The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

5. Social Science Perspectives, Mediationand Victim Satisfaction

5. Social Science Perspectives, Mediationand Victim Satisfaction

5.1 Introduction

The evaluation of participatory rights outlined in the earlier chapter calls into question basic assumptions most people make about the needs and objectives of victims. Contrary to expectations, it has been found that victims are not vindictive in their approach to most offenders and that participation in the sentencing process does not significantly improve victim satisfaction. In addition, despite the best efforts of state officials, it appears that victim assistance programs are not meeting the needs of victims. Accordingly, it may be that the criminal justice policy makers have designed programs upon faulty assumptions regarding the psychological and financial needs of victims, or that the existing programs have simply been poorly implemented. This part of the report will examine the views of social scientists and social service providers to determine if there is a better understanding of the plight of victims than the conventional understanding espoused by criminal justice officials.

Putting aside the role of the victim and the measures taken to increase victim satisfaction, it is clear that public dissatisfaction with criminal justice is pronounced and passionate. If members of the public generally maintain a negative perspective regarding the criminal process, it may be impossible for modest reforms with respect to victim participation to significantly affect a fairly well established negative point of view. Recognizing that the criminal process is the subject of fear and disrespect, there were major developments in the 1990s in creating alternatives to criminal courts based upon principles of restorative justice. Mediation is the primary alternative to the criminal courts which is offered to offenders and victims, and this part of the report will also evaluate whether mediation programs have been able to achieve what the conventional criminal cannot — that is, an increase in victim satisfaction.

5.2 Discussion

5.2.1 Psychological Perspectives and the Role

of Health Care Workers It is common knowledge that the impersonal criminal justice system can lead to psychological distress and secondary victimization for the victim. Many of the law review articles adopt this as a working premise and the commentators often cite Kilpatrick and Otto (1987) as support for this assertion. However, in reviewing the seminal Kilpatrick and Otto article, it is clear that the assertion of psychological distress is an assumption and is not based upon a proper empirical foundation.

Available studies do confirm some of the assumptions regarding secondary victimization but the findings also place some qualifications on the view that victims suffer high levels of distress within the criminal process. In 1979, a Dutch study found that victims regularly experienced feelings of guilt upon victimization, with victims of violence experiencing the greatest level of guilt. More significantly, no clear relationship existed between feelings of guilt and the need for retaliation, and this may explain why studies of victim impact statements have not led to expressions of vengeance as guilt-ridden victims do not necessarily turn to vengeance in wrestling with their guilt. Nonetheless, 70% of victims in this study did believe that sentences were too lenient (Smale & Spickenheuer, 1979).

In 1994, a study of 500 cases in Ohio indicated that victim distress is largely a function of offence type, victim perception of sentence severity and the demographic characteristics of the victim. The author noted that "the most important predictor of current victim distress was level of distress following the victimization. Victims who received restitution were less distressed than those who had not. Unmarried victims and nonwhite victims had higher levels of distress than married victims and white victims." Beyond the ability of restitution to temper victim distress, it was found that a perception of sentence leniency can contribute to the aggravation of victim distress (Erez et al., 1994:47).

What constitutes victim distress? A study of over 500 victims in Kentucky confirmed that depression, somatization, hostility, anxiety and fear of crime were all associated with victimization. Symptoms were persistent and tended to last 15 months after the crime. Even after 15 months victims displayed a high prevalence of Post Traumatic Stress Disorder (PTSD):

… after three months, the victims in this study showed pervasive symptomology across diverse domains, including depression, anxiety, somatization, hostility and fear. All victims exhibited a similar profile of symptoms, but violent crime victims were clearly the most severely distressed. Although victims’ symptoms declined from these levels over the next 6 months, they soon leveled off. After 9 months, there was little evidence that crime victims would continue to improve. After 15 months, which is where our study ends, violent crime victims were still more symptomatic than were property crime victims who, in turn, were still more symptomatic than nonvictims. (Norris & Kaniasty, 1997:276; see also Norris, Kaniasty & Thompson, 1997)

In a 1997 study of over 500 victims in South Carolina it was found that more than 90% of all victims believed that the criminal justice system should be responsible for providing a broad range of services, including psychological counseling, information about case status, personal protection, legal assistance, social service referral information, and assistance in dealing with police or court. Reported access to such services fell below victims’ expectations with the lowest proportion of victims receiving access to psychological counseling and the highest proportion receiving access to assistance in dealing with police or court. In addition, 50% of the sample met diagnostic criteria for PTSD during their lifespan but despite the high prevalence of PTSD in the entire sample, most participants reported inadequate access to victim services, including mental health services (Freedy, Resnick, Kilpatrick, Dansky & Tidwell, 1997).

A 1998 Dutch study confirmed some of the findings of the Norris and Kaniasty study. The primary finding was that there is no difference with respect to fear of crime "between non-victims and victims of either property or violent crimes, not before, and not after the incident took place" (Denkers & Winkel, 1998:151). However, crime victims reported being less satisfied with life, reported less positive affect, and reported perceiving the world as being less benevolent and themselves less worthy than non-victims. Victims perceived themselves as being more vulnerable than non-victims. Nonetheless, victims were not necessarily more afraid of crime, people or situations, nor did they perceive a greater negative impact of crime than non-victims. Finally, the study shows a relationship between well-being and victimization; victims, both before and after the crime, appear to be ‘unhappier’ than non-victims (Denkers & Winkel, 1998).

It appears that some of the assumptions regarding secondary victimization have not been fully verified by empirical study (although they have clearly been sustained in qualitative evaluation based upon informal interviews), and the relevant psychological literature speaks primarily of distress levels attendant upon the commission of the crime and not the criminal process. Further, it is not a dramatic revelation to conclude that victims experience distress upon victimization, and as such the studies cannot really contribute in a significant way to the development of public policy. With respect to state-induced secondary victimization, the studies reach general conclusions which are in accord with common sense but do not contribute to a greater understanding of the process of secondary victimization.

For example, Norris and Thompson conducted a study into victim alienation with 200 American crime victims and they concluded that "these results indicate that criminal justice officials (most specifically the police) can either intensify or ease
the victim’s alienated state" (1993:527). Nonetheless, a recent review of the psychological literature is instructive and
serves to ensure that assumptions made concerning the victim’s psychological well-being have some basis in clinical
experience. The relevant literature has been surveyed as follows:

Criminal victimization can leave psychological scars that endure as long or longer than any physical or financial damage (Fischer, 1984; Frank, 1988; Henderson, 1992). Criminal victimization may result in anxiety disorders, depression, drug and alcohol abuse, fear, flashbacks, lowered self esteem, sexual dysfunction, somatic complaints, suicidal ideation, suspiciousness, and a sense of social isolation (Fischer, 1984; Keane, 1989; Lurgio & Resick, 1990). In some cases victims may suffer from posttraumatic stress disorder (PTSD) (American Psychiatric Association, 1994).

Although much of the research on the impact of crime has focused on rape, victims of other crimes may suffer qualitatively similar consequences (Resick, 1987). Other factors being equal, like level of violence and victim’s perception of danger, rape may harm the victim’s mental health more than do other violent crimes (Kilpatrick, 1989; Kilpatrick et al., 1985), but this issue is not settled (Resick, 1987; Riggs, Kilpatrick & Resnick, 1992). Significant psychological injuries have been reported among victims of many other crimes, including assault (Lurigio & Resick, 1990; Riggs et al., 1992; Shepher, 1990; Steinmetz, 1984; Wirtz & Harrell, 1987), attempted rape (Becker, Skinner, Abel, Howell, & Bruce, 1982), bank fraud (Ganzini, McFarland & Cutler, 1990), burglary (Brown & Harris, 1989), child abuse (Caviola & Schiff, 1988), kidnapping (Terr, 1983), and robbery (Kilpatrick et al., 1985). In addition, families of crime victims in general (Riggs & Kilpatrick, 1990) and of rape (Mio, 1991; Orzek, 1983) and homicide (Amick-McMullen, Kilpatrick & Resnick, 1991; NcCune, 1989) victims in particular often develop psychological symptoms as a result of the crime. Finally, community residents may suffer as a result of public vandalism, a crime with no specific victim (Reiss, 1986).

The consequences of victimization are not necessarily intuitively obvious. Although crime victims indeed experience more mental health problems than do other persons (Ganzinii, McFarland, & Cutler, 1990; Kilpatrick et al., 1985; Riggs et al., 1992; Santiago, McCall-Perez, Gorcey, & Beigel, 1985), the severity of the crime does not necessarily predict the severity of the symptoms. For example, Becker et al. (1982) found that victims of attempted rape and rape did not significantly differ in their short- and long-term responses to the assault; Ganzini et al. (1990) found significant levels of depression in victims of the relatively placid crime of bank fraud. Furthermore, though it is clear that support from family members and friends can assist victim’s recovery (Janoff- Bulman & Frieze, 1983), those persons do not always understand the extent of psychological trauma and may think the victim should have recovered earlier than is reasonable to expect (Mio, 1991; Riggs & Kilpatrick, 1990; Sales, Baum & Shore, 1984). In addition, not all crime victims will react the same way to similar victimizations (Lurigio & Resick, 1990; Shapland, 1986). (Wiebe et al., 1996:416–7)

[Author’s Note: References within the text of this quotation are not necessarily found in the Bibliographical Materials for this part of the report.]

After providing this survey, the author of the report goes on to consider whether or not the assertion of some commentators (e.g., Erez, 1999) that victim participation in the criminal process is potentially therapeutic has any foundation in fact. It appears that justice as therapy has not been borne out by the evidence, yet there still remains some hope that procedural control for the victim could assist in recovery:

Although legislatures have enacted a plethora of statutes attempting to ease the victim’s experience with the court system, research does not yet support the contention that the quality of this experience significantly aids the victim’s eventual psychological recovery (see, for example, Cluss, Boughton, Frank, Stewart & West, 1983; Lurigio & Resick, 1990). Maximizing procedural justice, however, most likely does no harm. It is difficult to see how provisions that seek respectful treatment of victims in court could interfere with their recovery, and such provisions may be of significant benefit (Resick, 1987). Furthermore, because a victim’s perception of control has been shown to be important to recovery (Kelly, 1990), and persons who believe they have had a voice in court proceedings are generally more satisfied with those proceedings than those who do not so believe, it is possible that the notions of "voice" and "control" represent the same underlying psychological process. If so, victim participation in the court process may be therapeutic, including at plea bargaining and other stages generally closed to the public. (Wiebe et al., 1996:425)

In two studies commissioned by the Solicitor General Canada, it was concluded that rape victims and child sexual abuse victims suffer psychological ill-effects years after victimization. Victims who did receive support from family and friends showed better adjustment over time; however, symptoms of psychological distress were evident with child sex abuse victims ten years after the events (Solicitor General Canada, 1990–1). In turning to the psychological impact of non-sexual offences (Solicitor General Canada, 1992), the report is inconclusive and the author presents a critical perspective on the value of existing psychological studies:

Part of the problem stems from the fact that researchers working in the field of victimology operate from diverse academic perspectives. For example, social psychologists studying reactions to stress, negative outcomes and victimization have focused primarily on the assumptions, attributions, and perceptions that influence (or are influenced by) the psychological and behavioral responses to distress, personal failure and/or loss of control. Other psychologists, usually those with clinical training, have concentrated their efforts on the emotional trauma that may accompany unpredictable and sudden negative life-events. Many are also interested in the social support received by crime victims, the quality of service provided by victim assistance agencies, and the effectiveness of treatment strategies. Unfortunately, the theory and research findings of researchers and practitioners working in these various fields of psychology have seldom borrowed from or melded with the wealth of data on victimization accumulated by criminologists. (Solicitor General, 1992:2–3)

In light of the fact that most jurisdictions have established victim service programs, there is a growing body of literature which explores the role and function of social workers and other health care professionals in attending to the needs of victims. Manuals have been developed to train these volunteers and professionals to deflect the constant criticism of poor training among service providers (e.g., for the Victim Assistance training in British Columbia, see Quong, 1991). Books and articles have been written to explore the role of the social worker in providing victim services (Roberts, 1990; Roberts, 1997). However, the literature has been critical of the contribution made by social workers and probation officers. In England, it has been noted that probation services are ill-equipped to deal with victims’ needs. No studies have been conducted to determine what the views of victims are with respect to the provision of services by probation officials, and the limited review of victims’ perspectives indicate that they are wary of being attended to by officials whose primary responsibility is to supervise offenders (Williams, 1996; Nettleton, Walklate & Williams, 1997). In Holland, one study indicated that victim support workers tended to demonstrate an ‘upward bias’ towards victims (i.e., a misperception imparted to victims that they are "worse off" than others) and as such suggested that this could seriously undermine the therapeutic value of the service. The authors concluded that extensive training must be employed to offset victim support worker biases and that deployment of volunteer workers could assist in ensuring that victims and support workers are in a relationship of ‘social solidarity’ (Winkel & Renssen, 1998).

5.2.2 Mediation and Restorative Justice

Despite the criticism of social worker and probation officer involvement with victim support, there is a growing body of literature which encourages the involvement of social workers. This literature concerns social work involvement in the mediation process, and it is argued that social workers, who have experience in crisis intervention, are ideally suited to facilitate face-to-face confrontations between offender and victim (Roberts, 1997). Mediation is seen as a new field for social work practice (Umbreit, 1993; Umbreit, 1999). In contrast, a victim-offender mediation program in Italian juvenile justice was reviewed and it was found that despite the benefits of mediation services for youthful offenders, social workers were not properly trained in mediation techniques (Baldry, 1998).

Restorative justice (as discussed in Chapter 2.0 of this report) seeks to heal the wounds triggered by victimization and to instil a sense of accountability in the offender. One of the first contemporary victim-offender mediation programs in the world was established in Kitchener, Ontario in 1974 and since then there has been an explosion of restorative justice programs around the world. There are now 26 programs in Canada and 300 in the US — "the field has actually grown more rapidly in Europe in recent years, with 17 programs in Austria, 31 in Belgium, 5 in Denmark, 19 in England, 130 in Finland, 73 in France, 293 in Germany, 4 in Italy, 44 in Norway, 2 in Scotland, 10 in Sweden" (Umbreit, 1999:216) (it should be noted that there may be many more mediation programs in Canada than are listed by Professor Umbreit). The body of literature on this topic is vast and it is beyond the scope of this report to provide an exhaustive outline of existing programs and their efficacy; however, a brief overview will be provided.

It would be of value for the development of public policy to conduct a large-scale review of mediation programs found world-wide as there is reason to believe that mediation and other restorative justice measures will continue to grow into the future. The continued growth of mediation programs in Canada is secured by two facts: 1) restorative principles of sentencing have been incorporated into the Criminal Code as part of the fundamental purpose of sentencing (s. 718) and alternative measures have also been incorporated into the Code (s. 717); 2) unlike the studies of victim participation in sentencing (the results of which are somewhat inconclusive), the general thrust of evaluations of mediation programs indicates that they are successful and lead to victim and offender satisfaction. Anecdotal evidence suggests that mediation may not work well for certain offences and offenders (e.g., family violence scenarios); however, the reviewing literature does not directly address this issue.

There is a vast body of literature outlining the nature of mediation programs around the globe (Messmer & Otto, 1992; Wright & Galaway, 1989: Kaiser, Kury & Albrecht, 1991; Wright, 1996; Fisher, 1993; Hughes & Schneider, 1989). For the purposes of this report, a handful of North American studies conducted in the 1990s will be reviewed to demonstrate the general consensus which has been reached regarding the desirability of this alternative to criminal punishment.

The sampling of North American studies confirms the 1989 conclusion that in the US "mediation programs appeared to be fairly widespread and functioning well" (Hughes & Schneider, 1989:231). In 1993, Professor Mark Umbreit (who is responsible for conducting most of the evaluative studies) concluded, "victims of violence have often been among those who advocate extending the mediation process to more serious cases. However, this does not include domestic assault. The mediation process has been effective in assisting victims of violent crimes in regaining a sense of power and control in their lives, as well as the ability to ‘let go’ of the victimization experience" (Umbreit, 1993:73).

In 1994, an evaluation of four victim-offender programs in the US revealed that the vast majority of offenders voluntarily chose to participate in the process, and that victims who undertook mediation were generally more satisfied with the criminal process than those who had not chosen mediation (81% of victims were satisfied after mediation compared to 58% of victims without mediation). In addition, it was found that mediation led to a higher rate of success in securing restitution. However, the authors concluded that despite the growth of mediation it has still had little impact in most jurisdictions due to underutilization (Umbreit & Coates, 1993).

In a study of victim-offender mediation in Minneapolis in 1990 and 1991, it was found that the mediation process had a significant impact on victims feeling less upset about the crime and less fearful of being revictimized by the same offender. However, this increase in victim satisfaction is confounded by the passage of time, which clearly contributes to the gradual reduction of fear and anxiety. The mediation program did lead to a higher success rate in completing restitution, but offender satisfaction was not increased as it was with the victim (Umbreit, 1994a).

In a 1994 report, qualitative research into the views of Canadian criminal justice officials showed that there was strong support for the concept. There was concern expressed about inadequate funding and too few referrals; however, there was professional recognition that mediation serves an important function in the administration of criminal justice: "even in Winnipeg, which represents the largest victim offender mediation program in North America and Europe, concern was expressed that many more cases filed in criminal court could be dealt with more effectively through mediation" (Umbreit, 1994b:6).

A recent study of one of the largest Victim Offender Reconciliation Projects (VORPs) in the US showed a great willingness of victims and offenders to meet for mediation. For violent crimes, only 58% of victims and 69% of offenders were willing to confront each other; however, the figures rose considerably for property crimes and crimes of a minor nature (79% of victims and 77% of offenders). In cases in which mediation was successful, 96.8% of all mediation agreements were completed and successfully discharged. There were more failures with respect to mediation agreements for property offences, "so while it is harder to get the parties to a mediation session in personal crime cases, once they did meet, the agreements were at least as durable as, or maybe even more durable than, those in property offence cases" (Niemeyer & Shichor, 1996:33).

In a 1997 study of victim-offender meetings/confrontations in Winnipeg and Minneapolis, it was found that victims in both sites reported moderately high levels of satisfaction with the justice system and victim-offender mediation. They also reported being less upset about the crime, having less fear that they will be revictimized, and having more positive views of the offender. Victims in juvenile victim-offender mediation reported that participation in mediation significantly enhanced their sense of participation in the justice system when compared to those victims who participated in adult victim-offender mediation. It was hypothesized that the greater victim satisfaction found in juvenile victim-offender mediation may simply be a product of the fact that the victim rights reform has primarily related to adult victims and offenders, and with the paucity of services available in juvenile court, the availability of mediation takes on heightened importance. The author concluded:

This study lends empirical support to the emerging practice theory of restorative justice, of which victim-offender mediation is the most well established and clear expression. Restorative justice emphasizes that crime is first an offense against people rather than against a legal abstraction called "the state." Holding offenders accountable is understood to mean taking direct responsibility for making things right to the person(s) who was victimized, rather than simply enduring ever-increasing amounts of costly punishment by the state with no responsibility to the direct victim. (Umbreit & Bradshaw, 1997:38)

Finally, a study of mediation in four Canadian sites (Calgary, Langley, Ottawa and Winnipeg) led to the following findings:

The author concluded that:

These findings suggest that the quality of justice experienced by many victims and offenders may be significantly enhanced through expanded use of mediation in criminal conflicts. Similarly, diversion of appropriate criminal complaints to mediation after a charge has been laid but prior to a trial has important potential for reducing the caseload pressures facing nearly all courts, thereby freeing up resources to be used for other purposes. Finally, use of mediation after a finding of guilt in a criminal court can strengthen the process of holding the convicted offender accountable directly to the victim through a determination of a mutually agreeable restitution plan. (Umbreit, 1999:226)

It is impossible to do justice to the extensive body of literature available on mediation and the criminal process. Suffice it to say that the sample of studies discussed is reflective of overall optimism expressed about the value of victim-offender mediation. This report is primarily about victim participation in the process and therefore the topics of mediation and alternatives to criminal court are beyond the scope of this report. However, it is critical to review this restorative justice movement as it may be that in some cases victim satisfaction can only be enhanced outside of a criminal court setting. Studies of mediation programs consistently reveal a high level of victim satisfaction for some cases; however, the empirical evidence relating to increased victim participation in the criminal process does not lead to the same finding. The studies do demonstrate that victim participation has not led to chaos in the courts, nor has it led to a significant impact on sentence outcome. However, when the studies turn to victim satisfaction the results are inconclusive and discouraging. These studies have been reviewed throughout the paper; however, to contrast the encouraging prospects for mediation and victim satisfaction with the rather muted endorsement of victim participation as the path to happiness, a lengthy summary from Professors Erez and Kelly is set out to demonstrate this muted endorsement:

Do opportunities for victim participation increase victims’ satisfaction with the criminal justice system? Research results are divided and suggest at best modest effects. One study found that filing VIS usually results in increased satisfaction with the outcome (Erez & Tontodonato, 1992). Another found that victims’ participation generally increases victims’ satisfaction (Kelly, 1984). Sometimes merely filing a VIS heightens victims’ expectations that they will influence the outcome. When that does not happen, victims’ satisfaction may actually be reduced (Erez et. al., 1994).

Another study that randomly assigned victims’ cases to various treatments found that VIS had no effect on victims’ feelings of involvement or satisfaction with the criminal justice process or its outcome (Davis and Smith, 1994). These results are consistent with an earlier quasi-experimental study by Davis (1985) that also did not find any effect of VIS on satisfaction with justice. Similarly, studies of the VIS program in Canada (Department of Justice Canada, 1990) and in Australia (Erez et al., 1994) revealed that victims who provide information for VIS are not necessarily more satisfied with the outcome or with the criminal justice system.

In contrast, a comparative study of victims in the continental criminal justice systems (which allow victims a party status and significant input into the proceedings) suggests that victims who participated as subsidiary prosecutors or acted as private prosecutors were more satisfied than victims who did not participate (Erez and Bienkowska, 1993). These differences may suggest that the more participation a jurisdiction affords crime victims, the greater victim levels of satisfaction. (Kelly & Erez, 1997:239)

The evidence on victim satisfaction with increased participation in the criminal process is not convincing. In addition, there is no evidence to demonstrate that victim participation can lead to a decrease in victim distress (except for the fact that participation through the VIS may lead to increased orders for restitution and restitution is a factor in reducing victim distress (Kelly & Erez, 1997)). The absence of evidence may suggest one of three possibilities:

  1. victim participation will not lead to victim satisfaction;
  2. victim participation has not led to increased satisfaction because the current participatory rights are underutilized, and often merely symbolic in nature; or
  3. current studies are inconclusive and deficient and therefore better studies need to be undertaken.

Regardless of which possibility is the most plausible explanation, there is one proposition established on the state of the current evidence: victims do not feel greater satisfaction when they participate within the current criminal process but they do experience some relief of distress and increased satisfaction when their cases are resolved outside of criminal courts in some cases. At a minimum, for true victim rights advocates, this proposition should lead to greater consideration and study of alternatives to adversarial criminal courts.