Restorative Justice

Restorative Justice

There are possible ways of responding to socially unacceptable actions besides just locking people up. Some might even be far more effective for all concerned.

F8 [304] "The rising incidence of sexual abuse suggests that a criminal justice model alone is not preventing sexual abuse from occurring. Since the criminal justice system has not slowed or reversed the incidence of this social problem, it should be increasingly clear that the key to preventing sexual abuse is to shift paradigms. Instead of viewing sexual abuse solely as a criminal justice issue, we need to view it as a serious public health problem, and a preventable social problem.

"Preventing sexual abuse is virtually impossible if we view it narrowly and exclusively as a criminal justice issue.

"In quelling our fears, we have not taken the time to look at the [305] fact that our laws have not worked nor have our more stringent penalties served as a deterrent."

[310] "If America is serious about preventing sexual abuse, it must begin to challenge the ways in which it thinks about sexual abuse and question conventional wisdom and criminal justice solutions."

[316] "The justice system is a punishment model, and there is no evidence that punishment is an effective method of educating the public, preventing behavior, or promoting public health concerns. If laws alone could stop crime, the passage of sexual abuse laws would have already reduced or eradicated sexual abuse in America."

[330] "More enlightened thinkers and criminal justice professionals have begun to turn to a model of criminal justice known as restorative justice. Restorative justice is a set of values which recognizes the poor track record of building prisons and legislating tougher laws on crime as a proven failure of the criminal justice system to turn America's crime wave around. It takes into account the research and data being collected in America regarding the .etiology of crime and then proposes realistic solutions, not the state. Restorative justice considers imprisonment as punishment with no restorative value to the victim of crime or the criminal.

"I encourage you to look at the past twenty or thirty years and decide for yourself if our current methods and strategies of creating tougher laws and punishing sexual abusers have resulted in a decrease [331] in criminal sexual abuse. I believe the answer to this question is no and, therefore, I believe we must rethink what directions we need to take in the future."

B19 [117] "[E]mpirical studies of restorative justice programs show that they control crime at least as well, if not better than, traditional criminal justice."

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However the titles of some are so good, they bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Justice Through Forgiveness: Face-to-Face Meetings Between Victim and Perpetrator Bring Relief to Both Parties"

T1 "Our legal system often fails to help either victim or offender. Years after a crime, victims may still suffer from post-traumatic stress. Offenders, too, can struggle after their release from prison; limited rehabilitation means that they often return to a life of crime. To help remedy these wrongs, proponents of 'restorative justice' methods advocate for face-to-face meetings between victims and offenders.

"Victims who participate in [reconciliatory] discussions with a perpetrator report feeling they can forgive their attacker, and offenders say they feel .responsibility for their actions -- a change in trajectory for both parties. Two recent randomized controlled studies add to mounting evidence for the effectiveness of these restorative policies.

"Caroline M. Angel, a criminologist at the University of Pennsylvania, and her colleagues examined the effect of restorative justice for London robbery and burglary victims and their perpetrators. The victims were randomly assigned either to go through both the court system and a restorative justice conference or to go through just the court system. In the restorative justice group, trained facilitators led meetings where offenders discussed the effects of the crime with their victims and the victim's family and friends. About a quarter of the victims who went through the crimial justice system showed clinical symptoms of post-traumatic stress, but only 12 percent of the group who had also had restorative justice conferences had symptoms. 'Restorative justice gives victims that chance to re-frame the story and heal in the process,' Angel says."

[In other words, restorative justice cut PTSD symptoms in half .]

"The second study, conducted by University of Cambridge criminologists Laurence Sherman and Heather Strang and their colleagues, focused on whether these methods can reduce reoffending. The research, published...in the Journal of Quantitative Criminology, analyzed 210 trials that used randomized controls to examine the effect of restorative justice conferences on criminals. They found that offenders who participated in the conferences committed fewer subsequent crimes and that the method was also cost-effective.

"Overall, research from the past 20 years has shown that restorative justice works -- yet such practices are uncommon in the American criminal justice system. Advocates say the reluctance stems from our culture of harsh punishment and politicians' need to be seen as 'tough on crime.' Nevertheless, pilot programs have sprung up at a few locations across the country in recent years, and researchers hope that these findings will spur more change soon."

F11 "Our data...offer hope for our overburdened and underfunded justice system. By emphasizing restorative justice for the victim rather than punishment of the offender, we could reduce some of the need for long prison sentences -- a potential boon given how packed and expensive the prison systems are in the U.S. In fact, an emerging literature has begun to shift the emphasis away fron punishment towards other ways of restoring justice.

"Giving people more ways to restore justice, whether it involves a guided reconciliation process between victim and perpetrator or simply focusing on compensation for the wronged party, could actually change how people feel about punishing a crime.

"Though less often employed, reconciliatory nonpunitive approaches towards restoring justice have proved successful in the real world."

W27 [106] [Patty Wetterling's son, Jacob, was kidnapped back in the 1980s. It would not be until Labor Day weekend of 2016 that his fate would finally become known. Sadly, his remains were discovered in a field not far from his home, after law enforcement officials were led to the scene by the person who murdered him, a man who had been intervewed as a potential suspect shortly after Jacob's disappearance.]

[Talking about the man -- identity unknown at the time -- who took her son Jacob:]

"As a child, something really bad must have happened to this man that he would then act out and do these things to other children. Registering and treating them as demons and animals, not even human, that doesn't do anything. It destroys the person. It would destroy me internally and it would not solve the problem...If we view sexual offending as a public health problem, we would look at it like we do other health issues. When people start getting really sick, the medical field doesn't say, we've got to build more hospitals and that wll solve it. They do a lot of research in trying to figure out what is causing people to become sick. But with sex offenses, all we can think of is to build more prisons. It doesn't solve the problem..."

[107] "On an intellectual level, when these guys are released from prison, we want them to succeed. That's the goal. Then you hae no more victims. All of these laws they've been passing make sure that they're not going to succeed. They don't have a place to live; they can't get work. Everybody knows of their horrible crime and they've been vilified."

D16 [450] "Offenders are often equally [viz. victims] mishandled by the system. Instead of focusing on rehabilitation and reintegration into the community, vengeance and retributive jusrice stigmatize and isolate the offender from the community, which often leads to further sexual violence."

[457] "[T]he labeling of the sexual offender can make it easier for the offender to live within the deviant label instead of breaking from that label (Becker, 1990)."

[In other words, ironically, the more a person is stigmatized or even bullied for having committed a sex offense, the more likely it is he will commit further sexual offenses. Those who are quick to jump on the anti-sex-offender-demagoguery bandwagon should bear this in mind.

[7] "[T]he vast majority of sex offenders are first-time offenders who have no knowledge of the severe legal penalties, and the small percentage of repeat sex offenders are addicts and/or mentally deranged [people who] cannot control their own actions and are not capable of connecting their actions to potential consequences.

"Because sex crimes are not committed by the types of people originally assumed by lawmakers [e.g., strangers to the victim], the policy of deterrence through the use of expensive mandatory minimum sentences will be completely ineffective in preventing sex crimes against children...At the same time, this policy will result in a burgeoning prison population, huge incarceration costs, and a great increase in the number of people on welfare and Medicaid. It will also drastically reduce reporting of child sexual abuse."

F8 [324] "[A] restorative justice model should be strongly considered for replacing the current and disabled criminal justice model regarding sexual abuse prevention. Restorative justice is not being soft on criminals, nor is it a substitute for punishing offenders who commit heinous crimes. According to Fran Henry, president of STOP IT NOW!, 'restorative justice means you hold someone accountable and you hold out something (positive). . .You cannot do one without the other.' *

[329] "The threat of incarceration prevents abusers from coming forward and taking responsibility for the hurt they cause. It reinforces silence, and therefore promotes, rather than breaks, the cycle of violence that exists. The Native American communities, on the other hand, view wrongdoing as an area of ignorance that requires teaching or an illness that requires healing.

"The Hollow Water Ojibway Indians of Manitoba have developed a unique program for the treatment of sexual abusers. Recognizing sexual assault as a systemic, or community, problem and not just as individual pathology, following each sexual assault, the community comes together to ceremonially heal itself along with the victim and the abuser. The tribe attempts to minimize court involvement for both victims and abusers, feeling the courtroom environment is too unsafe, adversarial, and disrespectful for all parties. Similarly, prison sentences are avoided, except in more serious or repeat offenses, because tribal members believe abusers should not escape the community pain they caused. Furthermore, they contend prison sentences generate deviancy, breed hatred, destroy the abusers' sense of community, and do not demand responsible decision making.

"Psychological labeling is discouraged, as the tribe feels the process further freezes individuals in a pathological state that discourages change and growth.

"Reconciliation between victim and offender is pursued wherever feasible. Its purpose is to repair a rupture in the circle of relationships, a necessary part of of community healing. This unique program is a prime example of how restorative justice can work to the benefit of the victim, the abuser, and the greater community. The Hollow Water Project is an example of how we can address all three [i.e., (potential) perpetrator-, victim-, and community-oriented] levels of prevention simultaneously through one comprehensive effort."

L6 [953] "While shame is a moral emotion, and it may be good to feel ashamed for some of the things we have done, producing shame in another person is a different story. We might assume that if shame is a good moral reaction to a bad act, then the induction of shame may be appropriate. But self-produced shame is different from externally-produced shame. It comes from a feeling that one has done something that is so wrong one feels embarrassed, humiliated and deeply and profoundly bad. Self-produced shame reflects a conflict between the kind of person we are and who we had hoped we were. Shame derived from external sources is something altogether different..."

[954] "In condemning, if we do not aim to degrade and humiliate, we aim to make the wrongdoer suffer and, perhaps, to be afraid and to simply comply with the law out of fear of being ashamed again. But here is the cost to those who condemn. When we act on our aggressive impulses and project our own unwanted fear and insecurity onto others, we will never feel completely safe. When we brutally punish or condemn others to produce shame, we raise two unconscious fears -- that we too might be brutally punished and that the world is very, very unsafe. Linda Ross Meyer raised this point with regard to shaming and the moral worth of human beings, arguing that tying a victim's moral worth to the offender's punishment is senseless. This externally produced shame never redresses an imbalance because one cannot assert the moral worth of one person by denying the moral worth of another.

"In contrast to shaming practice, apology may produce positive results for the wrongdoer and society...Apologies reconnect the wrongdoer to some party he or she has wronged, if only briefly, whether it is an individual or society. Apologies assert the wrongdoer's moral worth because he or she is not rejected but rather is brought back into however tenuous a relationship."

[955] "Apology is distinct from remorse, because the former is an act rather than a feeling and can be performed devoid of feeling. However, apology makes remorse possible in a way that the experiencing of shame may not. Lawrence Vogel, writing on moral responsibility, claims that blameworthiness depends on one's capacity for proper sensitivity. When we make criminals monsters in order to justify acting out on moral outrage and feelings of condemnation, we make them less blameworthy. When we ask for an apology, we hope this act will influence them and suspect that they have the proper sensitivity to carry it out."

R3 [7] "If we feel sorry for something wrong we know we should not have done, we do well to feel sorry for our misdeeds and try to make amends, but we are not required to feel hopelessly shameful and guilt-ridden, nor should we be subjected to the kind of shaming and vilification that the current sadistic legislation imposes on sex offenders...In this passage [Isaiah 53: 3-5] we are touching on a profound message of the scriptures: it is precisely the dishonored and despised who play a vitally important role in saving the world...The mechanisms put in place by oppressive sex offender legislation are designed to shame and humiliate people in the most demeaning ways possible. We must protest against them and do all in our power to reform them, but we must never let ourselves be shamed by them. Rather, we should dare to identify ourselves with the suffering servant whose anguish and affliction healed the world's worst wounds...[Referring to Matthew 11:19 and 21:31:] I have no doubt that, were Jesus walking our streets today, he would quickly be accused of being 'a friend of the sex offenders and sinners,' and he would forcefully reply to his detractors, 'Yes, and let me tell you something: the sex offenders and the prostitutes will enter the kingdom of God before you do!'"

B19 [89] "Remorse and apology are useful as more than mere [90] metrics for punishments. Apology, we argue, is a powerful ritual for offenders, victims, and communities, one that criminal procedure could facilitate by encouraging offenders to interact face to face with their victims. The focus would broaden beyond the indvidual offender's badness to constructive measures to heal offenders, victims, and communities. Remorse and apology would teach offenders lessons, vindicate victims, and encourage communities to welcome wrongdoers back into the fold."

[97] "The genuinely remorseful offender who wishes to apologize to his victim and make amends usually has no readily available way to do so. Indeed, from the time of arrest until trial (if there is one) and sentencing, victims are almost never in sight of the offender."

[115] "When offenders express genuine remorse in person to those offended, the effects can be profound. The news media and popular press are full of [116] stories about the transformative effects of such meetings. Empirical studies and anecdotal evidence from restorative justice programs confirm that face-to-face expressions of remorse and apology matter immensely to offenders and victims. Four empirical studies involving 550 offenders found that 74% of offenders apologized when given the opportunity to do so in restorative-justice conferences. By contrast, 71% of offenders whose only opportunity to apologize came in the courtroom did not do so. According to these studies, offenders who took part in restorative-justice conferences were 6.9 times more likely to apologize than those who went to court, and victims were 2.6 times more likely to forgive them...Numerous studies show that a substantial percentage of victims want to meet with offenders. 'The [empirical] evidence suggests that victims see emotional reconciliation to be far more important than material or financial reparation.' According to one study, the more that victims are emotionally upset by the offense, the more they want to meet with offenders.

"Victims, offenders, and community members who have met and engaged in apologetic discourse overwhelmingly feel satisfied and relieved."

F9 [138] "[W]ith the rise of the victims' rights movement, criticism has been leveled against the single-minded focus on criminal prosecution and incarceration 'for taking disputes out of the hands of offenders, victims and the larger community.' By focusing solely on criminal sanctions, we neglect the need of some victims for other methods to address wrongs, including 'family conferencing, restorative justice, and victim-offender reconciliation' and other forms of 're-integrative shaming through informal, non-punitive and non-adversarial interventions which shame offenders for their crimes, but offer support and re-integration through families and communities.'" **

L5 [from FN7:] "[S]ex researchers Gagnon and Simon...argue that 'utilization of the police should be done with caution and must be dependent on the capacity of the local agencies of criminal justice to do their job without damaging the child. . .All individuals involved in the drama [of adult-child sexual contact] can be scarred by it, but except in rare instances where violence is involved, the scarring is more likely to come from the various adult reactions to the event itself.' (1970, 22-23)"

W6 [226] "Mantell (1988) notes that the process of evaluating an accusation may result in more damage to the interests of the child and to the child's primary relationships than the original act in question."

G2 [47] "There is considerable evidence that many children are much more emotionally traumatized by the questioning and reaction which follows disclosure than by the actual sexual encounter."

S5 [34[ "Child-victims are crying themselves to sleep at night, suffering daily and berating themselves for even discussing the abuse in the first place, and would rather have endured the abuse than the nightmare 'cure' offered by the state."

Z4 [182] "[R]esearch suggests that children's experiences with the criminal justice system can have marked and prolonged negative effects on their education, mental health, and beliefs about re-engaging with the legal process...In fact, many child complainants of sexual offences who have testified in court are so unsettled by the adversarial process that they say they would not report being a victim again...Likewise, parents of child complainants have insisted that they would not put their children through the legal process again, and would advise other parents against it...Even legal professionals generally consider the legal process to be traumatic for children...and would not want their own children to participate in it..."

J11 [555] "Because it is too late to save those who have fallen to the side of contamination, the bulk of solutions provided by these measures [e.g., registration, community notification, and residency restrictions] aims to ensure that sex offenders are contained and regulated. Indeed, despite the historical failure of aggressive law enforcement and incapacitative strategies directed at offenders to reduce the harm of their acts, all the provisions in these various bills [debated in Congress from 1994 to 1998] called for more of the same, and none provided for restorative or therapeutic interventions for the very victims who so deserve protection in the legislators' own rhetoric. Nor are any of the provisions directed toward rehabilitation or therapeutic intervention for the perpetrators, since the accepted wisdom among the speaking lawmakers was that they are indelibly contaminated and beyond redemption. [FN21:] As has been the trend throughout this latest phase of anxiety over sex offenders: 'As measures to deal with sex offenders have become more punitive, comprehensive sex offender treatment/therapy programs within the criminal justice system have been dismantled, and little to no resources are allocated for the true protection and remediation of the child victims' (Levesque 1995)."

W27 [v; Dedications section:]

"To the Wetterling family, and in particular, Patty

-- Because you choose to seek wisdom and knowledge when faced with tragedy and loss, you are a source of affirmation about the goodness and power of humanity. I am sorry about Jacob. I am humbled by your strength and faith in the world. Nothing will replace your loss. I hope this book reminds you that we still care."

[104] Wetterling: "[W]hen Jacob was kidnapped, I was angry -- as you can imagine. I've been angry; I know fear and I know anger, and I don't like living my life like that...[105] I couldn't hang on to that anger. It was destroying me inside. It was. I've seen people do that. They become very bitter. They can also be very effective at changing laws, but it's unhealthy. I couldn't do it."

[111] "I refuse to let the man who took Jacob take anything else. You can't take my marriage. You can't take my other children. You can't take my sense of goodness with the world. You can't take away the world that Jacob believed in. You can't have it.

"When somebody does something wrong, you get them the help that they need so that they can turn their lives around."

D16 [450] "The existing criminal approach, which focuses on punishment instead of healing, treats sexual violence as a crime against the state. But an offender does not rape 'the state' or molest 'the commonwealth.' The survivor/victim is a real person with real needs who is arguably treated by the criminal justice system as nothing more than a means to a successful prosecution and conviction."

[451] "Restorative justice is a justice model that aims to transform the community's role in addressing crime. It emphasizes the harm caused by the offense instead of the violation of a law...It focuses on the survivor's/victim's needs while also addressing the needs of the offender and the community so that the relationships among all the parties can be healed and reconciliation can occur..."

[452] "[Restorative justice includes] victims being involved in the decisions about offender sanctions."

[453] "Since the 1970s, the movement against sexual violence has focused on a 'law and order' approach...[454] None of these actions, however, have resulted in lower rates of sexual violence..."

[455] "If there is a conviction, the survivor/victim has no say in the punishment. Although a victim impact statement may be allowed, the judge is not obligated to consider the survivor's/victim's wishes when imposing sentence."

"Situations that involve sexual violence by an intimate partner or trusted family or friend are particularly complicated. In these cases, the survivor/victim wants the violence to stop, but may not want the offender to be punished within the criminal legal system. The survivor/ [456] victim may want to heal the relationship rather than to sever all ties to someone they may still love..."

[In the Nickel case, did anyone ever ask 'Arthur what he wanted?]

[462] "Whereas many existing sexual offender policies emphasize stranger-based sexual assault, encouraging community members to constantly fear unknown predators, restorative justice focuses on the actual harm done to the actual victim."

F11 [23] "Evidence from actual legal situations supports the idea that for some crimes [24] victims will choose a different path to justice if it is available. Restorative justice programs, such as the commission established in South Africa to respond to Apartheid-era violations of human rights, typically prioritize victims' needs and enable the perpetrator to tell his or her story. These elements foster a dialogue between victim and criminal that results in two important consequences: victims report high rates of satisfaction with the process, and offenders are more likely to take responsibility for their crimes."

"[A] gap seems to exist between what we as victims want and what third parties decide for us. When we have been slighted, we tend to our own needs rather than pursuing punishment, but when we make decisions on behalf of someone else, we prefer an eye-for-eye strategy. This finding calls into question our reliance on the putative impartiality of juries and judges."

B19 [137] "Studies suggest that most victims are far less vengeful and punitive than most lawyers assume. Empirical research finds that victims criticize the criminal justice system not because it is too lenient but because they have few rights and play little role in the process."

B18 [992] "On the whole, victims are not primarily concerned with maximizing punishments. What most victims want is information about their cases, a participatory role, fair and respectful treatment, emotional healing, apologies, and restitution. [from FN130:] "('[R]esearch suggests that victims' interests or concerns relative to proceedings are not tantamount to imposing a severe sentence, but pertain to the court addressing a broad range of issues. . . *** ) Currently, prosecutors view their jobs as maximizing convictions, not delivering these other goods to victims."

B25 [954] "Interestingly, most victims are not angry and vengeful, and many do not demand harsher punishments. It is simple participation that helps to empower and heal victims. Participants see the law as more fair and legitimate when they have some control over the process and feel they have been heard, whether or not they control the ultimate outcomes."

[According to the above empirically-based sources, victims are not all that interested in having severe sentences imposed. Therefore, when politicians and others claiming to speak on victims' behalf push for stiffer sentences, they are, in fact, not speaking on victims' behalf.]

W31 [36] "The American Judges Association White Paper that forms the centerpiece of this issue begins with the recognition that even first graders have an understanding of procedural fairness. Developmental research has indeed established that young children are able to evaluate the fairness of activities and that they have a more positive perception of activities they deem to be more fair. Until recently, however, there has been little concern in the U.S. regarding children's experiences of legal processes and procedures. In fact, children were not generally expected or encouraged to directly participate in most legal processes, even those where they were a main party to the proceedings, such as cases involving abuse/neglect and foster care. In the past several years in the U.S., there have been arguments made to increase children's participation in legal processes that affect them and to increase children's knowledge of legal processes. These arguments for increased participation are generally couched in the language of procedural justice -- children desire and deserve a voice in legal proceedings that affect them...[E]fforts at increasing children's knowledge of legal processes are attempts to empower them in their dealings with the legal system by increasing their understanding of the players and the process.

"The U.S. has come relatively late to the idea that children should be allowed and encouraged to participate in legal proceedings that affect them. A number of other countries had earlier endorsed this principle in part 12 of the UN Convention on the Rights of the Child that establishes the right of capable children to directly express their views and to be provided the opportunity to be heard in judicial and administrative proceedings either directly or indirectly. [from FN6:] [This] is the most widely and rapidly ratified human-rights treaty in history with 192 countries ratified by 2005 (exceptions are U.S. and Somalia)."

[Only the United States and Somalia failed to ratify the U.N. Convention on the Rights of the Child!? Strange bedfellows indeed.]

[37] "Fondacaro and his colleagues asked 240 college students to recall a recent family dispute and rate how their parents handled it along various dimensions. Overall judgments [38] of procedural fairness were positively related with family cohesion and psychological well-being. Disrespectful treatment was the best predictor of deviant behavior."

[Disrespectful treatment is likely associated with deviant/criminal/anti-social behavior in arenas beyond family relations as well.]

F16 [221] "Research with adults suggests that experiences with the law contribute to evaluations of its legitimacy. Although we know less about children's evaluations of the law, an important factor influencing the development of adults' views about legitimacy are their judgments about the fairness of the manner in which police and the courts exercise their authority."

[222] "[A]dults usually define the fairness of procedures by considering four factors: the degree to which they have voice and can express their opinions and concerns; the neutrality and factuality of the decision-making procedures used; the politeness and respectfulness of their interpersonal treatment; and the degree to which they believe that the authorities are acting with benevolent or caring motives..."

[236] "Otto and Dalbert (2005) found that whether incarcerated adolescents felt guilt over their crimes was shaped by whether they viewed their trial as fairly conducted."

[The same surely applies to adults too. For example, say someone is found guilty of several crimes, some of which (the relatively minor ones) he (may have) actually committed, and some of which (the far more serious ones) he most definitely did not commit, in the course of a trial akin to a kangaroo court. Just how much guilt can he reasonably be expected to feel?]

M6 [577] "In the current national mood, psychiatrists, social workers, psychologists and others who have traditionally defined themselves as helpers, now stand in line to lend a gloss of scientific or clinical validity to criminal justice spectacles often inspired by a mélange of political winds, ambitious prosecutors, and pop psychology which plays to the worst [578] impulses in the citizenry...More ominously, 'help' is being rooted in the false premises of the criminal justice system -- that there must always be a villain to be identified and punished, and upon whom we can heap contempt and opprobrium, thereby redeeming ourselves and saving the victim."

[580] "[T]he adversarial stances of criminal justice are now built into the very theories of treatment. For example, we are told that the victim will not fully recover until he or she sees the perpetrator sent off to prison. What nonsense! To my knowledge, there is not a single controlled research study which demonstrates [581] this bit of dogma...It satisfies only those with a need to feed 'gut' reactions -- but betrays a surprising naivete as to the detritus of the prison experience and the outcome research on such matters.

"To be effective at the tasks set forth in the criminal justice model, the professional helper must necessarily immerse himself or herself in that primal paranoid process first named by the great American psychiatrist Harry Stack Sullivan as 'selective inattention.' Only those facts which relate to conviction and punishment are relevant. At the same time, one must work hard at 'inattending' to any realities which might otherwise dull the scent of the hunt."

C21 [243] "In criminal cases, prosecutors often compound the trauma child witnesses endure...That secondary traumatization -- the intimidation and disregard of child witnesses by authorities -- threatens the integrity of the entire criminal justice system."

[249] "Congress commissioned task forces that consistently found that child witnesses in the criminal justice system need better treatment to protect their rights and prevent the legal process from re-victmizing them. In 1990, Congress found that 'too often the system does not pay sufficient attention to the needs and welfare of the child victim, aggravating the trauma that the child victim has already experienced.'"

[The above assumes that, e.g., all alleged child sex abuse victims actually experienced such trauma. As numerous exonerations demonstrate, such an assumption is simply incorrect.]

"Prosecutors[']...intimidation and disregard of child witnesses [250] often causes children unnecessary and palpable harm."

"Studies show that, as victims, children want to participate, and need procedural justice. Children want correct information about the process and the possible outcomes, and they need at least a basic understanding of the legal system, roles of the professionals with whom they are forced to interact, and sources of information upon which the judge or jury will rely."

[253] "Children should have more control over the process and how it affects them, so that their chances for a speedy recovery from the primary harm are maximized, such that they are not exposed to any further needless trauma, and so that their needs as victims and witnesses are met."

[262] "[There are] instances when the prosecutors' interests conflict with child witnesses' interests, and more importantly, their rights."

275] "To equip children to handle conflicts with prosecutors and participate meaningfully as witnesses in the criminal justice system, children need independent counsel as much as they need information, process, and compassion. Through laws, children have a right to information, [276] to be heard, protected, and respected. However, children cannot invoke these rights without help, and only child witness lawyers can truly protect children from pernicious practices within the system."

"If courts do not safeguard the children's interests, the prosecutors' interests might completely overshadow and jeopardize them."

[286] "Courts can help children, but they will not always be poised to help child witnesses when prosecutors and child witnesses are at odds, and children cannot therefore defend themselves without independent counsel."

[To many prosecutors, for all their rhetoric about being on the (alleged) victims' 'side,' child witnesses are little more than means to an end. Children's interests often diverge from prosecutors' interests, and therefore, need someone truly on their side who doesn't have a vested interest in seeing the defendant convicted and punished.]

B28 [300] "It is well known that adult rape victims have virtually complete control over the decision whether to charge the alleged perpetrator with a crime. Suppose, hypothetically, that a female victim of an acquaintance rape goes to the hospital with a black eye and a broken nose. The victim's account and the forensic evidence reveal that a rape has occurred. Despite encouragement to prosecute from a detective, the victim advocate, and the deputy distict attorney, the victim ultimately expresses a personal preference not to proceed with charging. Respecting this preference, the deputy district attorney does not charge a readily identifiable rape suspect.

"Rape is a serious crime of violence. The community and the individual victim are safer with the rapist in prison. Nonetheless, in sex crimes against adults, the charging decision is, as a practical matter, almost always left up to the victim. However misguided the victim may be perceived to be, she essentially controls the choice. Even when the reasons for her choice may not be respected, her choice is respected because she is the victim. The Victim Participation Model readily explains why this is so. The rape charge is not pursued because of respect for the victim's dignity and privacy, and relatedly, because of an understanding about secondary harm generally and specifically, the victim's desire not to be abused by the process."

[Are those who are under the 'age of consent' not deserving of any 'respect for the victim's dignity and privacy'? What about the 'secondary harm' that may well be caused by the alleged victim being dragged through the legal process? It seems ironic to, in their name of their autonomy, essentially give minors no choice but to be active participants in prosecuting a person about whom they may very well care a great deal; even, love.]

[306] "The individual victim of crime can maintain complete control over the process only by avoiding the criminal process altogether through nonreporting. This is properly a decision for the victim. In the vast majority of cases, the victim possesses a de facto veto power over whether the criminal process will be engaged. Many victims of crime elect to exercise this veto power. Exercise of the veto may reflect one or more of the following: the victim's desire to retain privacy; the victim's concern about participating in a system that may do more harm than good; the inability of the system to effectively solve many crimes (particularly property crimes); the inconvenience to the victim; the victim's lack of participation, control, and influence in the process; or the victim's rejection of the model of retributive justice."

[In cases where a minor really has been involved in something sexual with an adult, if and when that minor makes the decision to tell someone -- or a third party becomes suspicious about a certain person or situation and prods the child until he or she does 'disclose' -- at that point, the minor often has very little control over what is going to happen to him or her from then on.]

[309] "[T]o minimize additional harm to the victim, the investigations of the State and the defense should intrude no more than necessary on the victim. For example, victims should not be interviewed multiple times during the investigation phase...Certain investigations should only be conducted with the victim's consent. Physical and psychological evaluations of the victim should not be allowed without the victim's consent...To allow such evaluations and searches is to condone a re-victimization."

[In the Nickel case, 'Arthur' was interviewed at least three times. Moreover, he underwent an invasive physical examination without his consent (which Prosecutor Peter Torncello then blamed Nickel for), as others looked for evidence of sexual abuse which was not there .]

[313] "Victims should have a veto power over whether a charge is brought...The victim is in the best position to determine if the victim will be harmed by having to endure the criminal process. Also, assuming that the victim wishes to pursue charges, the victim should be able to determine what charges are appropriate...The victim is more likely than the public prosecutor to be free of bias and concerned with principles of justice. On the contrary, the State is preoccupied with winning and a host of other bureaucratic agendas."

[314] "At the charging stage, victims should be given the choice between a punitive procedural model and a restorative justice procedural model. The victim may wish to choose victim-offender mediation over the retributive model of the formal criminal process because restorative justice may lead to greater benefits for the victim. In restorative justice models, the victim is a central player in the proceeding, and the emphasis is upon restoring the victim through efforts of the offender. For this reason, the public prosecutor is not a necessary part of the restorative justice process. On the other hand, the victim should be able to choose instead the formal criminal justice system, because it may better satisfy the victim's individual sense of justice. Thus, the choice between the two processes should be left to the victim."

[318] "In serious (if not all) crimes, or where a victim is particularly vulnerable (such as a child or mentally impaired person), or where a conflict develops between the victim and the prosecutor, the victim should have the right to counsel at trial (and other stages of the criminal process). The victim's counsel should not be under the [319] control of the public prosecutor. Once the crime is charged, representation at trial for victims of serious crimes is justified by the significance of the harm to the victim. Recognition of harm should give the victim standing at trial. The victim and victim's counsel would occupy a third table during the trial with an opportunity to engage in voir dire [jury] selection, opening statement, questioning and calling witnesses, objecting to evidence, and closing argument."

[321] "Because the victim is the person harmed, the victim’s opinion about an appropriate sentence and the information supporting the opinion should be permitted at sentencing. It is an infliction of secondary harm upon the victim to deny the victim the right to articulate at sentencing the extent and [322] the consequences of the primary harm...If the judge chooses to follow the recommendation of the victim, rather than the parties, it is because the victim's recommendation was more closely aligned with the public interest than was the recommendation of the prosecution or defense. The victim's opinion (and supporting rationale) is beneficial to an accurate assessment of what is in the public interest."

[324] "Victims should also have the ability to bring suit against government actors that violate the victim's civil rights."

[Also see Politics -- Leaving Victims Behind section of this site.]

[source unknown] "Texas DCJ [Department of Criminal Justice] has a program that facilitates contact between inmates and the victims of their offense if both are interested and willing. It requires both the inmate and his victim to participate in a mediation program prior to actual contact. Charles in Texas shares his experience with us:

'My "victim" has tried to contact me several times over the years only to be scolded and have his letters returned to the prison. I was never informed of these attempts and left to worry for fifteen years. Once I got in the Texas system, they intercepted a letter and referred him to victims' services.

'This past summer I was called to visitation and informed about his wishes. I had a lot of mixed feelings but definitely wanted to see him again. He and I went through the program so that we could have a contact visit. We both had questions about how the other was doing. The program usually lasts 12-16 months but we completed it in six because there was no anger or hostility from either side.

'The visit itself was remarkable. Our mediator has worked for TDCJ for 39 years and said he had never seen anything like it. He obviously has no experience in Mb [man-boy] relationships. Most victims were truly forced or coerced to do things they would not have done voluntarily and would not have considered their situation a relationship. The warden was informed of the situation and basically rolled out the red carpet. My friend and I had the whole day to visit in the visiting room with only the mediator there in case there were any problems.

'The "victim" wanted to know about my daily routine and living conditions, so the warden assembled a "posse" and commenced an impromptu tour. The posse grew to include a lot of rank, including the warden, a captain, lieutenant, three sergeants and one CO. Imagine what would have happened at your institution if you went to your cell, workplace, chow hall, etc. with such an assembly of rank. Naturally tongues were wagging. A friend of mine knew what was really happening but told the others that I was trying to get out and the mediator was my lawyer and my friend was an investigator. Now everyone is convinced I have the system "worried." I just play along and tell them I won't be getting out anytime soon, but that I am doing what I can to shorten my sentence. Which is true! Doing this program looks really good to the Parole Board. Also, my victim wrote telling them he never wanted to see me incarcerated, has no opposition to my release, and that my incarceration is a huge miscarriage of justice and a waste of tax dollars.

'My friend was really upset with my living conditions and lack of privacy. Texas prisons do have a horrible, but deserved, reputation. Most of our day was spent recounting what each of us went through since my arrest. It was a very emotional day for both of us, but we basically got caught up, said our apologies, recounted good times together, etc. And we were able to finally say "goodbye" to each other. It seems to me that both of us have been held back because of the relationship aspect. He needed to hear me say that it was okay to love someone else without feeling guilty and to move on with his life. I needed him to tell me he understood how much I loved him and that he realized I had not meant for any harm to come from what we did. He let me know he was not bitter or angry at me, but rather, at the police, courts, media, and everyone else who didn't understand or accept what we had together. He went through pure hell after my arrest, but has managed to do well for himself as an adult. All of the inmates that saw our tour group figured him to be the one in charge, just because of the suit, how dignified and in control he appeared.'"

[It should be noted that New York State does not have such a program.]

----- * [FN48:] Group: Child Abuse Can Be Stopped, Burlington Free Press, Jan. 17, 1997, at 3B.

** {from FN34:] Kent Roach, Four Models of Criminal Process, 89 J. Crim. L. & Criminology 671, 693-97 (1999).

*** Edna Erez, Victim Impact Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings, 40 Crim. L. Bull. 483, 491-9