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Criminal Victim

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.