, the courts’ frequent abstention from awarding compensation to victims (Brienen & Hoegen, 2000; Yannai, 1997) might be explained by the concern for the criminal’s economic rehabilitation. When considering the existing punishment from the perspective of the offender’s rehabilitation, it seems that the absence of the sanction of restitution, which often allows delinquents to retain the stolen goods, may impede their moral correction. In fact, theoretically, it may strengthen the offenders’ erroneous belief that “crime pays” (Hassin, 1987) and that the criminal mode of life is fruitful. In summary, this part of the chapter evaluates existing punitive tools through the lenses of the victim, society and the offender. It shows that the current penal mechanisms achieve some of the traditional aims of punishment: deterrence, incapacitation, rehabilitation and desert (Ashworth, 2005). However, when these mechanisms lack the sanction of restitution and perhaps leave the stolen items in the offender’s hands, this may be perceived by the offender and the public as a symbolic success for the criminal way of life and may obstruct the offenders’ moral correction. This unjust state of affairs might diminish some of the deterrent effects that may be achieved by other punishments. Furthermore, it may prove to be frustrating for the victims and cause them to refrain from cooperating with the justice authorities. Therefore, in order to better achieve the

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traditional goals of punishment, particularly of reparation for harm done, inquiry into alternative sanctioning in property offences, as set forward in Part III, is needed.

Part III: Adoption of the sanction of restitution – analysis This part of the chapter explores whether the adoption of the sanction of restitution can ameliorate traditional sentencing mechanisms and analyzes the implications of its adoption. Restitution is an ancient legal sanction that dates back to biblical times. The Bible’s approach to theft is composed of restitution and a punitive sanction - a percentage of the value of the stolen goods paid by the offender to the victim as absolution (Leviticus, 25: 39-43). If the offender cannot meet his or her monetary liabilities, he or she is allowed to sell his services to a third party for a limited period of up to seven years, in return for repayment of the debt to the victim. Restitution also existed in medieval times (Kleinhaus, 2005) and it is still an important sanction in tort law. In torts such as conversion (the equivalent to theft in torts) civil courts may issue an order of restitution in addition to an award of financial compensation. The revival of the sanction of restitution in criminal law is manifested in Section 8 of the U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), which provides for the “return of property” by the offender to the victim and is not limited to monetary restitution. As mentioned earlier, some countries such as the United States and England include the sanction of restitution in their penal schemes. However, despite the growing awareness concerning the victims’ interests in retrieving their stolen property, other countries, including Israel, have not incorporated restitution into their penal codes, which are rather limited to the monetary sanction of compensation. The answer to the question of whether the sanction of restitution should be adopted entails opposing considerations from the perspectives of the victims, the offenders and society, which are analyzed below.

Restitution – the perspective of the victim As mentioned earlier, the main interest of property offence victims is usually correction of the harm done, inter alia, through the repossession of their stolen property (the necklace, in the above example). In fact, regaining their assets through an order of restitution is the essential element in restoring the status quo ante and for the achievement of their main interest – correction of the harm done. To a large extent, the


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restoration of the stolen goods to the victim may provide her/him with psychological satisfaction and alleviate some of his or her outrage and frustration caused by the offence. In our view, the imposition of the sanction of restitution in this respect serves indirectly to achieve one of the general goals of the restorative justice – restoration of stolen property to its original owner (Aharony-Goldenberg & Wilchek-Aviad, paper in preparation), albeit through traditional punitive mechanisms rather than through VOM (Victim – Offender Mediation). Notwithstanding its importance, the sanction of restitution may also be considered as limited in its ability to correct the harm done. In fact, it cannot indemnify the victim’s emotional suffering (for example, the fear and anguish suffered by Julia), nor does it provide for the reimbursement of his or her expenses (for instance, repairing Julia’s broken lock). Furthermore, when stolen goods have been disposed of, this sanction cannot be implemented – since there is nothing to restore to the rightful owner. Therefore, we propose that in order to restore the status quo ante, both the sanctions of compensation and restitution should be ordered by the courts in property offences. The order of restitution will provide for the return of the stolen goods, while the sanction of compensation will cover the emotional and physical loss (for example, the broken lock and other monetary loss) incurred by the victim. Furthermore, if the stolen goods were disposed of, the sanction of compensation should also cover the exact value of the stolen goods, thus serving as “financial restitution” that compensates the victim for his or her material loss (for instance, the money value of the stolen necklace). In order to restore the financial status quo ante in full, the sanction of compensation should not be limited to a ceiling amount. The combined penalties – restitution and compensation – may be termed “Restitutionary Sanctions”.

Restitution – the perspective of society The adoption of the sanction of restitution achieves several laudable results from the perspective of society. First, the adoption of restitution and compensation complies with the public’s interest to achieve deterrence. As the offender’s original aim was to obtain the stolen property, ordering its restitution to the original owner renders crime less profitable (Boldt, 1986) and both specific and general deterrence are more likely to be achieved. Second, the imposition of restitution, coupled by compensation, may achieve an important rationale of sentencing – desert. The essence of this theory is that

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Chapter Four the sentence addresses the offender as a moral agent, as having the capacity to evaluate and to respond to an official evaluation of their conduct. This evaluation is communicated by imposing a proportionate sentence… (Ashworth, 2005, p. 84).

In this respect the proposed economic sanctions are also designed to proportionately echo the wrongfulness of the property offence. A third possible advantage of the imposition of the proposed combined sanctions (restitution and compensation) is the attainment of corrective justice - the undoing of the injustice inflicted upon the sufferer by the wrongdoer, to the extent possible (Weinrib, 2000). The Aristotelian theory of corrective justice is traditionally regarded as one of the aims of tort law. However, a similar purpose of punishment is implemented in section 142 of the English Criminal Justice Act 2003, which provides that any court must have regard to the making of reparation by offenders to persons affected by their offenses. Moreover, achieving correction through civil proceedings is nowadays hardly feasible. In the past, life was conducted in rural areas, the offender and the victim were acquainted and little detective work was necessary in order to gather the evidence and bring the wrongdoer to court (Heriot, 1996). Whereas the option of independently initiating civil proceedings in modern society is hardly practical, since the complexities of life make the gathering of evidence an intricate mission that requires financial and technical resources, and sometimes the use of force. In fact, the victim is unlikely to file a civil claim for compensation against the offender (The Attorney General vs. Assam Zakhaika, 2004). Hence, the social goal of achieving corrective justice and restitution through civil proceedings is scarcely feasible, and corrective justice should therefore serve as one of the aims of sentencing. The fact is that in civil proceedings towards conversion, it is the victim that initiates legal action against the offender and bears its costs, not the state. However, correction as a goal of punishment can be justified on the grounds that society’s intervention in assuring restitution is nowadays more required than in the past. Fourth, we hold the view that the return of the spoils symbolizes the success of the justice agencies’ intervention and indicates to the victim the importance of cooperation with them. As aforesaid, addressing the victim’s interest in the criminal process through the imposition of restitution and compensation may reaffirm his or her sense of security and confidence in the state’s authorities. The imposition of these restitutionary sanctions may thus encourage report of crimes and cooperation with the policing authorities and assist in maintaining law and order (Yannai, 1997). In this regard it may be further claimed that representing the


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victim’s interest within the criminal process in the quest for the correction of harm done is not only in the public interest, but it is also within the state’s duties in protecting its citizens and their property under the social contract theory. In fact, the state’s promise to protect citizens by maintaining law and order provides “the co-operation on which society rests” (Ashworth, 2005, p. 71). A fifth benefit that may be gained through the imposition of restitution and compensation is the economy of state expenditure (Hassin, 1987). In fact, concentrating on the proposed economic sanctions may save the enormous costs of imprisonment and abolish superfluous parallel judicial proceedings whereby both civil and criminal courts examine the same set of facts. This cutback seems to outweigh the indirect financial expenses incurred by the imposition of financial restitution (awarded when the stolen goods have been disposed of), such as the cost of determining the value of the stolen goods. Furthermore, an economic evaluation of the law, albeit important, only serves as a means to achieve the more compelling utilitarian and moral goals accomplished through the imposition of compensation and restitution. Nevertheless, in order to facilitate the criminal process, in complex cases that involve evaluation of the goods or questions of ownership, it is left for further inquiry to determine whether restitution should be awarded. In fact, it may be argued that the public’s interest in assuring a swift criminal procedure should take precedence over the victims’ interest to receive their stolen property through the penal proceedings, for the following two reasons: first, the interest of the majority represented by the state should outweigh that of the individual (the victim); second, as it is the state that takes charge of enforcing the law, initiates criminal proceedings and bears their costs, the broader public interest to ensure a swift process should prevail over the victims’ needs. A similar approach is adopted in England with regard to complex issues (Smith & Hogan, 1988). Notwithstanding the evident advantages of the sanction of restitution and compensation from the state’s perspective, their adoption does not fully address all aspects of the harm caused by the offence as they are primarily designed to answer the victims’ needs. According to the established criminal law theory (Beccaria, 1764, as cited in: Shoham, Adad, & Rahav, 2004), the offender inflicts damage mainly upon society not upon the victim. In fact, committing a property offence entails violation of the law and breaching of the social order, thus creating public fear and insecurity. Furthermore, the offence necessitates the intervention of the agencies of justice – the police, the prosecution and the courts, which entails public expenditure.

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Hence, social interests other than the victims’ should be considered in the penal process. In this regard, there is a need to impose on the offender a punitive sanction that is not limited to restoring the status quo ante, but that also conveys the message to the offender that his or her actions harmed not only the direct victim, but also society as a whole. Similarly, Abel (2008), calls for the adoption of punitive damages – “intended to both deter and revenge the wrong” (pp. 435-6). However, a punitive mechanism centered on restitution and compensation is devoid of punitive elements designed to achieve the social need for retribution - the expression of vengeance and outrage against the criminal act. Indeed, Schafer (1970) has noted that if compensation were to be the only sentence available for any crime, it might weaken the sense of wrongdoing attached to that crime. We therefore propose that restitutionary sanctions (restitution and compensation) should be imposed alongside fines. In our view, imposing fines on property offenders may “displace individual revenge and retaliation” (Ashworth, 2005, p. 71), thus achieving the social need for retribution. Clearly, the application of fines should be proportional and not draconian (Huigens, 2005). The imposition of the suggested integrative penal scheme (restitution, compensation and fines) will lead to enhanced deterrence, thus restricting the state’s expenditure for punishment. Furthermore, as the proposed punitive mechanism will be based on desert and proportionality, it will be able to “operate humanely and without escalation of penalties” (Hirschy & Ashworth, 2005, p. 17).

Restitution – the perspective of criminal rehabilitation The analysis of the sanction of restitution has so far indicated that its imposition as a sole punitive measure does not satisfactorily address the victims’ and society’s interests; Social and victimological needs, such as retribution and correcting the psychological harm done to the victim, call for the imposition of additional sanctions – compensation and fines. When considering the need to reduce recidivism and rehabilitate the offender, the imposition of these three sanctions seems to have both merits and flaws, thus creating a dilemma with regard to their adoption. On the one hand, since fines are proportional to the desert of the offender (Kannay, 2003) and dignifying, they may prevent his or her bitterness against the penal system. Similar reasoning may be applied to compensation and restitution. Furthermore, ordering the criminal to restore stolen goods as well as to compensate the victim may advance her or his rehabilitation (Klein, 1997) and thus prevent re-offending. In fact, various


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studies (Hudson & Chesney, 1978; Schneider, 1986; Schneider & Schneider, 1985; Roy, 1995) demonstrate that restitution programs lower recidivism rates. These results focusing on restitutionary sanctions should be distinguished from other studies concerning restorative justice conferences (Ashworth, 2005; Robinson & Shapland, 2008). The rehabilitative function of restitutionary sanctions could be explained on several grounds: their imposition may help the offender to experience the inconvenience of having to relinquish “his” or “her” property and thus to identify with the anguish of the victim and detect the wrong of his or her acts (Bazemore & O`Brien, 2002). Similarly, since their award leads to the inclusion of the victim in the criminal process, it might fortify the criminal’s ability to identify with the victim’s pain and suffering and also lead to his or her cognitive understanding of the consequences of crime. On the other hand, it could be claimed that the requirement to fulfill these financial penalties – compensation, fines and financial restitution (when the stolen goods were disposed of) – may be the cause of a penniless and unskilled offender’s return to crime (Tittle, 1978). In fact, it has been noted that offenders who lack adequate resources to compensate are generally unwilling to even attempt payment (Galaway & Hudson, 1975). The following practical and moral considerations may solve the dilemma that emanates from the contradictory implications of financial penalties on the offender’s rehabilitation. First, theoretically, victims have the right to file a lawsuit in tort against the offender and demand both restitution and compensation. The civil court may award restitutionary sanctions, regardless of the tortfeasor’s (the offender’s) economic status. Since the civil court may order the offender to return the stolen goods and compensate the victim in any case – his or her economic rehabilitation should be considered an irrelevant factor. Similarly, the courts may impose a fine and compensation on property offenders. Second, the imposition of monetary penalties will not necessarily hinder the offender’s rehabilitation, since many offenders, especially white collar offenders, can economically afford their payment. Nevertheless, when the offender is destitute and cannot afford to meet his or her punitive financial liabilities, a “scheme of work” ought to be introduced (Dignam, 2002; Garofalo, 1900, in Galaway & Hudson, 1975). Thus, if Natalia cannot meet the expenses of the financial penalties (fines, compensation, and if she disposed of the necklace – monetary restitution) she will be provided by the state with a scheme of work. The proceeds of her work will serve to compensate the victim for her material, physical and emotional loss and pay the fines. The goal of the introduction of this

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occupational sanction is to facilitate the execution of the financial penalties and to reduce recidivism; the penniless offender will thus not be induced to steal again in order to comply with the restitutionary sanctions. The scheme of work may achieve additional rehabilitative purposes since it serves as a corrective measure by enabling the offender to acquire working skills. Furthermore, it facilitates the criminal’s exposure to normative ways of procuring assets, thus allowing his or her appreciation for the victim’s efforts in earning the stolen goods. It may be argued that financial penalties render the law unequal for offenders that have dissimilar monetary sources. However, the proposed sanctions regard mainly the restitution of specific goods; hence possible financial inequality is irrelevant. Moreover, the proposed scheme of work facilitates equal opportunities for meeting the punishment (Bazak, 1998; Gross, 2002). To summarize, utilitarian (deterrence, rehabilitation and restorative justice) and moral (desert and corrective justice) justifications call for a combination of several monetary sanctions in offences against property: restitution (specific or, if impossible, monetary restitution), compensation and fines.

Part IV: The proposed changes The adoption of the sanction of restitution is necessary, since it addresses the victim’s main interest – the return of his or her stolen goods; encourages the offender’s moral rehabilitation; serve as a deterrent factor; and saves important public resources. We therefore suggest its adoption as the principal penal measure in property offences. The proposed order of restitution will require the offender to return the stolen property to the victim or, if specific execution of restitution is impossible, to pay the victim financial restitution in lieu thereof. When stolen goods were disposed of, financial restitution in the value of the spoils should be paid by the offender to the victim in order to cover the victim’s material loss. In addition, fines should be imposed on property offenders in order to serve as a retributive punishment and enhance deterrence. Sanction of compensation should complement restitution and fines in order to cover the victim’s emotional loss and expenses. Compensation should not be limited to a ceiling amount, and the criminal court should be able to apply it regardless of the filing of independent civil proceedings by the victim against the offender. (A legal discussion of the proposed changes will appear in: Aharony-Goldenberg & Aviad-Wilchek, paper in preparation).


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The proposed integrative penal scheme entails some procedural modifications. First, the victim will submit to the courts impact statements that define the extent of his or her material and mental loss. Second, in order to encourage the judicial use of this novel sanctioning scheme, the courts will be required to justify their decision not to order restitution. It should be noted that the introduction in England of the requirement to justify the judicial omission to impose a compensation order has led to a significant augmentation in its imposition (Hoegent & Briemen, 2000). Third, if the offender cannot afford to meet his or her liabilities under the monetary sanctions, they will be deducted from the wages received from the scheme of work. Clearly, when there is evidence that the convict might escape an “open” scheme of work, this occupational measure will be conducted in prison. Going back to the example cited at the beginning of this chapter, Natalia will be ordered: to restore the stolen necklace to Julia or pay monetary restitution; to compensate Julia for her expenses (the broken lock) and suffering; and, lastly, to pay a fine. If Natalia is unwilling or unable to fulfill those financial penalties, she will be provided with a scheme of work and the resulting wages will serve to reimburse Julia and pay the fine.

Conclusions The adoption of the sanction of restitution as the principal penal measure addresses the victim’s main interest – the return of his or her stolen goods; encourages the criminal’s cognitive rehabilitation; may prevent recidivism and save important public resources. Hence correcting the harm done through restitution by the offender ought to be the goal of punishment in property offences. However, restitution as a sole penalty is limited in its ability to achieve correction and it should therefore be complemented by other sanctioning schemes: compensation – so as to redress the mental and material harm inflicted upon the victim; and fines – in order to emphasize the sense of wrongdoing and serve both as a retributive and a deterrence factor. The Council of Europe (1985) notes that it is necessary to have more regard in the criminal justice system to the physical, psychological, material and social harm suffered by the victim and to consider what steps are desirable to satisfy his needs in these respects (preamble).

Yet, it continues that “other objectives of criminal law and procedure, such as the reinforcement of social norms and the rehabilitation of

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offenders” should be upheld. In fact, in the attempt to devise the desired penalty for property offenders, one has to balance the interests of the main parties who bear the implications of the criminal act. It seems that the proposed integrative penal scheme (restitution, compensation and fines) may address the material, emotional and moral needs of the participants in the saga of the criminal offence – the offender, the victim and the state. Furthermore, this punitive scheme creates an asymmetrical triangular relationship between the three protagonists in the criminal offence and assigns each of them a different role in the process of considering the adequate punishment: the most important function is allocated to the state, since it represents the majority, initiates the legal proceedings and bears their costs; the secondary role in the penal mechanism is assigned to the victim, who has not done any wrong and who is the direct victim of the crime; however, the criminal’s interests are not ignored, even if they do not take precedence, since he or she has breached his or her duties to obey the law and has wronged the victim.

References Abel, C. F. (2008). Reparation, compensation, and restitution: Our best explanations. In S. G. Shoham, O. Beck & M. Kett (Eds,). Penology and criminal justice (pp. 411-441). Boca Raton: CRC Press. Aharony-Goldenberg, S., & Wilchek-Aviad, Y. (paper in preparation). Property offences: An economic punitive model. Ashworth, A. (2005). Sentencing and criminal justice, (4th edition). Cambridge: Cambridge University Press. Barker, V. (2007). The politics of pain: A political institutionalist analysis of crime victims’ moral protests. Law & Society Review, 41(3), 619-664. Bazak, J. (1998). Punishment principles and application in Israel. Tel Aviv: Dvir. (In Hebrew). Bazemore, G., & O`Brien, S. (2002). The quest for a restorative model of rehabilitation: Theory – for – practice and practice – for – theory. In L. Walgrave (Ed.), Restorative justice and the law (pp. 31-67). Oregon: William Publish. Becker, G. S. (1968). Crime and punishment: An economic approach. Journal Political Economy, 76 (2), 169-217. Braithwaite, B., & Makkai, T. (1991). Testing an expected utility model of corporate deterrence. Law & Society Review, 25(1), 7-39. Boldt, R. C. (1986). Criminal law: Restitution, criminal law, and the ideology of individuality. Journal of Criminal Law & Criminology, 77, 969-1022.


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Brienen, M. E. I., & Hoegen, E. H. (2000). Victims of crime in 22 European criminal justice systems. The Netherlands: Wolf Legal Productions. Cassell, P. G. (forthcoming). Treating crime victims fairly: Integrating victims into the Federal rules of criminal procedure. Utah Law Review. Dignam, J. (2002). Restorative justice and the law: The case for an integrated systematic approach. In L. Walgrave (Ed.), Restorative justice and the law (pp. 168-190). Oregon: William Publish. Galaway, B., & Hudson, J. (1975). Restitution and rehabilitation – some central issues. In J. Hudson & B. Galaway (Eds.), Considering the victim – Reading in restitution and victim compensation (p. 255-264). Illinois: Charles Thomas Publisher. Gross, E. (2002). The victim’s constitutional right: A comparative study. Bar-Ilan Law Studies, 17, 419-457. (In Hebrew). Haney, C., & Lynch, M. (1997). Regulating prisons of the future: A psychological analysis of supermax and solitary confinement. New York University Review of Lawand Social Change, 23, 477-570. Hassin, Y. (1987). Making money “work” and post verdict bargaining. Mishpatim, 8(3), 387-398. (In Hebrew). Heriot, G. (1996). An essay on the civil criminal distinction with special reference to punitive damages. Journal of Contemporary Legal Issues, 7, 43-50. Hirschy, A. V., & Ashworth, A. (2005). Proportionate sentencing. New York: Oxford University. Hudson, J., & Chesney, S. (1978). Research on restitution: A review and assessment. In B. Galaway & J. Hudson (Eds.), Restorative justice: International perspectives (pp. 131-148). Lexington, Mass: Lexington Books. Hudson, J., & Galaway, B. (1975). Historical perspective. In J. Hudson & B. Galaway (Eds.), Considering the victim – reading in restitution and victim compensation (pp. 3-4). Illinois: Charles Thomas Publisher. Huigens, K. (2005). Punishment and crime: On commonplace punishment theory. University of Chicago Legal Forum, 437-457. Kannay. R. (2003). Intermediate punishments. In A. Barak, (Ed.), Shamgar’s book (pp. 213-254). Tel-Aviv: Israeli Association Bar. (In Hebrew). Karp, J. (1996). Restitution of victims by the offenders. Israel Law Review, 30, 331-339. King, R. D. (2008). Prisons and jails. In S. G. Shoham., O. Beck & M. Kett (Eds.), Penology and criminal justice (pp. 17- 63). Boca Raton: CRC Press.

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Klein, A. R. (1997). Alternative sentencing – intermediate sanctions and probation, (2nd edition). Cincinnati: Anderson Publishing Co. Kleinhaus, B. (2005). Serving two masters: Evaluating the criminal or civil Nature of the VWPA and MVRA through the Lens of the ex-postfacto clause, the abatement doctrine, and the sixth amendment. Fordham Law Review, 73, 2711-2767. Kurki, L. (2000). Restorative and community justice in the United States. Crime & Justice, 27, 235-303. Leder, D. (2004). Imprisoned bodies: The life-world of the incarcerated. Social Justice, 31(1-2), 51-66. Lewis D. E. (1986). The general deterrent effect of longer sentences. British Journal Criminology, 26(1), 47-62. Long, K. (1995). Community input at sentencing: Victim’s right or victim’s revenge? Boston University Law Review, 75, 187-229. Miller, T. I. (1981). Consequences of restitution. Law and Human Behavior, 5(1), 1-17. Morris, N., & Tonry, M. (1990). Between prison and probation: Intermediate punishments in a rational sentencing system. NewYork: Oxford University Press. Outlaw, C. M., & Ruback, R. R. (1999). Predictors and outcomes of victims’ restitution orders. Justice Quarterly, 16(4), 847-870. Radin, M. J. (1981). Property and personhood. Stanford Law Review, 34, 957-1015. Robinson, G., & Shapland, J. (2008). Reducing recidivism. British Journal of Criminology, 48(3), 337-358. Rotman, E. (1994). Beyond punishment. In R. A. Duff & D. Garland (Eds.), A reader on punishment (pp. 285-303). Oxford: University Press. Roy, S. (1995). Juvenile restitution and recidivism in a Midwestern County. Federal Probation, 59(1), 55-62. Ruback, R. B., & Shaffer, J. N. (2005). The role of victim-related factors in victim restitution: A multi-method analysis of restitution in Pennsylvania. Law and Human Behavior, 29(6), 657-681. Sankoff, P. (2007). Is three really a crowd? Evaluating the use of victim impact statements under New Zealand’s revamped sentencing regime. New Zealand Law Review, 3, 459-498. Schaffer, S. (1970). Compensation and restitution to victims of crime. New Jersey: Patterson Smith. Schneider, A. L. (1986). Restitution and recidivism rates of juvenile offenders: Results from four experimental studies. Criminology, 24, 533-547.


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Schneider, A. L., & Schneider, P. R. (1985). The impact of restitution on recidivism of juvenile offenders: An experiment in Clayton County, Georgia. Criminal Justice Review, 10(1), 1-10. Sebba, L. (2000). Victims’ rights and legal strategies: Israel as a case study. Criminal Law Forum, 11(1), 47-100. Shechory, M., Ben-David, S., & Jacob, B. R. (In Press). Restorative justice and victim offender mediation in Israel. In D. Miers & I. Aersten (Eds.), Regulating restorative justice: A comparative study of legislative provision in European countries.Frankfurt am Main: Verlag fur Polizeiwissenschft. Shoham, S. G., Adad, M., & Rahav, G. (2004). Criminology. Tel Aviv: Schocken. (In Hebrew). Smith, J., & Hogan B. (1988). Criminal Law (6th edition). London: Butterworths. Tittle, C. R. (1978). Restitution and deterrence: An evaluation of compatibility. In B. Galaway & J. Hudson (Eds.), Offender Restitution in Theory and Action (pp. 33-58). Lexington, Mass: Lexington Books. Van Ness, D., & Heetderks, K. S. (2002). Restoring Justice (2nd edition). Potland: Willan. Van Ness, D. W. (1996). Restorative justice and international human rights. In B. Galaway & J. Hudson (Eds.), Restorative justice: International perspectives (pp.17-36) New York: Criminal Justice Press. Van Slyke, S., Waldo, G. P., & Bales, W. (2008). Hit `em where it hurts: Monetary and nontraditional punitive sanctions. In S. G. Shoham., O. Beck & M. Kett (Eds.), Penology and Criminal Justice (pp. 99-160). Boca Raton: CRC Press. Vieraitis, L. M., Kovandzic, T. V., & Marvell, T. B. (2007). The criminogenic effects of imprisonment: Evidence from state panel data, 1974-2002. Criminology and Public Policy, 6(3), 589-622. Walther, S. (1996). Reparation and criminal justice: Can they be integrated? Israel Law Review, 30, 316-329. Weinrib, E. J. (2000). Restitutionary damages as corrective justice. Theoretical Inquiries in Law, 1(1), 1-37. Yannai, U. (1997). The safety of the neighborhood: Community and police interface. Social Security, 49, 78-96. (In Hebrew). Zedner, L. (2004). Criminal justice. Oxford: University Press. Zehr, H. (1990). Changing lenses: A new focus for crime and justice. Waterloo: Herald Press.

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State legislation Crime Victims’ Rights Act (CVRA) of 2004, 18 U.S.C. § 3771 (2004) (USA). Retrieved 16/09/2008, from http://www.usdoj.gov/usao/eousa/vr/cvra/index.html. Criminal Justice Act 2003 (UK). Retrieved 16/09/2008, from http://www.opsi.gov.uk/acts/acts2003/en/ukpgaen_20030044_en_1. Criminal Justice (Scotland) Act 1980. Retrieved 16/09/2008, from http://www.legislation.gov.uk/acts/acts1980/pdf/ukpga_19800062_en. pdf. The Mandatory Victims Restitution Act (MVRA) of 1996, 18 U.S.C. § 3663(a) (Order of Restitution) (U.S.A). Retrieved 16/09/2008, from http://law.onecle.com/uscode/18/3663.html. The Penal Code, 1977 (Israel). Powers of Criminal Courts (Sentencing) Act 2000 (UK). Retrieved 16.09.2008, from: http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000006_en_1. Theft Act 1968 (UK). Retrieved 16.09.2008, from http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1204238 Torts Ordinance [New Version] (Israel). Rights of Victims of Crime Law, 2001 (Israel). Retrieved 16.09.2008, from http://www.mops.gov.il/BPEng/OnTheAgenda/VictimsOfCrime.htm. The Terwee (Victim Assistance) Act 1995 (The Netherlands) Retrieved 16.09.2008, from http://rechten.uvt.nl/victimology/national/nl.html. Victims of Offences Act 1987 (New Zealand). Retrieved 16.09.2008, from http://www.itc.gov.fj/lawnet/lawnetnz/nz_laws_v.html.

Recommendations and declarations Council of Europe (1985). Recommendations on the Position of the Victim in the Framework of Criminal Law and Procedure. (Adopted by the Committee of Ministers on 28 June 1985 at the 387th meeting of the Ministers’ Deputies). Retrieved 16.09.2008, from http://www.legislationline.org/legislation.php?tid=99&lid=4845. United Nations (1985). Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). Retrieved 16.09.2008, from http://www.legislationline.org/legislation.php?tid=155&lid=4529.


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Cases C. F. 3134/03. The State of Israel vs. Natalia Sokolov, PD 741(7) 05. R. C. A. 9727/05. Ploni vs. Attorney General (Supreme Court of Israel, 2007). C. A. 6897/06. Bodgeser vs. The State of Israel (Supreme Court of Israel, 2008). C. A. 10632/07. Menashe Mizrachi vs. Attorney General (Supreme Court of Israel, 2008). C. A. 6720/04. The Attorney General vs. Assam Zakhaika (Supreme Court of Israel, 2004).

CHAPTER FIVE MALIMATH COMMITTEE AND CRIME VICTIMS: RESURRECTING THE FORGOTTEN VOICES OF THE INDIAN CRIMINAL JUSTICE SYSTEM K. JAISHANKAR, P. MADHAVA SOMA SUNDARAM AND DEBARATI HALDER

Abstract Historically, crime victims have remained as forgotten entities of the Indian criminal justice system. However, Malimath Committee Report on Reforms of Criminal Justice System has made the pavement for the victim justice system in India, by ensuring that crime victims should no longer be forgotten. The Malimath Committee, felt that the criminal justice system must focus on justice to victims and has made several recommendations relating to justice for the victims of crime. Though the Malimath Committee report is severely criticized for some of its recommendations that pose serious threat to human rights, still it remains as a landmark movement with regard to the rights of victims of crime in India. This chapter discusses the position of victim in ancient, medieval, British and modern India and analyses the role of Malimath Committee in resurrecting the forgotten voices of the Indian criminal justice system i.e. victims of crime.

Introduction In ancient India, the native people were nomads and did not have a proper society, but settled dispute among themselves, based on private revenge. Later during Dravidian period, things become little formalized

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and tribal justice started taking roots. When Aryans invaded India, they brought with them the notion of ‘caste’ which reigned supreme in many cases, even now. Communities or tribes based on caste owned the settlements and strangers cannot enter the community without the consent of the first settlers. Each community had its own laws and customs (Chakraborti, 1996; Kosambi, 1964). The King, his officials, and their Brahmin advisers settled disputes between members of different groups applying the local laws (Kosambi, 1964). Disputes within the group were mostly settled by caste or village councils (sabha), and the aspect of victim – offender mediation prevailed. Even today, caste based panchayat (village courts) system exists to mediate between the offender and the victim (Holden, 2003).

Victims’ in ancient (Vedic, Maurya, Sangam) India From the Vedic period onward, the perennial attitude of Indian culture has been justice and righteousness and it was based on the Dharmasastra1 code, which was called as Manusmriti.2 According to Manusmriti, the administration of legal justice and infliction of punishment was performed on the basis of Varna system (caste hierarchy)(Jaishankar & Haldar, 2004). Legal consideration of Varna rank has two main outcomes, one having to do with responsibility, the other with privilege, and one concerning the perpetrators of crime and the other its victims (Das 1982; Underwood, 1978). Crimes against persons were adjudicated with reference to the caste-status of the victim and the perpetrator. The penalty for a crime was increasingly severe, the higher the Varna of the victim and lower the Varna of the perpetrator (Das 1982; Underwood, 1978). Manu in Chapter VIII, verse 287 says that “If limb is injured, a wound is caused or blood flows, the assailant shall be made to pay the expense of 1

Dharma-shastra is the “science of dharma” and is a set of texts, which teach the eternal immutable dharma, found in the Vedas. The Dharma-shastras expanded and remodeled in verse from the Dharmasutras. 2 About the 2nd or 3rd Century A.D., Manu, an important Hindu jurist, drew up the Dharmasastra code, which was called as Manusmriti2. The code recognized assault and other bodily injuries and property offences such as theft and robbery (Griffith 1971; Pillai 1983; Thapar 1990; Raghavan 2002). “Manusmriti dealt with the duties of a king, the mixed castes, the rules of occupation in relation to caste, occupations in times of distress, expiations of sins, and the rules governing specific forms of rebirth. Though a theoretical textbook, Manusmriti dealt with the practicalities of life and was largely a textbook of human conduct” (Jaishankar & Haldar, 2004).

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the cure or the whole”. He further in verse 288 says that: “He who damages the goods of another, be it intentionally or unintentionally, shall give to the owner a kind of fine equal to damage”. In spite of the components of victim justice in Manusmriti, it was severely criticised for the provisions of unequal compensation for victims belonging to different Varnas (Jaishankar & Haldar, 2004). Kautilya,3 in his epoch making treatise Arthashastra,4 lay down that when a citizen suffers at the hands of either state or individuals, he should be compensated adequately (Shamasastry, 1923; Singh, 2003). Necessary funds should be created even by imposing punitive fines. Public exchequer could provide relief to those who suffered owing to the failure of the state to protect them from predators (Shamasastry, 1923; Singh, 2003). The legal distinctions of Vedic India are firmly based on an ideal of equity and justice expressed in terms of hierarchy (based on caste or Varna) rather than of equality (Jaishankar & Haldar, 2004; Ragozin, 1961). However, in some ancient cultures like Tamil culture, criminal justice was in a developed form and justice was equal for all, irrespective of caste or Varna. There were mentions of equal justice in Thirukkural,5 a classic Tamil Literature (Kural (541 Chengonmai Adhikaram, Just Governance chapter 55)) conceptualizes that “Government has to examine the crimes, which may be committed, to show no favor to anyone, and to inflict such punishment as may be wisely resolved on” (Periyar & Jaishankar, 2004). During the Sangam period6 in Tamazhagam, (ancient Tamil Nadu) a King named Manuneethi Chozhan, killed his own son under the wheels of a chariot, to provide victim justice to a cow, whose calf was killed by the prince, under the wheels of his chariot. Another Tamil classic,

3

Kautilya, also named as Vishnugupta and Chanakya, is a Brahmin who overthrew the last king of the Nanda Dynastry and placed the great Chandragupta Maurya on the throne. 4 An Ancient book on the principles of state, written by Kautilya, who from intolerance of misrule rescued the scriptures, wrote this book somewhere in 321296 BC. 5 The Thirukkural, a book of Justice and code of ethics is the most popular, most widely esteemed Tamil Classic of all times. The word Thiru denotes sanctity, and Kural means the short verses (couplets). Thiruvalluvar, a poet and philosopher of India, wrote it 2000 years ago in 1st Century B.C. The Thirukkural consists of 133 chapters on different aspects of life, and each chapter consists of ten couplets. It is global in perspective and it has universal applicability. 6 Sangam age is from 3 B.C. to 3 A.D.


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Silapathikaram,7 explains that, Pandya king Nedunchezhyan, died on the spot, when he understood that he was the cause of death of Kovalan, when Kannagi (wife of Kovalan), a victim, proved that. This shows that the King who was considered to be the embodiment of Justice those days, were concerned about the victims and their rights. During the Sangam period, the King provided Victim compensation and also it was quite common for the early civilizations to extract payments for the victims from the offenders, a process is now known as restitution.

Victims’ in medieval India (Mughal Period) During the medieval period, India was under strong monarchy where Victim’s right to compensation remained unheard and it was King/State who had the right to punish and get monetary compensation. However, restitution continued as in ancient India. “Diya” or the Blood money is paid to the victim’s family (mostly in cases of grave crimes), as part of punishment. Diya is restitution for the victim or his family. The Victims’ family also may seek to have a public execution of the offender or the family may seek to pardon the offender. In the Mughal period, Kings like Akbar and Jehangir were considered as pillars of victim justice. There was a case of during Jehangir’s period where Jehangir’s wife kills a washer man in fit of rage, because she thought that the work of the washer man was unsatisfactory (Rajan, 1981). Later when this issue was brought by the washer man’s wife in the daily durbar of Jehangir, he provided a sword to the wife of washer man and told to kill him, as that is the righteous way of Islamic retributive justice. The washer man’s wife went awestruck and she forgave the emperor and the empress (Rajan, 1981).

7

One of the Tamil Classics Silapathikaram (the story of the anklet) talks of life and times of Kovalan and Kannagi but also the justice system prevailed in the Sangam age. This classic throws to light the various nuances of the criminal jurisprudence. The King in a weak moment orders the beheading of Kovalan without enquiring, whether he is the person who has stolen the queen’s anklet. Kannagi, the wife of Kovalan, breaks her anklet in order to prove to the King that the anklets in the possession of Kovalan was different from the Queen’s anklets and the Pandya king realized that his goldsmith had misled him and that he was bereft of all reason when he ordered the killing of Kovalan (Husband of Kannegi), he became broken-hearted and died on the spot.

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Victims’ in British and contemporary India The British, who was then East India Company, until 1860, resurrected the Manusmriti and used it to frame the “Hindu Civil Code” or gentoo code (Jaishankar & Haldar, 2003). However, there were no big provisions for victim justice in this code. Later in 1860, Macaulay created the substantial and procedural laws of the country and that also did not pay too much attention to victims (Suresh, 2005). Nevertheless, the village panchayat systems8 which existed in ancient, medieval and modern India (in some villages even now this system is followed (Holden, 2003)) provided justice to victims of crime. The Macaulay’s Criminal Procedure Code (revised in 1973) gave some provisions on monetary compensation to the victims of the offence. Unfortunately nothing has moved from this position as India is still governed by colonial laws. The legal provisions with regard to the compensation to the victims of crime in contemporary India are found in the Code of Criminal Procedure, 1973 under Sections 357, 358 and 359 (for a detailed analysis see Srinivasan & Mathew, 2007) and under Section 5 of the Probation of Offenders Act, 1958 and some other statutes like Section 22 of the Cattle Trespass Act, 1872, Section 42 and 76 of the Forest Act, 1972, and Section 1 of the Public Gambling Act, 8

“There are two types of traditional panchayats: (1) caste panchayats composed of caste elders, which decide issues and disputes internal to the caste, and in the past enforced caste rules and decorum; and (2) village panchayats, composed of higher caste landowners. In communities with a numerically strong, dominant caste, the dominant caste panchayat settles its own disputes and often those of other castes” (Vincentnathan, 1992; Vincentnathan & Vincentnathan, 2007). “Dalits (untouchables), considered ‘polluting’ and inferior, live apart from the village, and have their own panchayats. Panchayats receive both criminal and civil cases. Until a few decades ago, they dealt with serious criminal cases, even though these crimes were required to be reported to the police. Even now some panchayats may decide such cases, though most are minor” (see Moore, 1985; Vincentnathan, 1992). “Sanctions for wrongdoing include fines, restitution, and excommunication. The person excommunicated can live in his/her residence but cannot talk to others” (Vincentnathan, 1992; Vincentnathan & Vincentnathan, 2007). “Panchayat elders do not visit his/her home during child naming, puberty rites, bride seeing (to arrange marriage), and marriages for their children, or funerals for family members. When persons from other villages come for a marriage alliance and learn about the person’s disobedient behavior or see that panchayat elders are absent, they likely would not make the alliance. If nothing else, this will cause the person to pay the fine and make peace with the panchayat, as the presence of panchayat elders establishes legitimacy” (Vincentnathan, 1992; Vincentnathan & Vincentnathan, 2007).


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1967 (Das, 2008; Rufus & Ramdoss, 2008; Srinivasan & Mathew, 2007). Though these provisions have the connotation of ‘compensation’, actually it is restitution (Chockalingam, 1993). Also, under articles 41, 51-A and 21 of the Indian constitution, victims of crime can get solace (Iyer, 1999). Apart from that there are various Supreme Court judgments9 which were considered to be landmarks in the direction of victim oriented justice system. Tamil Nadu is the first ever State in India to establish Rupees. One core (10 million) fund called “Victim Assistance Fund” in 1995. The Victim Assistance Fund is for the grant of financial assistance to the legal heir of the victims of murder and the victims of grievous injury and rape (Chockalingam, 2003; Rufus & Ramdoss, 2008).

Malimath Committee on reforms in criminal justice system The Committee on Reforms of (the) Criminal Justice System (referred as Malimath Committee in this chapter) was constituted by the Ministry of Home Affairs, Government of India, on 24 November 2000. This Committee was headed by a former Chief Justice of the Karnataka and Kerala High Courts and former member of the National Human Rights Commission of India, Justice V.S. Malimath and submitted its report to the Government of India’s Ministry of Home Affairs in March 2003. The terms of reference of the Malimath Committee were as follows: (Government of India, 2003, p. 3) • To examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence and see if any modifications or amendments are required thereto; • To examine in the light of findings on fundamental principles and aspects of criminal jurisprudence as to whether there is a need to re-write the Code of Criminal 9 Hari Kishan and State of Haryana v. Sukhbir Singh; Rudal Sah v State of Bihar; Mrs. Cardino v Union Of India; Nilabati Behera v. State of Orissa; Chairman, Railway Board v. Chandrima Das; Palaniappa Gounder v. State of Tamil Nadu; Hari Krishnan and the State of Haryana v. Sukhbir Singh and others; Sarwan Singh v. State of Punjab; Rachhpal Singh v. State of Punjab; Guruswamy v. State of Tamil Nadu; Bipin Bihari v. State of Madhya Pradesh; Mangilal v. Stateof Madhya Pradesh; Bhaskaran v. Sankaran Vaidhyan Balan; Hari Krishnan and the State of Haryana v. Sukbir Singh and others; Sarup Singh v. State of Haryana; Manjappa v. State of Karnataka (for a detailed analysis of these case laws, see Srinivasan and Mathew, 2007).

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•

•

•

•

Procedure, the Indian Penal Code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of India; To make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive; To suggest ways and means of developing such synergy among the Judiciary, the Prosecution and the Police as restores the confidence of the common man in the Criminal Justice System by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal; To suggest sound system of managing, on professional lines, the pendency of cases at investigation and trial stages and making the Police, the Prosecution and the Judiciary accountable for delays in their respective domains. To examine the feasibility of introducing the concept of Federal Crime which can be put on List I of the Seventh Schedule of the Constitution (Government of India, 2003, p. 3).

Justice to victims of crime: Salient features of the recommendations The Malimath Committee has made several recommendations on criminal justice reforms, which, however, are outside the purview of this chapter, hence, only three vital areas of the committee’s discussion on victims of crime are analyzed and discussed. 1. Victim participation in the trial and investigation 2. Rights of the Victims and 3. Victim Compensation.

1. Victim participation in the trial and investigation (a) The Malimath Committee feels that “The victim not being a party has no role to play in the trial except giving evidence as a witness” (Government of India, 2003, p. 35). In fact the victim could be used to assist the court in imparting justice as he/she may be able to direct the


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prosecution to discover more evidence and help the prosecution lawyers to frame the examination questions in a more focused way. The committee suggests that among the related parties in the crime, the victim has the deepest interest in the “vindication of justice”. Hence his/her self interest must be used as a fine weapon by the prosecution to convict the true culprit. But the question remains as how far the victim could co-operate with the prosecution when he/she is in traumatic stage or his/her life and interest is threatened by pople behind the actual culprit. (b) The Malimath Committee further feels that “Active participation of the victim during investigation would be helpful in discovering truth” (Government of India, 2003, p. 35). The underlying meaning of above statement is quite similar to that of the previous. However, as per the committee’s recommendation the victim can take active part in investigation, he/she can help both the police and prosecution to discover the truth more expeditiously by either producing more evidence or pointing out more focused questions to the witnesses. It is only the victim alone, apart from the offender, who may identify the eye witnesses as well as other witnesses, ask the prosecution to interrogate such witnesses. (c) The Malimath Committee feels that if the victim himself/herself participates in the trial and investigation, the judge can maintain neutral position of the office. The judge need not become part of the “investigation machinery as in the Inquisitorial System” (Government of India, 2003, p. 36). The judge tends to become biased when one has to consider the victim’s pleadings from the victim’s angle. If the victim himself/herself helps the prosecution to for production of evidence and framing questions for examination, the judge requires only to impartially considering his/her request for doing so. (d) The Malimath Committee further feels that “Participation of the victim will also assist the court in exercising its discretion in regard to grant or cancellation of bail” (Government of India, 2003, p. 36). This consideration is laudable as granting or cancellation of bails depends very much on the defence lawyer’s arguments and production of the witnesses which may go against the interest of the victim. If the defence lawyer successfully convinces the court regarding cancellation or granting the bail, the victim becomes more traumatized as he/she remains in constant fear of his/her life and interest. On the other hand when the victim pleads or assists the prosecution to analyze the case, produce witnesses and evidence which are more accurate, the court’s discretion power becomes stronger to consider granting or canceling the bail. The victim can take the responsibility of pulling on the case, if the prosecution backs out.

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(e) The Malimath Committee thus summarizes victim’s right to participate in criminal trial in the following: • To produce evidence, oral or documentary, with leave of the court and/or to seek directions for production of such evidence. • To ask questions to the witnesses or to suggest to the court questions, which may be put to witnesses. • To know the status of investigation and to move the court to issue directions for further investigation on certain matter or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. • To be heard in respect of the grant or cancellation of bail. • To be heard whenever prosecution seeks to withdraw and to offer to continue the prosecution. • To advance arguments after the prosecution has submitted arguments. • To participate in negotiations leading to settlement of compoundable offences (Government of India, 2003, pp. 270-271). The active participation of the victim in the trial and prosecution as has been thought by the committee could be possible only when the victims could be assured completely of security to their life and that of their immediate family. The Indian scenario of criminal justice prosecution has not yet developed to the expectant height because the victim in many cases shy away to report, leave the thought of assisting the prosecution, due to fear of loosing one’s dear life and damage to the immediate family. When the offender is backed by strong social heads or political personalities, which are not very rare in India, the victim tends to remain always a victim even if he/she is motivated to assist the prosecution and trial. Hence the authors strongly feel when the crime is committed and reported, the victim should be given utmost security and moral counseling to encourage him/her to help the prosecution to convict the criminal. In this case the Malimath Committee could have critically analyzed Article 21 of the constitution which speaks about protection to life and liberty. Unfortunately Article 21 has been used till now to protect the interest of the prisoners for extending the meaning of right to privacy,10

10

Kharak Singh vs. State of UP


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right to free legal aid,11 right against solitary confinement,12 right to speedy trial,13 and right against delayed execution.14 But the victim’s right has remained ever neglected. It is hoped that the committee’s recommendations would remove the eclipse.

2. Rights of the victim (a) The Indian constitution under Article 22 guarantees certain rights to the arrested persons under ordinary laws of which the most important one is the right to consult and to be represented by a lawyer of their own choice. But this does not extend to the victim and the committee has therefore correctly pointed out that “The victim should have the right to be represented by a lawyer” (Government of India, 2003, p. 78). The committee feels sympathetic with the victim who may not be in a position to engage a lawyer either because he/she is dead or he/she is financially not able to engage a lawyer. Thus it is strongly recommended that in case when the victim is dead “his/her dependent or next of kin or a recognized NGO permitted by the Court may be impleaded as a party” (Government of India, 2003, p. 36). Incase he/she is poor and cannot approach a lawyer himself; it should be the responsibility of the state to provide him legal aid (Government of India, 2003). The committee has again reiterated the fact that when right to life and liberty under Article 21 could be dragged in to provide legal aid to the prisoner, why should the victim be left behind? (b) Ironically, the Indian constitution guarantees the convict’s interest in three elaborated articles, namely article 20 which speaks about protection in respect of conviction of offences, article 21 which guarantees right to life and liberty and article 22 which safeguards people against arbitrary arrest and detention. The committee recommends similar rights for the victim as well the recommendations encourage victims to go appeal (Government of India, 2003) and exercise writ jurisdiction of Mandamus and Certiorari specifically under article 226 and article 32 in case of want of justice. (c) The committee has examined the observation in Riley Hill General Contractor vs. Tandy Corp, 737 P.2d 595 (Or. 1987): There are three standards of proof: “a preponderance”, “clear and convincing” and “beyond a reasonable doubt” (Government of India, 2003, p. 125). The committee feels a middle course, will make a proper balance between the 11

M.H. Hoskot vs. State of Maharashtra Air 1978, SC1548 Sunil Batra vs. Delhi Administration AIR 1978 SC 1575 13 Hussainara Khatoon vs. Home secretary, State of Bihar AIR 1979, SC1360 14 T.V. Vatheeswaran vs. State of Tamil Nadu , AIR 1981 SC 643 12

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rights of the accused on one hand and public interest and rights of the victim on the other. The committee further feels that this standard is just, fair and reasonable and operated by the judges. Finally it is the judgment which is delivered after careful consideration of the right of the accused as well as the victims, which could promote public confidence and better quality of justice to the victims. Hence the committee puts the judges in a highly responsible position to give their judgment after careful consideration of pleadings of both accused and the victim as well.

3. Victim compensation (a) The Malimath Committee noted that “Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted and recommended that this to be organized in a separate legislation by Parliament” (Government of India, 2003, p. 271). The committee also recommended that the “draft bill on the subject submitted to Government in 1995 by the Indian Society of Victimology provides a tentative framework for consideration” (Government of India, 2003, p. 271). (b) Also the committee recommended the creation of a Victim compensation fund and it should be administered by the Legal Services Authority (Government of India, 2003, p. 271). The committee further recommended that “The law should provide for the scale of compensation in different offences for the guidance of the Court and it may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn” (Government of India, 2003, p. 271). The compensation to the victim is another important recommendation which the committee considered in course of discussion. The Indian law recognizes the right to compensation of the victims under section 357 (i) provides for the payment of compensation out of the fine imposed, section 357 (3) makes way for the payment of compensation even if fine does not form part of the punishment. But what happens when the offender is acquitted or when the offender could not be apprehended? The victim could never get compensation in such case. Further, the payment remains suspended till the limitation period for the appeal expires or if an appeal is filed, till the appeal is disposed of (Section 357(2) Cr. P. C.). The compensation is further denied when the offender fails to pay fine or compensation and becomes a defaulter. The committee while examining the sections on compensation pointed out that the Uttar Pradesh Government in 1992 through an amendment to Section 357 provided that where the victim is a member of a scheduled caste or scheduled tribe and


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the person convicted is not such a member, then it shall be obligatory for the Court to order compensation to the victim of crime (Government of India, 2003). But the monetary compensation often remains a distant dream for the victims even after the court order. The Supreme Court and the high courts however felt that it is not the monetary compensation alone which could sooth the victim‘s woes and took up Western model of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. “Medical justice for the Bhagalpur15 blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the apex Court. The recent decisions in Nilabati Behera V. State of Orissa [(1993) 2 SCC 746] and in Chairman, Railway Board V. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim” (Government of India, 2003, p. 81). The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. The committee notes that time has come that criminal justice system understand the underlying meaning and purpose of the chapters on human rights and directive principles of the state policies of the Indian constitution and act accordingly.

Conclusion What makes Malimath Committee recommendations different from the existing provisions for victim justice? Malimath Committee has analyzed in detail the victim provisions in the developed countries and has resurrected the forgotten victim who in the ancient India, was the central figure in the justice process (Rajan, 1981). In the prologue of the Justice to Victims chapter in the report on the recommendations, the committee deplored: Very early in the deliberations of the Committee, it was recognized that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in criminal justice administration. In every interaction the Committee had with the 15 In the year 1980 at Bhagalpur the police abused their power and blinded 31 under trial prisoners.

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Chapter Five police, the Judges, the prosecution and defense lawyers, jail officials and the general public, this concern for victims was quite pronounced and a view was canvassed that unless justice to the victim is put as one of the focal points of criminal proceedings, the system is unlikely to restore the balance as a fair procedure in the pursuit of truth.

India does not have an exclusive law to deal with victims of crime or for that matter to provide victim assistance like other countries; the Victims of Crime Act, 1984 (United States of America); the Justice for Victims of Crime Act, 1986 (Canada); The Victims of Offences Act, 1987 (New Zealand) and the Criminal Justice Act, 1988 (United Kingdom) (Rufus & Ramdoss, 2008). In this context, the Malimath Committee recommendations on justice to victims of crime gains significance. Despite the differences of the lawyer community and amnesty international, on many of the recommendations of Malimath Committee, it is to be admitted that this Committee has made recommendations of far reaching significance to improve the position of victims of crime and to provide justice to victims. The committee has noted in its report that an important objective of the criminal justice system is to ensure justice to the victims, yet he has not been given any substantial right, not even to participate in the criminal proceedings (Madhava Soma Sundaram, Jaishankar & Ramdoss, 2008). Due to the persistent efforts of the Indian Society of Victimology (founded in 1992), a Model Victim Assistance Bill with the support of the National Human Rights Commission was prepared and sent to the Government of India for consideration of adoption by the Indian Parliament (Chockalingam, 2003). The Malimath Committee has also in its report has recommended for the adoption of the Model Bill on Assistance to Victims (Madhava Soma Sundaram et al., 2008). In March 2004, in the 13th Lok Sabha, a Member of Parliament has given notice for the introduction of this Victim Bill prepared by the Indian Society of Victimology for debate and adoption, and still various efforts are needed to be taken to revive the task of introducing the bill again for adoption (Madhava Soma Sundaram et al., 2008). The Law Commission of India, the Justice Malimath Committee on reforms of the criminal justice system and the Commission to Review the Working of the Constitution have all in one voice unanimously recommended the need to provide justice to victims during the different stages of the criminal proceedings including compensation and assistance as mandatory (Madhava Soma Sundaram et al., 2008). It is the most appropriate time to enact a national legislation to render justice to victims, in line with the model bill on victim assistance of the Indian Society of


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Victimology, which was recommended by the Malimath Committee. Of all the victim movements in India, the Malimath Committee’s recommendations for justice of victims of crimes are considered to be unparalleled and we hope that the Malimath recommendations related to Justice for victims of crime will sweep in to the Indian criminal justice system gradually, if not immediately.

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oriented justice system. In P. Madhava Soma Sundaram, K. Jaishankar & S. Ramdoss (Eds.), Crime victims and justice: An introduction to restorative principles (pp. 1-12). New Delhi: Serials Publications. Moore, E. (1985). Conflict and compromise: Justice in an Indian village (Monograph Series No. 26). Lanham, MD: University Press of America. Pillai, A. (1983). Criminal law. Bombay: N.M. Tripathi. Shamasastry, R. (1923). Kautilya’s Arthasastra. Mysore: Wesleyan Mission Press. Singh, A. K. (2003). The poor victims of crime. Retrieved on 15th December 2007 from http://www.vakilbabu.com/Forums/Grievance/00000012.htm Srinivasan, M., & Mathew, J. E. (2007). Victims and the criminal justice system in India: Need for a paradigm shift in the justice system. Temida, (4), 51-62. Suresh, A. (2005). Battling for victims. Legal enews, British Council of India. Retrieved on 26th July 2007 from http://202.71.128.135:5/bc/newsletter.asp Periyar, E. E., & Jaishankar, K. (2004). Administration of justice: Thirukkural’s criminal justice outlook. Crime and Justice Perspective, 1(3), 2. Raghavan, R. K. (2002). World factbook of criminal justice systems: India (U.S. Department of Justice, Bureau of Justice Statistics. Retrieved on August 15, 2007 from http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjind.txt Ragozin, Z. A. (1961). Vedic India (as embodied principally in the Rigveda). Delhi: Munshi Ram Manohar Lal Oriental Booksellers & Publishers. Rajan V. N. (1981). Victimology in India: An introductory study. New Delhi: Ashish Publishing House. Rufus D., & Ramdoss, S. (2008). The beneficiaries of thesState victim assistance fund in Tirunelveli district of Tamil Nadu – An empirical analysis. In P. Madhava Soma Sundaram, K. Jaishankar & S. Ramdoss (Eds.), Crime victims and justice: An introduction to restorative principles (pp. 409-421). New Delhi: Serials Publications. Thapar, R. (1990). A history of India, Volume I. London: Penguin. Underwood, F. B. (1978). Aspects of justice in ancient India. Journal of Chinese Philosophy, 5. 271-285. Vincentnathan, L., & Vincentnathan, S. G. (2007). Village courts and the police: Cooperation and conflict in modernizing India. Police Practice and Research, 8(5), 445-459.


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Vincentnathan, S. G. (1992). Social construction of order and disorder and their outcomes in two South Indian communities. Journal of Legal Pluralism, 32, 65–102.

PART II: ISSUES OF SEXUAL VICTIMIZATION

CHAPTER SIX RECLAIMING POWER?: WOMEN VICTIMS OF SEXUAL VIOLENCE AND THE CIVIL LEGAL SYSTEM YIFAT BITTON

Abstract This chapter offers a coherent review of the situation of women victims of sexual violence in the Israeli tort system. It wishes to provide a better understanding of the role of legal mechanisms in reproducing trauma and overcoming victimhood. The chapter does so by addressing legal procedural and substantial rules of tort law litigation as relevant for victims’ empowerment. Its main thesis is that while tort claims of women victims of sexual violence may seem appropriate and natural to tort law, reality indicates other, rendering re-orientation of tort litigation imperative. Analyzing real-life tort claims, brought before courts by the author in a nontraditional manner, on the one hand, combined with radical feminist theories of tort law, on the other hand, the author advocates taking careful optimism concerning the potential of tort law claims to enable women victims of sexual violence to reclaim the power that was brutally taken from them.

Introduction As of 2007, Israel has seen an increase in cases of domestic violence especially violence inflicted on women and children (2007 Annual Report of the Israeli association for rape crises centers, 2008). Women are raped, sexually harassed, mutilated and maimed. Children are subject to rape, incest, pedophilia and many other forms of violence and abuse. Victims of violence can redress their claims through the penal/criminal justice system. However, the sentencing of the attackers (typically, men) does not always

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reflect the gravity of the crime and in many cases is the result of plea bargaining which ignores the victim (typically women).1 The victim’s narrative, and the damages caused by the harsh violence to which she was subject are not adequately addressed. The victim is used for her testimony and discarded. Additionally, even though the Israeli Penal Act of 1977 authorizes penal tribunals to award relatively substantial punitive damages within the penal proceedings, victims of violence only rarely receive such damages and often these damages are dismissed or dramatically reduced by the State Attorney through plea bargaining (Bitton, 2003). Women, therefore, feel that they do not have an appropriate medium for reclaiming the power that was brutally taken from them (Schulhofer, 1995). Feminist criticism has identified the criminal justice system as being complicit in the re-victimization of women who are victims of sex crimes. The criminal justice system has been characterized by some as going through another rape experience, this time at the hands of the legal system (O’Neale, 1978). Subsequently, the radical feminist Catherine McKinnon has argued that the civil legal litigation, mainly the tort law mechanism, would allow the victim to better regain power or more accurately reclaim power within this legal process. McKinnon pointed to the tort legal process as most adequate to achieve such goals. Tort law enables people to sue those who have caused them harm and compensates victims for personal suffering. This includes harm inflicted by sexual violence. In tort law proceedings the victim is presumed to be the master of her claim by initiating, conducting, and relatively dominating the legal process, thus reclaiming some of the power that has been taken from her by the sexual assault (Dworkin & McKinnon, 1997). It should be noted, though, that the power sought by the victim is not the power that the assailant had over her while attacking her, but rather the power she lost in the attack: power to practice her autonomous self. In reality, though, as this chapter will hereinafter reveal, the high expectation embedded in this radical feminist vision of tort law and the civil legal process was soon shattered. While tort claims of women victims of sexual violence (WVSV) seemed appropriate and natural to tort law litigation, tort law has failed to adequately compensate WVSV for the losses they suffered consequential upon sexual violence. This is particularly true of the Israeli legal system, a setting from within which 1

The reason for concentrating on women in this chapter is not, however, limited to their statistical prominence as sexual violence victims. The fact that they suffer from anti-women biases of the legal system furthers the unique challenge they pose to using the civil system as a mean to transcend victimhood.

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this chapter has emerged (Bitton, 2003). The conclusions of this chapter are based both on the author’s experience as a practitioner and as a tort law scholar interested in feminist analysis of law. Co-chairing an Israeli NGO for women I have represented, in a unique feminist fashion, dozens of WVSV who are suing for damages resulting from the attacks they have faced. As a radical feminist scholar, I approach tort law from a critical feminist perspective, in theory as well as in practice. I therefore argued that sexual crimes against women must be viewed as manifestations of gender discrimination which is produced by and reproduces the power disparities between women and men (Bitton, 2004). Rape, sexual assault, and murder, based on gender, are situated at the intersections of oppression in a hierarchical, male dominated society. They are the result of a hierarchical and patriarchic society which enables men to dominate women on the basis of their gender (Mackinnon, 1983). Striving full and non-bias exhaustion of tort law, when litigating women’s cases in civil courts, I emphasize this narrative and resist the normative, traditional and androcentric narratives - upon which the tort legal system is founded. At this stage, and due to space limitations, it should be noted that the ideas presented in this chapter should be read as an initial overview of some of the most prominent and most common difficulties – both theoretically and practically wise - in using tort law for the benefit of WVSV. Feminist analysts of tort law have long ago revealed its gendered nature. Further elaboration on the matter is developed elsewhere (Bender, 1993).

The promise embedded in tort law Let’s go back to the so-called promise embedded in tort law for WVSV. There are two reasons why this apparatus seems to be compatible with the needs of these women. Firstly, tort law offers a “natural” domain for determining the liability of the most basic criminal offences (Casarino, 1996). It was the first legal medium to protect the bodily interests of people, preceding the emergence of criminal law as we know it today (Rogers, 2002). Ancient traditional tort claims such as assault and negligence easily and naturally encompass the traits of violence against a person (Conaghan & Mansell, 1999). Secondly, in cases where a criminal conviction of the assailant has been constituted - and there are, yearly, hundreds of these - tort claims are easier to pursue subsequent to such conviction, as sections 42A-42E of the Evidence Act 1971 allow, and woman using this mechanism are entitled to enjoy a relatively more rapid and simpler course of proceedings.


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Tort law, however, is still part of the Israeli Legal system which is based on liberal ideals and is focused primarily on individual rights (Barak, 2006). This system fails in many instances to recognize that “individual” legal problems lay within a larger collective context. Even in cases where WVSV receive legal representation, mostly by lawyers from the private sector, their representation is traditional and limited in its scope and fails to see the individual woman in a larger social context (Minow & Spelman, 1990). Furthermore, tort law is often conceived as dealing with purely “private” matters, that is to say, as dealing with the private ordering of society as opposed to issues of public concern (Weinrib, 1995). Tort law is therefore reluctant to acknowledge the social and political implications of individual cases, which are largely ignored and neglected. As a result, any attempt to utilize tort law for the benefit of groups suffering from systematic discrimination and oppression, such as women, will encounter structural barriers (Bender, 1993; Chamallas, 1997; Gavison, 1992). Since rulings on the matter are at the stage of emergence, an example from another legal system - in which Israeli tort law is rooted namely, the American one, can demonstrate this difficulty. In the alleged case, the court refused to consider liable a property manager for his negligent handling of keys to the apartments he had, which resulted in a rape of the plaintiff. The U.S. Supreme Court reasoned that the experience of women in general, regarding the danger of being raped, has no implication on the specific ability of the house-owner to foresee the harm and prevent it (Bender, 1993). My legal analysis of tort law brings the aforementioned difficulties to the fore, taking a non-traditional approach, aimed at revealing the close connections between tort law and feminist claims regarding the subordination of women (Bitton, 2003, 2004). I offer to broaden, in a radical manner, the scope of the traditional boundaries of tort law. This presents a challenging legal perspective - a contextual legal prism through which the “sole” individual legal problem is seen as part of a larger collective problem. By initiating civil legal proceedings on behalf of abused women and using the tools of tort law creatively I hope to carve out a new legal language in a system where civil law suits against sex offenders are very rare. Other than the conceptual compatibility of tort law and the interests of WVSV, it is also my normative position that tort law should do so, internally and externally wise. Internally, still within its corrective justice paradigm, tort law functions as a legal response to abuse of power asymmetry (Shapo, 1997) and should therefore rightfully be called upon to respond to the gender-based power-relations from which WVSV suffer.

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Externally, as said before, the criminal process fails to compensate WVSV in a meaningful way, and in the rare cases it does, the monetary value of punitive damages awarded to the victims is usually poor. In that sense, the end of the criminal process marks the beginning of the victim’s physical and emotional efforts to heal and reclaim her life. Utilizing tort law as a means to resist the unequal power relations between women and men also signifies a feminist agenda which strives to find alternative paths to fight discrimination. Significantly, this path is separate from the criminal justice apparatus which problematically positions the feminist struggle alongside governmental interests. In the criminal justice system, feminist interests and governmental interests are presumably indistinguishable (Bernstein, 1996). A feminist approach adhering to the use of civil proceedings detaches the feminist action from the governmental one, placing it within the relatively government-free zone of the private law regime (Halley, Kotiswaran, Shamir & Thomas, 2006). In practice, though, it is clearly shown that tort law is not being used as a vehicle for compensating WVSV for their suffering. Tort claims by these victims are rare and almost absent from the legal sphere (Bitton, 2004). Various reasons can explain this systematic malfunction, including the insolvency of the offenders, the victim’s need for closure, the tiring and exhausting effect of the legal proceedings, and so forth (Scherer, 1992). However, these reasons alone cannot offer a full explanation for the farreaching failure of the civil tort system in Israel to provide damages to WVSV. After six decades of existence in Israel, the civil path is rarely used and in effect one could say that it is not being used at all. Given the pervasiveness of sexual violence and the harms it causes, these excuses for the failure of the tort law to provide a remedy are simply unpersuasive. Alternatively I shall hereby briefly concentrate on what I scholarly identify as some of the most major barriers that sex victims are encountering when pursuing their legal rights and remedies for recovery within the traditional civil tort claim. After pointing to the difficulties these barriers pose to the plaintiffs, I will offer a conceptually different approach to the problem – a feminist one – upon which these difficulties should be addressed and resolved. The obstacles embedded in tort law for WVSV are divided into two main groups: substantial and procedural.


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The breach of the promise? 1. Substantive barriers – the androcentrism of tort law One of the most prominent difficulties in deploying tort law doctrines as means to compensate WVSV is embodied in the most basic conception of tort law itself. Though originally shaped to protect against the infringement of bodily interests, tort law’s purpose has been mainly focused on the masculine experience of this harm (Chamallas & Kerber, 1990). Tort law, as law generally, takes the male perspective on life and its conflicts as experienced through male agents - legislators, judges and lawyers. Conservative modern legal thought normalizes this bias by presenting tort law as a “neutral”, “objective”, and “scientific” doctrine. In adopting the male experience and subjectivity in tort law, court decisions are most likely to recognize and prefer men’s needs over women’s (Finley, 1989). Tort law tends to ignore women’s positionality and adopts legal standards that are more compatible with men’s typical epistemology and life-experience. Feminists have proved that tort law’s attitude toward harms that were more easily connected with femininity and women’s life experience, enjoyed only minimal protection within tort law. Claims of mothers who suffered severe emotional and mental harm consequential upon the negligent death of her child, for example, were treated in a problematic, incoherent manner which reflected judicial rigidity (Chamallas & Kerber, 1990; Finley, 1997; Levit, 1992). In this way, tort law unconsciously reproduced the inferior status of all social ”others”. This androcentric orientation at the heart of tort law constitutes a fundamental substantive barrier to WVSV who bring suit under traditional tort law doctrine. In elaborating more particular substantive barriers of tort law with respect to WVSV, I chose to address the two main traits of a tort claims. First, the imposition of liability – the initial stage where one needs to establish that her right to be unharmed is rooted in tort law doctrines. And second, the assessment of the damages – the stage where one needs to prove and evaluate the loss imposed on her due to the wrongful behavior to which she was subjected. 1.1. Imposition of liability In order to establish liability in tort law, the plaintiff must prove that the defendant breached a duty of care owed to the plaintiff. The plaintiff must show that the defendants conduct rose to the level of a civil breach or

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“wrong” in that is satisfied the elements of the cause of action under which the claim arises, such as assault or negligence, etc.2 Here, two independent torts have traditionally protected against the infringement of bodily interests – Battery and Negligence. Battery consists of the application of force to the person of another without her informed consent, and negligence consists of acting in a manner which involves an unreasonable risk of causing a foreseeable damage (Salmond & Heuston, 1996). Though battery might seem at first glimpse as the natural choice for women seeking compensation for what is, practically, the infliction of unwelcome force upon them, this tort problematic to use due to being limited in scope (Conaghan & Mansell, 1999). Firstly, it usually assumes some bodily injury, preferably, some permanent or temporal disability or any other notable tangible harm, such as bruises. This requisite is not always easy to meet in the case of sex offences, a fact that is likely to result in an imposition of a more symbolic – and usually low – recovery. For example, in a case regarding the tort claim of a battered wife brought against her abusive husband, a Jerusalem Family Court granted the overly low amount of 17,000$ for five years of physical and sexual abuse from which the woman suffered (TMS 18551/00 KS v. KM (Jerusalem Family Court, 2004). At the time this ruling was made, awards in near same amount were already awarded in two significantly less violence cases, to two male plaintiffs, for one singular incident of regular violence they suffered from their attackers (AM 507/00 Silberg v. Sha’ar (Jerusalem District Court, 2001; 35317/99 Daniel v. Benua (Tel-Aviv Magistrate Court, 2001)). Secondly, up until 2005, the battery tort allowed legal rivalry between the victim and the attacker alone, excluding any vicarious liability of other parties, thus barring a real chance for any more comprehensive, holistic and “public” conceptualization of the seemingly “private” dispute (Bender, 1990). Now that the Israeli Tort Ordinance has been amended and vicarious liability is available, this restricting rule still applies to claims of women who were subject to battery prior to 2005, and who are entitled to file their claim until 2012. The old rule is therefore effective for four more years (Amendment no.10 to the Tort Ordinance, 2005). The tort of negligence, in contrast to battery, is being considered as the main feminist challenge to sexual assault and violence in the civil legal system (Handsley, 1996). Although traditionally not aimed at malicious behaviors, the tort of negligence is well established today as a means to protect victims against unreasonable and harmful conduct, regardless of 2

“Wrong” being the civil equivalent of criminal felony.


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the defendant’s state of mind (Englard, Barak & Cheshin, 1976). The law of negligence, as I envision it, can be a tool for inserting feminist perspectives into traditional tort law doctrines. It is founded upon the general notion that causing an expected and unreasonable harm to a person entitles that person to be compensated. The immediate “translation” of such liability is that any sexual violence can be identified as the imposition of an unreasonable yet foreseen risk on the plaintiff women (Bitton, 2003). However, utilizing this wrong as a means to allow the compensation of the women victim by the hands of the assailant usually proves to be insufficient and inefficient. It neglects to illuminate the systematic, structural nature of the harm done to women in general and it might end up leaving the victim with an impressive ruling empty from any real possibility of being actually awarded the damages fee. In this regard, feminist legal representation should be interested in reshaping tort law claims as “public” as well as “private” matters. Although according to the traditional or liberal thought tort law is positioned at the “private” sphere of law and is meant to resolve the conflict between two persons, tort claims should be redefined to include wider goals and as such reach into the “public” sphere (Abel, 1990). The tort claims of private victims represent the gender-based power disparity and the dominance of men over women. Therefore, these claims reconstruct tort law as an arena for voicing the silenced narrative and violent outcome of this unequal relationship. Tort law is being used as a platform for portraying - through “private details” - a major component of the “public feminine suffering” in a patriarchal society (Bitton, 2008). This is the manner in which tort law is being administered in “Tmura – The Antidiscrimination Legal Center”. Tmura is the Hebrew word for both change and exchange, and it represents its founder’s agenda of bringing upon change through exchange for discriminated victims. An example of a conception-altering claim is shown in Tmura’s tort claim case of a woman who was raped and murdered on the premises of the defendant’s business by one of his employees. The suit endorses the stance that it was the defendant’s obligation to the plaintiff to maintain an environment safe for women in his business. This law suit is innovative as it broadens and challenges the scope of “premises liability” of business owners concerning the well being and personal safety of women in the public sphere of the business world (Bender & Lawrence, 1993). Imposing liability in such a case would have two effects: it would enable real compensation to the victim by a corporate defendant – ex post, and would serve as a deterring message to other corporate entities to ensure personal security to women on their premises - ex ante. Impressively enough, all motions to dismiss

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similar Tmura cases were denied (See, e.g., 2421/06 Elimelech v. The State of Israel (Jerusalem District Court, 2007, preliminary decision); 2271/04 Brez v. Beitili Corporation LTD. (Tel-Aviv District Court, 2006, preliminary decision). Though not ensuring winning the cases against the indirect injurers, these denials nevertheless represent the willingness of judges to seriously engage themselves in the nontraditional thinking these claims embody. 1.2. Assessment of the damage Due to the common law’s tradition of nominal damages - whereby the plaintiff’s harm is acknowledged by granting a minimal amount of money - it is imperative that the harms done to the victims be understood as substantial (McGregor, 1997). In this sense, the bodily harms done to sex victims are easy to be recognized by tort law and the courts. Still, many, if not all, of the sex victims suffer mainly from dignitary harms, rather than physical handicaps. The harms inflicted on victims of sex crimes are primarily intangible (Connaghan, 1996). These harms raise a unique feminist interest, since they are symbolically perceived as feminine and more likely to impact women. Intangible losses are also considered in common law’s tradition as inferior to tangible losses and to some extent, irrecoverable. Lingering limitations have dictated the common law’s attitude towards compensating for harms such as emotional distress or suffering. These harms face continuing attacks despite the rhetoric indicating their acceptance and an understanding of their societal importance and deterrent effects (Handsley, 1996). In Israel, in particular, the courts have set a specific goal of limiting recovery for these harms, despite vocally admitting this agenda’s arbitrariness (Bitton, 2007). Bringing the cases of WVSV to the courts, therefore, provides an opportunity to contemplate on this ignored suffering. Tort law has “nodiscourse” tradition regarding compensation for harms caused by discrimination and exploitation, namely, compensation for the injured feelings of tort victims (Bitton, 2005). The suggested tort claims hereby endorsed would engage mainly with infringing the dignitary interests of the sex victim, by ways of discrimination and abuse of power disparity. Therefore they highlight the need for further incorporation of these harms into legal doctrine in a manner that would be most beneficial to women claimants. A sincere effort to overcome this discursive failure has been taken through the Preventing Sexual Harassment Act, 1998. Section 7 to this law allows courts to compensate victims of sexual harassment with up to


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18,000$ for their intangible harm, discharging the victim of her legal obligation to prove this harm in court. While this section intended to compensate for non-proved injuries, in practice, it serves as the maximum sum to compensate victims, for all intangible harms, whether proved before the court or not. Consequently, women were unable to cross this maximum sum burrier, at times regardless of the number of harassing incidents they suffered (2631/04 Patinda v. Parzin, Tel-Aviv District Court, 2006)). Nevertheless, in a recently decided Tmura case, the court acknowledged that each harassment should yield separate compensation (3012/06 Doe v. Roe (Jerusalem Labor Court, 2008)). Coupled with this concern, another concern regarding this “fix price” policy arises: though one might stress the appropriateness of the compensation sum, a comparative gaze on a different law using the exact mechanism, namely Commercial Wrong Act, 1999, reveals that it allows courts to grant double (!) the amount of compensation. This comparison, thus, exposes, explicitly and blatantly, Israeli tort law’s protectionist tendencies, by which the emotions of a person whose commercial interests were harmed are more important than those of whom bodily and dignitary interests were abridged. Another source for the anguish of victims and the confusion of courts is related to the apparatus through which the compensation can be assessed. Punitive damages are the most relevant mechanism to be applied as a means for compensating crime victims considering the need to lay emphasis on the exceptional culpable nature of the act as well as to ensure massive compensation sum, two traits characterizing punitive damages (Allen, Hartshorne & Martin, 2000). Yet, in several cases involving child molestation and trafficking in women the court decided not to award these damages to the victims without even giving reasonable doctrinal justification for these controversial decisions (18551/00 KS v. KM (Jerusalem Family Court, 2004); 2160/99 L v. L (Jerusalem Family Court, 2005); 1497/06 John Doe v. John Doe (Supreme Court, 2006). Tmura has just recently managed to change this reality in one of its cases, where a relatively sky rocketing compensation sum was declared punitive damages (209/05 MG v. Mizrahi (Haifa District Court, 2008)). Currently, Israeli judges seem to prefer the aggravated damages mechanism for compensating sex victims, but they seem to misuse this mechanism as well. Aggravated damages are damages designed to compensate victims for the aggravated, added value, of their hurt. It should therefore be additional to the intangible harm of the victims (Rainaldi, 1995). Instead, judges use it as a replacement for the regular intangible harms, granting the victims a low sum of money. This misuse should be

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amended, resulting in the imposition of fair and suitable damages to the women plaintiffs by the court (Bitton, 2005).

2. The procedural barriers In addition to the substantive barriers, WVSV also need to overcome some considerable procedural barriers integral to the civil process, most of which are unique to tort law claims. These barriers relate to three diverse dimensions, regarding time, finance and privacy. In the following paragraphs, I will elaborate on the main concerns that these barriers raise, and briefly suggest some alternative paths for overcoming them. 2.1. Time

The Israeli Statute of Limitations, 1958, generally permits the filing of a civil suit up until seven years from the day of wronging the plaintiff. This term is rather short and ineffective when taking into consideration the typical experience of sex victims, who are known to have delayed reactions to their unique suffering. Moreover, this term has been constantly interrupted by statutory initiatives during the last decade suggesting shortening it up to a four year term. The instability of the current seven-year statute of limitations term is only one component of this rule’s problematic features. Even in its existing form, this rule suffers from an irreconcilable discrepancy with its criminal statute of limitations counterpart. While the Israeli legislator has internalized the special need to extend the statute of limitations for victims of sexual violence in the criminal process - up to 20 years in cases of sex offences happening in a family – until recently, it has failed to do so in the civil one. Consequently and absurdly, a man could be convicted of the worst sexual crimes yet be free of any civil liability to his victim. For example, a woman we represented, whose father was convicted in molesting her, 20 years after doing so, will be barred by the civil statute of limitation from filing a civil suit against him and consequently be deprived of her right to compensatory damages. Accordingly, she alone will be forced to carry the burden of the suffering he caused her. This is no less than outrageous. Nevertheless, just recently in July 2007, the Israeli legislature has recognized – through Amendment no.4 to the Statute of Limitation (Sexual Abuse Claims), 2007 - the essential need of sexual WVSV to enjoy a much longer limitation period and adjusted it to that of the criminal law. This admired amendment, though, does not apply retroactively, and will hence benefit only “new” molested women,


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whereas women who were molested prior to legislating it, will still be banned from suing their rights, based on the past legal regime, just like our client. 2.2. Finances The harm caused by sexual violence is typically characterized by laywomen as emotional and mental suffering. According to the procedural typology of tort law, however sex victims are said to suffer mainly from what can be generalized as “bodily harms”, seeing their affected minds and emotions as part of their body. This categorization of harms has two financial implications, one which benefits women and the other which burdens them. Categorizing the harm as made to the body of the woman imposes a comparatively easier financial burden on the woman, in terms of the court fees every plaintiff in Israel is compelled to pay, which are relatively low in this grouping, according to Court Fee Regulations, 2007. However, the downside of this so-called advantage is that it is mandatory, according to Court Civil Proceeding Act, 1984, that a civil suit seeking compensation for “bodily injuries” be submitted along with a medical expert’s opinion. This prerequisite is not only highly expensive requirement but is also unique to bodily tort law claims. Other tort law claims, for example, claims regarding economic interests – which can be generally attributed to masculine matters - are condition free (Bitton, 2007). This demand serves as a main obstacle for women claimants in accessing the legal system and obtaining legal remedies, as they are obliged to finance by themselves these expensive medical evaluations (Abel, Felstiner & Sarat, 1980-81). This demand also differentiates between distinct groups of women, namely the poor and the rich because for many poor women these medical examinations are simply unobtainable. Absurdly, criminal defendants who are found guilty in the criminal process are almost automatically entitled to subsidized government assistance to defend against their victim’s tort claims arising out of the same offense they were convicted of. A sharp example of this absurdity can be shown in one of my clients’ cases, a rape victim who suffered multiple rapes at the hands of six men over the course of three days in a deserted cabin. While we had to invest endless resources in her civil claim on a volunteer basis, the rapists - who were found guilty as charged by two instances - enjoyed the public defender’s services during the criminal proceedings, followed by enjoyment of the civil legal aid services, during the civil proceedings.

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The expert opinion prerequisite is extremely outrageous in cases where the civil trail is being held after the criminal conviction of the defendant. In these cases this burden should be placed on the convicted felon who was found to be responsible for the injury. Additionally, a fair policy towards all WVSV plaintiffs would discharge women from this requirement or subsequently allow the plaintiff to present to the court any other non-formal available documentation regarding her injuries. Recently, this bundle of arguments has been approved by court in one of our cases, with hopefully more rulings to follow (2047/08 Raz v. Shealtiel (PetachTikva Magistrate Court, 2008, preliminary decision)). The fear that this less restrictive policy might lead to a flood of fraudulent suits can be moderated by an ex post policy of legal expenses to be paid to the defendant, rather than by the current ex ante financial obstruction of these claims. 2.3. Privacy Many criminal procedures are administered in confidentiality, in order to protect the victims’ right to privacy (Courts Act [combined], 1984). However, confidentiality works as a double-edged sword in the civil process. In order to pursue her civil case, the victim needs access to vast amounts of data and testimony that was produced during the criminal trial. However, the victim is not automatically entitled to the information concerning her own story and faces many bureaucratic obstacles that often can deter her from pursuing the civil suit. In one of the cases where our NGO represented a rape victim, we had to request the court to issue an injunction ordering the Israeli General Attorney to allow us to use some of the materials regarding the mental condition of the victim, which was produced during the criminal proceedings and was therefore confidential (209/05 MG v. Mizrahi (Haifa District Court, 2006)). On the other end of the privacy protection scale, many protections to which the victim is entitled within the criminal process under the Crime Victim Rights Act, 2001, are being denied from her in the civil one, such as the privilege of not having to testify while in the same court room with the defendant, and the rules banning investigating the complainant regarding her any use of the complainant’s sexual past and experience. Many victims need to face ruthless interrogations as to their most intimate sexual experiences in the preliminary stages of discovery, even before appearing in the court. This tactic can be used by defense counsels to intimidate or traumatize the victim and perhaps encourage her to drop her civil suit. In our representation we demand that the right of privacy of the plaintiffs be guaranteed by adjusting the civic common legal routines to the special


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needs of such plaintiffs. A creative procedure we initiated, for example, demanded that the court review the personal material requested prior to handing it to the rival parties, thus allowing the court to decide upon the necessity embedded in it to the defendant’s interests, compared with the damage this revelation imposes on the plaintiff (53317/07 OL v. Fin (TelAviv Magistrate Court, 2006, preliminary decision)).

3. The double edged sword of tort law In addition to falling short of its expectations, tort law is rapidly becoming hostile to the interests of WVSV. Recent developments in Israeli tort law have proved to be a source for concern rather than relief for them. Men have started using tort law in a manner dangerous to women when seeking compensation from women whose complaints failed to bring a successful criminal conviction (1570/94 David v. MM (Petach-Tikva Magistrate Court, 2004); 6039/02 Taub v. Hermon (Nazereth Magistrate Court, 2007); 15405/02 Binyamin v. ZK (Haifa Magistrate Court, 2008). These suits not only threaten the sense of accessibility and legitimacy of the tort law regime, but also negatively affect women who are already reluctant to file complaints against their abusers because by doing so they expose themselves to the risk of retaliatory civil litigation by their abusers. In representing a woman against whom a tort suit was filed based on the eventual acquittal of the male plaintiff, I have argued that this category of suits should not be permitted. Relying on the traditional constitutive role of tort liability, whereby rules against liability in special circumstances were set in the past in cases even though presumably, liability should have been applied, I’ve claimed for no-liability rule in these cases (Gilead, 1988). As was initially explained in this article, filling a complaint against a sexual assailant requires enormous mental strength from women. It requires them to confront their abusers, to meet the criteria of “a real rape” in order to be believed (Estrich, 1986), to overcome the “legal rape” she is anticipated to undergo, and so forth. Adding to this a supplemental fear of being personally sued and held liable for the whole process in cases of acquittal is practically unbearable. In a case we’ve just recently handled, the defendant was 14 when being sexually attacked by her school’s janitor. Due to some inappropriate manner of operating the criminal investigation by the police, the case ended up with him being acquitted. Despite the fact that the criminal tribunal made no comment that could have implied that the complainant’s credibility was questioned (121/00 The State of Israel v. Binyamin (Haifa District Court, 2000)), the defendant sued her, along with the police, for the allegedly false charges

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and the damages he faced as a result. The young woman found herself in the middle of a legal dispute which was taking place between the state’s prosecutors and the assailant. Even though she had no control over the operation and mishandling of the criminal investigation she was named liable by the attacker. Having no entitlement for pro-bono legal representation she felt doubly betrayed by the legal system which not only allowed the acquittal of her assailant, but also allowed him to sue her civilly. Only our intervention at a late stage of the legal litigations brought some sense of trust and dignity back into her life. This case too, accepted our objection to tort liability in cases where there is no minimal indication of fraud on behalf of the complainant (15405/02 Binyamin v. ZK (Haifa Magistrate Court, 2008)).

Summary The barriers embedded in the tort system for WVSV turns the process into a rather disempowering and violent experience. From the perspective of an advocate and legal practioner on the front lines of this struggle, every legal move initiated by the plaintiff encounters considerable resistance. The cutting-edge nature of these types of tort law suits poses a significant and novel threat to the pockets of the defendants. These cases face numerous and recurring motions to dismiss, preliminary legal objections, and multiple intermediate-appeals, traits that impose tremendous expenses on administrating the cases and require endless legal innovations and creativity. Sadly, as a result of this endlessly prolonged time table, three of Tmura’s cases have been in litigation for four years now, buried under the endless preliminary proceedings which prevent any significant ad-hock deliberation of these cases. Even in cases where the court has recognized the right to recovery for WVSV, there is still work left in educating judges around these new innovations. For example, in the case of the gang rape victim I represented, the District Civil Court eventually ruled against the rapists, ordering them to compensate the rape victims for her damages (209/05 MG v. Mizrahi (Haifa District Court, 2006)). While this ruling seems to be in the rape victim’s favor, a closer reading of the decision from a feminist critical perspective reveals a different picture. The court wrote a very short decision – one page long - ignoring the narrative of our client and her brutal rape. Our client’s story was mute and invisible through it. Moreover, the Court ignored the innovative tort-based aspects of our law suit and imposed only a small portion of the damages sought by us. We appealed to the Israeli Supreme Court arguing that rape cases must be


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viewed in a contextual manner seeing the one victim as part of a larger community that is exploited on the basis of gender. As such, it was argued that the court has erred when ruled using gender blind rhetoric and ignored the terrible story of our client by not revealing her story as the story of our society. We have argued that this ruling left our client invisible and transparent in the same manner she was abused when raped. This is an innovative legal approach which challenges the legal system’s foundations, even in cases that the courts rule in our clients’ favor. Fortunately, the Supreme Court of Israel has reversed the District Court’s ruling and ordered that the case be reviewed. Unfortunately, it paid only little attention to the broader “public” narrative [10506/06 MG v. Mizrahi (Supreme Court of Israel, 2008)]. This attitude has completely changed in the District Court’s second ruling. The court has emphasized the need to use tort law to deter prospective rapists, as well as the need to acknowledge the magnitude of rape harms. Consequently, the court has ordered the defendants to compensate the plaintiff for 470,000$ - by far, the highest compensation sum to be ever granted in sexual abuse cases in Israel. Reorienting tort law claims through feminist lawyering and scholarship such as those conducted in Tmura Center poses an innovative and revolutionary chance to challenge the core pillars of the discriminatory Israeli legal system. This unique lawyering highlights the potential transformation of tort law into a yet another vehicle for reclaiming the power of WVSV. Moreover, even though this re-orientation of tort law is being suggested within a radical feminism setting, it may appeal also to more moderate paradigms, whereby the victim-offender unit is considered a dyad, and interdependence and relationship are the surface of interaction (Ben-David, 2000). For many WVSV plaintiffs, meeting the offender in the court without the mediation of the state’s attorneys, and having continuing interactions with him is lining with ideas of dyed. Furthermore, some practices, within these claims, offer a more direct dialogue between the parties. Such is the practice of self-negotiated arbitration, outside the court, and prior to any authoritative interference. The general importance of taking scholarly and practical endeavors to advocate WVSV’s rights through the civil system is particularly apparent in the Israeli legal system, where no governmental support - be it financial, mental or other - is offered to victims of sexual crimes. Parliamentary efforts to ensure such minimal care to these victims are constantly being rejected or creatively postponed. These victims are, therefore, confined to the legal remedies that tort law delimits and demand broadening the legal framework to allow them maximal exhaustion of their right to be

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compensated. Unfortunately, this important work is carried out by volunteers and organizations which lack the resources and institutional power of the state. Considering the overall picture laid out in this chapter, one can conclude that there is room for careful optimism concerning the potential of tort law claims to enable women victims of sexual violence to reclaim the power that was brutally taken from them. A wave of hope for fuller recognition of WVSV’s rights is being constituted with every case served to court, where yet another victim challenges the limits of tort law and seeks her own private justice in our limited public legal order.

References Abel, R. L. (1990). A critique of tort law. UCLA Law Review, 37(5), 785-831. Abel, R. L., Felstiner, W. L. F., & Sarat, A. (1980-1981). The emergence and transformation of disputes: Naming, blaming, claiming. Law & Society Review, 15(3), 631-654. Allen, D., Hartshorne, J. T., & Martin, R. M. (2000). Damages in tort. London: Sweet & Maxwell. Barak, A. (2006). The judge in a democracy. Princeton and Oxford: Princeton University Press. Ben-David, S. (2000). Needed: Victim’s victimology. In P. C. Friday, & G. F. Kirchhoff, (Eds.), Victimology at the transition from the 20th to the 21st century (pp.55-72). Monchengladbach: Shaker Verlag & WSVP. Bender, L. (1990). Feminist (re) torts: Thoughts on the liability crisis, mass torts, power and responsibilities. Duke Law Journal, 39(4), 848-912. —. (1993). An overview of feminist tort scholarship. Cornell Law Review, 78(4), 575-596. Bender, L., & Lawrence, P. (1993). Is tort law male?: Foreseeability analysis and property managers’ liability for third party rapers of residents. Chicago-Kent Law Review, 69(2), 313-343. Bernstein, A. (1996) Better living through crime and tort. Boston University Law Review, 76(1), 169-192. Bitton, Y. (2003). Feminine life-experience and the forseeability of harm. Mishpatim, 33(3), 585-654 (In Hebrew). —. (2004). Re-reading tort law from a feminist-egalitarian perspective. Ph.D. Thesis. Hebrew University, Israel (In Hebrew). —. (2005). Dignity aches: Compensating constitutional harms. Mishpat Umimshal, 9(1), 137-187 (In Hebrew). —. (2007). The price of tears: On protecting gender-based interests in negligence tort in Reading. In D. Barak-Erez, Y. Bitton, D. Pugatch &


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S. Yanisky-Ravid (Eds.), Readings in law, gender and feminism (pp. 233-285). Israel: Nevo Publishing (In Hebrew). —. (2008, forthcoming). Public hierarchy – private harm: Negotiating divorce within Judaism. In L. S. Peterson & L. Dresdner (Eds.), (Re)Interpretations: The shapes of justice in women's experience. Massachusetts: Cambridge Scholars press. Casarino, C. (1996). Civil remedies in acquaintance rape cases. Boston University Public International Law Journal, 6(1), 185-201. Chamallas, M. (1997). The architecture of bias: Deep structures in tort law. University of Pennsylvania Law Review, 146(2), 463-531. Chamallas, M., & Kerber, L. K. (1990). Women, mothers and the law of fright: A history. Michigan Law Review, 88(4), 814-864. Conaghan, J. (1996). Gendered harms and the law of tort: Remedying (sexual) harassment. Oxford Journal of Legal Studies, 16(2), 407-431. Conaghan, J., & Mansell, W. (1999) The wrongs of tort, (2nd ed.). London: Pluto Press. Englard, I., Barak, A., & Cheshin, M. (1976). The law of tort. Israel: Magnes Publishing (In Hebrew). Estrich, S. (1986). Rape. Yale Law Journal, 95(6), 1087-1184. Finley, L. M. (1997). Female trouble: The implications of tort reform for women. Tennessee Law Review, 64(3), 847-880. —. (1989). Breaking women’s silence in law: The dilemma of the gendered nature of legal reasoning. Notre Dame Law Review, 64(5), 886-910. Gavison, R. (1992). Feminism and the public/private distinction. Stanford Law Review, 45(1), 1-45. Gilead, I. (1988). The fundamental concepts of negligence law. Iyuney Mishpat, 14, 319-370 (In Hebrew). Halley, J., Kotiswaran, P., Shamir, H., & Thomas, C. (2006). From the international to the local in feminist legal responses to rape, prostitution/sex work, and sex trafficking: Four studies in contemporary governance feminism. Harvard Journal of Law & Gender, 29(2), 335-423. Handsley, E. (1996). Mental injury occasioned by harm to another: A feminist critique. Law & Inequality Journal, 14(2), 391-488. Levit, N. (1992). Ethereal torts. The George Washington Law Review, 61(1), 136-192. MacKinnon, C. A. (1983). Feminism, Marxism, method and the state: Towards feminist jurisprudence. Signs, 8(3), 635-639.

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MacKinnon C. A., & Dworkin, A. (Eds.). (1997). In harm's way - The pornography civil rights hearings. Cambrigde, Massachusetts: Harvard University Press. McGregor, H. (1997). McGregor on damages. London: Sweet & Maxwell. Minow, M., & Spelman, E. V. (1990). In Context. South California Law Review, 63, 1597-1652. O’Neale, R. J. (1978). Court ordered psychiatric examination of a rape victim in a criminal rape prosecution – Or how many times must a woman be raped?. Santa Clara Law Review, 18(1), 119-156. Rainaldi, L. D. (Ed.). (1995). Damages and remedies in tort. Scarborough, Ontario: Carswell. Rogers, W.V.H. (Ed.)(2002). Winfield and Jolowicz on tort (16th ed.). London: Sweet & Maxwell. Scherer, D. D. (1992). Tort remedies for victims of domestic abuse. South California Law Review, 43(3), 543-574. Schulhofer, S. J. (1995). The feminist challenge in criminal law. University of Pennsylvania Law Review, 143(5), 2151-2207. Shapo, M. S. (1997). The duty to act: Tort law, power, and public policy. Durham, NC: Carolina Academic Press. The Israeli Association for Rape Crises Centers. (2008). Annual Report 2007. Retrieved 20.8.2008 from http://www.1202.org.il/template/default.asp?siteId=1&maincat=4 (In Hebrew). Weinrib, E. J. (1995). The idea of private law. Cambridge, Massachusetts: Harvard University Press. West, R. (1997). Caring for justice. New York: New York University Press.

Israeli Legislation Amendment no.4 to the Statute of Limitation (Sexual Abuse Claims), 2007. Amendment no.10 to the Tort Ordinance, 2005. Commercial Wrong Act, 1999. Court Civil Proceeding Act, 1984. Court Fee Regulations, 2007. Courts Act [combined], 1984, Crime Victim Rights Act, 2001. Evidence Act, 1971. Penal Act, 1977. Preventing Sexual Harassment Act, 1998. Statute of Limitations, 1958.


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Israeli Law Cases 15405/02 Binyamin v. ZK (Haifa Magistrate Court, 2008). 2271/04 Brez v. Beitili Corporation LTD. (Tel-Aviv District Court, 2006, preliminary decision). 35317/99 Daniel v. Benua (Tel-Aviv Magistrate Court, 2001). 1570/94 David v. MM (Petach-Tikva Magistrate Court, 2004). 3012/06 Doe v. Roe (Jerusalem Labor Court, 2008). 2421/06 Elimelech v. The State of Israel (Jerusalem District Court, 2007, preliminary decision). 18551/00 KS v. KM (Jerusalem Family Court, 2004). 2160/99 L v. L (Jerusalem Family Court, 2005). 209/05 MG v. Mizrahi (Haifa District Court, 2006, reversed). 209/05 MG v. Mizrahi (Haifa District Court, 2008). 10506/06 MG v. Mizrahi (Supreme Court of Israel, 2008). 4929/07 NY v. Schwartz (Haifa Family Court, pending). 53317/07 OL v. Fin (Tel-Aviv Magistrate Court, 2006, preliminary decision). 2631/04 Patinda v. Parzin (Tel-Aviv District Court, 2006). (2047/08 Raz v. Shealtiel (Petach-Tikva Magistrate Court, 2008, preliminary decision). 507/00 Silberg v. Sha’ar (Jerusalem District Court, 2001). 6039/02 Taub v. Hermon (Nazereth Magistrate Court, 2007). 121/00 The State of Israel v. Binyamin (Haifa District Court, 2000).

CHAPTER SEVEN SEXUAL ASSAULT VICTIMS: EMPOWERMENT OR RE-VICTIMIZATION? THE NEED FOR A THERAPEUTIC JURISPRUDENCE MODEL HADAR DANCIG-ROSENBERG1

Abstract This chapter discusses the question of to what degree the criminal proceeding should allow the voices of sexual assault victims to be heard in court, in a way that serves the classic goals of the criminal trial and, at the same time, offers them a therapeutically valuable tool of empowerment. This chapter explains, by portraying the gap between therapeutic and legal dialogue, how difficult it is to integrate the voice of a sexual assault victim into the adversarial discourse. It attempts to convince readers that the existing process requires adjustments that would reflect an acknowledgement of the unique phenomena suffered by victims. A view that recognizes the therapeutic potential of the criminal process as a tool for healing victims supports the adoption of a therapeutic jurisprudence as a proper model for shaping the criminal process. This chapter points out the need for adopting such a model, while trying to propose that for as long as the adversarial system is not totally abandoned, it must undergo reforms that will advance therapeutic values. The proposed changes would increase the objectives that the criminal process could achieve and turn it into a multi-dimensional tool.

1

The author wishes to thank Prof. Arnold Enker, Prof. Leslie Sebba, Dr. Lea Vizel, and clinical psychologist Orit Leibovitch for their perceptive comments on an early draft of this chapter.

Sexual Assault Victims: Empowerment or Re-victimization?

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“I felt betrayed and cheated by the law, for, in the end, I know that I was misled into telling my painful story, shouting it yet remaining silent.” [From a letter written to the court by a sexual assault victim, as cited in HCJ 5961/07 Jane Doe v. State Prosecutor (decided on September 23, 2007, not yet reported)]

Introduction In this chapter, I would like to discuss some issues that have arisen in my work with victims of sexual assault. This concerns the manner in which the voices of sexual assault victims are incorporated into the discourse characterizing the traditional adversarial criminal trial, particularly in light of their unique needs. The question is to what degree the criminal proceeding should allow the voices of victims to be heard in court, in a way that serves the classic goals of the criminal trial and, at the same time, acknowledges their experiences and offers them a therapeutically valuable tool of empowerment. Statistical data indicates that a high percentage (~66%) of victims turn to rape crisis centers but choose not to file a complaint with the police (see the findings in the 2006 annual report of the Association of Rape Crisis Centers in Israel). The fact that the existing criminal process – which is the “official” arena for dealing with sexual offenses – only handles about 33% of the cases reported to crisis centers, demonstrates that many victims do not consider it an adequate solution. Considerable thought must be given to discovering the reasons for these statistics and to finding sophisticated solutions for a wider range of cases. And, indeed, in recent years much has been written about the need to develop social frameworks that would serve as an alternative to the criminal justice system and would treat victims, assailants, and the community-at-large more properly (Christie, 1977; Farkash, 2002; Pugach, 2004; Sander, 1985; Tennenbaum, 2001). Such alternatives could be found within the context of civil suits and extrajudicial proceedings (such as meetings based on a model of restorative justice). In this chapter, I will not deal with such alternatives. However, I will examine the inner workings of the existing criminal process in order to determine how and if it is possible to turn the legal discourse into an inclusive setting capable of providing an appropriate solution for sexual assault victims. I will try to show that, in criminal proceedings dealing with sexual offenses, modifications are necessary that recognize the unique experience of victims and offer them a more suitable environment in which to express themselves. In many cases, these modifications would not threaten the existing objectives of the criminal process and do not even necessarily

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require a dramatic upheaval in the adversarial system. However, in some cases, they might raise fears that a defendant’s rights would be violated. Therefore, considerable thought should be given to finding a proper balance in such cases. This goes beyond the scope of this chapter. The aim of this chapter is, inter alia, to look at these fears from a perspective that has not yet been sufficiently examined. Moreover, as I will show, in many cases such fears do not arise, and the proposed modifications could at least be applied in these situations. The proposed modifications would expand the scope of objectives that can be achieved by the criminal process. These changes are justified, first and foremost, in light of the basic goal of the criminal proceeding, which is to ascertain the truth within a due process framework. As I shall demonstrate, current practice leads to a distortion of the truth because, when evaluating the testimony of the victim, the court reaches factual and legal conclusions in a manner that ignores her psychological state and ascribes mistaken significance to how she appears in the courtroom.2 Creating a suitable environment for a complainant to voice herself would encourage other victims to participate in the criminal process and would contribute to exposing the truth – thus serving the public interest in eradicating crime. At the same time, I will argue that giving voice to victims – as an end in itself – is a valuable tool of rehabilitation. When a defendant is acquitted despite objective guilt and the legal outcome doesn’t reflect the truth of what the victim has suffered, giving her the ability to voice herself, on its own, “compensates” the victim for the “failings” of the criminal process.

The therapeutic potential of the criminal process as a healing agent for sexual assault victims Expanding the goals of the criminal process to include more than just a search for the truth within a due process framework relates to a broader question in the field of jurisprudence that examines the connection between perceptions of justice and the aims of the legal process. Over the years, a traditional approach has prevailed that views the law as no more than just a means for a fairer allocation of social resources (Bilsky, 2000). This view of the law, as a narrow tool with limited objectives, has affected its development and underlying value system. As Daicoff (2006) argues, 2

Gender-based language is used in this chapter because, statistically speaking, most sexual assault victims are female and, therefore, gender-neutral language would ignore this fact. References to female victims should be construed as also including male victims.


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lawyers are traditionally taught, from the beginning of their studies, to develop a rights-based orientation. They only learn to sift through facts that are relevant to legal doctrines, to focus on a purely legal analysis, and to strive in reaching the “bottom line” – achieving legal outcomes (who wins or loses) without looking at the side effects and emotional consequences of the processes involved in resolving legal matters (Korobkin & Guthrie, 1997). Values associated with what Gilligan (1993) calls “the ethics of care” (such as harmony, connectedness, interpersonal relations, attending to individual needs and feelings, etc.) are traditionally perceived as foreign to legal discourse and, as such, are ignored (MenkelMeadow, 1996). Therefore, following developments in philosophical and sociological theories that shape the underlying values of the legal system, the past two decades have witnessed the emergence of a new movement in law (for an historical discussion of the changing trends in philosophical and social views that have shaped the values reflected by the American legal system, from approaches revering personal liberty and autonomy to approaches emphasizing belonging and interpersonal relations, see: Barton, 1998; Daicoff, 2006; Perlin, 1999-2000). This movement takes a comprehensive, integrated, humanistic, interdisciplinary and often therapeutic approach to law (Daicoff, 2006). The research of Wexler and Winick (1996) has resulted in the creation of a new jurisprudence, which they call “therapeutic jurisprudence,” reflecting their study of law as a potentially therapeutic agent. Therapeutic jurisprudence offers a new model which recognizes that substantive rules, legal procedures and lawyers’ roles may have either therapeutic or anti-therapeutic consequences. It questions whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while maintaining principles of due process and other justice values (Perlin, 1999-2000). This comprehensive law approach desires to maximize the emotional, psychological, and rational well-being of the individuals and communities involved in each legal matter and focuses on factors other than just strict legal rights, such as: feelings, needs, goals, psychological health, values, and moral concerns (Daicoff, 2006). Tesler (cited in Daicoff, 2006) calls this feature “rights plus.” Approaching the law as a therapeutic agent offers additional “lenses” through which all legal issues may be viewed (Wexler & Winick, 1996). This approach seeks to advance a humane legal process that would constitute a protective, comfortable setting for all participants, while maintaining the integrity and dignity of each and every participant. This view of the law is the natural outcome of feminist jurisprudence and the law and psychology movement (Daicoff, 2006; Satin, 1994). Since it grew out of

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an interdisciplinary legal-psychological perspective, it has spread to many legal fields, including areas such as: sexual orientation law, domestic violence law, victimology, etc (Daicoff, 2006; Wexler & Winick, 1996). The main contribution of therapeutic jurisprudence is, therefore, the identification of broader goals embodied in the legal process (Wexler & Winick, 1996). Similarly, feminist legal literature dealing with theories of justice also tries to show that, apart from its classic role, the legal process is designed to serve additional social functions (Menkel-Meadow, 1996; Baker, 2005). One of these functions – “giving voice” – recognizes the right of individuals to describe their experience in a public setting, granting it social legitimacy regardless of the formal outcome of the process (for a presentation of the voice metaphor in feminist literature, from various perspectives, see the influential writings of Gilligan, 1993; MacKinnon, 1993). The voice metaphor has been used in legal writing to describe an alternative to the narrow, prevailing view of the legal process as nothing more than a tool for ascertaining the “truth” within a due process framework. The voice metaphor challenges the assumption that there is one “objective truth”. It emphasizes the multitude of truths and sees no benefit or justice in the attempt to reduce many voices to a single truth. Underlying this approach is the normative view that we should learn to listen to different voices, allowing them to be truly heard in a public setting – including the courtroom (Bilsky, 2000). In many cases, victims say that, from their perspective, expressing themselves in court can be summed up in the desire to obtain social recognition of the injustice caused to them (Coombs, 1993; DancigRosenberg & Pugach, in press; Margalit, 2007). They speak of an attempt to reconstruct their threatened identity; and some of them feel that their testimony is a tool for rehabilitating the failed “discourse” between them and the assailant, who rejects their interpretation of events (Dadia & Durian, 2004). Yanay’s (2003) research demonstrates that some victims themselves view the presentation of their pain in court as an important stage designed to enable them to feel that they have got “justice”. Thus, for example, to one victim, the verdict was a “confirmation” that he was indeed assaulted and that the act committed against him was indeed grave. Several victims have reported that it was important to them that the court defined them as “victims” and blamed the assailants (Yanay, 2003). By making this distinction, the court helped them to overcome their confusion and “acquit” themselves of the guilt that perhaps they were to blame for the crime committed against them. One person, victimized within his family, said that it was important to him that the crimes committed in the greatest of secrecy were “brought to light”. Now that


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there was no longer a secret and the court had addressed his suffering, the verdict was the beginning of a new stage in his life. For some victims, testimony is primarily a therapeutically valuable act of empowerment – of giving voice and restoring control. This is expressed in the testimony of S.: “The victory of the soul is essentially the coping. To cope with a huge society and with the assailant …” (cited in Margalit’s research, 2007, p. 23). The fact that testimony is a tool for ascertaining the legal truth and for obtaining a criminal conviction is, of course, very important, but even in cases that do not end with a conviction, testimony has an added value, as reflected by the words of G.: “In the very filing of the complaint I am saying: ’Enough silence and down with the feeling of victimization’” (Margalit, 2007, p. 23). As Tyler explains, following an empirical study he conducted regarding the satisfaction of litigants with the judicial process, litigation is not necessarily what people want from the law. Rather, they want a voice, an opportunity to tell their story, respectful treatment by the authority figures, and a decision – if made by a third party – explained to them (Tyler, 1996). A view of justice that ascribes independent value to giving victims a voice in court expresses their needs (Erez, 1999; Sebba, 1994) This approach also tries to place an emphasis on the process and not just the outcome, recognizing the tremendous significance embodied by the process itself – beyond the “bottom line” (Erez, 1999). How, therefore, do victims experience their encounter with the criminal justice system in today’s reality? I will now move on to discuss the gap between the ideal and reality.

When paradigms clash: the victim in the adversarial criminal proceeding – dialogue or a “discourse between the deaf”? The central experience of sexual assault is a loss of control and a sense of helplessness. The assailant treats the body of the victim as if it were his own, without considering her wishes and in a manner whereby she cannot resist (Korman & Dadia, 2007). In some sense, the existing criminal process reconstructs these characteristics in how it treats the complainant. Consequently, the encounter between sexual assault victims and the legal system is a difficult and frustrating encounter that re-exposes them to a lack of control and a sense of voicelessness. In my opinion, the main factor that interferes with hearing the voices of sexual assault victims in court is the difficulty in negotiating between legal discourse and therapeutic discourse. By its very nature, and given its “strict” rules and its search for one “objective truth,” it is difficult for legal

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discourse to include complex messages (Baker, 2005). In contrast, therapeutic discourse follows the subjective experience of the victim, focusing on the nature and consequences of the trauma that she has suffered and emphasizing her needs. The intersection between the legal and therapeutic realms – which are each based on essentially different paradigms – is a delicate encounter and, as such, prone to conflict (Dadia & Durian, 2004). Practical experience and research demonstrate that victims who turn to the legal system are often faced with a process unsuited to deal with their unique and complicated experience (Bryden & Lengnick, 1996-1997; O’Neale, 1978). Liat, who suffered a continuous assault by her driving instructor, illustratively describes her encounter with the “very judicial” judge, in her words, who presided in the trial of her assailant: By the time I found the strength within myself to put an end to my silence . . . here comes the judge and wipes it all out with mere words . . . try to imagine that someone keeps throwing you down over and over into the mud, and you are so wet, embarrassed, and you feel cold and confused, and are eating yourself up with anger. And then, you gather strength and rise up, and here is the hand that would help you, and then, you receive a blow that hurls you back down into the mud, a blow that is perhaps more painful than the first . . . (quoted from the testimony of Liat, in the 2006 annual report of the Association of Rape Crisis Centers in Israel).

This is made even more difficult by the nature of the adversarial process, which is characterized by “inflexible” rules of procedure and evidence designed to realize classic principles of criminal law. In general, these principles reflect a traditional approach that views the criminal law as a “powerful means” for serving the public interest and not as a tool designed to serve the private interest of the victim. Accordingly, control of the process is taken out of the victim’s hands, and her status is reduced to that of a witness at trial. Indeed, the discourse of victims’ rights, which has also begun to pervade Israeli law in recent years, reflects an increased recognition of the special status and needs of victims (Arbel, 2003; Gross, 2002); however, even following the enactment of the Israeli Rights of Victims of Crime Law (in 2001), this recognition is primarily symbolic and, in effect, broad discretion is granted to the prosecution, which must ensure that the defendant’s right to due process is protected. Moreover, statistics show that most criminal proceedings end in a plea bargain, whereby the defendant is convicted on the basis of a confession without the need to hear evidence (Gazal, 2005). In these cases, the victim’s testimony is unnecessary and, at most, the law grants her a legal right to express her opinion regarding the plea bargain before a decision is


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reached in this matter (sec. 8 of the Rights of Victims of Crime Law, 2001). Consequently, in many cases, not only it is unnecessary for the system to hear the voice of the victim, but she is also “removed” from the stage where she is supposed to express her injury (Zamir & Shkabatur, 2005). Given the prevalence of plea bargains, there should be broad support for granting the victim an independent voice, at least during the sentencing phase. And, indeed, in the past decade there has been an increased recognition of the importance of enabling the victim to voice herself in court, and in many countries a victim impact statement (VIS) is often submitted in court. The purpose of the VIS is to provide judges, before sentencing, with information about the harm suffered by the victim as a result of the offense, whether emotional, physical, or economic (Ashworth, 1993; Erez, 1994; Pugach, 2004; Sebba, 1997; Yanay, 1993). The VIS is used in various forms throughout the world, sometimes even as a pre-sentencing requirement. The Israeli method is based on American and Canadian experience, whereby a professional interviewer (such as a probation officer) takes the statement, and the assessment of its content is left to the exclusive discretion of the court. Based on empirical experience accumulated throughout the world, scholars point to the therapeutic value of the VIS for victims and its contribution to more just sentences (Erez, 1994; Erez, 1999). As Erez explains: “Providing victims with a voice has not only many therapeutic advantages and related fairness considerations, it also ensures that sentencing judges become aware of the extent of harm suffered by victims” (Erez, 1999, p. 555). By means of the VIS, the court is exposed to the suffering of the victim and this exposure could help in understanding the values that were injured – an understanding that is essential when there is a link between moral guilt and criminal guilt (Meirav, 2001). Moreover, the VIS allows the court to reach its decision based on extensive information about the harm caused (Erez, 1999; Pugach, 2004), and “although it might be argued that the number of cases in which VIS make a difference in the outcome is relatively low, to the individuals involved, and to the justice system as a whole, this makes all the difference” (Erez, 1999, p. 555). Therefore, the VIS should be viewed as a “useful vehicle to enhance justice in adversarial criminal justice systems while it simultaneously helps and empowers victims” (Erez, 1999, p. 555). However, even though victim impact statements have become the norm in many countries, the debate over their justification continues (Ashworth, 1993; Erez, 1994; Pugach, 2004). Sharp disagreement exists over whether or not it is at all proper to allow the victim to voice herself at

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the sentencing stage – and, if so, how her status should be defined. Should she be viewed solely as a witness testifying about the harm caused to her or should she also be permitted to express her opinion regarding the appropriate punishment? (Pugach, 2004). Even when the victim is supposedly allowed to have her say in court, this opportunity is limited by a defined system of substantive and evidentiary rules (Ball, 1975; Dadia & Durian, 2004), which lead to a significant gap between her “authentic” voice and the “processed” voice considered relevant for the purposes of ascertaining guilt in a criminal proceeding. Thus, for example, according to the rules of examination, the complaining witness must answer only the specific questions that are put to her. As a result, the victim’s true voice is not heard in court – instead of a monologue describing the victim’s actual experience, what is heard is a series of narratives conforming to existing legal categories. The questions asked by lawyers are designed to serve the narrow role of a search for the truth surrounding past events and, therefore, are formulated according to legal patterns and background stories that shape the entire legal discourse (Bilsky, 2000; Dadia & Durian, 2004). They are not designed to reflect the broader range of experience that is important for the victim to convey when describing the injury that she has suffered. Thus, there is a wide gap between “stories of rape” as experienced by the victims themselves and “courtroom stories of rape” which are confiscated from their owners for the purposes of the legal process. This combines with feminist criticism of the law’s choice to adhere to the familiar methods of proof, which ignore female patterns of communication and thus cause further harm to victims (Pugach, 2007; Raitt, 2000; Temkin, 2000). For example, the rule disqualifying hearsay evidence appears suited to male patterns of behavior, but tends mostly to hurt women, who are inclined to tell the people close to them about what is happening in their lives – reports that could often be reliable and contribute to ascertaining the truth, if heard in court (Raitt, 2000). This rule of evidence leads to the inadmissibility of testimony that could be particularly crucial for victims who have avoided reporting their stories to the authorities for many years but have revealed their secret to a therapist or fellow member of a support group (Hall & Lloyd, 1989; Pugach, 2007). Moreover, the trauma suffered by the victim makes it more difficult for her to cope with the typical “rules of the game” by which the weight and credibility of testimony is usually examined and evaluated in court. Psychological defense mechanisms such as dissociation and repression directly influence her testimony (Dadia & Durian, 2004; Shebar-Shapira,


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2007) Therefore, judges must liberate themselves from intuitive methods of thinking and recognize the “different rules” of post-traumatic behavior. A typical process that reflects the hardships that injured parties undergo until they turn to the court in order to seek relief is referred to in the literature as “naming, blaming, claiming” (Felstiner, Abel & Sarat, 1980). With regard to victims of violence, this model describes the emotional difficulty faced by victims in reaching the state of mind where they are able to turn to the legal process and demand a remedy for or recognition of their injury. The “naming” stage refers to the difficulty that victims face in giving a name to the injury that they have suffered, i.e., to acknowledge the fact that the injurious act committed against them is indeed an “assault” (e.g., the difficulty married women have to understand that forced sexual relations with their husbands is rape). The “blaming” stage describes the difficulty that victims have to treat the assailant as the one who is guilty of the assault committed against them, and not to blame themselves. Finally, the “claiming” stage describes how hard it is for victims to reveal their stories and bring them before the court, given their sense of embarrassment, fear, helplessness, etc. To illustrate the gap between the processing of a sexual assault victim’s emotional experience in a therapeutic setting as opposed to a legal setting, I will present several of the emotional processes characterizing the world of victims. As we will see, this gap leads to an emotionally complicated encounter between the victim and the legal process, in general, and the criminal proceeding, in particular – a gap that may be referred to, in descriptive language, as “a discourse between the deaf”. The dominant emotions experienced by victims of sexual assault are intense feelings of guilt and shame (Abramovich, 2004; Herman, 1992; Seligman, 2004; Torrey, 1990-1991). Among many sexually abused women it is possible to observe a psychological process (a sort of survival mechanism) whereby they internalize the evil of what has been done to them (Shebar-Shapira, 2007). Victims of sexual crimes are left with the unbearable thought that the world is filled with cruelty and that it is no longer possible to count on people who have been previously trusted. In order to survive and continue functioning, victims internalize the guilt over what has happened to them. They need to feel that there is a logical explanation for what they have suffered (Shebar-Shapira, 2007). And what does logic tell them? That if something evil has been done to them, then it is they who are evil; that if something so perverse has happened to them, then something in them – and not in the world – is perverse (Torrey, 1990-1991). Sexual assault victims – and, even more so, victims of incest – internalize a guilt that they have brought upon themselves the outrage that

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has occurred. This guilt leads to a shame that often prevents them from telling their story to or seeking assistance from others. At the same time, society is rife with stereotypes and myths regarding sexual assault (Coombs, 1993; Shoham, 1996; Torrey, 1990-1991). These myths are the product, among other things, of psychological defense mechanisms that cause both women and men to believe that the world is safer if terrible things like rape and sexual assault only happen to very specific ‘types’ of women (for an extensive discussion of such myths of rape and psychological defense mechanisms, see: Baker, 1999; Barak-Erez, 1998; Coombs, 1993; Estrich, 1987; Livnat, 1997; Negbi, 2006; Sebba & LibanKobi, 1995; Shachar, 1994; Shoham, 1996; Tirosh, 2001; Torrey, 19901991). The myths reinforce the shame and guilt felt by victims, perpetuating attitudes like “it is the victim who brought it upon herself,” and, in this way, contribute to the social silencing of victims. In this sense, victims of sexual assault differ from victims of other crimes: there are few crimes that lead to such intense feelings of shame among victims (Torrey, 1990-1991). This shame is so internalized that it permeates everything that the victim says about what has happened to her, especially in the threatening atmosphere of a courtroom, where she is expected to testify with certainty that the defendant is indeed her assailant. While in a therapeutic setting it is necessary to allow this inner dialogue to take place – so that the victim can reorganize her own perceptions – such a dialogue is considered by “legal purists” to have no place in the courtroom (Shebar-Shapira, 2007). In court, the truth must be unequivocal: either the defendant is completely guilty or he is innocent. If the victim displays feelings of guilt in her testimony, then it is only natural to think that the defendant is less guilty – or not guilty at all. And if the victim is so ashamed of what happened to her, then perhaps she is a little guilty herself? Wouldn’t it seem logical to view things in this way?! The court cannot tolerate such inner confusion on the part of a complaining witness – it also confuses the court and prevents it from ascertaining a clear truth. The requirement for coherency leads to an obvious “preference” for simple, consistent, and clear stories; but the stories of sexual assault victims naturally tend to be complex, confused, and ambivalent (Coombs, 1993). Feminist scholars note the difficulty in mediating between the criminal law, which is characterized by simplistic and conventional thinking and relies on a dichotomous presentation of situations that attempts to isolate experiences and feelings from legal discourse, and stories of rape or violence towards women, which are naturally characterized by emotional complexity (see: Baker, 2005; Dancig-Rosenberg & Pugach, in press; Littleton, 1989; Menkel-Meadow,


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1985; West, 1993). Moreover, the dichotomous nature of the criminal law and the fundamental perceptions shaping it (e.g., the presumption of innocence and evidentiary obstacles derived from it, such as the beyond a reasonable doubt burden of proof) make it difficult for the public, and obviously for the victim, to digest the complex message sent by the acquittal of a defendant even when the complainant is credible and trustworthy. This is made even more complicated by the fact that many women who have been sexually assaulted suffer grave symptoms of post-traumatic stress. Post-traumatic stress disorder (PTSD), as clinically defined, is brought on by exposure to an isolated or continuing trauma, and is characterized by various physical and emotional responses (for the clinical definition, see: DSM-IV, 1994). The trauma of sexual assault (especially in cases of incest) is characterized by symptoms such as emotional apathy and dissociation (DSM-IV, 1994; Somer, E. 2004). Victims undergo a process of emotional detachment – a feeling that experiences are not real, as if they are being watched in a film. Sometimes this dissociation is experienced as a lack of control over what one says, the feelings one expresses, or the associated behavior (Somer, E. 2004). These symptoms are a type of psychological defense mechanism, designed to ease the living memory of the trauma. The psyche is trying to protect itself from the unbearable flood of emotions and simply dulls itself. This dissociative mechanism helps the victim to flee the horror of the traumatic experience and to compartmentalize her painful memories, which enables her to continue functioning (Somer, L., 2004). The problem is that this helpful mechanism has a negative side effect – these same defenses disrupt the victim’s normal adjustment, interfering with her ability to process the traumatic event and to recover from it. Thus, the traumatic event could intrude on the individual’s awareness at an unexpected moment and unconsciously recreate itself – alternatively, the victim could dissociate herself when she encounters a stimulus that in some way recalls the traumatic event (expanded on in: Herman, 1992; Seligman, 2004; Somer, E., 2004). This is why a victim of sexual assault can relate her story in a totally “flat” or unemotional manner, describing events without shedding a tear, as if they happened to someone else. Of course, deep down inside she is filled with pain. However, the emotional burden is so overwhelming that she has become detached and apathetic. Victims suffering from this disorder report feeling like “a dead person walking” or “as if a glass wall separates them from the rest of the world” (Somer, E., 2004, pp. 177-178). The problem arises when, in courtroom testimony, the story and the storyteller are viewed as one. The story is painful and only sounds real if

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the storyteller is seen to be in pain and appears to have truly suffered (Shebar-Shapira, 2007). Thus, the range of “credible” stories is narrower than the range of “genuine” stories. Whereas in the therapeutic setting it is understood that the more emotionally detached the victim the more severe the post-traumatic stress, an apathetic appearance in court is interpreted in the opposite manner – her testimony raises doubt and seems less convincing. Defense attorneys obviously do not hesitate to exploit this for the benefit of their client by attempting to impugn the credibility of the victim through a cross-examination that exposes the gap between expectations of “classic” testimony and the victim’s inability to meet this expectation. As one of the defense attorneys interviewed by Temkin (2000) explained, regarding cross-examination strategies in rape cases: “You’ll put your chap’s facts and obviously controvert her facts. They’re less important than undermining her personality. It sounds sinister, but that’s what you’re trying to do; make her sound and appear less credible” (p. 199). The nature of traumatic memory also makes it difficult to bridge the divide between the therapeutic setting and the legal realm (Coombs, 1993). Women who have been sexually assaulted are subject to irregular appearances of memory: they may remember everything, they may remember bits without any inner logic, and they may suffer dissociative amnesia, which expresses itself in an inability to remember important personal information or to express it verbally. This is not a true loss of memory, but rather a state in which the information is recorded but compartmentalized and inaccessible to conscious awareness (Somer, E., 2004). When a victim relates the story of her assault in a therapeutic setting, it is important to allow bits of memory to arise in accordance with her emotional ability to bear the burden of what she will remember in the future. However, in courtroom testimony, there is no room for forgetfulness or uncertainty regarding details (Shebar-Shapira, 2007). The William Smith rape trial and the ensuing public and legal debate illustrated this best. Members of the jury were puzzled following Patricia Bowman’s testimony that she was raped by Smith, for how could a woman be convincing, beyond a reasonable doubt, that she was raped, when she could not even remember where and when she had taken off her pantyhose?! (Coombs, 1993). Similarly, it is hard for us to intuitively understand how a woman cannot remember what exactly her father did to her when he abused her. “Normal” logic tells us that such horrible experiences would be sharply engraved in one’s memory. But trauma has a logic of its own. Forgetting helps the psyche to survive but interferes with the healing process when the victim wants to understand for herself what


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happened, and certainly when she faces “society” in the courtroom (Shebar-Shapira, 2007). Whereas therapy places an emphasis on building trust and restoring dignity, the legal process demands clear evidence. The emotional price that a victim pays in order to provide the necessary evidence is not one of the considerations that the court usually takes into account. The need to file a complaint and undergo a cross-examination in court, as well as the fact that she is not a party to the case, does not instill a sense of confidence in the victim – but these are defining elements of the legal process. A further problem that is important to be aware of in the legal context of sexual assault victims stems from the gap between injury and the ability to translate it into words. This gap could become apparent on two levels: first, in translating the injury experienced by the victim into the institutionalized possibility to present it as a complaint once it has been formulated in words; second, in the difficulty that victims have in privately formulating the injury (Zamir & Shkabatur, 2005). In recent years, the sexual offenses section of the Israeli penal code has been amended and the definitions of some offenses have been revised. On the first level mentioned above, these revisions have narrowed the gap between a rape victim’s sense of suffering and irrelevant legal categories (for example: recognition of the fact that the absence of physical resistance does not indicate free consent; recognition of the fact that rape could also take place among married couples; etc.). However, on the second level, the gap between feelings and experiences and the ability to verbalize them – in everything that involves calculating injury – remains unresolved (Zamir & Shkabatur, 2005). This gap once again demonstrates the limitations of the legal process in providing a suitable and inclusive setting for victims. Judges are trained to listen to words. Words are the primary and natural “tool” in a legal setting for translating and expressing the injury and suffering experienced by the victim. However, exposure to the experience of sexual assault as facilitated by the therapeutic setting demonstrates the limitations of verbal testimony for understanding the victim’s story. It also illustrates the importance of also “listening” to the silence – the lack of speech – and understanding the circumstances that silence victims. The dissociative disorders phenomenon and the inability of some victims to verbally express traumatic memories, as described above, make necessary other more varied methods of expression that are made possible in a therapeutic setting but not accepted in a legal proceeding. Research and clinical experience shows that creative expression (such as painting, sculpture, and movement) is essential as an alternative means of self-expression, and as

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an additional language among victims suffering dissociation for discovering, examining, and processing traumatic experiences. And indeed, in a clinical setting, the use of creativity therapy is accepted (see: Somer, L., 2004); however, these methods are foreign to the legal system and victims are left without any remedy in court. Without sensitively listening also to what is “not there” – to the silence – victims have no other means of expression within the context of the rules of legal discourse. The following portion of a transcript, from the court testimony of a victim of trafficking in women who had suffered numerous sexual assaults (as cited in Hamerman, 2004, p. 197), illustrates the limitations on the victim’s ability to express her injury in a legal setting: … Q. They hurt you there? They insulted you there? (The witness does not respond) Q. They threatened you? (The witness does not respond and is constantly moaning) Q. Where did you work in Tel Aviv, in the club? (The witness does not respond) Q. Aforesaid question. A. In the same place, I worked in the club. Q. What does that mean, “in the same place”? (The witness is shaking) Q. Where did you work the previous time? A. I don’t feel well. I want to respond and I can’t (emphasis added – H.D.R.). (The witness is shaking, gasping for breath and remaining quiet and is holding the witness stand from both sides) Q. Why don’t you want to tell us anything? (The witness does not respond) Q. Are you afraid? (The witness covers her face and does not respond in any way to any question)” Whereas, in the therapeutic setting, words are only one means among many to express suffering and to process the victim’s experience, in the legal setting, words are the almost exclusive “tool” – without them, the victim is not given the opportunity to express her injury in the courtroom.


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Bridging the gap: towards a therapeutic model of the criminal proceeding? The decision to seek redress through the legal system is very significant to the therapeutic process for sexual assault victims. Turning to the legal system facilitates a transition from “speaking of the injury” (in the therapy room) to an actual experience of control. Therefore, the victim’s encounter with the criminal justice system has crucial implications for the healing process. For victims, the court represents society. It is the court that that will put things right and determine who is good and who is bad, relieving victims of the responsibility for the injury done to them and placing it squarely on the shoulders of the assailant (Shebar-Shapira, 2007). It is the court that will confirm that a terrible wrong was done to them, even if they are confused and don’t remember the exact details, and even if they are unable to cry about it or verbalize the experience of their assault (Shebar-Shapira, 2007). The existing legal reality is like a double-bind effect for victims, since it presents them with two bad alternatives. On the one hand, if the victim tells her story “in her own way” – in a manner that is inconsistent with existing stereotypes of how a “reasonable victim” is supposed to behave or appear – then, in the long-term, she may help to improve understanding and awareness regarding the nature of sexual assaults, but there is a danger that she will fail to gain social recognition for the private injury that she has actually suffered (Coombs, 1993). On the other hand, if she “surrenders” and relates her story in a manner that is consistent with social myths about rape, and in a way that “arouses empathy”, then there is a greater likelihood that she will obtain the protection of the criminal law – but this will be at the high price of perpetuating existing stereotypes about the reaction of a “reasonable victim” (Coombs, 1993). This sad reality demonstrates that many victims do not win the protection of the law, and that, even when they do, they pay a high social cost for presenting their stories in court (Coombs, 1993). On this background, it is necessary to examine how this cost may be lowered by turning the court into a less “dangerous” environment for victims – an environment that would provide an appropriate setting for the complexity and ambivalence characterizing the genuine stories (and not the myths), thus motivating victims to share their experiences within this context. In my view, the willingness of victims to tell their stories in court carries great significance: beyond the personal healing process, it can serve to uproot stereotypes about women and their sexuality through stories demonstrating the complexity of their lives (Tirosh, 2001).

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Exposing the sexual assault to a public setting increases the likelihood that sincere and genuine stories will be accepted as credible, even if they do not conform to common myths, and if this happens, these stories would justify a social and legal reform that further undermines the existing myths while recognizing the special nature of sexual assault. I believe that the role of the court, in these contexts, is decisive. The court could be a partner in breaking the knot of silence; it could validate the victim’s experience vis-à-vis the assailant, thus granting her a clear remedial experience of security, dignity, control and self-determination. It can generally do this without violating the defendant’s right to due process. Because the court is perceived as a symbolic social authority with the power to validate the personal voice of the victim, it is important to allow women to relate their stories at their own pace, in their own words, and in the manner most appropriate to their own personal experience. When sexual assault is not given a dignified “stage” in court, victims forever remain with the feeling that they stand accused and that they are not being treated as full members of the public with a right to be protected (ShebarShapira, 2007). And it should be stressed that these are victims that society has failed to protect in the past. As Portwood (2003) argues, the legal process embodies a potential for psychological benefit and, therefore, a model of therapeutic jurisprudence could offer a suitable answer for the participation of victims of violence in the legal process: “(…) Therapeutic jurisprudence simply acknowledges that the law has a psychological impact. Sometimes law causes psychological harm and sometimes it can have a therapeutic effect. The goal of therapeutic justice is to maximize the psychological benefit of the law while minimizing psychological harm” (p. 221). How then may the gap be bridged in order to bring the criminal process closer in line with a model of justice that also maximizes the potential to achieve broader objectives? Undoubtedly, a model of therapeutic jurisprudence arouses renewed thinking about the various objectives of the criminal proceeding and ways to properly balance them. In this brief chapter, I do not purport to offer a solution for this complicated issue, but instead, to offer preliminary ideas that demand further consideration. An interesting example that provides food for thought is, for example, when the defendant confesses and the testimony of the victim is not required in order to establish his guilt. Despite this, the function of public recognition and giving voice is still important for the victim herself. In such a situation, should the court allow the victim to testify? In such a case, it may be satisfactory to provide the victim with a full opportunity to testify at the sentencing stage. Sebba


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(1994) suggests a creative solution that might be appropriate in borderline cases – to introduce, at the tail end of penal proceedings, an additional post-sentencing stage, focusing on the victim: “The traditional sentencing process would deal exclusively with the ‘state-offender’ axis, while the additional ‘victim-justice’ stage would deal with both the other two axes – ‘offender-victim’ and ‘state-victim’ ... Separation between the two stages would ensure that progress in the recognition of victims’ rights was not necessarily sacrificing traditional concepts of retributivist sentencing philosophy” (p. 159-160). And what should be done when the prosecution, based on its own considerations, wishes to reach a plea bargain with the defendant, but the victim wants to confront her assailant in court and testify against him? In such a case, what weight should be given to the victim’s position in the overall factors leading to the decision to sign a plea bargain? A view of the criminal proceeding as a state-of-the-art tool with a therapeutically valuable potential for empowerment leads to the conclusion that proper weight should be given to such considerations as well. This approach is reflected in the words of Justice Arbel, in a case recently heard before the Israeli High Court of Justice, where the question arose as to what weight should be given to a sexual assault victim’s request to testify, as a counter-weight against the signing of a plea bargain: … Sometimes, it is actually the desire to save the victim from the need to testify – a consideration that frequently arises in sexual offense cases – that is a significant factor in the decision to sign a plea bargain. Nevertheless, it should be remembered that no two victims are alike. Each victim has suffered a different trauma … and is driven by different considerations. Accordingly, in each individual case the wishes of the specific victim must be examined separately and carefully. Even if, for the victim of the crime, testimony primarily constitutes a recurring trauma and a harsh recreation of the suffering experienced, still, it is often the complainants who are actually interested in standing before the court and testifying ... Moreover, sometimes such testimony could even be a part of the rehabilitation process for complainants … therefore, I believe that great weight should be given to the wishes of victims of grave sexual offenses and violence to confront their assailants in court and testify against them, of course, alongside the other relevant considerations [HCJ 5961/07 Jane Doe v. State Prosecutor (not yet reported), para. 9 of Justice Arbel’s opinion].

As a first step, I believe that it is important for members of the legal community to assimilate therapeutic discourse as an essential means for bridging the divide between the two realms. Anyone dealing with this subject must become familiar with the nature of the trauma that sexual assault victims experience. As Massaro (1985) explains, rape trauma

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experts can provide a context in which otherwise puzzling aspects of the complainant’s behavior, including memory gaps, becomes explicable. Research in the field of therapy should be applied, and special rules of procedure and evidence should be enacted that reflect an understanding of this trauma. The legal system must show a greater sensitivity to the needs of the victim (Yanay, 2003). Judges must be willing to broaden the scope of the legal proceeding to include the special discourse of the victim, granting it special meaning in the legal context (Dadia & Durian, 2004). All of this could transform many aspects of the legal process into tools of empowerment for the victim, without detracting from the defendant’s right to due process and the classic objectives of the criminal trial. At present, a recognition of the victim’s status as a party to a criminal proceeding is absent and the victim is not entitled to assistance, counseling, or representation by an official body (except for the services of VIS professionals and the promise of future services following guidelines issued by the Attorney General for the appointment of victims representatives in the district attorneys offices). Rape crisis centers and private organizations and foundations carry out this task, without sufficient institutional support – either ideological or material. Like the public defender’s office, which provides legal services to suspects and defendants who meet the statutory criteria, it might be proper to consider the establishment of an official body that would provide assistance and counseling to victims. Institutionalizing assistance would embody recognition of the victim in the criminal proceeding and of the responsibility owed to her by the society as a member who was injured. However, even if this idea is far-reaching at the moment (and some feminists even oppose it), rape crisis centers and similar organizations – which operate, to a large degree, on contributions and the goodwill of volunteers – deserve considerably more support from the government. When the authorities adopt a professional and sensitive approach (Tyler, 1996); when the voice of the victim is heard, even if her testimony is inadmissible; when the victim is allowed to relate her story in a true monologue expressed according to her own life experience, and not just in response to the questions of an attorney, at least at the stage of direct examination (Ashe, 1989); and when the court is willing to apply research in the fields of sociology, gender studies, psychology, and trauma research to the discourse of criminal law (Cahn, 2005-2006; Portwood, 2003) – only then the rights of victims will be truly protected. In this way, the criminal process itself will become a valuable rehabilitative experience for restoring confidence and control to the victim, independent of the legal outcome of the trial. This would supplement, rather than interfere with, the


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objectives of the criminal process in its search for the truth. It would encourage victims to turn to law enforcement officials; it would send a message acknowledging society’s responsibility towards individuals harmed within its framework; it would enable the court to better assess the evidence; and, finally, it would turn the court into a humane, protective, and comfortable setting capable of encompassing different voices. In conclusion, by portraying the gap between therapeutic and legal dialogue, this chapter shows how difficult it is to integrate the voice of a sexual assault victim into the adversarial discourse, given the unique needs created by the nature of the trauma accompanying sexual assault. It also attempts to convince readers that the existing process requires adjustments that would reflect an acknowledgement of the unique phenomena suffered by victims and would provide them with a better environment for “giving voice.” A view that recognizes the therapeutic potential of the criminal process as a tool for healing victims supports the adoption of therapeutic jurisprudence as a proper model for shaping the criminal process. This chapter points out the need for adopting such a model, while trying, within the parameters of the current adversarial approach, to propose an “interim compromise solution”: for as long as the adversarial system is not totally abandoned, it must undergo reforms and partial changes that will advance therapeutic values and turn it into a “therapeutic-adversarial” system. From my own experience working with women who are victims of sexual assault, I believe that the more we understand the special complexity of their participation in the adversarial discourse of criminal law, and the more we recognize the problems and encourage discussion on this subject, the better the likelihood that we will find solutions. Creative thinking could transform the criminal process from a narrow, dichotomous, one-purpose means for determining guilt or innocence, into a multidimensional tool for achieving additional goals of great social value.

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Liat (2007). Personal Testimony. In: Association of Rape Crisis Centers in Israel (2006 Annual Report). Law and justice – Sexual assault victims and the law enforcement system (pp. 36-37) (In Hebrew). Littleton, C. A. (1989). Women’s experience and the problem of transition: Perspectives on male battering of women. University of Chicago Legal Forum, 23-58. Livnat, Y. (1997). Rape and gender. Plilim, 6, 187-233 (In Hebrew). MacKinnon, C. A. (1993). Only words. Cambridge, Mass.: Harvard University Press. Margalit, M. (2007). To complain or not to complain? In: Association of Rape Crisis Centers in Israel (2006 Annual Report). Law and justice – Sexual assault victims and the law enforcement system (pp. 22-25) (In Hebrew). Massaro, T. (1985). Experts, psychology, credibility and rape: The rape trauma syndrome issue and its implications for expert psychological testimony. Minnesota Law Review, 69, 395-470. Meirav, A. (2001). On learning from suffering. Plilim, 10, 447-487 (In Hebrew). Menkel-Meadow, C. (1985). Portia in a difference voice: Speculation on woman’s lawyering process. Berkeley Women’s Law Journal, 1, 39-63. —. (1996). Review essay – What’s gender got to do with it?: The politics and morality of an ethic of care. New York University Review of Law & Social Change, 22, 265-294. Negbi, I. (2006). Rape stories in court: A textual analysis of case law. Ph.D Thesis, Hebrew University of Jerusalem (in Hebrew). O’Neale, R. J. (1978). Court ordered psychiatric examination of a rape victim in a criminal rape prosecution – Or how many times must a woman be raped? Santa Clara Law Review, 18, 119-156. Perlin, M.L (1999-2000). A law of healing. University of Cincinnati Law Review, 68, 407-433. Portwood, S. (2003). When paradigms collide: Exploring the psychology of family violence and implications for legal proceedings. Pace Law Review, 24, 221-230. Pugach, D. (2007). “By consent, willingly and joyfully” – Spousal rape and delineating the boundaries of the criminal law in a changing society. In D. Barak-Erez, S. Yanisky-Ravid, Y. Bitton, & D. Pugach (Eds.), Studies in law, gender and feminism (pp. 501-543). Hakirya Ha’academit Ono and Nevo (In Hebrew). —. (2004). The victims’ revolution – The day after: Towards a model that recognizes private penal considerations? Kiryat Ha’misphat, 4, 229268 (In Hebrew).


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Raitt, F. E. (2000). Gender bias in the hearsay rule. In M. Childs & L. Ellison (Eds.), Feminist perspectives on evidence. London: Cavendish. Rights of Victims of Crime Law, 2001 (In Hebrew). Sander, F. (1985). Alternative methods of dispute resolution: An overview. University of Florida Law Review, 37(1), 1-18. Satin, I.M. (1994). Law and psychology: A movement whose time has come. Annual Survey of American Law, 581-632. Sebba, L. (1994). Sentencing and the victim: The aftermath of Payne. International Review of Victimology, 3, 141-165. —. (1997). Will the ”victim revolution” trigger a reorientation of the criminal justice system? Israel Law Review, 31, 379-428 Sebba, L., & Liban-Kobi, M. (1995). The offense of rape – Criminological perspectives. In F. Raday, C. Shalev, & M. Liban-Kobi (Eds.), A woman’s status in society and law (pp. 235-279). Jerusalem: Schoken (In Hebrew). Seligman, Z. (2004). An introduction to incest. In Z. Seligman, & Z. Solomon, (Eds.), Critical and clinical perspectives on incest (pp. 1540). Tel Aviv: Ha’kibbutz Ha’meuchad (In Hebrew). Shachar, A. (1993). The sexuality of law: The legal discourse about rape. Iyunei Mishpat, 18(1), 159-199 (In Hebrew). Shebar-Shapira, D. (2007). The private setting, the therapeutic setting and the legal setting – The irresolvable dialogue. In Association of Rape Crisis Centers in Israel (2006 Annual Report). Law and justice – Sexual assault victims and the law enforcement system (pp. 55-58) (In Hebrew) Shoham, E. (1996). The attitudes of kibbutz and city youth to rape – Myth versus reality. Education and its Environment (Annual of the Kibbutzim College of Education), 18, 125-134 (In Hebrew). Somer, E. (2004). To be or not to be: Childhood trauma and dissociative disorders. In Z. Seligman, & Z. Solomon (Eds.), Critical and clinical perspectives on incest (pp. 164-192). Tel Aviv: Ha’kibbutz Ha’meuchad (In Hebrew). Somer, L. (2004). The inner world of the incest survivor: Drawing in colors and form as therapeutic process. In Z. Seligman, & Z. Solomon (Eds.), Critical and clinical perspectives on incest (pp. 104-124). Tel Aviv: Ha’kibbutz Ha’meuchad (In Hebrew). Temkin, J. (2000). Rape and criminal justice at the millennium. In D. Nicolson, & L. Bibbings (Eds.), Feminist perspectives on criminal law (pp. 183-203). London: Cavendish. Tennenbaum, A. (2001). Abolitionism: is it time to cancel criminal punishment?, Sha'arei Mishpat, 2(3), 261-284 (In Hebrew).

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Tirosh, Y. (2001). On the politics of textual representation in Cr.A. 3031/98 State of Israel v. Shabtai. Mishpatim, 31(3), 579-622 (In Hebrew). Torrey, M. (1990-1991). When will we be believed? Rape, myths and the idea of a fair trial in rape prosecutions, U.C. Davis Law Review, 24, 1013-1072. Tyler, R. T. (1996). The psychological consequences of judicial procedures: implications for civil commitment hearings. In D. B. Wexler, & B. J. Winick (Eds.), Law in a therapeutic key: Developments in therapeutic jurisprudence (pp. 3-15). Durham, NC: University of Carolina Press. West, R. (1993). Narrative, authority and the law. Ann Arbor, Mich.: University of Michigan Press. Wexler, D. B., & Winick, B. J. (Eds.) (1996). Law in a therapeutic key: Developments in therapeutic jurisprudence. Durham, NC: University of Carolina Press. Yanay, U. (2003). The introduction of the “victim impact statement” in the Israeli courts of law. In M. Hovav, L. Sebba, & M. Amir (Eds.), Trends in criminology: Theory, policy and practice (pp. 235-272). Jerusalem: Sacker Institute for Comparative Studies of Legislation and Law (In Hebrew). Zamir, T., & Shkabatur, J. (2005). Representing pain and the language of morals in Shakespeare’s The Rape of Lucrece. In O. Ben-Naftali, & H. Naveh (Eds.), Trials of love (pp. 709-745). Tel Aviv: Ramot – Tel Aviv University (In Hebrew).

CHAPTER EIGHT BLAMING VICTIMS AND BYSTANDERS IN THE CONTEXT OF RAPE INNA LEVY & SARAH BEN-DAVID

Abstract This chapter reviews theoretical and empirical literature on victimblaming and raises the issue of bystander-blaming. The review shows that research has traditionally focused on only the victim in victim-blaming. The reality, however, is much more complex. As Cohen (1993) states, almost every crime scene involves a triad: the victim, the offender and the bystander. Therefore, it is essential to consider the triad as the bystander’s presence at a crime scene may influence victim-blaming. Another argument presented in this chapter concern bystander-blaming. Throughout the literature, much evidence indicates that bystanders are treated as guilty parties, but not all bystanders are blamed equally. Thus, the question is: What are the factors that contribute to bystander-blaming? As no research exists on bystander-blaming, this chapter proposes borrowing the theoretical framework of victim-blaming, including the ‘Belief in a Just World Theory,’ the ‘Defensive Attribution Theory’ and ‘Counterfactual Thinking’.

Introduction The introduction of the offender-victim dyad (Von Hentig, 1948) was one of the most significant advancements in criminology/victimology. Von Hentig suggested that trying to understand the behavior of criminals in a uni-dimensional perspective is futile. Rather, he claimed, examining the offender-victim dyad is essential for understanding criminal behavior. The founders of victimology, Von Henting (1948), Schafer (1976), Mendelson (1974), Wolfgang (1958) and Amir (1971), focused mainly on

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the victim’s participation and role at the scene of crime. Thus, they developed typologies of victims based on the victim’s degrees of involvement with and responsibility for the crime. Their work constitutes the beginning of victimology and the controversial issues surrounding the placement of blame upon the victim. The current field of victimology broadens Von Henting’s (1948) principle and claims that the victim-offender dyad does not fully reflect the reality of the situation, which usually includes an additional element: the bystander. Today’s victimology defines the crime scene as a triad in which the victim, the offender and the bystander are all considered. Therefore, theories and research that deal with victim-blaming should consider the impact of both offenders and bystanders. The main goal of this chapter is to present theoretical examination of questions that surround bystander-blaming and the impact that bystanders have on tendencies to blame the victim.

The ”logic” of victim-blaming Generally, blaming others is a normal and a frequent social behavior. The search for the guilty party is a standard and anticipated response to unexpected and negative events. It represents the way in which we organize our knowledge about behaviors that might cause unpleasant or negative consequences (Anderson, 1991). This tendency to blame seems logical with regard to offenders and criminals. But blaming victims for the crime committed against them is unexpected, unreasonable and unfair. Like the majority of other research dealing with the subject, the focus of this chapter is the blaming of victims within the context of rape. A review of the literature shows that a wide variety of variables regarding the tendency to blame rape victims have been examined, including victim characteristics (Davies, Pollard, & Archer, 2001; Furnham & Boston, 1989), circumstantial factors (Bell, Kuriloff, & Lottes, 1994; Ben-David & Schneider, 2005) and the socio-demographic characteristics of observer (Adam-Price, Dalton, & Sumrall, 2004; Geiger, Fisher, & Eshet, 2004; Xenos & Smith, 2001). Research findings on these variables differ widely. Some of them were found to have a stable impact on the tendency to blame the victim while others produced contradictory findings concerning their impact on placing blame on the victim. Those variables that have stable effects on the tendency to blame the victim include the victim’s style of dress (Furnham & Boston, 1996; Whatley, 1996; Workman & Freeburg, 1999), victim drunkenness (George, Gournic, & McAfee, 1988; Schuller & Stewart, 2000; Stormo, Lang, & Stritzke, 1997), the nature of

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the victim-offender relationship (Ben-David & Schneider, 2005; Bell, Kuriloff, & Lottes, 1994; Bridges & McGreil, 1989; Kahn, Jackson, Kully, Badger, & Halvorsen, 2003), and characteristics of the observers, such as gender (Geiger, Fisher, & Eshet, 2004; Jimenez & Abreu, 2003; White & Robinson-Kurpius, 1999; Xenos & Smith, 2001) and educational background (Idisis, Ben-David, & Ben-Nachum, 2006; Nagel, Matsuo, McIntyre, & Morrison, 2005; White & Robinson-Kurpius, 1999). Although the importance of the victim-offender dyad was the starting point in victimology, this literature review shows that most of the research conducted on victim-blaming examines the subject in a uni-dimensional framework focusing on the victim alone. Only a few studies addressed the dyad and made comparisons between factors associated with blaming the offender and blaming the victim (Jones & Aronson, 1973; O’Quin & Volger, 1989; Workman & Freeburg, 1999). These findings indicate that participants’ gender affects the tendency to blame offenders and victims. Women, more than men, tend to assign a higher degree of blame to the offender than to the victim (Furman & Boston, 1996; Kleinke & Meyer, 1990). In addition, while the victim’s drunkenness increases the degree of blame assigned to him/her, the offender’s drunkenness decreases his/her guilt in the eyes of participants. Additionally, when the observers were told that the victim and the offender consumed the same amount of alcohol, the victim was blamed more than the offender (Stormo, Lang, & Stritzke, 1997). Another important factor in the victim-offender dyad is the degree of chance surrounding the encounter between the victim and the offender. When the rape was the result of an unplanned meeting between the victim and the offender (two people meeting by chance at a bar), the offender was blamed more than the victim. However, when the rape occurred during a planned date, the offender was blamed less and considered to be less violent (Johnson, 1995). These findings, which consider the tendency to blame the victim and the offender, indicate the deficiency of a uni-dimensional approach and the importance of studying the tendency to blame the victim within the context of the victim-offender dyad. Referring to the dyad enables us to better understand why the victim is blamed. Furthermore, in light of the new approach in victimology that perceives crime as a triad (Twemlow, Fonagy, Sacco, Evans, & Ewbank, 2001), the question is whether or not including the bystander in the crime scenario will influence the tendency to blame the victim. In order to answer this question, it is important to consider the theoretical issues surrounding blame.

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The bystander profile In reality, almost every crime scenario includes a bystander. Cohen (1993) states that every incident of human suffering includes the following three people: a perpetrator who causes the suffering, a victim who suffers from the perpetrator’s actions and a bystander who is aware of both the perpetrator’s crime and the victim’s suffering. The focus of this research is on the bystander. A bystander, by definition, is a person who is present but does not take part in a situation or an event. He/she is a spectator, a witness (Barnett, 1999). There are several types of bystanders. A bystander may witness the crime by being near the crime scene or by hearing the victim’s cries for help. Those who hear or read about the victim’s suffering through media are considered to be bystanders too (Shellef, 1978). Bystanders who are present at the crime scene are defined as ‘real bystanders’ and those who hear about the crime through the media or others are classified as ‘metaphorical bystanders’ (Cohen, 1993). The cry for help can come from one victim, from a group of people or even from a nation. Furthermore, bystanders differ based on the nature of their relationship with the victim (Sheleff, 1978). Some bystanders are strangers to the victim; some know the victim and some are related to or have a very close relationship with the victim (Markey, 2000; Sheleff, 1978; Suedfeld, 2000). The concept of a ‘bystander’ incorporates both the bystander’s role in the event and his/her behavioral reaction to the crime, including the decision to interfere or not. Thus, most definitions of the bystander refer to these two aspects (Barnett, 1999). For instance, Oliner and Oliner (1992) define a bystander as an individual who did nothing to help the victim and did not stand up to the perpetrator. Staub (1992) states that a bystander is neither a victim nor an offender. Nevertheless, the behavior of the bystander can lead to the event itself (Lickel, Schmader, & Hamilton, 2003) or influence offender’s behavior, especially, during preliminary and final stages of crime (Luckenbill, 1977). Sometimes the bystander is not even aware of his or her participation in a chain of events that ends in victimization (Lickel, Schmader, & Hamilton, 2003). The research on bystanders focuses on three main aspects. The first aspect deals with bystander motives, dilemmas and perceptions. The second aspect considers his/her legal status and poses questions such as the following: Is the bystander obligated to help? Is he/she entitled to compensation for helping? And is he/she eligible for legal protection? The third aspect concerns the social, moral and philosophical issues, such as


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the personal and social value of altruism, the nature of society and the conditions that promote altruistic behavior (Sheleff, 1978). Studies that attempted to understand bystander behavior examined the factors that cause bystanders to interfere and help the victim. One of the most well-known findings in this area is Latane and Darley’s (1970) research. Their study showed that when a single bystander considers whether or not to help a victim, he/she usually feels that the responsibility to help or save the victim lies entirely upon his/her shoulders. Thus, in most cases he/she will help the victim. However, in a group of bystanders, no one person feels directly responsible for helping the victim, and there is little or no chance that one of them will intervene. Latane and Darley (1970) named this phenomenon the “diffusion of blame”. Similarly, Markey (2000) found that the diffusion of blame influences the willingness of bystanders to help in virtual chat rooms. When an individual places a general request for help in the chat room, the chances that he/she will get help are very small. However, when the request for help is directed to a specific person by employing their user name, the diffusion of blame disappears, making it more likely that this individual will respond to the request for help. Another factor that influences bystander behavior is the perception about whether or not they will be able to help the victim (Mudde, Hoefnagels, Van Winjen, & Kremers, 2006). Research shows that people who helped victims in dangerous situations, such as armed robbery or theft, were usually physically stronger than those who did not try to help. Also, bystanders who helped frequently had some kind of training related to saving lives: medicine, first aid and/or police training (Huston, Ruggier, Conner, & Geis, 1981). In addition, bystander behavior is influenced by feelings of empathy and identification with the victim. Although we feel empathy in almost every victimization case, we tend to empathize more with relatives, friends and people who we perceive as being similar to us (Hoffman, 2000; Levin, Cassidy, Brazier, & Reicher, 2002). Bystanders who do not empathize with or feel sorry for the victim are much less likely to intervene and help him or her (Lee & Murnighan, 2006). The severity of the victim’s suffering is another factor that affects bystander behavior: the more severe the suffering, the greater the willingness to help the victim. Furthermore, an interaction exists between the severity of the physical suffering and the bystander’s gender. Women tend to help victims without any regard to the severity of the suffering while men are more likely to help in more severe cases (Austin, 1979). Finally, a bystander’s choice to help a victim is the result of a rational decision made after considering all of the reasons for and against helping.

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Thus, bystander behavior depends on his/her evaluation of the gain or loss that will be incurred as a result of helping the victim (Dozier & Miceli, 1985; Fritzsche, Finkelatein, & Penner, 2000; Sheleff & Shicjor, 1980).

From bystander blame to bystander-blaming Though the commonly used term is “an innocent bystander”, bystanders are seldom treated as innocent parties who are not responsible for the end result. In fact, every reference to bystander behavior concerning the victim holds some degree of blame. Even the question “Why did the innocent bystander not try to help the victim?” is based on the belief that the bystander’s intervention could have changed the outcome. Therefore, the assumption must be that, in some ways, the bystander is responsible. One of the most salient examples of blaming the bystander was mentioned earlier in Latane and Darley’s (1970) “diffusion of blame” principle. If the diffusion of blame among bystanders influences their willingness to help the victim, the basic assumption must be that the bystander should be blamed for the victim’s fate. Thus, studies examining the factors that influence bystander behavior indicate that tendencies to blame the bystander do exist. Yet, few studies have considered the issue of bystander-blaming and examined the tendency to blame those who may fit the definition of ‘bystander.’ Lickel, Schmader and Hamilton (2003) pointed out that in cases of school shootings, people blamed not only the shooter who killed the students and teachers, but also his/her parents – the ‘metaphorical bystanders’ (Cohen, 1993). Feigenbaum’s research (1997) examined the social responses to mothers of incest victims. The findings showed that these mothers experience negative social reactions and are often blamed for not intervening to help their children. Other evidence of tendencies to blame the bystander come from literature on the feelings of self-blame among people close to the victim, such as spouses, relatives, and friends. Those surrounding the victim know about the victimization, and thus they may be considered metaphorical bystanders. They may feel pain and sometimes even experience vicarious victimization (Breckenridge & Baldry, 1997; Figley, 1985; McCourt, Peel, & O’carroll, 1998). They tend to blame themselves for not protecting and saving the victim. They feel guilty that they did not prevent the suffering (Burge, 1983; Riggs & Kilpatrick, 1997). The self-blame may arise even when their behavior was not directly connected to the chain of events that ended in victimization. Research shows that feelings of self-blame are a reflection of blame directed towards an individual by his/her surroundings


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(Wyatt, Notgrass, & Newcombe, 1990) so it is possible to assume that bystander self-blame reflects the blame directed at him/her by people close to him/her or by society as a whole. The most direct reference to bystander-blaming comes from literature dealing with bystander behavior during World War II and the Holocaust. Jaspers (2001), a German psychiatrist and philosopher who lived in Germany during the Holocaust, states that bystanders’ decisions not to interfere and not to help the victims allowed the aggressors to commit the crimes. Thus, the bystanders were accomplices. Jaspers blames bystanders for their passivity. He distinguishes between two types of guilt: metaphysical guilt and moral guilt. Metaphysical guilt arises when bystanders are not able to save the victim. It means that nothing could have been done to prevent the victimization. In these situations, interfering on behalf of the victim could lead to the bystander’s death. Moral guilt refers to those who could interfere but chose not to help the victims. Bystanders who feel moral guilt failed to fulfill their responsibility to do everything they could in order to save others. Scheffler (2004) agrees with Jaspers (2001). He states that when a person is in a position to stop the chain of events leading to victimization but chooses to do nothing to prevent it, the fact that he/she did not start this chain or did not know what would happen at the end of it does not justify or excuse the lack of intervention. Jaspers (2001) and Scheffler (2004) make strong and interesting points about bystander responsibility, but these claims raise other important questions: “Is it possible to determine whether or not a bystander’s action could have prevented the victimization?”, “How can we determine whether or not the bystander’s action or inaction made the victimization possible?”, “How do we know if the bystander did or did not do everything he/she could?”, “Are there circumstances in which we would not blame the bystander?”. According to the literature on victim-blaming we can assume that bystander-blaming depends on the following parameters: the circumstances, the bystander’s characteristics and the characteristics of the person who evaluates the bystander’s guilt. Thus, we can infer that placing blame on the bystander is not an objective concept but a subjective one.

Theories on blaming In light of the fact that no theoretical attempts have been made to explain the tendency to blame the bystander, we base our argument on theories that deal with blaming the victim. There are a few key theories

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that deal with the issue of victim-blaming: belief in a just world (Lerner, 1965; 1977), defensive attribution (Kelly, 1971; Shaver, 1970; Walester, 1966), and counterfactual thinking (Kahneman & Tversky, 1982). Both the belief in a just world and the defensive attribution theories emphasize the personal motives of the observer to blame the victim. The counterfactual thinking theory focuses on the cognitive processes that lead to blaming the victim. The belief in a just world theory states that observers’ responses to one’s suffering depends upon the perception of guilt and blameworthiness. Heider (1958) noted that we understand justice as the balance between one’s actions and the consequences of those actions. We need to believe that everyone deserves what they get and gets what they deserve. This belief in a just world allows us to adapt to the world and to commit to long and short-term goals. Evidence indicating that we live in an unjust world disturbs and worries us (Lerner & Miller, 1978). The existence of innocent victims indicates that the world is unjust. According to Lerner and Simmons’ (1966) findings, when people are confronted with evidence that the world is unjust, they experience cognitive dissonance. There are two possible solutions to this dissonance. The first option is to compensate the victim. By compensating the victim, justice is restored and the world is just again. However, if observers are unable to compensate the victim or they know that doing justice to the victim is impossible, they tend to blame him/her. Blameworthy victims deserve whatever they get. Thus, blaming the victim preserves the belief in a just world (Rubin & Peplau, 1973). Observers who have strong beliefs in a just world tend to protect this belief even in light of strong evidence against it. They are threatened by the existence of innocent victims because they show that the world is not as just as they believe it to be. In a just world, only bad people get hurt. In order to regain their belief, they tend to blame the victims. Thus, although it reiterates an obvious point, blameworthy victims are not innocent. Therefore they deserve whatever they get, including being victimized, and the world is just. According to this theory, those with a strong belief in a just world tend to blame the victims more than those whose belief in a just world is weaker (Hafer, 2000). On the basis of the theoretical literature and research findings, we will try to answer the following question: Does blaming the bystander have a similar function to that of blaming the victim – the preservation of the belief in a just world? The defensive attribution theory presents a different perspective on victim-blaming. According to this theory, the tendency of observers to blame people involved in an incident depends on the severity of the


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incident’s outcome. The tendency to blame rises in direct proportion to the severity of the outcome. Blaming those involved in the incident allows the observer to believe that it is more controllable (Walster, 1966). Kelly (1971) focused on the severity of the outcome. He suggested that observers activate “multiple necessary cognitive schemes” in negative and severe events. In other words, people believe that only a combination of several different factors could have caused that type of outcome. In moderately negative outcomes, observers activate “multiple sufficient cognitive schemes”. This means that any one of a variety of different factors is sufficient to explain the outcome. However, Shaver (1970) claimed that blame is motivated by selfpreservation and added the concept of similarity to the attribution theory. He distinguished between situational similarity and personal similarity. Situational similarity between the observer and the victim means that a high possibility exists that the observer will be involved in similar circumstances leading to victimization. Thus, female students have high situational similarity to rape victims who study at the same university or even at another university. However, little situational similarity exists between female students at the university and combat pilots. There is no chance that female students will be involved in circumstances characterizing the everyday experiences of a combat pilot. Personal similarity refers to similarities in attitudes, age, social status, personal traits and so on. When situational similarity to the victim exists, observers are threatened by certain negative outcomes and feel vulnerable. In the case of a rape victim, or similar frightening victimizations, feelings of vulnerability and fear are very strong. In order to reduce their fear and distance themselves from the possibility of victimization, they tend to blame the victim. By blaming the victim, observers distinguish between themselves and the victim and thereby believe that they will not be victimized (Shaver, 1970). Yet, if in addition to situational similarity, observers feel personal similarity to the victim, they tend to avoid blaming the victim. In the case of both situational and personal similarity, observers believe that a very high chance exists for them to be in the same situation as the victim, but because of the personal similarity, they cannot distance themselves from the victimization. They believe that they would not be able to act differently in order to avoid the victimization. Therefore, instead of distancing themselves from the possibility of victimization by blaming the victim, they tend to protect themselves from the possibility of being blamed in similar circumstances in the future (Shaver, 1970). Based on this theory, we can assume that observers who feel situational similarity to

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the bystander will blame the bystander more. When, in addition to situational similarity, a personal similarity exists, observers will tend not to blame the bystander. Contrary to the just world and defensive attribution theories, the counterfactual thinking theory sees the tendency to blame as a way to process information. Usually, people do not expect negative events (Weinstein, 1980) and when some extreme and negative event happens, a need arises to understand what caused it (Wong & Weiner, 1981). Counterfactual thinking (or put differently “if only thinking”) helps us to understand the causes for negative events. Through counterfactual thinking, one can change the outcome of an event by mentally changing the antecedents of that event (Roese & Olson, 1997): “If only she had not walked this way, nothing bad would have happened to her”. The ability to change the past, even if the change is only mental, helps us to learn how to prevent negative events in the future (Morris & Moore, 2000). The content of the counterfactual thought is based on everyday, normal activities. Therefore, in order to generate counterfactual thought, the behavior prior to the event should be unusual, abnormal or unexpected (Teigen, Evensen, Samoilow, & Vatne, 1999). The counterfactual thought changes the outcome by transforming, mutating the unusual behavior that preceded the event. There are two types of counterfactual thinking: upward and downward. Upward counterfactual thinking focuses on how one could achieve a better outcome than the one that was achieved in reality. Downward counterfactual thinking raises the possibility that things could end much worse than they actually did (Mandel, 2003). These types of counterfactual thinking have different effects on our emotions and conclusions. Upward counterfactual thinking presents a more positive outcome and therefore makes us feel worse (Galinsky, Moskowitz, & Skurnik, 2000). It amplifies negative feelings, such as regret, shame and guilt (Mandel, 2003). Downward thinking makes us feel better by comparing the actual outcome to more grave possibilities (Galinsky, Moskowitz, & Skurnik, 2000). Research shows that severe and negative events, such as rape and murder, usually lead to upward counterfactual thinking (Branscombe, Owen, Garstka, & Coleman, 1996; Reis, 2001; Spellman & Mandel, 1999). Studies also found that counterfactual thinking increases the tendency to blame the victim (Branscombe et al., 1996; Turley, Sanna, & Reiter, 1995). Therefore, we can assume that if bystander behavior prior to the rape was unusual or unexpected, observers are more likely to blame the bystander.


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Conclusions This review shows that research in the field of victimology has neglected the role of the bystander, and no studies examining the tendency to blame the bystander exist. Few theoretical claims exist that emphasize the importance of examining the tendency to blame the bystander. Thus, the counterfactual thinking theory states that negative events lead to upward counterfactual thoughts (Galinsky, Moskowitz, & Skurnik, 2000), which make observers perceive the outcome as more severe than it actually was (Mandel, 2003). In addition, according to Kelly (1971) extremely negative events activate “multiple necessary schemes”. Consequently, we can assume that concerning rape (an extremely negative event), observers feel that only several factors combined could have caused this kind of outcome. Therefore, referring to the offender’s blame alone or even to the victim-offender dyad is insufficient. There is a need to blame the bystander as well. Thus, it is not surprising that research on bystander behavior shows that we blame bystanders even if they do not know that their behavior will lead to the negative outcome or facilitate the offender’s attack (Jaspers, 2001; Scheffler, 2004). Also, the review raises an important question: Which factors affect blaming the bystander and how? Similar to the victimology founders’ treatment of victims, blaming the bystander was considered to be an objective issue until recently. Yet, based on the research concerning blaming the victim, we can assume that blaming the bystander is a subjective variable that may be influenced by different factors, including bystanders, observers and situational characteristics similar to those found to be significant in the research on blaming the victim. Based on the defensive attribution theory (Shaver, 1970), we may assume that when observers feel situational and personal similarity to the bystander, they will tend to assign less blame to him/her than in cases where only situational similarity exists. Also, according to the counterfactual thinking theory (Teigen, Evensen, Samoilow, & Vatne, 1999), we may assume that the more bystander behavior is perceived to be mutable, the more blame observers will assign to the bystander. Regarding the belief in a just world theory (Haifer, 2000; Lerner, 1965), the picture is not clear enough. It is possible that people may blame the bystander in order to compensate the victim. Still, the bystander does not necessarily threaten the belief in a just world. Therefore, maybe there is no need to blame him/her. The last question raised by this literature review was the following: How does blaming the bystander affect blaming the victim? Based on the

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research comparing blaming the victim and blaming the offender (Furman & Boston, 1996; Johnson, 1995; Jones & Aronson, 1973; Kleinke & Meyer, 1990; O’Quin & Volger, 1989; Stormo, Lang, & Stritzke, 1997; Workman & Freeburg, 1999), we can assume that the inclusion of the bystander in a crime scene may affect the tendency to blame the victim.

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CHAPTER NINE VICTIMS OF SEXUAL HARASSMENT IN MODERN WORK PLACES IN INDIA P. MADHAVA SOMA SUNDARAM, K. JAISHANKAR AND MEGHA DESAI

Abstract BPO [Business Process Outsourcing] has been the latest, development point stone in India today. IT services companies and call centres are making a quick entry into the BPO space on the strength of their existing set of clients. Low labor costs ($1.5-$3/hr) for high quality, adequate supply of English speakers due to large-urban locations leading to realization of scale economies (average call center is 1000+ employees), project management skills, adequate and cost-effective communications and other infrastructure, strong flow of global venture capital, and technological sophistication, Multi National Corporation (MNC) presence; all-in costs of $5.50-$12/hour, compared with US costs of $28/hour, make India a destination of Business Outsourcing. The flip side of the story is that the women working in these MNC’s are subjected to sexual harassment. This Chapter tries to focuses on the problem of sexual harassment at some MNC’s, in Mumbai, India by survey method and it analyses the prevalence and characteristics of such victimizations.

Introduction Sexual harassment is a universal phenomenon (Barak, 1997; Gutek, 1985) and India is also not devoid of this menace. In India, sexual harassment in an alternative term called “Eve Teasing” is highly prevalent in the public spaces and it also exists in work places. There are many laws in different states of the India to prevent Eve Teasing. In the 21st century, with the entry of multinational corporations due to globalization

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(Parthasarathi, 2007), the ugly monster of sexual harassment has entered the modern work places (which was considered to be safe), though it is prevalent in other work places, such as unorganized sector (YES, 2004). In developed countries, sexual harassment may mean that it can happen to both the gender and also there are stricter polices related sexual harassment in work places (Gutek & Koss 1993; Murrell, 1996). In India, mostly women are the victims of sexual harassment in modern work places, though in minor cases men were also victims of sexual pestering but not harassment (Tyagi, 2008). Also many corporations have started framing sexual harassment policies and some have already enforced. Hence, considering the gravity of women victimization this chapter analyses only the problems of women victims at some Multi national corporations in India. Sexual harassment in work places is culture specific (Li & Wong, 2006). The recent cases of sexual harassment in multi national corporations are, that, when Indian employees interact with women of US or UK they do not know exactly what it means to sexual harassment (Subhalaxmi, 2004). Many corporations have started training their employees, how to behave when they are sent abroad or when they are talking over phone on an overseas call (Subhalaxmi, 2004). For some Indian employers, many a time sexual harassment may only mean the extreme form of harassment such as pawing or molesting (Though there are stricter provisions in the Indian penal code to protect women, they were hardly used in the cases of sexual harassment in work places). However, after the Vishaka’s case (described below in detail), the definition of sexual harassment in work places changed and the definition is more pertinent and equivalent to the definition that are in developed countries. Vishaka vs. State of Rajasthan is a land mark case with the regard to sexual harassment in work places. Vishaka is a group of social activists and NGO’s who went to the court with the aim of preventing sexual harassment of working women in all work places by filling a vacuum in the existing legislation. The immediate cause for bringing the case was the acquittal of the accused in a criminal case brought on behalf of a social worker of the ministry of the Ministry of Health of the Government of Rajasthan, who had been subjected to a brutal gang rape in a village in that State. In line with other gender sensitive decisions, the court recognized that sexual harassment is a clear violation of the Constitution [Article. 14 (sexual non discrimination), 19(1) (g) (pursuance of an occupation), 21 (life and liberty) and 42 (just and humane working conditions], and merits an effective alternative remedy under Art. 32. Recognizing that existing Indian laws had not adequately protected women from work place-related

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sexual harassment, the court issued guidelines on the prevention of sexual harassment in the work place, and explained that they would be judicially enforceable until suitable legislation is enacted. The Guidelines define sexual harassment, and outline the duty of employers to prevent, punish and remedy sexual harassment. The legal definition of sexual harassment provided by the Supreme Court of India in the Vishaka’s case is as follows: ...sexual harassment includes unwelcome sexually determined behaviour (whether directly or by implication) as: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature where such conduct was humiliating and constituted a health and safety problem.

Shetty (2008, para 3, 4) explores the results of two studies on sexual harassment in work place: “In a 2002 survey done in five states by Sakshi, a Delhi NGO, 80% of respondents said that they, or someone they knew, experienced sexual harassment at the work place.” A Press Institute of India (PII) study on the Status of Women Journalists reported that “sexual harassment emerged as a major concern of most respondents” with 22.7% saying they had to “put up with sexist remarks/gestures” at the work place. Of these women, 31.5% said it had “seriously” undermined their confidence and affected their work. There is a spurt of growth of multi national corporations in India and also problems of sexual harassment have also grown in these corporations. With the sexual assault and murder of a woman call centre employee in Bangalore (2005) has brought this grave issue to the forefront and the National Commission for Women (NCW) has said it will finalize guidelines to ensure safety of women employees in the business processoutsourcing sector. In a survey, conducted by UNITES, along with Young Professionals Collective (YPC) and Focus on the Global South, among 51 call centre employees in Mumbai, 53 per cent said there was a sexual harassment grievance recourse (Parthasarathi, 2007). Barring a study by one of the authors of this chapter (Dhayanand & Jaishankar, 2007) there is no official statistics/major studies available on the incidence, extent and impact of sexual harassment of women in the MNC’s. The present study is undertaken in the backdrop of this situation. This empirical research focuses on the victims of sexual harassment at MNC’s, in Mumbai City, which is considered as the financial capital of India. The present study mainly aims at finding out the nature, and impact of sexual harassment of women in MNC’s in Mumbai City.


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Method Participants The participants included 94 working women from various multi national corporations such as BPO companies, Call Centers and Software related companies in the Mumbai city. Majority (53.2%) of the participants are in the age group of 18-23 years, followed by 23-28 years and 28-33 years. Only 29.8% were married, 68% were unmarried and the other categories forming a miniscule percentage. About 81% of the participants are graduates, and only, 16% were postgraduates, and 3.2% under any others include professionals like software engineers and programmers. The majority, i.e. about 32% were Christians, followed by Hindus (17.00%), Muslims (17.00%), Sikhs (22.3%), Jains (4.3%) and others (7.4%).

Design and instruments The sampling design was based on Purposive sampling method and survey method is employed due the exploratory nature of the research. A questionnaire developed by the researchers was used for the study. The items included the nature of harassment, personal details and the other variables used in the study. In order to measure the attitude towards employment, Work Opinion Questionnaire (8 items) developed by Johnson, Messie and Carno (1984) was included in the tool. This questionnaire measured the self confidence and the motivation to work, by the victims of sexual harassment. To understand the gender stereotyping in the context of relationships and responsibilities, a tool (8 items) developed by Gunter and Wober (1982) was included in the interview schedule.

Procedure A screening question determined whether the women were a victim of sexual harassment, in the past, and only the victims were selected for the study. Due to time and money constraints only 94 samples were collected. Also many women did not come forward to participate in the study. Only willing respondents were contacted for this study. Also a women author of this chapter only collected data from the participants, as many women in India, may not come to participate in such a study, if they were contacted by men researchers.

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Results This exploratory survey of sexual harassment in work places has brought out various significant results. Though inferential statistical analyses were not made, the preliminary findings showed the prevalence of sexual harassment in modern work places. Table 1 highlights the sexual harassment issues. Majority of the victims (31.9%) did secretarial work and 41.5% have cordial relationship with their colleagues. As per the Table 1, 29.8% of the participants work in BPO, 47.9% work in Call centers and 22.3% work in Software related companies. Significantly majority of them (77.7%) did not feel their offices as safe places. In majority of the cases (88.3%), the harasser was the immediate boss. This may be due to proximity, frequency of interaction or possibility to use control/power. Initial harassment behaviour included use of obscene body language (70.2%), sexually coloured remarks (17.0%) and verbal attack (12.8%). Demand for sexual favour was the highest form of abuse reported by the respondents (54.3%), followed by physical contact and advances (23.4%), showing pornography, and sexual advances. Out of total respondents, 79.8% were being harassed for past few days and 68.1% were harassed on the way to their offices. There was some psychological impact of victimization. 20% of the participants were shocked, 33% got angry, 10% went through trauma, 16% were nervous and 21% felt helplessness. The reaction to the harassment was also significant. 66% have neglected, 8.5% have objected to the harassment, 11.7% resisted and 13.8% tolerated. Further, 17% got angry for being harassed, 35.1% gave the person a strong warning and 24.5% totally neglected them. While majority of the bystanders did not come to the rescue of the victim, those who came, however, were willing to give evidence of the incident. While many of the victims never mentioned the incident to the coworkers/friends, but when mentioned, they advised the victim to lodge a complaint. The victim reporting behavior is poor in many cases (38%), as the victims felt that it may lead to further victimization. These results also corroborates with the study of Dhayanand and Jaishankar, (2007). Bhatnagar (cited in Shetty, 2008, para 5) analyzes this widespread reluctance to complain: Some victims are too traumatized to report an incident, or embarrassed to tell their colleagues, fearing that they will be blamed and ridiculed. Others believe that our work culture expects a woman to be a ‘good sport’ because such things are ‘only normal’ in a male-dominated.

Table 1: Victims and Sexual Harassment


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Table 2: Impact of Victimization

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From Table 2, it can be seen that the reasons for not complaining was due to feeling of humiliation (56.4%) and fear of taunts (43.6%). When the victim did complain, it is seen that majority of the complaints were neglected (47.9%). Majority of the victims (71.3%) were not satisfied with the action taken on their complaints. Table 2 also gives details on awareness about the victim’s awareness on Supreme Court’s verdict on Sexual harassment. Awareness towards the Supreme Court’s verdict was very poor. Only 23.4% of them were aware of the mandatory directives and 76.6% were not. Also 92.5% of the victims said that their employer had not constituted sexual harassment prevention committees. It is also evident from Table 2 that there is less satisfaction among the victims whose employers have constituted such committees. Regarding the impact of victimization, it can be seen that almost all victims were scared of male members and they feel that life is useless and all of them have a feeling of demoralization. A very small percent wanted to take revenge. From Table 2 it can be seen that colleagues and family members of these victims did not look down on them. A major portion of the victims felt like resigning from the job. The victimization does seem to affect their performance in the job (63.8%) and they have developed some problems with their husbands, if married. To measure the attitude towards employment, Work Opinion Questionnaire (8 items) developed by Johnson, Messie and Carno (1984) was included in the tool. This questionnaire measured the self confidence and the motivation to work, by the victims of sexual harassment. Table 3 gives the details of the results. It can be seen that majority of the victims had a low attitude towards their employment and only 30.9% have a high attitude of the employment. It can be surmised that sexually harassed victims get de-motivated and loose their self confidence. Table 3: Attitude towards Employment

Attitude Low

N 65

% 69.1

High

29

30.9

Total

94

100

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To understand the gender stereotyping in the context of relationships and responsibilities, a tool (8 items) developed by Gunter and Wober (1982) was included in the interview schedule. Majority (64.9%) rejected gender stereotyping of women and only 35.1% accepted stereotyping. Table 4 gives the details of the results. This interview schedule is just to analyze the gender stereo typing and the results are not of neither their victimization nor their previous experiences. As this study is of exploratory nature without a solid Indian literature base, a pre or post test in relation to the gender stereo typing was not possible. However, this will be taken in to account in the future studies. Table 4: Gender Stereotyping Gender Stereotyping Acceptance Rejection Total

N 33 61 94

% 35.1 64.9 100

Discussion and conclusion The results of this study point to a number of key issues. First, sexual harassment is occurring in India and is impacting women in many negative ways. The respondents who were in secretarial type of jobs were more (31.9%), likely to be harassed – operationalized as having experienced Physical contact /advances, demand or request for sexual favour, sexually coloured remarks, showing pornography, unwelcome physical conduct of sexual nature, unwelcome verbal or non-verbal behaviour of sexual nature, and/or any other any other connected abuses. Admittedly, being a new comer to the field (40.4%) exposes the women to the risk of harassment, while more experience in the organization reduces the possibility. Call centres (47.9%) with a separate cubicle/work place (40.4%), with evening-midnight shift (41.5%) increases the possibility of harassment. The harassment begins by use of inappropriate body language (70.2%) with the Demand/request for Sexual favour (54.3%), being the most common form of harassment. The offender is most likely to be the immediate boss (88.3%). Anger (33%) and helplessness (21%) are commonly reported emotional responses to the harassment. One of the salient findings of this study is the by stander apathy exhibited by other people who are aware of the harassment. Almost nobody (48.9%) came for their rescue. Considering the reporting behaviour, many of the victims would not report (68%) the harassment to the concerned authorities, and


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even if they report it was neglected (47.9%). Being ignored by the authorities would introduce dissonance and instability to the already tenuous relational and social equilibrium of the victims and may accordingly be considered a passive target by the harassers. Also, probably this explains why victims do not consider reporting as an option and choose to refrain from preferring a complaint. Several policy implications stem from the aforementioned findings. It is hoped that this harmful phenomena can be curtailed by proactively addressing the potentially negative uses of technology. The Personnel departments of MNCs and BPOs must regularly monitor the activities of their staff, especially the ones with lesser work experience, as pointed out by this study. Committees constituted by organizations against harassment must investigate those instances of harassment brought to their knowledge and must recognize that any instance of harassment is potentially injurious and these committees should hold responsible parties accountable. Unfortunately, there are no methods to discern which harassment involves simple jest and which has the potential to escalate into serious violence. Hence, there is a need to implement the Supreme Court’s recommendations on the Vishaka case (1997). The committees constituted for this purpose must also be given an orientation and periodical skill up gradation inputs, especially on the type, magnitude and new forms of harassment. As far as possible, the members of these committees need to have an experience on handling problems of women, especially with sound knowledge of counseling. Future research must analyze case studies and anecdotal stories of work place women harassment to help determine when intervention by authority figures is most appropriate. This study found that sexual harassment exists in work places like the BPO centres and the frequent media reports are not to be taken easily. While the Apex Court in India, in the Vishaka Case has taken active role in formulation of procedures to be followed in such victimizations, sexual harassment laws and policies, as developing in India, is compromising women’s sexual and equality rights, reinforcing a conservative sexual morality and encouraging a punitive response to what is deemed to be sexually unacceptable conduct. While endorsing the fact that women experience sexual harassment in the work place and other public arena, the major critique is that the current legal developments will not effectively address the problem of sexual harassment, at least not in a way that is especially liberating or beneficial to women. The sexual harassment of women at work place bill submitted to Department of Women and Child Development by National Commission for Women in August 2004 is still

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pending before the Indian Parliament and necessary steps should be taken to implement it.

Limitations and directions for future research In this study only descriptive statistical analysis were done due to the exploratory nature of the study. There are no previous studies in this area and that is also prevented the researchers to go with hypothesis. The current study provides the framework for future empirical inquiry on work place women harassment, especially in BPO/MNC setting. As with any social scientific endeavor, replication is necessary to more fully understand the phenomena under consideration. There are several questions, which future researchers in this area must address. First, data must be collected, through comparable, multi center studies, to more accurately ascertain the scope, prevalence, and nuances of work place harassment. For example, it is important to discover whether harassers are simply traditional persons with an ordinary profile, or if they are a new breed of people, who use their education, power and skills, to commit these deviant act. Studies should also be conduct to determine whether commonly accepted stimuli for traditional harassment, that is, the need to (1) exert power and dominate, (2) compensate for victimization in another area of one’s life, (3) cope with one’s insecurities, and (4) attract attention and popularity – are similarly predictive in the contemporary work environment. There is also a need to find answers to the following questions: Are harassments made in workspace followed through for many years? Are victims of harassment the same individuals who are also victims of traditional crimes, or are they a distinct group? What about offenders? What about their psyche? Finally, future research efforts ought to more thoroughly examine the results of this preliminary investigation using more rigorous methodology that ensures a more representative sample of responses. As indicated, the intent of this research is to generate scholarly interest in this unique form of victimization and therefore should be viewed simply as a small, significant, platform on which further research efforts should be built.

References Barak, A. (1997). Cross-cultural perspectives on sexual harassment. In W. O’Donahue (Ed.), Sexual harassment: Theory, research, and treatment (pp. 263-300). Boston, MA: Allyn & Bacon.


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Dhaynand, D., & Jaishankar, K. (2007). Victims of sexual harassment at work place: A study of MNC’s in Chennai City. Paper presented in the Second International Conference on Victimology and Sixth Biennial Conference of the Indian Society of Victimology, Chennai, India 9-11, February 2007. Gunter, B., & Wober, M. (1982). Television viewing and perceptions of women’s roles on television and in real life. Current Psychological Research, 2(4), 277-287. Gutek, B. (1985). Sex and the work place. San Francisco: Jossey-Bass. Gutek, B., & Koss, M. P. (1993). Changed women and changed organizations: Consequences of and coping with sexual harassment. Journal of Vocational Behavior, 42, 28-48. Johnson, C. D., Messe, L. A., & Crano, W. D. (1984). Predicting job performance of low-income workers: The work opinion questionnaire. Personnel Psychology, 37, 291-299. Li, S., & Wong, S. M. L. (2006). A study on Singaporeans’ perceptions of sexual harassment from a cross-cultural perspective. Journal of Applied Social Psychology, 35(4), 699-717. Murrell, A. J. (1996). Sexual harassment and women of color: Issues, challenges, and future directions. In M. S. Stockdale (Ed.), Sexual harassment in the work place: Perspectives, frontiers, and response strategies (pp. 51-65). Thousand Oaks: Sage Publications. Parthasarathi, V. (2007). Beneath it: Formations of industry, work and labour in the information technology sector. Report of a Seminar collaboratively organised by Centre for Culture, Media & Governance Centre for Jawaharlal Nehru Studies, Jamia Millia Islamia, New Delhi, 22-23, February 2007. Shetty, S. (2008). Wolves at the work place. India Today Online, August 20, 2008. Retrieved on 31st August 2008 from http://www.itgo.in/index.php?option=com_content&task=view§io nid=1&id=8429 Subhalaxmi, S. (2004). Complexity of sexual harassment interfering with outsourcing from India. India Daily, October 20, 2004. Retrieved on 31st August 2008 from http://www.indiadaily.com/editorial/10-20d-04.asp Tyagi, P. (2008). Sex in the boardroom! Times of India, 26 Aug 2008. Retrieved on 31st August 2008 from http://timesofindia.indiatimes.com/Lifestyle/Sex_in_the_boardroom/art icleshow/3210973.cms YES - Yugantar Education Society. (2004). A research study on the nature, incidence, extent and impact of sexual harassment of women at work place in the state of Maharashtra. Research Report Submitted to

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Department of Women & Child Development, Ministry of Human Resource Development, Government of India, New Delhi.

CHAPTER TEN THE RELATIONSHIP BETWEEN CHILDHOOD VICTIMIZATION, DRUG ABUSE, PTSD AND ADULT DELINQUENCY IN A PRISON POPULATION SARAH BEN-DAVID AND ILI GOLDBERG

Abstract This research focuses on the role that PTSD symptoms and drug abuse play in a specific population: childhood victims who become adult criminals. The connection between these factors was tested using the Impact of Event Scale (IES) and Ben-David’s Self-Disclosure Inventory in a sample of 123 male offenders incarcerated in Israeli prisons (47 sex offenders, 29 violent offenders and 47 sentenced for miscellaneous offenses). Using AMOS (Analysis of Moment Structure) it was found that while drug abuse indicated non-specific connections between past (childhood/adolescent) victimization and adult criminal behavior, PTSD symptoms – such as intrusive thoughts and cognitive avoidance – were directly linked to criminal behaviors that corresponded to prior victimizations. Thus, sexual abuse victims who develop cognitive avoidance tend to become sexual offenders as adults while those who develop drug dependencies tend to exhibit non-specific criminal behavior.

Introduction The purpose of this chapter is to introduce a model explaining the ‘cycle of violence’ that represents the relationship between adult criminal activity and childhood victimization. The model introduced in this chapter suggests that past victimization, the developmental phase of Post-traumatic Stress Disorder (PTSD) and drug usage may serve as explanatory factors for

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various types of adult criminal activity. The hypothesis is two-fold: The link between childhood/adolescent victimization and certain types of crimes may be explained by PTSD while drug abuse following a traumatic event or as a result of PTSD may explain adult criminal activities that are unrelated to childhood victimization. Childhood sexual and physical abuse has been found to increase the probability of violent and criminal adult behavior. Curtis (1963) maintained that victimized children are “tomorrow’s murderers and perpetrators of other crimes of violence, if they survive” (p. 386). More recent research results further support this notion (Bergen, Martin, Richardson, Allison, Roeger, 2004; Spatz-Widom, 2000, White & SpatzWidom, 2003). Moreover, childhood or adolescent victimization has been shown to have serious short and long term effects on its victims (Ben-David, Alek & Silfen, 2002; Bergen et al, 2004). Symptoms such as depression, anxiety, sleeplessness and intrusive thoughts are so common among abuse victims that in 1980 PTSD was defined and introduced in the Diagnostic and Statistical Manual of Mental Disorder (3rd edition: DSM-III) (Rowan & Foy, 1993). The aim of this chapter is to explore the correlation between childhood victimization, PTSD, drug abuse and adult criminal behavior. Various studies have shown that children who were victimized in childhood tend to be antisocial, aggressive and commit crimes as adults (Bergen et al, 2004; Haapasalo & Pokela, 1999; Spatz-Widom, 2000). Both the prospective (Maxfield & Widom, 1996) and retrospective approaches (Clarke, Stein, Sobota, Marisi, & Hanna, 1999) suggest a high prevalence of abused children in both the male and female criminal adult populations. This phenomenon is known as the ‘cycle of violence’ (Maxfield & Widom 1996; Spatz- Widom, 1992). However, research on the link between early victimization and adult delinquency has yielded, overall, contradictory results. These results may be divided into two broad categories (Cohen, 1995): A non-specific General Link (GL), which means that any form of abuse may lead to various forms of adult violence and/or criminal behavior (Barnard, Hankins, & Robbins, 1992; Graham, 1996) and A Specific Link (SL), which maintains that the type of victimization predicts specific ensuing criminal activity. Thus, sexually abused children will become sex offenders and battered children will become violent criminals etc. (Laws & Marshall, 1990; Marshall & Barbaree, 1990). Several theoretical approaches may explain the connection between past victimization and adult criminal activity. They include Bandura’s Social Learning (1973, 1977) and Curtis’s “Monkey See Monkey Do”

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Hypothesis (1963), Finkelhor’s Traumagenic Hypothesis (1988) and Smallbone and MacCabe’s Attachment Insecurity Supposition (2003). Haapasalo and Pokela (1999) claimed that the trauma model is the most interesting theoretical approach that can explain the relationship between past victimization and present criminal activity. However, while these theoretical explanations may account for the SL, none of them have tried to account for both types of links -- the general and the specific. This chapter suggests that PTSD and consequential drug abuse may explain the GL and the SL between past victimization and current criminal activities. The DSM-IV-TR divides PTSD into three symptomatic groups: persistent psychological re-experiencing of the traumatic event, psychological numbing or avoidance, and hyper arousal (American Psychiatric Association, 2000). However, some researchers have suggested a different classification of PTSD. Based on both statistical analysis, such as factor analysis and theoretical considerations, they suggest that avoidance and numbing are distinct phenomena. Thus, they should be separated and renamed as cognitive avoidance and emotional avoidance. While cognitive avoidance is largely regulated by a cognitive psychological process, emotional avoidance is also mediated by biological-hormonal mechanisms (Foa, Riggs, & Gershuny, 1995; Myslobodsky et al., 1995). Everly (1995) suggested a neuro-cognitive model for the developmental sequence of PTSD. In this model, posttraumatic intrusive thoughts are developed first and then cognitive avoidance is developed in the next stage. When cognitive avoidance proves ineffective at reducing intrusive thoughts, emotional avoidance can be expected to occur (Everly, 1995). Cognitive avoidance, or a release from intrusive thoughts, can be achieved by distracting oneself from painful thoughts. While emotional avoidance, or the anesthesia of intrusive thoughts, may be attained by numbing or blunting the emotions (Lipton, 1988). Substance abuse (e.g. alcohol, drugs, food, etc.) may serve as ‘self-medication’ to help alleviate intrusive thoughts (Saladin, Drobes, Coffey, Dansky, Brady & Kilpatrick, 2003; Teusch, 2001). Distraction may be achieved through criminal activity, as suggested by Stott (1950) and Addad (1989). Although the prevalence of PTSD among both male and female offenders is very high (Barnard et al., 1992, Yoshinaga, Kadomoto, Onati, Sasaki & Kato, 2004), limited research examining the correlation between PTSD, criminal activity and drug abuse exists (Zhang, Welte & Wieczorek, 2001).

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Previous studies found that 71% of Israeli female prisoners suffered from past victimization. A high proportion of these prisoners were characterized by PTSD avoidance symptoms (Ben-David, 1994; BenDavid, Alek & Silfen 2002). Similarly, a high frequency of avoidance and hyper-arousal symptoms were found in the sex offender population (Barnard et al, 1992). The findings of these studies show the differences between criminal populations and non-criminal populations. As research findings indicate, intrusive thoughts were predominant in the non-criminal population while avoidance symptoms were found to be frequent among the criminal population (Horowitz, Weine, & Jekel, 1995; Solomon, 1988). Thus, it seems plausible to assume that avoidance, whether cognitive or emotional, is one characteristic of adult offenders who were previously victimized. It may also be deduced that avoidance is one of the conditions that enables adults who were victimized in their youth to execute criminal activities. Criminal activity, similar to any other behavior, is learned (Akers, 1998; Pratt & Cullen, 2000; Winfree, 1998). It can also be seen as an almost natural development of learned behavior or identification with the aggressor (Freud, 1966). Abused children learn this behavior in order to reduce stress or to express disappointment. In addition, children who were victims of physical violence or sexual abuse might believe that this is common or acceptable behavior (Finkelhor, 1988). For these children, the normal response to crisis situations in adulthood may be learned violent behavior similar to the violent or sexual abuse they suffered from in their youth. These activities are facilitated by emotional avoidance that enables pain to be inflicted upon others. Thus, emotional avoidance and learning theories may explain the SL. On the other hand, as aforementioned, drug abuse is one way of releasing emotional pain after trauma. However, drug abuse may also precede criminal activities. These crimes could in fact occur when one seeks a way to finance the illicit drugs. Drug abuse could also be considered indicative of a criminal lifestyle (Bennett & Holloway, 2005; Brochu, 2001). As a result, victims who use drugs as a way to alleviate the pain of former childhood victimizations are involved in general crimes that are necessary to finance their crude remedy. Thus, drug abuse is characterized as the GL. We propose therefore that the developmental phase of PTSD (Everly, 1995) may serve as an explanatory factor for the SL between childhood/adolescent victimization and the type of criminal behavior manifested later in adulthood whereas drug abuse following PTSD may explain the GL.

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Method Participants The participants included 123 male offenders incarcerated in Israeli prisons. The 47 sex offenders (SO) were randomly selected from a list provided by the Israeli Prison Service. The 76 randomly selected non sexual offenders were divided into two groups: 29 violent offenders (VO) and 47 sentenced for miscellaneous offences (MO). The prisoners were assigned to these groups based on their known criminal history, including the offense for which they were incarcerated (Cohen, 1995; Nachshon, 1988). The purpose of the research was explained to the participants and each one signed a consent form.

Research tools The data was gathered using two questionnaires: 1. Criminal Activity, Drug Abuse and Past Victimization Inventory. A Self-disclosure inventory of past victimization, criminal activity and substance abuse was developed, validated and used for female (BenDavid, 1991) and male (Cohen, 1995) inmates. The inventory showed the high reliability of self-reports for both sexual (α=.89) and physical (α =.88) abuse (Cohen, 1995). 2. Hebrew version of IES - Impact of Event Scale (Horowitz, Wilner & Alvarez, 1979). This questionnaire measures three types of PTSD: intrusion, avoidance and emotional avoidance (Joseph, Williams, Yule & Walker, 1992; Myslobodsky et al., 1995). The Hebrew version showed a reliability of α =.93 and was found to fit various population groups (Solomon, 1988).

Procedure After signing a written consent form, subjects were individually interviewed. This method was preferred because many of the prisoners have poor writing skills. The interviewer explained the purpose of the study, pointing out that participation had no legal implications, did not entitle the subject to any privileges, and did not constitute an admission of guilt for the alleged offense.

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Results The findings indicated significant age differences between the three groups of offenders: (F(2,110)=3.20; p

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