The Victim’s Role in the Penal Process: A Theoretical Orientation

Third parties: victims and the criminal justice system

“…"In this state of height ened vulnerability, [the victims] must cope not only with their everyday lives but also with a whole new set of problems created by the victimiza tion" (Bard and Sangrey, 1979:106). Sociolegal writers, on the other hand, have observed the "alienation" and the "distinctly secondary role" (Gold stein, 1982:516-19) played by the victim in the criminal justice process, and have noted the historical decline of the victim's role in this process (Schafer, 1968;McDonald, 1976b ; Sebba, 1982;Joutsen, 1987: chap. 2).…”

“…24 However, the older concepts, while they never disappeared from the courtroom, have recently been reaffirmed in the academic literature with the rise of the justice or just-deserts model of criminal justice (Fogel, 1975;von Hirsch, 1976), which has revived the view that punishment should be a function of the measure of harm inflicted by the offense and the degree of culpability of the offender (von Hirsch, 1976). 25 Moreover, while the perceived rele vance of the offender's culpability-in the sense of his or her mental atti tude to the criminal act-has been the subject of some controversy in the literature (see Sebba, 1984), the relevance of the degree of harm inflicted in determining the appropriateness of the punishment seems to be widely acknowledged. 26 Indeed, considerable thought has been devoted to the ques tion of scientific methodology for developing measures to establish a scale of offense seriousness based upon the degree of harm inflicted, and, as noted, it has been suggested that such a scale should form the basis of sentencing policy (Wolfgang, 1976; and see below, chap.…”

“…Third, the dependent variable is also problematic, since dispositions, too, may vary not only quantitatively but also qualitatively-prison, fine, probation, and so on (cf. Sebba, 1978). However, some attention has been devoted in recent years to the possibilities of unidimen sionable scaling of this variable (see Erickson and Gibbs, 1979;Sebba and Nathan, 1984).…”

“…Be that as it may, tentative consideration has been given in recent years to the restoration to the victim of a role in the retributive scheme of things, whether on a purely conceptual level or in terms of practical policies (Sebba, 1982). One form this reorientation has taken is the so-called restitu tionary theory of justice.…”

“…In particular, harmful results of the crime that were unforeseen by the offender seem in principle to be excluded from the ambit of the calculation of offense seriousness-certainly harms that were unforeseeable (cf. Sebba, 1994). The Federal Sentencing Guide lines (sec.…”