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Communicative punishment and the role of the victim.

Christopher Ciocchetti presents an important challenge to the communicative account of criminal punishment that we defend (indeed, to any normative penal theory that claims to take the rights of victims seriously), and suggests a way of revising that account to meet that challenge. (1) His own account, however, still faces a version of the challenge that he poses for our account. What is needed to meet that challenge, we will argue, is a robust defense not just of victims' rights, but of their responsibilities--a defense that depends on the modest type of communitarianism to which our account appeals. Such a defense will raise liberal hackles, but we will argue that it is crucial to an adequate normative understanding of the criminal law as a distinctive institution.

Communicative Punishment and "Atypical" Victims

Criminal punishment, in our account, is an essentially communicative enterprise. It aims not merely to communicate censure--the somewhat abstract condemnatory message that "You have done wrong" (2)--but to communicate and to persuade the offender to accept a substantive understanding of his crime as a particular kind of "public" wrong--a wrong, that is, against its individual victim (when there is one), but also, through the victim, against the political community whose criminal law he has violated and to which both he and the victim belong. (3) This communicative enterprise is pursued through a multi-stage process: through the criminal trial, as a process that calls the defendant to answer a charge of wrongdoing, and the conviction that follows on proof of his guilt; through the sentencing discussion (involving the victim if possible, as well as a suitable representative of the polity, such as a probation officer) that should ideally follow conviction, and that would focus both on the past crime as a wrong that the offender must confront and on the question of what sentence would constitute an appropriately reparative and apologetic penance for that wrong; (4) and through the punishment that is then imposed on or demanded of the offender.

Now one set of issues, which we have addressed, concerns the status of the offender, and whether punishment, as thus portrayed, can be said to respect the offender as a responsible citizen. A particular challenge is posed here by the "defiant offender," who is unpersuaded of the wrongfulness of what she has done and who perhaps refuses even to listen to the attempts at persuasion that her punishment involves. It is important to show that punishment, while it does involve a forceful attempt to make her listen and to persuade her, can and must respect her moral agency by leaving her in the end free to remain unpersuaded and unrepentant. (5) But Ciocchetti highlights another set of issues that we have not sufficiently addressed: the status of victims, and whether and how the punishment of "their" offenders can do justice to them.

The particular question on which Ciocchetti primarily focuses is, as he notes, just one of a set of questions about the responsibilities or duties that victims of crime should be taken to have: do they have any moral duty, and should they have a legal duty, for instance to report the crime; to assist the police in its investigation; to give evidence in court; to take part in a mediation or post-conviction meeting with the offender; to negotiate, and accept, some kind of reparation and apology from the offender? We return to some of these questions later, but first we will attend to Ciocchetti's particular concern.

The criminal law portrays the offender's crime as a particular kind of public wrong; but what if the victim dissents from that portrayal? Such dissent could take various forms. At its simplest, it could deny that what the law condemns as a crime is wrong at all. That might be the response of (what the law portrays as) the victim of an attempted voluntary euthanasia, for instance, or of those who received injuries in the consensual sadomasochistic activities that were held to be criminal in R. v. Brown. (6) Dissent could alternatively deny the "public" character of the wrong, without denying that it was a wrong, because the victim rejects the authority of this legal system outright and thus its claims to declare and condemn any public wrongs. Someone subject to an oppressive and corrupt regime might reject its law's portrayal of the genuine wrong she has suffered as a crime because she denies its authority to pronounce on such matters at all. Alternatively, a victim could regard this wrong as a purely private matter: someone whose husband commits adultery in a state that criminalizes adultery might argue that adultery is a private not a public wrong--that it is a matter between her and her husband. (7) Dissent could alternatively deny the law's characterization of the wrong, which the victim agrees is a public wrong: a victim of rape might see the rape as a wrong that does not differ significantly from other kinds of violent physical assault. Or, finally, the dissenter could deny that criminal prosecution and punishment are the appropriate responses to what is agreed to be a public wrong--either that they are appropriate in this case, or that they are appropriate in general. Abolitionists who become victims of crime, for instance, might dissent on several of these grounds: even if they see what was done to them as a wrong (rather than merely as a harm), they might deny that it is a "public" wrong, and object to the state "stealing" it from them; (8) or they might deny that condemnation and punishment are appropriate responses to it. (9)

If we saw crimes that victimize identifiable individuals or groups simply as private wrongs against those victims, such victims' views would present no problem. The criminal law's function according to such a view is presumably to protect potential victims against such wrongs, and to help them obtain satisfaction when they suffer such wrongs (whatever "satisfaction" might amount to in such a context); but it should not foist protection or satisfaction on those who do not want it. It should be entirely up to the victims (or, we should now say, "victims") whether they want the matter to be pursued through the criminal courts. (10) Or, if we instead saw crimes as wrongs that are "public" in the sense that they are wrongs against "the public" or "the community" as distinct from their individual victims, (11) such victims' views would not worry us, since punishment would not be supposed to speak for (or even to) the victim. The criminal law would speak on behalf of and in the voice of "the community" about the wrong that it had suffered; it would not express any conception of the wrong done to the individual victim, and thus could not conflict with his view of that wrong. While the victim might dissent from this account of the public wrong, that dissent would have no greater claim to be heard than that of any other citizen.

But such dissenting victims become problematic for accounts that (like ours) insist that crimes must be recognized as wrongs against their particular victims and, through them, against the larger community. Such accounts portray the criminal process of prosecution, conviction, and punishment as what is owed to the victim, as well as to the wider community (and to the offender) if we are to take the wrong done to the victim seriously. Dissenting victims, in effect, give new force to the question pressed by abolitionists who follow Nils Christie in worrying about the state's "theft" of "conflicts" from those directly involved in a crime. (12) In polities characterized by wide and deep normative disagreement, how can the wrong done by the offender be both "ours," as a community, and "hers," as an individual victim, when "we" and she might differ more or less radically in our understanding of it?

Ciocchetti offers two examples of victim dissent from the normative interpretations of the crime that the criminal justice system expresses--two examples of what he calls "atypical" victims who, while sharing the central values of the polity that are embodied in its criminal law, take an idiosyncratic view of "their" crime. Maria, a victim of marital rape, does not see the rape as a public wrong that merits criminal punishment: she "blames herself" because she "provoked" her husband and was insufficiently "understanding of his situation." (13) Tom, the victim of (what others see as) a racist hate crime (a burning cross in his yard), does not interpret the crime in such terms; he insists that it should be seen as an ordinary case of trespassing and vandalism. (14) In both cases, Ciocchetti argues, if the criminal justice system proceeds to convict and punish the perpetrators of the crimes in accordance with others' interpretations of their actions (rape; a racist attack), it will "subordinate" Maria and Tom in a way that does not do justice to them as citizens. The criminal justice system, according to our account, should claim to take seriously the wrongs that they have suffered, but it will not now take seriously their own understanding of those wrongs, and therefore cannot claim to take them seriously as citizens who have their own autonomous perspectives on what they have suffered.

We will shortly consider in more detail Ciocchetti's account of such "subordination," but we should first note the care with which he constructs his examples. He does not portray victims who are utterly alienated from, or in radical conflict with, the values that the law claims to express (although such victims pose problems of their own), but victims who share in those values. Indeed, while these victims are in his sense "atypical," in that they have an unusual or "deviant" interpretation of their particular crime, in another way they are utterly typical of a liberal polity--for this kind of disagreement is just what we should expect in such a polity. We will return to this point shortly, since it cuts off what might otherwise be a tempting response to his examples.

It should be clear that such examples, and the other possibilities of victim dissent noted above, present a challenge not only to the particular communicative theory that we defend, but to any penal theory that claims to take victims and their rights seriously. Discussions of the proper role (if any) of victims in the criminal process, and of what is owed to them, often proceed on the implicit assumption that victims will see themselves as having been wronged in the way that the criminal law sees them. The questions then concern the input and role that victims should have in the criminal process of trial and sentencing, and the only kinds of disagreement that are usually noted as problematic are those in which the victim seeks a harsher, or milder, sentence (or reparation) than others would think adequate. (15) But if we are to take victims seriously, not merely as passive sufferers of wrongs who deserve our (all-too-often patronizing or paternalistic) pity, but as citizens who must be addressed and heard as such, must we not attend more carefully to their interpretations of "their" crimes, and most carefully when their interpretations diverge from those embodied in the law?

Communities, Individuals, and Disagreement

It might be tempting to seek to avoid the problems presented by "atypical" or dissenting victims by emphasizing the "ideal" character of any normative penal theory: by emphasizing, that is, that no plausible normative theory would claim to justify punishment as it is actually administered in our existing legal systems; that any such theory offers instead an ideal of what punishment ought to be (of what it must be if it is to be adequately justified), an ideal against which we can judge our actual systems and toward which we can aspire; and that actual practice can fall short of the ideal not just in relation to what is internal to its penal practices, but also in relation to the social and political preconditions on which any penal practice depends for its legitimacy. Such points are indeed worth emphasizing, (16) but we would certainly not want to argue that a system of criminal punishment depends for its adequate justification on a level of communal agreement about public norms and their interpretation that would leave no room for atypical or dissenting victims. The point is not that a theory that required such a broad agreement as a precondition of legitimate punishment would be yet further removed from both actuality and possibility than is the theory we favor; it is that central to any plausible liberal political theory (and we count ourselves as liberals, albeit communitarian liberals) is not just an acceptance, but a celebration of diversity and dissent--including dissent of the kind that is typified by Ciocchetti's two examples.

Ciocchetti wants to "preserve the attractive aspects of communitarian ontology," while avoiding the "subordination" of individuals to "the community" that critics often accuse communitarians of sanctioning. He does so by portraying crimes as wrongs not against "the community" but against "individuals-in-relation." (17) This is to allow room for recognition of the fact that individuals stand in a variety of different relations with each other, within and between which there will be different understandings of, inter alia, the kinds of wrongful conduct that concern the criminal law. Talk of "the community," he fears, will lead us to search for a single shared understanding that includes all citizens--a search that will prove futile, but that will also encourage the "subordination" of individuals' understandings to a shared understanding that we try to construct.

We suspect that some of the differences between us here might be more terminological than substantive, since what Ciocchetti seems to mean by "individuals-in-relation" is what we mean by "community." We would agree on the importance of recognizing both that individual belong to a range of different, partial communities, and that the communities that we value and within which we flourish are characterized in part by distinctive kinds of disagreement: (18) any community that is to take individuals seriously as responsible agents must not merely tolerate but foster dissent and disagreement, for the kinds of reason that John Stuart Mill offered in support of freedom of thought and speech. (19) Of course, such disagreement is possible and valuable, as disagreement rather than pure conflict, only if it is based on a deeper agreement in values and in understandings of those values; but we take such disagreement-enabling agreement to be present in all the kinds of problem cases noted above.

When we talk of "the community" in the context of crime, we do not mean to posit some all-embracing community that entirely structures its members' lives--the kind of suffocating community that so worries critics of communitarianism (worries them rightly as a nightmare to be avoided, but wrongly insofar as they take it to be a necessary consequence of every kind of communitarianism). We are talking rather of a political community, of the kind on which a system of law depends--a community that is only one, and often not the most significant one, of those to which its members belong, and that makes only a limited claim on them. Such a community is indeed characterized by disagreement as well as by agreement; but it also needs to secure sufficient agreement to make a system of criminal law (as distinct from a series of informal, local, and temporary understandings) possible--a criminal law that claims authority to declare and define the central mala in se that are to count as public wrongs, and to create new mala prohibita that become public wrongs once they have been legislated. (20)

Of course, the law's authority depends upon the legitimacy of the law-making processes: the legislative process by which statutes are passed, and the judicial processes through which the common law is developed and statute law interpreted. There are obvious grounds to doubt the extent to which our actual legislative and judicial practices can claim any such legitimacy. Suppose, however, a system that can claim such legitimacy: there would still be room for, and a predictable certainty of, disagreements of the kind noted above. When the dissenter is the (alleged) offender there seems no theoretical problem. What the law says to him, in effect, is that he ought to accept the law as it stands and as it is interpreted by the courts. He should do so either on the content-dependent ground that the law's content, as thus interpreted, expresses norms that he ought to accept; or on the content-independent ground that, since the law results from a legitimate process to which he could have contributed in an appropriate way, he owes it to his fellow citizens to accept the outcome of that process until he can get the law changed by the appropriate process. (21) Why then should we not just say the same of and to the dissenting, "atypical," victim?

Ciocchetti himself agrees that Maria "is clearly wrong in her response to Joe," (22) and that "Tom and Maria are clearly wrong ... in their interpretations of the wrongs done." (23) So why should not the court in effect say this to them, in punishing Joe and in prosecuting Tom's attackers for a racist crime? Two considerations seem to underpin Ciocchetti's concerns here. First, that we would not then have "affirmed the values we intended to affirm. We have not expressed our support for [their] interpretation[s]," or "support[ed them] as ... autonomous being[s] capable of acting according to [their] own understanding of the situation." Second, that this would adversely affect the victim's relationships with others--Maria's relationship with Joe, and Tom's with other members of the (diverse) black community. (24) Neither of these concerns seems persuasive as it stands.

As to the first consideration, it is not yet clear why "the values we intended to affirm" should mandate taking victims' own interpretations of "their" crimes as dispositive (as we will see, Ciocchetti anyway does not believe anything as simple as this). Furthermore, one way to "support" another "as an autonomous being" is precisely to argue with her and try to show her why she is wrong. As to the second point, the obvious response is that in insisting on convicting Joe, or on prosecuting Tom's attackers for a race crime, we are trying inter alia to ensure that their relationships--insofar as they concern the criminal law at all--are not based on moral wrongs or falsehoods. But yet there is a real worry here: if we are to claim to "share" the victim's wrong, how can we so readily dismiss her own interpretation of that wrong?

It would of course be possible to make her interpretation authoritative: we could simply add to the definition of each victimizing crime a clause specifying that the crime is committed only if the victim wishes criminal proceedings to be pursued. (25) It is worth making clear what this would mean, and distinguishing such a provision from two others with which it might be confused. It should not be confused, first, with crime definitions that make lack of consent an element of the crime: what matters is not whether V consented to what D did (Maria did not consent to Joe's forcible sexual penetration), but V's conception of what the response to that conduct should be. Nor, second, should it be confused with provisions that allow prosecutions to proceed only with the consent of an official, for instance the Attorney General (26): when the Attorney General refuses consent, this does not turn what was otherwise a crime into a non-crime, which is what the proposed provision would do. We can best see the proposed clause as a rule that would partly specify the criteria of a "public" wrong: a wrong is "public"--that is, one that merits a formal response through the criminal justice system--only if that is how the victim sees it. (27)

There would be some obvious practical worries about such a provision. We should worry, for instance, about the pressure that might be put on victims not merely (as can happen now) not to cooperate in the prosecution of what remains a crime, but to transform what would have been a crime into a non-crime by withholding consent from its prosecution. But what, if anything, is wrong with such a provision in principle? It would certainly avoid "subordinating" victims and their own understandings of what was done to them to the judgments of others; so why should we not show them both respect and proper concern, take the wrongs they have suffered seriously as their wrongs, by allowing them this authority over the interpretation of those wrongs?

"The Victim's Reasonable and Sincere Interpretation of the Crime"

Ciocchetti's own solution to the problem of "atypical" victims is not as radical as this; he wants to give them a more limited authority over the interpretation of and response to "their" crimes. His solution gives central place to a feature of our account of punishment--a post-conviction discussion between the offender, the victim (if possible), and a representative of the polity (a probation officer, for instance). However, whereas in our account this discussion takes for granted an account of the crime as a wrong, an account supposedly validated by the offender's trial and conviction, Ciocchetti argues that its primary aim should be "to develop a shared interpretation of the crime and the relationship between the criminal and the victim that the community can accept,"(28) and that the victim's own interpretation of the crime should have a certain authority in that discussion: "the punishing authority should defer, when possible, to any reasonable interpretation of the crime sincerely offered by the victim," and punish according to that interpretation. (29) That authority is limited in two ways. First, the law need not defer to an insincere or unreasonable interpretation (Ciocchetti notes the problems that we will face in trying to decide which interpretations are reasonable). Second, it may override even reasonable and sincere interpretations if accepting them would have unacceptable implications for the institutions that make others' valuable relationships possible, in order to "protect the community from any interpretation of a crime that unduly restricts its values and relations": (30) that is why Ciocchetti thinks that Maria's interpretation of her rape should not finally be allowed authority, since it would have unacceptable implications for the public institution of marriage. (31)

Thus Ciocchetti is himself prepared to see "the punishing authority" or "the community" "subordinate" the victim's interpretation of the crime to its own in some cases--although he can regret the moral cost involved in subordinating a sincere and reasonable interpretation for the sake of the community's "values and relations." Given his account of the proper aims of the post-conviction discussion, it also seems natural to say that, according to his argument, victims have a responsibility--that they owe it to their fellow citizens--to strive for an interpretation of their crime that will be acceptable to the wider community: one that makes sense as an application of the values they supposedly share with their fellow citizens and that pays due attention to the wider implications of the crime. The reason for saying this, rather than merely saying that the polity has the right to override victims' own interpretations under certain conditions, is that the victim is supposed to be participating, as a citizen, in the post-conviction discussion and in the criminal process of which it is part. His fellow citizens can therefore properly ask that he accept, and seek to assist, the legitimate aims of that process. It would after all be very odd to say that the victim's interpretation can be overridden if it is unreasonable, or damaging to the community's institutions and practices, but deny that the victim has a responsibility to ensure that his interpretation is reasonable and is sensitive to those institutions and practices.

In the final section of this paper, we will offer a more ambitious and demanding account of victims' responsibilities, one that does not require the law or the criminal process to accord even the qualified deference to their interpretations that Ciocchetti advocates. Before doing that, however, we want to comment briefly on the idea of "subordination," and on the ways in which the criminal process, even if it must in the end "subordinate" the judgments of some atypical victims, can reduce the extent and severity of that subordination.

Minimizing "Subordination"

To say that a certain process "subordinates" an individual or her views implies that it fails to accord her the respect that is her due. One question then is whether the mere fact that the criminal process generates a judgment on and a response to a crime that the victim does not endorse is enough by itself to warrant the criticism that she or her judgment has been "subordinated." We will argue in the following section that it is not. But before doing that, we should point out two ways in which a liberal criminal law could significantly reduce the extent to which, the occasions on which, and the peremptoriness with which it must "subordinate" atypical victims or their interpretations. One way concerns the law's content, the other concerns the criminal process itself.

As to the law's content, a liberal criminal law must be in several ways limited or modest in its scope. In particular, first, it will criminalize only conduct that violates the core values of the polity--conduct that attacks or threatens important individual rights or interests or social goods and interests that cannot otherwise be adequately protected. (32) This will also increase the chances of reaching general agreement on the law's content and its interpretation. Second, it will strive for offense definitions that are, as far as is practicable, neutral among competing interpretations. Given the inevitable--and welcome--facts of diversity and disagreement, the criminal law will avoid as far as is possible taking an authoritative stand on matters about which there is reasonable disagreement. Such disagreements can concern not only what the law should criminalize, but also why it should criminalize what it does, that is, what the wrong involved in the criminalized conduct is. In the case of rape, for instance, we find competing accounts of the wrong that is the law's target: some highlight the infringement of the victim's autonomy, others the violation of her or his sexual integrity or identity, others the distress and the further psychological damage it is likely to cause, while others might portray rape as a kind of property crime--a violation of the victim's rights over her or his own body. Differences between these interpretations would no doubt be expressed in a discussion between victim, offender, and community representatives, but they do not impinge on the legal definition of rape: whichever of these views we take, we can agree that rape is to be defined as sexual penetration without the victim's consent. (33)

Even a criminal law that is thus limited will not be able to avoid all disagreement, or even all reasonable disagreement: it will have to take an authoritative stand on matters over which citizens, including some victims, disagree. It will declare, as English law now declares, (34) that marriage does not give a man license to force sexual penetration on his wife. It will declare that what matters is whether the person subjected to sexual penetration consents or not, rather than, for instance, whether her husband consents, thus rejecting interpretations of rape as wrongs against the husband's property rights in his wife's body. (35) On both these matters some might still dissent from the law, although we would be disinclined to count such dissent as "reasonable." One might indeed diagnose a vestige of such dissenting views in Maria's response to her rape by Joe, but we take it that the law should firmly declare that it is neither a defense to a charge of rape, nor any mitigation of that crime, that the rapist husband was "provoked" by his wife's failure to sympathize with him. On other matters, however, there is at least more room for reasonable disagreement: for instance, about whether we should still see rape as a distinctive crime, or simply count it as one among other kinds of physical assault; or about whether force or violence, as well as or instead of lack of consent, should be essential to the commission of rape; (36) or about whether the fact of penetration (and if so, of what and with what) is as significant as both English and American law make it. (37) The law will have to take what it claims to be an authoritative stand on such issues, though some victims might disagree with the interpretation it authorizes. The law also (and we will argue that it should) takes a stand on what matters should be treated as criminal--for instance that Joe should be prosecuted for rape even if Maria does not want this. To see how this need not involve "subordination" of a grossly oppressive kind, we must turn to the criminal process.

A legitimate criminal law--one that flows from legitimate, respect-worthy processes of legislation and preliminary interpretation--can claim the authority to define a category of "public" wrongs. We will argue in the following section that it should not then allow victims to redefine the wrongs they have suffered (as distinct from leaving them space, within the austere and limited definitions that it provides, to enrich, gloss, or fill out those definitions as they see fit). (38) But this is not to say that their dissenting interpretations should just be ignored or dismissed out of hand.

First, however much we might wish to limit prosecutorial discretion in deciding which cases to bring to trial (and what charges to bring), we cannot (and should not want to) eliminate all such discretion. Among the factors that prosecutors should consider are the prospect of willing cooperation from the victim (as possibly a key witness), and the suffering that the case might inflict on the victim. There will surely then be cases (although perhaps not involving the most serious kinds of wrong) that the prosecutor does not pursue because the victim is "atypical." This is not a matter of supporting or validating the victim's interpretation; it is just one way in which it might become clear that it is not on balance worth pursuing the case. (There might be room here for a modest version of the suggestion noted above: that a wrong should not be pursued as a "public" wrong if the victim does not wish it to be thus pursued.) For reasons that we will discuss later, this is not a plausible provision for serious crimes. However, there are various kinds of case that can be seen as lying on the border between what must be treated as a criminal wrong and what is better treated as a conflict between parties that they should be helped to resolve for themselves. Some relatively minor assaults, for instance, that flow from an argument between acquaintances, or some relatively minor cases of criminal damage committed during an ongoing dispute between neighbors, might fall into this category: even if there is no formal provision allowing the victim to bar prosecution, we might think that a reasonable police officer or prosecutor would use her discretion to allow the victim (when there is a clear victim) this much authority. (39)

Second, attention can and should still be paid to the atypical victim's opinions. Given the division of legislative and adjudicative labor that we noted above, it will not be open to the victim to argue that her interpretation of the crime should be accepted: the legal definition of the crime must be assumed as not being open for change or renegotiation in this context. But it should be possible at various stages in the process for representatives of the law to explain to the atypical victim both the grounds for the authorized interpretation of the crime and why this is not a forum in which that interpretation can be challenged. Her interpretation is still rejected, but it is not ignored or treated with contempt.

Third, though this is another matter to be discussed in more detail in the next section, the law need not require, let alone force, the atypical victim to play any role in the process that would require him to accept, or to pretend to accept, the interpretation that he rejects. While he may have to recognize that "the law" will dispose of "his" crime in a way that he does not accept, he need not make himself a party to that disposal.

Despite these points, however, there will still be cases in which the law and the criminal process "subordinate" the judgment of an atypical victim in the sense that "her" offender will be prosecuted, convicted, and punished on the basis of a conception of the criminal wrong that (according to the law) he committed against her, but that she herself rejects--this is true both in our account and, as we saw in the previous section, in Ciocchetti's account. But should it worry us? Should we see it as, at best, a painful necessity for the sake of the wider community and the institutions on which its members' relationships depend--a necessity that still wrongs the victim by failing to "express[] our support for [her] interpretation" or "support [her] as an autonomous being capable of acting according to her own understanding of the situation"? (40) This is the basic issue to which we now turn.

Whose Voice, Whose Judgment?

A civil case is listed as "Smith v. Jones": a plaintiff, Smith, brings a case against Jones, a defendant, complaining that Jones has wrongfully harmed her; if the court finds for Smith, it upholds that complaint, thus validating Smith's account of what happened. It is up to Smith whether to sue Jones or not and, if she does sue him, what to sue him for. A criminal case, by contrast, will be listed as "People v. Jones" or "State v. Jones" or "Commonwealth v. Jones": by a title, that is, that portrays the complainant not as an individual but as the polity. (41) In a polity that aspires to be democratic, this means that the complainant is not just the individual victim (if there is one), not just a singular "I," but the polity, a collective "we." We complain that Jones has wronged Smith in a way that properly concerns us as a violation of the values that go to define us as a political community. Upon proof of his guilt in a fair trial (one that summons Jones to answer the charge, and gives him a fair hearing), that complaint becomes an authoritative condemnation of Jones's conduct as a wrong that was in a certain sense public. A trial thus calls a defendant to answer not just to an alleged individual victim but also to the whole polity for the wrong that he allegedly committed; and it constitutes, in part, an expression, articulation, and application of what are purported to be the shared, "public" values of the polity--an articulation and application that involves, of course, their interpretation in relation to the particular series of events that constituted the crime. (42)

In a liberal polity, as we have emphasized, those values do not seek to govern all aspects of the citizens' lives; they rather specify the quite limited normative terms of our cohabitation as citizens. As such, however, they both protect and bind us as citizens--or, more precisely, that is what must be claimed for them when they are portrayed as the polity's public values. They protect us, most obviously, against being victimized by criminal wrongs, and bind us most obviously in requiring us to refrain from committing such wrongs; but both protection and binding extend further than that. They protect us not only as actual or potential victims, but also as actual or potential offenders: we can be assured that we will be called to public account, through a coercive and condemnatory criminal process, only for the wrongs defined by the criminal law, as authoritatively interpreted by the courts. We may have to answer for other aspects of our lives and characters, for other wrongs or failures, in other fora, to other communities to which we belong, but it is only for such publicly defined wrongs that the criminal law can call us to account. (43) They bind us not only as actual or potential offenders, but also as witnesses and as victims: they demand our allegiance and respect, and that demand goes beyond the demand that we not directly violate them by committing crimes to include a demand that we play our part in their application and enforcement.

What is that part? The criminal law, as we have portrayed it, defines certain types of conduct as public wrongs that warrant a condemnatory, punitive, public response. It follows from this that, while the actualization of that response is largely the responsibility of various kinds of officials (police, prosecutors, judiciary, penal officers), citizens also have a responsibility to assist that response: to report crimes, to assist their investigation, to serve as jurors, (44) to give evidence in court. That responsibility will sometimes, most obviously when it involves jury service, include an interpretative responsibility: citizens, as jurors, often have to share in the interpretation of the law in applying it to the particular case. (45) A jury might have to decide, for instance, whether the defendant's disregard of a "substantial and unjustifiable risk" involved "a gross deviation from the standard of conduct that a law-abiding person would observe," in order to decide whether she acted recklessly; (46) or whether the defendant's appropriation of another's property was "dishonest," in order to decide whether he is guilty of theft. (47) It is clear that such determinations call for a normative judgment by the jury; and it should be clear that in reaching that judgment individual jurors should aim to think and judge, not each for herself as an individual, but collectively as a "we" whose responsibility it is to determine the meaning of the polity's public values as applied to the instant case. (48)

Now there is ample room for disagreement both about how extensive and stringent such responsibilities are, and about what force they should have. Just what responsibilities do we have, for instance, to report crimes or to assist in their investigation? Which of our civic or moral responsibilities to assist the criminal law should be made legal responsibilities, so that we will ourselves be liable to punishment should we fail to discharge them? We must also bear in mind, of course, that such responsibilities could be unqualifiedly asserted only in polities whose criminal laws and procedures were wholly legitimate. To the extent that the criminal law is radically imperfect in its content, in its procedures, in the claim it has on the allegiance and obedience of all citizens, those citizens' responsibilities become more complex and more qualified. Nonetheless, to the extent that a liberal polity's criminal law can properly claim to speak in our voice, as citizens who share in the values it embodies, we must recognize that we have responsibilities to support and assist it that go beyond the responsibility not to commit what it defines as crimes.

Now victims are citizens, who therefore share in the responsibilities that citizens have; (49) to deny that, to suggest that they are exempt from such responsibilities, would be to patronize them as merely passive victims instead of respecting them as active citizens. They therefore have responsibilities to report the crimes that they suffer, to assist in their investigation, and to give evidence in court. For obvious reasons they do not have a responsibility to serve as jurors in "their" cases, but why should we not say that they have a responsibility to take part in the kind of post-conviction discussion with the offender that we, and Ciocchetti, favor as a central feature of a communicative criminal process? This will strike many as too demanding, and we will return to this point shortly. But a more modest claim, which is sufficient as a response to Ciocchetti, is that if victims choose to take part in such a discussion, then they have a responsibility, similar to that of jurors, to try to articulate and communicate, not their own individual and possibly idiosyncratic interpretation of the crime, but a suitable collective interpretation that could count as "ours." For they are now engaged in a public, not a private, process, which addresses the wrong as a public wrong committed by one citizen against another: despite whatever values, or interpretations of values, they might argue in other fora, including any private discussions that they might have with the offender, (50) in this forum they must speak as citizens, in terms both of the values that define their polity and of interpretations of those values that can count as the polity's interpretations of them. This is not the forum in which they should assert or argue their own "atypical" or dissenting interpretations of those values (although there should be other public fora in which such discussions can take place), for they must strive to speak not merely as an "I," but as "we." That is essential to the nature of the criminal law as, at least in aspiration, a common law that expresses and articulates the polity's public values.

The modest claim made in the previous paragraph about the responsibilities victims have, if they choose to take part in this kind of discussion, is too modest: we should also recognize that victims, as citizens, have a responsibility to take part in such a discussion. One basis for this claim would be that if such discussions have so important a role to play in the criminal process, then citizens have a general responsibility to assist them, including a responsibility to take part when it is appropriate for them to do so. Just as the general responsibility to give evidence in court will usually imply a responsibility on the victim to give evidence, since his evidence will usually be relevant, so the general responsibility to assist such post-conviction discussions will usually imply a responsibility on the victim to take part, since he will usually be well-placed to discuss the wrong and its impact. But another, we think more appropriate, basis is that victims have a special responsibility to assist in the law's response to "their" crimes: a responsibility not just as citizens who happen to be well-placed to discharge some of the general duties of citizenship, but precisely as victims. We cannot develop this claim in detail here, but part of its rationale is that if the polity is to communicate effectively with the offender--through the criminal process of trial and punishment--about the wrong that she has committed, it is important to confront her with an authentic account of that wrong; such an account should if possible be expressed in the first person, by the victim. The victim's task--admittedly an onerous task--would thus be to speak both in the first-person singular, of what was done to me, and in the first-person plural, of the way in which our values were violated. (51)

The more modest claim made above, that if victims take part in the criminal process they must speak as citizens in terms of whatever interpretations of the polity's values can count as our interpretations, is, as we have noted, a sufficient response to Ciocchetti's argument that the law should normally defer to the atypical victim's reasonable and sincere interpretation. However, we should say a bit more about the implications of the more ambitious claim made in the previous paragraph, since Ciocchetti's discussion of atypical victims does have an important bearing here.

To talk, as we have talked, of victims' responsibilities is to talk of their civic or moral responsibilities (and of the responsibilities that they have or would have under a legitimate system of law). There is, as we noted, room for disagreement about the extent to which the civic responsibilities of citizens in general should be turned into legal responsibilities, and there is even more room for doubt about this in the case of victims. Some reasons for this are obvious enough: given what is often actually involved in appearing as a prosecution witness in court, given what might well be involved in facing the person who wronged one, should we really impose a legal requirement on victims to do such things on pain of criminal conviction and punishment if they do not? The in-principle force of these reasons is, however, reduced when we remember that the civic or moral responsibilities of victims depend (and that any legal responsibilities imposed on them should therefore depend) on the character and legitimacy of the existing criminal law. We could plausibly argue that before we impose such stringent legal responsibilities on victims, we should make sure that our criminal process is such that their discharge would not be more painful or traumatic than it has of its nature to be. But a further, principled reason against transforming such civic or moral responsibilities into legal duties also emerges from Ciocchetti's discussion.

Part of the significance of the victim's role in the criminal process, we suggested, lies in the fact that he can speak in the first-person singular as well as in the first-person plural; he can bear witness to the nature and implications of the wrong done to him. But this presents a problem in the case of an "atypical" or dissenting victim, who takes a sincere and reasonable view of the crime that differs from the authoritative view expressed by the law and the court, and who is not persuaded of that authoritative view. She cannot, we have argued, reasonably expect the law or the court to accept her view, since they must speak to the offender in terms of what "we" believe and judge. But can we then reasonably demand of her that she takes part in a post-conviction discussion with the offender, and that she expresses the law's authoritative view rather than her own? That would seem wrong on two related counts: first, it would require her to be untrue to herself in an important matter implicating her own moral values; and second, it would utterly undermine the value of her first-person testimony, since that testimony would no longer be genuinely first-person. We might rightly think that she ought to accept the law's authoritative interpretation of the wrong done to her, as a public wrong, but we surely should not require her to express it if she does not accept it.

Perhaps even this reason does not argue against imposing a general legal duty on victims to be prepared (given the right kind of legal process, in the right kind of context) to play such a part in responding to the wrongs done to them, for we could meet the worry raised in the previous paragraph by building a suitable "conscience" clause into any such legal duty. The law could, that is, allow a victim to refuse to give evidence or to take part in a post-conviction discussion should she have a conscientious objection to doing so. (52) There would clearly be difficult problems in specifying and applying such a clause, but it seems in principle the best way to do justice both to what are, we have argued, the political community's legitimate demands on its citizens, including victims, to play their proper part in responding to public wrongs; and to what are, as Ciocchetti clearly shows, the moral rights of victims.

NOTES

(1) Christopher Ciocchetti, "Punishment, Reintegration, and Atypical Victims," in this issue, 14-27. As he notes, while we co-authored the article that he discusses ("Criminalization and Sharing Wrongs," Canadian Journal of Law & Jurisprudence 11 (1998): 7-22), Duff is sole author of the book in which the communicative theory of punishment is fully developed (Punishment, Communication, and Community, New York: Oxford University Press, 2001; Marshall is also sole author of another paper on which we will be drawing ("Victims of Crime: Their Station and its Duties," Critical Review of International Social and Political Philosophy 7 (2004): 104-17. We do not agree on everything (nor even on every issue to do with victims and punishment), but we agree on enough to be able to speak with one voice, as "we," in this paper.

(2) Contrast Andrew von Hirsch, Censure and Sanctions, New York: Oxford University Press, 1993, for an account of punishment as censure that gives it a much more modest communicative ambition.

(3) This account will of course need to be extended to deal with crimes committed against or by temporary visitors to a community.

(4) See Punishment, Communication, and Community, 96-99, 15863; Michael Cavadino & James Dignan, "Reparation, Retribution and Rights," in Principled Sentencing, ed. Andrew von Hirsch & Andrew Ashworth 2nd ed., Oxford: Hart Publishing, 1998, 348.

(5) See Punishment, Communication, and Community, 121-25.

(6) [1994] 1 AC 212; appealed (unsuccessfully) as Laskey et al. v UK (1997) 24 EHRR 39.

(7) See <http://www.sodomylaws.org/usa/virginia/ vanews123.htm>; Washington Post, February 26, 2004, B.02, B.08; <http://writ.news.findlaw.com/grossman/20031216. html>, for reports of a 2003 case in Virginia in which a man was fined $250 for adultery (an offense under Virginian law). He mounted an appeal against his conviction on the grounds that, given the Supreme Court's decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), that the criminalization of consensual sodomy between adults in private was unconstitutional, the criminalization of adultery was also unconstitutional; but he later abandoned the appeal.

(8) See Nils Christie, "Conflicts as Property," British Journal of Criminology 17 (1977): 1-15.

(9) See Louk Hulsman, "The Abolitionist Case: Alternative Crime Policies," Israel Law Review 25 (1991): 681-709, at 697-703, on taking "collective remedial action" to a burglary.

(10) It might be argued that the law's deterrent efficacy in protecting potential victims against what they would count as public wrongs would be impaired if dissenting victims had the right to prevent prosecution. But if there were enough dissenting victims to make such an argument empirically plausible, there would also be room for doubt about the legitimacy of the law's definition of the crime.

(11) For examples of such a view, and brief discussion, see "Criminalization and Sharing Wrongs," 11-12.

(12) Christie, "Conflicts as Property."

(13) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 17.

(14) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.

(15) This is a familiar worry both about restorative justice processes (see e.g. Paul Robinson, "The Virtues of Restorative Processes, the Vices of 'Restorative Justice,'" Utah Law Review (2003): 375-88, at 380-84) and about the use of Victim Impact Statements or Victim Opinion Statements in sentencing in criminal courts (see Andrew Sanders, Taking Account of Victims in the Criminal Justice System: A Review of the Literature, Central Research Unit Report, Edinburgh: Scottish Office, 1999).

(16) See Punishment, Communication, and Community, ch. 5.

(17) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 21.

(18) See Punishment, Communication, and Community, ch. 2.

(19) John Stuart Mill, On Liberty (1859).

(20) It is perhaps worth adding that communities, especially political communities, can exist as matters of aspiration rather than of achieved fact: that is to say, what constitutes the community as a community might not be the fact that its members generally share a set of substantive values or the mutual concern that community requires, so much as the fact that enough of them aspire to such mutuality of values and concern. See further Punishment, Communication, and Community, 46-48, 193-97.

(21) Bear in mind that we are still engaged in ideal theory: the fact that our current laws are not (if they are not, as seems all too plausible) the outcome of such a legitimate process casts doubt not on our account, but on their authority. The division of labor between legislation and adjudication on which the claims that we here attribute to the law depends is not an essential feature of every legal system, but it is a likely, and defensible, feature of the law of any complex society (see Punishment, Communication, and Community, 64-65, 121-22). Some argue that the dissenting or defiant offender does pose a serious theoretical problem for our account, but we think that such objections can be adequately met: see Punishment, Communication, and Community 121-25, and further references there.

(22) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 18.

(23) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 20.

(24) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.

(25) Special provision would of course be needed for murder and other crimes whose victims are in no position to give or withhold consent; perhaps the rule would be that there was no crime if the putative victim (freely and voluntarily) bars prosecution.

(26) See, e.g., Public Order Act 1986, s. 27; and more generally, John Sprack, Emmins on Criminal Procedure, 9th ed., New York: Oxford University Press, 2002, 74-75.

(27) The provision would not, it should be noted, be that a wrong counts as a crime "if [and only if] that is how the victim sees it": the victim would have a veto, but would not be able to turn what was otherwise not a crime into a criminal wrong by demanding that it be prosecuted.

(28) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 22.

(29) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 23.

(30) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 22.

(31) There is room for doubt about this. If the outcome of the discussion was supposed to be an authoritative declaration of the public meaning of the crime, it would have this kind of implication for the public meaning of the institution of marriage; but according to Ciocchetti's own account, it is not clear that that is the outcome, rather than a public recognition--which need not imply acceptance--of the victim's view. I can "defer" to another's interpretation either by adopting it myself as right; or by recognizing that, right or wrong, it is for him to settle the interpretation of that particular action in that context.

(32) See Punishment, Communication, and Community, 66-68; "Criminalization and Sharing Wrongs," 18-21. We might say that a liberal polity must genuinely use the criminal law as a "last resort," but see Douglas Husak, "The Criminal Law as a Last Resort," Oxford Journal of Legal Studies 24 (2004): 207-35, on uncertainties about both the meaning and the significance of the "last resort" principle.

(33) See Sexual Offences Act 2003, s. 1(1).

(34) See R. [1994] 4 All ER 481; Sexual Offences Act 2003, s. 1(1).

(35) Compare the notorious cases of DPP v. Morgan [1976[ AC 182, and Cogan and Leak [1976] QB 217, which held that even an unreasonable belief in the victim's consent, based on her husband's assurance that she consented, must acquit a man of rape (the courts upheld the convictions in Morgan, since the defendants' claims to have acted on that belief were manifestly false; but Mr. Cogan was acquitted, though Mr. Leak, the husband, was still convicted for aiding and abetting rape). It is hard not to see in the defendants' claims in these cases traces of the idea that a husband can consent for his wife.

(36) As was true in Scots law until Lord Advocate's Reference (No. 1 of 2001) 2002 SLT 466; see also Patricia Smith, "Social Revolution and the Persistence of Rape," and Keith Burgess-Jackson, "A Theory of Rape," both in A Most Detestable Crime: New Philosophical Essays on Rape, ed. Keith Burgess-Jackson, New York: Oxford University Press, 1999.

(37) Sexual Offences Act 2003, s. 1(1); Model Penal Code, ss. 213.0, 213.1. But the Canadian Criminal Code, ss. 271-3, defines kinds and degrees of "sexual assault" without reference to penetration.

(38) In leaving this space, the law does not of course sanction a victim's further interpretation as the definition of the wrong; see supra, note 31.

(39) See Punishment, Communication, and Community, 92-3.

(40) Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.

(41) See "Victims of Crime," 106-12, and "Criminalization and Sharing Wrongs," 15-16, where we also comment briefly on the English style of "Regina v. Jones."

(42) We will not repeat here the cautionary qualifications that any reference to a polity's shared values requires (see supra, text at notes 20-21)--partly because we and Ciocchetti agree that a criminal law depends on the possibility of appealing to some set of values that can count as those of the community or polity.

(43) This is one of the worrying aspects of "restorative justice" procedures, as portrayed by some advocates, as alternatives to the criminal process: that whereas a criminal process must attend only to the crime charged and matters directly related to it, the kind of open discussion among "offender," "victim," and others that is favored by some restorative theorists can expand to include every kind of complaint that they have against each other.

(44) For a discussion of the duty to do jury service that is close in spirit to our argument here, see Sherman Clark, "The Courage of Our Convictions," Michigan Law Review 97 (1998-1999): 2381-2447.

(45) For an interestingly ambitious, though we think over-ambitious, account of the jury's role in interpreting and developing the law, see Robert Burns, A Theory of the Trial, Princeton, NJ: Princeton University Press, 1999.

(46) See Model Penal Code s. 2.02(2)(c). In English law, the comparable question would be "whether the risk was one which a reasonable and prudent man might have taken": see John Smith, Smith & Hogan Criminal Law, 10th ed., London: LexisNexis, 2002, 77.

(47) Theft Act 1968, s. 1(1); see Smith, Smith & Hogan Criminal Law, 548-53.

(48) "In determining whether ... the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest": Ghosh [1982] QB 1053, at 1064.

(49) See "Victims of Crime," especially at 113-16.

(50) By "private," here and elsewhere, we do not mean what takes place in private rather than in public; we mean what concerns them as individuals, or as participants in a relationship more intimate than that of citizenship (a friendship or a marriage, for instance).

(51) See "Victims of Crime," especially at 114-15.

(52) Compare, e.g., the provisions for conscientious refusal by medical personnel to take part in abortions, in s. 4 of the Abortion Act 1967.

Antony Duff and Sandra Marshall teach in the Department of Philosophy, University of Stirling. Antony Duff is grateful to the Leverhulme Trust for the award of a Research Fellowship, during the course of which this paper was written.
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Author:Duff, R.A.; Marshall, S.E.
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Date:Jun 22, 2004
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