Document Type

Article

Publication Title

Ohio State Journal of Criminal Law

Volume

17

Publication Date

2020

Keywords

prosecutors, courts, criminal law

Abstract

The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to trust criminal process. For example, sexual assaults remain grossly under-reported and under-prosecuted. Less than 1 percent of sexual assault crimes result in a felony conviction. Even the few victims who do receive their promised retributive outcome are not necessarily healed by the process.

Reform efforts seem to presuppose that victims of crime – or victims of particular crimes such as sexual assault – are essentially the same and have essentially the same need, namely, a need for the offender to be criminally prosecuted and sent to prison to serve the longest sentence the law allows. However, sexual assault victims are a diverse group – racially, ethnically, socio-economically, and with respect to sexual identity – and they suffer varied harms because sexual assault encompasses a wide realm of misconduct and victim-offender relationships or lack thereof. Even when victims suffer similar harms and come from similar backgrounds, they often have distinct, though sometimes overlapping, needs and objectives. Some have no desire to participate in the criminal adjudication process at all. Some will be re-traumatized by a successful criminal prosecution, even with the implementation of procedural reforms promoted by the victims’ rights movement and others.

Proceeding from the premise that victims are a diverse group with differing needs, we focus on victims who might prefer, and be better served by, a non-adversarial process that is centered on their needs, namely, restorative justice. However much improved, adversarial adjudication directed at convicting and incarcerating offenders risks re-traumatizing victims rather than promoting healing. It denies victims any significant control over the process, including control over their own narratives. We explore the value of restorative justice processes as an alternative that, in many criminal cases, may be preferable from victims’ perspective. We acknowledge that restorative justice processes are rarely employed in sexual assault cases in the United States and that prosecutors may have reasons, independent of victims’ perceived interests, for preferring the adversary process, a criminal conviction and imprisonment. Further, some victims’ advocates regard restorative justice as particularly inappropriate in the context of sexual assaults. Nonetheless, we suggest that when victims voluntarily choose to engage in a restorative justice process, it may be healing, because it gives victims agency in seeking a reckoning that fits with their particular needs and offers possibilities for addressing and repairing the harm that a criminal prosecution cannot.

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