By Eduard A. Ziegenhagen
The term "victim" is often one of moral approbation lacking descriptive precision in
respect to actual human behavior. It implies more than the existence of an injured party,
in that innocence or blame-lessness is suggested as well as a moral claim to a compassionate
response from others. Persons who are executed by the state and members of armed forces
killed or injured in warfare are not usually conceived of as victims, yet those injured in
automobile accidents or muggings are spoken of as accident victims or crime victims. The
power of such moral distinctions may account for the development of a specialized vocabulary
by professional criminals who deny not only the crime victims' innocence but also their
claim to compassion. Professional confidence men call those they exploit the mark, clown,
sucker or chump, scrupulously avoiding the word victim (Lack of compassion for the victim
was once thought to be an indication of a biologically-based moral deficiency typical of
criminals who were seen as "physically and psychically stunted organisms".).
Apart from its strong moral denotations, the behavioral meaning of the term varies in
accord with its social function. For professional criminals, victims are the focus of
exploitation and a source of advancement, while for the police, prosecutors and judges,
victims are a source of information concerning the occurrence of a crime. Victims are most
often seen as those who are the recipients of action; when they do act, their responses
appear to be tightly circumscribed by the expectations and demands of others. As will be
seen, the preoccupation of the law and the social sciences with actors rather than with
those who are acted upon contributes to the lack of development of a victim concept.
In accord with Anglo Saxon law, injuries suffered through the acts of others may be crimes,
torts, both crimes and torts or neither crimes nor torts. A crime is considered to be an
act, or the effect of an act, that constitutes injury to the state although specific
individuals may also sustain harm. A tort is an individually sustained injury for which one
can attempt to secure damages from the offending party. In a sense, both the individual and
the state are victims when certain injurious behavior occurs.
An assault by one individual against another is a crime against the state because such
behavior is contrary to the social order guaranteed by the state. It is also a tort because
an individual has sustained personal harm for which he or she can attempt to collect damages
through civil remedies. Some injurious behavior involves only the state or an individual
person in legal action. Attempts to overthrow the state to which one owes allegiance
constitute acts of treason and involve only the state as victim, whereas acts such as
violation of contract involve only the individual victim. Finally, there are instances in
which the victim may sustain injury but the manner in which the injury was inflicted may
not constitute a crime or a tort. For example, actions by others that call into question
one's honor are presently neither crimes nor torts, although in seventeenth-century Europe,
courts of honor existed specifically to deal with such incidents.
The concept of the victim is not included by legal scholars as an essential component of
the distinguishing features of criminal law, although provisions about the role of the state,
the proper form of retribution against the lawbreaker, psychological and behavioral
specifications respecting criminal acts and juristic standards of specificity are present.
Although the concept of the victim is not included in any of them, each of the components
of criminal law has implications for the victim.
Criminal law is administered by those who act in the name of the state. At the same time,
acts of retribution against violators of criminal law are exclusively within the lawful
authority of the state. Therefore, only those acts that administrators of the law choose to
call law violation can legitimately be punished. The degree to which individuals and those
acting for the state agree on what acts are to be punished may vary greatly, although
criminal laws exist proscribing such acts. Roscoe Pound and other scholars have noted that
there are numerous instances in which there is little direct correspondence between
specific criminal laws and the behavior of authoritative governmental officials to enforce
them. For example, reluctance to enforce laws respecting antitrust violations calls into
question whether the interests of victims are being protected, although criminal law exists
for such purposes.
The penal sanction, exclusive to criminal law, is designed to encourage compliance but may
contribute to difficulties in the enforcement of the law and the protection of victims.
Punishment of lawbreakers through utilization of the penal sanction constitutes a form of
retribution that may be attractive to the individual victim but, in fact, is utilized in a
highly selective manner. As Sutherland has noted so correctly, white-collar crime rarely
involves fines and even less frequently imprisonment for those who engage in business
practices contrary to the law. In such instances, the state issues elaborate warning
statements designed to persuade violators to desist from unlawful action in the future.
Much the same approach is extended to persons far less influential than heads of
corporations and bank presidents. Punishment for first offenses in all but the most serious
crimes is often deferred indefinitely if additional unlawful acts are not committed.
Treatment of white-collar and blue-collar crimes in this manner forgoes retribution for the
state but perhaps more importantly denies lawful retribution to the individual victim.
Regardless of the political and rehabilitative merits of deferring punishment, individual
victims seem to believe that punishment is a proper response to criminal behavior and become
disaffected from the criminal justice system when this form of retribution is denied. Emile
Durkheim argued that punishment of the criminal was essential to maintain the morale of
persons who do not engage in criminal acts. Those who have accepted and conformed to social
restrictions on their own behavior supposedly view punishment of others as an indication
that the repression of their own inclinations toward crime have been correct. In the event
that the offender is not punished, such information suggests that the nonoffender has been
foolish to restrict his own behavior and forgo the benefits of deviation.
The punishment component of penal law appears to have evolved as a tool to influence the
future behavior of the lawbreaker rather than as a device providing satisfaction for those
individuals who are harmed through violation of the law. Criminal law provides that the
intentions of the lawbreaker as well as the effects of his acts be taken into consideration
to ascertain what law has been violated. Culpable intent, or mens rea, refers to acts or
lack of action that are reprehensible whether or not the wrongdoer intended them to be so.
Assumptions about the intentions of the lawbreaker are derived from the physical and
behavioral circumstances of the crime. For example, culpable homicide includes a wide range
of circumstances that contribute to the definition of the act. The term homicide describes
only the act committed, without judgment of its legal status. Homicide se defendendo entails
killing another person in self-defense in a sudden fight but without any vindictive feeling.
The absence of vindictive intent is derived from the assumption that the attack was so
sudden that vindictive intentions were not generated. The nature of the victim-offender
relationship implicit in the concept of homicide se defendendo establishes the legal status
of the crime with which the offender will be charged although there is no explicit reference
to the individual victim. Concern with the concept of the victim is avoided by reliance on
the mental state of the offender to determine the legal status of the crime.
Regardless of the absence of the concept of the victim in criminal law, various judgments
in fact are made about the relationship of the victim to the offender. Homicide is legally
justifiable if the person killed loses his life in accord with procedures determined by
law and if such acts are executed by persons who occupy an office having such responsibilities.
Similarly, homicide is justifiable in order to prevent the commission of a felony if no
other means to prevent the felony are available. In the case of the former, it is the
relationship of the victim to the offender that determines the legal status of the
offender's acts. In the latter it is the relationship of the victim to the law that
determines the status of the offender to the law.
Criminal law is also said to differ from civil law in regard to its specificity. Supposedly,
specificity is required not only in order that possible violators know what behavior is
proscribed by law but also to provide the means by which violations of law can be identified
and punished by those who administer the law. Although these are the intended effects of
specificity in criminal law, in practice, specificity contributes to the difficulty of
preventing activities having the same effects as those that are unlawful. For example,
certain deceptive sales practices may be prohibited by law, but, since deceptive practices
include a great range of behavior, not all deceptive practices can ever be prohibited by law.
The effects of lawful behavior may be the same as those of unlawful behavior in some
instances as far as the injured parties are concerned. For the victim, the lawfulness or
unlawfulness of the act is secondary to the injurious effects suffered, unless the issue
of retribution is important to the victim. Retribution cannot be lawfully obtained against
those responsible for the injuries suffered if no crime has been committed. For example,
efforts to have the state initiate criminal proceedings against law enforcement authorities
for their actions during a civil disturbance are rarely successful, as it is contended that
authorities were acting within the limits of their responsibility. Similarly, crime-victims
compensation programs such as that in New York State will consider the claims of victims
only if it is established that (1) the act in question involves violation of criminal law, is
reported to the police and is verified by them and (2) the victim played no part in
precipitating the criminal acts.