Abstract
Victimology has not had an exhaustive and systematic comparison of victims’ rights across jurisdictions since Marion Brienen and Ernestine Hoegen’s (2000) seminal work, which compared victims’ rights in 22 jurisdictions. Yet, over the last 20 years, multiple legal changes have been introduced both nationally and internationally, in order to improve the plight of victims in criminal justice. Kerstin Braun’s book fills this gap and offers a much-needed overview of victim participation rights across national criminal justice systems.
Braun’s book is highly informative as she contrasts and compares inquisitorial, accusatorial and mixed systems. The reader is left with a comprehensive understanding of victim participation in several countries. Focusing in particular on the case of Australia and Germany, Braun explores the limits of victim participation in criminal justice in adversarial and inquisitorial systems. Braun argues that victims are marginalized and intentionally excluded from criminal proceedings until after a conviction, and this reflects the traditional understanding of criminal justice as a conflict between state and the accused (p. 221). Across jurisdictions, victims’ participatory rights in the pre-trial phase are fragmented and there is no agreement regarding structured participation of victims at this early but important phase of the criminal justice process. Regarding the trial phase, Braun finds that while victims remain on the outside of adversarial trials, even victims in inquisitorial and mixed systems have not been afforded a general participation role during criminal proceedings. For example, in Germany, while victims’ participatory rights have been expanded in recent years, the legislature stopped short of creating a general right for victims to participate in German criminal procedure (p. 208). Exceptionally, participatory rights are afforded to victims who claim financial losses in certain non-adversarial systems, such as France and Denmark (i.e. partie civile); however, this is not a generalized right to participate that is automatically granted to all victims. One of the only participatory rights that can be found systematically across jurisdictions is the victim impact statement, which is only applicable after a conviction.
Criminal justice theory is shaped by traditional models that focus on the state and the defence and do not include victims, as others have already noted elsewhere (Wemmers, 2017). Braun recognizes the absence of victims in criminal legal theory and how it is consistently used to justify victims’ exclusion from criminal justice procedures. As a result, victims are considered intruders who don’t belong and, therefore, remain on the periphery of criminal justice systems. While victims may be foreign to dominant legal theory, there is growing recognition that victims have a legitimate interest in participating in the criminal justice process and the exclusion of victims in criminal justice systems is no longer acceptable.
Just because legal theories cannot accommodate victims does not mean that the law cannot accommodate them. Braun highlights the importance of protection and victims’ right to protection in the criminal justice process. She argues that a lawyer, acting on behalf of a victim witness, could contribute to ensuring access to, as well as compliance with, already existing victims’ rights and standards (p. 284). Braun’s argument is compelling. It recognizes the importance of victims’ need for safety and security as well as their fundamental right to protection. Moreover, maybe once lawyers become comfortable with victims’ procedural rights in practice, criminal justice theory will finally catch up and evolve to recognize victims as persons before the law.