Tapu Misa: Focus on victims could lead to injustice

People hurt by crime deserve our sympathy, but we should ask what is the best way to help them. Photo / Herald on Sunday

I met a victim of violent crime last year who wasn't a member of the Sensible Sentencing Trust.

Apparently, the trust hasn't quite cornered the market in crime victims (though not for want of trying, according to the victim; the trust made overtures, which she rejected).

No worries, though, because the trust seems to have captured more than its fair share of senior government ministers eager to show crime victims how deeply they feel their pain - as evidenced by the presence of not only the Prime Minister but the Ministers of Police and Justice at the trust's conference at Parliament last week.

The woman who told me her story over coffee and a few tears would not have defined herself as a "victim". She struck me as strong, brave, and hopeful.

She could have been bitter as well, given the way she felt her family had been victimised not just by the person whose crime shattered their lives, but by the police's inept investigation and the sensationalist coverage in some media.

But years later, she has made peace with what happened. Although her family were never the same again, she has rebuilt her life.

Not all victims react the same way.

I'll never forget New Zealand lawyer Visekota Peteru's example after the 1999 murder of her husband in Samoa. She spoke to the Herald a year later, after the killer's family had offered her a traditional Samoan apology, or ifoga, which she accepted. She said she had chosen not to attend the trial for her husband's murder.

"There is no point. Of course I want justice to be served, but it will not change anything." Instead, her family would try "as best we can to get on with our lives".

Long treated as irrelevant in criminal proceedings, victims' rights have been in ascendancy since the 1990s. Victims, United States President Bill Clinton once declared, "should be at the centre of the criminal justice process, not on the outside looking in".

But as the criminal justice system has become more victim-centred, there is increasing debate about the way it responds to victims of crime - and whether the nature of that response is compromising a process designed to "turn hot vengeance into cool, impartial justice".

The British criminologist David Garland argues that the introduction of the victim's voice in criminal justice "recasts sentencing not as a finding of law, but as an expression of loyalty ... crime victims are led to regard the severity of punishments as a test of this loyalty and a mark of personal respect".

Victims of crime surely deserve sympathy and help, but what kind of help is best? And is putting victims "at the centre of the criminal justice system" really in their best interests?

In a controversial speech last year, Chief Justice Dame Sian Elias suggested that perhaps direct assistance to victims would be more helpful than "a sense of ownership of the criminal justice processes".

Direct financial assistance would have been more helpful to Susan Couch, the sole survivor of the RSA triple murder in Panmure in 2001, who was forced to mount a legal battle for the right to sue the Corrections Department after missing out on an ACC lump-sum payment because of a loophole.

She is still fighting for compensation; if only the Sensible Sentencing Trust knew people who had the power to make a difference for her.

The Chief Justice said she would like to see "some serious assessment of whether the emotional and financial cost of keeping victims in thrall to the criminal justice processes (through trial, sentencing and on to parole hearings) does help their recovery from the damage they have suffered or whether they are re-victimised through these processes".

More likely the latter. It isn't possible to have a voice in the process without being drawn into it - in the case of parole board hearings, over and over again. As TV3's The Nation points out, Rita Croskery, mother of murdered pizza delivery worker Michael Choy, has been to 28 parole hearings.

That's an example of victims being "re-brutalised" by the system, according to Justice Minister Simon Power, who says he's "very attracted" to the idea that there should be some kind of screening of parole hearings to spare victims from reliving their ordeal.

But should prisoners be denied a process that gives them hope, as one criminal lawyer says, just to spare victims' feelings, particularly when the victims' involvement isn't necessary? Shouldn't the decision on whether to release a prisoner on parole be based on considerations other than whether the victim or victim's family wishes it?

As the Harvard philosopher Michael Sandel writes: "Victim testimony, properly controlled, can serve justice by shedding light on the moral gravity of the crime. But there is a danger in placing the victim 'at the centre of the criminal justice process'. It is the danger, as old as the practice of private vengeance, that the psychological needs of the victim will swamp the moral imperative that the punishment fit the crime."

Tapu.Misa@gmail.com