March 14, 2015

Taking victims seriously

By Russell Marks
Taking victims seriously
An extract from ‘Crime and Punishment: Offenders and victims in a broken justice system’

“How would you like it if you were the victim of the crime you committed?” is a question magistrates often ask offenders during the sentencing process. Sometimes a magistrate’s serve of enforced empathy is returned with a dose of reality. A 15-year-old boy was in court for a theft charge. “How would you have felt had someone stolen your bike?” asked the magistrate. Perhaps inevitably, the boy said, “It’s pretty bad; it’s happened to me three times.” The magistrate recovered. “Yes, well, then you’d understand how inconvenient it is.”

It’s a sad fact that many of the offenders in magistrates courts have been victims themselves. In 2007 Queensland’s Crime and Misconduct Commission (which has since changed its name) produced a report that looked at the kinds of lives offenders had led prior to coming into contact with the criminal justice system. It limited the scope of its research to “non-custodial offenders” – that is, people who had been found guilty of crimes but had not been sent to prison. 

It found, overwhelmingly, that “respondents had experienced high rates of family trauma and turmoil including chaotic family experiences, parental alcohol and drug abuse” and domestic violence while growing up. Two thirds of all respondents had endured childhoods characterised by what the commission identified as “extreme neglect”. These offenders suffered child sexual abuse at rates much higher than average. In other words, these offenders were themselves victims of criminal behaviour – often sustained criminal behaviour – well before they began committing crimes themselves. As they moved into adolescence, they tended to drop out of school, use illicit drugs and engage with the criminal justice system at much higher rates than members of the wider community. From there, they would almost have been exceptional had they not made the transition to adult criminality.

What the Crime and Misconduct Commission did was conceptually quite simple: it merely filled in the gap, or the gulf, which exists in the prevailing Manichean understanding of criminal-versus-victim. Its inescapable focus on the extent to which offenders had been maltreated as children led it, almost inevitably, into a discussion about how much overlap there is between child abuse and neglect on the one hand and the “markers of disadvantage” on the other. The path to adult criminality for the commission’s respondents meandered inexorably through various such markers.

Being seriously maltreated as a child, the commission uncontroversially found, means you’re more likely to suffer serious mental health problems (such as post-traumatic stress and antisocial disorders), poor social functioning (in areas such as moral judgment and risk-taking), unintended and early pregnancy (as a result of risky and precocious sexual practices), low cognitive functioning (such as learning difficulties), physical ill-health and substance abuse. These “markers of disadvantage” also have a high correlation with criminality, as we’ve seen. And it shouldn’t come as much of a surprise by now to learn that “people subjected to maltreatment as children have a substantially increased risk of being re-victimised as adults – both sexually and physically, by intimates and by strangers”. Some people drag their victimhood around with them like the ball on the end of a chain – even when they’re also offending.

Probably 19 in every 20 people I represented while I worked at the Victorian Aboriginal Legal Service lived overwhelming disadvantages – poverty, deprivation, social exclusion, dysfunction (and it’s highly likely the other one in 20 simply didn’t tell me about it). Nearly all of them had been victims of significant crimes themselves.

“Phil” was a 55-year-old man who’d been subjected to a sustained campaign of sexual abuse as a child in a home run by a Christian group. When I last spoke with him, he was considering whether to give evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse. He’d never made a formal complaint. As he saw it, that abuse, and the untreated trauma he suffered as a result, had ruined his life and the lives of those around him. He’d spent well over twenty years in prisons as an adult and his children were now addicted to drugs, including alcohol and methamphetamines. He told me that sometimes things got “too much”, and before he knew it, he’d been on a three-day bender with cocktails of alcohol, marijuana and heroin. This was almost certainly a symptom of severe, untreated post-traumatic stress disorder, at least according to one psychologist who had assessed him.

When I met him, Phil had placed an innocent bystander at serious risk of injury or death because of his actions during one of his benders, and been charged with an appropriate offence. Phil was genuinely remorseful, as he no doubt had been on other occasions he’d broken the law. Indeed, he’d made an immediate offer to recompense the victim for monetary damages – no flippant offer, given the parlous state of his own finances. When I was taking his instructions, he cast his eyes downward, and said over and over again that he didn’t care what happened to him as long as the victim was okay. At one point he looked at me and asked, “How do I stop hurting people, man?”


Of course, the fact that many victims come from the same communities as the offenders, and that many offenders have also been victims, doesn’t invalidate the argument that victims need more attention from the justice system. If offenders often get a crummy deal from the courts – and the thrust of my argument for the first three chapters of this book is that many do – then the same can be said of victims.

Just as the classical model has been dragged into a more enlightened acceptance of causal factors underpinning much criminal offending, it’s also been forced, of late, to accommodate victims’ wishes for greater involvement. A victims’ rights movement emerged during the 1970s, first in the United States and soon also in Australia, which agitated for what it saw as the restoration of the “rights” that victims had before the classical model redefined crimes as offences against the state. Those included the rights to restitution and to be included in criminal justice proceedings. All Australian states now have a crime victims compensation framework, so at least James would be able to apply for money to pay for his dental work and his therapy. And all states would now allow James to provide a “victim impact statement” to be read, either by himself or a prosecutor during the sentencing hearing, or by the magistrate during their deliberations.

Unfortunately, the practical effect of victim impact statements is generally to increase the tariff imposed on the offender during sentencing – and for that reason, it’s in a defendant’s interests for her or his lawyer to try to keep the statement out, or at least significantly redact it. I say “unfortunately”, but harsher sentences are, indeed, what many victims’ rights groups say they want.

Rob Hulls, the former Victorian attorney-general, laments the fact that our public conversation about offenders and victims has become so polarised. “If you’re sympathetic to victims,” he told me, “you’re expected to also be in favour of tougher penalties, longer sentences and more prisons.” It’s an understandable reaction, of course, especially from victims but also from anybody who sympathises with them. For many, perhaps most of us, there’s a kind of pleasure – albeit a relatively insignificant one, when the crime is severe – in exacting cruelty on those who have beaten us or stolen from us.

The tragedy of many victims’ rights groups is not limited to what is often the catastrophic loss at the heart of their origins. Noel and Bev McNamara were both deservedly made Companions to the Order of Australia in 2004 for their decade-long service to victims in the form of arranging support and counselling. Their service continues. It was the murder of their eldest daughter, Tracey, and their subsequent “disheartening” experience of the justice system which propelled them to form the Crime Victims Support Association in Victoria. But as well as the remarkable work they do with victims of crime, they also campaign strongly for longer sentences, and these contain tragedies of their own – for offenders but also, ultimately, for their future victims when those imprisoned are eventually released.

The tragedy is that no matter how harsh the sentences are, Noel and Bev McNamara and countless other victims of irreversible crimes will never get what they really desire. And victims of crime, and members of the general public who empathise and identify with them, don’t derive any substantive benefit when offenders go to prison beyond what is often an all-too-fleeting sense of something we call justice, but which is more likely to be retribution.

I’m not suggesting for a minute that the experience of grief – its feelings of shock, loss, fear and rage – which often accompanies victimhood is unnatural, or in any moral or psychological sense wrong. Even less am I suggesting that grief, or even the desire for retribution, needs to be suppressed. What I am suggesting is that we should not build public policy on the anger of victims and the moral outrage of those who are positioned as supporters of victims’ rights.

If our objective is crime reduction, then angry legislation built on outrage is a bad idea. It leads to longer sentences, more prisons and no less crime. 

Edited extract from Crime and Punishment: Offenders and victims in a broken justice system, by Russell Marks, published by Redback.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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