Tony Robertson and victim invisibility in our criminal law

I spent a little time last night reading through the transcript and decision of Tony Robertson’s 2006 trial for charges including abduction for the purpose of sexual connection. As a way to feel good about the human condition, I don’t recommend it. The unravelling toilet roll of Robertson’s lies is as awful as the eventual uncovering of what actually happened on the two days in December 2005 which culminated in him abducting a five-year old for obviously sexual purposes. Only by sheer luck and great intuitive policing was this little girl saved from a fate more serious than she had already endured. The man who rescued her quoted her as saying, once she was safe, “That man hurt my heart”. I can imagine my own five-year old girl saying exactly that kind of extraordinarily insightful yet breathtakingly simple thing in such a situation. This reading was all the more depressing, knowing how many years went by as Robertson continued to deny his culpability and shift blame on to any person within handy reach, and, ultimately, what he did to Blessie Gotingco.

Mentioning Blessie’s name reminds me of how almost impossible it is to involve the idea of the victim in the discussion of serious criminal liability as a fully realised person. I never knew Mrs Gotingco and somehow usual statements such as ‘my heart goes out to the family’ seem so inadequate. Nevertheless, ka nui te mihi ki a rātou o tēnei whānau kua pāngia e te pōautinitini.

Sometimes writers and programme makers can flesh out the victims of serious crime, allowing these people to at least have some degree of identity and personality that mere case reports can never achieve. But even so, except for the family, victims become easily simplified in the public eye; a kind of full stop in the account of somebody else’s life.

Garth McVicar was quite right when he said on breakfast TV on Wednesday morning that criminal justice system is criminal-centred. Those who suffer crime are not the system’s core concern, those individuals who create it are.

In saying that, victim consciousness has certainly increased within our criminal justice system. Mechanisms such as victim impact statements and victim notification processes under the Victims Rights Act 2002 are two examples that seek to enable victims to be factored into the operation of the system. Restorative justice has also developed greatly since the mid 1990s as a means of enabling victims to be involved in a face-to-face meeting with offenders as part of a process to somehow ameliorate the harm suffered from criminal offending, where appropriate. For very serous offending restorative justice will not often be preferred by victims. Nevertheless very recent amendments to the Sentencing Act 2002 have centralised restorative justice, by making it an ‘opt out’ process rather than ‘opt in’, and accompanied by an increased budget for restorative justice around the country.

There is great hope that restorative justice can lead to lower recidivism and better experiences for victims, although extensive evaluation of the success of restorative justice programmes in New Zealand is somewhat limited.

But none of these things change the fact that criminal liability in our system inevitably focuses on the actions and thoughts of the individual or individuals who cause harm to others. The ‘others’ in our system only figure in order to determine the nature of the harm they suffered.

I am always reminded of this fact when lecturing classes on criminal law. I did a lecture on culpable homicide the other day, talking about a case where a man had stabbed his pregnant partner and the unborn baby died as a result. I was using this case to illustrate the application of s159 of the Crimes Act 1961 (whereby a child can only be considered a human being once born, and the term ‘homicide’ cannot legally be applied to an unborn child killed in the womb).

Every class illustration like that is another moment in the parade of victims that underpin the development of our criminal law. The raped woman, the neglected child, the forgotten elderly mother, the mutilated man, the hurt, the wronged, the deceived, the killed, the hidden, the taken. In our general legal system criminal law students, teachers and practitioners are expected to wrench their analysis away from their feelings of sympathy in order to  look dispassionately at questions of criminal liability, or at matters of proportionate sentencing (for example). That’s a necessary legal skill, and we teach it with gusto from the beginning of a legal career: to separate ourselves from the legal problem. We are trained to maintain something of an operative fiction that we can truly separate our emotions, our prejudices and our own histories from a legal problem, even as it is the messiness and flawed, even corrupt humanity that creates that legal problem in the first place. And of course it is naive and ridiculous to somehow assume that the methods we teach at law-school are merely rational and effective and thus value-neutral. I am yet to come across any process or theory that is value-neutral.

Quite literally, the approach is necessary because this is the way the system is wired. Criminal legal liability in the Western legal system requires an individual or individuals to demonstrate some degree of fault that ties that very person to that very harm prohibited by the wording of the offence. (There is no crime in NZ except those written in statute). Just causing a serious harm to another person is not enough, even though the harm caused is what first appalls us in news reports, and in our general understanding of the world. Even killing someone may not be enough for one person to be punished.

For the offences that cause serious harm we generally need to prove the person charged DID the deed and that this person MEANT to do do it, or had a pretty clear understanding she could have caused the harm and barreled on regardless. And sometimes we hold people responsible for actions and harms they caused because they failed to live up to some kind of reasonable standard of behaviour.  None of this analysis pays any attention to the person or persons harmed. The victim exists only as proof that something bad has happened. The final link at the end of the causal chain.

This effective victim exclusion was not inevitable, but has developed after centuries of legal development. Where once crime had  been a matter of private law (of the ‘welfare of individuals’, in Roman law, for example) between the offender and the victim, only mediated by the State/courts, modern criminal law as we now understand it eventually shifted into the public realm entirely.

At that point crime ceased to be a private matter; it became public, a matter of concern primarily of the State. Crimes are committed against the State; and only the State, not wronged families, have the right to punish crimes. The victim and the victim’s family were effectively and progressively excluded from the process of determining liability and punishment.  As Markus Dubber identifies:

In this view of criminal law, the state is the ultimate victim of crime; the most serious— purest—crimes are offenses against the state; all other offenses are watered down versions (splinters..) of the ultimate offense of interfering with the authority of the state, of acting beyond one’s inferior status as a member of the state household; these inferior offenses are indirect state offenses insofar as they compromise the state’s ability to govern, for instance, by depriving the state of a resource (human or otherwise)18 or through disobedience of a state command…

Other legal systems even today don’t necessarily follow this template, and criminal law can still be considered a private concern, as is the case in French criminal law, for example.

However it is necessary to perhaps look further afield for examples of legal systems whereby the victims, the victims’ families as well as the families of the offender can remain connected in determining criminal responsibility and punishment. For example the practice of Qisas in Iranian law involved, for certain offences, a retributive but strictly proportional punishment based upon the personal harm caused to the victim. This is the kind of punishment known as ‘an eye for an eye’. The victim’s family can, in certain cases exhibit mercy and require monetary compensation instead.

There must be less harmful ways of enabling victims in our legal system to have a greater centrality, and we don’t have to do what we have always done. How we can achieve that requires imagination of what a just victim-centred system might look like that avoids the risk of victim-focused retributive barbarity on the one hand and victim-exclusion on the other. Can it be possible to explore ideas of collective, rather than strictly individual criminal responsibility? Restorative justice is the best shot we have come up with so far. What else can we do?