Source: (2012) Ecumenical Review Sibiu / Revista Ecumenica Sibiu. 4(3):443-459.The aim of this paper is to analyze to what extent social mediation can be regarded as a productive means of solving disputes between migrant communities bearing in m... Read More
Restorative justice processes are more inclusive than the traditional criminal justice processes. They actively invite all affected parties--victims, offenders, and community members--to participate in resolving the crime.
Inclusion seeks the full participation of all parties, and it is accomplished by (1) inviting all interested parties to participate, (2) expecting the parties to pursue their own interests, and (3) being flexible enough to accept new approaches relevant to the particular situation.
These characteristics are especially important for victims because they do not have officially-recognized legal interests in most criminal justice systems. Criminal justice has to do with the State's prosecution of the accused offender. This legal process conflicts with the experienced reality of the victim who was harmed by the offender's criminal acts.
Methods of Inclusion: Although the criminal justice system cannot be as inclusive as restorative justice processes, there are at least four ways that the victim could become more involved in the process. These are:
The least inclusive of these reforms is nonetheless very important to many victims. It involves keeping victims informed about the services and rights they may expect, and the status of their particular case in the criminal justice process. They should be told about victim compensation, victim services, the steps of the criminal prosecution and the victim's rights during the proceedings.
Presence in Court
Many victims and survivors want to observe their criminal justice proceedings. However, this is not always permitted because of concerns that it any testimony they may offer will have been influenced by what other witnesses have said. Some jurisdictions allow the victims to observe the trial after they have testified. Others allow the victim to attend all of the proceedings unless it can be shown that this will jeopardize the defendant's right to a fair trial.
Victim Impact Statements
Many jurisdictions allow victims to make a statement during the sentencing phase. They are able to offer testimony about the physical, mental, emotional, social, and/or economic harm caused by the crime. In some places they are allowed to comment on what sentence the offender should receive.
Generally, the victim does not have a legal standing in the justice proceedings. If the restorative value of amends were taken seriously, the victim could be given the legal right to pursue restitution during the criminal proceedings.
There are many areas where the victim can be included in the justice process. The basic forms of this inclusion are consultation with the prosecutor and initiation of action independent of the prosecutor. Although the majority of victims are interested primarily in the sentencing of the offender, some have interests in other stages of the criminal justice process.
- Arraignment through Pre-sentencing
- Plea Bargaining
The French system of partie civile is an example of victim inclusion in the justice process. The victim is permitted to bring a civil claim as a part of the criminal case. This combination of penal and civil actions allows for consistency and efficiency. The civil claims are considered after the criminal charges have been proven. The victim does not have to prove guilt, only a linkage between the crime and the harm for which the victim seeks reparations.
This article was abstracted from Van Ness, Daniel and Karen Heetderks Strong. 2003. "Chapter 7: Inclusion." In, Restoring Justice. 2nd. Cincinnati: Anderson Publishing. Used by permission from Anderson Publishing Company. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission in writing from the publisher.