Controversies in Victimology

Citation preview

2nd Edition

Controversies in

Victimology

Laura J. Moriarty

Virginia Commonwealth University

Controversies in Victimology, Second Edition Copyright © 2003, 2008 Matthew Bender & Company, Inc., a member of the LexisNexis Group Newark, NJ ISBN: 978-1-59345-5682 Phone 877-374-2919 Web Site www.lexisnexis.com/anderson/criminaljustice 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. LexisNexis and the Knowledge Burst logo are trademarks of Reed Elsevier Properties, Inc. Anderson Publishing is a registered trademark of Anderson Publishing, a member of the LexisNexis Group.

Controversies in Victimology/Laura J. Moriarty p. cm. Includes bibliographical references and index. ISBN: 978-1-59345-5682 (softbound) Cover design by Tin Box Studio, Inc./Cincinnati, OH

EDITOR ACQUISITIONS EDITOR

Janice Eccleston Michael C. Braswell

Dedication To June A. Hetzel and John M. Moriarty “May You Live As Long As You Want, And Never Want As Long As You Live” —An Irish Blessing

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Acknowledgments I wish to thank all the contributors to this reader. I hope it has been a pleasant experience for each of you. What started out as an idea on a long train ride has finally come to fruition. I appreciate each of you working with me on this project and also for participating in the double roundtable session at ACJS in New Orleans where we first presented the information contained in this reader. This product is indeed a labor of love. A special thanks to Vic Kappeler and Mickey Braswell for supporting this endeavor. Vic provided excellent direction in the conceptualization of this project. Mickey always has an encouraging smile and kind words to say when I see him. Such support is very much appreciated. Thanks also to my university, Virginia Commonwealth University, and my colleagues in the Dean’s Office. Many times I worked on this book – pushing my other responsibilities into another pile. I know you all notice but no one said anything. Everyone is so encouraging and supportive on my desire to stay current in the field. I appreciate the support and promise to make up for slacking off in the future. Finally, I thank my family and friends. Just being able to discuss the contents of this book with others – not necessarily in the field – helped tremendously.

Laura J. Moriarty

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Table of Contents Introduction Laura J. Moriarty

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Chapter 1

Balancing Criminal Victims’ and Criminal Defendants’ Rights Gregory P. Orvis & John David Reitzel

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Chapter 2

Victim Blaming Helen Eigenberg & Tammy Garland

Chapter 3

Same-Sex Intimate-Partner Violence – Lifting the Veil of Denial Anne Sullivan & Kristen Kuehnle

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Chapter 4

The Mass Media and Victims of Rape Patricia A. Grant & Paula I. Otto

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Chapter 5

Should Victims Have the Right to Meet with Their Offenders? Cheryl Swanson

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Chapter 6

Fear of Crime and Victimization Elizabeth H. McConnell

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Chapter 7

Cyberstalking –What’s the Big Deal? Nicolle Parsons-Pollard & Laura J. Moriarty

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Chapter 8

Victim Impact Statements –Fairness to Defendants? Ida M. Johnson & Etta F. Morgan

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Chapter 9

Victim-Offender Programs in Correctional Settings – Can They Effectively Bridge Divergent Perspectives? Duane Ruth-Heffelbower & Mario Thomas Gaboury

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Chapter 10

Female Sex Offenders –Does Anyone Really Get Hurt? Amie R. Schiedegger

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Chapter 11

Reconciling the Controversies – Is Education the Panacea? Laura J. Moriarty

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Contributors’ Biographical Information

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Index

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Introduction Laura J. Moriarty

Whether victimology is considered a discipline in itself, or a sub-field of criminology, controversies emerge, depending on the emphasis of study. Traditional victimologists study the causes of criminal victimization to explain and prevent it (Doerner & Lab, 2008), the goal being to educate others to avoid general and specific victimization. More modern victimologists focus on “restoring” or making the victim “whole” again, the goal being to restore victims to their pre-victimization state by ameliorating their physical, emotional, and financial suffering (Karmen, 1995). Both perspectives are valid, but adhering to one or the other creates conflict. Traditional victimology is similar to the discipline of criminology with the only difference being the focus of the inquiry. More often, criminologists focus on the offender, while victimologists focus on the victim. Neither discipline can afford to be exclusive in terms of the inquiry; moreover, when the focus is only on the offender or the victim, the stage is set to pit victims against offenders and vice versa, resulting in heated debate. There are many controversial topics in victimology. This reader focuses on 10 specific issues with the last chapter attempting to resolve in a general sense the issues at hand. The topics were selected because they represent, arguably, the most controversial topics in the field. The topics included in this reader should not be viewed as comprehensive, because the complexity of the subject matter generates a sizeable number of potential debates. However, the issues included will generate discussion and most likely will raise additional issues to consider. The reader is organized around topical areas. Academic experts and professionals in varied fields examine a controversial issue in victimology. Each chapter is organized to provide the reader with an overview of the subject matter, explaining why it is an issue in victimology, presenting both sides of the key factors in the debate, and, when appropriate, including suggestions to attempt to reconcile the controversy. In the first chapter, Greg Orvis and John Reitzel examine victims’ rights in relationship to offenders’ rights. A common misperception is that offenders have all the rights and victims have none, or that offenders’ rights ix

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outweigh victims’ rights. Orvis and Reitzel provide a historical overview of offenders’ rights explaining why due process rights are fundamental to our legal system, detailing the decisions of the Warren Court to increase such rights. They simultaneously discuss why victims’ rights should not impede offenders’ rights. They discuss the purposes of the criminal and civil courts making the argument that victims can and should seek redress through the civil courts. Orvis and Reitzel conclude with the recommendation that victims’ and offenders’ rights should be balanced. They advocate for better enforcement of state level victims’ rights and admonish that a federal statute or amendment would tilt the scales in favor of the victims trampling the rights of offenders. The focus of Chapter 2 is on the concept of shared responsibility. As Helen Eigenberg and Tammy Garland assert, shared responsibility is something referred to as victim blaming, victim facilitation, or victim precipitation? They explain the historical trend to blame victims, to some degree, for their victimization. They discuss the weaknesses inherent in the concept of victim blaming, including the use of tautological reasoning, conceptual difficulties, placing undue responsibility on the victims, creating culturally legitimate victims, and excusing offenders’ behavior. They continue presenting the reasons why the public endorses the concept of victim blaming. Eigenberg and Garland conclude with the recommendation that victimology should examine the role social structure plays in explaining victimization. Anne Sullivan and Kristen Kuehnle discuss in Chapter 3 the same-sex intimate-partner violence and the secrecy that is inherent with this crime. They demonstrate that same-sex intimate-partner violence is a real issue that is often kept hidden by many victims because of a variety of reasons, including that some victims think the violence is not viewed as a problem. They offer the reader good insight into why this violence is problematic and ways to bring it into the light of day as a first step in recognizing that such issues exist and need to be prevented and treated. In Chapter 4, Patricia Grant and Paula Otto examine the issue of publishing rape victims’ names in the print and electronic media. They begin by explaining there is no law prohibiting newspapers and broadcasters from publishing victims’ names, regardless of the crime committed. Therefore, the only way to actually control the publishing or broadcasting of victims’ names is through ethical standards of the discipline or by having law enforcement block the names from public access. Grant and Otto provide a balanced discussion regarding the value of publishing or broadcasting victims’ names versus keeping the name confidential. They use current examples from the media to present both sides of the argument. Cheryl Swanson discusses in Chapter 5 whether victims should have the right to meet face-to-face with their offenders as a way to restore the victims. Swanson relies on her experience conducting such meeting sessions with inmates and victims, and she advocates for increasing the number of such

INTRODUCTION

interactions. She presents both sides of the argument in terms of why victims should consider being involved in these initiatives, highlighting the positive effects victims receive from participation. In Chapter 6, Beth McConnell examines fear of crime – perhaps one of the most pressing problems in society. As more and more data sources are reporting the general decline in crime rates, fear of crime is remaining steady or increasing slightly. This is paradoxical. With the crime rate decreasing, fear of crime should decrease as well. What explains this paradox? McConnell reviews the research on the topic, reminding us that if the concept itself is not measured properly we achieve questionable results. She argues that the conceptual and operational definitions of fear of crime are too restrictive or limited and must include an interdisciplinary approach to measuring fear of crime. She argues for biological, psychological, criminological, and sociological perspectives or what would be labeled as a true “interdisciplinary” perspective to fully understand fear of crime, and to determine if the relationship between crime and fear of crime is indeed paradoxical. Nicolle Parsons-Pollard and Laura Moriarty discuss in Chapter 7 cyberstalking. They argue that cyberstalking and stalking are really two different types of crimes and thus each needs to be considered separately from the other. The reason this is important is because when the crimes are not linked as a subset of the other, each can have its own definition, enforcement, and sanctions applied. Then the public can begin to see that cyberstalking is as devastating to victims as stalking, and it can begin to thwart the problem. Ida Johnson and Etta Morgan discuss in Chapter 8 victim impact statements. Originally thought to be a good idea, victims are offered a voice in the criminal justice process. But, have these impact statements, without the benefit of cross-examination or challenge by counsel, resulted in unfair treatment of offenders? Do such statements violate defendants’ constitutional rights? Johnson and Morgan examine these issues in this chapter, focusing on death penalty cases. In Chapter 9 Duane Ruth-Hefflebower and Mario Gaboury discuss victim-offender restorative justice programs in correctional settings. These innovative programs are considered controversial because offenders’ motives are often questioned, as are the benefits to the victims. Ruth-Hefflebower and Gaboury, both having worked with correctional populations, present the benefits and risks such programs have for victims, offenders, and society. Amie Scheidegger examines in Chapter 10 sexual relationships between teachers and students where the older teacher is a female and the victim is a younger male. At first blush, this seems like a non-issue, as the subtitle of her chapter indicates – does anyone really get hurt? However, as Scheidegger explains, these boys are being victimized and we cannot look at it like this is a “coming of age” experience for the boys. Scheidegger does a good job of weaving in current examples of such victimizations to illustrate her position.

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The final chapter ties together these controversies in an effort to settle the issues. While there are no simple answers to address the issues, there do appear to be central themes that cross the debates. A broad, underlying explanation for the controversies appears to be a lack of knowledge, or misunderstanding, of the criminal justice system. Further, some controversies are rooted in and result from too narrow a focus of the discipline.

References Doerner, W.G. & S.P. Lab (2008). Victimology, Fifth Edition. Newark, NJ: LexisNexis/Matthew Bender. Karmen, A. (1995). Crime Victims: An Introduction to Victimology. Pacific Groves, CA: Brooks/Cole Publishing Company.

CHAPTER 1 Balancing Criminal Victims’ and Criminal Defendants’ Rights Gregory P. Orvis and John David Reitzel

Criminal Victims’ Rights What was once a loosely connected network of a few crime victims’ rights groups in the early 1970s has developed into a well-organized and politically powerful movement; one that can now claim numerous legal victories and an even greater influence on the political and criminal justice processes. As a direct result of this increased power, every state and the federal government now has at least some crime victim protection laws on the books and 33 states have victims’ rights amendments in their constitutions (Office of Justice Programs, 2007). Federal legislation, such as the Justice for All Act of 2004, and calls by the past two presidents for constitutional amendments protecting crime victims’ rights, attest to the movement’s political influence at the national level. The legal achievements in recent decades also lend credence to the myriad claims that crime victims have long been ignored, betrayed, or even scorned by the criminal justice system. The sheer number of legislative victories is particularly noteworthy because it has occurred in an era where serious violent and property victimization declined an astounding 41 percent from its highest peak in 1994. Yet this movement is much less about numbers than about how victims of serious crime are treated by a criminal justice system in which they have become unwilling participants. Unlike the protections for criminal defendants, victims’ rights were not specifically enumerated in the Constitution at its inception or in any of the subsequent amendments thereafter. Indeed, throughout most of U.S. history the criminal defendant has been given the lion’s share of legal protections. It is for these reasons and others that crime victims strongly proclaim that the scales of justice are unbalanced (Jackson, 2003). 1

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Although President Reagan was among the first modern presidents to vocally advocate on behalf of victims’ rights, it was President Clinton who first called for a constitutional amendment guaranteeing such rights. And while this did not come to pass during Clinton’s presidency, only one year after taking office, President Bush made a similar push for an amendment introduced by Senators Kyl and Feinstein. Speaking at the Department of Justice in 2002, Bush outlined his support and captured some of the key issues for crime victims: The victims’ rights movement has touched the conscience of this country, and our criminal justice system has begun to respond, treating victims with greater respect. The states, as well as the federal government, have passed legal protections for victims. However, those laws are insufficient to fully recognize the rights of crime victims. Victims of violent crime have important rights that deserve protection in our Constitution. And so today, I announce my support for the bipartisan Crime Victims’ Rights amendment to the Constitution of the United States. As I mentioned, this amendment is sponsored by Senator Feinstein of California, Senator Kyl of Arizona – one a Democrat, one a Republican. Both great Americans. This amendment makes some basic pledges to Americans. Victims of violent crime deserve the right to be notified of public proceedings involving the crime. They deserve to be heard at public proceedings regarding the criminal’s sentence or potential release. They deserve to have their safety considered. They deserve consideration of their claims of restitution. We must guarantee these rights for all the victims of violent crime in America. The Feinstein-Kyl Amendment was written with care, and strikes a proper balance. Our legal system properly protects the rights of the accused in the Constitution. But it does not provide similar protection for the rights of victims, and that must change. The protection of victims’ rights is one of those rare instances when amending the Constitution is the right thing to do. And the Feinstein-Kyl Crime Victims’ Rights Amendment is the right way to do it.

As President Bush’s statement demonstrates, “victims’ rights” are equally important to the long-standing “due process” rights guaranteed to criminal defendants by the Bill of Rights. While Congress has been unable to muster a majority to pass the Feinstein-Kyl amendment, they did the Justice for All Act in 2004, which some victims’ groups suggest is the strongest federal victims’ rights legislation in history (Maryland Crime Victims’ Resource Center, 2007). Also, considering that there have been only 27 amendments to the Constitution in its more than 230-year history, a constitutional amendment guaranteeing victims’ rights would nevertheless be quite an accomplishment, if successfully implemented, for a political movement that is not even 25 years old.

BALANCING CRIMINAL VICTIMS’ AND CRIMINAL DEFENDANTS’ RIGHTS

In 1931 the National Commission on Law Observance and Enforcement noted that the administration of justice suffered because of the great economic and psychological burdens placed on those who testify in court, however, the first victim/witness assistance programs were not initiated until the mid1970s, when the Law Enforcement Assistance Administration funded the first 10 programs, which have now expanded to more than 600 programs and more than 5,000 yearly grants under the federal Office of Victims of Crime (OVC) (Office of Justice Programs, 2007; Roberts, 1991). However, it can be argued that the victims’ rights “reform” movement did not become prominent until 1982 when California voters adopted “Proposition Eight,” which was state legislation that included a victims’ bill of rights (Friedman, 1984). Since that time, the victims’ rights movement has been largely responsible for Congress passing the Victim and Witness Protection Act of 1982, which makes the granting of victim restitution a norm in federal sentencing; the Victims of Crime Act of 1984, which established a federally financed victim compensation fund and now dispenses hundreds of millions of dollars in the form of victims’ compensation, assistance, and grants; a package of victims’ rights legislation as part the Justice Assistance Act and the Violent Crime Control and Law Enforcement Act of 1994; and most recently the Justice for All Act in 2004, which enhanced protections in federal crimes and provided additional funding for witness and victim protection (Office of Justice Programs, 2007; Leahy, 2004; Orvis, 1998; McMurry, 1997). Today, the federal system and many state systems require that a trial judge read victim impact statements prior to sentencing a convicted criminal defendant (Holman & Quinn, 1996). The federal system and more than 40 states have passed laws requiring victim notification of the offender’s trial, sentencing, plea bargain, and parole proceedings. Most states limit these actions to only victims of certain crimes, such as felonies, violent crimes, adult offenders, or crimes specifically enumerated in the law (Tobolowsky, 1999). Twenty-six states grant victims the right to be heard during a hearing on the acceptance of a plea agreement and 35 states give victims the right to attend even the disposition hearing of a juvenile in felony cases. Furthermore, 49 states have laws requiring HIV testing of certain sex offenders and all 50 states require convicted sex offenders to register with public officials, with 48 of these states requiring community notification of the release of sex offenders or allowing community access to sex offender registration information (National Center for Victims of Crime, 2007). After the vigorous lobbying of state legislatures by victims’ rights groups, 33 states have enacted a victims’ rights amendment to their state constitutions.1 Some of the rights granted to victims by their state constitutions seem to be common courtesy, and are often already provided by victim/witness services, such as Missouri providing its crime victims “the right to information about how the criminal justice system works, the rights and availability of services, and upon request of the victim, the right to information about the

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crime” (Constitution of Missouri, 1999, art. I, sec. 32-7). Other examples are New Mexico’s provisions for the crime victim to have “the right to have the prosecuting attorney notify the victim’s employer . . . of the necessity of the victim’s cooperation and testimony” and “the right to promptly receive any property belonging to the victim that is being held for evidentiary purposes” (Constitution of New Mexico, 1999, sec. 24-10 & 11). The vast majority of victims’ rights established by state constitutional amendments, however, guarantee the victim active participation in the criminal justice process. Some states take a general approach toward the handling of victims, such as Indiana’s constitutional amendment that provides, “Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused” (Constitution of Indiana, 1999, art. I, sec. 13b). A few states, like Colorado, are more abstract than that, merely stipulating that a victim will be heard at all “critical stages” of the criminal justice process (Constitution of Colorado, 1999, art. II, sec. 16a; Constitution of Florida, 1999, art. I, sec. 16). Other states’ victims’ rights amendments have provided specific privileges to crime victims, such as in Wisconsin where victims are guaranteed: (1) timely disposition of the case; (2) the opportunity to attend court proceedings unless sequestration is necessary for a fair trial; (3) reasonable protection from the defendant; (4) notification of court proceedings; (5) the opportunity to confer with the prosecutor; (6) the opportunity to make a victim’s impact statement at sentencing; (7) victim’s restitution; (8) victim’s compensation; and (9) notification about the outcome of the case (Constitution of Wisconsin, 1999). Another specific right sometimes granted state constitutional protection is included in Alaska’s provisions on the “Rights of Crime Victims,” which is notification about the crime offender’s escape or release after conviction (Constitution of Alaska, 1999). Arizona’s state constitution includes possibly the most rights for victims, including rights to be heard at any postarrest release or plea negotiation proceeding, to be heard at any post-conviction proceeding when release is being considered, and to read the accused’s presentence reports (Constitution of Arizona, 1999). Louisiana goes one step further and allows the victim to comment on the presentence report (Constitution of Louisiana, 1999). South Carolina even goes further with allowing the crime victim “reasonable access after the conclusion of the criminal investigation to all documents relating to the crime against the victim before trial” (Constitution of South Carolina, 1999, art. I, sec. 24-A8). Furthermore, some states, such as Idaho, give the same rights to victims when the offender is a juvenile (Constitution of Idaho, 1999). The Victims’ Bill of Rights in some states evokes change in criminal procedure and evidence laws. California’s “Right to Truth in Evidence” provides that, “relevant evidence shall not be excluded in any criminal proceeding,

BALANCING CRIMINAL VICTIMS’ AND CRIMINAL DEFENDANTS’ RIGHTS

including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court” (Constitution of California, 1999, art. I, sec. 28d). Arizona provides a right to victims to have all rules governing criminal procedure and the admissibility of evidence amended to protect victims’ rights (Constitution of Arizona, 1999). Mississippi leaves the door open for further “reform” by stating, “The legislature shall have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed victims by this section” (Constitution of Mississippi, 1999, sec. 26A3). It should be noted, however, that some states, such as Alabama and Kansas, limit these victims’ rights “to the extent that these rights do not interfere with the constitutional rights of the person accused” (Constitution of Alabama, 1999, amend. 556a; Constitution of Kansas, 1999, art. 15, sec. 15a). Even the courts have succumbed to the lobbying by the victims’ rights movement. Traditionally, interest groups have sought to influence the decisions of the judicial branch through either amicus curiae (i.e., literally translated, “friends of the court”) briefs or through the sponsorship of test cases (Epstein, 1991). It has only been in the past decade, however, that cases involving statutes providing victims’ rights have reached appellate courts in any great number. Although hesitant at first, state and federal appellate courts have generally upheld statutory provisions allowing greater victim access and participation in the criminal justice process, often balancing them against the defendant’s due process rights (Tobolowsky, 1999). The U.S. Supreme Court upheld the statutory right of victims to make impact statements during sentencing unless it was shown that the statements were so prejudicial as to make the process fundamentally unfair (Payne v. Tennessee, 1991). Despite these lobbying successes, victims’ rights groups, now about 8,000 strong, continue to press for an amendment to the United States Constitution (Ben-David, 1996). They reason that only a federal amendment would bring into “balance” the scales of justice, which they believe are tipped in favor of the criminal defendant. Furthermore, a constitutional amendment to the U.S. Constitution would guarantee that crime victims’ rights would be enumerated and protected like the Bill of Rights protects the rights of those accused of crimes (McMurry, 1997). Thus the joint resolution presently before the House of Representatives for an amendment to the United States Constitution takes the latter approach to victims’ rights by proposing specific privileges: Each individual who is the victim of a crime for which the defendant can be imprisoned for a period longer than one year or any other crime that involves violence shall have the rights— •

to reasonable notice of, and not exclusion from, any public proceedings relating to the crime;

•

to be heard, if present, and to submit a statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea, or a sentence;

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•

to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence;

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to the foregoing rights at a parole proceeding that is not public, to the extent those rights are afforded to the convicted offender;

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to reasonable notice of a release or escape from custody relating to the crime;

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to consideration of the interest of the victim that any trial be free from unreasonable delay;

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to an order of restitution from the convicted offender;

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to consideration for the safety of the victim in determining any conditional release from custody relating to the crime; and

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to reasonable notice of the rights established by this article (House Joint Resolution 64, 1999).

A similar joint resolution was sent to the Senate floor on September 30, 1999, but it is limited to victims of violent crime and omitted “to reasonable notice of an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence” (Senate Joint Resolution 3, 1999).

Criminal Defendants’ Rights Unlike the history of the victims’ rights movement, the four amendments of the Bill of Rights establishing criminal defendants’ rights have a long and distinguished history. The debates over ratifying the United States Constitution quickly revealed that there was widespread demand among the colonists for additional constitutional protections of individual rights. Under community pressure, James Madison introduced proposals for constitutional amendments at the first session of Congress and the first 10 amendments of the United States Constitution were ratified by the states and went into effect in 1791 (Gunther, 1975). Almost one-half of these amendments establish protections against arbitrary police and court action by the government. The Fourth Amendment prohibits unreasonable searches or seizures. The Fifth Amendment establishes the requirement that a grand jury indictment is necessary to prosecute a person for a serious crime; prohibits double jeopardy and forced testimony against one’s self; and requires “due process” before the “loss of life, liberty, or property” due to federal government action. The Sixth Amendment introduces the crime defendant’s rights to a speedy, public, impartial trial with defense counsel and the right to cross-examine witnesses. Finally, excessive bail or fines and cruel and unusual punishment are prohibited by the Eighth Amendment (Wilson, 1986). Originally, the Bill of Rights was applicable to only the federal government and not to state and local governments. The Fourteenth Amendment came into effect in 1868 and provided, “No State shall make or enforce any

BALANCING CRIMINAL VICTIMS’ AND CRIMINAL DEFENDANTS’ RIGHTS

law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” The Fourteenth Amendment incorporated at least some of the rights protected in the Bill of Rights so as to make them enforceable against state and local governments as they were against the federal government. The United States Supreme Court rejected the theory of “total incorporation” at the turn of the century, but recognized in later cases that some of the personal rights safeguarded by the Bill of Rights against federal action may also be safeguarded against state action, because to deny them would be to deny due process (Adamson v. California, 1947; Palko v. Connecticut, 1937; Twining v. New Jersey, 1908). Until the early 1960s, the Supreme Court had adopted the “fundamental rights” or “ordered liberty” interpretation of the Fourteenth Amendment’s due process clause, wherein a particular state action could violate the principle without violating a specific provision in the Bill of Rights. The “selective incorporation” approach allowed the court to combine the best of the “total incorporation” approach and the “fundamental rights” approach. It allowed the court to recognize that the Fourteenth Amendment only encompasses rights that are fundamental to the “scheme of ordered liberty,” but that not all rights listed in the Bill of Rights are such fundamental rights, and that rights not specifically enumerated could be fundamental (Israel, Kamisar & LaFave, 1995). By the 1960s, the Supreme Court had selectively incorporated more and more of the specifics of the Bill of Rights and applying them to the state governments to the same extent that they applied to the federal government (Lockart, Kamisar, Choper & Shiffrin, 1986). By the end of the 1960s, the following Bill of Rights’ guarantees to those accused of crimes as “selectively incorporated” by the Supreme Court, thus holding states to the same standards as the federal government: (1) the right against unreasonable search and seizure, with the right to have illegally seized evidence excluded from criminal trials (Mapp v. Ohio, 1961); (2) the right against cruel and unusual punishment (Robinson v. California, 1962); (3) the right to the assistance of counsel (Gideon v. Wainwright, 1963); (4) the right against compelled selfincrimination (Malloy v. Hogan, 1964); (5) the right to confront opposing witnesses (Pointer v. Texas, 1965); (6) the right to a speedy trial (Klopfer v. North Carolina, 1967); (7) the right to compulsory process for obtaining witnesses (Washington v. Texas, 1967); and (8) the right to a jury trial in a felony case (Duncan v. Louisiana, 1968). As Justice Marshall noted in a majority opinion in 1969, “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments” (Benton v. Maryland, 1969:784). The decade of the 1960s has also been described as the “due process revolution” because the Supreme Court literally made policy statements governing criminal justice procedure for every court in the nation; often replacing

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the vague “due process” standard with “specific prophylactic rules,” such as the Miranda rule governing the admissibility of voluntary confessions: Like most Court policies, this one evolved without being formally stated. One likely reason for the sudden concern with such issues was the justices’ perception that mere admonitions of due process (i.e., general expression of what was “fundamentally fair”) had been insufficient to eliminate or control criminal justice procedures that they found objectionable. A second reason would surely be the philosophical orientation of the Warren Court’s liberal majority, what Archibold Cox characterized as the “egalitarianism that has become the dominant force in the evolution of our constitutional law. The broader egalitarianism stirred by the civil rights revolution has already found expression in criminal law decisions” (Grossman & Wells, 1980:739).

Major Arguments for Balancing Victims’ Rights with Defendants’ Rights It was apparent to public perception that there was a connection, however fallacious, between the rise of crime in the early 1970s and the Supreme Court’s permissiveness towards criminals. Richard Nixon, among countless other politicians, made law and order a top priority of both his 1968 and 1972 presidential campaign platforms, with promises that he would correct the balance between “the forces of peace and the forces of crime” by making more conservative appointments to the Supreme Court bench (Grossman & Wells, 1980). Congress passed several anti-court bills, including a law specifically intended to reverse Miranda; a law that was the basis of a test case to overturn Miranda but was ultimately rejected by the Supreme Court in Dickerson v. United States in 1999 (Crime Control Act of 1968; Miranda v. Arizona, 1966; United States v. Dickerson, 1999). Nixon kept his word when elected, and more conservative justices were appointed by him (and later by Presidents Reagan and Bush), and these new appointees to the Court in turn shared a common determination to toughen judicial doctrines relating to crime (Schmidhauser, 1984). In 1971, then newly appointed Chief Justice Warren Burger wrote a majority opinion that significantly weakened the Miranda decision, and signalled the beginning of a judicial trend to limit the procedural rights gained by criminal defendants in the 1960s (Harris v. New York, 1971). It was this political climate in the 1970s that provided the foundation for the growth of the crime victims’ movement in the 1980s and consequently, the movement for a crime victims’ federal amendment in the 1990s. Three major arguments support the drive for a federal crime victims’ rights amendment: (1) a victims’ rights amendment will alleviate the trauma felt by crime victims who have traditionally been

BALANCING CRIMINAL VICTIMS’ AND CRIMINAL DEFENDANTS’ RIGHTS

forgotten and revictimized by the criminal justice system; (2) a victims’ rights amendment will give the crime victim standing equal to the criminal defendant to appeal unjust holdings in criminal cases; and (3) a victims’ rights amendment is necessary to counterbalance the rights granted to criminal defendants by the Bill of Rights, so that both are on equal footing in a court of law.

The Forgotten Victim Argument Further impetus was given to the victims’ rights movement in 1982 when then-President Reagan appointed a special task force on crime victims and who reported that crime victims were being treated merely as “appendages of a system appallingly out of balance” (Task Force on Victims of Crime, 1982). It was argued that the “unfeeling” system of justice, with its apparent concern only for defendants’ rights, “revictimized” any victim who was brave enough to come forward to give evidence in a criminal prosecution (Siegelman, 1988). The criminal justice system “forgot” and subsequently alienated crime victims, and thus the crime victims’ movement was born (Cellini, 1997). Early in the movement, victims’ rights advocates argued that having such rights would empower crime victims and was therapeutic for their trauma (Adler, Biddle & Shenitz, 1995; Thigpen, 1995). The retort is that the opposite may be true. Crime victims may neither want such a catharsis, nor get it even if victims’ rights are provided by law. Victims may feel even less empowered and more traumatized if offenders get only slight punishments despite victims’ best efforts (Thigpen, 1995). One earlier study, for example, found that there was no effect to a victim’s level of satisfaction with the criminal justice system when he or she exercised “victim’s rights” (Davis & Smith, 1994). More recently, researchers by the National Institute of Justice and other studies have found widely varying percentages of victims exercising their rights that were dependent on the phase of the criminal justice process (Kelly, 1990; Kilpatrick, Beatty & Smith Howley, 1998). For example, more than 90 percent of victims exercised their right to make a victim impact statement at sentencing, whereas only about 15 percent of victims made impact statements at parole hearings (Kilpatrick, Beatty & Smith Howley, 1998). This would suggest that while victims’ rights legislation allows for multiple avenues for victims to participate more fully in the criminal judicial process, some ways in allowing for victims’ input might be more important than others.

The Equal Standing Argument Some victims’ rights activists argue that the reason crime victims fail to exercise their statutory rights is that victims lack the “standing” to enforce those rights in appellate courts. Standing is a doctrine “employed to refuse

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to determine the merits of a legal claim, on the grounds that even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination” (Wright, Miller & Cooper, 1984:338339). As their example, these activists point to the problem crime victims have in enforcing their statutory right to restitution. Even when the legislative intent is clear, as it is in granting crime victims restitution, crime victims often have no “avenue of complaint” when a trial court denies them restitution from the crime offender because the appellate courts refuse to recognize the crime victim’s standing to enforce the restitution right. These activists argue that crime victims will never have standing absent a federal constitutional amendment guaranteeing their rights (Cellini, 1997). The rebuttal to this argument is that perhaps the role of restitution enforcer is not a proper one for the criminal courts. Offender restitution, or the idea of transferring money or services from the criminal offender to the victim as damages within the criminal justice system, only dates back as a sentencing option to the 1960s in the United States (Orvis, 1998). The role of assessing and collecting damages was not one that evolved naturally for the criminal courts, and has not been one that they have enforced very successfully (Doerner & Lab, 1995). Also, it does not appear that many judges are too inclined to sentence restitution, particularly in cases where the offender was sentenced to incarceration. And, if they are more inclined, it has been in states that have weak victims’ restitution laws (Kilpatrick, Beatty & Smith Howley, 1998). In fact, it was the civil courts that evolved in common law (e.g., Richard Roe and Jane Roe) to determine and collect damages when one citizen wronged another, and some scholars argue that the civil courts are the true devices for victim restitution (Orvis, 1998). If this is so, then the judicial doctrine of standing is performing properly when denying crime victims access to appellate courts in these matters.

Counterbalance Arguments Crime victims’ rights, even if established by a state constitutional amendment, will never be on equal footing with crime defendants’ rights that are established by the United States Constitution, for the former will always be “trumped” by the latter due to the supremacy clause (Barajas & Nelson, 1997). The supremacy clause of the United States Constitution holds that, “This Constitution, and the Laws of the United States which shall be made Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (U.S. Constitution, Article VI). Therefore, it is argued by victims’ rights advocates that only a federal amendment establishing victims’ rights has a chance of balancing the rights already granted to those accused of crimes.

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The counterargument questions the foundation of the “counterbalance” position. The Ranking Member of the House Committee on the Judiciary maintains that four questions should be asked, and answered affirmatively, before ever passing a federal constitutional amendment: (1) “Is there a compelling and clearly articulated need to amend the Constitution?” (2) “Will the amendment not have any unintended and potentially undesirable consequences?” (3) “Will the amendment be easily understood and enforceable?” and (4) “Is the amendment consistent with the rest of the Constitution and the Bill of Rights?” The proposed Victims’ Rights Amendment fails on the first count, in that there are plenty of state and federal laws already adequately protecting victims’ rights and a perusal of the case law doesn’t reveal any conflict between these rights and the defendant’s due process rights. Thus it is concluded, “Instead of working on finding the funds to place more ‘cops on the beat’ to actually combat crime, many in Congress prefer to focus their time and efforts on the largely symbolic victims’ rights amendment” (Conyers, 1997).

Major Arguments against Balancing Victims’ Rights with Defendants’ Rights Just as there are supporters for the crime victims’ rights amendment, there are both academics and practitioners who believe that such an amendment would be detrimental to the criminal justice system. Victims’ rights supporters even retort that the existing occupational culture among criminal practitioners “neutralizes” the few procedural privileges gained for victims, such as the right to give victim impact statements (Erez & Laster, 1999). Nevertheless, there is substantial resistance to the federal victims’ rights amendment, based on four main arguments: (1) a victims’ rights amendment is contrary to the common law tradition of separate criminal and civil law systems; (2) a victims’ rights amendment will make the criminal justice system in general and the courts in particular less efficient and effective; (3) a victims’ rights amendment will diminish the rights guaranteed those accused of crimes in the Bill of Rights; and (4) it is fundamentally a state issue because there is already wide (and increasing) support for victims’ right, which would unnecessarily change the unique character of the Constitution by altering with an amendment which is widely supported by state laws.

The Historical Argument Some argue that when the founding fathers adopted the common law tradition as a pattern for the new country’s legal system after the Revolutionary War, they were cognizant of the fact that they were establishing criminal

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justice as “public justice” wherein the “plaintiff” is the “state” or “commonwealth” (Friedman, 1984). Public law is where the government has a direct interest in protecting society and preserving order, whereas private law is the area which government has only an indirect interest. Criminal law is public law, and has been since the late tenth century when Henry II realized that crimes were acts against society and not to be left to personal vengeance (Gardner & Anderson, 1998). On the other hand, civil law as private law was created to deal with relationships between individual people, including tort actions that might also be a crime (Calvi & Coleman, 1989). Separate and distinct procedural and evidentiary rules developed for criminal and civil courts under the common law tradition. For example, the burden of proof in civil cases is a “preponderance of the evidence” whereas it is “beyond a reasonable doubt” in a criminal cases. The founding fathers were aware of this difference and further distinguished it in the Bill of Rights by specifically dictating that the procedures outlined in Articles 5 and 6 would apply to “criminal” cases and prosecutions. Advocates of the “historical” argument state that the reasoning behind a victims’ rights amendment flies in the face of more than 200 years of legal wisdom. If reform is needed to protect victims’ rights, it is better to alter the civil law system and make it more accessible to crime victims than to radically change the two-party adversarial criminal justice system to accommodate a third party, the victim. The result may very well be to do extensive harm to both the civil and the criminal justice systems (Orvis, 1998). The retort to the historical argument is based on history that predates it. Wrongs done to a person or his property in ancient times were regarded generally as a private matter, with the victim or his family taking appropriate remedial action against an offender and his family. The criminal justice system remained a “victim-centered system” in early Western law until monarchs became more involved in their subjects inflicting harm upon each other as a violation of the “King’s Peace,” and later, during the Enlightenment period, became philosophically convinced “that criminal prosecutions should serve societal interests of deterrence and retribution rather than interests of individual victims in private redress” (Tobolowsky, 1999:25). Others argue that the public prosecutor concept existed simultaneously with the private criminal prosecution in the early history of the American colonies and predates its establishment in England (Cellini, 1997). Either way, the criminal justice system is seemingly returning to its roots by becoming victim-centered again.

The Efficiency Argument The criminal justice system has long been held to be one of scarce resources. One argument widely espoused by criminal justice officials against the enforcement of victims’ rights, particularly through a constitutional amendment, is the huge cost to the system. Erwin Chermerinsky from the University of Southern California Law Center notes, “The constitutional amendment is

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a practical, administrative, and financial burden on institutions trying to dispense justice. It would siphon resources away from essential law enforcement efforts and open the floodgates of claims and differing interests” (McMurry, 1997:13). Beth Wilkinson, a former member of the prosecution team that successfully convicted the Oklahoma City bombers in 1996, actively fights against a federal Victims’ Rights Amendment because she believes that if an amendment had been in effect then, they would have lost the case due to the inability to make plea bargains with minor accessories for their cooperation and the divergence of logistical resources into their prosecutions (Wilkinson, 1999). Others argue that the amendment could actually harm victims in that “it could end up subverting just convictions by watering down defendants’ rights, fostering lengthy litigation that delays trial, and torpedoing legitimate plea deals devised by prosecutors to obtain testimony necessary to prove other, more serious crimes” (Editorial, New York Times, 1999). Advocates of victims’ rights counter that civil code systems in other countries have successfully included victim participation into their judicial processes for years without either disrupting or corrupting the goal of criminal justice (Cellini, 1997). They further retort that, “The most formidable enemy of crime victims’ aspirations for getting justice under our Constitution are criminal justice officials – even well-meaning ones such as Wilkinson – who believe that government lawyers know best” (Kight, 1999:A17).

The Due Process Argument As the victims’ rights movement grew, some critics noted that a “contest” of rights was being created between crime victims and crime defendants, with victim concerns being co-opted by crime control fanatics as an excuse to deny bail, abolish the exclusionary rule, establish mandatory sentencing, and eliminate parole (Tobolowsky, 1999). Constitutional scholars worry that the enforcement of victims’ rights will infringe on the constitutional rights of those accused of crimes (Reid, 1997; Elias, 1990). The retort to the due process argument is that our system of criminal justice provides the strongest of rights to those accused of crimes, and must now do likewise for crime victims. Furthermore, interviews with state judges whose laws already provided for victims’ rights revealed that such laws have not improperly tipped the “balance” in favor of the victim. In practice, if a victim’s right was found in conflict with a defendant’s due process right, it was almost always the latter that was enforced by the courts (Barajas & Nelson, 1997).

Summary The analogy of the Scales of Justice has often been used by both victims’ rights advocates and those who would oppose them. Proponents of victims’ rights argue that the scales of balance have been tipped away from the crime

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victim too long, and that the resulting imbalance has only begun to be rectified in the past two decades by legislation and judicial opinions. They argue crime victims have repeatedly been revictimized by their treatment in the criminal justice system and that crime victims presently lack the legal standing to adequately redress the wrongs done them by both the system and criminal offenders. They also claim that the rights of crime victims will never be in balance with those of criminal defendants until there is an amendment to the United States Constitution specifying the rights of crime victims. The opponents to the victims’ rights movement argue that the common law has already evolved a forum for protecting the rights of crime victims, that being the civil courts. Furthermore, the enforcement of victims’ rights in the criminal justice system will tax to the breaking point a system already beleaguered with scarce resources and costly delays caused by enforcing already existing legal mandates considering the state versus the criminal defendant. Finally, it is argued that the protection of victims’ rights in the criminal justice system, particularly if done in the form of a federal constitutional amendment, will interfere with the due process rights of those accused of crimes, about which the founding fathers who wrote the Constitution were profoundly concerned. For the victims’ rights amendment to become part of the United States Constitution, it must pass both houses of Congress by a two-thirds vote, and then be ratified by 38 or more state legislatures (U.S. Constitution, Art. V). If this occurs, it can be argued that, by passing such a rigorous process, the victims’ rights amendment will be demonstrating a clear mandate from the majority of Americans (Cellini, 1997). However, the concern of the founding fathers when they created the Bill of Rights was not for the majority, but for a minority who could be wrongfully accused of a crime and yet have all of the power of the state against them. In fact, one of the founding fathers, James Madison, was profoundly worried about a “tyranny of the masses.” Madison wrote of the problems of democracy in 1787, “A common passion of interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of Government itself, and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual” (Madison, 1961:81). One legal scholar captured Madison’s concern in a phrase when he described the victims’ rights movement as “politics of rights” versus “politics of interests” (Viano, 1987:441). Renowned constitutional scholar Jonathan Turley sees it a bit differently, stating, “The Constitution is a unique document. It’s a document that often protects the people we don’t like. It’s easy to protect the people we like. It’s easy to protect the majoritarian values (Public Broadcasting System, 1996). On the other hand, as many advocates of the victims’ rights amendment conclude, it may be true that only a federal amendment will balance the scales of justice for the victim. It may be true that a crime victim will never have the legal standing to redress the wrongs done to him by the criminal offender and the criminal justice system unless there is a victims’ rights amendment to the

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Constitution (Cellini, 1997). Furthermore, it may be true that the only way to guarantee in the long term the participatory rights already granted to victims by statute and long fought for by victim rights’ activists is by a constitutional amendment (Barajas & Nelson, 1997; Tobolowsky, 1999). However, if a victims’ rights amendment is passed by Congress and ratified by the states in the near future, the real challenge for the judicial branch will be in finding where the exact balance between victims’ rights and the rights of those accused of crimes lays. This, according to amendment opponents, would increase the economic burden on a system that is already taxed by the enormity of the crime problem and it would expose the criminal justice system to problems associated with balancing long-held and much more settled protections of criminal defendants against untested and legally opaque victims’ rights in the criminal judicial process. Experiences with some of these issues, such as allowing for victims to read impact statements at sentencing hearings, have generally been easy to incorporate without burdening the system, but should other rights begin to interfere with the basic protections for the accused, it could very well destabilize any such balance. Despite the fact that crime has decreased in the U.S., by most accounts, the criminal justice system in many places is reaching a tipping point whereby its functionality is becoming severely impaired by the staggering number of cases that comprise the daily dockets of courts around the country, not to mention the ever-increasing procedural dictates such courts must abide by in administering justice. Yet, it appears that, even in this era of increased victims’ rights, Congress simply cannot muster the necessary majority in either house to amend the Constitution. Even if they were able, it would still require two-thirds of the states to agree which, given that exactly two-thirds of the states have a constitutional amendment, this is no assurance that it will happen any time in the near future. Nevertheless, one legal scholar sees a new model of criminal review arising from the Supreme Court, creating a “good citizen/bad citizen” dichotomy wherein gains for criminals result in losses for law-abiding citizens, and vice versa (O’Neill, 1984). This may not be a totally modern development. It is of historical note, however, that as crime victims’ rights in the United States have become less protected by the criminal justice system, defendants’ due process rights have become more protected by the courts. It is possible that the United States could come full circle with crime victims’ rights waxing as crime defendants’ rights wane and if experience is prologue, such changes will incur consequences that are not easily rectified.

Note 1

(i.e., Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin)

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References Adamson v. California, 332 U.S. 46 (1947). Adler, J., N.A. Biddle & B. Shenitz (1995). “Bloodied But Unbowed.” Newsweek, (April 4):54-56. Barajas, R. & S.A. Nelson (1997). “The Proposed Crime Victims’ Federal Constitutional Amendment: Working Toward a Proper Balance.” Baylor Law Review, 49(Winter):1-40. Ben-David, N. (1996). “Are Crime Victims Right to Press for Amending U.S. Constitution?” Broward Daily Business Review, (July 5):A1. Benton v. Maryland, 395 U.S. 784 (1969). Bureau of Justice Statistics (2007). http://www.ojp.gov/bjs/cvictgen.htm. Bush, George W. (2002). http://www.whitehouse.gov/news/releases/2002/04/20020416-1.html Calvi, J.V. & S. Coleman (1989). American Law and Legal Systems. Englewood Cliffs, NJ: Prentice Hall, Inc. Cellini, S.A.M. (1997). “The Proposed Victim’s Rights Amendment to the Constitution of the United States Opening the Door of the Criminal Justice System to the Victim.” Arizona Journal of International and Comparative Law, 14:839-879. Constitution of Alabama (1999). Amendment 557 (a) [On-line]. Available: http://www.nvc.org/ law/alabama.htm. Constitution of Alaska (1999). Article 2, section 24 [On-line]. Available: http://www.nvc.org/ law/alaska.htm. Constitution of Arizona (1999). Article II, section 2.1 (A) [On-line]. Available: http://www.nvc. org/law/arizona.htm. Constitution of California (1999). Article I, section 28 (d) [On-line]. Available: http://www.nvc. org/law/californ.htm. Constitution of Colorado (1999). Article II, section 16a [On-line]. Available: http://www.nvc. org/law/colorado.htm. Constitution of Florida (1999). Article 1, Section 16 [On-line]. Available: http://www.nvc.org/ law/florida.htm. Constitution of Idaho (1999). Article I, section 22 (10) [On-line]. Available: http://www.nvc. org/law/idaho.htm. Constitution of Indiana (1999). Article 1, section 13 (b) [On-line]. Available: http://www.nvc. org/law/indiana.htm. Constitution of Kansas (1999). Article 15, section 15 (a) [On-line]. Available: http://www.nvc. org/law/kansas.htm. Constitution of Louisiana (1999). Article I, section 25 [On-line]. Available: http://www.nvc. org/law/louisiana.htm. Constitution of Mississippi (1999). Section 26A (3) [On-line]. Available: http://www.nvc.org/ law/mississ.htm. Constitution of Missouri (1999). Article I, section 32 (7) [On-line]. Available: http://www.nvc. org/law/missouri.htm.

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Constitution of New Mexico (1999). Section 24 (10) & (11) [On-line]. Available: http://www. nvc.org/law/newmexic.htm. Conyers, J. (1997). “Is the United States Constitution a ‘Rough Draft’?: An Open Letter to the 105th Congress.” Widener Journal of Public Law, 6:323-348. Crime Control Act of 1968, 18 U.S.C. Sec. 3501 (1968). Davis, R.C. & B. E. Smith (1994). “Victim Impact Statements and Victim Satisfaction: An Unfulfilled Promise.” Journal of Criminal Justice, 22:1-15. Dickerson v. United States (2000). http://www.law.cornell.edu/supct/html/99-5525.ZS.html. Doerner, W.G. & S.P. Lab (2008). Victimology, Fifth Edition. Newark, NJ: LexisNexis/Matthew Bender. Duncan v. Louisiana, 391 U.S. 145 (1968). Editorial (1999). The New York Times, (September 30):28. Elias, R. (1990). “Which Victim Movement? The Politics of Victim Policy.” In A.J. Lurigio, W.G. Skogan & R.C. Davis (eds.) Victims of Crime: Problems, Policies, and Programs, pp. 226-250. Newbury Park, CA: Sage Publications. Epstein, L. (1991). “Courts and Interest Groups.” In J.B. Gates & C.A. Johnson (eds.) The American Courts: A Critical Assessment, pp. 335-371. Washington, DC: Congressional Quarterly, Inc. Erez, E. & K. Laster (1999). “Neutralizing Victim Reform: Legal Professionals’ Perspectives on Victims and Impact Statements.” Crime & Delinquency, 45:530-553. Friedman, L.M. (1984). American Law. New York: W.W. Norton & Company. Gardner, T.J. & T.M. Anderson (1998). Criminal Law: Principles and Cases, Sixth Edition. St. Paul, MN: West Publishing Company. Gideon v. Wainwright, 372 U.S. 335 (1963). Grossman, J.B. & R.S.Wells (1980). Constitutional Law and Judicial Policy Making (2d ed). New York: John Wiley & Sons. Gunther, G. (1975). Constitutional Law, Ninth Edition. Mineola, NY: The Foundation Press, Inc. Harris v. N.Y., 401 U.S. 222 (1971). Holman, J.E. & J.F. Quinn (1996). Criminal Justice: Principles and Perspectives. St. Paul, MN: West Publishing Company. House Joint Resolution 64, 106th Congress, 1st Session, Joint Resolution, Section 1 (1999). Israel, J.H., Y. Kamisar & W.R. LaFave (1995). Criminal Procedure and The Constitution. St. Paul, MN: West Publishing Company. Jackson, J.D. (2003). “Justice for All: Putting Victims at the Heart of the Criminal Trial.” Journal of Law and Society, 30, 2. Justice for All Act of 2004 (2004). Office of Senator Patrick Leahy. http://leahy.senate.gov/ press/200410/100904E.html. Kelly, D.P. (1990). “Victim Participation in the Criminal Justice System.” In A.J. Lurigio, W.G. Skogan & R.C. Davis (eds.) Victims of Crime: Problems, Policies, and Programs, pp. 172-187. Newbury Park, CA: Sage Publications.

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Kight, M. (1999). “Enemies of Victims’ Rights.” The Washington Post (August 17):A17. Kilpatrick, D.G., D. Beatty & S. Smith Howley (1998). “The Rights of Crime Victims—Does Legal Protection Make a Difference?” National Institute of Justice: Research in Brief. Klopfer v. North Carolina, 386 U.S. 213 (1967). Lockart, W.B., Y. Kamisar, J.H. Choper & S.H. Shiffrin (1986). The American Constitution, Sixth Edition. St. Paul, MN: West Publishing Company. Madison, J. (1961). “The Federalist No. 10.” In C. Rossiter (ed.) The Federalist Papers, pp. 77-84. New York: Mentor. Malloy v. Hogan, 378 U.S. 1 (1964). Mapp v. Ohio, 367 U.S. 643 (1961). Maryland Crime Victims’ Resource Center (2007). McMurry, K. (1997). “Victims’ Rights Movement Rises to Power.” Trial, (July):12-14, 16. Miranda v. Arizona, 384 U.S. 436 (1966). National Center for Victims of Crime (2007). http://www.ncvc.org/ncvc/main.aspx?dbID=DB_ Legislation138. Office of Justice Programs (2007). http://www.ojp.usdoj.gov/ovc/new/welcome.html. O’Neill, T.P. (1984). “The Good, the Bad, and the Burger Court: Victims’ Rights and a New Model of Criminal Review.” Journal of Criminal Law & Criminology, 75:361-387. Orvis, G.P. (1998). “The Evolving Law of Victim’s Rights: Potential Conflicts With Criminal Defendants’ Due Process Rights and the Superiority of Civil Court Remedies.” In L.J. Moriarty & R.A. Jerin (eds.) Current Issues in Victimology, pp. 163-175. Durham, NC: Carolina Academic Press. Palko v. Connecticut, 302 U.S. 319 (1937). Payne v. Tennessee, 501 U.S. 808 (1991). Pointer v. Texas, 380 U.S. 400 (1965). Reid, S.T. (1997). Crime and Criminology, Eighth Edition. Madison, WI: Brown & Benchmark, Publishers. Roberts, A.R. (1991). “Delivery of Services to Crime Victims: A National Survey.” American Journal of Orthopsychiatry, 61:128-137. Robinson v. California, 370 U.S. 660 (1962). Schmidhauser, J.R. (1984). Constitutional Law in American Politics. Monterey, CA: Brooks/ Cole Publishing Company. Senate Joint Resolution 3, 106th Congress, 1st Session, Joint Resolution, Section 1 (1999). Siegelman, D. (1988). “Crime Victims Rights: Rebalancing the Scales.” The Journal of State Government, 61:107-109. Task Force on Victims of Crime (1982). Final Report. Washington, DC: U.S. Government Printing Office. Thigpen, D.E. (1995). “Confronting the Killer.” Time, (April 3):50.

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Tobolowsky, P.M. (1999). “Victim Participation in the Criminal Justice Process: Fifteen Years after the President’s Task Force on Victims of Crime.” New England Journal on Criminal & Civil Confinement, 25:21-103. Twining v. N.J., 211 U.S. 78 (1908). United States v. Dickerson, 166 F. 3d 667 (4th Cir. 1999). U.S. Constitution, Article V. U.S. Constitution, Article VI. Viano, E. (1987). “Victims’ Rights and the Constitution: Reflections on a Bicentennial.” Crime & Delinquency, 33(4):438-451. Washington v. Texas, 388 U.S. 14 (1967). Wilkinson, B.A. (1999). “Victims’ Rights: A Better Way – The Proposed Constitutional Amendment Could Have Let McVeigh Go Free.” The Washington Post, (August 6):A21. Wilson, J.Q. (1986). American Government: Institutions and Policies (3rd ed). Lexington, MA: D.C. Heath & Company. Wright, B.F., C.A. Miller & B.T. Cooper (1984). Federal Practice and Procedure. St. Paul, MN: West Publishing Company.

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CHAPTER 2 Victim Blaming Helen Eigenberg and Tammy Garland

Early systems of justice were quite different from our modern ones and victims had a different role. In fact, one can argue that victims historically played a more significant role in determining “justice.” Early systems of justice did not rely upon incarceration as a means of punishment. Prior to the creation of jails and prisons, justice was more often focused on retribution which meant that offenders were punished in proportion to the level of victimization they had caused. As a result, restitution was common. In other words, attempts were made to make the victim “whole again” or to return them, as near as possible, to their previous state as a non-victim. This “eye for an eye” philosophy generally resulted in payments to the victim and his/her family. The development of the American criminal justice system tended to follow another path. Major philosophers of the time, such as Locke and Hobbes, gave rise to the idea of the social contract. These philosophers stressed that crime is a threat to the social order, more so than a harm to individuals. As such, crime, and therefore victimization, became a state matter. This ideology resulted in the development of two related, but separate, justice systems in America. The criminal justice system deals with crimes against the state and the civil system is available to redress harm to individuals. So if one is a victim of robbery, the punishment will likely be incarceration for the crime committed against the state. The victim has little to no say in the charging, conviction, or sentencing process. Instead, he or she is merely part of the evidence. In contrast, victims may take the offender to civil court where damages may be awarded – if the victim has the resources to pursue a civil case and if the offender has any to be awarded to the victim. The structure of the American justice system, then, in large part shifted the focus from harm to victims to harm to the state; thus, it can be argued that victims lost their role in the criminal justice system (although they retain it in the civil system). Thus part of the focus for the victims’ rights movement has been to put the victim back in the system.

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Ironically, one of the ways that victims re-emerged in the study of crime related to the ways that they contributed to their victimization. Victim blaming, victim facilitation, and victim precipitation are some of the many labels used to examine the concept of shared responsibility for criminal acts. Generally speaking, victim precipitative behaviors are those which cause victims to bring about their own victimization. For example, “a woman who walks alone toward her car on an unlighted street at night causes her own rape as surely as the man who precipitates his car theft by accidentally leaving his car keys in the car ignition or the man who slaps his wife and brings about his own demise” (Franklin & Franklin, 1976). As one might image, this type of approach has caused a great deal of controversy.

Theorizing Victimization There is historical tendency to place responsibility for victimization on the victim, at least to some degree. Early victimologists, for example, created typologies which classified victims according to their degree of responsibility. von Hentig (1941, 1948) was one of the first victimologists to engage in this process. His work clearly was focused on explaining criminal behavior, but he was one of the first scholars to examine the role of victims in an attempt to understand criminality. He examined the degree to which people were victim prone and argued there were “born victims” just as there were “born criminals.” Born victims were self-destructive individuals who solicited the actions of their “predators” (1941:303). He developed a typology based on psychological, social, and biological factors and classified victims according to 13 categories reflecting varying “risk” of victimization. For example, he argued that both the young (children and infants) as well as the elderly were victim prone as were immigrants (because of their lack of familiarity with the language and culture) and minorities (because they were “racially disadvantaged”). Other categories included the “mentally defective” (including insane individuals as well as those addicted to drugs and alcohol), dull normals (individuals with low intelligence), depressed individuals, wanton people (i.e., promiscuous), tormentors (abusive parents), and the “acquisitive” who were greedy individuals. “Lonesome and heartbroken” widows/widowers and the “blocked, exempted or fighting” individuals were who victims of blackmail, extortion and confidence games also were separate categories. Finally, women, as a group, were born victims because they were weak and easy prey. Some of these people represented in his typology indicate groups who are more vulnerable to victimization simply because of who they are and their social status (e.g., the young, elderly, mentally ill, and immigrants). Other groups, however, place themselves in situations that make them vulnerable (e.g., the acquisitive individual or those who fall victim to extortion). von Hentig acknowledged that in some cases victims made “little or no contribution” to their victimization, but he also argued that more often

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there was a “reciprocal action” between perpetrators and victims. As such, the victim was no longer a passive object, but an active subject in the process of criminalization. In other words, victimization was a process of social interaction. This conclusion led other victimologists to study the process of becoming a victim. Many victimologists followed von Hentig’s example and devised various typologies which categorized the degree of shared responsibility between victims and offenders (Barnes & Teeters, 1959; Fattah, 1967; Karmen, 1980; Lamborn, 1968; Mendelsohn, 1963; Schafer, 1968; Sheley, 1979; Silverman, 1974). Mendelsohn (1956, 1963) is one of the most famous of these early victimologists; he is often referred to as the “father of victimology” because he used that term in an early paper presented at a conference in Bucharest in 1947 (see Knaper & Herbers, 2006). He was Rumanian (and later Israeli) and a practicing attorney who developed an interest in victims because he observed that most of his cases involved pre-existing interpersonal relationships. He coined the terms victimology and victimity which referred to the common characteristics that define all victims (e.g., the things they all share). Given his legal background as a defense attorney, it is not surprising that he established a typology classifying victims based on victim culpability or the degree of guilt that could be attributed to the actions of the victim. He identified six categories of victim. Completely innocent victims bear no responsibility for their victimization and did nothing to contribute to the act. Victims with minor guilt are those whose inadvertent actions led to victimization. Voluntary victims actually helped create their victimization. Most guilty victims initiate a crime against another person and then end up being victimized instead (e.g., a robber who is murdered). Imaginary victims are delusional and/or fabricate a crime based on personal motivations (e.g., to get someone in trouble for committing a crime that did not exist). While his earlier work focused mainly on categorizing victims based on their role in criminal acts using a narrow view of criminality (e.g., what we would call street crime today), his later scholarship (1976, 1982) significantly broadened this perspective to include victims of work accidents and genocide. This typology identified five types of victims: (1) victims of criminals; (2) victims of one’s self (suicide, subconscious impulses, self-destructive behavior); (3) victims of anti-social behavior on the part of the environment (e.g., social oppression, class discrimination, genocide, war crimes); (4) victims of technology (e.g., insufficient testing of a medicine which produces harm) and (5) victims of the natural environment (floods and hurricanes). In general, Mendelsohn argued the goal of victimology was to find ways to produce fewer victims, thereby introducing the concept of victim prevention, but his views on victimization also allowed for determining the culpability of the victim which contributed to the development of the concept of victim precipitation. Like von Hentig, Mendelsohn clarified that some victims were not directly responsible for their victimization, but he also argued that some victims were guiltier than the offender. This type of thinking was

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influential in creating a conceptual climate whereby victims began to share responsibility for their victimization. Merging the work of von Hentig and Mendelsohn, Schafer (1968) based his classification of victims on functional responsibility rather than risk factors. He identified seven types of victims. Schafer’s typology categorized victims with regards to responsibility: no responsibility (unrelated, biologically weak, socially weak, and political victims), little responsibility (precipitative victims), and moderate/high responsibility (provocative and self-victimizing victims). Unrelated victims are individuals who are the unfortunate recipient of an offenders’ criminal behavior and thus bears no responsibility for the act. Likewise, biologically weak victims (e.g., elderly, young, physically handicapped) and socially weak victims (immigrants and minorities) bear no responsibility for their victimization; they simply are attractive targets due to physical or social characteristics. Similarly, political victims who are victimized because they opposed people and institutions in power also bear no responsibility for their victimization. Provocative victims share some responsibility because the offender is reacting at some level to the behavior of the victim. Precipitative victims also bear some responsibility as they directly place themselves in situations that can result in victimization (e.g., based on

Figure 2.1: Comparisons of Victim Responsibility: von Hentig, Mendelsohn, and Schafer von Hentig Concept: Victim Prone Individuals

Mendelsohn Concept: Victim Culpability

Schafer Concept: Functional Responsibility

• No Victim Responsibility

• Young/Children • Females • Old/Elderly • Mentally Defective/ Mentally Ill • Immigrants • Minorities • Dull Normals

• Completely Innocent Victims

• Unrelated victims • Biologically Weak Victims • Socially Weak Victims • Political Victims

• Low Victim Responsibility

• Depressed People • Wanton Individuals • Lonesome/Heartbroken • Blocked/Exempted/ Fighting

• Victims with Minor Guilt • Victims as Guilty as the Offender • Victim more Guilty than Offender

• Precipitative Victims

• Moderate/ High Victim Responsibility

• Acquisitive • Tormenter

• Most Guilty Victim

• Provocative Victims • Self-Victimizing

• No Victimization

• Did not address

• Imaginary victim

• Did not address

Level of Response

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how they dress or by frequenting certain places); however, self-victimizing individuals are deemed to bear total responsibility for their victimization. These individuals engage in activities such as drug use, prostitution, and gambling; therefore, their participation in “illegal” activities is deemed to make them totally culpable if they are victimized (e.g., the prostitute who gets robbed by her client). Rather than simply being a victim, individuals cause transgressions against them due to negligence or provocation. Schafer’s concept of “functional responsibility,” therefore, maintained it is the responsibility of the victim to actively prevent their own victimization from occurring (Wallace, 2007). While von Hentig, Mendelsohn, and Schafer all differed in how they classified the level of precipitation caused by the victim, all of them are similar in many respects (see Figure 2.1). These approaches tend to divide some finite amount of responsibility between victims and offenders. Victims can be fully responsible, completely innocent of precipitation, or somewhere in between. Proponents of this perspective contend that the victim’s actions are important and influence the way the criminal justice system responds to the offender as well as the way in which the public views the crime. Opponents argue that victim precipitation results in blaming the victim and diverts attention away from perpetrators and their responsibility for the crime. The concept of victim blaming, then, is used to help address several important questions about victimization. Who is responsible for the criminal act? Is it the offender, the victim, or both? Is one more responsible than the other? Is it appropriate to examine the role of the victim at all? Do crime prevention efforts require consideration of victims and any role they may play in their victimization? What role does society play in victim blaming? This chapter addresses these issues. It addresses the development of the concept of victim precipitation, discusses problems with the concept of shared responsibility and examines why the approach is so popular.

Development of the Concept of Victim Precipitation While the concept of victim precipitation was evident in the earliest literature on victimology, the term itself owes its origins to two classic criminological studies. Marvin Wolfgang (1958) first coined the term victim precipitation in his classic work on homicide, and it was further popularized by his student, Menachim Amir, who applied the concept to rape. Wolfgang examined homicide records in Philadelphia from 1948-1952 and found that victims initially had used physical force against their perpetrators in about one out of every four cases of murder. They may have drawn weapons or physically assaulted the other party who, in turn, then killed the initial aggressor. These cases were deemed to be victim precipitated. Wolfgang also found that these cases often involved victims and offenders who were known to each other and that they had experienced prior altercations

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with one another. Victims of precipitated homicides were more likely to have been drinking prior to their homicides than victims who had not initiated any violence toward their perpetrators. Most victim precipitated homicides involved male victims, and most of them were murdered by other males. Few women committed homicide, although when women did murder, it was often in response to men who had initiated violence toward them. Amir (1971) also used Philadelphia police files to analyze rapes reported in 1958 and 1960. He considered a rape to be victim precipitated when males believed that females had consented to sexual acts but then rescinded their original acceptance. According to Amir, victim precipitated rapes were those rape situations in which the victim actually, or so it was deemed, agreed to sexual relations but retracted before the act or did not react strongly enough when the suggestion was made by the offender(s). The term applies also to cases in risky situations marred with sexuality, especially when she uses what could be interpreted as indecency in language and gestures, or constitutes what could be taken as an invitation to sexual relations (1971:266).

In other words, it was the offender’s interpretation of the events which was crucial to identifying the victim as blameworthy; therefore, a victim’s behavior was not as important as the “offender’s interpretation of her actions” (1971:20). Thus, if the victim was perceived to be acting provocatively or seductively, or if she had a “bad” reputation, the rape was defined as victim precipitated. This also was the case if she engaged in other “risky” behavior such as drinking, going to bars alone, wearing revealing clothing or hitchhiking. Despite the very broad definition of victim precipitation used in Amir’s study and the focus on the offender’s interpretation of the victim’s acts (rather than her actual behavior), a relatively small proportion of the rapes qualified as victim precipitated: only 19 percent or about one in five rapes. These “victim precipitated rapes” were more likely to involve white females or teenage girls than adult women or women of color, and these victims were more apt to have met their rapist(s) at bars or parties than were women whose rapes which did not involve victim precipitation. Amir’s research was criticized a great deal, in large part, because of his focus on the perpetrator’s interpretations of the victim’s actions. This interpretation rendered the actual behavior of the victim meaningless. For example, a woman could have been held down and raped while she was screaming no, but it would have been a victim-precipitated rape if the offender believed she had originally consented, if she had a reputation for having multiple sexual partners, or if she engaged in any of the other factors which made her culpable according to Amir. As Weis and Borges (1973) note, the “only ingredient necessary for constituting a victim precipitated rape is the offender’s imagination” (1973:80). Amir’s work and subsequent theorists who use the concept of victim precipitation also apply the concept in ways that deviate substantively from

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Wolfgang’s initial conception. Remember that Wolfgang argued that victim precipitation occurred when a victim first initiated violence. These victims first committed or attempted to commit a crime. In other words, they were murdered after they attempted to assault or murder someone else. This logic does not flow in the same way in Amir’s study. His victims were not raped after attempting to rape someone else. Thus, the original conceptualization of victim precipitation was altered significantly in ways that most contemporary victimologists fail to consider. Amir’s work also was criticized because of his overly broad generalizations. For example, he concluded that “in a way, the victim is always the cause of the crime” (Amir, 1971:258). These types of statements go way beyond his data and exaggerate the degree of victim precipitation – even when using his own broad definition. Amir, then, was accused of using rape myths to blame victims and giving scientific legitimacy to this practice (see Ward, 1995); however, many other issues also surface when victimology concentrates on the notion of shared responsibility. Other theories regarding victimization emerged, and many, including lifestyle and routine activities, continue to place blame on the victim. Both lifestyle and routine activities emphasize how “situations and/or contexts carry their own level of risk for victimization” (Schreck & Fisher, 2004:1023). Hindelang, Gottfredson, and Garafolo (1978) determined that one’s lifestyle was the major factor in ascertaining the risk for criminal victimization. Social structure, role expectations, demographic characteristics, daily routine, and exposure to certain groups were determinants as to whether an individual would be victimized. Hence, individuals who come into contact with groups of a criminal nature on a regular basis are more likely to be victimized. For example, young persons are more likely to be victimized than older persons due to the disproportionate exposure to those who may be involved in crime and delinquency (Wallace, 2007). This theoretical perspective assumes that people can reduce their risk of victimization by taking less risks such as staying home at night, refraining from public places (especially “dangerous ones”), and staying away from violent situations. It is problematic to assume that one can predict these things, but it also fails to sufficiently account for a variety of victimization experiences especially interpersonal violence. For example, women might avoid date rape and domestic violence if they never engaged in intimate relationships; however, this is not a realistic approach to crime prevention. Furthermore, it implies that victims who engage in “risky” lifestyles are somehow to blame for their victimization. Similar to lifestyle theory, “the routine activities approach” maintains that the convergence in time and space leads to crime and victimization. In order for victimization to occur, there must be a suitable target, a motivated offender, and the absence of a capable guardian (Cohen & Felson, 1979). Suitable targets present easy access and escape, offer some reward, and generally involve an element of portability (e.g., property that can easily be moved). A motivated offender is one who is easily tempted and/or provoked

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as well as one who is idle and/or bored. The absence of a capable guardian includes parents, neighbors, authorities and/or friends who might be in a position to thwart victimization. Hence, the risk of victimization increases when an individual’s daily routine and activities brings that person and/or his or her property in close proximity with a motivated offender in the absence of a capable guardian (Cohen, Kluegel & Land, 1981; Cohen & Felson, 1979; de Coster, Estes & Mueller, 1999). Although the theory has traditionally been linked to property crimes, especially burglary and robbery, current research has been applied to predatory crimes such as rape, stalking, and sexual harassment (de Coster, Estes & Mueller, 1999; Fisher, Cullen & Turner, 2002; Mustaine & Tewksbury, 1999, 2002). Researchers substantiate routine activities theory by demonstrating the correlation between exposure to risk and actual victimization; therefore, victims can (theoretically) reduce their chances of victimization by making themselves a less convenient target (sometimes referred to as target hardening). This perspective assumes that criminality is a product of rational thought processes as opposed to a series of random events. While victims may be able to make themselves a less attractive target for car theft by taking their keys out of their vehicle, it is less clear how victims of acquaintance rape or domestic violence, for example, could make themselves less vulnerable or that it would make much difference to their offenders if they were not such an “easy” target. While these approaches have remained popular, they continue to emphasize that victims precipitate their own victimization, at least to some degree. Karmen (2004) further cautions that blaming those who are victimized creates a system which results in stigmatization, which also is counterproductive to the objectives of the criminal justice system.

Problems Associated with the Concept of Victim Precipitation The concept of victim blaming has many weaknesses. Some of these weaknesses include the use of tautological reasoning, conceptual difficulties, placing undue responsibility on victims, creating culturally legitimate victims, and excusing offenders’ behaviors. These problems are briefly reviewed in the following sections.

Tautological Reasoning or Circular Thinking Historically, criminologists have concentrated on identifying the differences between criminals and those who obey the law. Likewise, victimologists have been concerned with studying the process of victimization to determine if there are differences between victims and non-victims; however, these types of studies have serious methodological flaws. They rely upon samples of vic-

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tims in order to determine common characteristics which contribute to victimization, although these studies fail to evaluate the degree to which non-victims in the general populations also exhibit similar behaviors. This has resulted in circular reasoning. As Franklin and Franklin (1976) explain: The victims’ precipitative behaviors lead to the criminal deeds because the victims’ behaviors were precipitative. The interrelatedness of the independent and dependent variables “victim precipitation” and “victimization” becomes more apparent when an attempt is made to identify victim precipitation in the absence of victimization. For example, a woman walking alone at night on an unlighted street under present conceptions of victimology can hardly be thought of as engaging in crime precipitative behavior if no criminal act takes place (1976:127-128).

In other words, empirical research has failed to identify any common characteristics that cause one to become a victim other than the process of victimization. The only thing that causes one to be a victim is the process of being victimized and the process of being victimized is the only thing that distinguishes victims from non-victims.

Conceptual Weaknesses Victim precipitation, by definition, asks whether victims bear some proportion of blame because of their actions. As a result, it creates a continuum whereby victims conceptually can be found to range from totally blameless on one end to fully responsible on the other (Karmen, 2004). Completely innocent victims are not blamed for their victimization and bear no responsibility for their victimization. For example, with respect to property offenses, they took all the actions they could to protect their belongings. They bought and used locking devices, burglar alarms, and other deterrent devices. With respect to crimes of violence, they limited their contact with dangerous people and did not instigate any criminal acts or confrontations with potentially violent people. At the other end of the continuum, victims may be fully accountable and totally responsible for their victimization. The notion of totally innocent victims is problematic because it implies that all other victims bear some degree of responsibility. With the advantage of 20/20 hindsight, most victims could have “done more” to prevent their victimization which makes the “totally innocent” victim quite rare. It also implies that victims know how to prevent their victimization and ignores that many people in our society face disproportionate risk of victimization. Furthermore, even if it were possible to fully “protect” property, it is even more difficult to image how individuals are supposed to ensure that they refrain from contact with dangerous people. If they were all identified by a scarlet letter, this might be possible. Absent such an identification system, people

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will clearly associate with individuals without any knowledge that they might be violent. For example, most crimes against women are committed by intimates. How should women conduct themselves to ensure they are not exposed to danger in order to retain their status as totally innocent victims? The concept of fully responsible victims is also problematic. As Karmen (2004) notes, a victim can only be totally responsible when there is no offender at all. In these cases, victims are not victims but offenders posing as victims for some ulterior motive. For example, a person who has paid someone to steal his/her car and reports it to the police is a criminal masquerading as a victim. The fact that the only totally responsible victim is actually an offender destroys the intellectual integrity of the continuum of victim responsibility. Instead of varying degrees of victimization, the continuum actually represents distinctions between victims and offenders. This conceptual weakness may help explain why the focus of much victimological work has been on creating typologies to classify victims rather than discussing any theoretical rational for a continuum of blame.

Places Undue Responsibility on Victims The notion of victim precipitation also is problematic because it places an unwarranted level of responsibility on victims to prevent their own victimization and many of these actions would require victims to drastically alter their lives. Victims may be able to prevent their victimization by staying in their houses which have bars on the doors and windows; however, most people have to go out sometime and some people live in neighborhoods where crime is rampant making it difficult to minimize the risk of harm. Furthermore, many battered women are, in fact, imprisoned in their homes with “criminals” who beat them and lack any means to prevent their victimization. And even if it were possible to protect oneself from all victimization, many people do not want to live that way. It may be better to risk a burglary than to feel like one lives in a fortress. It may be preferable to risk being robbed by going out at night rather than feeling restricted in one’s freedom to go out in public. Sometimes, risk is incurred because of events beyond the control of individuals. For example, if a woman’s car breaks down on the interstate and she does not have a cell phone, she may have to accept a ride from a stranger in order to get assistance (or risk spending the night on the side of the road waiting for someone to help with no guarantee that they are trustworthy either). Thus, in some circumstances, people have no choice but to engage in “risky” behavior.

Creates Culturally Legitimate Victim Ryan’s (1971) classic work describes the process of victim blaming. He contends that victims first must be seen as deficient in some way; e.g., that

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there is something wrong with them. Victims can be distinguished from nonvictims based on their attitudes, behavior, or some basic characteristic. Then these differences are assumed to be the cause of their victimization. If they were not different, they would not be victimized. Victims are then warned that they must change in order to become like the non-victim group if they are to avoid victimization, and if they fail to avoid victimization they are to blame. Finally, some governmental bureaucracy or social service agency is assigned responsibility for dealing with “the problem.” An important part of this process, then, begins with defining groups of people as deficient, because they then become culturally legitimate or deserving victims. In fact, the process of creating legitimate victims is central to many types of crimes. For example, in the Holocaust, definitions of ethnicity were used to demonize Jews and to make it palatable to victimize them. Similarly, gays or lesbians are viewed as legitimate victims of hate crimes because they would be innocent victims if they were heterosexuals. They only need to change their sexual orientation to protect themselves; or at a minimum, go to heroic lengths to ensure that no one knows that they are gay. Prostitutes are blamed for their victimization if they are raped because they engage in sexually risky and promiscuous behavior in the first place. They do not warrant our sympathy or any response by the criminal justice system. The process of creating culturally legitimate victims makes it more acceptable for some types of people to be victimized and society is less willing to use its resources to do anything about it. As Weis and Borges note, some victimologists have . . . turned victimology into the art of blaming the victim. If the impression of a “legitimate victim” is created, then part of the burden of guilt is relieved from the perpetrator, and some crimes, like rape for example, can emerge as without either victims or offenders (1971:85).

This process of creating culturally legitimate victims is harmful to victims. They are further traumatized when society engages in victim blaming. Not only must they deal with the consequences of the victimization itself, but they must cope with the added burden of being told that they are, in some part, to blame. It is no wonder then why some victims of crime are reluctant to reveal their victimization to the police and/or researchers conducting victimization surveys. Many victims use silence to protect themselves from the additional victimization that occurs when they are blamed for their own plight.

Excuses Offenders Behavior and Diminishes Responsibility If, in fact, there is some finite amount of responsibility to be allocated for any crime, then, by definition, offenders escape full responsibility for

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their acts when victims are blamed. “Attention is focused on the behavior and motives of the victim rather than on the offender” (Scully, 1990:45). The concept of victim precipitation provides a cultural framework which offenders can use to rationalize their behavior (Fattah, 1976; Sykes & Matza, 1957; Scully, 1990; Stanko, 1993). According to offenders, victims, then, ask for or deserve what they get; or at the extreme end of the continuum, they deny any harm whatsoever. For example, Scully’s study of convicted rapists demonstrated that these offenders used culturally accepted stereotypes about women to create legitimate victims who were blamed for their own victimization. A couple of quotes from the rapists are quite illustrative. For example, one man convicted of a gang rape stated: “I’m against hurting women. She should have resisted. None of us were the type of person that would use force on a woman. . . . I loved her – like all women” (1990:129). Another serial killer and rapist reported that his victims physically “enjoyed the sex [rape]. Once they got involved, it would be difficult to resist. I was always kind and gentle until I started to kill them” (1990:130). A man who abducted his victim at knifepoint on the street stated “to be honest, we [his family] knew she was a damn whore and whether she screwed 1 or 50 guys didn’t matter” (1990:108). These victim blaming views affect the way that individual offenders excuse their behavior, but because they are culturally derived, their excuses have a staying power that goes individual rationalization. For example, attorneys use these same stereotypes to try to garner sympathy from judges and juries. Likewise, prosecutors can sometimes be wary of initiating cases against victims who appear culpable or who are viewed as culturally legitimate victims. These actions suggest that society, as a whole, is very supportive of the notion of victim precipitation.

Popularity of Victim Precipitation This brief overview has demonstrated that there are many problems associated with the concept of victim precipitation and that engaging in blaming victims may be harmful to many (most) victims, then is seems logical to ask why it is that we, as a society, continue to endorse these beliefs? There are several possible answers to this question. First, victim blaming is consistent with another powerful set of societal beliefs involving a just world (Lerner, 1965). Most individuals want to, or in fact do, believe that people get what they deserve in society. In other words, bad things do not happen to good people. This type of thinking also allows people to feel a false sense of security. It implies that everyone has control over their lives and that individuals can prevent victimization if they simply take certain precautions and behave in certain ways. It allows people to avoid the alternative conclusion – that crime is often random and unpredictable, and that victims can do little to prevent it.

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Second, victim blaming perspectives allow for, conceptually, the idea of victim prevention. While this may give people a (false) sense of empowerment as individuals, it also may increase the harm done when people are victimized. Imagine a woman who has attended a rape crisis training session and who has taken copious notes about how to stare strangers in the eyes, to always walk assertively, to carry keys between her fingers to use them as a weapon, to scream if she is abducted to get help, and so on and so on. This same woman is abducted by a stranger with a knife in a parking lot and is raped. She is so scared she does not scream or resist in any other physical ways. She may blame her self even more than a woman who had not taken any victim prevention courses if she feels that she failed to take the “appropriate” actions to protect herself. Third, victim blaming helps answer difficult questions about the motivations of offenders and diverts attention from traditional criminology’s inability to prevent crime. Traditional criminology has spent most of this century examining the distinctions between criminals and noncriminals and identifying reasons for criminality, however, it has not made much headway. Thus blaming the victim in some cases is easier to understand than the motivations of the criminal. Furthermore, concentrating on the victims allows us to shift our attention from offenders as a means to prevent crime. The new focus on victims and victim prevention has coincided with the failure of traditional crime prevention techniques. One might argue that the criminal justice system and criminology shifted the focus from offenders to victims out of necessity. Unable to devise strategies to control crime, the attention is shifted to victims and victim prevention. In both instances, however, the focus continues to be on personal accountability and the actions of individuals while social structural examinations remain rare. Individual level explanations are very popular in the United States. As a society, we tend to endorse the idea that criminals have free will and choose criminality. Victims fail to take sufficient preventative measures and therefore cause their own victimization. Neither explanation examines crime as a social problem rooted in the social structure. For example, poverty causes some offenders to commit crime as a means to secure economic goods necessary for survival. Poverty also makes people more vulnerable to victimization. Poor people are more apt to live in neighborhoods where crime is higher and are less apt to be able to afford security alarms and other types of preventative measures. In other words, both crime and victimization could be prevented by making an effort to reduce poverty. Actions could include changing welfare systems, tax structures, or creating employment opportunities in low income neighborhoods. However, individual level explanations do not require an examination of the social structure. By failing to examine the social structure, victimology, for the most part, also ignores the ways in which political power affects our understanding of both crime and victimization. For example, a broader definition of

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victims might challenge social definitions of crime in rather dramatic ways. As Elias notes, What if we learned that law enforcement sought to maintain or manage crime, not to prevent or reduce it, or sought social control of certain population groups, not crime control? What if crime waves, media coverage and official crime statistics had little to do with the real victimization level? What if we found our fears and insecurities about crime artificially manipulated for political purposes? Suppose we discovered that most people commit crime, not just certain groups? What if the real career criminals were corporate offenders, not common criminals? What if we found that victims have often been offenders before, and vice versa? What if we discovered that we were as likely to be victimized by a friend or relative as by a stranger (1986:4)?

In other words, victimology has the power to transform our understanding of crime and victimization, although this is not likely to happen unless the field of victimology also changes. Victimology today tends to concentrate on pitting victims against offenders and ignores the role of social structure. Although victimology, as a field of study, began by examining victims in the broadest sense of the word (e.g., including victims of natural disaster, the Holocaust), contemporary victimology concentrates almost exclusively on victims of street crime (Elias, 1986). Doing so provides Americans with a narrow definition of crime and victimization and creates a “limited social reality of crime” (Elias, 1986:3). Harms such as white-collar crime, consumer fraud, pollution, toxic waste dumping, workplace hazards, police violence, and interpersonal violence by intimates generally fail to be defined as crime. As a result, these victims also fail to be defined as such. The concept of victim precipitation has been central to the study of victimology; however, it has posed many difficulties. Not only does it cause further victimization to some victims who blame themselves or who experience victim blaming by the criminal justice system or others in society, but it affects our very conceptualization of crime and victimization. It keeps us from asking very different questions which might drastically alter our understanding of both crime and victimization.

References Amir, M. (1971). Patterns in Forcible Rape. Chicago: University of Chicago Press. Barnes, H. & N. Teeters (1943). New Horizons in Criminology. New York: Prentice Hall. Cohen, L.E. & M. Felson (1979). “Social Change and Crime Rate Trends: A Routine Activity Approach.” American Sociological Review, 44, 588-608. Cohen, L.E., J.R. Kluegel & K.C. Land (1981). “Social Inequality and Criminal Victimization.” American Sociological Review, 46, 505-524.

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De Coster, S., S.B. Estes & C.W. Mueller (1999). “Routine Activities and Sexual Harassment in the Workplace.” Work and Occupations, 26(1), 21-49. Doerner, W.G. & S.P. Lab (2008). Victimology, Fifth Edition. Newark, NJ: LexisNexis/Matthew Bender. Elias, R. (1986). The Politics of Victimization: Victims, Victimology and Human Rights. New York: Oxford. Fattah, E. (1976). “The Use of the Victim as an Agent of Self-legitimization: Toward a Dynamic Explanation of Criminal Behavior.” In E.Viano (ed.) Victims and Society (pp. 105-129). Washington, DC: Visage. Fisher, B.S., F.T. Cullen & M.G. Turner (2002). “Being Pursued: Stalking Victimization in a National Study of College Women.” Criminology and Public Policy, 1, 257-308. Franklin, C. & A. Franklin (1976). “Victimology Revisited.” Criminology, 14, 125-136. Hindelang, M.J., M.R. Gottfredson & J. Garofalo (1978). Victims of Personal Crime: An Empirical Foundation for Theory of Personal Victimization. Cambridge, MA: Ballinger. Karmen, A. (2004). Crime Victims, Fifth Edition. New York: Wadsworth. Karmen, A. (1980). “Auto Theft: Beyond Victim Blaming.” Victimology, 5, 161-174. Knaper, M. & I. Hurbers (2006). “The Victim and Victimology.” Tilburg Research: Victim Empowerment, 491, 22-23. Lamborn, L. (1968). “Toward a Victim Orientation in Criminal Theory.” Rutgers Law Review, 22, 733-768. Mendelsohn, B. (1982). “Socio-analytic Introduction to Research in a General Victimological and Criminological Perspective.” In H. Schneider (ed.) The Victim in International Perspective. New York: Walter de Gruyter. Mendelsohn, B. (1976). “Victimology and Contemporary Society’s Trends.” Victimology, 1, 8-28. Mustaine, E.E. & R. Tewksbury (2002). “Sexual Assault of College Women: A Feminist Interpretation of a Routine Activities Analysis.” Criminal Justice Review, 27, 89-123. Mustaine, E.E. & R. Tewksbury (1999). “A Routine Activity Theory Explanation for Women’s Stalking Victimizations.” Violence against Women, 5(1), 43-62. Schafer, S. (1968). The Victim and His Criminal. New York: Random House. Schreck, C.J. & B.S. Fisher (2004). “Specifying the Influence of Family and Peers on Violent Victimization: Extending Routine Activities and Lifestyles Theories.” Journal of Interpersonal Violence, 19, 1021-1041. Scully, D. (1990). Understanding Sexual Violence: A Study of Convicted Rapists. Boston: Unwin Hyman. Sheley, J. (1979). Understanding Crime: Concepts, Issues, and Decisions. Belmont, CA: Wadsworth. Stanko, B. (1993). Intimate Intrusions: Women’s Experiences of Male Violence. Boston: Unwin Hyman. Silverman, R. (1974). “Victim Precipitation: An Examination of the Concept.” In I. Drapkin and E. Viano (ed.) Victimology: A New Focus (pp. 99-110). Lexington, MA: Heath.

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von Hentig, H. (1948). The Criminal and His Victim: Studies in the Sociobiology of Crime. New Haven, CT: Yale University Press. von Hentig, H. (1941). “Remarks on the Interaction of Perpetrator and Victim.” Journal of Criminal Law and Criminology, 72, 742-762. Wallace, H. (2007). Victimology: Legal, Psychological, and Social Perspectives, Second Edition. Boston: Pearson. Ward, C. (1995). Attitudes toward Rape: Feminist and Social Psychological Perspectives. Thousand Oaks, CA: Sage. Weis, C. & S. Borges (1973). “Victimology and the Case of the Legitimate Victim.” In L. Schultz (ed.) Rape Victimology (pp. 91-141). Springfield, IL: Charles C Thomas. Wolfgang, M. (1958). Patterns in Criminal Homicide. Philadelphia: University of Pennsylvania Press.

CHAPTER 3 Same-Sex Intimate-Partner Violence – Lifting the Veil of Denial Anne Sullivan and Kristen Kuehnle

Defining the phenomenon of individuals who abuse their current or former partners has been problematic. Domestic violence is not adequate because the term includes child abuse, elder abuse and sibling abuse. Spouse abuse masks the gendered nature of the abuse. Wife abuse or wife battering omits couples who are not married, who are dating, and who are ex-spouses. More recently, the term intimate-partner abuse has been used to describe this phenomenon. Intimate-partner abuse describes current or former intimate relationships where one or both partners are violent toward each other, in either heterosexual or same-sex relationships (Belknap, 2007). There also is not complete agreement as to what qualifies as intimate personal violence. These difficulties partly stem from the frequency of the abuse. Some researchers do not consider a one-time incident to be intimate-partner abuse, instead there needs to be a systematic occurrence. However, the psychological effects of one incident can affect the victim, who then lives in fear that it can occur again. In most cases, violence and the threat of nonviolence are ongoing, with different categories of violence operating simultaneously. Tong (1984) identified four categories of intimate-partner abuse, also indicating that more than one of the four types occurs within the same abusive relationship. The first category is physical abuse, i.e., slapping, kicking, hitting, or any form of nonsexual physical violence. The second category, sexual abuse, indicates a sexual nature to the violence, i.e., beating on the genitals, some form of rape. The third category, psychological abuse, can be minimized in an abusive situation; however it can be extremely harmful. The offender threatens, demeans, and discredits the victim. The final category is destruction of pets and property, i.e., automobiles, homes, animals belonging to the victim. As Tong (1984) notes three common themes are present

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within these four categories. Each result in harm to the victim; each manifests domination and control; and all occur in intimate relationships. Whether intimate-partner abuse is gendered is debated. An extensive amount of research indicates that men tend to batter women in approximately 95 percent of intimate-partner abuse situations (Browne, 1987, 8; Dobash, Dobash, Cavanagh & Lewis, 1992). Rennison and Welchans (2000), using data from the 1998 National Crime Victimization Survey, found that 85 percent of intimate-partner violence cases involved female victims. When considering male victims, some research views men and women as mutually combative or inflicting similar amounts of violence on each other in intimate relationships (Straus, 1990, 1991; Straus & Gelles, 1986.) These findings rest on the use of the Conflict Tactic Scale, an instrument that does not take social contexts into account and ignores injurious acts, such as suffocating, sexual assault, scratching, and even stalking (DeKeseredy (1995, 162). Belknap and Melton (2005) suggest that greater gender similarity is typically at the more minor levels of violence, i.e., slapping; and greater gender disparities in victimization and offending occur at the more serious levels, i.e., punching.

Historical Recognition of Wife Abuse Nonsexual physical abuse of women was not identified as a social problem until the 1970s. Physical abuse by men toward their wives has been recorded for hundreds of years and generally been viewed as acceptable, expected behavior; and there were few laws criminalizing wife beating. Several factors have kept and continue to keep intimate-partner abuse hidden. Victims themselves may be reluctant to define themselves as victims, especially if it happens only once or twice a year. This tendency is further exacerbated by the abuser’s tendency to minimize the frequency of seriousness of the violence. When confronted, abusers use excuses or justifications in order to deny responsibility. Justifications include “blaming the victim” for causing the abuse because she is a bad cook, is not deferential, or does not know when to not speak. British common law has influenced U.S. law, and historically women were defined as men’s property. Wife battering was not defined as a crime. Rape in marriage did not exist. States varied in their laws and in the implementation of the laws, and violence against a female spouse was legal or tolerated. A ruling in 1894 held that wife beating was legal as long as it was not extreme, and this ruling set a precedent (Bradley v. State, l Miss. (1 Walker) 156, 158 (1824)). The ruling was finally repealed [later?] in 1894; however, the prevailing attitude remained that wife battering was not a serious problem. Police officers believed that they should not be involved in personal affairs of the family. It was treated as a private matter and a common tactic

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when responding to a call was to try and calm the people down and leave as quickly as possible. Oppenlander (1982) compared domestic violence encounters to other kinds of disputes encounters. Dispatchers were less likely to depict domestic cases as assault, though when the police arrived, they were more likely to find agitated and upset parties than in other types of disputes. The officers spent more time in private discussions with the male offenders than in questioning and offering assistance to the victim. Race and class also impacted police response. Research has found that police officers endorsed stereotypes of African-American culture and families (Collins, 1990; Hampton, 1987). African-American women were viewed as providing provocation for abuse and being more accepting of it. While not as well documented, some jurisdictions handle abuse in upper-class, white families informally (Smith & Klein, 1984). The application of early theories also affected the criminal justice system’s responses to victims. Learned helplessness theory was applied to battered women as an explanation for remaining with the abuser. Battered woman syndrome was used as part of a defense strategy with women who killed their husbands. While the use of battered woman syndrome helped some females avoid harsh sentences; it also reinforced the ideas of an abnormal woman who stays with an abusive husband and that the killing was the manifestation of a mental disorder. Because learned helplessness was a part of battered woman syndrome, women were also unfit mothers; and this argument was used as the basis for the removal of children from abused mothers. The theories and defense strategies actually shifted attention away from the danger that a woman was in, to her psychological problems and her inability to be a fit mother. These theories perpetuated the belief that intimate-partner violence is a gender issue. Although research suggests that women are the primary victims of intimate-partner violence, characterizing domestic abuse as gender specific ignores the existence of violence in other contexts including same-sex relationships. The purpose of this chapter is to demonstrate that intimate-partner violence in same-sex relationships is a serious social problem while simultaneously dispelling the myths surrounding its occurrence.

Same-Sex Battering: Does It Exist? In the early 1990s, a number of seminal studies were conducted to gauge the prevalence of same-sex battering, though researchers studying this phenomenon faced a number of sampling obstacles. Much of the initial research relied on small nonrandom samples of gay men and lesbians (Lilith, 2001; Reed, 1989; Renzetti, 1992). This in turn limited the generalizability of the findings. Some of the methods that were employed to generate data on same-sex battering included: (1) advertising in gay publications; (2) surveying individuals at gay identified events or locations such as pride or a gay

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bar; (3) recruiting participants through gay social service organizations; and (4) snowballing sampling methods. However, participants secured through the aforementioned sampling techniques were not necessarily representative of the gay community. Gay men and lesbians who read gay publications, access the services of gay organizations or attend gay events tend to be more connected to the gay community and are thus more open about their sexual orientation. Consequently, prevalence studies of same-sex intimate violence have not captured that segment of the population who are “closeted” and therefore the findings do not adequately represent the gay and lesbian population. Because of these limitations, the actual nature and extent of same-sex intimate violence remains unknown. It is clear, however, that a significant percentage of gays and lesbians do experience violence in their intimate relationships and that the problem is worthy of further empirical investigation. More recently, researchers have begun to utilize the National Incident Based Reporting System (NIBRS) to examine same-sex intimate-partner violence (Pattavina, Hirschel, Buzawa, Faggiani & Bentley, 2007). The NIBRS compiles information on the nature of the victim/offender relationship as well as provides demographic data on both the victim and offender. As a result, NIBRS data sets can be used to further explore same-sex intimate-partner violence without relying on nonrandom sampling techniques. However, the NIBRS data is not necessarily more representative of the gay community because it only reflects those incidents of same-sex intimate-partner violence that come to the attention of police. It could be argued as well that victims of same-sex interpersonal violence who report the crime to law enforcement may differ in significant ways from victims who do not contact the police. Moreover, prior research on same-sex battering has primarily focused on merely one segment of the population, most notably lesbians, rather than the entire gay community. To date, there has been very little scholarly attention on gay male partner abuse. The few studies that have been conducted indicate that a significant number of gays and lesbians have been in physically abusive same-sex relationships. Comparative research on heterosexual and homosexual couples has also been conducted detecting a number of similarities between same-sex battering and heterosexual domestic violence (Lie & Gentlewarrier, 1991; Lockhart, White, Causby & Isaac, 1994; Renzetti, 1992). These studies report that domestic violence occurs within same-sex relationships with the same degree of frequency as in heterosexual relationships (Coleman, 1996; Elliot, 1996; Island & Letellier, 1991; Letellier, 1994; Renzetti, 1992). For example, it was found that between 22 percent and 46 percent of lesbians had been in a violent same-sex relationship (Elliot, 1996; Renzetti & Wiley, 1996). Similarly, it has been estimated that 25 percent to 30 percent of heterosexuals have been in a physically abusive relationship (Koss, 1990; Straus, 1993; Straus & Gelles, 1980). A more recent study actually found higher rates of intimate-partner violence among same-sex couples than heterosexual couples (Cameron, 2003).

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Heterosexual versus Same-Sex Intimate-Partner Violence By all accounts the types of abuse are similar for both heterosexual and same-sex victims of intimate-partner violence. Like their heterosexual counterparts, gays and lesbians experience a broad range of domestic abuse. Specifically, same-sex partner violence includes physical assaults, psychological threats, economic exploitation, sexual abuse, destruction of property, and threats regarding children. In fact, a number of studies have found that gays and lesbians are more likely to be killed by an intimate partner than to fall victim to anti-gay violence perpetrated by a complete stranger (Island & Letellier, 1991; Knauer, 2001). Similar to heterosexual abuse, same-sex battering tends to be characterized by escalating violence. According to escalation theory, the risk of serious injury increases with the number of repeated events of lesser violence. For example, several studies found that in about 90 percent of domestic homicide cases police had responded to at least one call for service at the address of the victims and in 50 percent of the cases to five or more calls (Breedlove, Kennish, Sandker & Sawtell, 1977; Sherman, Gartin & Buerger, 1989). More specifically, Leeder (1988) found that partner abuse among lesbians is persistent and becomes increasingly more violent over time. Renzetti (1992) reported that 71 percent of the battered lesbians in her study indicated that the violence grew more severe with each successive incident. These preliminary results suggest that same-sex and heterosexual victims of domestic abuse both experience escalating violence in their intimate relationships. In terms of reporting practices, prior research has shown that crime severity, the victim-offender relationship, injury, and financial loss account for most of the variation in reporting. Crimes that are committed by strangers, result in injury and involve a weapon are more likely to be reported to the police. Finally it is well established that crimes that lead to serious injuries are more likely to come to the attention of police (Bachman, 1998; Pino & Meier, 1999; Skogan, 1984). Unsurprisingly it appears that gays and lesbians fail to report intimatepartner abuse to the police for the same reasons as heterosexual victims. Like heterosexual victims, gays and lesbians do not report partner abuse because: (1) they do not believe the police will take the matter seriously, (2) they fear retaliation from the offender, (3) they are embarrassed, (4) they do not want to get the assailant in trouble, and (5) they think it is the private matter. Like their heterosexual counterparts, many gay and lesbian victims of intimatepartner violence also fear secondary victimization at the hands of the law enforcement community (Comstock, 1991; Island & Letellier, 1991; Kirby, 1994; Kuehnle & Sullivan, 2003; Reed, 1989; Renzetti, 1992; Vickers, 1996). Prior studies have found that the police are widely distrusted by the gay community (Kirby, 1994; Letellier, 1994; Reed, 1989). As a result, gay and lesbian victims of intimate-partner violence may be particularly reluctant to

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reach out to law enforcement for assistance fearing that the police will minimize the seriousness of the incident and not investigate it thoroughly. Reed (1989) reported that male victims of same-sex battering who did convey the abuse to the authorities were re-victimized by the police both physically and verbally. Similarly, Renzetti (1992) found that only 19 percent of the battered lesbians in her study called the police for assistance. Of these, the majority indicated that the police were unresponsive or hostile.

Unique Dimensions of Same-Sex Battering Victims of same-sex battering confront some unique issues that may deter them from reporting intimate-partner violence to the police. For example, there is the threat of “outing” by one’s abusive partner. This constitutes a form of emotional blackmail that serves to further isolate gay and lesbian victims of interpersonal violence. Many gay men and lesbians seeking to avoid rejection and discrimination make a conscious decision to conceal their sexual orientation. This in turn makes them vulnerable to being controlled by an abusive partner who threatens to reveal their sexual orientation. Thus, “closeted” victims may choose to remain silent about the abuse that they are suffering because they worry about losing their job, housing, children, family ties, and friends should their sexual orientation be disclosed. An additional hurdle faced by gays and lesbians is the fact that the gay community itself has been slow to acknowledge the existence of abuse in same-sex relationships (Coleman, 1996; Island & Letellier, 1991). Many contend that the gay community intentionally remained silent on the issue of same-sex battering to avoid further stigmatization. As a result victims of same-sex battering were hesitant to report domestic violence to the police because they feared being ostracized by the gay community and losing a critical social network. A final issue that has particular relevance to same-sex battering especially for gay men is the AIDS epidemic. Prior work suggests that it often presents a double-edged sword for this group (Island & Letellier, 1991). First, HIV positive victims may be financially and emotionally dependent on their abusive partner, which may impede their ability to leave the abusive relationship. A victim who completely depends on the batterer to provide health care assistance may remain in the abusive relationship rather than face being on their own. On the other hand, a victim whose abusive partner is HIV positive may be the primary caretaker for that individual. The victim is likely to be conflicted about leaving the abusive relationship experiencing intense feelings of guilt over abandoning a sick or dying partner. For the most part, however, gays and lesbians remain in violent relationships for similar reasons as heterosexual victims; fear of escalating violence, financial dependency, because they love the perpetrator, to protect their children, and lack of domestic violence shelters. In addition, abusers

SAME-SEX INTIMATE-PARTNER VIOLENCE – LIFTING THE VEIL OF DENIAL

often isolate their victims by cutting them off from social networks of support such as families and friends. For gays and lesbians the isolation may be more pronounced in instances where their families have disowned them because of their sexual orientation.

Resistance to Same-Sex Battering There is significant empirical evidence indicating that intimate-partner violence is widespread among same-sex couples. In addition, research has found that the abuse experienced by gays and lesbians is comparable to the violence that occurs within heterosexual relationships. The abuse can be physical as well as emotional ranging from verbal threats to violent assaults. Nevertheless, researchers, legislators, criminal justice professionals and society as a whole have been reluctant to acknowledge same-sex battering. There are a number of factors that contribute to the denial that has surrounded same-sex intimate-partner violence. First, homophobia remains widespread and thus continues to promote hatred, fear and discrimination against gays and lesbians. Homophobia is often reinforced by conservative Christian groups who oppose extending equal rights and protections to gays and lesbians. They fear that providing gays and lesbians with equal protection under the law would amount to condoning homosexuality. As a result, homophobia has played a part in facilitating society’s neglect of same-sex intimate-partner violence. Second, the concept of domestic violence has been narrowly constructed. Historically it has been used to describe violence which occurs in heterosexual relationships. More importantly, it has been restricted to female victimization (wife) occurring at the hands of a male perpetrator (husband). As such other victims of intimate-partner violence have been ignored and consequently their pain and suffering has been minimized. Acknowledging that domestic violence occurs in other contexts including female on male or female on female aggression threatens the main premise of feminist theories that abuse is a function of male domination in a patriarchal society (Knauer, 2001; Lilith, 2001). Feminists remain steadfast in their conviction that domestic violence is a crime against women and therefore a gender issue. The dynamics of same-sex intimate violence challenge the belief that patriarchy and misogyny are responsible for domestic violence. Third, since the 1970s every state has enacted legislative reforms to bolster the criminal justice system’s response to domestic violence. However, the majority of these legislative initiatives have failed to address same-sex intimate-partner violence. Many domestic violence statutes do not specifically extend protections to individuals in same-sex relationships. As a matter of fact, a total of five states actually deny victims of same-sex battering statutory protection by explicitly specifying that only family members or individuals of the opposite sex who are current or former partners can secure restraining orders.

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An overwhelming number of states have amended their domestic violence statutes incorporating gender-neutral language. However, these statutes can be extremely vague and ambiguous. Consequently, gender-neutral statutes do not necessarily ensure that gay and lesbian victims of interpersonal violence will receive protection or services. The reality is that criminal justice practitioners have broad discretionary authority relative to interpreting whether these statutes apply to gay and lesbian victims of intimate-partner violence. At present, only six states (Hawaii, Illinois, Kentucky, New Jersey, Ohio, and Pennsylvania) specifically provide protection to same-sex victims of intimate-partner violence. Since domestic violence statutes vary by jurisdiction it is evident that gay and lesbian victims of intimate-partner violence are accorded fewer protections than their heterosexual counterparts. Fourth, the belief that gays and lesbians engage in mutual battering is an additional reason that same-sex intimate-partner violence has not been recognized or condemned. The concept of mutual battering implies that both parties in the relationship are abusive and therefore equally responsible as well as accountable for the violence. Hence, same-sex interpersonal violence is not deemed as serious as domestic violence that involves a male perpetrator and a female victim. Moreover, conceptualizing same-sex intimate-partner violence as mutual battering allows society and the criminal justice system to dismiss the seriousness of this type of abuse. The myth of mutual battering complicates domestic violence incidents involving same-sex couples because it may be more difficult to disentangle which party is the victim. For example, police responding to a domestic dispute between two lesbians may automatically assume that if one of the women is more stereotypically “butch” she must be the perpetrator. When police experience difficulty differentiating the offender from the victim than it stands that both parties may end up being arrested. The influence of the mutual battering myth extends beyond the arrest decision and can be seen in other stages of the criminal justice process. For example, one study found that judges were more likely to issue mutual restraining orders in same-sex domestic violence cases (Hodges, 2000). Similarly, same-sex perpetrators often receive less severe sanctions and are rarely ordered to participate in batterer’s programs (Peterman & Dixon, 2003). As a result, victims of same-sex interpersonal violence may be further traumatized by the legal system’s handling of their case and therefore may be unwilling to report a future incident of abuse.

New Course of Action It is obvious that numerous factors have contributed to same-sex intimate-partner violence remaining invisible. However, the reality is that samesex interpersonal violence is a serious social problem that requires immediate attention. There is much work that needs to be done to counter same-sex

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domestic violence and to make certain that gay and lesbian victims receive the same protection and services as their heterosexual counterparts. To begin, domestic violence research and theories need to be more comprehensive accounting for different types of interpersonal violence including same-sex battering. This will necessitate that we continue to move beyond a feminist interpretation of domestic violence. There has been some progress in this regard. Theories focusing on the role of power, control, and social learning have been advanced to explain domestic violence in contexts other than male on female aggression. Similarly, researchers have to make a concerted effort to debunk the myth of mutual battering as it relates to same-sex interpersonal violence. Attaching the label, mutual battering to same-sex intimate violence further stigmatizes the victims of same-sex violence and denies them access to the criminal justice system and social service networks. It is equally important that states modify their existing domestic violence statutes to extend protection and services to victims of same-sex intimatepartner violence. Legislative reforms are needed to assure that legal remedies are available to victims of same-sex interpersonal violence. Enacting domestic violence laws aimed at improving the response of the criminal justice system to same-sex intimate-partner violence would be a step in the right direction. However, these statutes would have to be enforced at every stage of the criminal justice process for them to produce positive results for gay and lesbian victims of intimate-partner violence. For example, a number of studies have found that the police often minimize the seriousness of same-sex domestic violence (Comstock, 1991; Vickers, 1996). Thus, the police response to same-sex interpersonal violence has not only been lacking but in many instances outright hostile. This underlies the need for extensive law enforcement training and education to sensitize police to the concerns of gay and lesbian victims of domestic violence. It is important to understand, however, that even if general improvements are made relative to law enforcement’s handling of same-sex domestic violence cases, it doesn’t mean that gay and lesbian victims will receive adequate protection. Same-sex domestic violence training and education will need to be afforded to the entire criminal justice system including prosecutors and members of the judiciary. These criminal justice practitioners are as likely as police to be homophobic and adhere to the belief that domestic violence is solely a gender issue. As such, all criminal justice personnel should be required to participate in training to facilitate the development of effective responses to same-sex battering. Furthermore, new models of service need to be developed to provide support to gay and lesbian victims of interpersonal violence. Domestic violence programs including shelters, safety planning and victim advocacy should be inclusive offering services to all victims of interpersonal violence. Gay and lesbians victims should be able to access traditional domestic violence services as easily as their heterosexual counterparts. Likewise, perpetrators of same-sex intimate-partner violence should have the opportunity to participate in batterer’s programs and counseling in order to learn appropriate conflict resolution skills.

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Conclusion It is clear from the foregoing review of same-sex battering that the problem not only exists in the gay community but that it is widespread. Yet, the needs of gay and lesbian victims of intimate-partner violence have largely been ignored or dismissed. As a result, gay and lesbian victims find themselves at a crossroad, similar to where female victims of domestic violence stood 30 years ago. Specifically, gay and lesbian victims are blamed for the abuse; receive inadequate protection; have restricted access to shelters limiting their means of escape; and are often re-victimized by ignorant or biased criminal justice practitioners. Like the women’s rights movement, the gay rights movement has to make a concerted effort to bring same-sex battering and the mistreatment of gay and lesbian victims to the forefront. Gay advocacy groups have to make same-sex intimate-partner violence a top priority to ensure that gay and lesbian victims of intimate-partner violence receive adequate and equal protection under the law and from the criminal justice system. The gay community, however, cannot be expected to single-handedly bring about large-scale institutional change. Researchers, policymakers, and criminal justice professionals also must devote themselves to this cause and help elevate the public’s awareness regarding the detrimental consequences of same-sex battering. A coordinated effort is needed not only to dispel the myths surrounding same-sex intimate-partners but to bring the problem of same-sex intimate-partner violence into the open and out of the closet.

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Comstock, G.D. (1991). “The Police as Perpetrators of Anti-Gay/Lesbian Violence.” In G.D. Comstock (ed.) Violence against Lesbians and Gay Men (pp.152-162, Appendix C), New York: Columbia University Press. DeKeseredy, W.S. (1995). “Enhancing the Quality of Survey Data on Woman Abuse.” Violence against Women. 1:139-157. Dobash, R.P., R.E. Dobash, K. Cavanagh & R. Lewis (1992). “The Myth of Sexual Symmetry in Marital Violence.” Social Problems, 39:71-91. Elliot, P. (1996). “Shattering Illusions: Same-Sex Domestic Violence.” Journal of Gay and Lesbian Social Services, 4, 1-8. Hampton, R.L. (1987). Violence in the Black Family. Lexington, MA: D.C. Heath. Hodges, K.M. (2000). “A Review of Lesbian, Gay, Bisexual and Transgender issues.” Law and Sexuality, 9, 1-22. Island, D. & P.P. Letellier (1991). Men Who Beat the Men Who Love Them: Battered Gay Men and Domestic Violence. New York: Harrington Park Press. Kirby, N. (1994). “Love Hurts.” British News Magazine Attitude, 3, 46-50. Knauer, N. (2001). “Same-Sex Domestic Violence: Claiming a Domestic Sphere while Risking Negative Stereotypes.” In K.D. Lemon (ed.) Domestic Violence Law (pp. 203-212). St. Paul, MN: West Group. Koss, M. (1990). “The Women’s Mental Health Research Agenda: Violence against Women.” American Psychologist, 45, 374-380. Kuehnle, K. & A. Sullivan (2003). “Gay and Lesbian Victimization: Reporting Factors in Domestic Violence and Bias Incidents.” Criminal Justice and Behavior, 30, 95-97. Leeder, E. (1988). “Enmeshed in Pain: Counseling the Lesbian Battering Couple.” Women and Therapy, 7, 81-99. Letellier, P. (1994). “Gay and Bisexual Domestic Violence Victimization: Challenges to Feminist Theory and Response to Violence.” Violence and Victims, 2, 95-106. Lie, G-Y. & S. Gentlewarrier (1991). “Intimate Violence in Lesbian Relationships: Discussion of Survey Findings and Practice Implications.” Journal of Social Service Research, 15, 41-59. Lilith, R. (2001). “Reconsidering the Abuse that Dare Not Speak Its Name: A Criticism of Recent Legal Scholarship Regarding Same-Gender Domestic Violence.” Michigan Journal of Gender and Law, 7, 181-219. Oppenlander, N. (1982). “Coping or Copping Out.” Criminology, 20(3-4), 449-465. Pattavina, A., D. Hirschel, E. Buzawa, D. Faggiani & H. Bentley (2007). “A Comparison of the Police Response to Heterosexual versus Same-Sex Intimate-Partner Violence.” Violence against Women, 13, 374-394. Peterman, L.M. & C.G. Dixon (2003). “Domestic Violence between Same-Sex Partners: Implications for Counseling (Practice and Theory).” Journal of Counseling and Development, 8, 40-48. Pino, R. & F. Meier (1999). “Gender Differences in Rape Reporting.” Sex Roles: A Journal of Research, 40, 419-430. Reed, J. (1989, April 16). “Naming and Confronting Gay Male Battering.” Gay Community News, pp. 8-10.

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Rennison, C.M. & S. Welchans (2000). Intimate-Partner Violence. Bureau of Justice Statistics. Department Justice Special Report, May, 11 pp. Renzetti, C. (1992). Violent Betrayal: Partner Abuse in Lesbian Relationships. Newbury Park, CA: Sage. Sherman, L.W., P.R. Gartin & M. Buerger (1989). “Hot Spots of Predatory Crime: Routine Activities and the Criminology of Place.” Criminology, 27, 27-55. Skogan, W. (1984). “Reporting Crimes to the Police.” Journal of Research on Crime and Delinquency, 21, 113-137. Straus, M. (1993). “Physical Assault by Wives: A Major Social Problem.” In R. Gelles & D. Loseke (eds.) Current Controversies on Family Violence, 67-87. Newbury Park, CA: Sage. Straus, M. (1991). “Physical Violence in American Families.” Pp. 17-34 in Abused and Battered (eds.) D.D. Knudsen & J.L. Miller. New York: Aldine de Gruyter. Straus, M. (1990). Physical Violence in American Families. New Brunswick, NJ: Transaction Publishers. Straus, M.A. & Gelles, R.J. (1986). “Societal Change in Family Violence from 1975 to 1985 as Revealed by Two Surveys.” Journal of Marriage and the Family, 48:465-479. Tong, R.P. (1984). Women, Sex and the Law. Totowa, NJ: Rowman & Allenheld. Vickers, L. (1996). “The Second Closet: Domestic Violence in Lesbian and Gay Relationships: A Western Australian Perspective.” Murdoch University Electronic Journal of Law, 3, 1-27.

CHAPTER 4 The Mass Media and Victims of Rape Patricia H. Grant and Paula I. Otto

The media, an important part of most Americans’ lives, is represented in a variety of settings from the traditional broadcast and print media, to 24hour news stations, and the Internet, and is readily accessible to the public. The public is so engrossed with news that many people will have the daily headlines and sports scores delivered to cell phones, BlackBerrys, and e-mail addresses. According to a 2004 study by the Pew Center for the People and the Press nearly three quarters of Americans (73%) follow the news during the course of the day (2007). In many cases, the news headlines are saturated with reports of crimes, criminals, and victims of crime. These stories are often sensationalized to grab the public’s attention and to garner increased ratings and advertising. While most in society may not personally be impacted by the stories that are told, there are situations in which media reports may be responsible for the further victimization of individuals who are victims of crimes; in particular victims of rape. In general, the traditional media tends to report the names of victims of all crimes; except in situations involving juveniles and cases of rape. In the case of rape, anonymity is afforded the victim as a courtesy, rather than a requirement of law. As a violent and traumatic act, rape significantly redefines quality of life issues for victims; yet they, unlike other victims of crime are more likely to be further victimized by family, friends, the criminal justice system, and the media. Often isolated and ostracized by members of society, as well as by their families and social networks (Davis & Brickman, 1996; Belknap, 2007), victims of rape face societal stigma and distrust regarding their claims of sexual assault (Yamawaki, Darby & Queiroz, 2007; Estrich, 1987 as cited by Ullman, 1996b). Rape victims are also subjected to “victim blaming” by family and friends who are having difficulty understanding or accepting the victims’ innocence and may therefore suffer from post rape trauma (secondary victimization), behave inappropriately or emotionally withdraw from the

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victim (Belknap, 2007; Yamawaki et al., 2007; Cuklanz, 1996). Although family and friends may appear to be supportive, they may also be seeking to diminish personal feelings of guilt and/or inadequacy, which may represent a “second injury” or post rape trauma for rape victims (Belknap, 2007; Yamawaki et al., 2007; Cuklanz, 1996). Blaming the victim by suggesting that they are somehow responsible for the crime and thus creating feelings of rejection and lack of support may further isolate the victim while denying her an opportunity to openly discuss the psychological and emotional effects of the crime (Davis & Brickman, 1996; Symond, 1980, as cited by Ullman, 1996a). The criminal justice system may also minimize the harm and/or blame the victim, by further victimizing them. Criminal justice professionals may be insensitive to the needs of victims and the overwhelming sense of trauma experienced by the victim. Further, depending on the potential “sell ability” of the story, the media may exploit victims by reporting personal information and sensitive details of the case that are potentially embarrassing for the victim. Consequently, the victim blaming, re-victimization, and dehumanizing treatment experienced by the victim when dealing with family and friends, the criminal justice system, as well as the media and the possibility of victim naming by the media, only succeeds in keeping the voices of rape victims silent, while perpetuating increased feelings of distrust and fear (National Center for Victims of Crime, 2007; Cuklanz, 1996). To understand the gravity of the problem requires an understanding of the definition of rape and the frequency of occurrence of this violent and demeaning act. The Federal Bureau of Investigation (FBI) defines forcible rape as the “carnal knowledge of a female forcibly and against her will” (2007). Based on this definition, the FBI reported there were 92,455 cases of forcible rape reported in 2006. Yet, while this is a significant number, these data do not take into consideration the incidents of rape that are not reported to the police. For example, the National Crime Victimization Survey, which relies on self-report data, indicated that of the 191,670 cases of rape and/or sexual assault reported in 2005, only 38.3 percent of respondents reported the offense to the police which means that 61.7 percent did not report it to the police (2007). This lack of reporting is extremely problematic due to the violent nature of rape; however, it may also be an indication of the fear of revictimization experienced by many women who are raped. According to Dean Kilpatrick, director of the National Violence against Women Prevention Research Center, “Seventy percent of victims worry they will be blamed… More than half of the victims he has surveyed say they worry more about their names becoming public than they do about getting a sexually transmitted disease” (as cited by McBride, 2002:7). While recognizing the quandary these and other issues pose for victims of rape, this chapter is predominately concerned with the issues involving the struggle between the media’s right to publish the identity of rape victims versus the victim’s right to privacy.

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History of the Media’s Treatment of Rape Victims Crime began to be a mainstay for news stories in the 1830s as new technologies allowed for less expensive printing of newspapers, literacy in the country was growing, and urban population centers were expanding, thereby increasing potential readers. Known as the “penny press” era for the one-centa-copy price of newspapers sold on the streets, the era marked the beginning of the media’s reliance on reporting violence and crime to sell newspapers (Benedict, 1992). However, it was not until the 1930s that crimes involving sex began to be written with regularity (Harris, 1932, as cited by Benedict, 1992). After World War II, the rate of violent crime, including rape, rose in the country (Hall, 1983, as cited by Benedict, 1992) and the practice of naming the victim became commonplace throughout the 1940s, 1950s, and 1960s. Although there was increased media coverage of these stories, the focus was generally on those crimes that involved a white female victim and a black male as the accused. With the civil rights movement of the 1960s, however, the media became more aware of the racial bias in their stories and began to make changes in reporting habits. With the women’s movement in the 1970s came a greater understanding of rape. Susan Brownmiller’s book titled Against Our Will (1975), a feminist history and analysis of rape, brought women’s issues to the forefront. The media began examining the way it was portraying the crime, the victims, and the rapists. During the late 1970s, the media began focusing on whether victims’ names should be included in news stories (Benedict, 1992) and by the early 1980s, most media outlets, including newspapers, wire services, radio, and television stations, voluntarily began excluding rape victims’ names from news accounts. This practice has continued until today, with some notable exceptions in recent years.

Notable Exceptions The Winston-Salem Journal has been printing the names of rape victims since 1971 (Haws, 1996) and identifies both the victim and the assailant after the arrest has been made. Although this had been the policy of the newspaper for 25 years, a 1996 study indicates that overall knowledge of the policy was not commonplace among victims (Haws, 1996). In this study, 18 victims who had been named by the Journal were interviewed. Of those interviewed, 15 of the 18 reported that they were not aware when they decided to report their rapes to the police that their names would appear in the newspaper. Thirteen of the 18 women said the publicity increased their embarrassment and heightened their feelings of shame. In defense of the Journal policy, the Managing Editor, Carl M. Crothers stated, “We believe reporting rape cases should be done fully and with care and sensitivity. We are not untouched by the emotional pain suffered by victims, but we feel strongly that we are making a statement in this community that rape should no longer carry a stigma for the victim and be a source for shame and embarrassment” (Haws, 1996:3).

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In 1989, a female executive was brutally raped while jogging in Central Park. The alleged suspects were identified as a group of black and Hispanic teenage boys, five of whom were found guilty in three separate trials, lasting into 1991. Although most newspapers and broadcast outlets did not identify the victim, some minority publications in New York did – noting that the mainstream press guarded the identity of a well-to-do white woman while stigmatizing the lower-class black youths by naming them before they were indicted (Benedict, 1992). Coincidentally, in 2003, the victim in this case, Trisha Melli went public stating, “…I thought, you know what, I think it’s more important to get this message out there that, ‘Yes, we can come back,’ and that I’m an example…” (CNN, 2003). Also, in January 2001, a serial rapist admitted to raping the “Central Park Jogger” and the five young men dubbed the “Central Park Five” were subsequently exonerated of these charges (CNN, 2003). In what is often cited as a turning point in modern media coverage of rape issues, the Des Moines Register ran a five-part series in February 1990, about a 29-year-old woman who had been abducted and raped. The victim, Nancy Ziegenmeyer, allowed the Register to use her real name, saying she hoped to focus attention on this underreported crime and thereby prevent other women from being raped (Elson, 1990). The Register’s editor, Geneva Overholser, in a 1990 interview stated that when society refuses to talk openly about rape, it weakens our ability to deal with it, and further, the media participates in the stigmatization of rape victims by treating victims of rape differently (Elson, 1990). Overholser continues to be a minority albeit strong voice on the issue. In 2003 she wrote, “The responsible course for responsible media today is this: Treat the woman who charges rape as we would any other adult victim of crime. Name her, and deal with her respectfully. And leave the trial to the courtroom” (2003). Perhaps one of the best known cases is that of Patricia Bowman and William Kennedy Smith. Bowman, a single-mother, met Smith one evening in a Florida bar in the spring of 1991 and later accompanied him to the Kennedy compound, where Bowman said she was raped. Bowman’s identity was broadcast on NBC without her consent and newspapers across the country, including the New York Times, soon carried the story with the victim’s name (Thomason, LaRocque & Thomas, 1995). Although Smith was eventually acquitted in December 1991, in the months leading up to and during the trial, Bowman found herself and her actions at the center of intense media scrutiny and public debate.

The Media, Victims, and the Criminal Justice System Criminal trials allow for the resolution of controversial subjects that are pertinent to society in general, yet, for victims of rape these trials are more likely to result in further victimization by the judicial system (Benedict, 1997; Dworkin, 1997; O’Toole & Schiffman, 1997; Cuklanz, 1996). Rape tri-

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als are often considered as dehumanizing and may lead to additional trauma for the victim, thereby forcing many rape victims to forego reporting the incident for fear of embarrassment, further humiliation and revictimization by the system (Benedict, 1997; Dworkin, 1997; O’Toole & Schiffman, 1997; Cuklanz, 1996). Thus, the adversarial nature of the trial, which allows for the introduction of insensitive and graphic testimony and sometimes prior sexual history may further impede and discourage victims from reporting the rape (Benedict, 1997; Cuklanz, 1996). The issue of privacy is addressed by the Court in Whalen v. Roe (1977), which stated that “Rape is an act of physical violence which by its very nature is an affront to privacy. It represents forcible exposure of aspects of oneself that are protected by conventions of limited access. These conventions are normally adhered to out of regard for well-being and respect for personal privacy” (Bloch v. Ribar, 1998:10). Citing Roe v. Wade (1973), the Court in Whalen established that although the Constitution does not explicitly mention any right of privacy, the law does currently recognize two distinct forms of privacy, which are that “(1) constitutional privacy protects an individual’s freedom (fundamental right or one implicit in the concept of ordered liberty) to make choices regarding personal, intimate aspects of life; and, (2) the government’s interest in disseminating the information must be balanced against the individual’s interest in keeping the information private” (Bloch v. Ribar, 1998:10). While stopping short of prohibiting the identification of rape victims, in recent years, the courts have attempted to balance the privacy rights of victims against the rights of the media to publish the names. Acknowledging that the Constitution does not guarantee the right to privacy, the courts have sought to balance the rights of the victim against the media’s First Amendment right to freedom of the press (Bloch v. Ribar, 1998). The Court acknowledges the “negative social stigma that is attached to victims of rape,” and postulates that rape victims are “subjected to a different level of victimization that exceeds the impact of other types of victimization” (Bloch v. Ribar, 1998:11). At issue in Bloch v. Ribar was whether the sheriff, in response to comments made by the Blochs to the media, acted inappropriately when releasing the intimate details of the assault. In response, the Court addressed the derogatory and negative connotations associated with rape imposed by society, as well as the stigma society places on rape victims. Additionally, the Court confirmed the consequential and detrimental impact imposed when the media subsequently names victims and observed that “a historical social stigma has been attached to victims of sexual violence. In particular, a tradition of ‘blaming the victim’ of sexual violence sets these victims apart from those of other crimes. As a result, releasing the intimate details of rape will not only revive a particularly painful sexual experience, but often will subject a victim to criticism and scrutiny concerning her sexuality and personal choices regarding sex” (Bloch v. Ribar, 1998:11). Subsequently, the Court ruled that “a rape victim has a fundamental right to privacy in preventing government officials from gratu-

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itously and unnecessarily releasing the intimate details of the rape where no penalogical purpose is being served” (Bloch v. Ribar, 1998:11). In two important cases relevant to the news media’s right to publish names, the Supreme Court attempted to balance the important privacy concerns of the sexual assault victim against the legitimate interests of the news media in reporting newsworthy events. In the first case, Cox Broadcasting Corp. v. Cohn (1975), the rape victim privacy statute for Georgia was tested by the father of Cynthia Cohn, a victim of gang rape who was killed by her attackers. Cohn brought a civil suit against Cox Broadcasting, the television station that broadcast his daughter’s identity. In this case, the Supreme Court ruled that the protection afforded the press through the First and Fourteenth Amendments “. . . forbids civil liability for the publication of lawfullyobtained truthful information.” Writing for the Court, Justice Byron White expressed that “the interests of privacy fade when the information involved already appears on the public record” (1975:20). Consequently, the Court overwhelmingly supported the views of the media over those seeking penalties for the disclosure of the victim’s identity. However, in the case of the Florida Star v. B.J.F. (1989), while the Court moved away from punitive sanctions against the media for publishing names, the decision left open the distinct possibility of valid state sanctions against those officials who disclose the names of sexual assault victims prior to trial. In this case, the Florida Star newspaper published an assault victims’ full name in the “Police Reports” section. A reporter-trainee for the newspaper obtained the name by copying the Duval County sheriff’s report provided in the media information area. Initially, the plaintiff was awarded compensatory and punitive damages, however, the Supreme Court later ruled that imposing damages on the Star for publishing the full name violated the First Amendment. Further, the Court ruled that although the sheriff’s department failed to fulfill its obligation under the Florida Statute, the Star could not be held liable for publishing truthful information that was lawfully obtained. Partly in response to Florida Star v. B.J.F., the Florida Legislature in 1995 addressed the “victim-identity question in favor of privacy by criminalizing the publication of rape victims’ names” (Berlin, 1995:1). Specifically, the law states that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order” (1995:1). However, Section 92.56 of this Statute mandates that “All records, including testimony from witnesses, which contain the name, address, or photograph of the victim of the crime of sexual battery, etc., should remain confidential. These records could not be made public or a part of the public record and violation of this statute by a public officer or employee is punishable as a second-degree misdemeanor.” In addition, at about the same time as the Florida legislation was passed, Georgia enacted a rape victim privacy law that now prohibits all forms of “public dissemination [of] the name or identity of any female” rape victim (Berlin, 1995:12).

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Rape Shield Laws In an effort to address issues of privacy, confidentiality and anonymity and to protect the reputation of rape victims, states began initiating rape shield laws. Currently, all of the states have rape shield laws designed to provide protection for victims of rape in restricting the introduction of evidence on prior sexual history to prevent character assassination by the defense (Terry, 2006). Subsequently, based on the 1974 Michigan statute (O’Toole & Schiffman, 1997), and impacted by the disillusionment that many women experienced in the process of having their cases heard and adjudicated by the judicial system, eight states – Florida, Georgia, Massachusetts, South Carolina, South Dakota, Washington, Wisconsin, and West Virginia also passed legislation making it unlawful to publish or broadcast identifying information of adult sexual assault and/or child abuse victims, and Colorado and Pennsylvania, through legislative proclamation mandated that the media use restraint (Beatty, 1999). These laws represent a reversal by legislators and the judicial system from victim blaming to providing fair and compassionate treatment for victims of rape and were also designed to prohibit the introduction of a victim’s past sexual history in court except in specific circumstances (O’Toole & Schiffman, 1997), while advocating against the publication of the names of rape victims. Additionally, Alaska, Arkansas, California, Colorado, Connecticut, Florida, Indiana, Kansas, Louisiana, Massachusetts, Montana, New York, Rhode Island, and Virginia protect the identity of crime victims by requiring that records for adult sexual assault victims remain confidential, and place the responsibility for keeping these records confidential and anonymous on law enforcement and court officials (Beatty, 1999). In Alaska, victims are only referred to by initials in court records (Sundby, 2004). Sundby (2004) indicated that Texas uses pseudonyms for alleged victims and, in West Virginia, alleged victims cannot be identified before the accused is indicted. Also, in Nevada alleged victims can sue if their confidential information is disclosed, and in Louisiana public officials are required to keep the identities of victims confidential. Furthermore, according to Sundby, at least nine states – Connecticut, Maine, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, Texas, and Vermont – have passed laws making victims’ addresses confidential (2004). It is important to note that there is some concern that the current rape shield laws are outdated. Designed during a time when women were afforded fewer freedoms, some suggest that the times and society have changed and that women do not feel the same stigma that was evident in earlier times (McBride, 2002). Society is not as sexually inhibited as it was in the past and people appear to be more accepting of the plight of rape victims (McBride, 2002). Lucy Berliner, director of the Sexual Assault Center at Seattle’s Harborview Medical Center states that, “Indeed, surveys show rape survivors under 30 have a markedly different response to the crime… Women under 30 are much more likely to tell people about an assault, report the crime, get counseling and seek medical treatment” (as cited by McBride, 2002:2).

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In addition, maintaining confidentiality and anonymity has become extremely difficulty with the ever-evolving state of technology used by the media and readily available to the public. Due to technological advances, in particular the Internet, the names of victims of rape (as well as any other crime) are often disclosed in this forum and are very quickly disseminated worldwide – potentially in a matter of seconds. As a result, once a name is discovered, it is virtually impossible to prevent immediate disclosure via the Internet. Consequently, it is suggested that the policy of naming rape victims may need to be re-evaluated to determine its relevancy to today’s societal climate with regards to the status of women as well as the swift and immediate power of the Internet (McBride, 2002). In recent years, two cases in particular have exposed some of the major tenets of rape shield laws subjecting them to further scrutiny by the courts. In particular, these cases forced the courts to rule on issues involving past sexual history, and the admittance of personal medical history into evidence, as well as issues involving freedom of the press and the naming of alleged rape victims. Each was a high-profile case making national headlines, with one involving Kobe Bryant, a celebrated professional basketball player, and the other involving several members of the Duke University lacrosse team. Both cases highlighted issues that are the foundation of the rape shield laws and caused many in the legal community and in society to question the applicability of these laws in particular cases. The first case involved the Los Angeles Lakers basketball player, Kobe Bryant. In this case a female front desk clerk at a hotel in Colorado accused Bryant of raping her (Johnson, 2004; Kenworthy & O’Driscoll, 2004; Liptak, 2004). Acknowledging they had engaged in sex; Bryant on the other hand believed that the act was consensual. During the process of the investigation, several issues relative to Colorado’s rape shield laws came into question. First, the rape shield law in Colorado prohibits the discussion of the alleged victim’s sex life unless it is deemed relevant to the case (Liptak, 2004; Sarche, 2004; Shaw, 2003). However, in this particular case, there were accusations that the alleged victim had engaged in sex prior to and immediately after the alleged rape (Liptak, 2004). Based on these accusations, Bryant’s attorneys petitioned the Court and requested access to the alleged victim’s medical history and the DNA results from the medical examination on the night of the rape. Partially finding for the defense, the judge stated, “… that the woman’s sex life in the three days before her July 1, 2003, hospital exam can be used as evidence because it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility” (Koher, 2004). The judge however ruled against providing the defense full access to the alleged victim’s medical history. The second issue in this case related to naming the victim. As indicated previously, Colorado’s rape shield law specifically protects the identity of crime victims by requiring confidentiality of their records and places the responsibility of confidentiality and anonymity on law enforcement and court

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officials (Beatty, 1999). However, due to an error by court staff, the name of the alleged victim in this case was inadvertently posted on the Court’s website for public viewing (Kenworthy, 2004; NBC Sports, 2004). In addition, several documents containing the victim’s name and other pertinent information was sent to major news outlets (Sarche, 2004). Upon learning of the error, the judge immediately issued an order “…barring media organizations from releasing details from a closed-door hearing that were mistakenly e-mailed by a court reporter. The judge’s order, which was upheld… by the Colorado Supreme Court, threatens The Associated Press and six other news organizations with contempt of court if they publish material from [the]… hearing on the woman’s sex life and other issues. The media groups contend the order is an unconstitutional prior restraint of a free press” (Sarche, 2004). Even with these safeguards built into the system, the confidentiality and anonymity of the alleged victim was still compromised because her name, and in some cases her picture, was posted on numerous websites for public viewing. Unfortunately, the release of her identity resulted in the alleged victim and her family receiving numerous death threats and other harassing calls. The next case involved allegations of rape made by an exotic dancer against several members of the Duke University Lacrosse team in North Carolina. In May, 2006, the alleged victim claimed that three members of the Duke University Lacrosse Team raped her during a party (CBS News, 2006). The accused team members and their teammates adamantly denied that any rape occurred and that the woman was lying. In addition, another dancer who was present at the party also alleged that the woman was lying. Although it appeared from the beginning that the statement given by the alleged victim was at best weak and at worst unsubstantiated by any evidence, the District Attorney pressed forward with seeking indictments against the accused men. However, after more than a year of accusations, intentional and/or unintentional leaking of evidence to the media, character assassinations, and inflammatory racial comments the charges were dropped by North Carolina’s State Attorney Roy Cooper, who stated: “We believe these cases were a result of a tragic rush to accuse and failure to verify serious allegations. Based on these significant inconsistencies of evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges” (Porteus, 2007). As in the Bryant case, the name of this alleged victim was also “leaked” to the media and was published by some news agencies and her name and picture was posted on the Internet. In addition, her medical history and prior criminal record was also published on the Internet. Both cases brought to light several important issues most directly related to confidentiality and anonymity and in some cases the applicability of the rape shield law. First, both alleged victims’ names were released or leaked, either accidentally or intentionally, to the press. Second, there were questions regarding the validity of the accusations brought by the alleged victims due to their perceived promiscuity. Third, the issue of sexual history was highlighted by the release of the medical records of the alleged victims. The

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release of medical records was particularly important because DNA evidence played a significant role in the way society viewed both of these women and potentially in the outcome of both of these cases. In the Kobe Bryant case, the fact that DNA evidence purportedly showed that the alleged victim had participated in sexual activity after alleging that Bryant raped her prompted some to question the validity of the charges and the character and integrity of the alleged victim. Many legal pundits argued that this evidence alone provided a significant roadblock for the prosecutor in the Bryant case. In the second case, the fact that no DNA from any of the Duke University lacrosse players was found on the alleged victim and that she had also engaged in sex with several different men prior to the alleged rape, was a major catalyst which lead to the dismissal of charges against the players. Again, this information, after being published by the media displayed the alleged victim in a less than favorable light to the general public. In both cases, the fact that the sexual history of the alleged victims was released may be contrary to the tenets of rape shield laws, which prohibits the introduction of the victim’s sexual history except in specific cases. Furthermore, proponents would argue that whether a victim had consensual sex with another person prior to or immediately after an alleged rape is not relevant to the case. On the other hand, others would argue that there are circumstances in which this information should be allowed. Advocating a “rigorous revision of rape shield laws,” Michelle Anderson, a professor at Villanova University School of Law, states that “Courts should admit evidence from the accuser’s sexual history only if it shows that another person may have committed the crime, that the accuser and defendant agreed to engage in certain sexual behavior or that the accuser has a pattern of lying” (as cited by Sundby, 2004). In both cases, several Internet websites published the names of the alleged victims and posted pictures and many other private details including addresses, phone numbers, and place of employment. Not as compelled to protect the victim by keeping her name confidential, many Internet sites operate under the auspices of full disclosure, particularly in high profile cases. For example, providing information on the alleged victim in the Duke case, the Dilby.com website authors indicated that “We believe in free speech and a young man’s career, dreams, aspirations, and educational endeavors shouldn’t be foreshadowed by allegations (2006). (Dilby.com is a news aggregator site – one that gathers news stories from other websites and then categorizes and sorts them – operated by an individual who is not associated with a traditional mainstream media outlet). In addition, another website indicated that the name of the alleged victim in the Bryant case appeared more than 14,000 times on the Internet in 2005 (NNDB.com, 2007). However, it is important to note that, since the Bryant case, Colorado and California passed legislation to strengthen the rape shield laws. In Colorado the law allows victims to use pseudonyms in court documents and legal proceedings and in California the court hearings are closed and court records that discuss an accuser’s sexual history are sealed unless a judge considers it admissible evidence (Sundby, 2004).

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False accusations are a major area of contention when determining whether the names of alleged victims of rape should be published. The argument relates to a sense of fairness in that the individual who has been falsely accused is subjected to intense public and media scrutiny while the alleged victim’s identity remains anonymous. After being accused, the individual is often stigmatized by their family and friends and their professional lives may be impacted by these accusations. For example, in the Duke University case, not only were the three accused men not allowed to participate with the team, but two were also placed on administrative leave from the University after the charges were filed (CBS News, 2006). Although they have been exonerated, their reputations may forever be tarnished by these allegations. There are conflicting data on the rate of occurrence of false accusations. In one study, Kanin examined 109 cases and determined that 41 percent of the rape cases in his study were “…officially declared false during this 9-year period…by the complainant’s admission that no rape occurred…” (1994:2). On the other hand, Connors, Lundregan, Miller, and McEwen’s findings indicated that approximately 25 percent of rape cases were exonerated by DNA (1996). According to Connors et al., “Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive… [and] about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect (1996:xxviii). Whatever the actual rate of false accusations, the question is whether naming the victim would alleviate some of these cases? Consequently, suspected false allegations of rape bring to the forefront questions of responsibility as well as the culpability of the alleged victims who bring false charges against individuals; such as: What mechanisms are in place to protect the accused when charges are found to be false? When a criminal trial is dropped by the prosecution at the request of the alleged victim, should she then be allowed to seek civil damages? If the alleged victim seeks civil redress, should she continue to be given anonymity? Is it appropriate for the press to release the name of the alleged victim at the conclusion of the case if the charges are found to be false or it is determined that she perjured herself? And finally, are there ample safeguards in place to protect the constitutional rights of the accused? Each of these is a compelling question that no doubt will need to be evaluated in the future to ensure fairness for everyone involved.

How Does the Media Decide? In the absence of laws prohibiting the publication of the names of rape victims, the media is often left to decide what to do and to enforce its own codes of ethics and guidelines. Before examining the media’s dilemma of

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weighing the public’s right to know against the victim’s right to privacy, it is instructive to determine what functions the media has in our society. Mass communications scholars define the media’s role as one of surveillance: gathering news and information. With about 90 percent of the American public reporting that they receive most of their news from the media (Dominick, 1998), the media assumes the responsibility of gathering information that is not readily available to society at large. In addition, with the Internet becoming increasingly popular as a source for information, the public has more choices and a 24-hour availability of sources for news and information. These sources are both associated with traditional journalistic outlets and operated by entrepreneurs with little or no journalistic background. In examining the role of the media in relation to government, Dominick (1998) summarizes the Four Theories of the Press, which were first categorized in 1956 as the authoritarian, communist, libertarian and the social responsibility theories. The authoritarian theory, which arose in sixteenth-century England about the time that the printing press emerged, states that the ruling elite should guide the masses, who were believed to have limited intellectual ability. Under this theory, public dissent and criticism were considered harmful and not allowed. The communist theory states that the media are “owned” by the people, and their purpose is to support the Marxist system and to achieve the goals of the state. The libertarian theory assumes human beings are intelligent and capable of making their own decisions if given the appropriate information and that the media is free from governmental interference. The social responsibility theory takes libertarianism a step further. Based on this theory, the media is free, but the freedom is not absolute. While the media has the right to criticize government and other social institutions, it also has the responsibility to respond to society’s interests and needs. On the other hand, the government often regulates the media to some extent. For example, the United States requires the licensing of radio and television stations. In addition to the United States, Britain, Japan, and many western European countries also follow the social responsibility model. How does this role of social responsibility impact the media’s decision to identify or withhold the names of rape victims? Jay Black in a 1995 article “Rethinking the Naming of Sex Crime Victims” states that “news coverage of sex crime victims has become as much of an ethical as a legal issue, and the media are not sure how to handle the options before them” (1995:97). Black contends that while the distribution of information about sex crime victims may aid in the apprehension of the perpetrators, and may even help society better understand and deal with significant and broad social questions, including the destigmatization of rape (Gartner, 1993), the identification of victims could lead to personal anguish and potential revictimization of individuals who are already in a state of crisis (Benedict, 1992; Black, 1995). Black further states that some have perceived the issue as a question of weighing the rights of vulnerable individuals to avoid needless and public revictimization and the right or desire of the public to satisfy its “prurient curi-

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osity” along with the news media’s desire to sell papers, get good ratings, and keep profits high (1995:97). In this case, Black states that the decision is easy: the media should not identify victims. On the other side are those who seek to guard the First Amendment, which they define as the media’s constitutionally guaranteed right to print anything, versus anti-democratic censorship and prior restraint (prior restraint occurs when an entity gets a court order to prevent the publication or broadcast of certain information). In this debate, Black states, journalists would say “let the chips fall where they may” (1995:98). There are currently no state or federal laws that prohibit the media from using the names of sexual assault victims, although many states have laws to limit the media’s access to that information. Instead, the media must often rely on its own judgment, newsroom policy or professional code of ethics for guidance. The following is a brief overview of the guidelines, codes of ethics, and a sample newsroom policy currently in place for journalists. The Society of Professional Journalists’ (SPJ) code of ethics states that journalists should “Be cautious about identifying juvenile suspects or victims of sex crimes, [and] only an overriding public need can justify intrusion into anyone’s privacy” (SPJ, 2007). The Society of Professional Journalists and the Poynter Institute for Media Studies have outlined three fundamental principles underlying ethical journalism: 1.

to gather and distribute truthful, accurate information;

2.

to do so free from extraneous forces;

3.

to minimize the harm caused by the process (Black, Steel & Barney, 1995).

Media ethicist E.B. Lambeth (1986b) suggests that journalists should first consider the humanity of people involved in any story and act humanely. The Associated Press Managing Editors Code (Lambeth, 1986a) states that newspapers “should respect the individual’s right to privacy” (1986a:34). The Radio Television News Directors Association (RTNDA) code of ethics states that broadcast journalists “should respect the dignity, privacy, rights and well being of people with whom they deal” (www.RTNDA.org). Although shortly after the William Kennedy Smith rape trial in which NBC decided to use the victim’s name, David Bartlett, then president of the RTNDA, said “If the name is relevant in the story, then we should have no hesitancy about using it. I agree entirely with [NBC News President] Michael Gartner that we are in the news dissemination business and not the news repression business. I am very impatient about the journalist as sociologist” (www.RTNDA.org). Cooper and Whitehouse (1995:11) suggest a series of questions journalists should ask before publication: 1.

Is the victim in danger? The victim shouldn’t be identified if the attacker hasn’t been arrested.

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2.

What is the social value in identifying rape victims? Does the good gained outweigh the harm publication may cause?

3.

What are the community expectations? What impact would publication have on the community? What community mores would have an impact on the victim if her name were published?

4.

Is the victim particularly vulnerable or will the victim refuse to prosecute?

5.

Is the victim a public figure in her own right? Traditionally, public figures and elected officials sacrifice a certain amount of private life. Identifying the public figure as a victim does not place the same stigma as it would on a private individual because the public knows her in other contexts.

6.

If this is a departure from normal policy, what is the motivation?

7.

Has the case been published elsewhere? Are they credible media outlets?

8.

If the victim has granted permission for her name to be published, is she aware of the consequences?

9.

Is the news story written in a way that myths concerning rape are perpetuated?

The St. Louis Post-Dispatch’s crime policy (Offen, Stein & Young, 1999) evolved after a September, 1987 robbery of a St. Louis supermarket in which seven store employees where shot, five fatally. The paper ran grisly photographs of the crime scene and printed the exact address of the victims. After protests from the community, the victims, and their advocates, the paper created its “Crime News Privacy Policy.” The Post-Dispatch policy begins with three broad principles. The first is most instructive: “The perceptions and perspectives of reporters and editors on the one hand, and readers and other members of the public on the other, are different. The news professionals are motivated chiefly by a desire to get the news and publish it. The others are more likely to react personally, imagining how they would feel as the subject of a story. In weighing matters of privacy, perhaps some effort should be made to bring that personal perspective into the equation” (Offen et al., 1999:3-12). The policy states that names of victims of sex crimes will not be used except for: (1) When they voluntarily identify themselves in the belief that publicity will lead to some public benefit; (2) When the victim files a civil lawsuit, making no effort to conceal his or her identify; and (3) When a husband is charged with raping his wife or former wife, if the fact of the relationship is integral to the story. The National Center for Victims of Crime in its “Crime Victims and the Media” publication endorses a code of ethics for the media that includes “The media shall not . . . print facts about the crime, the victim or the criminal act that might embarrass, humiliate, hurt or upset the victim unless there is a need to publish such details for public safety reasons” (1990:26).

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The National Organization for Victim Assistance (NOVA) believes that well-informed reporters and editors will treat crime victims in a way that preserves the victims’ integrity and dignity in telling what happened to them involuntarily (Offen et al., 1999). Media treatment of victims comes from policies voluntarily adopted by their employer, by interest groups most affected by their behavior and by the laws under which they operate. NOVA offers recommendations for a sensitive interview, including accepting a refusal to be interviewed; acknowledging the crime and its impact on the victims; and, not minimizing the crime. NOVA also implores, “Remember the motto, ‘Do no harm’.” The “Do nots” outlined by NOVA includes (Offen et al., 1999:3-12): 1.

Do not print or broadcast facts about the victim or the criminal act that might embarrass, humiliate, or hurt the victim unless there is a compelling need, such as an interest in the public safety, to publish such facts.

2.

Do not engage in any form of sensationalism in reporting crimes, its investigation or prosecution, especially erring on the side of restraint with any victim or witness who was not previously a public figure or who has evidenced a desire not to become one as a result of the crime.

During the Duke case, Kelly McBride of the Poynter Institute wrote, “As with all challenges of ethical decisionmaking, the naming question is best addressed by considering three main principles (2007): •

reporting the truth as fully as possible;

•

remaining independent, and;

•

minimizing harm”

Clearly the Internet played a large role in both the Bryant and Duke cases. Internet sites (not associated with traditional news media) were the first to report the victims’ names and other identifying details. In both cases, some traditional media reported the victims’ names after they appeared on the Internet or chose to link to those sites that had information they were not reporting. Other media continued to follow their internal policies of not publishing the names even after they became widely known.

What Does the Media Think? Several studies have been conducted to gauge the opinions of newspaper editors regarding the government’s role in protecting rape victims by not publishing their names, with somewhat conflicting results. A 1995 study of newspaper editors found that nearly 72 percent of the 589 editors polled believed that victims’ rights laws which restrict access to public information are contrary to First Amendment rights and should be repealed, 12 percent were neutral, and 14 percent disagreed or disagreed strongly (Thomason,

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LaRocque & Thomas, 1995). However, only 24 percent agreed or strongly agreed that withholding the names of rape victims interferes with the public’s right to know, while 58 percent disagreed, and 15 percent were neutral. [Two percent did not respond.] When asked if newspapers identified rape victims by name would help to remove the stigma of rape, nearly 23 percent agreed or strongly agreed, whereas, 54.5 percent disagreed or strongly disagreed, and 22 percent were neutral (Thomason et al., 1995). [Three percent did not respond.] An April 1993 phone survey by the Roper Center (1993) at the University of Connecticut of 1,040 newspaper editors for the American Society of Newspaper Editors asked: Do you feel the media should be protected all the time, protected under certain circumstances or not protected at all when journalists report the name or identity of a rape victim?

Fifty-four percent of the editors said the media should not be protected at all; 22 percent said the media should be protected sometimes; 22 percent said the media should be protected all of the time; and two percent said they don’t know. While these data reveal that the majority of editors responding to the survey believe the laws designed to protect the names of victims should be repealed, a significant number also indicate that the media should not be afforded protection when reporting those names.

Public Perception There were many polls taken in the early 1990s in the wake of the William Kennedy Smith and the Central Park jogger trials to gauge public opinion on the issue of publishing the names of rape victims. A Gallup Poll (1991a) sponsored by Newsweek asked 761 adults: Do you think the names of rape victims should be reported by the news media just like the names of other crime victims, or not? Seventy-seven percent of the respondents answered no; 19 percent responded yes; and 4 percent said they didn’t know. [Two percent did not respond.] Some people feel that reporting the name of a woman who has been raped indicates that society does not attach a special shame to being a rape victim, and treats male and female crime victims equally. Others say it is a special hardship for women. Which comes closer to your view? Nine percent said equal treatment; 86 percent said it creates a special hardship; and 5 percent said they don’t know.

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Another Gallup Poll (1991b) asked 1,005 adults: Do you approve or disapprove of the decision by most news organizations to keep the name of the alleged rape victim (in the William Kennedy Smith trial) confidential – or do you think her name should have been released? Sixty-four percent of the respondents said they approved of keeping the victim’s name confidential; 33 percent said it was okay to release it; and 3 percent said they didn’t know.

In a more recent study, the Newspaper Research Journal (1999) asked respondents to react to four stories about rapes (some of which included the victims’ names). The study findings indicated that individuals were not affected by the identification of rape victims and were neither more sympathetic nor more blameful of victims, thus suggesting that the details of the crime and the way the crime is reported probably has a more powerful impact on readers’ perception than the use of the victim’s name. From these data, one can conclude that the majority of the public believes that the media should not release the identity of rape victims.

Withhold? Advocates and critics of victim naming advance a myriad of reasons for and against identifying rape victims. Advocates are generally most concerned with protecting the rights of the victims, while critics tend to be most concerned with the rights of the media. The reasons purported by advocates for withholding the names of victims are directly related to the harm that may be inflicted on the victim as a result of the publication of her identity by the media. Rape victims who are identified in news stories that relate the specifics of the crime are forced to relive the traumatic experience each time the story is broadcast (Dworkin, 1997). This form of revictimization, perpetuated by the media, increases feelings of humiliation for the victim, who may be ridiculed by friends, family, coworkers and the community at large and may result in a second assault on her privacy (Dworkin, 1997; Davis & Brickman, 1996). Advocates for withholding the identity of rape victims also suggest that reporting the names would continue to hamper efforts that encourage rape victims to report the crime (Dworkin, 1997). As stated by Dworkin, “Now, thanks to The New York Times and NBC News, both of which identified by name the victim in the William Kennedy Smith rape trial, there will be a third rape – by the media. If a woman reporting a rape to the police means she will be exposed by the media to the scrutiny of voyeurs and worse, a sexual spectacle with her legs splayed open in the public mind, reporting itself will be tantamount to suicide” (1997:55).

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Furthermore, advocates contend that rape survivors have already suffered enough and that releasing their names would heighten the feelings of powerlessness that occur during the assault. Victims feel a stigma and a sense of shame attached to the experience, and the consequences of publishing their names will only increase the feelings of guilt and loss of control (Cuklanz, 1996; O’Toole & Schiffman, 1997). As stated by Benedict, “To name a rape victim is to guarantee that whenever somebody hears her name, that somebody will picture her in the act of being sexually tortured” (1992:15). The stigma associated with rape and the potential for future harm may also be more problematic for victims involved in high profile cases where the accused is well known as in the Kobe Bryant case. In this case, the alleged victim and her family claimed that she was harassed and received death threats after her name and private information was posted on the Internet (Haddock, 2004). She later refused to testify because of her fear of potential retaliation by others in society and the case was subsequently dropped against Bryant. Finally, advocates suggest that naming victims in most crime stories is meaningless to the vast majority of readers (as indicated by the above-mentioned data), and thus of no great significance to the integrity of the story. Publication of the names of rape victims is harmful to the victim, as well as the family and only serves to increase the psychological and emotional devastation (Davis & Brickman, 1991) that began with the initiated assault.

Publish? The arguments for critics of publishing identities focuses primarily around the issues of censorship; enhancing the credibility of the story; providing the victim of rape a protection that is not guaranteed to other victims; providing the alleged victim of rape a protection that is not afforded the accused; removing the stigma that society places on rape victim by providing a forum that will facilitate the healing process and the rapid changes in technology and how personal and private information is released. When addressing the issue of legislative policies related to censorship, critics contend that any form of censorship is a violation of the First Amendment. Charles Gay, whose Washington state newspaper prints rape victims names regularly contends that because the Constitution gives the defendant the right to a public trial and to meet his accusers in public, they believe it is important that accusers are named in the paper (Stein, 1986). By not allowing the media to make independent decisions, critics assert that legislators are intruding on the right to freedom of the press, which should be deemed unconstitutional. As noted previously, the courts have supported the media on this issue, especially in the case of privacy, thereby negating efforts by state legislators to prohibit the media from publishing the names of rape victims.

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Critics suggest that naming the victim in the news report promotes credibility. According to Gartner, “. . . names and facts are news that [makes] readers better informed. The more we tell our viewers, the better informed they will be in making up their own minds about the issues involved” (Gartner, 1993). Readers want to know who was victimized, as well as where the crimes are occurring, and by providing this information, the media is performing the service that is expected by society. Any restriction that would not allow the media to publish the names of rape victims provides a protection of nondisclosure that is not afforded any other victim (Berlin, 1995). Other than juvenile delinquents, whose names are withheld (by law) from the media to diminish the possibility of future stigma and labelling, and possibly victims/offenders whose identities may be protected for security reasons, rape victims are the only victims whose names are not provided to the media. Therefore, critics suggest that this “protection” extends special privileges to rape victims, while diminishing the sense of fairness for the accused. Others purport that like advocates, the media is also concerned with the well being of rape victims. Citing reasons ranging from deconstructing the myths associated with rape victims to educating the public, critics suggest that naming the victims would dilute the negative connotations and facilitate the healing process (Berlin, 1995). By identifying rape victims, the media could educate the public of the stigma attached to rape thereby, minimizing victim-blaming and the stereotypes associated with this particular form of victimization, while pulling off the veil of shame (DeCrow, 1990). There is also the argument that times have changed and with those changes society is more open with discussions of sex and sexuality. In addition, there has been a change in attitude towards women in general (Taylor, 2006) and the fact that women are more likely to report rape than in earlier times (Taylor, 2006; Baumer, 2004; Hart & Rennison, 2003). According to Baumer, “…some of the institutional and cultural barriers that presumably served as disincentives to police notification by rape victims have been diminished or removed during the past three decades (2004:29). Finally, there is a recent motivation that suggests that it is impossible in this technologically savvy world to prevent the release of the names of alleged rape victims (Haddock, 2004). Oftentimes the media will publish enough pertinent information that determining the identity of a victim can be relatively easy to do. Once the name is discovered, it is – as mentioned early – only a matter of seconds before the name is public knowledge worldwide. In fact, one website (inthefray.com) was created by a rape victim who has dedicated her website to publishing the names and pictures of willing participants who have been raped. Consequently, the main media outlets are no longer the “white knight” protectors of female virtue and hidden identities – that task has been overtaken by the “all-knowing” and “all-seeing” Internet.

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Conclusion As outlined by Brownmiller (1975) and Benedict (1992), there are many myths in society regarding rape, including the myth that rape is a natural sexual act, rather than an aggressive act. Benedict argues that this myth “encourages people to not take rape seriously, nor consider it as a crime, which may continue to promote the practice of victim blaming” (1992:14). In addition, Brownmiller and Benedict discuss the myths that women provoke rape by their looks, sexuality, and the way they dress, and that only “loose” women are victimized. Unfortunately, these myths are so pervasive that we often find lawyers, police officers, victims, perpetrators, and the media perpetuating them (Benedict, 1992:16). Society continues to struggle with these myths, as evidenced by the attention given to “Why Men Rape,” by Thornhill and Palmer. These evolutionary biologists contend that rape is not an act of violence, but a sexual act that they believe occurs because of the natural urges of men to procreate. In addition, they suggest that how a woman dresses and her behavior impacts her chances of being raped. They alone are decelerating 20 years of feminism research and grassroots efforts to educate society about the true causes of rape. Rightfully so, Brownmiller rejects Thornhill and Palmer’s assertions, stating once again that rape is a crime of violence. It is the result of young male aggression and cultural attitudes promoting the acceptance of young men forcing themselves on women” (Brownmiller, as quoted by Rosenfeld, 2000). Some will argue that the benefits of protecting rape victims’ identities far outweigh the arguments for making victims’ names public. Women whose names have been made public by the media report embarrassment, concerns about safety, a sense of revictimization, and acknowledge that they would be less likely to report the crime if they knew their name would be made public. Additionally, most in society agree that rape is intrinsically a very different sort of victimization, the trauma of which lingers for many years. Unlike other types of victimizations, rape victims are subjected to continued emotional, psychological, and oftentimes physical degradation that is not easily remedied and is not improved by victim naming. Consequently, identifying these victims under the auspices of the public’s right to know may only succeed in denying the victim her right to privacy, as well as hampering her ability to heal. On the other hand, one of the counterarguments may relate to removing the stigma associated with rape by bringing it to the forefront and forcing society to deal with it openly; which can only be accomplished if the names of both the victim and the accused are publicized. Instead of hiding behind a cloak of anonymity, victims of rape would benefit because naming the victims as a general practice would eventually help to diminish the stigma attached to victims of rape and help to dispel the myths believed by many in society. Many would argue that society has changed its attitudes about gender roles which have also helped to remove some of the stigma felt by rape

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victims. Unlike the days prior to the establishment of the rape shield laws; society is more accepting of women and are less likely to blame the victim for the rape. A second counterargument has to do with false accusations. The assumption is that if the names of victims were published as a general rule, women would be less likely to make false accusations because they would then be potentially subjected to the same scrutiny as the accused. Levelling the playing field in this manner would facilitate a fairer and more equal system of justice for both parties; with no one individual having an advantage over the other with regards to privacy. It is apparent from Cox Broadcasting Corp. v. Cohn and subsequent cases, that it is unlikely legislation barring the media from publishing names will ever pass a constitutional test. However, many states have tightened the flow of information to the media by making it illegal for criminal justice agencies to disclose victims’ identities. Although this is perhaps not a complete solution, it does provide some protection for victims of rape. Current media codes of ethics, such as those of the Society of Professional Journalists and the Radio -Television News Directors Association, as well as individual newsroom policies, have generally provided guidance to assist journalists in making a decision. When journalists have strayed from the practice of keeping victims’ names confidential, the public outcry has been loud and clear. Therefore, it should be apparent to journalists that if their goal is to report what people want to know, and in keeping with their professional codes of ethics, they will continue to refrain from reporting the names of rape victims. However, with the rapid changes in technology and the popularity of the Internet, this decision may not be as straightforward as in previous years.

References Baumer, E.P. (2004) Temporal Variation in the Likelihood of Police Notification by Victims of Rapes, 1973-2000, The National Criminal Justice Reference Services, Retrieved November 20, 2007 from www.ncjrs.gov/pdffiles1/nij/grants/207497.pdf. Belknap, J. (2007) The Invisible Woman: Gender, Crime and Justice. Belmont, CA: Thomson Wadsworth. CBS News (2006). Duke Rape Suspects Speak Out. Retrieved November 15, 2007 from http:// www.cbsnews.com/stories/2006/10/11/60minutes/main2082140.shtml Connors, E., T. Lundregan, N. Miller & T. McEwen (1996). Convicted by juries, exonerated by science: Case studies in the use of DNA evidence to establish innocence after trial. Retrieved November 10, 2007 from http://www.ncjrs.gov/txtfiles/dnaevid.txt CNN (2003). Central Park Jogger Speaks Out. Retrieved November 15, 2007 from http:// www.cnn.com/2003/US/Northeast/04/23/central.park.jogger/ Dilby.com Global News Monitor (n.d.). Duke Lacrosse Team Roster. Retrieved November 15, 2007 from http://www.dilby.com/duke-lacrosse-team-accuser.htm

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Haddock, V. (2004). Kobe Bryant’s Nameless Accuser: Why Should We Even Pretend We’re Protecting the Privacy of the Woman Who Says the Basketball Star Raped Her? Retrieved November 20, 2007 from http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/08/22/ INGV088VFL1.DTL Hart, T.C. & C.M. Rennison (2003). Reporting Crime to the Police, 1992-2000. Retrieved November 20, 2007 from http://www.ojp.usdoj.gov/bjs/abstract/rcp00.htm In the Fray (2007). Retrieved November 26, 2007 from http://www.inthefray.com/200109/ image/htmls/letter.html Johnson, K. (2004). Prosecutors Drop Kobe Bryant Rape Case. Retrieved November 26, 2007 from http://www.nytimes.com/2004/09/02/national/02kobe.html Kanin, E. (n.d.) An Alarming National Trend: False Rape Allegations. Retrieved November 20, 2007 from http://www.anandaanswers.com/pages/naaFalse.html Kenworthy, T. (2004). Accuser’s Dad Says Bryant Judge Unfair. Retrieved November 20, 2007 from http://www.usatoday.com/sports/basketball/2004-08-12-accuser-dad_x.htm Kenworthy, T. & P. O’Driscoll (2004). Judge Dismisses Bryant Rape Case. Retrieved November 15, 2007 from http://www.usatoday.com/sports/basketball/nba/2004-09-01kobe-bryant-case_x.htm Kohler, J. (2004). Accuser’s Attorneys Blast Bryant Judge. Retrieved November 15, 007 from http://www.usatoday.com/sports/basketball/2004-08-09-judge-attack_x.htm Liptak, A. (2004). Papers Reveal New Details In Kobe Bryant Rape Case. Retrieved November 29, 2007 from http://query.nytimes.com/gst/fullpage.html?res=9406E3DF143CF93 7A3575BC0A9629C8B63 McBride, K. (2007). Duke Lacrosse Case: Should We Name the Accuser? Retrieved November 24, 2007 from http://www.poynter.org/content/content_print.asp?id=116123&custom McBride, K. (2002). “Rethinking Rape Coverage: Should Anonymity Be Absolute?” The Quill, 90:8(4). NBC Sports (2004). Rape Charges Against Bryant Dismissed. Retrieved November 15, 2007 from http://www.msnbc.msn.com/id/5861379/ NNDB (2007). Katelyn Kristine Faber. Retrieved November 15, 2007 from http://www.nndb. com/people/480/000091207/ O’Driscoll, P. (2005). Kobe Bryant, Accuser Settle Her Lawsuit. Retrieved November 15, 2007 from http://www.usatoday.com/sports/basketball/nba/2005-03-02-bryant-settles_x.htm Overholser, G. (2003). Name the Accuser and the Accused. Retrieved November 24, 2007 from http://www.poynter.org/column.asp?id=54&aid=42260) Pew Center for the People and the Press (2007). Retrieved November 24, 2007 from http:// people-press.org/reports/print.php3?PageID=834 Porteus, L. (2007). All Sex-Assault Charges against Duke Lacrosse Players Dropped; Players Glad Ordeal Is Over. Retrieved November 22, 2007 from http://www.foxnews.com/ story/0,2933,265187,00.html Sarche, J. (2004). Judge to Allow Accuser’s Sex Life as Evidence in Bryant Case. Retrieved November 15, 2007 from http://www.usatoday.com/sports/basketball/nba/2004-07-23bryant-case_x.htm

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Shaw, M. (2003). Ruling on Statement, T-shirt Will Set Defense Strategy. Retrieved November 15, 2007 from http://www.usatoday.com/sports/basketball/nba/2003-12-18-shaw-analysis_x.htm Society of Professional Journalists (2007). Code of Ethics. Retrieved November 24, 2007 from http://www.spj.org/ethicscode.asp Sundby, A. (2004). Bryant Case Spurs States to Fortify Rape Shield Laws. Retrieved November 22, 2007 from Stateline.org http://www.stateline.org/live/static/About+Us?contentId=15805 Taylor, L.R. (2006). “Has Rape Reporting Increased over Time?” National Institute of Justice Journal, 254, Retrieved November 20, 2007 from http://www.ojp.usdoj.gov/nij/journals/254/rape_reporting.html Terry, K.J. (2006). Sexual Offenses and Offenders: Theory, Practice and Policy. Belmont, CA: Thomson Wadsworth. The National Center for Victims of Crime (2007). Rape-Related Post Traumatic Stress Disorder. Retrieved November 27, 2007 from http://www.ncvc.org/ncvc/main.aspx?dbName= DocumentViewer&DocumentID=32366 United States Federal Bureau of Investigations (2007). Crime in the United States, 2006. Retrieved November 15, 2007 from http://www.fbi.gov/ucr/cius2006/offenses/violent_ crime/forcible_rape.html Yamawaki, N., R. Darby & A. Queiroz (2007). “The Moderating Role of Ambivalent Sexism: the Influence of Power Status on Perception of Rape Victim and Rapist.” The Journal of Social Psychology, 147, 1

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CHAPTER 5 Should Victims Have the Right to Meet with Their Offenders? Cheryl Swanson

Since the President’s Task Force on Victims of Crime recommended changes in the Constitution and in federal and state laws to guarantee victims’ rights in 1983, the Federal and state governments have responded with an assortment of constitutional and legislative provisions (Karmen, 2007). Not surprisingly, victim protections are mandated within the context of the traditional, adversary system of justice. While victim protections are diverse in nature, they can be classified into six core rights: notification of the status of the case, and status and location of the offender, information about rights, resources, and remedies available to victims of crime, restitution and other legal/financial obligations (such as child support) that help victims recover financial losses resulting from crime, protection from intimidation, harassment, or harm, participation in justice processes, including the use of victim impact statements before sentencing and at parole release hearings to describe the emotional, physical, and financial losses resulting from victimization, and information and referrals to supportive services, including victim compensation, support groups, housing, safety planning, and counseling, among others (Doerner & Lab, 2008). In the emerging paradigm of restorative justice, there is a movement toward expanding the role of the victim in the criminal justice system. While many restorative initiatives involve informal alternative processes, many work in tandem with the criminal justice system. Examples are victimoffender mediation, sentencing circles, and victim-offender dialogue in prison settings. Although proponents of restorative justice caution that victims heal in different ways, there is evidence that some victims benefit substantially from face-to-face meetings with their offenders (Umbreit, Vos, Coates & Brown, 2003). However, the opportunity for victims to participate in these meetings at any stage in the process is left to the discretion of prosecutors, 73

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judges, and corrections officials. With the available evidence on benefits of victim-offender meetings it seems appropriate to ask, should victims have the right to meet with their offenders?

The Terms of the Debate A debate of sorts has evolved between restorative justice advocates and victims’ rights proponents. The restorative justice philosophy places reparation and healing at the center of its peace-making approach. The intangible and often spiritual concerns of restorative advocates sometimes conflict with the political agenda of victims’ rights advocates. Leaders in this movement, such as Susan Herman (2004), advocate a parallel system of justice where offenders are tried in the traditional criminal justice system, and victims’ needs are addressed in corresponding social service structure that provides comprehensive care to crime victims. This includes but is not limited to giving material support to the victim that cannot be met by most offenders through restitution. Furthermore, victims’ rights proponents correctly point out that in many cases crime victims have no opportunity to meet with and seek restitution from the perpetrator. A small percentage of crimes are cleared or solved by law enforcement (Karmen, 2007). At the core of the debate is the question, “what do victims really need and how can these needs best be addressed?” The restorative approach gives victim-offender dialogue a primary place in the healing process. Victims’ rights leaders question whether at best these dialogues are helpful and at worst whether they can do more harm than good. With this in mind, how might victims’ groups respond to giving victims the right to meet with their offenders?

The Perspective of Victim Advocacy Groups Victim advocacy groups are likely to oppose a legal provision giving victims the right to meet with their offenders, at least at this point in time. In a report outlining a vision for repairing harm to victims in the twenty-first century, victim advocates Susan Herman and Michelle Waul (2004) critique current victim compensation plans as underused, not reaching enough people, having limited coverage, and relying too much on offender fines and restitution. While Herman and Waul state that non economic losses should be recognized and cite the need for a broad system of victim support, a clear priority is victim compensation. Victim compensation is viewed as sufficiently critical to repairing the lives of victims, that the state should use tax revenues to fund it. Given this perspective, it is clear that victim-offender dialogue is not central to the current mission of groups such as the National Center for Victims of Crime which makes the Herman/Waul report available. It is likely that victims’ interest groups would find the addition of this right a distraction from the more essential role that compensation plays

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in rebuilding victims’ lives. Victim advocates in Canada have expressed similar concern about victim- offender meetings (Wemmers & Cyr, 2004). Differing world views of victim needs, however, are not the only reason why victims groups are likely to oppose establishing the right to meet with offenders. They have long been suspicious of the motives and methods of restorative justice which has promoted victim- offender reconciliation (Johnstone, 2002). Since some members of the restorative justice movement were previously involved in prison reform, victim advocates fear that victim needs will be relegated below those of the offender. Furthermore, just as the criminal justice system has frequently imposed a “second injury” on victims, will victim-offender meetings inflict additional emotional injuries on them? Victim advocate Mary Achilles comments on how her framework of what a victim needs was challenged by a client years ago. . . . I was shocked by my internal response when a victim who had been seriously assaulted presented me with my first request to meet with an offender. I had a thousand thoughts about why she should not do it and why she was mistaken in making this request. . . . I had great difficulty dealing with my own reactions so that I could assist her properly (2004:66).

Giving victims the right to meet with their offenders might cause victim advocates to fear losing their sense of dedication to crime victims when they find themselves in a position of hearing both victim and offender perspectives (Achilles, 2004). But an even greater concern is that many victims would not choose the option of speaking to their offenders. Should the process become institutionalized, would victims feel they are being “bad” if they don’t participate? Would the availability of this opportunity place an additional burden on victims? In addition, many victims travel a long non-linear path before they are ready to meet with the offender. Would the widespread availability of this option encourage victims to rush the recovery process in a way that would be inimical to their self interests (Achilles, 2004)? Zehr (2001) conducted in depth interviews with an availability sample of victims and co-victims of serious, violent offenses. While some victims chose to meet with the persons who harmed them, they were in the minority. Paul Rock, a sociologist at the London School of Economics, is highly critical of the restorative approach. He observes: [T]he revival of restorative justice (in the 1990s) had little directly to do with interests or wishes of the victim clearly expressed or conventionally defined. It was a creature of different impulses. There had been no swelling of demand for reparation or mediation from victims or from the organizations that represented them, although the occasional victim might have sought to meet an offender, such as a murderer, to better understand his action. It was simply taken for granted that victims would or should somehow wish to play their part in doing good to the offender (2004:290-291).

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This raises an issue alluded to earlier – that the agenda of restorative justice – particularly victim-offender dialogue – is designed to help the offender, not the victim. If this is the case, victim- offender meetings should not be considered a victim right at all. To summarize, victim advocates who do not work in the restorative justice field are likely to think that victim needs cannot be met by interacting with the offender. It might be helpful in some cases, but it is not a priority (Achilles, 2004). Herman identifies problems that are not directly addressed with apologies, restitution, and relationship building. These include lower academic performance, decreased work productivity, severe loss of confidence, mental illness, and higher-than-average suicide rates. She argues, “Addressing these needs can require long-term sophisticated counseling, assistance with safety planning, or relocation.” (Herman, 2004). Clearly, most offenders cannot provide or pay for these needs which might be described collectively as overcoming the trauma of crime. Herman prescribes a strong role for government in this process. She implies that government recognition of the victim’s plight meets victim needs better than victim-offender reconciliation because it is a stronger and more public acknowledgment of the wrong done to the victim (Herman, 2004). Amstutz (2004) also observes that many in the victims’ rights movement see it as driven by offender needs on the offender timeline. Early writing by restorative justice proponents Daniel Van Ness and Karen Heetderks Strong warn . . . “the encounter process requires both victim and the offender to participate voluntarily. The victim’s readiness may not coincide with the pace of the criminal justice system (particularly in the case of violent or otherwise serious offenses), and program administrators will need to handle this tension with sensitivity to avoid creating a climate of coercion” (2002:78). While this passage shows concern for the victim, it can easily be interpreted as placing the interest of the process, be it the criminal justice system or the victimoffender encounter interfacing with it, ahead of victim needs. Given obstacles created by the criminal justice system, creating opportunities for victim-offender dialogue takes too much time and effort and detracts from the importance of other victim issues. Amstutz (2004) recommends that restorative justice practitioners learn about other victim needs. Furthermore, while acknowledging the helpfulness of victim-offender meetings, she notes that some object to the term mediation, suggesting that it places the victim and the offender on an equal moral playing field. Finally for some victim advocates, victim-offender meetings imply forgiveness (Amstutz, 2004). Work with offenders suggests that forgiveness is very important to them (Zehr, 2005). Still the nature of forgiveness is such that it cannot be forced (Zehr, 2005; Peterson & Umbreit, 2006). Should victim-offender dialogue be readily available, victims might think they can get a “quick fix” by simply and quickly forgiving their offender, or they might be re-victimized by guilt induced by their lack of readiness or inability to forgive. Furthermore, some spokespersons for the victim community think

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that the restorative approach to victim-offender dialogue seeks out only victims who want to forgive. By implication they are not aware of or interested in the wide gamut of emotions experienced by victims including anger, rage, and the desire for revenge. In his in-depth interviews with victims of violent crime, Zehr captures these intense emotions. When asked to describe his feelings, one victim said, “Rage – that’s hate with a lot of chili sauce poured on it” (Zehr, 2001:102). A man whose sister was killed by two 19-year-old men reported, “I could see my hands going around his throat, killing him” (Zehr, 2001:162). Another woman, Patricia Roberts-Gates said, “I was angry and came in contact with many angry people” (Zehr, 2001:166). Zehr describes the feelings expressed in the interviews as a “whirlpool of emotions” (2001:186).

The Restorative Response Restorative justice can be defined as a response to conflict, misbehavior, and crime that makes things as right as possible for all those affected (Claassen, Tilkes, Kader & Noll, 2001). Zehr (2002) writes that from a restorative justice perspective, when a crime is committed it violates people and interpersonal relationships and creates obligations to repair the harm that is done. Justice done restoratively addresses victim needs, holds the offender accountable, and involves victims, offenders, and the community in the healing process. Zehr emphasizes that restorative justice is a set of principles. It should not be equated with a particular technique or process such as victim-offender mediation (Zehr, 2002). However, since restorative justice is inclusive and promotes engagement of victims, offenders, and the community in the process of making things right, it follows that victims should have the right to meet with their offenders if they so choose. Feedback solicited from several restorative justice practitioners about this issue shows substantial support with some qualifications. Chris Summers, chaplain with the Faith- Based Restorative Justice Honor dorm at W.C. Holman Correctional Facility in Atmore, Alabama, says The state in doing the business of justice has the responsibility to offer victims a meaningful and safe opportunity to meet their offenders. This relational area of justice is highly neglected under the notion that victims’ safety is at risk and/or that there is no real benefit from these encounters. It is my opinion that this is not the case with the majority of crimes. . . . the government is not serving the best interests of justice or the people it serves to deny victims the choice. The opportunity for victims’ choice to encounter their offenders must come through government taking active roles to help the people it serves. Denying the safe and meaningful visibility of victim and offender dialogue is irresponsible governance (C. Summers, personal communication, October 11, 2007).

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Alabama, like many other states, does not offer victims the opportunity to meet with offenders in the prison system. While victim-offender reconciliation programs have developed throughout the United States and throughout the western world, the majority is not state supported and often operates at the fringes of the criminal justice system (Umbreit & Greenwood, 2000). The position held by the victim community that victims do not place meeting with the offender high on their list of priorities, should be tempered by the fact that many victims do not know it can take place. Indeed, in most localities, it is not an option. As an example, a student enrolled in a restorative justice class at the University of West Florida was assaulted at a local bar. He was at a loss as to why a total stranger took a swing at him. Intrigued by the possibility of meeting with his offender at the pretrial stage, he asked the state attorney if this could happen. The prosecutor replied, “Absolutely not.” One scholar in the field laments that restorative justice is often relegated to “potato chip” cases – referring to a preponderance of programs that serve juveniles and their victims for minor crimes (Bazemore, opening comments, National Conference on Restorative Justice, June 24, 2007). A survey of victim-offender mediation programs (VORPs) conducted in 1998 found 101 programs for juveniles only, 89 for adults and juveniles, and only 20 programs for adults only (Umbreit & Greenwood, 2000). Only five were felony only programs. Since the survey was taken, a few states such as Texas, Ohio, and Pennsylvania offer victim-offender dialogue programs with prison inmates who have committed very serious crimes. An exception to the potato chip pattern is New Zealand where family group conferences are required for all juveniles who admit their offenses without asking permission from the offender to be part of the conference. Judge Fred McElrea, a New Zealand proponent of restorative justice remarks, “Thus assuming that the victim is properly notified and the conference has been arranged at a time suitable to the victim, the victim has [emphasis added] the right to meet the offender” (F. McElrea, personal communication, October 15, 2007). McElrea knows of no country where restorative-based meetings of the kind used in New Zealand for juveniles are mandatory for adult offenders. Some might argue that the New Zealand program is more offender than victim centered because conferencing was designed to reform a failing juvenile justice system. Lisa Rea, President and Founder of the Justice and Reconciliation Project (JRP) says, “There is growing support among the victims of crime community that victims should have the right to meet with their offenders. JRP agrees. So victims often do not know that meeting their offenders is an option. Often it is not. The criminal justice system in operation today in the U.S. makes no room for such meetings (L. Rea, personal communication, November 6, 2007).” Ms. Rea recently had an exchange with a victim advocate working for California Governor Schwarzenegger about this issue. “She was not supportive of

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Victim Offender Reconciliation Programs (VORP) for all victims. However, when I suggested that victims should have the OPTION to meet (or be in contact with) their offenders if they so desired, she agreed that they should have such a right. That’s the distinction. Not mandatory of course, for either party, but an option for victims” (L. Rea, personal communication, October 18, 2007).

The Debate over What Victims Want The argument that restorative justice is imposing its agenda on victims is challenged by research on what victims want (Strang, 2004). Findings show victims want a less formal process where their views count, participation in their case, more information about both the processing and outcome of their case, respectful and fair treatment, material restoration, and emotional restoration, including an apology. The victims’ rights movement has worked hard to respond to these wants. However, victim-offender dialogue can certainly address the desire for expressing views in a less formal process, for obtaining information, and most importantly, for seeking emotional restoration. The Reintegrative Shaming Experiments (RISE) in Australia show that young offenders (up to age 29) who participated in a victim dialogue had a 40 percent lower recidivism rate than offenders in a control group who went to court without a victim meeting (Strang, 2004:99-100). Some of this success is attributed to the strong emotions that victims of violent crime bring to the table. The fact that victims generate the emotional power that makes offenders listen supports the suspicions of the victim community that restorative dialogue is designed primarily for the offender. On the other hand, Strang points out that “victims care immensely that others will not have to endure what they have experienced” (2004:101). This observation is reinforced by in- depth interviews with victims of violent crime, many who following their victimizations, pursue volunteer work or careers in areas related to crime prevention (Zehr, 2001). If healing for some victims is enhanced by participating in a process that contributes to offender change, the exchange is mutually beneficial. Certainly emotional restoration can be met in other ways than direct communication with the offender: for example, through victim impact statements or counseling. But is this sufficient for all victims? Strang, (2004) finds that what victims want most is not material reparation but rather symbolic restitution in the form of a sincere apology. Sometimes apologies are made in court, but they are more likely to emerge from victim-offender contact in the form of a letter or a face-to-face meeting. Strang (2004) identifies another victim benefit for emotional restoration in face-to-face meetings. The RISE experiments show that only 9 percent of violent crime victims who met with the offender wanted to harm them if given a chance. The figure was 50 percent for those who participated in the regular court system. This finding has two interpretations. On the one hand,

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it suggests that negative emotion is addressed and processed effectively during victim-offender dialogue. Alternatively it could mean that victims who experience less intense feelings about revenge are the ones drawn to the restorative process. The belief that restorative practitioners do not wish to deal with the full gamut of emotions felt by crime victims is not born out by restorative justice work. Speaking to this point, Strang says, “I suggest that part of the essence of restorative justice is to provide the opportunity for victims to express their feelings of anger, fear and outrage, within the bounds of civility set by the facilitator, and the desire for the offender to be hurt as much as they have been hurt” (2004:101). Clearly, the meeting format used by restorative practitioners is crucial. If a tight, overly structured script is employed to control the expression of emotion, then victim needs will not be fully addressed. However, if a more open design is applied to allow for the expression of negative emotion, then victim and offender are more likely to benefit. The script developed by Terry O’Connell, an Australian practitioner, is an example of the latter (O’Connell, Wachtel & Wachtel, 1999). His work is informed by the theory and research of Tomkins (1962) and Nathanson (1992) on negative and positive affect. According to Nathanson (1992), what happens in a restorative meeting is the opportunity to express negative emotions in a safe setting so that healing can take place. The feelings of relief described by victims after an encounter are an example of how the process works (Umbreit et al., 2003).

Victim Experiences: What Do the Data Tell Us? A key concern of the victim community is that victim-offender meetings are not good for the victim. Years of emotional ups and downs, moving two steps forward and then three steps backward may finally culminate in a degree of acceptance and mending that brings some peace of mind. Why risk this hard work and time for an experience that could tear the fragile healing space surrounding the heart? One way to address this issue is to examine evaluation studies of victim-offender meetings. How do victims fare? Evaluation research has been conducted for more than 25 years, and most shows a high degree of satisfaction among victims. These studies range from cases involving less serious offenses, often committed by juveniles, to those where the offense was robbery, rape, and even murder. Some research uses control groups while others simply survey participants who participate in victim-offender encounters and describe their experiences (Umbreit et al., 2003). Mark Umbreit et al. (2003), who has worked in this field for many years as a researcher and facilitator warns that the responses of victims may be biased by self-selection. That is, those who decide to participate in victimoffender encounters are the most likely to benefit from them. Still it is useful to review the evidence bearing on the possible harm or help that results from victim-offender meetings.

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Addressing the concern that victims are pressured to participate in meetings with offenders, Umbreit and fellow researchers (2003) found that 91 percent of victims in an Oregon study felt their participation was voluntary. A greater percentage of offenders (almost half) thought their participation was not really voluntary. The offenders in the study were juveniles, which may explain, in part, perceptions of coercion. Studies on victim satisfaction with victim-offender mediation are consistently high with 80 percent to 90 percent showing satisfaction with the process. This holds across time, culture, and seriousness of the offense (Umbreit et al., 2003). A meta-analysis of l3 restorative programs found that in all but one, victim satisfaction was higher for victim-offender mediation than for those who took part in traditional approaches (Latimer, Dowden & Muise, 2001). Interestingly, satisfaction with the process tends to be higher for victims than for offenders. The issue of fairness is also addressed by researchers. The ground rule for most victim-offender dialogues is that victims can end the mediation at any time. Perceptions of fairness are in the 80 percent range and when a comparison group is available, victims who participate in the traditional system are less likely to believe they have been treated fairly (Umbreit et al., 2003).

Who Participates and Why? The perception of victim rights activists that the majority of victims do not wish to meet their offender is supported by the data. Umbreit and his colleagues (2003) report that across a variety of programs, only 40 percent to 60 percent choose to participate. Still these participation rates are not unsubstantial. Judge Tracey McCooey, who offers victim-offender conferencing through a district court in Montgomery, Alabama, comments: A victim should always have the opportunity to meet with their offender. The choice must be up to the victim, and it should always be totally voluntary. . . . There are so many questions that a victim often has about a crime that can be answered only by the offender. We have never had a victim-offender conference in which a victim walked away feeling worse. Victims express that often they got to “get things off their chest” or ask those really difficult questions that only the offender could answer. Allowing a victim to meet with an offender confirms that each victim is a unique human being with real fears, questions, etc….It is very important that victimoffender conferencing be offered in every type of case. We have found that the more serious the case, the more questions. We have conducted victim-offender conferences in murder cases, robbery cases, and other violent crimes (T. McCooey, personal communication, October 15, 2007).

Judge McCooey’s observation that the more serious the offense, the more likely victims want to ask offenders questions is born out by long waiting lists

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for victim-offender dialogues with incarcerated offenders. Victims of petty theft, vandalism, and the like may be satisfied with court-ordered restitution. The findings on whether offenders are more likely to pay their restitution after meeting with their victims are mixed, as are studies on the relationship between crime seriousness and victim participation rates (Umbreit et al., 2003). Eight studies on victim participation show that the main reasons given for meeting with offenders are to receive restitution, hold the offender accountable, avoid the court system, help the offender change, and see that the offender is adequately punished (Umbreit et al., 2003). In two of the studies the top reason for wanting to meet was to help the offender. This might be disturbing to victim advocates who fear that victim-offender meetings are more for the offender than the victim. Coates and Gelm quote one dissatisfied male victim who grumbled, “It’s like being hit by a car and having to get out and help the other driver when all you were doing was minding your own business” (as cited in Umbreit et al., 2003:27). Comments given by 20 victims of violent crimes who participated in dialogues with inmates in the Ohio prison system also shed light on reasons for participation. They included: wanting information, finding closure, having a human, face-to-face session with the offender, finding out of the offender feels sorry for what he did, concern for the offender, letting the offender see the impact of the crime, thinking it was the right thing to do, sharing forgiveness, working out their future relationship, preventing future crime, deciding whether to support early release, hearing apologies based on elements of Twelve Step programs, holding the offender accountable, and helping other victims (Umbreit et al., 2003). These categories are listed in order from those most frequently mentioned to those mentioned by only 1 of 20 participants. The most common reason was getting information. Whether the reasons for participating and the frequency with which they are given would change if victim-offender conferencing was more widely available is not possible to determine at this time. It is interesting to note, that only 4 of 20 victims cited forgiveness as the key reason to meet with the offender. Another reason given, the desire to work out future relationships with the offender (4 of 20 victims), might seem to strain credibility, especially in the case of serious violent crimes (Umbreit et al., 2003). However, there are cases where victim and offender are related or where victim and offender family members have long-standing relationships. This adds a different dynamic to the situation, and underscores Judge McCooey’s observation that it is important to honor the unique perspective that each victim brings to the table.

Additional Concerns Other concerns about giving victims the right to meet with their offenders are as likely to originate with restorative justice practitioners as the victim

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community. These include the issues of voluntariness, co-optation, and quality. Judge McElrea observes “A coerced offender in theory is unlikely to take part in and express remorse…but in practice young people seem to do that most times. This is perhaps a reflection of the fact that most young people are good at ‘owning up’ and not trying to hide behind the ‘right of silence’” (F. McElrea, personal communication, October 15, 2007). Judge McElrea’s main concern about requiring adult offenders to meet as a result of giving victims this right is, “it might come to be seen as a chance to berate or pillory the offender, but this should be able to be avoided by proper pre-conference briefings” (F. McElrea, personal communication, October 15, 2007). He notes that recently at the 4th Winchester Restorative Justice Conference in England, educational leader Sr. Charles Pollard said that remorse should not be a precondition of restorative justice, because that is what is usually experienced AT [emphasis added] the conference. McElrea adds, “He was talking about young people, but I think the point is more generally true. Thus even reluctant offenders might commonly end up getting and giving considerable benefit out of meeting their victim (F. McElrea, personal communication, October 15, 2007).” The traditional restorative justice literature emphasizes the necessity for voluntary participation for both victim and the offender. Van Ness and Strong (2002) observe that the criminal justice system is characterized by coercion. In contrast restorative justice seeks cooperation and consensus. Giving victims the right to meet with the offender would in no way require them to do so. Victims would be exercising the right to meet if they choose this option. Currently many states give victims the right to enter a victim impact statement in written or oral form. Many victims choose not to exercise this right (Karmen, 2007). On the other hand, as Judge McElrea points out, the right makes it mandatory for the offender to meet if the victim so desires. There is a possiblity that a coerced offender could emotionally damage the victim through hostile and unrepentant attitudes. For this reason, victim-offender programs typically require the offender to admit guilt prior to meeting. New Zealand is unusual because its juvenile program does not make offender participation voluntary, although the victim has a choice whether to attend the group conference. Offenders who choose victim-offender mediation may feel “coerced” reasoning that participation is the only alternative for more lenient sentencing. Van Ness and Strong (2002) observe that the restorative philosophy implies minimizing coercion, and that the amount of coercion involved in Victim Offender Reconciliation Programs (VORPs) is no more than what is present in the current criminal justice system when diversion programs and plea bargaining are offered. To avoid coercion and inmate manipulation, prisons with restorative programs do not allow victim-offender meetings to be used as material supporting their parole. Requiring adult offenders to meet with willing victims could pose a serious legal challenge. The policy would certainly be coercive. New

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Zealand’s requirement that juvenile offenders participate in family group conferencing is part of a larger rehabilitative effort sponsored by national legislation. Restorative conferences bring the juvenile offender and family, victims and their supporters, and service providers together. An effort to expand victim participation to include the adult offender population may best be achieved by giving victims the right to contact their offenders through institutional intermediaries. The offender’s participation would remain voluntary, but should both victim and offender agree to a meeting, prosecutors, judges, and departments of corrections would be obliged to allow the process to move forward. Howard Zehr, a founding member of the restorative justice movement in the United States emphasizes the need to enhance offender accountability and offers several qualifications for victim-offender meetings. I do think the victims should have the right to meet their offender, providing it can be done safely, they are fully informed, and voluntarily choose, there is some degree of voluntariness on the part of the offender, and both victims and offenders have adequate support through the process. I don’t subscribe to the idea that restorative justice should be fully voluntary for those who offend. Rather, I think that when we offend, we have an obligation to take responsibility and to hear what it has meant to those impacted. We as a society should be saying to offenders, “You have the responsibility. We hope you will take up that responsibility voluntarily, but one way or another you will have to accept responsibility. However, it rarely is a good idea for anyone involved to go ahead if the offender is hostile. . .” (H. Zehr, personal communication, personal communication, October 23, 2007).

From Zehr’s perspective, the choice of the victim should be an informed one. On the other hand the offender should be strongly encouraged to participate. This encouragement can be addressed through restorative programming for offenders (Swanson, Culliver & Summers, 2007; Toews, 2006). Also, institutional or organizational intermediaries are necessary to ensure that both parties are adequately prepared and ready to meet. Zehr adds, “I don’t like concepts like neutrality or impartiality. I prefer what some practitioners call ‘balanced partiality’” (Zehr, personal communication, October 23, 2007). The concept can be credited to Dave Gustafson who runs a long-standing program for encounters in cases of severe violence. It implies that facilitators and counselors should not judge the offender, but should make it clear throughout the preparation and during the encounter that the victim holds the higher moral ground, and that the offender’s obligations to the victim will be emphasized. This also suggests that the terms encounter, meeting, dialogue, or conference, are preferable to mediation which implies equality among participants.

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Co-optation and Quality A long-standing concern for restorative justice is the co-optation of restorative programs by government or other organizations. Should victims be given the right to meet with their offenders, the goals and principles of restorative justice could be displaced by other goals such as efficiency and crime control as well as the desire of some groups to profit from the meetings. For the victim rights community, of particular concern, is using victims to rehabilitate offenders. The small decentralized nature of restorative programs in the United States has contributed to quality control. In contrast, conferences in New Zealand are legislatively mandated. While New Zealand’s program is highly regarded and subject to evaluation and accountability procedures (Hayden, 2001), Judge McElrea notes that making arrangements for conferences at times suitable to the victim is not done as often as it should be (personal communication, October 15, 2007 ). One of Judge McElrea’s roles has been to make sure that restorative principles are upheld in that country. Lisa Rea proposes that when a case enters the judicial process, victims should be notified of their “right” to meet with the offender whenever they are ready to do so. This “right” should be extended to the various stages of the criminal justice process (personal communication, October 18, 2007). For example, an offender may choose not to participate in a sentencing circle, but if the offender is sentenced to probation or prison, the victim would be told that they have the option to meet with the offender at a later time. Rea adds that, “Victims need assistance if they want to contact their offenders, and shouldn’t be expected to do so on their own” (personal communication, October 18, 2007). Assistance contacting the offender could be provided by victim advocates working with prosecutors or departments of corrections. But for the process to have integrity, trained facilitators are essential. Many of the issues raised about victim-offender dialogue can be addressed by training. Since victim-offender encounters involving severe violence are the most controversial and sensitive, what do we know about training and its relationship to protecting the victims’ interests, adequately preparing the victim and offender for a meeting, attending to safety concerns, and practicing “balanced partiality” for these kinds of cases? Umbreit and his colleagues (2003) provide in-depth information about two programs involving cases of severe violence in Texas and Ohio. A small paid staff with a state victim services office supervises volunteers who facilitate the encounters. The use of volunteers saves money but more importantly contributes to the philosophy that the program should first meet the needs of victims (and secondarily offenders) rather than imposing a bureaucratic or professional agenda on the process. However, should victim-offender programs be expanded, the cost of volunteer training will increase.

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Training is essential for meeting victim and offender needs. The training program in Ohio took two years to prepare. It involved extensive dialogue and cross fertilization with trainers in other programs. It takes more than 50 hours to complete. Training for the Texas program is longer and takes place in two phases. The first phase includes 72 hours of intense teaching and role plays and the second phase consists of twice-a-month in-service training. All volunteers must attend a minimum of six of these “continuing education” trainings per year. In Texas supervision and accountability are provided through check-in periods where the volunteer shares how a case is developing with staff. Ohio has a similar check-in and mentoring process. Both programs emphasize care in the selection of volunteers and a hands-on approach to training and supervision. As a prelude to the training process, both programs have developed a philosophy that is centered on the goal of meeting victim needs and letting the victim define what these are. The Texas program adds the notion of healing to its philosophy. In Texas after the program was established there were 200 victims on a waiting list. This raised the possibility that people could be re-victimized from long delays (Umbreit et al., 2003). However, if training is expanded too quickly or shortened to meet demand, program quality could suffer. The Texas and Ohio programs use procedures designed to empower both participants. Program staff sees encounters as part of a healing journey. It is difficult for staff to articulate clear guidelines as to when victim and offender are ready to meet. The decision is care-based and intuitive and can include sharing and feedback with supervisors and other volunteers. In Texas a minimum of six months preparation time is recommended with up to a year or more for some cases. Decisions about when to abort a case are more clearly spelled out. For example “…if the offender becomes overly manipulative, if the victim appears to be too volatile, or if the desire to meet is discovered to be merely a way to get around the department’s rules against visitation between victims and inmates” (Umbreit et al., 2003:202). Facilitators use procedures to protect the physical and emotional safety of participants during the encounter. Both Ohio and Texas programs emphasize offender choice. This raises the issue whether the victim’s right to meet with the offender should be expressed as a right to request a meeting.

Short- and Long-Term Experience Using the Texas and Ohio experiences as examples, is there evidence that victims are emotionally harmed when they meet with offenders who have committed serious violent crimes? Immediately after the encounter most Texas participants described feelings of relief and exhaustion (Umbreit et al., 2003). With respect to achievements, the human nature of the encounter was emphasized by many. Many sensed accountability on the part of the offender and some even said they felt relief because as parents of a deceased victim,

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they experienced guilt about whether their parenting somehow contributed to the dynamics of the crime. Being able to ask for and get information was appreciated by participants. For the Texas group, the experience was positive. The Ohio participants had both positive and negative experiences. Some felt euphoric and others were relieved. Five of 20 victims were sad and disappointed. The disappointment experienced by one of the victims was related to the offender’s statements about being treated unfairly by the criminal justice system rather than expressing regret and empathy for the victim. The experience of one quarter of the Ohio group suggests the need to prepare victims for possible disappointments (Umbreit et al., 2003). However, being disappointed and sad is not the same thing as being re-victimized, thus, if victims are well counseled about this possibility prior to the encounter, it can be avoided. A critique of victim-offender dialogue is that while the meeting may be followed by feelings of happiness and euphoria, there is little long-term benefit. Very few studies have looked at this issue. Most are concerned with perceptions of fairness and satisfaction following the meeting. Again, the Texas-Ohio case studies are instructive since information was collected for longer-term results. In Texas a changing view of the offender for the positive was recorded as a longer term outcome. Perhaps this implies that the offender no longer controls the thoughts of the victim as was the case prior to the encounter. Personal growth and healing as well as a positive impact on spirituality were also mentioned (Umbreit et al., 2003). In Ohio longerterm impacts were described in the same way, except two participants said their feelings about the offender changed for the worse and only 40 percent said their outlook on life had changed since meeting the offender. However, 100 percent of the Ohio group was very satisfied with the victim- offender dialogue program.

Exceptions for Certain Types of Crimes The Texas-Ohio evaluations suggest that victim-offender dialogue is rated positively by victims even when serious violent crimes are involved. But what about crimes where the dynamic between the victim and the offender suggests that meetings are not a viable option? This is the case for domestic violence, and those who specialize in the field have been particularly concerned with the potential harm that encounters would impose on victims (Strang & Braithwaite, 2002). Long-term intimate relationships between victim and offender where power, abuse, and submission are communicated directly and indirectly are the key factors that make victim-offender dialogue contentious. The body language of a long time abuser may be such that the victim is further disempowered and abused by the process. An apology if offered genuinely can be part of the healing process for most crimes. But in the context of domestic violence, apology is part of the cycle of abuse (Pranis, 2002). Rather than furthering the healing process, in the context of

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domestic violence, it can serve to maintain relationships built on psychological and physical oppression. Interventions that are designed to break the cycle of abuse conflict with models based on the notion of reconciliation. The psychological and physical safety of the victim may require the cooperation of the courts through the use of restraining orders – a process that requires separation rather than reunion. In her analysis of the contribution of the restorative philosophy to the problem of domestic violence, Pranis observes that restorative justice principles support the ability to effectively address family abuse – particularly bringing community values to bear on the problem and providing a network of community support for those who suffer. However, she cautions, “I do not yet believe that the practices of restorative justice have all the tools necessary [emphasis added] to turn this vision into immediate reality… ” (Pranis, 2002:40).

Summary and Conclusions Should victims have the right to meet with their offenders? The forgoing discussion suggests that this is not an easy question to answer. Opening the doors to restorative encounters on a large scale could have unintended negative consequences. As a prelude to moving in this direction, it is important for the victim and restorative community to continue exploring the language of inclusion and mutual understanding (Mika, Achilles, Halbert, Amstutz & Zehr, 2004). While victim-offender dialogue is not the same thing as restorative justice, programs guided by a restorative philosophy have a good track record and are based on principles that place victim healing front and center. The goals of healing, victim empowerment, and respect are primary. Expanding opportunities for victim offender dialogue would require partnerships between the restorative community, the victim community, and the government on a scale that departs from the current way of doing things. Faith-based government partnerships popularized in the past 10 years provide the basis for this type of work. Because the road to hell can be paved with good intentions, accountability mechanisms are needed (Roche, 2003). However, bureaucratic processes that displace program goals with burdensome accountability measures would need to be replaced with more flexible methods such as those used in the Ohio and Texas victim dialogue programs. Giving victims the right to meet with their offenders falls within the scope of traditional victim rights such as participation and information. On the other hand, victim rights are designed to work within the adversary system of justice, but the values underlying victim-offender dialogue stem from a different way of healing and doing justice. Many, indeed a majority of victims may not choose this path. However, 25 years of research shows that those who take it have benefited. Since the opportunity to select victim-offender meetings is limited, government action to remove barriers to participation is needed.

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With the devil in the details, the language used to express such as a “right” is challenging. It must convey the values of voluntariness, safety, and informed consent for both victim and offender. It must require the use of trained facilitators to assess the appropriateness and timeliness of meetings. It must exclude certain types of cases such as domestic violence where there is clear and compelling evidence that dialogue is not in the best interest of participants. It must have a guiding philosophy to prevent bureaucratic goals from displacing goals of victim (and offender) empowerment and healing. It should convey that victims and offenders have benefited from meetings in some cases and the state will provide the opportunity for dialogue to take place with the clear understanding that victims, offenders, and trained personnel will engaged in joint decisionmaking about whether such a meeting would be positive and productive. The cost of expansion will be a concern, but the commitment to victims is important and has become part of the political landscape. Volunteers have been used to good effect in existing programs. The goal of providing victims with more choices to further their well being and healing is worthy of future study and action.

References Achilles, M. (2004). “Will Restorative Justice Live up to Its Promise to Victims?” In H. Zehr & B. Toews (eds.) Critical Issues in Restorative Justice, pp. 65-74, Monsey, NY: Criminal Justice Press. Amstutz, L.S. (2004). “What Is the Relationship between Victim Service Organizations and Restorative Justice?” In H. Zehr & B. Toews (eds.) Critical Issues in Restorative Justice, pp. 85-94, Monsey, NY: Criminal Justice Press. Claassen, R., C. Tilkes, P. Kader & D.E. Noll (2001). ”Restorative Justice: A Framework for Fresno.” Center for Peace Making and Conflict Studies, Fresno, California. Coates, R.B. & J. Gelm (1985). Victim Meets Offender: An Evaluation of Victim-Offender Reconciliation Programs. Valparaiso, IN: PACT Institute of Justice. Doerner, W.G. & S.D. Lab (2008). Victimology, Fifth Edition. Newark, NJ: LexisNexis/Matthew Bender. Hayden, A. (2001). Restorative Conferencing Manual of Aotearoa New Zealand. Aotearoa, New Zealand: Department for Courts. Herman, S. (2004). “Is Restorative Justice Possible without a Parallel System for Victims?” In H. Zehr & B. Toews (eds.) Critical Issues in Restorative Justice, pp. 75-84, Monsey, NY: Criminal Justice Press. Herman, S. & M. Waul (2004), “Repairing the Harm: A New Vision for Crime Victim Compensation in America.” National Center for Victims of Crime, Washington, D.C. Johnstone, G. (2002). Restorative Justice: Ideas, Values, Debates. Portland, OR:Willan. Karmen, A. (2007). Crime Victims: An Introduction to Victimology, Sixth Edition. Belmont, CA: Thompson, Wadsworth.

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Latimer, J., C. Dowden & D. Muise (2001). The Effectiveness of Restorative Practice: A Meta-analysis. Ottawa, CN: Department of Justice, Research, and Statistics Division Methodological Series. Mika, H., M. Achilles, E. Halbert, LS. Amstutz & H. Zehr (2004). “Listening to Victims – A Critique of Restorative Justice Policy and Practice in the United States.” Federal Probation, 68(1):32-38. Nathanson, D.L. (1992). Shame and Pride: Affect, Sex, and the Birth of Self, New York:W.W. Norton. O’Connell, T, B. Wachtel & T. Wachtel. (1999) Conferencing Handbook: The New Real Justice Training Manual. Pipersville, PA: Piper’s Press. Peterson A.M. & M. Umbreit (2006), “Victim Forgiveness in Restorative Justice Dialogue.” Victims & Offenders: Journal of Evidence-Based Policies and Practices, 1(2):123-40. Pranis, K. (2002). “Restorative Values and Confronting Family Violence.” In Strang, H, & J. Braithwaite (eds.) Restorative Justice and Family Violence, pp. 23-41, Cambridge, UK: Cambridge University Press. Roche, D. (2003). Accountability in Restorative Justice. Oxford: Oxford University Press. Rock, P. (2004). Constructing Victims’ Rights: The Home Office, New Labor, and Victims. Cary, NC: Oxford University Press. Strang, H. (2004). “Is Restorative Justice Imposing Its Agenda on Victims?” In H. Zehr & B. Toews (eds.) Critical Issues in Restorative Justice, pp. 95-106, Monsey, NY: Criminal Justice Press. Strang, H & J. Braithwaite (eds.) (2002). Restorative Justice and Family Violence. Cambridge, UK: Cambridge University Press. Swanson, C., G. Culliver & C. Summers (2007). “Creating a Faith-Based Restorative Justice Community in a Maximum Security Prison.” Corrections Today. 69(3):60-64. Tomkins, S. (1962). Affect, Imagery, Consciousness. New York: Springer Publishing. Toews, B. (2006). Restorative Justice for People in Prison. Intercourse, PA: Good Books. Umbreit, M. & J. Greenwood (2000). National Survey of Victim-Offender Mediation Programs in the United States. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime. Umbreit, M.S., B. Vos, R.B. Coates & K.A. Brown (2003). Facing Violence: The Path Of Restorative Justice and Dialogue. Monsey, NY: Criminal Justice Press. Van Ness, D.W. & K.H. Strong (2006). Restoring Justice, Third Edition. Newark, NJ: LexisNexis/Matthew Bender. Wemmers, J. & K. Cyr (2005). “Victim’s Perspectives on Restorative Justice: How Much Involvement Are Victims Looking For?” International Review of Victimology, 11: 259274. Zehr, H. (2005). Changing Lenses: A New Focus for Crime and Justice, Third Edition. Scottsdale, PA: Herald Press. Zehr, H. (2002). The Little Books of Restorative Justice. Intercourse, PA: Good Books. Zehr, H. (2001). Transcending: Reflections of Crime Victims. Intercourse, PA: Good Books.

CHAPTER 6 Fear of Crime and Victimization Elizabeth H. McConnell

Why Is Fear of Crime Important in a Discussion about Victimization? One could argue that fear of crime is an outcome of victimization. The fear we feel as a result of being victims of crime may make us give up activities in which we would normally engage. For example, people may decide that specific areas in the community pose too many risks for jobs, recreation, or shopping. People may feel compelled to spend monies for protective products, monies that they could have spent to enhance other aspects of their lives rather than on security. Fear can result from either direct or indirect victimization. An example of direct (actual) victimization would be fear of crime that people experience due to having been actual victims of crime. Baumer (1978:258) acknowledges the “ripple effect” that vicarious victimization has on people. This happens when fear of crime spreads as a result of hearing about others’ criminal victimization. It is believed that fear which results from indirect victimization is more common, as this is the more likely form of victimization (Elias, 1986; Riger & Gordon, 1981; Skogan & Maxfield, 1981). Moriarty (1988) acknowledged the vicarious nature of victimization when she found that 12 percent of her research sample’s fear of crime was explained by their perceived fear of crime level of spouses, other family members, best friends, co-workers, organizational co-members, and neighbours. Skogan (1990) recognized the infectious nature of fear of crime in his work, Disorder and Decline. He said that social networks contribute to the spread of fear of crime in the community, thus diminishing perceptions of safety and contributing to the social and economic decline in neighbourhoods. It can be concluded from these findings that opinions of “significant others” are important in shaping individuals’ attitudes. For example, if one perceives “significant others” to be fearful about crime, then the individual might also develop these same fears. 91

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How Pervasive Is the Fear of Crime? Fear of crime is an element of daily life in American society. The degree to which it exists has been measured by many studies. According to a 1975 Harris poll, 55 percent of the adults responding to the crime survey reported that they were apprehensive when walking in their own neighbourhoods (see Research & Forecasts Inc., 1980). In a later poll (Gallup, 1981) researchers found that 45 percent of the sample was afraid to walk alone at night while Garofalo, in a 1977 study, found that 45 percent of his sample limited their activities because of the fear of crime. In another study conducted throughout the state of Michigan similar results were found when it was determined that 66 percent of the respondents avoided what they perceived as high-crime areas because of their fear of crime. In a Texas study, Teske and Powell (1978:19) examined fear of crime on the basis of serious versus non-serious crime and found that more than 50 percent of their sample was fearful of becoming a victim of a serious crime within a year. Two years later, in The Friggi Report on Fear of Crime: America Afraid, researchers concluded that two-fifths of the national sample reported that they were extremely fearful of being victimized by a violent crime (Research & Forecasts Inc., 1980). In a more recent national survey, 43 percent of Americans participating in the 1991 General Social Survey reported being fearful of criminal victimization (National Opinion Research Center, 1991). As recently as 1995, 80 percent of Americans surveyed in a public opinion poll reported a general fear of crime (Sourcebook of Criminal Justice Statistics Online, 1997). In fact, 29 percent reported that they were “somewhat concerned,” while 51 percent indicated that they were “very concerned” about becoming victims of crime (1997:156).

Is Fear of Crime a Social Problem? The acknowledgment of fear of crime by social scientists as an important social issue is usually traced to the mid or late 1960s (Baumer, 1985; Garofalo & Laub, 1978; Smith, 1987; Will & McGrath, 1995). Concern about fear of crime gained national prominence on February 6, 1967, when President Johnson, in an address to Congress, warned legislators that “crime – and the fear of crime – has become a public malady and that it is the duty of legislators to seek a cure” (Harris, 1969:17). This message was also echoed by former Attorney General Nicholas B. Katzenbach when stating that “the fear of crime is a reality in the United States today” which is “genuine” and is “strongly felt by rural America, blue-collar white America, those who live in modest suburbs and the majority of black Americans who live in the ghetto” (Harris, 1969:1, 10-11). Katzenbach further stipulated that rural America, blue-collar white America and those who live in modest suburbs have the least to fear while black Americans who live in American ghettos have the most to fear as they are the most likely victims of crime.

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In the early 1970s, researchers began to take note of a “national” fear of crime when it was recognized that the fear of crime was no longer a matter of local concern (Silver, 1974:1). Crime and fear of crime had gained such recognition that “by the end of the 1960s, some polls ranked it as the most serious problem facing our society” (Furstenberg, 1972:601). The recognition of fear of crime as a social problem stems from the destructive effects that it has on our quality of life. For example, it makes people feel vulnerable, so much so that they may employ crime precaution measures that isolate them from society. They may refuse job offers that would require them to work in or travel through areas that are perceived as unsafe because of crime. Skogan provides one of the best discussions of the fear of crime, as a serious social problem, when he explains the infectious nature of fear. He says that: Fear…can work in conjunction with other factors to stimulate more rapid neighbourhood decline. Together, the spread of fear and other local problems provide a form of positive feedback that can further increase levels of crime. These feedback processes include (1) physical and psychological withdrawal from community life; (2) a weakening of the informal social control processes that inhibit crime and disorder; (3) a decline in the organizational life and mobilization capacity of the neighbourhood, (4) deteriorating business conditions; (5) the importation and domestic production of delinquency and deviance; and (6) further dramatic changes in the composition of the population (1986:215).

Fear of Crime – Is it Sociology, Psychology, Criminology, Biology, or What? A review of the research literature leads one to believe that fear of crime is interdisciplinary in scope, even though many researchers approach its study from a single disciplinary perspective. For example, Garofalo (1981:840) recognized the psychological dimension in the following definition, “fear is an emotional reaction characterized by a sense of danger and anxiety.” Watson (1924) proposed a theory of fear where it was suggested that fear stimuli are learned, with the exception of innate fear stimuli associated with loud noise, loss of support, and pain. He believed that all other stimuli, which can produce fear, is acquired through a form of learning known as classical conditioning. According to Friedberg (1983), behavioural psychologists divide fear into three categories that are based on the origins of fear. They are (1) innate fear, that with which we are born, (2) maturing fear, that which results from physiological aging, and (3) learned fear, that which is acquired through life experiences in one’s environment. In the 1990s several researchers incorporated psychological stress in the operational definitions of fear of crime in their studies. For example, Sacco (1993:187) defined “…the fear

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of crime as a form of psychological stress which lessens the quality of life, restricts cultural and social opportunities, and undermines the social integration of local communities.” Schweitzer, Kim, and Mackin suggested that “fear of crime causes psychological stress and causes people to become prisoners in their own homes (1999:59). Hignite (2007:6) concluded in his review of fear of crime research that “...scholars have agreed that fear of crime is best defined as an emotional state, or psychological reaction, to either a criminal event or potential criminal event.” He suggests that many recent fear of crime researchers incorporated both psychological effects and behavioural adaptations to fear of crime in their operational definitions of fear of crime. Biologically, fear involves a series of complex changes in bodily functioning that alerts an individual to potential danger (Ferraro & LaGrange, 1987). A bodily change associated with enhanced fear levels is the body’s increased production of the hormone adrenaline. It is reasoned that the hormonal increase occurs because adrenaline is a power enhancer that facilitates a fight or flight response to the fear inducer. In comparison to the activities of everyday life, potent forms of fear involve intense emotional and physiological reactions to potential danger. Scruton explains fear from a sociological perspective (1986:9). He says that human fears are most efficiently understood as social phenomenon since “fearing is an event that takes place in a social setting and it is performed by social animals whose lives and experiences are dominated by culture.” In Scruton’s opinion, to fully understand human fearing, for example, how fear happens in the individual, how it is expressed both to self and to others, how it is received and acted to by others in the community, it must be treated as a feature of the cultural experience; a dimension of human social life. For Scruton, learning to fear is learning what it means to understand a situation, label it accurately, feel the significance of it, express it accurately to others, and act upon it. Accordingly, “fearing is an act of interpersonal communication and, as is true of other such human transactions, this communication conveys significant cultural meaning” (1986:33). In subsequent research, it was found that fear of crime is learned. In a test of social learning theory Moriarty (1988) determined from an analysis of six social learning variables that each were significantly related to respondents’ fear of crime levels. This held true for the sample regardless of gender, age, race, or marital status. Smith (1987) points out the interdisciplinary nature of the fear of crime by recognizing that there is an anthropology, sociology, psychology, and geography of fear. The anthropology of fear is found in studies (e.g., Merry, 1981; Smith, 1983) which indicate that fear is not discreet or clearly bounded. Smith points out that the “anxiety of crime is not so much an event as a persistent or recurring sense of malaise” (1983:235). As a sociological phenomenon, fear extends beyond the population of victims and impinges on more general aspects of well-being. The locus of the psychology of fear, Smith suggests, is within the individual, while the geography of fear concerns itself

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with physical characteristics of the environment such as urban or rural areas. This interdisciplinary model seems a more prudent approach in the conceptualization of fear of crime.

What Is the Definition of Fear of Crime? Prior to measuring fear of crime, one must come to terms with its conceptual definition. According to Dubow, McCabe, and Kaplan (1979:1), “fear of crime refers to a wide variety of subjective and emotional assessments and behavioural reports” which are characterized by “a serious lack of consistency and specificity.” Ferraro and LaGrange (1987:71) suggest that “a casual review of the literature indicates that the phrase fear of crime has acquired so many divergent meanings that its current utility is negligible.” Riger and Gordon (1981:74) report that “the heart of the conceptual problems in the study of fear of crime is the definitional ambiguity surrounding the construct fear.” Yin (1980), in a review of fear of crime literature, reports that only one study (see Sundeen & Mathieu, 1976:55) reported a definition for fear of crime. Miethe and Lee (1984:398) suggest that “the disparate findings of past studies are likely due to a lack of standardization of measures of fear.” Taylor and Hale (1986) agree with Garofalo and Laub (1978) that the basis for the ongoing debate concerning the meaning or construct validity of fear of crime is measurement of fear of crime that is intermingled with other fears. Even though conceptual problems with the concept of fear have been examined by many researchers (see Baumer, 1978; Clemente & Kleiman, 1977; Ferraro, 1995; Fowler & Mangione, 1974; Garofalo & Laub, 1977; McConnell, 1989; Moriarty, 1988; Williams & Akers, 1987), consensus has not been reached regarding a precise definition or measurement. According to Warr (1992) the debate surrounding the definition of fear of crime involves attempts to differentiate between fear as a perception, fear’s cognitive elements and/or fear as an emotional state. A general view is that what is broadly being tapped is an emotional response to a threat, an acknowledgment that crime is intimidating and a sense of concern about being harmed. This might more appropriately be labelled fear of anticipated criminal victimization rather than fear of crime. Another major problem with the conceptualization of fear of crime as noted by Ferraro and LaGrange (1987:73) is the “generic reference of the term crime.” They suggest that crime refers to a wide variety of activities and that fear of being victimized varies by the type of crime considered. They suggest that to obtain the most valid and reliable indicators of the fear of crime, “it is best to specify the type of crime to the respondent rather than leave it up to the respondent’s own inference” (1987:74). In a subsequent study of fear of crime Ferraro says that fear of crime is “… an emotional reaction of dread or anxiety to crime or symbols that a person associates with crime” (1995:59).

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Is Fear of Crime the Same Thing as Risk of Victimization? According to Clarke and Lewis (1982:51), “Furstenberg made a contribution to conceptual clarification by drawing attention to the important analytical distinction between concern about crime and fear of victimization.” Furstenberg (1971) suggests that fear of crime can be measured by a person’s perception of one’s own chances of victimization, whereas concern is based on the individual’s estimation of the seriousness of criminal activity in one’s locality or society. Elias (1986:118) suggests that fear of crime and concern about crime is different and can be distinguished in that “fear seems to imply a much more immediate danger – and a much more intense psychological response than concern.” Lotz (1979) differentiates between fear of crime and concern about crime by suggesting that low-income people express greater fear of crime, perhaps because they risk victimization more, yet the other income groups show more concern about crime. Furstenberg (1971) criticized the Harris Poll surveys and the President’s Crime Commission studies in America for using two concepts interchangeably, that is, fear of crime and risk of victimization. And even though he found the methodology for the studies lacking, Furstenberg (1971:602) suggests that the research results provide the “best and virtually the only source of information on public reaction to crime up until 1970.” The Commission’s findings, summarized in The Challenge of Crime in a Free Society (President’s Crime Commission Law Enforcement and Administration of Justice, 1967), reveal fear of crime to be most intense among residents of ghetto areas, especially low-income blacks. Furstenberg’s (1972) re-evaluation of the original data suggests that those concerned about crime often have comparatively little to be concerned about, yet they usually employ more crime precaution behaviours than those who are the most likely victims of crime. The debate regarding fear of crime and risk of victimization continues. Hignite (2007) argues that fear of crime and perceived likelihood of victimization are fundamentally different; that fear of crime is a psychological experience while perceived likelihood of victimization is a cognitive judgement. Further, he advises the use of specific measurements for each.

Is Fear of Crime the Same Thing as Worry about Crime? Garofalo (1981) and Maxfield (1984) define fear as a sense of danger and anxiety produced from the threat of physical danger. The researchers suggest that fear is linked to violent crime and physical harm and that worry is associated with the emotional responses to property crimes. Levy and Gutt-

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man (1985:251) attempt to differentiate the interrelations among feelings of worry, fear, concern, and coping under a general situation of stress. From a review of the literature they found that “no generally accepted technical definitions existed for distinguishing among worry, fear, and concern.” Their findings indicate that “to worry does not coincide with fear but rather that fear is a sufficient but not a necessary condition of worry” (1985:258). This finding of an asymmetric relationship between worry and fear provides evidence that fear must generally be accompanied by worry, but worry can take place without fear. They further recognize that fear is expressed cognitively (mental reactions) and that worry is expressed effectively (emotional reactions). Eve (1985) concludes that Sundeen and Mathieu (1976), Eve and Eve (1984), and Warr (1984) acknowledge the confounding problems associated with fear of personal victimization and concern about crime whereas most other fear of crime researchers, prior to 1985, confound fear with concern in their operationalization of fear of crime. Fisher (1978) suggests that in the conceptualization of fear of crime one should keep in mind the distinction between actual and anticipated fear. Accordingly, Garofalo (1981) suggests that a person walking alone in a highcrime neighbourhood is experiencing something different than the person who is telling an interviewer of would be fear in an area at night. Garofalo does not discount the importance of anticipated fear, but only suggests that conceptually the two are distinct and that the operationalization of fear of crime should reflect these differences.

Is Fear of Crime the Fear of Strangers? Garofalo and Laub (1978:245) recognize that “what has been conceptualized as the fear of crime has its roots in something more diffuse than the perceived threat of some specific danger in the immediate environment.” They indicate that one factor other than actual fear of crime which may be involved in respondents’ attitudes is anxiety about strangers. Baumer (1978:259) concludes that since the President’s Commission first suggested the phrase “fear of strangers” it has become commonplace to pronounce that “the fear of crime is a fear of strangers.” McIntyre (1967) and Ennis (1967) indicate that the precautions people take to protect themselves against strangers, even though the proportion of violent crimes committed by strangers is relatively small, supports the view that fear of crime is fear of strangers. Other researchers have recognized the conceptual dilemma of fear of crime and fear of strangers (Baumer, 1978; Brooks, 1974; Conklin, 1975; Hindelang, Gottfredson & Garofalo, 1978; Hunter, 1974; Hunter & Baumer, 1982; Merry, 1981; Reiss, 1967; Riger, Gordon & LeBailly, 1978; Smith, 1987). Baumer argues that “although fear might be directed towards strangers, it is probable that only certain types of strangers, perceived to be potentially dangerous are likely to evoke fear” (1978:257).

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Are Fear of Crime and Vulnerability the Same Thing? Another problem in defining fear of crime is the possibility of confounding fear as general anxiety about crime and vulnerability, see for example, Miethe and Lee (1984), Lawton and Yaffee (1980), and Yin (1980). Yin suggests that although vulnerability might be a dimension of fear, it appears necessary since vulnerability reflects one’s perception of particular physical or environmental circumstances rather than subjective anxiety about crime per se (1980). Hansson and Carpenter (1986) report that fear of crime among the elderly may be more related to what an individual brings to the situation, i.e., personality and personal competencies rather than actual factors such as crime rates or victimization experiences. Normoyle and Lavrakas (1984) support this view through research in which fear of crime is strongly related to perceptions of predictability and control and not related to previous victimization experience. Fuentes and Gatz (1983) also found fear of crime in older adults to be unrelated to actual neighbourhood crime rates, while it was related to one’s sense of personal mastery or self-efficacy. Ferraro and LaGrange (1987:71) indicate that “a major problem in conceptualizing fear of crime is the confounding of fear with risk or vulnerability to crime.” Yin’s (1980:496) research supports this finding when he concluded that “[although fear of crime is almost never explicitly defined by researchers, their measurements suggest that such fear is implicitly defined as the perception of the probability of being victimized.” Other researchers have examined fear of crime, risk for crime, and vulnerability to crime. For example, some researchers have examined the safety assessment of one’s environment as fear of crime (Dubow et al., 1979; Silberman, 1980), while another examined fear as a general tendency to be fearful (Erikson, 1976).

What Is the Best Measure – Single Item or Multiple Item Indicators of Fear of Crime? In a review of the fear of crime research, Ferraro and LaGrange (1987) focused attention on fear of crime indexes when they noted the use of singleitem versus multiple-item indicators of fear of crime. They found that “40 percent of the 46 studies they reviewed relied solely upon a single-item indicator of fear of crime while 28.3 percent employed more than one fear measure, yet analyzed them individually rather than as a multiple-item construct” (1987:74). As a result they suggest the use of multiple-item indicators when measuring “abstract theoretical constructs such as fear of crime” (1987:74-75). They also recognize other problems inherent in the use of multiple-item indicators, such as proper construction and testing of indices and scales to assure that they possess “appropriate psychometric properties” and “the publication of reliability coefficients to substantiate the reliability of

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test instruments.” They report (1987:75) that only two of the 13 studies that utilized a fear of crime index reported reliability coefficients for their indexes (see Lee, 1982; Miethe & Lee, 1984). Ferraro and LaGrange (1987:76) recognize that “much of the fear of crime research is characterized by measurement problems.” They argue that the most common measure of fear of crime, “How safe do you feel walking alone at night in your neighbourhood?” is more a measure of judgment about possible victimization in one’s neighbourhood. It is their contention that what should be measured is the emotional reaction of fear rather than judgment about victimization. Garofalo (1979:82) also recognizes this dilemma and suggests that the National Crime Survey (NCS, now called the National Crime Victimization Survey, NCVS) measure “How safe do you feel or would you feel being out alone in your neighbourhood?” mixes actual with hypothetical assessments of safety and fails to discriminate risk judgments about crime from emotional fears of crime. Ferraro and LaGrange (1987) suggest that measuring fear of crime might best be achieved through analysis of life experiences such as assessments of fear associated with specific victimizations.

Is Victimization an Appropriate Fear of Crime Measure? According to Gates and Rhoe (1987:427), “fear of crime is the affective experience associated with the perceived personal risk of victimization.” Fear of crime has been more often defined in the literature as “an emotional reaction characterized by a sense of danger and anxiety about the potential for physical harm in a criminal victimization” (Garofalo, 1981:839); thus the predilection of some to use victimization as a measure of fear of crime. Sundeen and Mathieu (1976:55) define fear of crime as “the amount of anxiety and concern that persons have over being a victim.” Agnew (1985:236) reports that much research “in this area tends to treat the individual as a ‘black box,’ assuming that victimization leads directly to fear.” Yin (1980:496) reports that most measurements of fear of crime implicitly define fear as “the perception of the probability of victimization.” He argues that although victimization is important, it is not a sufficient measure in that it does not incorporate the “frightful elements” of fear of crime such as serious physical injury, property loss, or ability to recuperate. A more comprehensive utilization of victimization as a fear measure is the analysis of fear on the basis of offence-specific victimization. Several researchers (see for example Lalli & Savitz, 1976; McConnell, 1989; Sundeen & Mathieu, 1976; Warr, 1984; Warr & Stafford, 1983) measured fear of crime through examination of victimization associated with specific offences. This approach according to Ferraro and LaGrange (1987:82) “provides better measures of fear of victimization than most other studies” and “are good baselines for further analyses.” Similarly, Williams and Akers (1987) compared measurement

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approaches in fear of crime research and concluded that the best instrument for measuring fear of crime is a specific-offence victimization-chance scale. In attempts to discover the relationship between victimization and fear of crime, some researchers have divided victimization into distinct categories; (1) direct and indirect victimization, (2) actual and vicarious victimization, (3) traditional and non-traditional victimization, and (4) property and violent crime victimization (see for example Conklin, 1975; Hindelang, 1975; Taylor & Hale, 1986; Toseland, 1982). Warr (1992:726) added another victimization category when he measured “altruistic victimization” by assessing respondents’ fears of victimization for others such as family members. Other researchers also conducted studies of altruistic victimization which resulted in findings similar to Warr’s, see for example, Warr and Ellison (2000), Carvalho and Lewis (2003) and Tulloch (2004). These studies indicate that fear for family members is very common and that mothers fearing for their children is the most prevalent form of altruistic victimization. Believing that time between victimization and measurement impacts measurement outcomes, several researchers incorporated the element of time in their assessment of victimization. For example lifetime, recent, remote, vicarious, and anticipated victimization were examined by Williams and Akers (1987) and McConnell (1989). However, the previous researchers generally agree that the key focus of the victimization perspective is to specify the crime-fear linkage. They also acknowledge that the connection between criminal victimization and fear of crime is not straightforward. Several studies have been reported which tend to support the victimization perspective (see Balkin, 1979; Lindquist & Duke, 1982; Lurigio, 1987; Skogan & Maxfield, 1981; Stafford & Galle, 1984; Tyler, 1980). Even though there appears to be some support for the victimization perspective, numerous researchers conducting quantitative studies found that at best there is only a weak relationship between victimization and fear of crime (for example, Agnew, 1985; Dubow et al., 1979; Hindelang, Gottfredson & Garofalo, 1978; Reiss, 1982; Rifia, 1982; Sparks, Glenn & Dodd, 1977; Taylor & Hale, 1986).

Conclusion One can conclude from the foregoing review of fear of crime research that validity and reliability problems are considerable in the measurement of fear of crime. One of the most elementary problems is the lack of a generally accepted definition of fear of crime. The definitions used in past operationalizations of the variable seem almost as numerous as the researchers. As long as researchers continue to measure fear of crime through assessments of variables such as any of the diverse types of victimization, risk, vulnerability, or avoidance behaviours, one can expect questionable outcomes. It appears that measuring fear of crime requires a much broader array of indicators, certainly multiple-item measures such as indexes. One of the better attempts

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to incorporate many of the indicators of fear of crime is Ferraro’s (1995:18) generic model of fear of crime that he based on individuals’ interpretation of risk. Components of the model include ecological variables such as crime prevalence and community traits that include incivility and cohesion, and personal variables such as victimization, status and residential traits and perceived risk. He points out that both fear and behavioural adaptations, such as constrained and defensive actions, can result from individuals’ interpretation of risk. Even though Ferraro’s model for assessing fear of crime is one of the more inclusive models proposed to date, it does not reflect comprehensive indicators for predicting fear of crime. He acknowledges this dilemma when suggesting that “although the personal variables may still well explain the bulk of the variance in fear of crime, other ecological variables merit consideration” (1995:121). What is needed is a means of measuring individuals’ thoughts, emotions, perceptions, symptoms, and behaviours that are associated with fear of crime. The most important consideration in the development of valid fear of crime measures is the acknowledgment that fear of crime is an interdisciplinary phenomenon. As a result, researchers cannot let their disciplinary biases limit their conceptualization and operationalization of the fear of crime. What are required are measurements based on an integration of the relevant disciplinary perspectives, for example, sociology, psychology, criminology, anthropology, and geography.

References Baumer, T. (1985). “Testing a General Model of Fear of Crime: Data from a National Sample.” Journal of Research in Crime and Delinquency, 22(3):239-255. Baumer, T. (1978). “Research on Fear of Crime in the United States.” Victimology, 3:258-278. Carvalho, I. & D. Lewis (2003). “Beyond Community: Reactions to Crime and Disorder among Inner-City Residents.” Criminology, 41(3):779-812. Dubow, F., E. McCabe & G. Kaplan (1979). Reactions to Crime: A Critical Review of the Literature. Washington, DC: National Institute of Law Enforcement and Criminal Justice, U.S. Government Printing Office. Elias, R. (1986). The Politics of Victimization: Victims, Victimology and Human Rights. New York: Oxford. Ferraro, K.F. & R. LaGrange (1987). “The Measurement of Fear of Crime.” Sociological Inquiry, 57(1):70-101. Friedberg, A. (1983). America Afraid: How Fear of Crime Changes the Way We Live. New York: NAL Books. Furstenberg, F. (1972). “Fear of Crime and its Effect on Citizen Behavior.” In A. Biderman (ed.) Crime and Justice: A Symposium, New York: Nailberg. Gallup, G.H. (1981). The Gallup Poll, Princeton, NJ: April 6. Garofalo, J. (1981). “The Fear of Crime: Causes and Consequences.” Journal of Criminal Law and Criminology, 72:839-857.

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Garofalo, J. & J. Laub (1978). “The Fear of Crime: Broadening Our Perspective.” Victimology, 13(3/4):242-253. Harris, R. (1969). The Fear of Crime. New York: Praeger Publishers. Hignite, L.R. (2007). “Measuring the Impact of Neighbourhood Incivilities and other Variables upon Fear of Crime and Perceived Likelihood of Victimization.” Unpublished doctoral dissertation. Sam Houston State University, Huntsville, Texas. Merry, S. (1981). Urban Danger: Life in a Neighborhood of Strangers. Philadelphia: Temple University Press. Moriarty, L.J. (1988). “A Social Learning Approach to Explaining Fear of Crime.” Unpublished doctoral dissertation, Sam Houston State University, Huntsville, Texas. National Opinion Research Center. (1991). General Social Survey, 1991: Codebook. Chicago, IL: National Opinion Research Center. Research & Forecasts, Inc. (1980). The Friggie Report on Fear of Crime: America Afraid. Part I. Willoughby, Ohio: Research & Forecasts, Inc. Riger, S. & M. Gordon (1981). “The Fear of Rape: A Study in Social Control.” Journal of Social Issues, 37(4):71-92. Sacco, V.F. (1993). “Social Support and Fear of Crime.” Canadian Journal of Criminology, 35: 187-196. Schweitzer, J.H., J.W. Kim & J.R. Mackin (1999). “The Impact of the Built Environment on Crime and Fear of Crime in Urban Neighbourhoods.” Journal of Urban Technology, 6(3):59-73. Scruton, D. (1986). Sociophobics of Fear: The Anthropology of Fear. London: Westview. Skogan, W.G. & M. Maxfield (1981). Coping with Crime: Individual and Neighborhood Reactions. Beverly Hills, CA: Sage. Skogan, W.G. (1990). Disorder and Decline: Crime and the Spiral of Decay in American Neighbourhoods. New York: Free Press. Smith, S. (1983). “Public Policy and the Effect of Crime in the Inner City.” Urban Studies, 20:229-239. Smith, S. (1987). “Fear of Crime: Beyond a Geography of Deviance.” Progress in Human Geography, 11 (1):1-23 Sourcebook of Criminal Justice Statistics Online, June 1997, p. 156, Table 2.37 (1995 data). Sundeen, R. & J. Mathieu (1976). “The Urban Elderly: Environments of Fear.” In J. Goldsmith & S. Goldsmith (eds.) Crime and the Elderly: Challenge and Response, pp. 51-66. Lexington, MA: Lexington Books. Teske, R.H.C. & N.L. Powell (1978). Texas Crime Poll. Huntsville, TX: Criminal Justice Center, Sam Houston State University. Tulloch, M.I. (2004). “Parental Fear of Crime.” Journal of Sociology-Australia, 40(4): 362-377. Warr, M. (1992). “Altruistic Fear of Victimization in Households.” Social Science Quarterly, 73(4): 723-736. Warr, M. & C.G. Ellison (2000). “Rethinking Social Reactions to Crime: Personal and Altruistic Fear in Family Households.” American Journal of Sociology, 106(3): 551-578. Watson, J.B. (1924). Behaviorism. New York: Norton. Will, J.A. & J.H. McGrath (1995). “Crime, Neighbourhood Perceptions and the Underclass: The Relationship between Fear of Crime and Class Position.” Journal of Criminal Justice, 23(2): 163-176.

CHAPTER 7 Cyberstalking – What’s the Big Deal? Nicolle Parsons-Pollard and Laura J. Moriarty

Introduction When we talk about cybercrime, there is a general tendency to accept that such behavior is indeed criminal activity and that law enforcement should focus on curtailing it. However, when it is sub-categorized into cyberstalking, there is not as much consensus about whether the behavior is indeed criminal and likewise threatening. Similar to what has happened with stalking, cyberstalking is being thought of by some as a benign activity that is used in this day and age to help people meet each other. Except in the extreme cases, it’s hard sometimes to see cyberstalking as a threatening behavior that cannot be stopped. Excessive e-mails – what does this means? And isn’t there a simple solution to avoiding the problem – simply turn off the computer or disengage in whatever electronic device is being used to cyberstalk? This kind of thinking leads to misconceptions or minimalization about cyberstalking, and puts individuals at greater risk for being victimized. As we will demonstrate in this chapter, cyberstalking is a big deal, and should have the full attention of law enforcement, and the criminal justice system.

What Is Cyberstalking? Cyberstalking may be viewed in two ways: either as an extension of stalking where some electronic device is used to carry out the behavior or as a separate criminal activity that differs from stalking in more ways than just the delivery mode. Either perspective does not diminish the criminality or seriousness of the behavior, however, anytime a crime is considered separate 103

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and distinct with its own laws/statutes, punishment, and law enforcement – it is naturally elevated to a higher priority and concern. We will discuss how authors have categorized cyberstalking later in this chapter. For now, we focus on the definition. Cyberstalking is similar to stalking in that both behaviors involve threatening or harassing behaviors that are relentless. Authors speak of patterns of behaviors (Spitzberg & Hoobler, 2002; Adam, 2002; Ashcroft, 2001; Spence-Diehl, 2003; Ogilvie, 2000; Finn, 2004; Southworth, Finn, Dawson, Fraser & Tucker, 2007) meaning that a person victimized by cyberstalking is repeatedly harassed or threatened by an individual using an electronic device – most often the Internet but not always – to carry out the behavior. Additionally, authors write about cyberstalking escalating from an electronic medium to actual physical stalking (Packard, 2000; Ogilvie, 2000; Alexy, Burgess, Baker & Smoyak, 2005; Lamplugh & Infield, 2003). However, this does not mean that the behavior has to escalate in such a fashion to be considered severe or threatening (Alexy et al., 2005). Behaviors that fall into the cyberstalking category include: “sending repeated e-mail or instant messages that may or may not directly threaten the recipient; flooding a victim’s e-mail box with unwanted mail, sending the victim files with a virus; using a victim’s e-mail address to subscribe him or her to multiple listservs or to purchase books, magazines, or other services in his/her name; sending misinformation or false messages to chat rooms, Usenet groups, listservs, or places of the victim’s employment; stealing a person’s online identity to post false information; sending a victim’s demographic information and/or picture to sexually oriented or pornographic sites; seeking and compiling various information that a victim may have posted on newsgroups with the intent to locate personal information and then using this information to harass, threaten, and intimidate the victim either online or in the real world (Finn & Banach, 2000; Jenson, 1996; Spitzberg & Hoobler, 2002)” (as cited in Finn, 2004:469). So as you can see there is a variety of activities that can be categorized as cyberstalking. According to Finn (2004), all these behaviors constitute cyberstalking when three elements are present: there are repeated threats and/or harassment by the use of electronic mail or other computer-based communication that results in the person being afraid or feeling threatened (2004:469). The basic common “man” test is used – meaning that the behavior which is categorized as cyberstalking would elicit fear and concern for safety in the average person. Likewise, if the behavior is viewed as annoying or troublesome but not threatening, it would not be cyberstalking. We all get SPAM and find it quite irritating and perhaps even disgusting when pornographic sites are attached to these e-mails, but for the most part, these e-mail communications are not viewed as threatening or harassing. However, the communications could escalate into stalking if they persist and if threatening messages accompany them, and therefore should be watched carefully.

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Other researchers have separated cyberstalking into three types based upon the electronic medium in which the stalking is conducted. Ogilvie (2000) discusses e-mail stalking, Internet stalking, and computer stalking. She indicates that cyberstalking takes many forms but e-mail stalking is the most common form of harassment. In one such case, a college student purchased information via the Internet about several other female students. He then used this information to send more than 100 threatening and sexually explicit emails (Grabosky, 2000). Internet stalking allows for global communication through the Internet and thus expands greatly the ability of the offender to stalk an individual. For example, a female faculty member was stalked by her ex-boyfriend for several years. He would follow her into chatrooms and post false information about her on different websites, which included nude photos (Ogilvie, 2000). This type of “cyberstalking takes on a public rather than a private dimension” (2000:2) making cyberstalking a public threat, something that stalking is not considered. Finally computer stalking is the unauthorized use of another individual’s personal computer. Examples include the use of keystroke loggers which can be used to steal passwords and software that allows the offender to take claim to the victim’s computer in real-time.

Similarities and Differences between Cyberstalking and Stalking Cyberstalking and stalking are similar in that these crimes consist of a number of behaviors (see above for a list) that have common features such as a “pattern of harassment or threatening behavior” (Ashcroft, 2001; Reno, 1999). The similarities then center on a pattern of intrusive behaviors that are unwelcome and result in fear or anxiety in the victim. In this view then, cyberstalking is an extension of stalking – a different conduit as Alexy et al. (2005) describes it, with the overall behaviors – repeated threatening and harassing actions – transpiring in cyberspace. With the widespread acceptance of the Internet and more people owning computers and other electronic devices, some authors have argued that cyberstalking is not just an extension of stalking but that it is a crime in its own right causing harm that equals or exceeds the harm associated with stalking. Therefore, there need to be laws/statutes, law enforcement strategies, crime prevention that specifically addresses cyberstalking. Stalking and cyberstalking differ when focusing on public acceptance of the crimes. Likewise, cyberstalking has a public dimension that is not found in stalking. A lack of public acceptance or agreement on what constitutes cyberstalking and the overall dangerousness of the behavior is more likely explained by public perception regarding romantic interest among the participants. For example, Lee (1998) found that college students had difficulty identifying behaviors as cyberstalking when the offender and victim had a

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prior romantic relationship. In this study, students were more likely to identify behaviors as cyberstalking when the offenders/victims were strangers. Likewise, the level of dangerousness increased when the offenders/victims were strangers in what Lee called “stranger stalking” and “acquaintance stalking.” Lee asked students to identify scenarios that were defined as cyberstalking: The first scenario depicted a stranger contacting a woman strictly through e-mail and chat rooms. In the second scenario, a stranger contacted a woman both through e-mail and chat rooms and also employed conventional offline stalking behaviors. One-half of the students identified the first scenario as stalking and almost 61 percent defined the second scenario as stalking. Thus, a preliminary conclusion might be that these students thought cyberstalking needed to have the elements of traditional stalking and cyberstalking to be considered stalking. As Alexy et al. summarize, “Misperceptions and minimalization about stalking incidents abound are of significant concern and may be attributed to a lack of education and understanding of the crime. Victims, perpetrators, and authority figures … often do not grasp the malicious nature of the crime until an individual is the victim of physical assault or personal property is damaged” (2005:280). Focusing on public awareness, a recent study by Alexy and her colleagues attempted to measure cyberstalking awareness, understanding, and victimization among college students. Study participants were asked to complete a survey that focused on the students’ Internet usage and their experience with cyberstalking. Using case information from the first cyberstalking case in California, the researchers asked the students to “label and express their opinions about the scenarios” (2005:282). The researchers were interested in knowing what scenarios constituted cyberstalking in the minds of the students and also their experience with cyberstalking victimization. Although the scenario was from the first cyberstalking case in California, less than one-third of the students (29.9%) identified the scenario as cyberstalking. Almost three-quarters indicated that the behavior was “physically threatening” but yet only 30 percent said it was cyberstalking and less than 8 percent said the behavior was harassment. Clearly, this shows that public awareness of cyberstalking is limited. The authors created an outstanding example of cyberstalking by utilizing the first cyberstalking case, but public awareness is shown to be incomplete with this population. As concluded by the authors, “This result may be due to a lack of knowledge about the legal differences between harassment and stalking and demonstrates the perceptions found in this college population. The primary difference(s) between cyberstalking and cyber-harassment (are) the intent to instill fear or dread in the victim, and the repetitive nature of the perpetrator’s actions” (2005:286). Additionally, studies have shown inconsistent findings regarding victimization patterns. Partly this is due to the fact that cyberstalking is a new phenomenon that is difficult to study. Nevertheless, stalking is typically a crime against women perpetrated by males. Cyberstalking studies have found mixed

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results with both women and men being victimized (Finn, 2004; Alexy et al., 2005). While these results need to be studied further since there are only a few studies that have attempted to measure the extent of cyberstalking and even fewer that have attempted to discern victimization patterns, we still can draw some conclusions about cyberstalking. For example, these results may indicate that cyberstalking, with the ease of using the Internet or e-mail, leads offenders to victimize indiscriminately. Whereas stalking is more likely to be a behavior engaged in by a male towards a female, cyberstalking offenders may have little concern about targeting one gender, and may be more motivated by being able to threaten or harass an individual with little effort. Similarly, offenders have the ability to threaten multiple victims at once with the push of a button. To date, no published research can be found on offender motivation and cyberstalking. There is one paper presentation that examines this line of thinking – but the authors do so by reviewing newspaper accounts of the cyberstalking (see Moriarty & Freiberger, 2006). The authors do not interview offenders and thus their study is limited. However, they do apply a typology that was developed by Roberts and Dziegielewski (2006) where these authors examined stalking cases and developed a typology for classifying the offenders that consisted of three categories: domestic violence stalker, erotomania and/or delusional stalker, and nuisance stalker. This typology was applied to the cyberstalking cases found from a review of newspaper articles where the terms “cyberstalking,” “Internet stalking,” and “online stalking “ were used to identify cases of cyberstalking. The authors found that cyberstalking offender motive differs from stalking offender motive; however, the stalking typology is a good fit for classifying cyberstalking offender motive. For both studies, the largest percentage of offender motives fell into domestic violence; however there were almost 31 percent who were categorized as nuisance stalkers for cyberstalking while none were categorized as such for stalking.

Outcomes of Cyberstalking As more people use the Internet, cyberstalking is likely to increase (Finn, 2004), and the consequences of this behavior are problematic. The effects of cyberstalking can be as detrimental as those of traditional stalking. Take the case of one California woman who found herself receiving lewd phone calls at all hours of the night and being attacked by six strangers in her home. The woman was not being attacked or called by her stalker but rather the stalker had enticed others to harass and attack her. The stalker was a man the victim had met and rejected and in return he posted the victim’s contact information on a website stating that she had fantasies of being raped by a stranger (Simpson, 2000). There is limited information on the psychological effects of cyberstalking but there is no reason to believe that it can’t be just as devastating for victims.

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According to the National Center for Victims of Crime (2007), cyberstalking may result in changes in sleeping and eating patterns, nightmares, hyper-vigilance, anxiety, helplessness, fear for safety, and shock and disbelief. Likewise, victims of cyberstalking, much like those of stalking, are less likely to report the incident to law enforcement because they fear they will not be taken seriously (Alexy et al., 2005; Westrup, Fremouw, Thompson & Lews, 1999). Westrup (1999) and her colleagues presented empirical findings that indicated that stalking victims suffer from depression, obsessive compulsive and posttraumatic stress symptoms. The study also reported that the more likely the individual was identified as being stalked, the greater the effects. As well according to Pathé and Mullen (1997), victims of stalking, even those that received harassing e-mails, suffer great psychological effects and disruptions in their daily routines. Victims reported feeling helpless and the high volume of e-mails caused disruptions in normal e-mail communications. Likewise, the National Institute of Justice report (2000) on “The Sexual Victimization of College Women” indicated that most stalking victims (24.7% via e-mail) reported having psychological consequences. “Almost 3 in 10 women said they were “injured emotionally or psychologically” from being stalked” (Fisher, Cullen & Turner, 2000:28).

Impediments to Investigating and Prosecuting Cyberstalking According to D’Ovidio and Doyle (2003) there are several issues that hinder the prosecution and investigation of cyberstalking cases: jurisdiction, account/user information, and anonymity. With ordinary street crimes jurisdiction can be a cut and dry issue. However, when an offender can just as easily use the Internet to stalk someone around the corner as he can stalk someone on the other side of the country, jurisdiction can be a major factor. Some authorities are unwilling to extradite suspects for cyberstalking cases which then leads to difficulty in prosecuting offenders. In New York City, the prosecutor’s office failed to prosecute some 20 cases of cyberstalking although there was supporting evidence simply because they were in the practice of not extraditing suspects for this type of offense (D’Ovidio & Doyle, 2003). Likewise, cyberstalking laws vary from state to state. Therefore, it may be difficult to make a case stick depending on how the law is written. For example, most laws are written in one of two styles: the list method and the general prohibition method. The list method specifically defines particular activities that are illegal while the general prohibition method does not explicitly define cyberstalking (Lamplugh & Infield, 2003). For example, Illinois utilizes the list method to prohibit cyberstalking whereas Virginia has the general prohibition method. If a victim of cyberstalking resides in Virginia and the suspect lives in Illinois, the authorities may not extradite the

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suspect if the act does not clearly meet the standards of cyberstalking based on the particular behaviors listed in the statute. Secondly, obtaining information from Internet service providers (ISPs) can be difficult. According to the Electronic Privacy Communications Act (EPCA), certain information can be obtained by law enforcement via a subpoena or search warrant. The EPCA classifies electronic communication as basic subscriber information, records pertaining to the subscriber, and contents (18 U.S.C. §§ 2701-2712). Depending on how the data is classified depends on how the data can be obtained by law enforcement. The problem is that some ISPs classify their data in ways that may require law enforcement to obtain a search warrant rather than a subpoena (D’Ovidio & Doyle, 2003). As well, there is the issue of outdated, missing, or inaccurate data that can also delay or even halt an investigation. In a 1999 case in New York, a plaintiff attempted to sue his ISP for allowing someone to open accounts in his name. The court ruled in favor of the ISP because it would have placed an undue burden on the Internet service provider to monitor millions of subscribers (Lunney v. Prodigy Services, 1999). Thirdly, the anonymity of the Internet provides a blanket of cover for offenders. Technology can allow perpetrators to send e-mails, text messages, and the like to victims at various times over and over again without being at the computer. In addition, perpetrators can hide identifiers that would tell law enforcement their location and other tracking information. The use of free email accounts and other pseudo-anonymity applications allow offenders the ability to hide. The secrecy of the Internet provides the prime opportunity for those that may not be able to confront their victims in person but have no problem doing it virtually (Finn, 2004).

Addressing the Problem As the incidents of cyberstalking are likely to increase, it is imperative that victim services be provided to address the issue. Information about the criminal activity is the first step in preventing the behavior. It also increases the reporting of the incidents. Focusing on a target audience, like College students, seems to be a good way to get the information disseminated. As Finn’s study (2004) of online harassment of university students revealed, almost half of those that had been harassed did not report it to any authority. Also, those that did report the incident were not satisfied with the outcome of their case. Because college students are so entrenched in the use of technology, colleges and universities must take the lead in providing information and services to students. Romeo (2001) recommends that campuses provide an anti-stalking handbook. The handbook should define stalking, provide descriptions of stalking behavior, describe the effects of stalking on the victim, and provide information on available services on campus and in the community. As of

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2002, a national study of sexual assault on college campuses revealed that 97 percent of schools with policies do not mention stalking at all (Karjane, Fisher & Cullen, 2002). Likewise, the use of the Internet is as helpful to victims of cyberstalking as it may have been harmful in the offense. A cursory search of the Internet reveals more than 40,000 hits on information available for victims. Some of the most widely mentioned organizations that provide assistance to victims are CyberAngels, the National Center for Victims of Crime, the National Coalition Against Domestic Violence, the National Domestic Violence Hotline, the National Organization for Victim Assistance, the Safety Net Project, WiredSafety, and Working to Halt Online Abuse. Organizations like CyberAngels (www.cyberangels.org) and the Safety Net Project (www.nnedv.org/ourprograms/safety-net-project/) provide educational programs and support for victims of cyberstalking and bullying, stalking, and domestic violence. Similarly, the National Center for Victims of Crime (www.ncvc.org), the National Coalition Against Domestic Violence (www.ncadv.org), the National Organization for Victim Assistance (www. trynova.org), and the National Domestic Violence Hotline (1-800-799-SAFE 24 hours/365 days) offer referral services for victims so that they can seek assistance in their hometown or neighboring localities. Lastly, WiredSafety Cyberstalking and Harassment and Working to Halt Online Abuse (WHOA) are dedicated to working with victims of cybercrime. WiredSafety is one of the largest online organizations in the world. Law enforcement and specially trained volunteers provide help for victims, assist law enforcement, and provide training and information on Internet safety, privacy and security (www.wiredsafety.org). WHOA is also a volunteer based organization with the mission of assisting victims of online harassment, educating the community, and lobbying for better laws and policies to prevent online abuse (www.haltabuse.org). WHOA also provides some of the only statistics available on cyberstalking incidents and up to date information on state laws in regards to cyberstalking.

Prevention So how can you prevent being cyberstalked? And what should you do if you are cyberstalked? According to the Stalking and Domestic Violence Report to Congress (2001) there are several steps that can be taken to prevent cyberstalking. First, personal information should not be shared in public places online such as chatrooms or e-mailed to strangers. This includes using your real name, gender, and age information. Providing any of these data makes it a lot easier to find out more information. While researching for this chapter, we searched the Internet for information on ourselves. What we found in addition to professional information listed by our employers was a website that would sell our previous and current phone numbers, addresses,

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tax records and a host of other information for only $39.95. This information was found simply by searching our names and state. Secondly, individuals should be extremely careful about meeting people in person. It is recommended that offline meetings always take place in public locations with lots of people around and you should take a friend. Third, you should know your ISPs policy on cyberstalking. A reputable ISP should provide solutions for subscribers that find themselves victims of online harassment or cyberstalking. If you have done all you can to prevent harassment but find that you are a victim, you should start by making it clear to the stalker that you do not want to receive further contact. You should also save any and all communication. This information may be beneficial if the situation continues and you need supporting evidence. You should also seek assistance from your ISP to block or filter the stalker’s e-mails. Lastly, reporting the incident is paramount. You should report the problem to your ISP and your local police department. For further assistance you should also contact any of the victim service providers previously mentioned.

Conclusion Is cyberstalking a big deal? Yes it is but not because it’s an extension of stalking but because it causes harm. Cyberstalking causes harm to victims that is as distressing as the psychological and social harm caused by traditional stalking. Today a generation of people exists that have never known the world without the Internet and the use of technology is an everyday part of the lives that most people live. It affects how we get our news, how we spend our time, where we shop, where we travel, and how we communicate with one another. Is it any wonder that technology has affected crime? The use of the Internet has taken the offense of stalking and made far more pervasive. It is incumbent of law enforcement, social service agencies, colleges and universities and the like to help prevent cyberstalking and assist those that have been victimized because turning off the computer is not the answer.

References Adam, A. (2002). “Cyberstalking and Internet Pornography: Gender and the Gaze.” Ethics and Information Technology, 4, 133-142. Alexy, E., A. Burgess, T. Baker & S. Smoyak (2005). “Perceptions of Cyberstalking among College Students.” Brief Treatment and Crisis Intervention, 5, 279-289. Ashcroft, J. (2001). Stalking and Domestic Violence: A Report to Congress (No. NCJ 186157). Washington, DC: U.S. Department of Justice. Retrieved December 12, 2007 from http:// www.ncjrs.gov/pdffiles1/ojp/186157.pdf.

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Burgess, A., T. Baker, D. Greening, C. Hartman, A. Burgess, J. Douglas & R. Halloran (1997). “Stalking Behaviours within Domestic Violence. Journal of Family Violence, 12, (4) 389-403. D’Ovidio, R. & J. Doyle (2003, March). “A Study on Cyberstalking, Understanding Investigative Hurdles.” Federal Bureau of Investigation Law Enforcement Bulletin, 72,(3), 10-17. Retrieved December 15, 2007 from http://www.fbi.gov/publications/leb/2003/mar03leb.pdf. Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2701-2711. Finn, J. (2004). “A Survey of Online Harassment at a University Campus.” Journal of Interpersonal Violence, 19, (4), 468-483. Finn, J. & M. Banach (2000).”Victimization Online: The Downside of Seeking Human Services for Women on the Internet.” Cyberpsychology & Behavior, 3(5), 785-797. Fisher, B., F. Cullen & M. Turner (2002). “Being Pursued: Stalking Victimization in a National Study of College Women.” Criminology and Public Policy, 1, 257-308. Fisher, B., F. Cullen & M. Turner (2000). The Sexual Victimization of College Women. Retrieved December 3, 2007, from http://www.ncjrs.gov/pdffiles1/nij/182369.pdf. Grabosky, P., (2000). Computer Crime: A Criminological Overview. Prepared for Presentation at the Workshop on Crimes Related to the Computer Network, Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Retrieved December 20, 2007 from http://www.aic.gov.au/conferences/other/grabosky_peter/2000-04-vienna.pdf. Jenson, B. (1996). Cyberstalking: Crime, Enforcement and Personal Responsibility in the Online World. Retrieved November 15, 2007, from http://www.law.ucla.edu/classes/ archiv/s96/340/cyberlaw.htm. Karjane, H., B. Fisher & F. Cullen (2002, October). Campus Sexual Assault: How America’s Institutions of Higher Education Respond, final report to the National Institute of Justice, NCJ 196676: 137-142. Retrieved November 10, 2007 from http://www.ncjrs.gov/pdffiles1/ nij/grants/196676.pdf. Lamplugh, D. & P. Infield (2003). “Harmonising Anti-stalking Laws.” George Washington International Law Review, 34. Retrieved November 10, 2007, from LexisNexis Academic database. Lee, R.K. (1998). “Romantic and Electronic Stalking in a College Context.” William & Mary Journal of Women and the Law, 4, 373-466. Lunney v. Prodigy Services Co., 723 N.E.2d 539 (N.Y. 1999). Moriarty, L.J. & K. Frieberger (2006). “Investigating Cyberstalking: An Examination of Victimization Patterns.” Paper presented at the World Society of Victimology annual meeting, Orlando, FL. National Center for Victims of Crime (2007). Potential Effects of Cyberstalking. Retrieved November 17, 2007 from http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer &DocumentID=32458. Ogilvie, E. (2000, September). “Cyberstalking.” Australian Institute of Criminology. Retrieved November 11, 2007, from http://www.aic.gov.au/publications/tandi/ti166.pdf. Packard, A. (2000). “Does Proposed Federal Cyberstalking Legislation Meet Constitutional Requirements?” Communication Law and Policy, 5. Retrieved November 10, 2007, from LexisNexis Academic database.

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Pathé, M. & P. Mullen (1997). “The Impact of Stalkers on Their Victims.” British Journal of Psychiatry, 170, 12-17. Reno, J. (1999). Cyberstalking: A New Challenge for Law Enforcement and Industry: A Report from the Attorney General to the Vice President. Retrieved November 20, 2007, from http://www.usdoj.gov/criminal/cybercrime/cyberstalking.htm Roberts, A & S. Dziegielewski (2006). “Changing Stalking Patterns and Prosecutorial Decisions: Bridging the Present to the Future.” Victims & Offenders, vol. 1 (1), pp. 47-60. Romeo, F.F. (2001). “A Recommendation for a Campus Anti-stalking Policy and Procedures Handbook.” College Student Journal, 35(4), 514-517. Simpson, D. (2000, June). Feds Find Dangerous Cyberstalking Hard to Prevent. Retrieved November 19, 2007 from http://archives.cnn.com/2000/TECH/computing/06/12/cyber stalkers.idg/index.html. Southworth, C., J. Finn, S. Dawson, C. Fraser & S. Tucker (2007). “Intimate Partner Violence, Technology, and Stalking.” Violence against Women, 13(8), 842-856. Spence-Diehl, E. (2003). “Stalking and Technology: The Double-Edged Sword.” Journal of Technology in Human Services, 22(1), 5-18. Spitzberg, B. & G. Hoobler (2002). “Cyberstalking and the Technologies of Interpersonal Terrorism.” News Media & Society, 4(1), 67-88. Westrup, D., W. Fremouw, R. Thompson & S. Lewis (1999). “The Psychological Impact of Stalking on Female Undergraduates.” Journal of Forensic Science, 44, (3), 554-557.

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CHAPTER 8 Victim Impact Statements – Fairness to Defendants? Ida M. Johnson and Etta F. Morgan

Introduction Historically, the crime victim was the forgotten entity in the criminal justice process. Victims took on passive roles as observers. They were not given an opportunity to voice their opinions or concerns regarding the crime and how the crime impacted their lives. The early 1970s saw a mobilization of action on the part of feminists and rape victims who became the first victims’ rights organizers, often under the theme of “Take Back the Night.” Victims’ rights issues began to appear in law journals proposing that court-reforms be developed to promote the needs of victims and their families. The 1970s can be remembered as the decade when activists developed shelters for battered women, opened rape crisis centers, and established crisis hotlines. Since the 1970s, victim advocates have argued that the scale of justice is tipped in favour of the defendant because the criminal process focuses more on the provision of rights to the defendant than to the victim. The President’s Task Force on Crime Victims in 1982 acknowledged the imbalance of rights afforded victims and defendants in the criminal process and proposed to remedy the imbalance by supporting the use of victim impact statements. The Task Force, policymakers, and court officials highlighted the imbalanced scale of justice in their argument for increasing the rights of victims in the criminal process. Victim impact statements were first introduced in Fresno, California, as part of pre-sentence investigations. These statements allow victims to describe the physical, emotional, and economic effects of the crime beyond the visible harm they may have experienced. Victims typically describe the emotional and financial harm they experienced as a direct result of the criminal act. Victim impact statements also allow victims an opportunity to outline what they believe is an appropriate punishment for the crime. 115

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Victim impact statements were developed to improve the treatment of crime victims by the criminal justice system, to restore dignity to victims, and to allow victims’ input into criminal justice procedures (Kelly & Erez, 1997). At present, victim impact statements are introduced at the sentencing phase, at plea bargaining hearings, at parole hearings, and at some bail hearings (Clark, 1994). The purpose of this chapter is to examine issues surrounding victim impact statements. First, the text provides an overview of victim impact statements, including the rationale for introducing victim impact statements in court. Next is a discussion of the arguments for and against using victim impact statements and their constitutional merit. The conclusion presents a discussion of the effect victim impact statements have on sentencing decisions.

Arguments in Favor of Victim Impact Statements One of the most compelling arguments in favor of victim impact statements is that such statements may have a positive impact upon court dispositions, leading to an increase in the use of restitution and compensation orders. Victim impact statements, at the very least, provide victims with the opportunity to voice their feelings concerning how the crime impacted them socially, physically, mentally, and financially. Such statements will let court officials know that the victim is a real person (Kelly, 1987) with substantial interest in how the case is processed. It is difficult for a judge to evaluate the seriousness of a defendant’s conduct without knowing how the crime has burdened the victim and the danger imposed by the defendant (President’s Task Force on Victims of Crime, 1982). The victim’s family members should have the opportunity to speak and inform the jury about their loss and how the crime has affected their lives and juries should have the opportunity to hear testimony that gives meaning to the victim’s life (Kelly, 1987; Sumner, 1987). Recognizing the victim as one whose statements are important will increase the victim’s confidence in and satisfaction with the justice system (Erez & Rogers, 1999) while simultaneously reducing any sense of powerlessness over the effects of the crime (Kilpatrick & Otto, 1987). Victim impact statements promote positive attitudes from victims and their families about the criminal justice process (Erez, 1994) as well as enhance victim empowerment (Kelly, 1982). Support for providing victims with the right to have input into sentencing decisions has been noted by several researchers. The acknowledgement of victim impact statements during the sentencing phase increases the court’s awareness of the loss the victim or/and the victim’s family has suffered as a result of the crime (Sumner, 1987); increases victim restitution and compensation (Shapland, Villmore & Duff, 1985); increases accuracy and proportionality in sentencing (Erez, 1989; Erez, 1990, 1994; Erez & Rogers, 1999); and increases the jury’s compassion about the family’s loss (Greene, Koehring & Quiat, 1998). A number of studies based on mock juries have

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been conducted to examine the victim impact evidence in capital sentencing (Myers, Lynn & Arbuthnot, 2002; Luginbuhl & Burkhead, 1995; Greene, Koehring & Quiat, 1998; Myers & Arbuthnot, 1999). Some of these studies have revealed that victim impact statements may lead the jury to perceive the victim as an upstanding community member rather than someone of questionable character (Myers, Lynn & Arbuthnot, 2002; Greene, Koehring & Quait, 1998). In mock trial studies, when jurors heard victim impact statements that described the victim as a respectable and sterling member of society as oppose to someone with a questionable reputation, they rated the respectable victim as being likeable, decent, and valuable; felt more compassion for the victim’s family; believed that the emotional impact of the murder on survivors was greater; and rated the crime as being more serious (Greene, Koehring & Quiat, 1998; Myers, Lynn & Arbuthnot, 2002). Thus, the harm information presented by the victim’s family concerning how the murder affected their lives influenced sentencing judgments of mock jurors more so than the demeanor of the witnesses. Victims’ right to make impact statements at the sentencing phase of the trial, however, has not been as widely received by the public and criminal justice officials as has their right to restitution, counseling services, and information updates about their cases. The right to have a voice in the sentencing decision continues to be a debate. The need to compensate victims and/or their families for the physical, psychological, or/and financial losses incurred as a result of a crime, is one consistent point of reference that is widely accepted. In 2006, victims of violent crime and their families received benefits totalling $444 million (National Association of Crime Victim Compensation Boards, 2007). This was an increase from the $426 million paid in 2005. Financial assistance for crime victims is available in all 50 states, D.C., Puerto Rico, the Virgin Islands, and Guam. Each state operates its crime victim compensation program under its own state law, determining who receives compensation and the amount. In additional to victim compensation funds, all states have specific laws, often called the victim’s bill of rights, that identify the rights of victims and procedures for victims to pursue their rights. The victim’s bill of rights generally includes the right to be notified of proceedings and the status of the defendant; to be notified of parole hearings; to be present at certain criminal justice proceedings; to make a statement at sentencing hearings or other times; and to secure restitution from a convicted offender. Other rights such as the right to a speedy trial, the right to be consulted before a case is dismissed or a plea agreement entered, and the right to keep the victim’s contact information confidential, are often included in victim’s bill of rights (National Crime Center for Victims of Crime, 2007). Thirty-two states added a Victims’ Rights Amendment to their state constitution and 49 of the 50 states have enacted laws or amendments that allow the victim impact statements at the sentencing phase of a criminal trial (The National Crime Center for Victims of Crime, 2007).

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Arguments against the Use of Victim Impact Statements There has been much controversy concerning the use of victim impact statements. One of the major arguments against victim impact statements is the harsh effect that such statements may have on sentencing outcomes. These arguments focus on three areas: (1) legal issues, (2) safety (victim protection) issues, and (3) ideological grounds. It has been suggested that victim impact statements will make the court more susceptible to the outside influences of public pressure (Rubel, 1986), and that the victim’s subjective views of his or her victimization process will take precedence over the objective manner in which sentencing decisions are decided in court leading to inconsistency and disparity in sentencing (Grabosky, 1987). There is some question about whether defendants are sometimes acquitted on the basis of the jury’s belief that the victim got what he/she deserved (i.e., victim-blaming) rather than being acquitted because the evidence indicated his/her innocence. This, of course, raises the concern about the extent to which extralegal variables, such as victim impact statements, influence the jury’s decision (Levy, 1993). Some critics argue that the courtroom is not the appropriate environment for victims and/or their family members to eulogize their loved ones and to make statements about their financial and social loss as well as the psychological impact that the crime had upon them (Long, 1995; Bandes, 1996). It is argued that such emotionally charges testimony solicits sympathetic identification with the victim rendering the fact finding less powerful and leading to arbitrary sentencing decisions. The emotional-filled content of victim impact statements generates sympathy from the jury for the victim and anger and resentment towards the defendant, thereby interfering with the pursuit of a fair and impartial sentencing hearing (Arrigo & Williams, 2003). The Supreme Court has noted on numerous occasions that the jury decision should be based on reason and the presentation of sound evidence instead of emotionality. While varying emotional demeanor of victims and/or family members (i.e., sadness and angry) may produce similar emotions in jurors, there exists little empirical research on the extent to which victim impact statements influence the emotions of jurors (Rose, Nadler & Clark, 2006). Studies examining victim impact statements based on mock jurors reveal that the emotionality of such statements may not have a significant effect on sentencing judgements (Green-McGowan & Myers, 2004) suggesting that there may be factors other than the emotionally charged testimony of family members that may impact sentencing outcomes (Myers, Weidemann & Pearce, 2006). Although it was stated in the President’s Task Force on Victims of Crime report that “a judge cannot reach an informed determination of the danger posed by a defendant without hearing from the person he has victimized . . .” (1982: 77), such a statement raises several questions. Are we to believe that judges are incompetent to interpret the law based on an individual’s prior criminal history as well as considering all of the evidence in a case in order

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to make an informed decision based on sentencing guidelines? Do we really believe the judge cannot do this absent hearing from the victim? It should not be forgotten that criminal offenses are crimes against the state and as such, the prosecution of those cases should reflect the public interest as it relates to a particular case, not one individual victim. The state must not lose its ability to provide an acceptable response to crime for its citizenry. In an attempt to maintain consistency in its treatment of offenders, the state may benefit by gaining a reputation for fairness towards its defendants and by increased public confidence (Ashworth, 1993). With the state in control of the punishment instead of the victim, there is an increased likelihood that the sentence will be meted out in proportion to the seriousness of the offense and the protection of society (Ashworth, 1993). However, some victim impact statements are so emotionally charged that court officials, even some jurors, display various levels of emotionality including becoming tearful during the testimony (Sullivan, 1998; Logan, 2000). Critics of victim impact statements further state that the presence and emotionality of the victim and his or her family may interfere with the defendant’s rights to a fair trial and that victim impact statements do not offer new or additional information since victim harm is already built into the judicial system (Hellerstein, 1989). Judges and juries are competent to dispense justice without victim impact statements. The statements only facilitate a philosophical movement toward a more retributive, punitive approach to justice (Sebba, 1996). Some arguments against victim impact statements focus on victim protection and the effect that such statements may have on the victim’s well being. A victim may experience a level of psychological harm, especially when the victim has been a target of a violent crime, by having the victim re-live the pain and emotional stress that he/she experienced (Reeve, 1993). According to Ashworth (1993), evidence that is presented which suggests or implies unusual physical or mental harm to the victim, [R]aises a number of substantive and procedural questions. Among the substantive questions is the issue of chance: is it right that a particular offender should receive a more severe sentence because his victim suffered abnormally serious after-effects, or that another offender should receive a much lower sentence because his victim was counseled successfully and apparently recovered quickly? . . . There are also procedural questions about the victim impact statement and the proper standards of fact-finding. . . . offenders might be subjected to unfounded or excessive allegations by victims, made from the relative security of a victim impact statement (1993:506-507).

Some courts have required the prosecutor’s office to release copies of the victim impact statements before the trial date, to support all medical claims with medical evidence, and to disallow new aggravating circumstances to be

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introduced in victim impact statements (Ashworth, 1993). One issue not clarified by the court is “in what circumstances (may) the prosecutor adduce evidence of this kind?” (Ashworth, 1993:507). One must remember that regardless of the source of the evidence, the defense has a right to challenge it. Victim impact statements may also result in elevating victim psychological stress because the victim often believes such statements will impact the sentencing decision when in actuality the statements may not have a significant impact on sentencing (Fattah, 1986) or may be completely ignored (Henderson, 1985). Historically, the judicial system has sought to render verdicts based on facts and not on human emotions. Thus, the two – the facts of the case and victim impact statements – seem to be in direct competition with each other. Arguments against the use of victim impact statements are also based upon administrative issues (Miers, 1992). It has been argued that such statements may facilitate delays in trials, cause longer trials, and add expenses to an already overburdened system.

Constitutional Issues: Examining Death Penalty Cases and Victim Impact Statements The role of victim impact statements in death penalty cases is a controversial issue, one the United States Supreme Court has contemplated in several cases. Many of the controversial issues surrounding the use of victim impact statements in death penalty cases focus on the influence of jurors’ perceptions of the worth of the victim on sentencing, judging the defendants’ blameworthiness, and the imposition of the death penalty by the jury in a capricious and arbitrary manner (Myers & Greene, 2004). One specific argument against supporting victim impact statements is the fear that such statements may lead to racially biased applications of the death penalty. Opponents of victim impact statements are concerned that the emotionalism of victims and their families in court may interfere with the defendant’s right to a fair trial, especially in capital murder trials where racial prejudice can surface and affect sentencing outcome. During the sentencing phase of a death penalty case, the family of the victim can testify to the painful effect that the death of a love one has had on their lives and how this loss permeates every facet of their lives. The issue of introducing victim impact statements in the sentencing phase for death penalty cases has been addressed in United States Supreme Court cases. During the late 1980s, the Supreme Court heard two cases concerning whether victim impact statements should be permitted in death penalty cases involving victims or defendants of different races. In Booth v. Maryland (1987), the Supreme Court addressed the issue of using victim impact statements in a sentencing jury’s determination. In 1983, John Booth and Willie Reed bound and gagged an elderly couple. Fearful that the couple would be

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able to identify him, Booth stabbed the couple numerous times with a kitchen knife. The trial judge in Booth permitted the jury to hear victim impact statements that detailed the impact of the victims’ deaths on family members and the respect that the community and family members held for the elderly couple. The Supreme Court held that it was inadmissible to allow a jury to hear victim impact statements during the sentencing phase of a death penalty case and that such statements lead to an arbitrary imposition of capital punishment. In rendering this opinion, the Supreme Court identified three factors that preclude the prosecution from introducing evidence concerning how the homicide impacted the victim’s family. The first factor raised by the Supreme Court in Booth was that the introduction of victim impact statements encourages the jury to focus more on the victim than on the defendant. The Supreme Court stated that: While the full range of foreseeable consequences of a defendant’s actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstances of capital sentencing. In such a case, it is the function of the sentencing jury to express the conscience of the community on the ultimate question of life or death. When carrying out this task the jury is required to focus on the defendant as a uniquely individual bein[g]. The focus of a victim impact statement, however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant (Booth v. Maryland, 1987:7).

Second, the Supreme Court held that the imposition of the death penalty should not be contingent upon the ability of the victim’s family to articulate their emotions, grief, and anguish of losing a relative. Rather, the focus should be centered on the defendant’s characteristics and background and whether the factors warrant the death penalty. The introduction of victim impact statements at the sentencing phase only shifts attention away from the defendant to the victim’s family and friends. Finally, the Supreme Court held that because victim impact statements include subjective feelings of family members, the defendant has a limited opportunity to rebut the evidence. If an opportunity for rebuttal is allowed, there is a chance that a “mini-trial” on the victim’s character and the impact of the homicide on family members and friends will occur – directing the sentencing jury away from its constitutional task of determining whether the death penalty is appropriate in light of the crime committed. In South Carolina v. Gathers (1989), the United States Supreme Court extended the ruling in Booth, by stating that any statements made by prosecutors about the victim’s character were unconstitutional. In this case, Demetruis Gathers and three companions sexually assaulted and killed Richard Hayes, a man they encountered in a park. During the crime, the perpetrators ransacked a bag the victim was carrying. The bag contained several articles pertaining

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to religion, including a religious tract titled “Game Guy’s Prayer.” During the sentencing phase of Gathers’ trial, the prosecution made references to Hayes’ character and read “Game Guy’s Prayer” in court. The Supreme Court held that references to the victim’s qualities were similar to the Booth holding, which prohibited victim impact statements and that such statements violated the defendant’s Eighth Amendment rights. The Court ruled that the emotional charged nature of victim impact statements only serves to prejudice the jury, leading to a more punitive decision against the defendant. Such statements from family members of victims may, in fact, impact the jury’s decision more so than legal factors. When jurors are permitted to hear emotionally charged testimony, it becomes increasingly difficult for them to separate the emotional nature of such statements from other fact finding information even when they are instructed to do so (Pickel, 1995). In a dissenting opinion, Justice O’Connor stated “Nothing in the Eighth Amendment precludes the community from considering its loss in assessing punishment nor requires that the victim remain a faceless stranger at the penalty phase of a capital case.” This dissenting opinion set in motion a judicial environment for change. In Payne v. Tennessee (1991), the Court overturned decisions in Booth v. Maryland and South Carolina v. Gathers ruling that victim impact statements presented during the penalty phase of a capital murder trial do not violate the constitutional rights of defendants. In 1987, Pervis Tyrone Payne entered the apartment of Charisse Christopher and her two children. Payne stabbed Charisse and the two children numerous times with a butcher knife. Charisse and her daughter died; the boy, a three-year-old, survived the stabbing. During the penalty phase of the trial, the prosecution, over the defendant’s objection, called the maternal grandmother of the three-year-old boy who survived the stabbing to testify how her grandson continued to cry out for his dead mother and sister. Additionally, the grandmother was allowed to testify about her personal grief over losing loved ones. Stating the Supreme Court’s rulings in Booth and Gathers, the defendant argued that the admissibility of the victim impact statement violated his Eighth Amendment rights. The Supreme Court ruled that the States have the discretion, in capital cases, as well as in other cases, to determine the admissibility of victim impact statements and that such statements represent another method of informing the court of the harm caused by the crime committed. Therefore, the Supreme Court overruled Booth and Gathers to the extent that they prohibited statements and evidence that attest to the harm and loss that the victim’s families, friends, and community experienced. In a dissenting opinion, Justices Marshall and Blackmun pointed out that the Court’s ruling disregarded the widely accepted judicial standard of stare decisis. Justices Marshall and Blackmun stated: Today’s decision charts an unmistakable course. If the majority’s radical reconstruction of the rules for overturning this Court’s decisions is to be taken at face value – and the majority offers us

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no reason why it should not – then the overruling of Booth and Gathers is but a preview of even broader and more far-reaching assault upon this Court’s precedents. Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday’s “spirited dissents” will squander the authority and the legitimacy of this Court as protector of the powerless (Payne v. Tennessee, 1991:756).

The majority opinion in Payne opened the door for the admission of victim impact statements in courts across the United States. The admissibility of victim impact statements is the prerogative of individual States, and the Supreme Court will not intervene unless “victim evidence is so unduly prejudicial that it renders the trial as unfair” (Payne v. Tennessee, 1991:735). The amount of latitude allowed victims’ families in presenting victim impact statements at capital sentencing phases varies from state to state. In some states, the family members can calmly read their victim impact statements in open court. The judge has the discretion to prevent the family members from reading their victim impact statements if they become emotional. Still other states require that the victim impact evidence be pre-approved by the Court. Since Payne v. Tennessee, the majority of the states with death penalty statutes allow victim impact statements during the sentencing hearing in capital murder trials (Blume, 2003). More recent death penalty cases such as the Timothy McVeigh case considered victim impact statements. Timothy McVeigh was convicted and sentenced to death for the 1995 Oklahoma City bombing. Although McVeigh filed a motion to limit the use of victim impact statements during his trial and sentencing hearing, the Court allowed the broad admission of victim impact evidence. McVeigh raised several concerns in his request to limit the admissionability of victim impact statements citing that the testimony may appear to be the equivalent of eulogies, the presentation of grieved statements and emotionality that one might make and display at a funeral. Such statements and emotionality would, undoubtedly, according to McVeigh, elicit sympathy from the jurors that would lead them to identify more with the victims who lost their lives in the Oklahoma bombing than with the fact finding evidence presented in the case (U.S. v. McVeigh, 1998). Victim impact statements that compare the worth of the victim to the worth of the defendant may be unfair to both parties. The Court did, however, grant some of McVeigh’s requests to exclude certain victim impact evidence. The length of time the Court spent on deciding what victim impact evidence should be allowed at the sentencing phase suggests that even after Payne, the guidelines concerning the admissibility of victim impact statements are still unclear. Additionally, the ambiguity of the admissibility of victim impact statements raises questions about how directly a family member must be affected by harm in order to provide testimony at the sentence in phase (Shanker, 1999).

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The jury’s decision to sentenced a defendant to death in a capital case may be influenced by the victim’s characteristics in addition to any weight that victim impact statements may carry (Wood, 2005:142); thus suggesting that the sentencing outcome is a judgment about both the victim’s blameworthiness and the defendant’s blameworthiness. Studies have examined the impact of race on sentencing decisions in capital murder cases and have found that the race of the victim influences prosecutorial decision to seek the death penalty and jury decision to impose the death (Paternoster & Brame, 2003:32). Further, when the defendant is African American and the victim is white, the likelihood of the jury to perceive the defendant as dangerous increases (Bowers, Sandys & Brewer, 2004). Thus, in capital cases, the confounding effects of legal and extra legal factors make it difficult to measure the extent to which sentencing outcomes are influenced by victim characteristics or by victim impact statements.

Effects of Victim Impact Statements on Sentencing The effects victim impact statements have had on sentencing outcomes have generated ambivalent feelings regarding their use. Arguments in favor of admitting victim impact statements at sentencing are based on the perception that such statements may increase victims’ restitution and compensation. Arguments against admitting victim impact statements at sentencing rest upon the assumption that victim impact statements will have a harsh effect on sentencing outcomes. Juries in capital murder cases who hear victim impact statements are more likely to sentence the defendant to death in spite of the fact-finding evidence than juries that do not hear victim impact statements (Myers & Arbuthnot, 1999). Some experts have revealed that cases in which victim impact statements were admitted were more likely to result in the offender going to prison than being placed on probation than cases in which no victim impact statements were admitted (Erez & Tontodonato, 1990). However, it was also revealed that even if the sentencing outcome of a case in which victim impact statements were acknowledged resulted in a prison sentence, the statements did not significantly affect the length of the sentence. In cases in which victim impact statements have impacted sentencing outcomes, the impact has been minor, at best, and has not increased the punitiveness of sentencing outcomes, but enhanced sentencing accuracy and proportionality (Erez & Rogers, 1999). Overall, the evidence regarding victim impact statements has been inconclusive in terms of their impact on increasing victim restitution or compensation. Nevertheless, Shapland et al. (1985) did conclude in their research that using victim impact statements increased victim restitution and compensation. Phillips (1997) warns that “victim impact statements tend to exaggerate the degree to which juries consider the character of the victim in sentencing by explicitly presenting the jury with these characteristics” (1997:105). More-

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over, Justice Sears-Collins of the Georgia Supreme Court noted in Livingston v. State (1994) that “clearly some evidence which would fall within the [victim impact statement statute] could also reflect on those factors which this court and our state legislature have already found constitutionally irrelevant to death penalty sentencing” (1994:751). It has also been noted that because of the power of victim evidence, prosecutors may be more inclined to seek the death penalty if the victim is attractive (Phillips, 1997). Other researchers (Luginbuhl & Burkhead, 1995) have found that victim evidence introduced during the penalty phase increases the likelihood of voting for death among those not opposed to capital punishment. Further, when looking at cases with and without victim impact evidence, more subjects vote for death when victim impact evidence is present than when it is not present.

What Is the Level of Support for Victim Impact Statements among Criminal Justice Professionals? Sebba (1996) found that, in general, victim impact statements are not always taken, that the information provided by victims is often already known to the prosecutor, and that officials have established methods of resistance to victim impact statements. There appears to be conflicting perceptions between the judge and the prosecutor in terms of the role each plays in handling and processing victim impact statements in court (Davis & Smith, 1994). Some judges state that they are interested in seeing that victim impact statements are introduced in court but some prosecutors believe that judges take the admission of such statements lightly and only occasionally consider them in the sentencing phase. In contrast, prosecutors state that victim impact statements should be introduced on a regular basis in court while judges believe that prosecutors rarely use them (Davis & Smith, 1994). A survey on the use of victim impact statements in California was conducted by the National Institute of Justice during the late 1980s. The study revealed that 69 percent of judges, 48 percent of prosecutors, and 81 percent of probation officers stated that victim impact statements are ineffective (Villmoare & Neto, 1987). These findings were further supported by Henley, Davis, and Smith (1994) in their study of judges’ and prosecutors’ perceptions of the use of victim impact statements in New York courts. Henley and colleagues (1994) found that judges expressed reservations about the potential of victim impact statements to change in any way the routine dispositions in “quick pleas.” Prosecutors, on the other hand, felt that victim impact statements may cause victims to exaggerate the amount of physical, psychological, and financial harm they actually endured. Overall, both judges and prosecutors in New York courts stated that they support victim impact statements, but their action of actually introducing victim impact statements in court did not support their verbal statements (Henley et al., 1994). Other research on judicial perceptions of the use of victim impact statements in court, including the perception of probation officers, reveals that

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some court officials favors the input from victims in sentencing decisions (Hillenbrand & Smith, 1989). A telephone survey of judges, prosecutors, and probation officers concerning their perceptions of the use of victim impact statements in court showed that the majority of the judicial personnel in the study supported victim impact statements and did not perceive the statements as creating problems in the criminal justice process (Hillenbrand & Smith, 1989). In fact, most judges and prosecutors thought that victim impact statements improved the quality of a criminal trial. Roberts and Edgar (2006) examined the use of victim impact statements of judges in three Canadian jurisdictions (i.e., British Columbia, Manitoba, and Alberta). These judges reported that overall, victim impact statements were useful. When specifically asked whether or not the information provided in the victim impact statements was relevant to the principles of sentencing, the responses varied based on jurisdictions. For example, in Manitoba, approximately “47% of judges stated that they found victim impact statements to contain information relevant to sentencing principles often, almost always or always” (Roberts & Edgar, 2006:2). Basically, all jurisdictions found some information relevant though not to the degree experienced in Manitoba. For judges who noted that relevant information was obtained from victim impact statements, they suggested that the information received was unavailable from other sources (Roberts & Edgar, 2006). Additionally, judges have reported that it is difficult to determine if victims have been fully informed about their right to submit an impact statement. As a result, judges must proceed without the benefit of an impact statement. For those victims that have submitted an impact statement, they have the right to make an oral presentation during the sentencing phase and may be cross examined on the contents of their statement; however, neither of these events rarely occurs in the three jurisdictions studied by Roberts and Edgar (2006). When imposing a sentence, most judges (63%) in these Canadian jurisdictions noted that they tend to refer to victim impact statements and their contents as partial rationale for the sentence given. If the victim is present during the imposition of the sentence, the judges tend to speak directly to the victim.

Victim Satisfaction with Victim Impact Statements Another area of concern in assessing the effect of victim impact statements is victim satisfaction. Some authorities believe that victim impact statements create a sense of satisfaction among victims when they are able to voice their loss and harm, helping them to emotionally deal with the consequences of the crime. Some authorities, on the other hand, believe that to the extent that victims or their families are allowed to voice their feelings and concerns about the crime, they will be more satisfied with the criminal justice processing of the case.

VICTIM IMPACT STATEMENTS – FAIRNESS TO DEFENDANTS?

Victims tend to reach a level of satisfaction if they believe that their statements and evidence influence the sentencing outcome, even if in actuality their statements have no impact on sentencing decisions (Smith & Hillanbrand, 1981). According to Kelly (1982), allowing victims to give statements about the impact of the crime on their lives was more important to the victims than the severity of the punishment that the defendant received. Further, some researchers have found that victim participation serves as a therapeutic approach to dealing with victimization (Kilpatrick & Otto, 1987; Wells, 1991). Kilpatrick and Otto (1987), in their study of victim impact statements and its effect on victims of crime, reveal that such statements allow victims to deal with an emotional loss and to regain a level of power and control that was lost when the crime was committed, promoting the psychological recovery of victims (Wells, 1991). Such testimony and evidence serves as a healing modality for victims and sends a strong message that the criminal justice system cares about crime victims. In contrast, some researchers claim that the impact of victim impact statements on victim satisfaction has been overstated (Davis & Smith, 1994). When examining satisfaction levels of robbery, burglary, and non-sexual assault victims, Davis and Smith (1994) found no supportive data that revealed that victim impact statements result in greater levels of victim satisfaction or greater involvement in the criminal justice processing of the case. Ashworth (1993) also found that there is no apparent increase in victim satisfaction with the criminal justice system when victim impact statements are used. Moreover, Ashworth (1993) found that completing a victim impact statement is not related to future victim cooperation with the criminal justice system. Another view of a victim impact statement is the reverse impact statement that tends to benefit the defense more than the prosecutor. In Thomas v. Commonwealth (2002), the victim’s mother opposed the death penalty for the defendant noting that “vengeance does not have any positive impact on the community because death sentences do not promote respect and value for human life” (Barnes, 2002:253). Because she was not responding like the typical victim, the key players (the judge, prosecutor, and defense attorney) in this case were apprehensive about the contents of the impact statement. Unfortunately, the victim believed that the elected officials were more concerned about their political careers than they were about addressing her needs as a victim. Barnes (2002) noted that the victim felt that her interests were secondary to the interest of the community. In Thomas (2002), the prosecutor attempted to minimize the victim’s feelings and therefore, failed to ask her any questions regarding her testimony; however, on the other hand, the defense recognized that her testimony presented the best closing argument for the defendant and noted it as such. It has been suggested that the victim felt betrayed by the Commonwealth (Barnes, 2002). This type of victim impact statement raises additional questions about the level of satisfaction experienced by victims when their impact statements do not conform to the prosecutor’s expectations.

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Conclusion In an attempt to give victims a sense of participation in the criminal prosecution of their cases, several states have implemented the use of victim impact statements. Advocates supporting the use of victim impact statements believe that these statements have a positive impact upon court dispositions. Perhaps the most important aspect of the victim impact statement is that it offers an opportunity for the victim to present a personal account of the harm caused by the criminal act and to also let the jurors see the humanity of the case. On the other hand, proponents against the use of victim impact statements argue that these statements merely serve to enhance sentences based on emotions instead of law. Victim impact statements increase the probability that there will be disparity and inconsistency in sentencing among offenders. Additionally, victim impact statements can result in trial delays and backlog of cases, causing additional expenses for court systems. The Supreme Court has not settled the issues related to victim impact statements, instead it has ruled that they were not admissible (Booth). In rendering this decision, the Supreme Court stated that the introduction of victim impact statements causes (1) the jury to shift its focus from the defendant to the victim; (2) the jury to ignore the defendant’s prior criminal history and background in determining the appropriate sentence; and (3) the defendant to be unable to rebut the (victim impact statement) evidence. In its ruling in South Carolina v. Gathers, the Supreme Court added that the introduction of victim’s characteristics by the prosecutors were unconstitutional, thereby extending the Booth ruling. Yet, in Payne v. Tennessee, the Supreme Court reversed itself and ruled that the states have discretion as to the admissibility of victim impact statements and other statements related to the harm suffered by a victim and the victim’s family. We should note that this ruling, according to the dissenting opinion, disregarded the widely accepted judicial standard of stare decisis and its impact will be far-reaching. Victim impact statements continue to be an issue of debate. Whether or not these statements are welcomed by the defense, there is some indication that court officials favor input from victims during the sentencing phase. Overall, the real purpose of victim impact statements is to provide a feeling of satisfaction for the victim in the processing of the case, but the actual degree of satisfaction has been inconclusive in previous studies. Perhaps the future of victim impact statements hinges more upon public opinion and public will than it does on perceived or actual fairness to defendants.

References Arrigo, B. & C. Williams (2003). “Victim Vices, Victim Voices, and Impact Statements: On the Place of Emotion and the Role of Restorative Justice in Capital Sentencing.” Crime & Delinquency, 49, 4, 603-626.

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Ashworth, A. (1993). “Victim Impact Statements and Sentencing.” Criminal Law Review, 498-509. Bandes, S. (1996). “Empathy, Narrative, and Victim Impact Statement.” University of Chicago Law Review, 63, 361-412. Barnes, A. (2002). “Reverse Impact Testimony.” Capital Defense Journal, 14, 245. Blume, J.H. (2003). “Ten Years of Payne: Victim Impact Evidence in Capital Cases.” Cornell Law Review, 88, 257. Bowers, W.J., M. Sandys & T.W. Brewer (2004). “Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the Defendant Is Black and the Victim Is White.” DePaul Law Review, 53, 1497-1537. Clark, C. (July 22, 1994). “Crime Victims’ Rights.” CQ Researcher, 627-643. Davis, R.C. & B. Smith (1994). “The Effect of Victim Impact Statements on Sentencing Decisions: A Test in an Urban Setting.” Justice Quarterly, 11, 435-469. Erez, E. (1994). “Victim Participation in Sentencing: And the Debate Goes On.” International Review of Victimology, 3, 17-33. Erez, E. (1990). “Victim Participation in Sentencing: Rhetoric and Reality.” Journal of Criminal Justice, 18, 9-31. Erez, E. (1989). “The Impact of Victimology on Criminal Justice Policy.” Criminal Justice Review, 3, 335-356. Erez, E. & L. Rogers (1999). “Victim Impact Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professions.” British Journal of Criminology, 39, 216-239. Erez, E. & P. Tontodonato (1990). “The Effect of Victim Participation in Sentencing on Sentence Outcome.” Criminology, 28, 451-474. Fattah, E.A. (1986). From Crime Policy to Victim Policy. London: MacMillan. Grabosky, P.N. (1987). “Victims.” In J. Bastan, M. Richardson, C. Reynolds & G. Zdenkowsi (eds.) The Criminal Justice System. Australia Pluto Press. Greene, E., H. Koehring & M. Quiat (1998). “Victim Impact Evidence in Capital Cases: Does the Victim’s Character Matter?” Journal of Applied Social Psychology, 28, 2, 145-156. Green-McGowan, M. & B. Myers (2004). “Who Is the Victim Anyway? The Effects of Bystander Victim Impact Statements on Mock Juror Sentencing Decision.” Violence and Victims, 357. Henderson, L. (1985). “The Wrongs of Victim’s Rights.” Stanford Law Review, 937, 949-950. Hellerstein, D. (1989). “Victim Impact Statement: Reform or Reprisal?” American Criminal Law Review, 27, 233-266. Henley, M., R.C. Davis & B. Smith (1994). “The Reaction of Prosecutors and Judges to Victim Impact Statements.” International View of Victimology, 3, 83-93. Hillenbrand, S. & B. Smith (1989). Victim Rights Legislation: An Assessment of Its Impact on Criminal Justice Practitioners and Victims. Chicago: American Bar Association, Criminal Justice Section. Kelly, D.P. (1982). “Delivering Legal Services to Victims: An Evaluation and Prescription.” Justice System Journal, 9, 62-85. Kelly, D.P. (1987). “Victims.” Wayne Law Review, 34, 69-86.

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Kelly, D.P. & E. Erez (1997). “Victim Participation in the Criminal Justice System.” In R.C. Davis, A.J. Lurigio & W. Skogan (eds.) Victims of Crime. Thousand Oaks, CA: Sage. Kilpatrick, D.G. & R.K. Otto (1987). “Constitutionally Guaranteed Participation in the Criminal Justice Proceedings for Victims: Potential Effects of Psychological Functioning.” Wayne Law Review, 34, 7-28. Levy, J.H. (1993). “Limiting Victim Impact Evidence and Argument after Payne v. Tennessee.” Stanford Law Review, 45, 1027-1060. Logan, W. (2000). “Opinion on Death: Witness Sentence Recommendations in Capital Trials.” Boston University Law Review, 41, 187-228. Long, K. (1995). “Community Input at Sentencing: Victims’ Right or Victims’ Revenge.” Boston University Law Review, 75, 187-229. Luginbuhl, J. & M. Burkhead (1995). “Victim Impact Evidence in a Capital Trial: Encouraging Votes for Death.” American Journal of Criminal Justice, 20(1), 1-16. Miers, D. (1992). “The Responsibilities and Rights of Victims.” Comparative Law Review, 55. Myers, B. & J. Arbuthnot (1999). “The Effects of Victim Impact Information on the Verdicts and Sentence Recommendations of Mock Jurors.” Journal of Offender Rehabilitation, 29, 95-112. Myers, B. & E. Greene (2004). “The Prejudicial Nature of Victim Impact Statement: Implications for Capital Sentencing Policy.” Public Policy and Law, 10, 492-515. Myers, B., S. Lynn & J. Arbuthnot (2002). “Victim Impact Testimony and Juror Judgements: The Effects of Harm Information and Witness Demeanor.” Journal of Applied Social Psychology, 32, 2393-2412. Myers, B., E. Weidemann & G. Pearce (2006). “Psychology Weighs in on the Debate Surrounding Victim Impact Statements and Capital Sentencing: Are Emotional Jurors Really Irrational?” Federal Sentencing Reporter, 19, 1, 13-20. National Association of Crime Victim Compensation Board (2007). Crime Victim Compensation: Resources for Recovery. Alexandria, VA. National Crime Center for Victims of Crime (2007). Issues: Constitutional Amendments. http://www.ncvc.org/ncvc/Main.aspx National Victim Center (1991). America Speaks out: Citizens’ Attitudes about Victims’ Rights and Violence. Paternoster, R. & R. Brame (2003). “An Empirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction.” Executive summary (Online). Available at http://www.urhome.umd.edu/newsdesk/pdf/exec.pdf Pickel, K.L. (1995). “Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help.” Law and Human Behaviour, 19, 407-424. President’s Task Force on Victims of Crime (1982). Final Report. Washington, DC: U.S. Government Printing Office. Phillips, A. (1997). “Thou Shall Not Kill Any Nice People: The Problem with Victim Impact Statements in Capital Sentencing.” American Criminal Law Review, 35, 93-118. Reeve, H. (1993). “Victim Impact Statement.” Paper presented at the National Conference of Victim Support. Warwick, England, July.

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Roberts, J. & A. Edgar (2006). “Victim Impact Statements at Sentencing: Judicial Experience and Perceptions.” A Survey of Three Jurisdictions. Research and Statistics: Research Reports. Retrieved from http://canada.justice.gc.ca/en/ps/rs/rep/2006/rr06-vic3/p0.html. Rose, M., J. Nadler & J. Clark (2006). “Appropriately Upset? Emotion Norms and Perceptions of Crime Victims.” Law and Human Behaviour, 30, 203. Rubel, H. (1986). “Victim Participation in Sentencing Proceedings.” Criminal Law Quarterly, 28, 266-250. Sebba, L. (July, 1996). “Victim Impact Statements.” Paper presented at the National Conference of Victim Support. Warwick, England. Shanker, N. (1999). “Getting a Grip on Payne and Restricting the Influence of Victim Impact Statements in Capital Sentencing: The Timothy McVeigh Case and Various State Approaches.” Hasting Constitutional Law Quarterly, 711. Shapland, J., J. Villmore & P. Duff (1985). Victims in the Criminal Justice System. Aldershot, UK: Gower. Sullivan, B.E. (1998). “Harnessing Payne: Controlling the Admission of Victim Impact Statements to Safeguard Capital Sentencing Hearings from Passion and Prejudice.” Fordham Urban Law Journal, 25, 601-638. Sumner, C.J. (1987). “Victim Participation in the Criminal Justice System.” Australian and New Zealand Journal of Criminology, 20, 195-217. Smith, B. & S. Hilanbrand (1981). Non-stranger Violence: The Criminal Courts Responses. Washington, DC: National Institute of Justice. Villmoare, E. & V. Neto (1987). “Victim Appearances at Sentencing under California’s Victims’ Bill of Rights.” National Institute of Justice. Wells, R. (February, 1991). “Victim Impact: How Much Consideration Is it Really Given?” The Police Chief, p. 44. Wood, J.K. (2005). “Balancing Innocence and Guilt: A Metaphorical Analysis of the U.S. Supreme Court’s Ruling on Victims’ Impact Statements.” Western Journal of Communication, 69, (2), 129-146.

Cases Cited Booth v. Maryland, 482 U.S. 496 (1987) Livingston v. State, 444 S.E.2d 748 (Ga. 1994) Payne v. Tennessee, 501 U.S. 808 (1991) South Carolina v. Gathers, 490 U.S. 805 (1989) Thomas v. Commonwealth, 550 S.E.2d 652 (Va. 2002) United States v. McVeigh, 9444 F. Supp. 1478, 1487 (D. Colo. 1996)

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CHAPTER 9 Victim-Offender Programs in Correctional Settings – Can They Effectively Bridge Divergent Perspectives? Duane Ruth-Heffelbower and Mario Thomas Gaboury

Innovative practices in criminal justice are most often viewed as being controversial at the outset and then, after being time-tested and empirically investigated, can become the proven practices that are generally thought of as having been more obviously good ideas. Victim-offender programs in correctional settings are currently in the controversial stage; however, there is a clear trajectory based on experience and evaluation showing that some practices are moving toward general acceptance in the correction’s arena. Historically, this transition from radical idea to proven method has been fraught with controversy and a variety of obstacles. Among these are the distrust of, at least, the perceived motivations of those involved in victim-offender restorative program development, and the general difficulties involved in affecting culture change in the large and often entrenched bureaucracies that characterize most, if not all, correctional agencies. Victims and their supporters have often believed that restorative justice programs were at best ambivalent to their needs and at other times felt that these programs were actually hostile toward them. Dignan (2007) analyzes restorative justice program development and traces the role of the victim in the emergence of these programs. In discussing various philosophical underpinnings and social movements that drove program development in this area he notes that “[o]ne of the most notable features of all three inspirational strands is that they are profoundly ambivalent in their attitude toward the victim” and further notes that even when there are benefits to the victim “such benefits are liable to be seen as incidental gains…as opposed to desirable goals in their own right” (2007:312). 133

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Similarly, offenders and their advocates have had concerns about the coercive nature of corrections generally and whether restorative programs that are promoted within jails and prisons and in supervised release settings can truly be voluntary. Van Ness and Strong (1997) discuss several “strategic issues” in facilitating programs, including coercion. Addressing this issue, they note that while the criminal justice system is highly coercive and often offenders believe that participation in restorative justice activities will result in leniency, this does not render the offender’s participation “involuntary.” Using mediation as a specific example the authors state that: The existence of alternatives to mediation, even ones that produce results more onerous than those achieved by mediation, does not mean that the offender is coerced into mediating, as long as the alternatives can be defended as just. It is, in fact, only when there are no alternatives to mediation that mediation becomes truly coercive. Those who choose to mediate – victims as well as offenders – do so because they believe that there is an advantage to taking this approach rather than litigating or resorting to other alternatives. Those who feel otherwise will simply allow the criminal justice system to take its course (1997:79).

Victim-Offender Restorative Justice programming is but one set of additional alternatives to the traditional criminal justice and correctional systems’ offerings that can be taken advantage of by victims and offenders as they see fit, but only when these alternatives are available and provided in an appropriate fashion. It is the contention of the current authors that restorative justice programs in correctional settings are truly emerging as a viable option, with demonstrated results, in many corrections departments. We will review several alternative programs in this chapter that have begun to prove themselves as just, fair, and important alternative opportunities that may benefit victims and offenders alike. We will examine a variety of currently controversial practices and describe which way they are probably headed. We will examine: •

Teaching conflict resolution skills to inmates for improved institutional safety;

•

Teaching inmates how to reconnect with their families, who are secondary victims, by using the reconciling injustices model;

•

Face-to-face or correspondence meetings between inmates and their actual victims or surviving family members;

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Restorative justice training for correctional officers;

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Inmate reintegration through empathy-building with representative or surrogate victims; and

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Parole success for sex offenders through Circles of Support and Accountability.

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Victim-offender restorative activities in correctional settings cover several more specific programs that cannot be covered in this brief chapter. However, the reader might wish to know about and follow-up on these other approaches. For example, Dison (in press) notes two others: programs to remake the entire prison environment such that its primary objective is to foster inmate transformation based on the values and methods of restorative justice and rehabilitation, and programs aimed at strengthening ties between prisons and their surrounding communities. In addition, the U.S. Department of Justice’s listing of restorative justice programs includes some offerings that will not be covered here and can be found at: http://www.ojp.usdoj.gov/ nij/publications/rest-just/ch5_toc.htm. Clearly, the corrections-based restorative justice arena is one that is expanding at this time. In a 2004 study, the National Institute of Corrections found significant utilization of restorative justice programs in the U.S. Based on survey responses returned by 47 statelevel departments of corrections, victim impact education/empathy programs were provided by 73 percent of the departments, restorative/reparative work benefiting victims or communities by 62 percent; victim/offender mediation/ dialog by 52 percent, and family group conferencing in 15 percent (National Institute of Corrections, 2004). The organizational tent under which all these processes live is named Restorative Justice (“RJ”). The tent is very large and these programs and processes cover only a small portion of the space under it. Restorative justice is a way of understanding justice that sees an offense as being against a person or group rather than against the state. Its measure of success is whether responsibility for harm is acknowledged, equity is restored and future intentions are made clear (Claassen, 1996). Both victim and offender take center stage in restorative justice processes. RJ also recognizes that the victim of an offense is not only the direct victim, but all the other people who are affected. Justice is found when all the needs created by a harmful action have been addressed. As we examine processes we will be looking to see whether they meet these tests of restorative justice, whether they have a reasonable expectation of efficacy, and whether or not they are moving toward general acceptance.

Teaching Conflict Resolution Skills to Inmates for Improved Institutional Safety Correctional officers live in fear of inmate attacks. Inmates live in fear of inmate attacks and correctional officer attacks. The usual way safety is increased for officers is viewed by inmates as more repressive and is therefore more likely to increase attacks on inmates by correctional officers when the inmate response is passive-aggressive behavior. Conflict resolution skills can help ameliorate these conditions. Prisons where inmates have been taught conflict resolution skills have reported a decrease in violence (e.g., Forget, 2005:4, cited in Dison, in press).

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This is particularly important related to gangs in prison, which challenges systems on many levels. For example, an interview with an inmate who was part of the white group in a prison revealed the true necessity of conflict resolution skills. After he delivered a message to the leader of the black group, the guards (who believed that the only reason a white inmate would enter black territory was for a drug transaction) came and “tossed” the cell of the black leader. Contraband was discovered and he went into the hole. The white inmate’s cell was also tossed, but no contraband was found. The black leader put out a death warrant on the white inmate since it was “obvious” that he was working with the guards. The prisoners believed that there was no way to resolve the conflict other than killing the offender, which would inevitably lead to retaliation killings. For several years until he was paroled, the white inmate was administratively segregated from the general population (Ruth-Heffelbower, 2007). It is possible that conflict resolution training could have avoided this potential for violence and also saved the system the considerable added cost of segregating the white inmate. From experience working with warring groups in Indonesia (Ruth-Heffelbower 2001), it is clear that a mixed group of leaders of warring factions can go through a conflict resolution training with the result being a cessation of violence as new ways of dealing with conflict are learned. Failure to live up to the agreement to use these ways causes loss of face, so the agreements are kept. This is the same experience others have had in prison settings (Dison, in press). Victim offender practices work well, since the parties have both been aggrieved and the necessary process described by Claassen (1996) works well. Empowered by these skills and the agreements made as part of the training process, inmate groups are better able to manage both inter- and intra-group disputes, as well as matters with correctional officers. Why should such a thing be controversial? One objection to teaching gang members these skills includes the belief that society is generally safer when gangs or other minority groups battle each other instead of cooperating. This is a standard political science understanding when dealing with difficult minority groups. Is it ethical for a mediator or trainer to help gangs equitably divide their turf? This particular conundrum has never been resolved within the conflict resolution community, let alone within society at large. The problem of gang wars impacting innocent citizens is serious, but so is the situation where one gang has unchallenged rights to a part of the city. Now move these issues into a custodial setting and imagine the problems. California prisons segregate inmates into racial and gang groups. When subgroups unite against the central authority, control can become a distant dream and insurrection the present reality. Try to imagine controlling a correctional setting where the inmates are united. It has happened in the United States and the end results tended toward the bloody. The 1971 Attica uprising is one of the more famous of these events, with Lucasville, Ohio in 1993, being a particularly clear yet not as well known example with riots resulting from attempting to unite black Muslims and Aryan Brotherhood members.

VICTIM-OFFENDER PROGRAMS IN CORRECTIONAL SETTINGS

While conflict resolution skills can increase safety and lower anxiety in a correctional setting, those who depend upon centralized command and control may not believe that the benefit outweighs the risk. It is far more efficient to allow different groups to control different illicit activities as a way of encouraging everyone to stay in their place than it is to actually attempt to stamp out those activities and prevent inter-group violence. The trajectory in correctional settings is toward general acceptance of this process. When one thinks about it, how could anyone really be opposed to better relations among inmates?

Teaching Inmates How to Reconnect with Their Families, Who Are Secondary Victims, by Using the Reconciling Injustices Model Restorative justice, which conceptualizes an “offense” as an action against a person and seeks to redress this harm, can come into play whenever one person believes another person has badly treated the other. Teaching restorative justice principles to prison “lifers” helps the inmates reconcile their own family conflicts. In any serious crime that leads to incarceration, the family of the offender is also harmed. Economic loss and societal discrimination caused by the offender leaves the families of the offenders in a difficult spot. Because families can visit with inmates easily, there are no barriers to facilitated meetings for the purpose of reconciling the injustices families feel towards their inmates. Without assistance, effective meetings are almost impossible to achieve. Because most prisoners eventually parole, the importance of strong family support becomes a prime concern for those who work with victims. There is a direct correlation between family support and decreased levels of recidivism (Kazura, Temke, Toth & Hunter, 2002). Why would anyone object to helping inmates achieve increased family harmony? Some believe that families of inmates are not innocent victims, but enablers or even co-conspirators in allowing the inmate to follow a lifestyle that led to crime. It would be naïve to say that this is never the case. Others would say that improved family relations give families the false hope of rehabilitation and keeps them frozen at the developmental level they had at the time of the offense. Because violations in the custodial setting can result in substantial increases in the sentence, families can find themselves waiting too long for someone who won’t be coming out any time soon, re-victimizing them. Families can also wind up spending too much money on inmate comfort packages and collect telephone calls. The difficulty with these objections is that they become more important than the needs/desires of the families. Support for good boundaries and reasonable expectations needs to be provided by the facilitator of such meetings between inmates and their families to avoid some of the potential problems.

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The trajectory of this process is definitely toward acceptance, although it is so rare as to be inconsequential at this time. If someone wants to “hitch their wagon” to a rising program star, this is one.

Face-to-Face or Correspondence Meetings between Inmates and Their Actual Victims or Surviving Family Members These meetings are happening in a number of places in the United States and around the world. Texas and Pennsylvania have notable programs. They differ from the other processes discussed here by the requirement that they be victim initiated. Teaching restorative justice principles in prisons leads to inmates wanting to make things as right as possible with their victims or victims’ families. The difficulty with this is a strong belief among victim offender dialogue advocates that all such encounters must be victim initiated. There is no national registry where potential match-ups can be housed, so very few victims and inmate offenders have an option to meet. We propose changing this situation by providing such a registry. Some victims want a meeting many years after the event that created their loss. How can they connect with the person who caused the harm? The only person on earth who can answer their questions is out of reach behind an archaic veil of secrecy. At the same time, no one proposes coercing victims who have no interest in meeting their offender. These meetings are universally understood to be victim-driven. Stories coming from the operating programs in Pennsylvania and Texas show how valuable such meetings can be for victims. Death row inmates often want the opportunity to apologize to the families of their victims. These cases are different from others in that there is a time limit on success. While executions are relatively rare these days, they have ended processes prematurely. In these cases the taboo against an offenderinitiated contact falls away. It has been felt by practitioners that the risk of re-victimization is outweighed by the time constraints. Making the contact with victim families on an ad hoc basis led the way for the extant programs described. When the families of victims have one last chance to hear the offender apologize, they take it (Ruth-Heffelbower, in press). Victim advocates need to recognize the importance of these meetings and strive to make them happen. Trained professionals must prepare the participants and lead these meetings, but such professionals are readily available for such service. Sometimes it is logistically impossible for offenders to meet with their victim or victim’s family. Correspondence can work wonders in such cases. One of us (Ruth-Heffelbower) discovered that it took a year of coaching for the killer of four people in three states to write a letter that could be read by the families of his victims. Facilitating such processes is a large task.

VICTIM-OFFENDER PROGRAMS IN CORRECTIONAL SETTINGS

Those who propose to offer such services must be attuned to both victim and offender thought processes. This process is already well accepted in several states (Van Ness & Weber, 2008). It could be implemented nationwide immediately. The skills of facilitators are important, and would be the missing link that slows acceptance of the process. The estimate is that it would take an intensive training process over the course of a year to prepare enough facilitators for a nationwide roll-out at full strength. Pennsylvania corrections had more than 150 requests for meetings immediately after the announcement of their program. They did statewide trainings so that all victims had a relatively local volunteer facilitator (Ruth-Heffelbower, in press).

Restorative Justice Training for Correctional Officers Introducing and institutionalizing restorative justice concepts and programs in correctional settings requires cultural change within the entity (Aertsen, Daems & Robert, 2006). Constituent group interests (including, of course, the correctional officers themselves), policy ambiguities, contrary practices, budgetary issues, institutional resistance and other aspects of organizational culture need to be addressed. In discussing organizational structure issues in introducing restorative justice to prisons, Edgar and Newell (2006) discuss six dimensions of “the cultural web of prisons”: (1) power structures, (2) organizational structures, (3) control systems, (4) routines and rituals, (5) myths and stories, and (6) symbols (2006:41-45). Restorative principles are often at odds with the traditional correctional system. For example: [B]y convention, prisoners are at the bottom of the organizational structure of prisons. By contrast, restorative justice sees offenders as partners, with a vital stake in the community. Clearly, this represents a tension for many prisons. Despite this, partnership approaches are developing in suicide prevention work, diversity and equality issues, prison councils … and educational programmes of peer counseling. The prisoner’s role as a stakeholder is given its fullest expression in therapeutic communities where each person … is responsible for his or her decisions and accountable to the whole community (Edgar & Newell, 2006:47).

Educating correctional officers on the theories and practices of restorative justice, instructing them on their role in implementing or supporting specific programs, and addressing the major paradigm shift required when restorative justice practices are introduced in correctional organizations can be challenging. One important approach to accomplishing this imperative task is to provide training to correctional officers. Several state departments of corrections have adopted this approach and train their officers in restorative justice practices.

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From 1997 through 2004, the Connecticut Department of Correction embarked on a collaborative effort with the University of New Haven to increase attention to victims and survivors of crime. Part of this effort was specifically directed at introducing and evaluating a “victim awareness education” restorative justice program (Gaboury, Sedelmaier, Monahan & Monahan, 2007; Monahan, Monahan, Gaboury & Niesyn, 2004). This was part of a comprehensive approach that included recognition of the importance of victims’ issues and presents these as part of the primary programs of the department (see: http://www.ct.gov/doc/site/default.asp). The victim awareness program became part of the regular offerings of the department and is listed in the Offender Accountability Plan Manual as a program that “most offenders should be referred to” (Connecticut Department of Correction, 2007, Appendix A:4). Two levels of training were associated with this overall effort. First, and perhaps obviously, training of trainers was provided for staff that would implement the victim awareness program with the inmates. In order to reinforce this program throughout the department and participating institutions, an in-service and pre-service training module was developed for correctional officers that sensitized officers to the impact of crime on victims, taught participants about victims’ rights and services, and also introduced the department’s Victim Service Unit and its victim awareness program (Gaboury, 1998). During a two-year period, all sworn correctional officers in the state were presented with this two-hour training module, which was also introduced into the pre-service academy curriculum. Other state departments of correction have also implemented training on restorative justice for their correctional officers. Minnesota has a series of training manuals to support its very active conferencing programs (Minnesota Department of Correction, 2003). There are examples of training programs that either support specific restorative justice program efforts (Crawford & Bodine, 1996; McDonald, Hyndman, Moore, O’Connell & Thorsborne, 1995; McDonald & Moore, 1995; O’Connell, Wachtel & Wachtel, 1999) or are more general restorative justice trainings for personnel and others, such as in New York (Arizona Department of Correction, 2005; Cysper, 2003). There are also several examples from other countries such as New Zealand (Department for Courts, New Zealand, 2003) and Canada (Correctional Services of Canada, 2002). In addition, the National Institute of Corrections telecasted training on restorative justice for corrections officers (National Institute of Corrections, n.d.) Furthermore, one author (Ruth-Heffelbower) has substantial experience in training correctional officers in restorative justice generally. This experience indicates that correctional officers are very resistant to applying RJ principles to their relationship with inmates, but are very interested in applying them to their peer and family relationships. The prediction is that any correctional officer effectively trained in RJ principles will unconsciously apply them to inmate situations. The more important prediction is that a custodial

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setting in which both guards and inmates are trained in RJ principles will be a safer place for everyone. The trajectory of this process is very hard to discern since it has happened in so few places. The 9/11 attacks resulted in so much mandatory first-responder training that frills like restorative justice were driven out. Our prediction is that this process will gain traction and prove itself.

Inmate Reintegration through Empathy-Building with Representative or Surrogate Victims The Sycamore Tree Project® is an intensive 8-12 week in-prison program that brings groups of crime victims into prison to meet with groups of unrelated offenders. They talk about the effects of crime, the harm it causes, and how to make things right (Prison Fellowship, 2008). Ruth-Heffelbower has worked with a group of inmates that intuited these principles and created their own program to develop inmate-victim empathy at Vacaville, California. Inmates who cannot orient themselves to be empathetic with fellow citizens have very little chance of reintegrating into society and avoiding re-offense. The standard need to objectify the victim is part of what makes victimization possible. Breaking down the ability to objectify others is an important part of offender reintegration. There is no evidence that successful reintegration of an inmate is possible without this step, which necessarily happens in a custodial setting. The trajectory of this process is unknown, due to its rarity. For those who have experienced it, the process is vital to societal reintegration. Since it can be self-run by inmates with some outside assistance, it can be very inexpensive.

Parole Success for Sex Offenders through Circles of Support and Accountability Remembering that preventing more victimization is the goal, anything that can improve the odds is welcome. Sex offenders are the new lepers of our age. Their parole restrictions box them into small, undesirable enclaves in their home cities. Employers reject them, and the social services available to them are few compared to the general population. Only 5-10 percent of the services available to other parolees are available to sex offenders (RuthHeffelbower, 2008). Interestingly, reoffense by sex offenders is much less likely than it is for the paroling population at large. Studies show reoffense by sex offenders to be in the range of 12-19 percent while other parolees recidivate in a range of 50-67 percent (Ruth-Heffelbower, 2008). This lower recidivism rate may be largely due to the fact that most sex offenders offend against someone they

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know well and probably live with. When this opportunity is eliminated they are very unlikely to reoffend. That being said, sex offenders usually parole into inhospitable conditions, often bereft of family support. The challenge to avoid reoffense, particularly by those who attacked strangers, is considerable. One intervention has been shown to work. Circles of Support and Accountability (COSA) came into existence in Canada in the 1990s and has spread across Canada since then. These circles surround a paroling sex offender to provide the kind of practical support that is not usually available otherwise. It is transforming for sex offenders to have a small volunteer group that offers them support and friendship. This approach to reducing sexual offending is now moving into the United States with the funding of one such project in California by the Department of Corrections and Rehabilitation (Ruth-Heffelbower, 2008). The director of this project reported in a private conversation that her delivery of Thanksgiving dinner to three core members of these circles at their motels was met with disbelief and abject gratitude. Circles also make it very possible for the core member to meet with the victim. Surrounded by this level of support the offender is no longer a frightening person. While victim offender dialogue is not part of the COSA underlying plan, it makes such dialogue possible in a way nothing else has. This program fits within a study of programs in custodial settings because inmates are selected prior to parole for a circle. The circle and the inmate need to discern together that they are right for each other. The nature of the parole process makes this ideal difficult to achieve, but it is a guiding principle. COSA is one of the next big things for rehabilitation of offenders. It is mentioned by speakers at national conferences and its track record is exemplary. More than with almost any other type of crime, preventing reoffense by sexual offenders is of great interest to society. A city only needs one paid coordinator to manage many circles, giving excellent bang for buck. Of all the methods mentioned, this one is closest to embrace by society at large. For those who run COSA programs, the frightening thing is that most parolees would benefit from such a circle. That is probably the wave of the future, but ramping up to that volume will be a challenge.

Conclusion With victim-offender programs in, and potentially emerging from, an initial “controversial stage,” the question posed at the outset needs to be addressed. Can these programs effectively bridge the distinct perspectives of victim and offender? Moreover, and perhaps more importantly, do they actually work – part of the intention in selecting the term “effectively” here – and will this bridging lead to positive outputs and impacts? The conclusion of the instant authors is that, yes, victim-offender programs can effectively bridge this gap with positive outcomes; and they have consistently done so

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in situations where well-informed and good-faith efforts have been made to implement these processes. This is not to say that the design and implementation of these programs will be easy. Many obstacles remain, although these are surmountable. There are certain practical issues in implementation that require attention. Adopting a comprehensive, step-by-step approach to institutionalizing these programs (e.g., Aertsen et al., 2006; Edgar & Newell, 2006) provides significant promise. Needless to say, this is not an issue to take on lightly. There are strong feelings on both sides, and rightfully so. Program proponents must take a systematic approach to planning that is based in sound theory and solid research, and that includes all important stakeholders in the conceptualization, design, implementation and evaluation. Fortunately, the knowledge base in this area, both in terms of fully specified program models and good evaluations of same, are available in ways that were not the case for earlier pioneers. Proponents can build upon this foundation and demonstrate to those coming from various perspectives the win-win potential in victim-offender programming. Other issues reside in the higher-level, political realm (Cornwell, 2007). Although not completely influential at the political-level, again, empirically sound findings (such as those that have been referenced throughout this chapter) are quite useful in this age of evidence-based practice. 1 As anyone who has worked in policy development and with policymakers is well aware, supportive research will not always win the argument, but if appropriate outcome measures are chosen and, in particular, if real cost-savings can be demonstrated, the battle is at least half won. Victim-offender programs will require legislative support (read: funding) in order to sustain themselves past the pilot period in order to become longterm success stories. A key to this is to bridge the political divide between victim-oriented and offender-oriented politicians. If victim-offender programs do, indeed, effectively bridge the gap at the program level with positive outcomes for all involved (and we believe that they do), then concerted, persuasive arguments must be made by that broad base of stakeholders that should already be involved at the program-level. This speaks, once again, to the importance of effectively bridging divergent viewpoints by demonstrating the mutual benefits available to the various individuals and entities involved. On this very important funding-level, it cannot be overstated just how imperative it is that these programs come to enjoy their own new and independent support, to the extent possible. At the intersection of program, policy, research, and politics is the all important budget. One issue that has presented challenges in the past, beyond the perennial funding constraints of the current era, is determining which specific budget will support any new program. Given the significantly limited funding available for correctionsbased crime victim service programs generally, victim-offender programs will require other funding streams to support them. Otherwise the array of corrections-based victims services that have developed over a protracted period (National Institute of Corrections, 2004) may suffer, which would cre-

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ate a potentially insurmountable obstacle to these important victim-offender, restorative justice programs. Finally, and in closing, the instant authors, who bridged their own divergent (yet certainly complementary) primarily offender- and victim-oriented viewpoints, in order to co-author this chapter, do agree that victims’, survivors’ and co-victims’ concerns need to be paramount as these programs are planned and implemented, because these individuals are the ones who have been actually harmed. As stated at the outset of this chapter, victims are often skeptical about restorative justice programs. This skepticism often is warranted based on the ambivalence, hostility, and manipulation that some victims have previously experienced with some of the more decidedly offender-oriented schemes. A significant improvement in recent program development has been to put the victim in a more primary role in the process by including victims and their advocates as stakeholders in program development and implementation, by providing as much information and support as possible for victims who chose to participate in these programs, and by removing even the hint of coercion that victims have felt in the past that they somehow must participate in these programs. Victim-offender, restorative justice processes can emerge as an extremely important alternative program for both victims and offenders; and for both groups these approaches must be optional and voluntary. If they are, in fact, as promising as the current authors believe that they are, then they will be able to justify themselves as important and useful choices among the array of corrections programs available to offenders and their victims.

Note 1

One example of an active evidence-based corrections research agenda can be found at the Center for Evidence-Based Corrections at the University of California, Irvine: http://ucicorrections.seweb.uci.edu/

References Aertsen, I., T. Daems & L. Robert (ed.) (2006). Institutionalizing Restorative Justice. Portland, OR: Willan Publishing. Arizona Department of Correction (2005). Restorative Justice and Victim’s Rights Training. Arizona Department of Corrections News. Downloaded January 2, 2007, from http:// www.azcorrections.gov/News/2005/rjvt.html. Connecticut Department of Correction (2007). Offender Accountability Plan Manual. Wethsersfield, CT: Author. Downloaded December 9, 2007, from http://www.ct.gov/doc/lib/doc/pdf/ offenderAccountabilityplan.pdf. Claassen, R. (1996). Restorative Justice Principles. Downloaded November 24, 2007 from http://peace.fresno.edu/docs/rjprinc2.html.

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Cornwell, D.J. (2007). Doing Justice Better: The Politics of Restorative Justice. Winchester, UK: Waterside Press. Correctional Service of Canada (2002). Circles of Support and Accountability: A Guide to Training Potential volunteers. Correctional Services of Canada. Downloaded December 20, 2007, from http://www.csc-scc.gc.ca/text/prgrm/chap/circle/circle-support-manual_e.rtf. Crawford, D. & R. Bodine (1996). Conflict Resolution Education: A Guide to Implementing Programs in Schools, Youth-Serving Organizations, and Community and Juvenile Justice Settings; Program Report. Washington, DC: U.S. Dept of Justice Office of Juvenile Justice and Delinquency Prevention. Cysper, C.E. (2003). Restorative Justice Supplement to Training Manuals Proposed for use by Departments of Probation, Correction, and Parole. Katonah, NY: Kim Pathways. Department for Courts, New Zealand (2003). Facilitator Training Manual. Wellington, New Zealand: New Zealand Ministry of Justice. Downloaded January 4, 2008 from www.courts. govt.nz/crrj/manual/. Dignan, J. (2007). “The Victim in Restorative Justice.” In S. Walklate Handbook of Victims and Victimology. Portland: Willan Publishing. Dison, J. (in press). Restorative Justice in Prison in John Dussich and Jill Schellenberg (eds.) Restorative Justice in Unlikely Places, in production. Edgar, K. & T. Newell (2006). Restorative Justice in Prisons: A Guide to Making it Happen. Winchester, UK: Waterside Press. Forget, M. (2005). “Restorative Justice in Prisons: An Evolution from Victim Offender Mediation in 1998, to a Restorative Prison Wing in 2001, to a Holistic, Multi-Sector Project in 2004.” Paper presented at the Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand. Gaboury, M.T., C.M. Sedelmaier, L. Monahan & J. Monahan (2008). “A Preliminary Evaluation of Behavioral Outcomes in a Corrections-based Victim Awareness Program for Offenders.” Journal of Victims and Offenders, Vol. 3, No. 2, pp. 217-227. Gaboury, M.T. (1998). “Crime Victims’ Rights and Services in Connecticut: Department of Correction Training Materials.” Unpublished training materials, University of New Haven, West Haven, CT. Kazura, K., M. Temke, K. Toth & B. Hunter (2002). “Building Partnerships to Address Challenging Social Problems,” Journal of Extension, V40, No3, page numbers? McDonald, J., M. Hyndman, D.B. Moore, T. O’Connell & M. Thorsborne (1995). Family Group Conferencing: A Training Manual. Bondi Beach, AUS: Transformative Justice Australia. McDonald, J. & D.B. Mooew (1995). Real Justice Training Manual: Coordinating Family Group Conferences. Pipersville, PA: The Piper’s Press. Minnesota Department of Correction (2003). Facilitating Restorative Group Conferences. Trainer’s Guide Notes to Trainers. Saint Paul, MN: Author. Downloaded January 2, 2008 from www.corr.state.mn.us/rj/publications/facilityrjgroupconf.htm. Monahan, L.H., J.J. Monahan, M.T. Gaboury & P.A. Niesyn (2004). “Victims’ Voices in a Correctional Setting: Cognitive Gains in an Offender Education Program, Journal of Offender Behavior, 39 (3), pp. 21-33.

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National Institute of Corrections (2004). Corrections-based Services for Victims of Crime. Longmont, CO: U.S. Department of Justice, National Institute of Corrections Information Center (http://www.nicic.org/pubs/2004/019947.pdf). National Institute of Corrections (n.d.) NIC: Restorative Justice: Principles, Practices, and Implementation (Training Broadcast). Downloaded December 15, 2007 from http:// www.nicic.org/Library/017612. O’Connel, T., B. Wachtel & T. Wachtel (1999). Conferencing Handbook: The New Real Justice Training Manual. Pipersville, PA: The Piper’s Press. Prison Fellowship International (2008). Sycamore Tree Project, Downloaded November 24, 2007 from http://pficjr.org/programs/stp/. Ruth-Heffelbower, C.A. (in press). “Restorative Justice in Work with Sexual Offenders.” In John Dussich & Jill Schellenberg (eds.) Restorative Justice in Unlikely Places, in production. Ruth-Heffelbower, D. (2008). Private discussion with Pennsylvania corrections staff. Ruth-Heffelbower, D. (2007). Private discussion with inmate. Ruth-Heffelbower, D. (2001). “Reconciling Injustices: A Process for Indonesia.” Islamic Millennium Journal, 1, 1, Sept.-Nov: 56-62. Van Ness, D. & R. Weber (2008). “In-prison Victim Offender Dialogue in the U.S.” Accessed September 1, 2008 http://www.restorativejustice.org/editions/2008/september08/vod. Van Ness, D.W. & K.H. Strong (2006). Restoring Justice, Third Edition. Newark, NJ: LexisNexis/Matthew Bender.

CHAPTER 10 Female Sex Offenders – Does Anyone Really Get Hurt? Amie R. Schiedegger

In recent years attention has finally been given to the problem of female sex offenders. Most often when one thinks of a stereotypical “sex offender” one envisions a male perpetrator. For some, the thought of a female sex offender is almost impossible to imagine. Except for perhaps prostitution, it is difficult to think of a crime for which a female is thought of as the most likely perpetrator. Although a “benefit of the doubt” such as this might seem harmless on its face, upon closer examination one can begin to see how harmful this presumption can be. Assuming females are not or cannot be sex offenders is harmful to their victims, society, and even the offender who knows her behavior is wrong and needs help to stop offending. The assumption that women are not or cannot sexually victimize others hinders our full understanding of human behavior and criminal behavior specifically. In this chapter the author discusses relevant research relating to female sex offenders. Included is a discussion of the obstacles related to defining, researching, and understanding the problem. To fully examine the issue at hand, gender roles, sexual scripts, legal definitions of sexual offenses, and attitudes towards female offenders are explored. After evaluating the perpetrator side of the crime equation, attention shifts to the plight of victims of female sex offenders. The short- and longterm impact sexual victimization can have on an individual and the responses they often encounter from professional services are discussed. It is important to remember that victims of female sex offenders are a diverse population. Victims differ by age, gender, and relationship to the offender. Each of these variables is discusses within this reading. To illustrate the double standard between female sex offenders and male sex offenders, the problem of sexual misconduct between female teacher and adolescent male students is explored.

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Finally, the chapter concludes with a brief discussion of the cycle of victimization and offending.

Female Sex Offenders In comparison to their male counterparts, female sex offenders are severely under researched, underreported, and misunderstood. The terms “female” and “sex offender” do not seem to coincide with our mental images of either a “female” or a “sex offender”. The female sex offender violates both her gender role expectations and sexual scripts. These two terms are crucial to understand, as they are but two of the reasons female sex offenders have been thought of as merely an aberration of little significance (O’Hagan, 1989) rather than a legitimate social problem. Also, the legal definitions of various sex offenses hinder researchers’ abilities to gather accurate statistics about female sex offenders and the judicial system from adequately prosecuting female offenders. Below is a discussion of these variables and the impact they have on understanding female sex offenders. Before exploring some of the variables that hamper the study of female sex offenders, it should be pointed out that researchers, however flawed or limited in their scope or methodology, have been able to provide some insight into the typical characteristics of a female sex offender. Generally speaking, the typical female sex offender is 20-30 years old, white, victimizes acquaintances or relatives under the age of 13, and is equally as likely to victimize males as females (Vandiver, 2006; Vandiver & Kercher, 2004; Vandiver & Walker, 2002; Lewis & Stanley, 2000; Nathan & Ward, 2002).

Gender and Sexual Scripts Gender roles and sexual scripts are social constructs. Both consist of sets of behavioral expectations based on categorizing behaviors as “naturally” masculine or feminine (Rothenberg, 1998). Gender roles include expected likes and dislikes, as will as, public and private behaviors based solely on one’s sex (biological category). Gender roles are imposed upon us early in life. Shortly after birth, males and females are color-coded into “masculine” blue and “feminine” pink. Thus, the cycle of gender expectations begins. Everything from acceptable toy choices and play behaviors to school performance and career choices are influenced by gender role expectations. The key to understanding the importance of gender roles is in acknowledging that these roles are falsely assumed to be the “natural” behaviors and preferences for females and males. It logically follows then, that behaviors and preferences that do not adhere to assigned gender roles are presumed to be “unnatural.” As a gender, females are expected to be loving, nurturing, protective, passive, and even helpless in many situations (Rothenberg, 1998).

FEMALE SEX OFFENDERS – DOES ANYONE REALLY GET HURT?

Sex offending violates each of these gender roles and is thus unnatural for the female offender, perhaps even more so than for the male sex offender who is not expected to have these same gender qualities (Denov, 2003). Similar to gender roles, sexual scripts are socially constructed expectations of human behavior. Sexual scripts relate specifically to acceptable sexual behaviors and desires for females and males (Denov, 2001; Mendel, 1995; Byers, 1996). For example, traditional sexual scripts portray males as sexually assertive, persuasive, and even coercive by nature. Female scripts, on the contrary, assume females are naturally sexually passive, reluctant, and protective against unwanted sexual advances. Even wanted sexual encounters are expected to contain an element of restraint or reservation for females. Female sex offenders clearly violate female sexual scripts. Their actions are not sexually passive, reluctant, or protective in nature and thus violate the “natural” sexual inclination and society’s assigned expectations of female sexual behavior.

Legal Definitions of Sexual Offenses The biases generated by both gender role expectations and sexual scripts have impacted the legal definition of sexual offenses. Historically sexually based offenses have been written using gendered language that assumes a male is the perpetrator and a female is the victim (Garland, 2005). The language used in some criminal statutes includes wording such as; he, penis, and ejaculation relating to the offender and; she, vagina, and penetration relating to the victim. Females were incapable of committing some sexual offenses because the definition of the crime excluded them as perpetrators. Current trends have brought this injustice to light and many states have redefined sexual offenses to include gender-neutral language (Denov, 2003). Some states have adopted language acknowledging the perpetrator as; he/she, the offender, or simply they. Similarly, the use of the words she or female have been excluded from the definition of some crimes and replaced with terms such as “the victim” or any of the gender neutral terms listed above in reference to the injured party. Making such changes results in a more accurate and realistic justice system in relation to sexual offenses. Changing the language of criminal statutes results in the ability for females to be charged with sexual offenses and also for males to be acknowledged as the victim of such offences. Although changes have occurred in some states and for some offenses, one glaring error exists in the federal definition of forcible rape. Forcible rape is classified as a Part I offense within the Uniform Crime Report (UCR) which is compiled by the Federal Bureau of Investigations (FBI) each year. It is beyond the scope of this chapter to discuss all of the shortcomings of the UCR. However, evaluating the definition of forcible rape used by the federal government illustrates one major flaw in the UCR. Differing definitions of

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crimes from state to state and the federal government results in inaccurate statistics for many crimes, including forcible rape. The definition of forcible rape used by the FBI is “the carnal knowledge of a female forcibly and against her will. Assaults and attempts to commit rape by force or threat of force are also included…” (FBI, 2006). Sexual attacks on males are recorded as aggravated assaults or lumped into the generic category “sex offenses” depending on the circumstances and the extent of injuries. As reported in the 2006 UCR, 224 females were arrested for forcible rape in 2005. By definition then, the female offenders had to have victimized other females to be classified as forcible rape. For all other sexual offenses, other than forcible rape and prostitution, 5,508 females were arrested in 2005. As one can surmise, definitional differences and limitations for sex offenses, including forcible rape, results in underreporting female sex offending, within official statistics. Despite the limitations and shortcomings of forcible rape and sexual offense laws, there is little doubt that males commit the vast majority of sexual offenses (Denov, 2003; Snyder, 2000; FBI, 2006). Researchers consistently find rates of only 1-6 percent of all sexual offenses committed by females (FBI, 2002; Snyder, 2000; Home Office, 2001; Canadian Center for Justice Statistics, 2001). This is not to say female sex offending is not an important issue merely because it appears to be a rare phenomenon. As discussed below, victims of female sex offenders can suffer in a variety of ways from their victimization. For some victims the fact the offender was a female is additionally damaging.

Victims of Female Sex Offenders Victims of sexual offenses regardless of age, sex, or relationship to the offender consistently underreport victimization. Fear of reprisal and embarrassment are two common reasons victims give for not reporting sexual victimization to authorities, parents, or friends. When victims do report sexual assaults, the accusation is often met with a process of “victim blaming” thus victimizing the individual again. For the victims of female sex offenders these variables can be magnified by the fact the assailant was a female. Below is a discussion of some of the effects of victimization, victim blaming responses by professionals and non-professionals, and a look at a specific group of offenders and victims who are rapidly gaining national attention, female teachers and adolescent male students.

Effects of Victimization Much of the harm caused by female sex offenders is related to the gender role expectations and sexual scripts of males and females discussed above.

FEMALE SEX OFFENDERS – DOES ANYONE REALLY GET HURT?

Because females are suppose to be loving, nurturing, and protective, violating these assumptions can result in an even greater sense of harm for the victim. Researchers have found that victims of female perpetrated sexual abuse report an even greater sense of shame, damage, and suffering than victims of male offenders (Denov, 2003; Elliott, 1993; Rosencrans, 1997). In Rosencrans’ (1997) study of women and men who reported being sexually abused by their mothers, 80 percent viewed the abuse as the “most hidden” aspect of their lives. Only 3 percent of the women, and none of the men, told anyone about the abuse. Male victims of female sexual abuse can suffer from the conflict between their male sexual scripts and gender expectations and those of the female perpetrator. Often times males report questioning their masculinity after being victimized by the “weaker” sex (Struckman-Johnson & Struckman-Johnson, 1994). Because some males experience erections and ejaculation during an assault, they might question if the experience wasn’t wanted sexual activity rather than an assault (Walker, Archer & Davies, 2005). On the contrary, Redmond, Kosten, and Reiser (1983) report erections can be a common involuntary response during times of intense pain, anxiety, panic, and/or fear. One could presume that during a sexual assault these might be the very emotions a male is experiencing and not sexual enjoyment. It is important to remember that female sex offenders can force or coerce their victims into a range of sexual activities other than intercourse such as kissing, genital touching, fellatio, or cunnilingus. For many of these behaviors no outward displays of arousal exist for female or male victims. Walker, Archer, and Davies (2005) report the long-term effects of sexual assault to include anxiety, depression, anger, feelings of vulnerability, loss of self-esteem, and self-blame. Such responses to sexual victimization are consistent throughout the volumes of research about both female and male victims of rape and sexual abuse.

Victim Blaming Victim blaming is a process by which the victim of a crime is held responsible for their victimization, to some degree. Because of the long-held belief that females cannot or do not sexually victimize others, victim blaming helps one to explain the behavior as something the offender might not have done were it not for the behaviors of the victim. Victim blaming for female sex offenders occurs most often when the victim is male. Davies, Pollard, and Archer (2006) presented research subjects with scenarios of sexual assaults in which the victim and perpetrator’s sex and sexual orientation varied. The greatest amount of victim blaming occurred when the victim was a heterosexual male sexually assaulted by a female. The researchers concluded that study participants did not consider sexual assaults to be as traumatic for male victims when the perpetrator was a member of the sex to which he was normally attracted. In addition, such victims were perceived as having done something

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to provoke the assault or not enough to stop it. After all, male sexual scripts assert that men are always ready, and willing, to have sex and should thus enjoy sex with a willing female. Davies, Pollard, and Archer (2006) reported that one male participant in their study wrote that this scenario was “Every man’s fantasy” (2006:287) thus how could it be bad. These findings were in keeping with prior research in which participants thought male victims of sexual assault by females were more likely to have encouraged the episode and to have derived pleasure from it (Smith, Pine & Hawley, 1988). Victim blaming is not limited to hypothetical scenarios presented to college students solely for research purposes. Victim blaming occurs within social services, law enforcement, and therapeutic environments as well. The difference between the aforementioned research and the helping professions listed above is that each of the above is charged with assisting victims and/or investigating and arresting female offenders. By applying traditional sexual scripts of women as incapable of sexually victimizing others, these professions dismiss the harm that is caused to the victim. Researchers have shown ambivalence towards allegations of female sexual abuse by social workers, law enforcement officers, and psychiatrists (Denov, 2003). Cases involving female perpetrators are less likely to result in investigation, arrest or prosecution by both law enforcement and social services. Nelson (1994) recounts the crass attitude and remarks of a police officer when asked why a female babysitter accused of sexually abusing a 5-year-old boy was not charged. The officer’s response, “I wish that someone that looked like her had sexually abused me when I was a kid…the kid’s mother is overreacting because someone popped her kid’s cherry. Hell, it’s every guy’s dream” (1994:74). Note that the officer was talking about a 5-year-old victim. Even psychologists were found to perceive boys having sex with an adult woman as a “coming of age” experience rather than abuse (Richey-Suttles & Remer, 1997; Denov, 2001 & 2003; Hatherton & Beardsall, 1998). Clearly a double standard exists between male and female sex offenders and that double standard carries over to how victims are perceived and treated. Would a 5-year-old girl be perceived as “coming of age” if an adult male sexually abused her?

Female Teachers and Adolescent Male Student Victims The problem of inappropriate sexual behaviors between educational personnel and students is not new. Teachers, coaches, administrators, classroom aids, bus drivers, janitors, and even cafeteria workers have been accused and/or convicted of a variety of sexual offenses against students. Although all of these types of abuse warrant thorough research and discussion, this section focuses only on adult female and adolescent male sexual abuse. It is within this dynamic that sexual scripts, victim blaming, and professional and public dismissal of the harm caused by female sex offenders can be illustrated best.

FEMALE SEX OFFENDERS – DOES ANYONE REALLY GET HURT?

One of the first cases to garner national attention about the problem of female teacher and male student sexual abuse was that of 35-year-old, sixthgrade teacher, Mary Kay Letourneau and 13-year-old Vili Fualaau. The nation was shocked to learn of the ongoing sexual “relationship” between the married mother of four and her former student. At the time of the trial, Letourneau was pregnant with Fualaau’s child. Letourneau plead guilty to second-degree rape of a child and was sentenced to six months in jail and three years of sexual deviance treatment. One additional condition of her sentence was that she was to have no contact with the victim for the rest of her life (Stennis, 2006). Many were outraged by the leniency shown by the court in this case. If the victim had been female and the offender male would the sentence have been the same? Would the situation have been referred to as a “relationship”? The saga continued when, within two weeks of being released from jail, police found Letourneau and Fualaau parked together in a car. Having violated the conditions of her parole, Letourneau was sent to prison to serve the remaining 89 months of her original sentence. Before turning 18-yearsold Fualaau fathered a second child with Letourneau. After her release from prison, the 42-year-old Letourneau and 21-year-old Fualaau married. However, before they could get married Fualaau had to petition the court to remove the 1997 sentence banning them from having contact. Additional examples of female teacher and male student abuse include the case of 33-year-old Gwen Cardozo and 17-year-old Victor Gomez. As a result of a plea agreement Cardozo was sentenced to probation, sex offender registration, and no contact with the victim. Two months after the plea agreement was made, a shotgun brandishing Gomez forced his way into Cordozo’s apartment, knowingly violating the court’s restraining order. Was this the act of a “jealous lover” or a “scorned victim”? Because Gomez was 18-years-old at the time of the incident, he then faced charges for his actions. Rebecca Boicelli, like Letourneau before her, conceived a child by a 16year-old former student. While on maternity leave, police investigated sexual abuse allegations about the teacher. After the birth of her child, Boicelli was hired to teach in a nearby school district. Neither the school board nor the police told her new employer about the sexual abuse investigation (Irvine & Tanner, 2007). In 2004 Debra Lafave, a 23-year-old reading teacher was charged with criminal sexual conduct with a minor after allegedly having sexual relations with a 14-year-old student. The abuse reportedly occurred at her home, at school, and in her vehicle. In 2005 Lafave rejected a plea agreement opting to go to trial on the charges. Her attorney claimed there was no abuse because Lafave suffered from a mental disorder and the boy pursued his teacher. One of the most recent cases to garner national attention is that of 25year-old Kelsey Peterson and a 13-year-old former student. Peterson was the student’s math teacher when he was 11 years old. Rumors of inappropriate conduct between the two surfaced in August 2007. In an all too typical

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response to this type of situation, Peterson’s principle gave her a verbal warning about alleged behaviors. After receiving the warning, Paterson told the boy he had to stay away from her. Within a month, the two were communicating again. By October 2007 police were investigating allegations of sexual contact between the two. In letters found in Peterson’s apartment, the boy professed his love for her and stated their relationship was not just about sex. Peterson was placed on paid leave October 25, 2007 pending the outcome of the investigation. The next day, the two left the Nebraska town in which they lived and traveled to Mexico. Police in Baja, California captured the couple one week later. The boy told authorities the couple had sex twice. As a result, Peterson faces federal charges of crossing state lines to have sex with a minor in addition to state charges in Nebraska. The Lexington, (NE) school board voted to fire Mrs. Peterson and revoke her state teaching license (Spagat, 2007). The U.S. is not the only country to experience this problem. In 2002 Amy Gehring, a 26-year-old Canadian supply teacher working in the U.K., was acquitted on charges of sexually assaulting three male students, ages 14-15. At the time of the jury’s decision, they were unaware that Gehring had been investigated previously by police and social services for having sex with a young boy and kissing another at her first teaching assignment. Mrs. Gehring stated, “I confess to liking younger men. They are fitter and better looking, and good looks are important to me” (Amiel, 2002:20). One must question Mrs. Gehring’s definition of “younger men” given that her victims were 14to 15-year-old boys, not “younger men.” Cases such as these illustrate two significant problems in female teacher male student sexual abuse. The first problem is victim blaming, which has been discussed previously. The second problem is referred to as “passing the trash” which will be discussed further below. In many of the cases listed above, the victims have been held responsible for provoking, encouraging, or contributing to their victimization. Amy Gehring said, “I lost count of the number of boys who scrawled their phone numbers on scraps of paper and threw them into my handbag.” The reporter interjects that such behavior on the part of the boys “makes a mockery of the notion that any of them were victims” (Amiel, 2002:20). Vili Fualaau impregnated Mary Kay Letourneau twice before he was of legal age. The second pregnancy was after her conviction for sexually abusing him. Some find it hard to see him as a “victim” when he seems to be acting under his own free will. Victor Gomez forced his way into his abuser’s apartment with a shotgun, after she plead guilty to abusing him, in order to be with her. Kelsey Peterson’s victim continued having contact with her after she told him to stop, wrote her love letters, and fled with her to Mexico. Are these the actions of victims or, as male sexual scripts posit, natural reactions for males who are ready, willing, and able to have sex with a willing female? Are we not perpetuating the “Mrs. Robinson myth” that every young boy’s fantasy is to be initiated into sex by an older woman (Valios, 2002)? Paul Roffey, a

FEMALE SEX OFFENDERS – DOES ANYONE REALLY GET HURT?

Director of Adolescent Services, stated, “I’m not sure what the difficulty is in seeing what women do as child abuse. Boys may believe they are giving consent, but in the cold light of day, when the woman is not there controlling them…There is a dangerous presumption that a boy would not find it a negative experience” (Valios, 2002:19). “Passing the trash” is a phrase used to describe situations where school employees are allowed a number of options, other than official sanctions, when allegations of sexual misconduct arise. Rather than investigate and deal with the problem, administrators allow the accused to leave quietly or handle the situation internally to avoid negative publicity and public scrutiny (Lilienthal & Mowrey, 2006). Because there is no investigation and no record of the misconduct, the offender is free to apply for jobs elsewhere and often continue their abusive behaviors. Ironically, many of these offenders are also the most beloved and respected people at the school. Shakeshaft (2004) reports it is not unlikely to see “Teacher of the Year” awards on the walls of the offender’s classroom. Coaches who offend can have winning records in their sport and thus parents and students, who are unaware of the misconduct, hate to see them go. This beloved status can add to the power offenders have over students and the reluctance of victims to report their victimization to authorities. Educator Sexual Misconduct: A Synthesis of Existing Literature, (Shakeshaft, 2004), is the most comprehensive collection of research about this topic to date. In her report, Shakeshaft reviews volumes of literature related to sexual misconduct and educators and offers suggestions as to ways to correct the problem. Of particular interest in this chapter is her findings related to female sexual offenders and students. When official data, such as investigations into misconduct allegations, were used to calculate the rates of female and male offenders, males accounted for 96 percent of the offenders and females only 4 percent. Keep in mind, such statistic might reflect administrative responses to allegations and thus be biased by decisions to investigate allegations or not (i.e., passing the trash). In stark contrast to the use of official reports, when students were asked about sexual misconduct at school they reported 57 percent of the offenders were male and 43 percent were female. Similarly, when victim-reporting rates were examined, official sources showed greater percentages of female students reporting sexual abuse than male students. However, when students were asked about victimization female and male students reported similar rates. The conclusion is that males experience similar rates of abuse as females but are even more reluctant to report their victimization or perhaps to define what happened to them as abuse, especially when the offender is female. Outraged by the differential treatment of male students victimized by female teachers, Stennis (2006) wrote, “Equal Protection Dilemma: Why Male Adolescents Students Need Federal Protection from Adult Female Teachers Who Prey on Them.” In his article, Stennis asserts the current treatment of male victims violates the victim’s Constitutional right to equal protection. Responses to this problem on the part of the criminal justice system are woe-

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fully inadequate. Laws are not written using gender-neutral language and thus do not acknowledge males as victims of sexual abuse, law enforcement does not treat male victims of sexual abuse with respect, and courts offer lenient sentences and plea bargains to female offenders. Stennis also points out that many state courts require male victims of sexual abuse to financially support any children resulting from the abuse, once the male reaches the age of majority. “In essence, family courts view a male victim’s parental obligation separate from the abusive act that created the child” (2006:402).

Conclusion Female sex offenders, like their male counterparts, contribute to a cycle of sexual victimization. Researchers have shown that victims of sexual abuse are more likely to victimize others in the future (Lewis & Stanley, 2000; Denov, 2001; Chandy, Blume & Resnick, 1997). Female sex offenders are likely to have been the victim of sexual abuse at some time in their life. Denov (2003) found 72 percent of the female sex offenders in her study had been victims of sexual abuse. In a study of men who are sexually aggressive towards women, 80 percent had been sexually abused by a female during childhood (Denov, 2001). Statistics such as these confirm the notion that without stopping sexual victimization we will not be able to stop the cycle of abuse. Also imperative to ending sexual victimization is understanding the impact gender roles and sexual scripts have on society. Both hinder our understanding of human behavior in general. False assumptions about which behaviors are “natural” for females and males stifle our ability to see people as diverse individuals. Enforcing gender roles and sexual scripts in the case of female sex offenders, adds to the problem of underreporting and prevents victims from seeking help from law enforcement, social services, and therapists. Finally, blaming the victim of sexual abuse for their victimization is illogical and unjust. Female sex offenders might account for only a small percentage of sex offenders but any amount is too much.

References Amiel, B. (2002). “Amy Gehring’s Legacy.” Maclean’s, 115:20. Spagat, E. (2007). “U.S. Case Illustrates Patterns in Teacher Sex Abuse Cases.” Associated Press, (November 11). Byers, E. (1996). “How Well Does the Traditional Sexual Script Explain Sexual Coercion?” Journal of Psychology and Human Sexuality, 8, 6-26. Canadian Center for Justice Statistics (2001). Adult Criminal Court Data Tables 1999/00. Ottawa, ON: Canada.

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Chandy, J.M., RW. Blum & M.D. Resnick (1997). “Sexually Abused Male Adolescents: How Vulnerable Are They?” Journal of Child Sexual Abuse, 6:1-16. Davies, M., P. Pollard & J. Archer (2006). “Effects of Perpetrator Gender and Victim Sexuality of Blame Toward Male Victims of Sexual Assault.” The Journal of Social Psychology, 146:275-291. Denov, M. (2003). “The Myth of Innocence: Sexual Scripts and the Recognition of Child Sexual Abuse by Female Perpetrators.” The Journal of Sex Research, 40: 303-314. Denov, M. (2001). “A Culture of Denial: Exploring Professional Perspectives on Female Sex Offending.” Canadian Journal of Criminology, 43, 303-329. Elliott, M. (1993). The Female Sexual Abuse of Children. London, England: The Guilford Press. Federal Bureau of Investigation (2006). Crime in the United States: Uniform Crime Report. Washington, DC: U.S. Department of Justice. Federal Bureau of Investigation (2002). Crime in the United States: Uniform Crime Report. Washington, DC: U.S. Department of Justice. Garland, T. (2005). “An Overview of Sexual Assault and Sexual Assault Myths.” In F. Reddington & B. Wright Kreisel (eds.) Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System, pp. 5-27. Durham, NC: Carolina Academic Press. Hetherton, J. & L. Beardsall (1998). “Decisions and Attitudes Concerning Child Sexual Abuse: Does the Gender of the Perpetrator Make a Difference to Child Protection Professionals?” Child Abuse and Neglect, 22:1265-1253. Home Office (2001). Statistics on Women and the Criminal Justice System. London, England: Her Majesty’s Stationery Office. Irvine, M. & R. Tanner (2007). “Sexual Misconduct Plagues U.S. Schools.” Associated Press, (October 20). Lewis, C.F. & C.R. Stanley (2000). “Women Accused of Sexual Offenses.” Behavioral Science and the Law, 18:73-81. Lilienthal, S. & J. Mowrey (2006). “Stop ‘Passing the Trash’: Addressing the Circulation of Repeat Sex Offenders in Coaching.” Journal of Physical Education, Recreation & Dance, 77:3-5 & 54. Mendel, M.P. (1995). The Male Survivor: The Impact of Sexual Abuse. London, England: Sage Publications. Nathan, P. & T. Ward (2002). “Female Sex Offenders: Clinical and Demographic Features.” The Journal of Sexual Aggression, 8:5-21. Nelson, E. (1994). “Females Who Sexually Abuse Children: A Discussion of Gender Stereotypes and Symbolic Assailants.” Qualitative Sociology, 17:63-87. O’Hagan, K. (1989). Working with Child Sexual Abuse. Milton Keynes, U.K.: Open University Press. Redmond, D.E. Jr., T.R. Kosten & M.F. Reiser (1983). “Spontaneous Ejaculation Associated with Anxiety: Psychophysiological Considerations.” American Journal of Psychiatry, 140:1163-1166. Richey-Suttles, S. & R. Remer (1997). “Psychologists’ Attitudes Toward Adult Male Survivors of Sexual Abuse.” Journal of Child Sexual Abuse, 6:43-61.

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Rothenberg, P. (1998). Race, Class, and Gender in the United States: An Integrated Study. New York, NY: St. Martin’s Press. Shakeshaft, C. (2004). Educator Sexual Misconduct: A Synthesis of Existing Literature. Washington, DC: U.S. Department of Education. Smith, R.E., C.J. Pine & M.E. Hawley (1988). “Social Cognitions about Adult Male Victims of Female Sexual Assault.” Journal of Sex Research, 25:101-112. Snyder, H. (2000). Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident and Offender Characteristics. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. Stennis, J. (2006). “Equal Protection Dilemma: Why Male Adolescent Students Need Federal Protection from Adult Female Teachers Who Prey on Them.” Journal of Law and Education, 35:395-403. Struckman-Johnson, C. & D. Struckman-Johnson (1994). “Men Pressured and Forced into Sexual Experience.” Archives of Sexual Behavior, 23:93-114. Valios, N. (2002). “Teacher Sex Allegations Expose Flaws in Regulation of Supply Agencies.” Community Care, 1409:18-19. Vandiver, D.M. (2006). “Female Sex Offenders: A Comparison of Solo Offenders and CoOffenders.” Violence and Victims, 21:339-354. Vandiver, D.M. & G. Kercher (2004). “Offender and Victim Characteristics of Registered Female Sexual Offenders in Texas: A proposed Typology of Female Sexual Offenders.” Sexual Abuse: A Journal of Research and Treatment, 16:121-137. Vandiver, D.M. & J.T. Walker (2002). “Female Sex Offenders: An Overview and Analysis of 40 Cases.” Criminal Justice Review, 27:284-300. Walker, J., J. Archer & M. Davies (2005). “Effects of Rape on Men: A Descriptive Analysis.” Archives of Sexual Behavior, 34:69-80.

CHAPTER 11 Reconciling Controversies – Is Education the Panacea? Laura J. Moriarty

The underlining threads that tie together all the chapters in this reader are (1) a misunderstanding of the criminal justice system; (2) a general lack of knowledge regarding the criminal justice system; and/or (3) too narrow a focus or perspective of victimology. One clear finding in the victimology literature is that the average citizen really does not understand how the criminal justice system operates. And, perhaps more troublesome is the observation that what the citizen does know about the system, he or she has learned from watching television. What happens in a typical 60-minute police or court drama is not even remotely close to reality. But it often sets the stage for what victims expect from the system. Most victim and witness assistance programs, at a minimum, provide victims and witnesses with an orientation to the system (Jerin, Moriarty & Gibson, 1995; Moriarty, Jerin & Pelfrey, 1998). This orientation, however, is more practical than theoretical, that is, the advocates typically explain the daily operations of the criminal justice system, leaving out the historical and theoretical underpinnings of the system. Perhaps if the educational process included more of a theoretical orientation, there would be less controversy in the system. The narrow focus of the discipline includes primarily the conceptualization and operational definition of “victim,” and subsequently, the focus of inquiry. Many of the debates or issues discussed in this reader result from pitting the victim (one person) against the offender (one person) or vice versa. Victimology as a field of study relies on a rather narrow definition of “victim” – one that is restrictive. The typical focus of victimology is on victimization that has been defined as the “harming of any single victim in

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a criminal incident” (Rush, 2000:335). Such a definition excludes harmful events where groups of individuals are injured. Additionally, such a definition ignores groups or entities that harm individuals. As Eigenberg and Garland assert in Chapter 2, when we focus on this narrow definition of “victim,” it makes us, as a discipline, less likely to examine other causes of victimization. In particular, Eigenberg and Garland state with such a limited focus, the discipline does not look at societal factors which may explain victimization. They assert that such a narrow focus perpetuates old, tired debates, such as blaming victims for their victimization. Scheidegger points out that males who are victimized by older females, particularly in a school setting, are indeed victims. There is a tendency to think that males in these situations would relish the idea of being with an older woman. However, Scheidegger dispels this myth and reminds us that these young men are victims too. Likewise, McConnell, focusing on one specific issue, fear of crime, makes a similar argument in terms of measuring this concept. She maintains that fear of crime, as currently measured, is problematic because the perspective used to measure the concept is somewhat limited. Her suggestion to evoke an interdisciplinary measurement requires expanding the focus or perspective of victimology. While all the authors in the reader do not specifically point to these precise reasons for the controversies, they do offer solutions to their individual controversies that might fall into one or more of these categories. As way of illustration, Orvis and Reitzel in Chapter 1 and Johnson and Morgan in Chapter 8 examined two issues that seem to be at the crux of what victims want from the criminal justice system. For example, in Chapter 1, Orvis and Reitzel discuss a federal victims’ bill of rights, and in Chapter 8, Johnson and Morgan discuss victim impact statements. Ironically, if a federal victims’ bill of rights was passed, victim impact statements would be guaranteed to victims in all states. In both chapters, the authors argue against adding a new amendment to the constitution or using victim impact statements for the same reason – more than 230 years of distinguished legal history where the state is the victim. Common law already has evolved a forum for protecting the rights of crime victims, that being the civil courts. Therefore, a federal amendment is redundant. The point is this – does the average citizen – who is likely to become the next victim – know the civil court is an effective remedy for redress? Most likely, the answer is no – thus, it is essential that the general public be educated about the different court systems, including the purposes and basic philosophy of each. Moreover, Johnson and Morgan use the same fundamental argument but also add that using victim impact statements shifts the focus from the facts of the case to the character and reputation of the defendant – a significant shift in the process – that has no bearing on the blameworthiness of the defendant. Such a focus then is not appropriate or fair given the current philosophy of the criminal justice system.

RECONCILING CONTROVERSIES – IS EDUCATION THE PANACEA?

Other chapters in this reader focus on issues that might be resolved with education. Chapters 3, 7, and 9 address specific topics including same sex intimate partner violence, cyberstalking and female sex offenders. All three topics are related in that the general public is somewhat ignorant or misinformed about the topics. For example, in the cyberstalking chapter, Parsons-Pollard and Moriarty argue that cyberstalking is just as problematic as stalking with some of the same outcomes being seen in both types of victimization. They argue that different crime prevention strategies need to be created specifically to thwart cyberstalking. What is used to curtail stalking does not automatically apply to cyberstalking. Sullivan and Kuehnle point out that same sex intimate partner violence is challenging as it has been increasing in occurrence yet it often remains hidden with the public. Therefore, how much same sex intimate partner violence exists is unknown and perhaps more troubling with it remaining hidden there is concern about how to prevent it. Swanson and Ruth-Heffelbower and Gaboury in separate chapters discuss whether victim and offenders should meet. The average citizen would most likely think that such meetings are unproductive and unfair to victims. However, Swanson advocates for such meetings and Ruth-Heffelbower and Gaboury go one step further by introducing the concept of mediation between offenders, victims and correctional staff personnel. In Chapter 4, Grant and Otto recommend that media outlets withhold from publishing the names of rape victims. Some of their arguments in favor of printing such names focus of educating the public. However, until the public really understands rape – that it is about power, not sex – and subsequently demystifies it – including dispelling commonly held myths about rape – they advocate protecting victims by not revealing their identities. Rape myths are particularly imbedded in the socialization process, resulting in dogmatic beliefs about the crime. For example, as Grant and Otto point out, in the year 2008 we are still debating whether rape is a crime of power or a sexual act. What seemed to be resolved many years ago by Brownmiller (1975) and others is once again resurfacing because two evolutionary biologists contend that rape is a sexual act that occurs because men have natural urges to procreate. Clearly, educating the masses is quite a daunting task when it comes to rape and sexual assault.

How Viable Are These Solutions? While the overarching solutions seem to be education and a change in the focus of a discipline, these are not as easily implemented as we might think. For example, even if we educate the general public about the criminal justice system, including its origins, legal and historical development, as well as the current state of the system, there is no guarantee that the public would view the system in a rational manner instead of an emotional manner. Thus, increasing the awareness or educating the public on a particular issue

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may result in that information falling on deaf ears. For example, the eloquent arguments made by Greg Orvis and John Reitzel as to why we do not need a federal victims’ bill of rights may be ignored because the emotionality of actual victimization, along with our increasing levels of fear of crime, may dominate even our most basic ability to understand simple concepts. To illustrate, victims’ rights legislation is found in every state. The rights or services afforded to victims may vary slightly by state but the majority of the states provide information about the criminal justice system, allow for victim impact statements, have restitution or compensation plans, provide notification, have separate waiting areas, and provide protection assistance (e.g., restraining orders). As Orvis and Reitzel point out (Chapter 1), with such services or rights being provided on the state level, is there really a need for a federal statute? If the general public understood that the rights afforded to “offenders” have been misidentified as “offender rights” as opposed to what they truly are – “rights of the accused,” would this make a difference in the public demand for a victims’ rights amendment to the Constitution? I believe so. The general public needs to understand that those arrested are only “accused” of a crime. They are not yet tried and convicted. Too many times, with the media coverage of crime, the general public believes that person identified on the medium is a criminal. This perception promotes fury and anger when it is believed that these “criminals” are provided an inordinate amount of “rights” when the victim is viewed to have none. What needs to be remembered is that these “rights” are safeguards, established in the Constitution, clearly articulated in the Bill of Rights, to make certain citizens are protected. Still, the average citizen is not aware of this and is not reminded of it when the criminal justice system is being explained. Thus, victims often do not understand why the system operates as it does. They get a thorough overview of how the system works but they are not educated on the basic principles underlying the development and maintenance of the system.

Conclusion Is education the answer to reconciling these controversies? The answer is a resounding yes. There are different levels within the educational process. As was demonstrated in this reader, there is a clear need to educate the general public regarding the criminal justice system. Not only in terms of its daily operations but also in terms of the foundation and theoretical underpinnings of the system. There also is great need to encounter inaccurate perceptions formed by the media. The public often confuses entertainment with reality. Thus, what victims expect from the criminal justice system is tainted by the media. This leads to misunderstandings regarding the criminal justice system and what can actually be accomplished within the system.

RECONCILING CONTROVERSIES – IS EDUCATION THE PANACEA?

On another educational level, the discipline of victimology must grow. In other words, the narrow focus of victimology is hindering any possible advancement that might reconcile the issues. With a narrow focus that pits victims against offenders, there is no opportunity, interest, or inquiry into other areas of explanation, such as examining the role the social structure plays in causing victimization.

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Contributors’ Biographical Information Helen Eigenberg, Ph.D. (Sam Houston State University, 1989) is Professor and Department Head in the Criminal Justice Department at the University of Tennessee at Chattanooga. Her research interests include women and crime, victimology, violence against women, institutional corrections, and male rape in prisons. She has published a book on domestic violence: Woman Battering in the United States (2002). She also has published in a wide variety of journals including: American Journal of Police, Women and Criminal Justice, Criminal Justice Review, Journal of Criminal Justice Education, Journal of Criminal Justice, Justice Quarterly, and The Prison Journal. She currently serves as Editor of Feminist Criminology. She also has served on the Tennessee State Coalition Against Domestic and Sexual Violence and currently serves on the Tennessee Victims of Crime State Coordinating Council (2006-2010). Mario Thomas Gaboury, J.D. (Georgetown University Law Center, 1987), Ph.D. (Pennsylvania State University, 1983) is currently Professor of Criminal Justice and Chair of the Department of Criminal Justice at the University of New Haven, where he is also the Oskar Schindler Humanities Foundation Endowed Professor (2007-2009). His research interests include victimology, restorative justice, community policing, human trafficking, and humanitarianism. He is President of the American Society of Victimology and also the Working Group Chair for the National Victim Assistance Academy, Office for Victims of Crime Training and Technical Assistance Center, U.S. Department of Justice. Dr. Gaboury has published numerous articles, book chapters, and training materials, with his most recent scholarly articles appearing in Offender Rehabilitation, Victims and Offenders and Forensic Nursing. Tammy S. Garland, Ph.D. (Sam Houston State University, 2004) is an Assistant Professor at the University of Tennessee at Chattanooga where she teaches courses in victimology, juvenile justice, media and crime, and drugs and crime. Her current research emphasis includes victimology, victimization of the homeless, women and crime, popular culture, and drug abuse. Her publications can be found in Criminal Justice Studies and The Southwest Journal of Criminal Justice.

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Patricia H. Grant, Ph.D. (Virginia Commonwealth University, 2002) is currently an Assistant Professor in Criminal Justice at the Wilder School at Virginia Commonwealth University. Her research interests include victims of crime and victimology, disproportionate minority confinement, affirmative action and minority issues in criminal justice. She has authored An Instructor’s Manual for Victims of Crime and co-authored several book chapters including: “Missing Persons and the Media: Sorting through perception and reality in Current Issues in Victimology Research, Second Edition. She has also co-authored many scholarly articles. She is the co-Book Review Editor for the Journal of Criminal Justice Education and serves on the Academy of Criminal Justice Sciences Academic Review Committee. Ida M. Johnson, Ph.D. (Florida State University, 1987) is current Chair of the Department of Women’s Studies and Professor in the Department of Criminal Justice at the University of Alabama (Tuscaloosa). Her research interests include domestic violence, date rape, and school violence. She is the co-author of Forced Sexual Intercourse in Intimate Relationships (w/ Robert T. Sigler, Darmouth Publishing Company, 1997). Forced Sexual Intercourse in Intimate Relationships was named as a Choice’s Outstanding Academic Book for 1997. She has published numerous scholarly articles, book chapters, and non-refereed articles. Her most recently publications appear in the Journal of Criminal Justice and Free Inquiry in Creative Sociology. Kristen Kuehnle, Ed.D. (Harvard University, 1979) is currently an Associate Professor in the Department of Criminal Justice at Salem State College. Her research interests include same sex victimization, bias crimes, domestic violence, police discretion, and testifying. She has published more than seven scholarly articles and non-refereed articles with her most recent on same sex victimization, police reporting practices. Elizabeth M. McConnell, Ph.D. (Sam Houston State University, 1989) currently chairs the Criminal Justice Department at the University of Houston Downtown and has been teaching in criminal justice programs since 1979. Her publications are diverse in that they include a co-authored book, book chapters, referred journal articles as well as several externally-funded research grants. She has practical experience in corrections having been a corrections officer, correctional counselor, and probation/parole officer. She has served on numerous university and professional committees and is an experienced evaluator of criminal justice degree programs. She is a champion of university globalization initiatives such as study-abroad opportunities for students and faculty exchanges for scholars, both of which she has administered. Etta F. Morgan, Ph.D. (University of Alabama, 1999) is currently an Assistant Professor and Interim Coordinator of Criminal Justice at Jackson State University. Her research interests include female criminality, sentencing and corrections. She has published several scholarly articles and book chapters.

CONTRIBUTORS’ BIOGRAPHICAL INFORMATION

Laura J. Moriarty, Ph.D. (Sam Houston State University, 1988) is currently a Professor and Vice Provost for Academic and Faculty Affairs at Virginia Commonwealth University. Her research interests include victims of crime, fear of crime, and victimology. She is the co-author or co-editor of six books: Victims of Crime (w/Robert Jerin, Nelson-Hall, 1998), American Prisons: An Annotated Bibliography (w/Elizabeth McConnell, Greenwood Press, 1998), Current Issues in Victimology Research (w/Robert Jerin, Carolina Academic Press, 1998; Second Edition, 2007), Criminal Justice Technology in the 21st Century, (1998, Second Edition, 2005), Policing and Victims (Prentice Hall, 2002) and Controversies in Victimology (Anderson Publishing Co., 2003). She also has published more than 50 scholarly articles, book chapters, and non-refereed articles with her most recent work appearing in Federal Probation, Crime and Delinquency and Victims and Offenders. Paula I. Otto is currently an Associate Professor and Associate Director for the School of Mass Communications at Virginia Commonwealth University. She teaches broadcast journalism courses and is one of three faculty members overseeing the School’s television news program, VCU InSight, which airs on a PBS affiliate in Richmond, Virginia. Otto continues to be active in the journalism profession, serving on the Virginia Associated Press Broadcasters board of directors and is past president of the Virginia Pro Society of Professional Journalists. Otto is also part of SPJ’s national newsroom training program, which offers training to journalists across the country. Nicolle Parsons-Pollard, Ph.D. (Virginia Commonwealth University, 2004) is currently an Assistant Professor at Virginia State University. Her research interests include juvenile delinquency and truancy, customer service in the public sector, and program evaluation. She has authored and co-authored several publications in the field of criminal justice, presented at numerous conferences, and is currently working with various state and local agencies on truancy prevention. Her most recent work appears in Victims and Offenders, Criminal Justice Studies, and Current Issues in Victimology Research (Second Edition, 2007). Dr. Parsons-Pollard also serves on a variety of committees and is the editor of ACJS Today, the official newsletter of the Academy of Criminal Justice Sciences. John David Reitzel, Ph.D. (University of Florida, 2006) is currently Assistant Professor and Undergraduate Coordinator for Criminal Justice in the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University in Richmond, VA. His research focuses on policing and social control, race/ethnicity and justice, and theories of crime. He is the coauthor of several scholarly articles on citizens’ perceptions of racial profiling by the police (with Alex R. Piquero and Stephen K. Rice, 2004, 2005, 2006), and one article on deterrence theory, gender, and the experiential effect (2005). He has also coauthored two book chapters; the first in

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CONTROVERSIES IN VICTIMOLOGY

2004 on Problem Oriented Policing (with Nicole Leeper Piquero and Alex R. Piquero, In Roger G. Dunham and Geoffrey P. Alpert’s Critical Issues in Policing: Contemporary Readings, Waveland Press) and the second, in 2008, on the use of geographic information systems (GIS) in policing (with Kuniko Chijiwa, In Stephen K. Rice and Mike White, Eds., Race, Ethnicity and Policing: The Issues, Methods, Research and Future, NYU Press). Duane Ruth-Heffelbower, M.Div., J.D. (Golden Gate University School of Law, 1974) is a member of the Fresno Pacific University School of Business faculty in the Leadership and Organizational Studies M.A. Program; Director of Graduate Academic Programs, Center for Peacemaking and Conflict Studies; and faculty in the Criminology and Restorative Justice Studies degree completion program. His research interests focus on restorative justice, cross-cultural and inter-religious conflict resolution, with a particular emphasis on Muslim majority societies. He has published more than 50 books, scholarly articles, book chapters, and non-refereed articles, presented more than 50 times at national or international conferences and provided training in conflict resolution to thousands of people on five continents. He is a member of the board of the American Society of Victimology. Amie R. Scheidegger, Ph.D. (Florida State University, 1998) is currently as Associate Professor and Criminal Justice Program Coordinator at Brevard College. Her research interests include bio-environmental criminology, female crime, minorities and crime, and ethics and criminal justice. She has authored a variety of works which appear in publications such as the Encyclopedia of Law Enforcement (Taylor and Francis, 2006), Criminal Justice (Salem Press, 2005), Policing and Victims (Prentice Hall, 2002), The American Jail Association (2003, 2002) and ACJS Today (2000). Anne Sullivan, Ph.D. (Northeastern University, 1994) is currently a Professor and Coordinator of the Graduate Program in Criminal Justice at Salem State College. Her research interests include same sex battering, hate crimes and fear of crime. She has published numerous scholarly articles, book chapters and non-refereed articles with her most recent on escalating violence in same sex relationships. Cheryl Swanson, Ph.D. (The University of Oklahoma, 1976) is currently an Associate Professor in the Department of Criminal Justice and Legal Studies at the University of West Florida. Her research interests include restorative justice, victimology, and corrections. She is currently writing a book, Everything I Didn’t Learn in Kindergarten I Learned in Prison: A Restorative Justice Approach to Corrections (Lexington Books, forthcoming). She has published 28 scholarly articles, book chapters, and non-refereed articles with her most recent work appearing in the International Journal of Restorative Justice and Corrections Today.

Index

Behaviors cyberstalking, 104 offenders’, victim precipitation and, 31–32 Benton v. Maryland, 7 Berliner, Lucy, 55 Bill of Rights criminal defendants’ rights in, 6–8 due process rights for defendants, 2 Biologically weak victims, 24 Black, Jay, 60–61 Bloch v. Ribar, 53 Boicelli, Rebecca, 153 Booth v. Maryland, 120–121 Born victims, 22 Bowman, Patricia, 52 Bradley v. State, 38–39 Brownmiller, Susan, 51 Bryant, Kobe, 56, 58, 66 Bush, George W. (President), 2

Accountability circles of support and, 141–142 offender, need to enhance, 84 Achilles, Mary, 75 Acquaintance stalking, 106 Acquisitive people, as victim prone, 22 Adamson v. California, 7 African-American women, wife abuse and, 39 Against Our Will (Brownmiller), 51 AIDS same-sex battering and, 42 See also HIV Alabama victim-offender reconciliation programs, 78 victims’ rights in, 5 Alaska, victims’ rights amendment, 4 American Society of Newspaper Editors, 64 Amicus curiae, 5 Amir, Menachim, 25–27 Amstutz, L. S., 76 Anderson, Michelle, 58 Anti-stalking handbook, 109–110 Arizona victims’ rights in, 5 victims’ rights amendment, 4 Associated Press, Managing Editors Code, 61 Australia, Reintegrative Shaming Experiments (RISE) in, 79 Authoritarian theory of the press, 60

California Proposition Eight, 3 “Right to Truth in Evidence,” 4–5 segregating inmates into racial and gang groups, 136 Cardozo, Gwen, 153 Censorship, 66 Challenge of Crime in a Free Society, The, 96 Children and infants, as victim prone, 22 Circles of support and accountability (COSA), 141–142 Circular thinking, as problem with victim precipitation, 28–29 Civil cases, burden of proof in, 12 Civil court, damages for victim in, 21 Clinton, Bill (President), 2

Balanced partiality, 84, 85 Bartlett, David, 61 Battered women, as imprisoned with criminals, 30 Battered women syndrome, 39

169

170

CONTROVERSIES IN VICTIMOLOGY

College campuses, anti-stalking handbook for, 109–110 Colorado rape shield laws, 56 victims’ rights amendment, 4 Communist theory of the press, 60 Computer stalking, 105. See also Cyberstalking Conflict resolution skills, teaching to inmates, 135–137 Conflict Tactic Scale, 38 Connecticut Department of Correction, Offender Accountability Plan Manual, 140 Constitutional amendments for victims’ rights, 1–2, 5–6 See also Victims’ Rights Amendment and entries for specific amendments Constitution states, 3 U.S. See U.S. Constitution Cooper, Roy, 57 Correctional officers, restorative justice training for, 139–141 Correctional settings, victim-offender programs in, 133–146. See also Victim-offender programs in correctional settings Counterbalance arguments, 10–11 Cox, Archibald, 8 Cox Broadcasting Corp. v. Cohn, 54, 69 Crime fear of. See Fear of crime poverty and, 33 use of term, in “fear of crime,” 95 worry about, 96–97 Crime Control Act of 1968, 8 Crime victims key issues for, 2 See also Victims “Crime Victims and the Media” (NCVC), 62 Criminal cases, burden of proof in, 12 Criminal defendant legal protections for, 1 rights of, 6–8 See also Offender Criminal justice professionals, support for victim impact statements among, 125–126 Criminal justice system average citizen’s understanding of, 159 restorative initiatives, 73

“second injury” on victims, 75 treatment of victims in, 1 victim and, 21 Criminal offenses, 119 Criminal victims’ rights, 1–8. See also Victims’ rights Crothers, Carl M., 51 “Cultural web of prisons,” 139 CyberAngels, 110 Cyberstalking, 103–113 activities and behaviors, 104 addressing the problem of, 109–110 differences from stalking, 105–107 investigating and prosecuting, 108–109 outcomes of, 107–108 prevention of, 110–111 similarities to stalking, 104–107 what is?, 103–105 Cyberstalking laws, 108–109 Death penalty cases, victim impact statements and, 120–124 Death row inmates, apologies from, 138 Defendant. See Criminal defendant; Offenders Des Moines Register, 52 Dickerson v. United States, 8 Dilby.com, 58 Disorder and Decline (Skogan), 91 DNA testing, excluding rape suspects through, 59 Domestic violence feminists’ view of, 43 as narrowly constructed concept, 43 use of term, 37 Domestic violence programs, same-sex intimate-partner violence in, 45 Due process argument, 13 Due process clause, 7 Due process rights victims’, 2 See also Fifth amendment; Fourteenth Amendment Duke University Lacrosse team, rape allegations against members of, 57 Dull normals, as victim prone, 22 Duncan v. Louisiana, 7 “Educator Sexual Misconduct: A Synthesis of Existing Literature” (Shakeshaft), 155 Efficiency argument, 12–13 Eigenberg, Helen, 21 Eighth Amendment, 6, 122

INDEX

Electronic Privacy Communications Act (EPCA), 109 E-mail stalking, 105. See also Cyberstalking Emotion, in victim impact statements, 118 Emotional restoration, 79 Emotional state, fear of crime as, 94 “Equal Protection: Why Male Adolescent Students Need Federal Protections from Adult Female Teachers Who Prey on Them” (Stennis), 155 Equal standing argument, 9–10 Escalation theory, 41 Ethics, media codes of, 61 “Eye for an eye” philosophy, 21 Family of inmates as secondary victims, 137–138 teaching inmates to reconnect with, 137–138 Family of victims. See Victims’ family Fear of crime best measure of, 98–99 biological perspective, 94 definition of, 95–98 as emotional state, 94 fear of strangers vs., 97 in ghetto areas, 96 interdisciplinary research on, 93–95 as learned, 94 pervasiveness of, 92 risk of victimization vs., 96 as social problem, 93–93 sociological perspective, 94 victimization as measure of, 99–100 vulnerability vs., 98 worry about crime vs., 96–97 Federal Bureau of Investigation (FBI), forcible rape definition, 50 Feinstein-Kyl Amendment, 2 Female sex offenders, 147–158 female teachers as, 152–156 gender and sexual scripts and, 148–149 legal definitions of sexual offenses and, 149–150 typical, 148 victims of, 150–152 Feminists analysis of rape by, 51 domestic violence as gender issue, 43 Fifth Amendment, 6 First Amendment censorship as violation of, 66 freedom of the press, 53

Florida, victims’ rights amendment, 4 Florida Star v. B.J.F., 54 Forcible rape differing definitions of, 149–150 FBI definition of, 50 Forgiveness, of offenders, 76 Forgotten victim argument, 9 Fourteenth Amendment, 6–7 Fourth Amendment, 6 Four Theories of the Press (Dominick), 60 Friggi Report on Fear of Crime, The: America Afraid, 92 Fualaau, Vili, 153, 154 Functional responsibility, 25 “Fundamental rights” approach, 7 Gaboury, Mario Thomas, 133 Gang members, teaching conflict resolution skills to, 136 Garland, Tammy, 21 Gartner, Michael, 61 Gay, Charles, 66 Gays and lesbians failure to report intimate-partner abuse, 41–42 intimate-partner abuse and. See Same-sex battering as legitimate victims of hate crimes, 31 Gehring, Amy, 154 Gender roles, 148–149 Georgia, Livingston v. State, 125 Gideon v. Wainwright, 7 Gomez, Victor, 153, 154 Government, role of media in relation to, 60 Grant, Patricia H., 49 Gustafson, Dave, 84 Harris v. New York, 8 Hate crimes, gays or lesbians as legitimate victims of, 31 Henry II, 12 Herman, Susan, 74, 76 Historical argument, 11–13 HIV testing of sex offenders, 3 See also AIDS Hobbes, Thomas, 21 Holocaust, victims of, 31 Homicide, victim precipitation and, 25–26 Homophobia, 43 Idaho, victims’ rights amendment, 4 Illinois, cyberstalking laws, 108

171

172

CONTROVERSIES IN VICTIMOLOGY

Imaginary victims, 23 Immigrants, as victim prone, 22 Indiana, victims’ rights amendment, 4 Inmates reintegration through empathy-building, 141 teaching conflict resolution skills to, 135–137 teaching to reconnect with family, 137–138 Internet service providers (ISPs), cyberstalking laws and, 109 Internet stalking, 105. See also Cyberstalking Intimate-partner abuse categories of, 37 defined, 37 gendered, debate about, 38

Melli, Trisha, 52 Mendelsohn, B., 23 Mentally defective, as victim prone, 22 Minorities, as victim prone, 22 Miranda rule, 8 Miranda v. Arizona, 8 Mississippi, victims’ rights in, 5 Missouri, victim/witness services in, 3–4 Morgan, Etta F., 115 Moriarty, Laura J., 103, 159 Motivated offender, 27–28 “Mrs. Robinson myth,” 154 Mutual battering, 44

Lafave, Debra, 153 Lambeth, E. B., 61 Law Enforcement Assistance Administration, 3 Learned helplessness theory, 39 Lesbians. See Gays and lesbians Letourneau, Mary Kay, 153, 154 Libertarian theory of the press, 60 Livingston v. State, 125 Locke, John, 21 Louisiana, victims’ rights amendment, 4 Lunney v. Prodigy Services, 109

National Association of Crime Victim Compensation Boards, 117 National Center for Victims of Crime (NCVC), 62, 74, 108, 110 National Coalition Against Domestic Violence, 110 National Commission on Law Observance and Enforcement, 3 National Crime Survey (NCS), 99 National Crime Victimization survey (NCVS), 99 rape cases reported to, 50 National Domestic Violence Hotline, cyberstalking information, 110 National Incident Based Reporting System (NIBRS), 40 National Institute of Justice, “Sexual Victimization of college Women, The,” 108 National Organization for Victim Assistance (NOVA), 63 cyberstalking information, 110 NBC News, naming rape victims, 65 Newspaper Research Journal, 65 New York City, cyberstalking laws, 108 New York Times, naming rape victims, 52, 65 New Zealand, restorative programs in, 85 Nixon, Richard (President), 11

McCooey, Tracey (Judge), 81 McElrea, Fred (Judge), 78, 83, 85 Madison, James (President), 14 Malloy v. Hogan, 7 Mapp v. Ohio, 7 Mass media rape victims and, 49–71. See also Rape victims, mass media and role of, in relation to government, 60 Media. See Mass media

Offenders behavior of, victim precipitation and, 31–32 motivated, 27–28 motivation of, 33, 107 participation in restorative justice activities, 134 restorative justice designed to help, 76 using victims to rehabilitate, 85 Office of Victims of Crime (OVC), 3

Johnson, Ida M., 115 Justice for All Act of 2004, 1–2 Justice Assistance Act, 3 Justice and Reconciliation Project, 78–79 Kansas, victims’ rights in, 5 Katzenbach, Nicholas B., (Attorney General), 92 Klopfer v. North Carolina, 7 Kuehnle, Kristen, 34 Kyl (Senator), 2

INDEX

Ohio, training for victim-offender meetings in, 85–87 Oklahoma City bombing, 13 Orvis, Gregory P., 1 Otto, Paula I., 49 Overholser, Geneva, 52 Palko v. Connecticut, 7 Parsons-Pollard, Nicolle, 103 “Passing the trash,” 155 Payne v. Tennessee, 5, 122–123 Peterson, Kelsey, 153–154 Pets, destruction of, 37 Physical abuse, 37 Pointer v. Texas, 7 Police officers response to same-sex battering, 41, 45 wife abuse cases and, 38–39 Political victims, 24 “Politics of rights” vs. “politics of interests,” 14 “Potato chip” cases, 78 Poverty fear of crime and, 96 victimization and, 33 Poynter Institute for Media Studies, principle of ethical journalism, 61 Precipitative victims, 24 President’s Crime Commission Law Enforcement and Administration of Justice, 96–97 President’s Task Force on Crime Victims (1982), 73, 115–116, 118 Prison “cultural web of,” 139 victim-offender dialogue in, 73 Privacy issue, rape trials and, 53 Property, destruction of, 37 Prostitutes, victim blaming and, 31 Provocative victims, 24 Psychological abuse, 37 Radio Television News Directors Association (RTNDA), code of ethics, 61 Rape false accusations of, 59 forcible, FBI definition of, 50 victim precipitation and, 25–27 Rape shield laws, 55–59 Rape victims, mass media and, 49–71 confidentiality and anonymity for victims, 56–57 historical treatment of rape victims, 51–52

public perception of naming, 64–65 publishing names, 52–67 rape trials, 52–54 withholding names, 65–66 Rea, Lisa, 78–70, 85 Reagan, Ronald (President), 2, 9 Recidivism, family support and decreased levels of, 137 Reconciling injustices model, 137–138 Reintegrative Shaming Experiments (RISE), 79 Reitzel, John David, 1 Responsibility functional, 25 victims’, for crime, 24–25 Restitution, 21 Restorative justice co-optation of programs and, 85 defined, 135 designed to help offender, 76 offenders’ beliefs about participation in, 134 as response, 77 victims’ rights vs., 74 training, for correctional officers, 139–141 “Rethinking the Naming of Sex Crime victims” (Black), 60–61 Retribution, 21 “Rights of the accused,” 162 Robinson v. California, 7 Rock, Paul, 75 Roe v. Wade, 53 Routine activities theory, 27–28 Ruth-Heffelbower, Duane, 133 Safety Net Project, 110 St. Louis Post-Dispatch, crime policy, 62 Same-sex battering escalating violence and, 41 existence of, 39–40 heterosexual battering vs., 41–42 HIV positive victims and, 42 mutual battering and, 44 new course of action for, 44–45 resistance to, 43–44 unique dimensions of, 42–43 Schafer, S., 24 Schiedegger, Amie R., 147 “Selective incorporation” approach, 7 Sentencing circles, 73 Sentencing outcomes, effects of victim impact statements on, 118, 124–125

173

174

CONTROVERSIES IN VICTIMOLOGY

Sex offenders circles of support and accountability for, 141–142 female. See Female sex offenders HIV testing of, 3 Sexual abuse, 37 Sexual offenses, legal definitions of, 149–150 Sexual scripts, 148–149 Sixth Amendment, 6 Smith, William Kennedy, 52, 61, 64 Social contract, 21 Socially weak victims, 24 Social responsibility theory of the press, 60 Social structure, victimization and, 33–34 Society of Professional Journalists (SPJ) code of ethics, 61 South Carolina, victims’ rights amendment, 4 South Carolina v. Gathers, 121–122 Spouse abuse, use of term, 37 Stalking acquaintance, 106 similarities to cyberstalking, 104–107 stranger, 106 Stalking and Domestic Violence Report to Congress, 110 Standing doctrine, 9–10 State constitutions, victims’ rights amendment to, 3–4 States rape shield laws and, 55–59 response to President’s Task Force on Victims of Crime, 73 restorative justice training for correctional officers, 140 victims’ rights legislation in, 162 Strang, H., 79–80 Strangers, fear of, 97 Stranger stalking, 106 Students, adolescent male, as victims of female teachers, 152–156 Sullivan, Anne, 34 Summers, Chris, 77 Swanson, Cheryl, 73 Sycamore Tree Project, 141 “Take Back the Night,” 115 Texas, training for victim-offender meetings in, 85–87 Thomas v. Commonwealth, 127 “Total incorporation” theory, 7

Training restorative justice, for correctional officers, 130–141 for victim-offender meetings, 85–84 Turley, Jonathan, 14 Twining v. New Jersey, 7 “Tyranny of the masses,” 14 U.S. Constitution supremacy clause of (Article VI), 10 victims’ rights and, 1 victims’ rights amendment, 5–6 See also Constitutional amendments U.S. Department of Justice, listing of restorative justice programs, 135 U.S. Supreme Court on basis for jury decision, 118 “good citizen/bad citizen” dichotomy, 15 interpretation of due process clause, 7 “selective incorporation” approach of, 7 on victim impact statements, 5 on victim impact statements in death penalty cases, 120–124 U.S. Supreme Court cases Booth v. Maryland, 120–121 Cox Broadcasting Corp. v. Cohn, 54 Florida Star v. B.J.F., 54 Payne v. Tennessee, 122–123 South Carolina v. Gathers, 121–122 U.S. v. McVeigh, 123 Whalen v. Roe, 53 Umbreit, Mark, 80–82, 87 Uniform Crime Report (UCR), 149 Unrelated victims, 24 Vicarious victimization, “ripple effect” of, 91 Victim/witness assistance programs, 3 Victim blaming, 21–36 “just world” beliefs and, 32 motivation of offenders and, 33 rape victims and, 49 theorizing victimization and, 22–25 victim precipitation and, 25–34 victim prevention and, 33 victims of sexual assaults and, 150–152 Victim compensation, 74 Victim impact statements, 3, 115–131 arguments against, 118–124 arguments in favor of, 116–117 death penalty cases and, 120–124 effect on sentencing outcomes, 118, 124–125

INDEX

introduction in Fresno, 115 support among criminal justice professionals, 125–126 victim protection and, 119 victim satisfaction with, 126–127 Victimity, 23 Victimization defined, 159–160 fear of crime and, 91–102 as fear of crime measure, 99–100 female sexual assault and, 150–151 risk of, fear of crime vs., 96 routine activities theory, 27–28 theorizing, 22–25 varying “risk” of, 22 vicarious, 91 Victim-offender mediation, 73 Victim-offender mediation programs (VORPS), 78 Victim-offender meetings, 73–90 co-optation and quality, 85 debate over what victims want, 79–80 exceptions for certain crimes, 87–88 face-to-face or correspondence, 138–139 implied forgiveness in, 76 participation in, 81–83 restorative response, 77–79 short- and long-term experience, 86–87 terms of debate about, 74 training for, 85 victim advocacy groups’ perspective, 74–77 victims’ experiences with, 80–81 Victim-offender programs in correctional settings, 133–146 inmate reintegration through empathybuilding, 141 restorative justice training for correctional officers, 139–141 sex offenders and circles of support and accountability, 141–142 teaching conflict resolution skills to inmates, 135–137 teaching inmate to reconnect with families, 137–138 Victim Offender Reconciliation Programs (VORPs), coercion involved in, 83 Victim-Offender Restorative Justice programming, 134 Victimology contemporary, focus on street crime victims, 34 “father of,” 23

goal of, 23 typical focus of, 159–160 Victim precipitation concept of, 25–28 popularity of, 32–34 problems associated with circular thinking, 28–29 conceptual weaknesses, 29–30 culturally legitimate victim, 29–30 offenders’ behavior and, 31–32 undue responsibility on victim, 29 Victim protections, six core rights, 73 Victims biologically weak, 24 born, 22 classification based on culpability, 23 of cyberstalking, information for, 110 of female sex offenders, 147, 150–156 fully responsible, 30 of Holocaust, 31 imaginary, 23 Mendelsohn’s categories of, 23 with minor guilt, 23 political, 24 precipitative, 24 provocative, 24 rape. See Rape victims representative, inmate reintegration through, 141 right to make impact statements at sentencing, 117 Schafer’s typology, 24 socially weak, 24 totally innocent, 29 unrelated, 24 using, to rehabilitate offenders, 85 voluntary, 23 See also Crime victims Victims’ Bill of Rights, 4–5 Victims of Crime Act of 1984, 3 Victims’ family, meetings between inmates and, 138–139 Victims with minor guilt, 23 Victims’ rights, 1–8 balancing defendants’ rights and arguments against, 11–13 arguments for, 8–11 political influence of movement, 1 restorative justice vs., 74 Victims’ rights amendment, 4–5, 11. See also Constitutional amendments, for victims’ rights Victims’ rights legislation, in states, 162

175

176

CONTROVERSIES IN VICTIMOLOGY

Victims’ rights movement, 2 offender needs and, 76 Victim and Witness Protection Act of 1982, 3 Violent Justice for All Act of 2004, 3 Virginia, cyberstalking laws, 108 Voluntary confessions, admissibility of, 8 Voluntary victims, 23 von Hentig, H., 22–25 Vulnerability, fear of crime and, 98 Washington v. Texas, 7 Waul, Michelle, 74 Whalen v. Roe, 53 “Why Men Rape” (Thornhill and Palmer), 68

Wife abuse historical recognition of, 38–39 use of term, 37 Wife battering, use of term, 37 Wilkinson, Beth, 13 Winston-Salem Journal, WiredSafety, cyberstalking information, 110 Wisconsin, victims’ rights amendment, 4 Wolfgang, Marvin, 25, 27 Women, as born victims, 22 Working to Halt Online Abuse (WHOA), 110 Worry about crime, 96–97 Zehr, Howard, 76–77, 79, 84 Ziegenmeyer, Nancy, 52