Justice From The Victims Perspective Judith Lewis Herman
Justice From The Victims Perspective Judith Lewis Herman
Justice From The Victims Perspective Judith Lewis Herman
WOMEN/ /JUSTICE
May 2005
FROM THE10.1177/1077801205274450
VICTIM’S PERSPECTIVE
What are the meanings of justice, as seen from the perspective of victims of violent crime?
Are victims’ visions of justice represented by the conventional legal system? Are they
represented by restorative justice? The author engages these questions, drawing on in-
depth interviews with 22 victims of violent crime. It is argued that survivors’ views of
justice do not fit well into either retributive or restorative models. This has implications
for current efforts to use restorative models in cases of violence against women.
AUTHOR’S NOTE: This research was supported in part by a fellowship from Radcliffe
Institute for Advanced Study. I give thanks to the study informants and to research assis-
tant Chia-Jung Tsay.
VIOLENCE AGAINST WOMEN, Vol. 11 No. 5, May 2005 571-602
DOI: 10.1177/1077801205274450
© 2005 Sage Publications
571
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I’d been raped and rape is wrong. I never contemplated what lay
ahead for me. Given that both I and my rapist knew he’d raped me,
what could I do but press charges? What could he do but go to jail?
What could our coworkers do but support me? (p. 120)
In our system of criminal law, the state, not the victim, is con-
sidered the injured party, and it is the state, not the victim, who
has the exclusive right to take action against the offender. This is a
cornerstone of enlightenment legal theory (Beccaria, 1764/1996).
In the words of Arieh Neier (quoted in Weschler, 1990), a leading
contemporary human rights advocate: “In a society of law, we say
it is not up to the individual victims to exercise vengeance, but
rather up to society to demonstrate respect for the victim, for the
one who suffered, by rendering the victimizer accountable”
(p. 244).
As the agent of criminal justice, the state codifies standard rules
and procedures for establishing guilt and protecting the innocent.
The state also establishes uniform, quantifiable standards of pun-
ishment to be applied fairly and rationally in proportion to the
seriousness of the crime. The evolution of state-based criminal
justice is commonly portrayed as a triumph over premodern,
576 VIOLENCE AGAINST WOMEN / May 2005
For those who sought redress in the criminal justice system, the
single greatest shock was the discovery of just how little they mat-
tered. Because the crimes had had such a profound impact on
their lives, the victims often naively expected their interests to be
of major concern to the authorities. They had trouble understand-
ing that the central focus of the case was on the defendant, not on
themselves. Once they filed their complaints and initiative passed
into the hands of the prosecution, their cases were resolved in the
contest between the state and the defense attorney, while they
themselves were relegated to a peripheral role as a witness, useful
only as the instrument of the state’s agenda and unworthy of any
particular consideration in their own right. Based on her experi-
ence, Mary Walsh, a survivor of domestic abuse, wrote up her
advice to those choosing to pursue a criminal complaint:
582 VIOLENCE AGAINST WOMEN / May 2005
Be prepared for the fact that you will simply be a “cog in something
turning” and you had better learn early on not to take things per-
sonally. Third parties can’t be expected to take your case as seri-
ously as you do. Even though you will know more about the facts
of the case, since you are only a witness, you will not be consulted,
and decisions will be arbitrarily made that end up being to the
defendant’s advantage. For your own peace of mind, be prepared
to throw any illusions about “justice” you might have had out the
window.
The DA didn’t know if she was going to win, so she didn’t want to
try. She was the rudest person—I couldn’t believe she was a
woman—ruthless, no heart, no sensitivity. She basically told me
she didn’t believe me. She was questioning how many beers I had.
She said to me, “Julie, I don’t think you really know what hap-
pened.” That hurt more than the rape. I’ll never forget that line.
I knew as a lawyer that you file papers, and then they deny every-
thing. I knew that. It doesn’t mean anything to lawyers, it’s a ritual,
but still it affected me. I got those papers and I felt: What do you
mean they’re denying it? They know this happened! On the other
hand, I could stand back and say: “A lawsuit is not about emotions.
This is some game I’m playing here, and it’s an adversarial game,”
because I’d already done that professionally, but still it was hard to
take.
I was really struck by how lucky I was that the legal system worked
for me. I was in group counseling with others who had been raped,
and I was aware that their experiences with the justice system were
very different from mine. I have no sense that those involved in
prosecuting the man who raped me intentionally treated me with
more respect than they would any other victim. Nonetheless, I do
sometimes wonder how my experience might have differed if I
lacked the benefits of my education, family, community support
and a name like “Mary Margaret.”
It has been said that a nation’s laws are an expression of its people’s
highest ideals. Regrettably, the conduct of lawyers in the United
States has sometimes been an expression of the lowest. Increas-
ingly, lawyers complain of a growing incivility in the profession,
and of a professional environment in which hostility, selfishness,
and a win-at-all-costs mentality are prevalent. (p. 226)
When I told my family about the abuse, they turned on me! [One of
my relatives] asked me to “just let it go.” [Another relative] said
that she doesn’t believe that all of those things happened to me.
Additionally, I was literally asked not to go to a family gathering to
ensure that the issue of abuse did not come up. The women in my
family were more loyal to the abuser than they were to me. That
devastated me. It all goes back to the socialization, the same old
adage of: “I need a man.” Women are invisible. Let’s talk about
that!
Herman / JUSTICE FROM THE VICTIM’S PERSPECTIVE 585
Even though the legal system hasn’t worked, I still have my art
classes. Bill [her husband] called them up and told them what hap-
pened, and the director of the school was so sympathetic and kind.
He said, “That person is not welcome to come back here again. We
want you here, not that person. We’ll keep an eye on you.” The first
time I went back I just cried. I didn’t want to be seen as a victim. It
was really hard to be there, but it was important to reclaim my
space.
APOLOGY
I think that if I could put that rapist in a chair,—I know this will
never happen—but if he would admit it was a horrible thing,
express regret, apologize to her and then do the same for me, I
think that would help. Boy, I’m surprised to hear myself say that!
The defendant said, “I would give my life to take back what hap-
pened.” I found myself staring at him as if my eyes could bore a
hole through him. At the time I couldn’t even try to believe him.
Later I found out that this man was petitioning to get his guilty plea
overturned. Any attempt to give him a bit of credit for that apology
was completely wiped out when I found out about the appeal. It
knocked me off my feet.
It’s too easy to say it’s just the perpetrator. . . . It really has so little to
do with him, because . . . had the community, had my family, had
the people around the school system who watched my disintegra-
tion—and nobody paid attention even to see that I was out of it,
coming to school drunk, and nobody said a word in this nice
upper-middle-class community—they’re the ones that should be
ashamed.
He’s sick and he’s dangerous and he’s all of those things, and they
knew that and they didn’t do anything about it. They kept assign-
ing him to places where he would be with kids, and they kept not
notifying people, and they kept having people who sued them sign
confidentiality agreements, and the list goes on and on. They had
so many opportunities to do something. Obviously, he made all of
his choices, too. It’s not that I want to let him off the hook. He’s
accountable, and he should be some place where he’s not going to
harm anybody. But they—that’s where my rage is—they should
have known better.
ACCOUNTABILITY
If he were to say, “Sarah, I’m sorry and I need help,” I would say,
“Thank you, God!” I wouldn’t hate him so. He needs help. I’m a
nurse, so I take care of people who could be just like him.
First of all, we started off as friends that could always talk, and we
re-found that about a year after we separated. Second, this is a
phone-only relationship. Third, he went to therapy, made heart-
felt amends to me over and over, still cries at times about it. I can’t
be 100% sure; it could be manipulation. I know how charming he
is. Friends ask how can I talk to someone who tied me up and held a
knife to me? I still ask myself that when the memories are strong.
But I want to honor the part of myself that stayed in the marriage.
To throw someone away after 18 years, what does that say about
losing 18 years of my life?
Peggy added that she had been a grown woman when she
entered the marriage and had freely chosen the relationship at the
outset. Having regained her freedom, she felt that she could also
choose to forgive.
Several informants explicitly rejected the idea of forgiveness.
Among those who took this position were survivors who took
their Christian faith very seriously and had given the matter of
forgiveness a great deal of thought. Mary Margaret Giannini, who
became an attorney as part of her survivor mission, considered
the concept of restorative justice very interesting but saw no way
that it could apply in her own case:
that in the long run the duration and consistency of social sanc-
tions were much more important than their severity. From their
intimate acquaintance with the perpetrators, these informants
understood that effective control of the perpetrators’ exploitative
behavior was an ongoing project and that any safety measures
would have to withstand numerous direct challenges and more
covert attempts at evasion.
All of the informants described a thoughtful process of risk
assessment through which they attempted to arrive at a reason-
able estimate of the perpetrator’s current and future dangerous-
ness and judge the level of force required for containment. They
also described an ongoing process of reassessment, so that the
safety plan could be modified to match changing circumstances.
Peggy, for example, no longer felt the need for a civil restraining
order against her ex-husband. She believed that he no longer
posed a risk to her, to his other former wives, or to his grown
daughter, because all were well aware of his potential for violence
and knew how to keep a safe distance. She also gave him credit for
recognizing his own dangerousness and avoiding intimate rela-
tionships. However, she stated that she would feel it her duty to
warn any new partner with whom he became involved.
Nine informants thought that at least one of their abusers
should be in prison. In three cases, the offenders had indeed been
convicted and sentenced to a prison term; in five other cases, the
offender had been charged with the crime but walked free. (One
case is still pending.) In each of these cases, the informants
thought imprisonment was warranted because they believed that
the offender was likely to abuse others in the future. The factors
on which they based their judgments seemed in general quite
realistic. Multiple offenses, a repetitive or compulsive pattern of
behavior, a well-established modus operandi, and gratuitous
sadism were the reasons most frequently cited. In addition, the
informants judged the risk of repetition to be high when the
offender’s behavior was tolerated or protected in the community.
Sarah Johnson explained why she believed the man who raped
her ought to be incarcerated:
many girls if you did.” When I decided to press charges and he was
arrested, his father called us and said, “How much do you want?
Can’t we just work this out and forget it?” My dad hung up on him.
His parents have always given him everything, always bailed him
out. I don’t know if that kind of person can be rehabilitated. I kept
thinking, what if one of those other girls went forward; maybe this
would never have happened to me. That’s what made me keep
going. I kept thinking I’m protecting someone else.
NOTES
1. For a review of the status of victims’ rights laws see Giannini (2001). For a critical
position on victims’ rights constitutional amendments see Henderson (1999).
2. For the role of shame in legitimating social inequality and exploitation, see Lewis
(1976) and Patterson (1982).
3. For rates of arrest, prosecution, conviction and sentencing, and comparing sexual
assault with other violent felonies, see National Center for Policy Analysis (1999). For a
study of factors contributing to attrition in sexual assault cases, see Frazier and Haney
(1996). For sentencing in child sexual abuse cases, see Cheit and Goldschmidt (1997).
600 VIOLENCE AGAINST WOMEN / May 2005
4. For a full discussion of what constitutes a genuine apology, see Tavuchis (1991).
5. For assessment of dangerousness in criminal offenders see Goodman, Dutton, and
Bennett (2000), Meloy (2000), Monahan et al. (2001), and Prentky, Janus, and Seto (2003).
6. For discussions of shame remedies in acquaintance rape see Baker (1999) and
Koss (2000).
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