Abstract
This article explores how criminal justice actors interpret and process victims’ emotional expressions. On the basis of a qualitative study on the interactions between legal institutions and victims of violence in Denmark, the article demonstrates how police officers, prosecutors, victims’ counsel and judges each separately understand and evaluate victims’ emotional reactions. These actors interpret victims’ feelings according to their own professional roles and motivations so as to gain an overview of a case and the actions required of them in relation to it, resulting in quite different perceptions of victims’ needs and degree of trustworthiness. At the same time, professionals also interact across institutions by writing and exchanging case files, and in so doing police officers’ perceptions of victim reactions are often disclosed to both prosecutors and judges. This article contributes to existing knowledge of how different professional ideals specifically influence the handling of victims and their emotional needs, while the more general consensus on ‘appropriate emotions’ simultaneously generates knowledge across professions and institutional settings.
Introduction
This article examines how Danish criminal justice actors use their professional self-understanding to evaluate and handle victims’ emotions. Investigating emotions has become a more accepted approach to understanding interactions between legal institutions and lay people (Bandes and Blumenthal, 2012), resulting in an increased number of studies examining how, for instance, judges and prosecutors are actively involved in emotion management during criminal trials which are otherwise characterized by strict ideals for conduct. While part of this research focuses on professionals’ management of emotions (Bergman Blix and Wettergren, 2018; Flower, 2019; Mack and Roach Anleu, 2005), other studies have described how legal professionals interpret lay people’s expressions and how, for example, one may evaluate defendants’ remorse in relation to questions of guilt and punishment (e.g. Bandes, 2014; Johansen, 2019; Tata, 2010, 2020; van Oorschot et al., 2017). Defendants’ emotional reactions have thus been subject to extensive research interest; however, victims’ emotions and the impact they have on legal professionals remain less well-explored, just as differences between the roles of the police and courtroom actors are seldom explored within the same research projects on victims (for exceptions, see Shapland et al., 1985). We argue that professionals’ own ideals actively co-construct victims’ needs and supposed credibility, resulting in the formation of different attitudes towards victims.
Existing literature on the significance that legal professionals attribute to victims’ emotional expressions is mostly based on experimental psychological studies which ask a larger cohort of ‘observers’, typically college students, about their reactions to victim emotions in contrived crime cases (van Doorn and Koster, 2019). These studies rely on extensive quantitative data and may demonstrate how credibility ratings depend on connections between the kind of crime, the victim’s sociodemographic profile and the feelings expressed (Ask and Landström, 2010; Bosma et al., 2018; Rose et al., 2006; Wrede, 2015). Following this line of inquiry, we are able to analyse how feelings constitute a ‘shortcut’ for people to obtain knowledge about what kind of victims and cases they are facing, and how they would or should consequently react to them in real life. Considering that lay people have predominantly been studied in these situational settings, we do not gain much insight into how professional self-understandings may shape these interpretations of victim emotions, or, moreover, what it must be like to handle these emotions as either a police officer or a judge in a specific institutional and spatial context. This perspective, which is at the same time sensory, professional and processual, is crucial in order to understand how police, prosecutors, lawyers and judges act by virtue of their professional roles when they handle victims’ emotions. In this regard, qualitative sociological studies have inquired into the ways in which criminal justice actors at the police station or in court cope with their own and/or others’ emotions. Literature on how the police handle victims’ emotions often highlights police officers’ difficult working conditions and emotional labour (Bakker and Heuven, 2006; Horwitz et al., 2011; Lumsden and Black, 2018; Turgoose et al., 2017). In their study of legal actors in Swedish courtrooms, Bergman Blix and Wettergren (2018) show how legal actors ideally try to achieve an ‘unemotional’ performance of justice by exercising a professional management of emotion. As suggested, these different studies typically focus on only one institutional space, be that the police station or courtrooms. Research has thus engaged less with the ways in which different categories of professionals throughout the criminal process as a whole handle and interpret victims’ emotional states and expressions.
Based on this psychological and sociological research, the present article explores the similarities and differences between how police officers, prosecutors, victims’ counsel and judges deal with victims’ emotions, and how these interactions relate to both their very different professional roles and to their ways of categorizing victims and cases. Our study is processual and based on a 3-year research project encompassing interviews and observations of victims of violence and the institutional actors they encountered in the criminal justice system. Using this qualitative approach and following victims through the whole process, from their report to the police to the close of the case, we have gained insight into the ways in which different institutional actors perceived these victims. Taking its point of departure from this latter perspective, our article analyses how the police and courts meet the victim with the aim of each supplying support from their own professional point of view, and at the same time how they create knowledge about the case and the persons involved in it by interpreting emotions and communicating this knowledge between institutions. In this article, we thus focus exclusively on institutional perspectives. Our analyses of victims’ own experiences with the police, as well as their sense of procedural justice, can be found in Adrian et al. (2020) and Holmberg et al. (2020).
Emotions, professions, classifications
Our analytical framework combines perspectives on emotions in a legal setting with an approach to professional roles and processes of classification with the aim of highlighting how different professional ideals shape the ways in which criminal justice actors relate to victims’ emotions. Inspired by an interactional theoretical approach to victimology as formulated, among others, by Quinney (1972), Kenney (2004) and Holstein and Miller (1990), we regard ‘victim’ as a categorization device in the sense that we study the social and institutional processes through which some persons are accorded status as victims while others are not. According to Miers (1990) and Van Dijk (2009), victims have to manage and present their experiences and suffering in institutionally acceptable ways in order to become ‘deserving’ victims. Although Christie (1986) similarly pointed out that victimhood is not objectively assessed but rather evaluated on a continuum of ‘idealness’, he did not explicitly consider what might constitute a victim’s ideal emotions, as Bosma et al. (2018) observe. The notion of ideal emotions may affect institutional actors’ impression of the victim if the victim does not react according to these expectations, and even affect their sympathy towards these victims (cf. Törnqvist, 2021). Following this theoretical outline, our specific aim is to analyse how criminal justice actors confront victims with preconceived ideas about their emotional behaviour.
We use the concept ‘emotion’ to describe the ways in which criminal justice actors link victims’ demeanour and speech with their emotional state and needs. Although emotions appear intangible, they are theoretically conceptualized in this article as the accumulation of what professionals perceive when emotions are performed at the police station or in court through language, gestures and bodily postures (Harding and Pribram, 2009). Research on criminal trials has focused on extraordinary emotions such as anger or remorse, but as noted by Richards (2005), there is a range of ‘ordinary’ emotions which are more seldom addressed such as boredom, impatience or frustration. Accordingly, victims’ expressions of passivity, resilience or even indifference are also used by professionals to establish knowledge about past conflicts and present needs. This embodied, emotional experience is interactive and relational (Williams, 2009), and its meaning shifts according to social situations and expectations within specific institutions.
In their study of victims of human trafficking in Germany and the emotions they displayed, Leser et al. (2017: 21) show how the police, social workers and judges classify these emotions according to bureaucratic practices that may vary but be recognized across different institutional contexts. While we conceptualize the police and courtroom officials as separate professions each with their own logics, self-understandings and even spatial conditions, we thus also analyse how these different spaces are connected, in part, by shared knowledge extracted from prior encounters with the victim.
Leser et al. (2017: 22) additionally point out how state institutions classify citizens based on their emotional state in order to establish whether they are ‘deserving or undeserving applicants’. Legal actors must, on a daily basis, consider whether the victim is really a victim, which then feeds into decisions on whether to create a case, to prosecute, and so on. These classificatory practices guide professionals in their choice of actions regarding case advancement and decision-making (Leser et al., 2017; Posick, 2014; van Doorn and Koster, 2019). We endorse the theoretical point that criminal justice actors’ evaluation of victim emotions relies on a range of biases and implicit cultural expectations, but we further argue that the ways victims are treated based on classifications should be understood within the specific institutions within which they occur.
Our analysis centres the four professional groups: police, prosecutors, victims’ counsel and judges. These four subsections include a focus on their professional self-understandings, tailored specifically to victims’ needs and reactions. We then extrapolate and discuss how emotions shape knowledge more generally. Emotions thus inform the ways in which our informants believe they may best treat victims, and are simultaneously used by them to best decide the case.
Methods, data and legal framework
This article draws on our larger, qualitative project on ‘Victims in the Legal Process’ which collected 120 interviews with victims of violence, 46 interviews with criminal justice actors and 40 observations of encounters between victims and these professional actors. This data collection was carried out by two of the four researchers in the project and one research assistant, and the data were analysed by all four researchers. The purpose of the longitudinal study was to follow victims’ experiences from the moment they reported a case to the police until the moment the case was closed and to obtain insight into the ways in which legal authorities interpreted victims’ explanations and reactions related to the severity of the violence committed, and victims’ sociodemographic profiles. Victims are allocated a limited role in the Danish criminal justice system. They report crimes to the police and provide evidence, but they are not involved in decisions regarding the investigation and the decision to prosecute. During trial, their only role is that of witness in their own case, and victim-impact statements are not allowed.
In order to meet victims as early on as possible in the process, we were allowed to stay at 3 out of the 12 main police stations in Denmark. We deliberately chose three police stations that were situated in different parts of Denmark. Our overall study showed surprising consistency regarding what informants told us across these geographical variations, and it is our impression that many police officers, prosecutors and judges across police and judicial districts in Denmark will be able to identify with informants’ statements and points of view in our study. At the stations, we waited for victims of violence to report a case. Because of this approach, we predominantly established contact with victims who were not seriously injured, since the police would visit an injured victim at a hospital or at home. This type of non-aggravated violence cases enabled us to gain insight into the police thresholds for reporting and according the reporter a status as official victim (cf. Leser et al., 2017), a scenario that would probably have been different in robbery or aggravated assault cases. We were allowed to observe 26 such initial interrogations and to interview victims afterwards upon acquiring consent. An additional set of victims was interviewed after their report had been documented although we did not observe the actual conversation with the police. Ten cases involved domestic violence, the rest of the cases comprising other types of violence such as work-related violence or violence between neighbours. In 23 cases, the victim did not know the offender beforehand. This was typical for cases of nightlife violence and traffic violence. Since the majority of the observed violence cases were closed before reaching the courts, mostly because of a lack of evidence, we subsequently observed a number of randomly chosen violence cases in court, interviewing victims and having conversations with legal officials afterwards. We observed 14 court cases in total.
The violence cases included in our project were not usually aggravated cases entailing serious harm, and the trials observed reflected this in that they were relatively short, that is lasting, on average, half a court day. Encompassing this penalty frame in Danish courts, one legal judge and two lay judges preside in the courtroom; they sit in one line on a platform raised slightly above the rest of the participants. The witness stand is situated in the centre of the courtroom facing the judges, while the prosecutor is positioned to the right of the witness and the defence lawyers and defendant are located to the left. The defendant is heard first and is subsequently questioned by the prosecutor. The prosecutor must be objective during the trial and is required to provide information that is relevant to the defendant’s guilt as well as information that speaks towards his or her innocence. After this examination, the defence attorney may question the defendant. The victim is then heard in the same way, and then, the testimonies of any other witnesses are heard. If a decisive question has not been asked by the prosecutor, the judge can pose it, but aside from this interaction, the judge often adopts a passive role. In Denmark, the courts can appoint counsel for victims of violence free of charge. The role of the counsel is to help victims at all stages of the criminal proceedings. It is largely up to the counsel to decide how they fulfil this role, but they are typically expected to support the victim during interrogation by the police and in court, explain the criminal proceedings and help victims claim compensation for damages. Not all victims make use of this opportunity for counsel, however, which was also reflected in our study. We, therefore, focus less on this professional role in our analysis. In cases not involving counsel, the prosecutor would assume some responsibility for the victim.
An important part of our project was to explore the actions and viewpoints of legal actors so as to set victims’ viewpoints in the context of criminal justice procedures encompassing their case (cf. Shapland et al., 1985). During our stay at the police stations, we were able to conduct a number of informal conversations with the police officers and investigators to get an insight into their working conditions, just as the court observations allowed us to engage informally with prosecutors, lawyers and judges. All informants were told about the purposes of our presence and our project, just as they were informed of the option to withdraw from the project and have their data deleted at any time. Details of the police districts, courts and informants have been withheld from this study to secure anonymity.
In addition to these conversations, we conducted semi-structured interviews with 8 police officers, 11 prosecutors, 10 judges and 17 lawyers, the majority of whom functioned as victims’ counsel. Some of the interviews were conducted as group interviews. Although we aimed to interview legal officials with a variety of work experience, as well as from different age groups and with a gender balance, police officers tended to be male while there was a slight predominance of women among the prosecutors and judges interviewed. The interviews covered general questions posed to all criminal justice actors, as well as specific questions stemming from our observations at the police station or in court with a particular victim and official. All interviews were transcribed in full.
Professional roles in victim management
In the following sections, we analyse the behaviour of police officers, prosecutors, victims’ counsel and judges exclusively in relation to victims and their emotional expressions, and we refer to our article (Holmberg et al., 2020) for a complementary perspective on victims’ own experiences with the police. In doing so, we have set the investigative scope of this research: rather than considering a more general professional self-understanding and its institutional logics, it provides insight into both distinctions and overlaps between these four different professional/institutional assessments of victims of violence and their perceived emotional needs. Analytically, we take our point of departure in the ‘interpretive definitional processes implicated in assignment of victim status’, in Holstein and Miller’s (1990: 104) own words, and connect these processes with the theoretical field of law and emotions.
Police roles: assessing needs, creating helpless victims
Previous research has shown how police unit culture and shared understandings shape the ways in which these professionals make sense of their work and how they respond to cases (Hawk and Dabney, 2014; Waegel, 1981). According to Hawk and Dabney (2014), police investigators use daily work processes and professional focus to manage actions and emotions and to prioritize as well as work with cases. In our study, police officers’ professional perception of their core tasks also seemed to influence the ways in which they counselled victims, just as it shaped their perceptions of the latter’s emotional needs. In recent studies on police roles, it has been documented that police increasingly regard their primary role as taking care of vulnerable citizens, resulting in police officers needing to strike a balance between crime fighting and service provision roles (Charman, 2017; Cockcroft, 2020). Although our analysis only deals with the ways in which the police handle victims, a ‘dual role’ nevertheless seems to exist in how police officers strive to provide services for citizens while simultaneously attempting to curb criminality.
Being empathetic towards victims and referring them to other helpful services were among the core ideals for police officers in our study when talking with victims and handling the first stage of their cases. They tried to be attuned to victims’ very different needs and expressions, for instance, explaining that victims are ‘sometimes very sorry, and sometimes they’re very angry, and some are sick and some are drunk’. Officers described a range of emotions expressed by victims, many of whom also seemed to have certain social and/or health issues, which the police similarly tried to manage. They did this, in part, by listening to victims and taking their statements seriously. They also described how they sought to ‘find a solution’ for people, emphasizing this by using statements such as ‘we who help’ or ‘create peace’. Providing peace of mind was a common response to victims who were frightened, upset or had been living uneasily with conflict for an extended period, and it was paramount for the police that these victims walk out the station door with a sense of having been helped by police who ‘made a difference’. A recurring stance was that victims should have a ‘good experience’ with the police and feel supported in addressing their problems, as Officer Thomas explained: Because most police officers just want to solve people’s problems, and mostly do that as quickly as possible. So it’s this that you think you should be good at – being a problem solver.
At the same time, the police officers wanted to guide victims, detailing the kinds of help they could provide and explaining the next steps in the process of pursuing their case. Stating that victims often just wanted the violence to stop, the police tried to ascertain what they thought the victim really wanted from them, and one officer succinctly said that his job was to practically respond to the question, ‘What do you want the police to help you with?’. Although the police officers clearly tried to include the victim’s ‘needs’, the interpretation of these needs was also the result of how the police routinely assessed victims’ situations in light of their own professional and institutional knowledge (cf. Holstein and Miller, 1990). For instance, police efforts were put into carefully describing what would happen if victims chose to go on with reporting and, not least, how lengthy and uncomfortable a process this might be. In our observations of interactions between police and victims, we noted guidance being given, for instance, in the following example from a case of intimate partner violence: Peter asks Mia if there are any witnesses to the incident; or if anybody heard anything? Mia says that nobody saw anything but that somebody must have heard. She has taken pictures of her injuries and shows them to Peter. Peter explains to Mia what may happen if a case eventually arises: if there are no witnesses and her counterpart tells his version of events, then it will be her word against his. The police can use her pictures as evidence, but the case will be weak. It may also take a long time before such a case is decided, he adds.
Several police officers explained that this approach was best for the victim, especially if they thought that the report would not be pursued further. By adopting this strategy, they seemed to try to protect victims from feeling disappointed with the police and the handling of their case, all the while knowing that to be kept in a position of waiting would be more strenuous for the victim than closing the case down in the initial stages. This line of argumentation has been interpreted elsewhere as a way for the police to avoid case overload and save resources; however, based on our data, the argument might be more nuanced, as police officers often described being much more inclined to drive out to speak to the offender in order to stop the violence. Officer Lennart explained victims’ needs in terms of what he and his colleagues could offer: [the victims] don’t necessarily know in the end what this will result in terms of trials and so on, maybe that it might take a year or so, so sometimes it’s just as much about getting some empathy from the system, but also getting insight into their possibilities in the sense that we can phone the counterpart or in other ways calm them down before this turns into a real case.
Lennart explained how officers might attempt to contact offenders in order to appease the person and neutralize potentially hostile situations. They were thus willing to – and did – allocate resources to tasks that seemed more related to their perceptions of victims’ needs and their own professional roles as providers of security. The police often seemed more eager to address what they thought constituted victims’ needs rather than pushing forward the prosecution of cases of violence, all the while aligning their wish to help victims with the rationales of criminal investigation and prosecution (cf. Leser et al., 2017). These evaluations thus formed the basis of establishing whether a certain situation constituted a violence case – legally speaking – and if the victim was accordingly ‘deserving’ of being recognized as a victim in a legal sense.
Interpreting feelings according to the police gaze
It was paramount for officers to meet victims physically in order to determine their needs. This is why they criticized the institutional development towards encouraging interviewing victims by telephone in order to save resources, as two officers explained:
[it’s different] If you’re sitting and dealing with a victim by guiding them by phone. You basically can’t see precisely what happened, you’ve only got an explanation. But if you’ve got the victim up close then you feel another human contact […] then this mutual respect and especially eye contact makes you connect differently.
In principle, the person on the other end of the line can tell you anything without giving any feel for their sentiments when talking about these things. […] you can’t get a sense of, well, if people are telling you the truth, right.
These quotes simultaneously addressed the importance of connecting to the victim, and seeing the victim as a knowledge source about the case and his or her own credibility. Police officers would ‘read’ these aspects by noticing victims’ emotional expressions in speech as well as their bodily posture and demeanour. Perceived victim emotions guided the police officers’ own actions during the interview, but they were also noted down in the subsequent report with the aim of informing other parts of the criminal justice system about the victim’s behaviour and credibility. Officer Maria explained how they assess a victim according to ‘how [they] react in this [situation]’ and elaborated:
The prosecutor may benefit from knowing if there’s been something special with one [victim], right.
Okay, is this because some things may then seem more trustworthy in any sense?
Yes, or the opposite, right. There are a lot of aspects. […] It’ll always be described if … if you’re just, well don’t get me wrong, if you’re just plain neutral then I won’t write anything, but of course if you’re being excessive or going too far towards one extreme or the other, then I’ll describe that.
Thus, some feelings and demeanours may seem inconspicuous while others stand out as extraordinary, and the latter may be reported to the prosecutor. Officers also tried to elicit degrees of trustworthiness from these encounters.
The police appeared equipped to handle a range of emotions during the observed interviews with victims, from sorrow to anger directed at the offender. Ample time was provided for each interview, and eventual emotional outbursts such as crying were handled with acknowledgement. The officers, however, seemed to have a harder time interacting with victims who felt very injured or violated, particularly if the police regarded the complaint as a trivial matter or if the victim seemed to have ‘unrealistic expectations [of] the police’ (for instance, if ‘you as a victim feel like the centre of the world’). These quotes imply a kind of triviality limit and an inappropriate attitude towards the police. Conversely, victims were described positively if they were ‘calm and quiet’, and had the right attitude, as Officer Lennart explained: Then there’s more care taken of people that you sense have difficulties … and have a natural, what can you say, belief in authority – who maybe start by apologizing for phoning and taking up our time. That’s when I use more time to question thoroughly, asking about a lot of things.
This description of how a victim should behave – ‘beginning with an apology’, for instance – is in line with psychological research on how lay people expect victims to be humble in order to deserve help, and to express themselves in a passive, low-status emotional tone consistent with their gender roles (Bosma et al., 2018). In addition, we noted that the police used ways of describing victims’ emotional needs which were specific to their police context, since these same terms were not prevalent in comparable data pertaining to either prosecutors or judges. As Holstein and Miller (1990) argue, these native descriptions should be taken seriously because they form part of a meaningful social interaction that organizes professional actions. This means that police officers perceived and described victims and their issues for the purpose of addressing them professionally. Categorizations of victim behaviour and emotions were thus central for the responses that police officers were able to give (Holstein and Miller, 1990).
Police officers tended to characterize victims in specific ways regarding their sometimes irrational explanations, their (petty) conflicts and their emotional reactions bordering on immaturity. They described how they handled and perceived these situations; for instance, several police officers expressed that they felt obliged to write everything down during the victim’s explanation although they did not feel it was important at all for the case. In addition, officers described these lengthy or irrelevant explanations as being somehow irrational. One officer referred to victims’ statements by saying, ‘It’s so strange, what you’re trying to explain to me’, and another officer gave examples of situations in which she would think, ‘la la la la, what are you telling me, I can’t do anything with this’. When police officers described the conflicts that victims came forth with, they would differentiate between victims who had been subject to serious crime, and victims who felt an urge to call the police at the slightest injury. They explained the latter victim behaviour as being in need of ‘calling to talk about what had happened’, and the police’s role in this situation being to ‘just listen’. One officer explained, ‘sometimes they get upset’, and another added that they would ‘sit down and speak calmly to them, calmly and quietly, and without shouting’. These examples seemed to paint the victim as frail and unstable, prompting the police to sit down and soothe them. Although not directly stating that victims could act childishly, the officers’ stance towards victims did place them in a helpless and somewhat irrational role. Several officers went even further and directly addressed victims as children, like Officer Thomas: Then you basically just need for someone to come and act ‘the adult’ saying, ‘Come on and behave!’ [… ] So there is this kind of difference when people need to be unburdened of something – it’s kind of mean to draw this analogy – but a bit like small children who just need to come running to say that the other sibling is bullying them, and then you say, ‘oh, that’s really annoying’. And then they go out and play again as if nothing had happened. It’s that kind of analogy we sometimes play along with.
Two other officers independently referred to the Victims’ Counselling Organization as ‘the Night Ravens for grown-ups’ and ‘The Children’s Helpline for grown-ups’, respectively 1 . What Thomas and these other officers seemed to be doing is downplaying victims’ conflicts and situating themselves as professionals who act like mature adults.
These characterizations of victims as slightly irrational, helpless, in some examples even childish, place their immaturity and incoherence at the forefront which makes the police appear competent and rational in comparison, relating to police officers’ professional self-understanding and self-staging as energetic problem-solvers, providers of service, and guardians of ‘peace and order’ (Charman, 2017). Related research shows how victims of violence are often met with the institutional perception that they cannot cope without professional help from criminal justice actors (Kenney, 2004), and this categorization of victims as being helpless justifies the intervention of institutional actors intent on protecting their interests (Holstein and Miller, 1990). Victims’ emotional expressions are thus also manipulated to reinforce police ideals about expertise and responsibility. Police officers’ roles and their accumulation of experience may result in specific ways of categorizing different kinds of victims and their perceived needs (Hawk and Dabney, 2014; Jones, 1983; Leser et al., 2017). This focus on the intersection between profession and perceived emotions theoretically implies shifting attention from a definition of emotions as something people have to what emotions do (Ahmed, 2004) and how they function as social practices in different settings.
To sum up, police officers in our study actively tried to tune in to victims’ feelings, to give them a sense of security and offer reassurance that they were being taken seriously, while internally characterizing victims as more or less irritating and incoherent and to some extent letting such characterizations guide their decisions about the case. At the same time, these police officers generally used their encounters with victims and their emotional reactions professionally and institutionally to get an overview of the case and to determine victims’ credibility. Their assessment would subsequently be passed on to prosecutors. This highlights the interrelatedness of their professional self-perception, the victim emotions they identify based on these professional ideals, and the needs that they construct accordingly.
The victim in court
Research on criminal trials in a Nordic context has analysed a number of interconnected aspects regarding spatiality, professional interactions and emotions, and the evaluation of credibility (Bergman Blix and Wettergren, 2018; Dahlberg, 2009; Flower, 2019; Johansen, 2019). In the following section, we break down this comprehensive issue to examine how prosecutors, victims’ counsel and judges regard the victim both as an actor possessing conclusive knowledge and as an individual displaying their own needs. We analyse the various possibilities open to and limitations imposed upon these different actors in order to accommodate the victim’s feelings within their specific roles in processing the trial.
Prosecutors: eliciting knowledge and translating emotions
A specific prosecutor work stance has been described elsewhere as the presentation of an objective demeanour that tries to balance commitment to the victim with detachment and dissociation (Bergman Blix and Wettergren, 2018). In our study, the prosecutors expressed a similar ambivalence when engaging emotionally with the victim in court, and we additionally argue that they not only ‘handled’ emotions based on their professional gaze but also classified victims’ emotions in order to establish if they ‘deserved’ support in the courtroom. Prosecutors emphasized that their professional role was to be objective in court, that they accordingly had a more restricted role than police towards victims, and thus implying that they were not allowed to engage with victims’ needs in the way that police did. ‘It’s a delicate balance’, some prosecutors said, while others elaborated on this by explaining how they had to be able to treat victims properly by handling crying and so on in court; this should not, however, develop into giving the impression of being ‘friends’ with victims or succumbing to irrelevant ‘small talk’. Many of them were afraid of somehow being seen as the victim’s representative, since this would go against the prosecutor’s self-perception and determined role. On the contrary, prosecutors must also support the victim and make each person feel comfortable, in part because of strategic considerations that the case is dependent on the victim feeling comfortable and prompted to talk in court. According to prosecutors, accessing knowledge and making the victim react appropriately is a task that begins long before the trial itself; it is initiated by the police handing over the case and can be followed up in conversations with the police investigators and eventual telephone contact with the victim. The prosecutors receive the case file from the police and investigators and prepare their court case on this basis. Prosecutors expressed that they pay careful attention to case files in order to obtain useful knowledge about the victim. Prosecutor Lisa said the following: Usually we get quite a good impression of – well at least I think – the kind of victim we’re handling, I mean after having read the [police] report, right?
Others added that they could get an ‘overall feel for the offender’ through the case handling. Ruth, another prosecutor, explained being able to read the victim’s psychological reactions through the report: You can read this out of a good police interrogation - [for example if] it says, ‘The witness was confident in his case’. Because if the witness gives an uncertain impression in court then it will affect the outcome of the case. Maybe the case should not have been raised. But then again, the fact that one may face challenges as a victim shouldn’t affect one’s credibility. Then I have to explain [to the court] that it’s not because he’s lying. That’s the way he speaks. You have to take into account the type of victim you’re dealing with […] The investigator may write, ‘A support person was present’, or ‘He felt insecure within the situation’.
In this citation, Ruth explicitly addresses feelings such as ‘unease’ and ‘insecurity’, just as she can ‘read’ what kind of victim she will be dealing with from a piece of information about a ‘support person’. She also links the impression that the victim may give in court – coming across as ‘insecure’, for example – to varying degrees of trustworthiness. Her job is to convey to the court and judges that insecurity and specific ways of speaking, for instance, should not automatically be interpreted as a sign that the victim is ‘lying’. The information provided by police and investigators is thus used to tune the prosecutor into the kind of victim they will be engaging with, and thereby allow them to define an appropriate strategy to make the victim testify freely in court. The prosecution must lift the burden of proof, and a key method of doing so is by engaging with victims and witnesses who are willing to participate. Ruth, the aforementioned prosecutor, categorically stated the following: ‘I am dependent on witnesses telling me what happened’. Prosecutors, therefore, relied on and used a variety of techniques to coax individuals into voicing these explanations, such as focusing on the victim’s emotional needs and allowing them to explain details that were not always central to the prosecution in order to persuade the victim to subsequently explain more central issues to the court. Two prosecutors explained how they approached this situation:
Well, also like (pause) asking about something harmless to begin with, and then like getting the conversation going calmly and … and maybe also letting … sometimes letting the victim talk and then maybe they skate over the most central parts. But then getting back to it later and going in-depth.
We organize our interrogation according to the person in question. So it’s also an advantage for us if we can tap into the kind of person we are interrogating. In this way you can pre-empt a lot, I think, and consider how you pose your questions. […] You can do a lot yourself in order to seem … well, so people want to share something in court. It’s also in our interest, right?
The first prosecutor highlighted that it can be helpful to let a victim discuss details that are not too difficult just so as to ease them into testifying. This strategy shows that prosecutors often take the victim’s mindset into account. The second prosecutor stated how important it is to be able to decipher the victim in order to ask questions that encourage them to speak freely. Both quotes convey a sense of being attuned to the victim’s needs, albeit with the purpose of eliciting the information that prosecutors wish to present in court.
Although it was paramount for the prosecutors to persuade the victim to talk in court, not all victims were treated with the same amount of support and empathy. The prosecutors we interviewed seemed to distinguish between victims who were not involved in the criminal act, and others who were designated ‘criminal victims’. The non-involved victim was deemed ‘impartial’, a person reporting for the first time in his or her life and not part of any criminal environment. A prosecutor explained this as follows:
But if it’s a completely impartial victim, right? And it’s not – [the event in the case] hasn’t happened in some kind of environment with somebody he knows and so on.
The status of being impartial was dependent on the victim not being involved in the same network of acquaintances as the offender. Another prosecutor added to this status that ‘It’s nice to deal with a victim who is really a victim’. These victims were depicted as being insecure, afraid, and prosecutors described how they went to great lengths to create a nice atmosphere in court for these victims so as to make them feel safe. A very different approach was described when it came to victims who were suspected of being involved in the incident in some way, or who formed part of a criminal environment. The prosecutors modified their emotional handling of these victims, as described in the following group interview:
If they’re victims who also come from a criminal environment, well then it creates a specific kind of challenge, right? And our strategy should maybe be different, right?
What kind of challenges could these be?
Well, they may clearly not be willing to contribute to the solution of the case. We experience that quite often.
Their memory is not always that good …
Yes (laughs), and you might sometimes, well, maybe you shouldn’t offer handkerchiefs then, maybe you’re more likely to go tough on him.
The juxtaposition of ‘handkerchiefs’ and ‘going tough’ signalled the degree of prosecutors’ emotional involvement with and handling of the victim in question. Interpreting the victim as a person who was not willing to participate in the case because of criminal allegiances led prosecutors to construct these victims as less needy of support. According to Holstein and Miller (1990), this professional ascription of different victim statuses should be analysed as a procedure for deflecting responsibility, for assigning causes for victimization and for defining appropriate professional responses to the victim. The evaluation of victims’ needs is thus conflated with the prosecutor’s desire to present a collaborative victim in the courtroom, balancing the victim’s needs with the necessity of extracting important information from them.
Translating emotions
An equally important issue for prosecutors handling victims was the way in which the latter expressed their emotions. For instance, prosecutors described an honest and credible victim as a person who did not necessarily cry, but who acted in a way that let the court and judges know that they had been affected by the case – that it caused a reaction in them:
That it’s someone who is credible, that you trust her, that she wants to talk … and is affected, I feel like saying.
Yes. It’s okay if they cry a bit.
These statements convey that a prosecutor’s case may be helped if a victim is emotional. It was, however, repeatedly stated that victims could express either too little or too much emotion, paralleling the police experience of emotions that ‘go too far toward one extreme or the other’. It was seen to be incongruous, for example, if a witness had been subjected to horrible things but just sat ‘stone-faced’, or unaffected in the courtroom, as some prosecutors explained during a group interview:
If you’ve got a witness who has been subject to the most horrible things, and who just sits stone-faced and explains, then you can probe into it.
Yes, it may seem strange to the lay judges, who are facing a person who has been exposed to terrible things, just sitting quietly and talking about it.
It could be like a small question like, ‘How have you been feeling since then?’ Because they’re speaking without emotion, but if you inquire into those feelings then …
Yeah, then they come forth.
These prosecutors explained that lay judges can interpret an apparent lack of emotional reaction from a victim negatively. This is why prosecutors often strategically prompt the victim to elaborate on the feelings they experienced in an attempt to ‘normalize’ the victim’s emotional reactions. The opposite end of the continuum would be a victim who reacted fiercely, causing a prosecutor to think ‘that’s quite a strong reaction considering the injury’. Some thought this signalled that the victim was exaggerating, a reaction which might seem untrustworthy in the courtroom, as voiced in this group interview with prosecutors:
I also think that if they come forth with their explanation calmly and quietly and…
Credibly.
You get the feeling they are affected, and it’s okay that they’re affected. But the victims who kind of overreact, they are a bit hard, because you have to explain to the judges why … I mean it seems strange, right? […]
Without having to drag it out of the person.
Yeah, who’s just calm and quiet about things and … yes, seems trustworthy from their way of explaining.
The prosecutors linked a ‘calm and quiet’ explanation with credibility, whereas an exaggerated response might affect (lay) judges negatively. A specific example of this kind of exaggeration was apparently associated with victims of ethnic minority backgrounds, as three prosecutors explained in a group interview:
There may be some kind of ethnicity involved. Some ethnicities have different ways of being victims. Do you recognize that? (the other prosecutors agree). So that you’re culturally more (whispers) victim like [… ]
If you watch TV, when people have been killed in the Middle East, then they cry loudly and scream, hurl themselves down and faint in the middle of the street and so. In Denmark, we carry our own sorrow. You don’t cry in front of others. You can juxtapose those two ways of reflecting your feelings in court. It’s really stereotyped, but …
You can’t name any specific ethnicity, but you can also help the victim who has an ethnic background other than Danish, by virtue of your procedure, equipping lay judges with the right lens to assess the victim. Does that make sense? (the other prosecutors nod). A non-Danish way of being a victim can seem overwhelming. And it may – for us – bring [a victim’s behaviour] to the verge of untrustworthiness.
According to these prosecutors, some witnesses reacted emotionally according to non-Danish cultural norms, which might seem untrustworthy in the eyes of judges and lay judges. They saw their role as being able to explain this inappropriate behaviour to the court during their procedure – either as something ‘cultural’ or just specific to the victim. Many prosecutors regarded it as a valuable skill to be able to translate victims’ emotions (or lack thereof) to the court, and this role was accentuated by the rather strict ‘feeling rules’ (Hochschild, 1983) in specific courtrooms. In a Swedish context, Bergman Blix and Wettergren (2018) note that prosecutors need to tune in to and continuously anticipate the reactions of all participants in the courtroom in order to ensure their efficient collaboration. Their observation accurately depicts the specific relationship between prosecutors and victims evidenced in our own study since prosecutors were careful to find out – through police reports, observations and so on – what kind of victim they will be meeting and how they might create the best conditions for victims to open up and speak without reservations in the courtroom. Although prosecutors described themselves as being objective, their goal was ultimately to present strong cases by communicating the victim’s reliability to judges and lay judges, which made it necessary to cater to victims’ emotional needs and translate their emotions in order to make them comprehensible in the courtroom context. Victims are thus portrayed as persons who possess knowledge which, for any number of reasons, they are not always willing to share. In this sense, victims’ emotional needs are constructed and met in light of the role and demands of the prosecutor.
Victims’ counsel as providers of emotional support and guidance
As noted by Flower (2019), there is always some unpredictability regarding witness examinations, leading lawyers to prepare clients for this situation, and to be ready to engage in emotion management of the witness as a kind of professional ‘damage control’. We argue that victims’ counsel similarly use their professional role to classify victims’ emotional needs and make the case proceed as smoothly as possible. In the observed cases, the victims’ counsel had only undertaken brief exchanges with the victim prior to the trial and typically made arrangements to meet in person just before the trial began 2 . During this often limited encounter, the counsel had the opportunity to explain the trial process and the victim’s rights to them. According to counsel, their role centred on victims’ needs in terms of ‘shielding’ the victim by providing support and empathy. Counsel aimed to give victims a sense of ‘peace and calm before they go in [the courtroom]’, and Counsel Jim detailed how victims reacted to his explanations of the trial process: ‘Well it means that the victim feels more at ease and more open in his or her explanation when you come into [the courtroom]’.
Counsel generally experienced victims feeling accused by the interrogation style in the courtroom and most concretely in their interactions with defence lawyers. They tried to prepare the victim for this kind of questioning in order to ‘minimize the victim’s frustrations in court’, according to one counsel. Although this was undoubtedly done to reassure the victim and act as a support or ’wing man’, as one counsel expressed, their role as supporters also included the facilitation of victims’ performance by providing guidance on how to talk and act in the courtroom. Part of counsel’s role, therefore, seems to be to prepare the victim for the court procedure in order to smooth out their explanations and expected contributions in the courtroom ahead of time. Flower (2019) depicts defence lawyers’ role as one of preparing their clients for the trial by trying to ‘align the client’s social and emotional expectations with the emotional regime of the criminal trial’ (p. 136). One of the reasons why defence lawyers attempt to contain the client’s emotions is because they believe that this behaviour may affect the sentence handed down by judges. Translating Flower’s observations into the role of counsel for victims, we see how they try to coach the victim in order to make them behave appropriately in court as this behaviour is thought to have an impact on the estimation of courtroom professionals, as two counsels explained:
It is not essential whether you can remember in detail what happened, because you are just going in there to explain, and then you have to let the professionals – I mean the prosecutor, defence and judge – assess the evidence. It is more important not to either overdramatize or to omit something you can remember, for that matter.
Sometimes the victim enters the courtroom and they’re full of resentment because of what happened, and sometimes they’re calmer about it and do not have revenge in their minds. […] It may make a difference if the defence lawyer can get the victim a bit upset, and maybe make the victim appear a bit like one who has caused something, then they may win over the lay judges and the judge a bit.
Johnny tries to prepare his clients for trial by explaining why it is necessary for the victim to accept the court’s course of action and advising them not to exaggerate or otherwise behave in ways that will seem conspicuous to the court. Jim elaborated on this point by explaining how a victim’s feelings of revenge and agitation may be used strategically by the defence and interpreted by judges as a sign of some kind of complicity in the actions. The counsel role is cast as a concerted investment in taking care of the victim’s emotional needs while also contributing to a smooth trial by curbing interruptions or inappropriate reactions that would clash with the emotional expectations of the court. It is quite striking that prosecutors and counsels often used expressions like ‘calm and quiet’ and ‘calm down’ to explain how victims should ideally behave in court: the linguistic expression ‘calm and quiet’, for instance, was used 27 times in our interviews with professional actors. They also characterized the legal process as being ‘calm and quiet’ as opposed to American movies about dramatic court cases – fictions that often constitute the only mediatised representations of criminal trials that lay people are exposed to in Denmark. In summation, victims’ counsel manage their professional role by calming victims down and reassuring them in order to make them feel better and in order to make them behave according to the Danish court’s codes of conduct.
Judges: balancing and evaluating emotions
This section focuses on the ways in which judges handle victims’ emotions in the courtroom, and how they simultaneously evaluate these expressions. It explores how judges’ engagement with victims to help them feel at ease during the trial seems to be at odds with their strong sense of performing impartiality and upholding balance in the court (cf. Bergman Blix and Wettergren, 2018; Mack and Roach Anleu, 2010). We analyse how emotions constitute a ‘shortcut’ for judges to classify the victims and cases they are facing in the courtroom.
Judges participating in our inquiry quite consistently and, unsurprisingly, told us that their primary objective was to reach the right decision, that is to judge correctly. Some of them defined this as follows: ‘our primary task […] is to reach the right decision, and that should always be the primary focus in a criminal trial’ (Judge Helle), and Judge Michael explained, ‘I have to judge this case and that’s what I’ve been put on this earth for’. This professional motivation is related to their autonomous role and the pursuit of justice, which they embody through an impartial and dispassionate demeanour (Mack and Roach Anleu, 2010). Judges repeatedly used the word ‘court management’ when characterizing their role during trials which was described overall as facilitating the process. Some judges prepared for this court management function relative to each victim by reading the case files beforehand (which included the police report and prosecutor’s notes). One judge, for instance, claimed that she could only get insight into a victim’s eventual and overt nervousness if the prosecutor mentioned it in the case file, thereby constituting a piece of information she would usually tune in to. ‘We only get to see what is going on in the courtroom’, she stated, signalling that victims’ needs are also mediated through previous experiences and may provide important base knowledge.
Judges described court management vis-à-vis the victim as a combination of framing, contact with the victim and attention to the case itself. For instance, Judge Emilie said that I think my role within court management is to show – more than anything when they come into court – that it’s okay to be in court as a victim. That it, that I, should try to avoid, as far as possible, making it worse, like, that insult should not be added to injury. That’s not the purpose, but at the same time I have to focus on the case and what is being prosecuted.
This judge expressed taking into consideration both the victim and the case, alluding to the double gaze that she and her colleagues must work with during criminal trials. This judge’s concern for the case itself and its indictment seems to determine the degree of flexibility when engaging with the victim, stating simply that the victim should ‘feel okay’ in the courtroom and that the judge should try not to make the situation worse for the victim than it already is. Even though the judges thus acknowledged that it may be very difficult for the victim to appear in court, the room for manoeuvre for handling the victim’s experience seems quite self-inhibited.
Impartiality and ‘balancing the courtroom’ were phrases commonly used when judges explained how they sought to find balance, among other things, between the defence lawyers’ potentially aggressive treatment of the victim and the prosecutor’s protests against said treatment. This balancing act also meant that judges felt cut off from engaging too much with the victim in court in order not to be perceived as biased. One judge described related aspects of this stance:
What happens when you enter the court is that well, Justitia is blind, and therefore you’re in principle not a victim before the court has decided that you are after an evaluation of the evidence.
Judges pointed to the fact that, since a decision has not yet been reached, during a trial they are not able to treat the victim entirely as if he or she is a victim legally speaking. This professional reservation was recurring in our interviews with judges and was expressed through wording such as ‘the alleged victim’, ‘who indicates himself as being a victim’, ‘a possible victim’ and ‘who is the victim here?’. These expressions may seem somewhat non-committal but are expressions of a fundamental rule of law to which judges adhere and in which nobody is guilty until so proven. This relates to judges’ motivation to make a correct judgement. Although impartiality is central for the legitimacy of handing down judgements, Maroney (2011) points to the fact that the judiciary seems to couple impartiality with dispassion through the ‘insistence on judicial dispassion [as] a central cultural script of unusual longevity and potency’ in contemporary Western jurisprudence (p. 629). The consequence of this stance, however, may often be that victims’ status as such is questioned professionally in the quest for impartiality and balance, with consideration for victims’ emotional state thereby inadvertently minimized.
Managing (difficult) victim emotions
The most demonstrative emotions which judges felt they should accept and manage accordingly in the courtroom were sorrow, anxiety, tearful outbursts and so forth. Many interviewees explained that they would offer a glass of water or a break if they sensed that the victim was very affected when testifying. Some judges added that they would maintain a calm tone of voice and keep eye contact with the victim while acknowledging their feelings by saying, for instance, ‘I can see that you are sad now’. Judges, however, also expressed that it was challenging for them to manage as well as understand emotional reactions that seemed conspicuous in light of the details and severity of the case. Their acceptance of very strong emotional expressions seemed to be proportional to the severity of the violence in question in the case itself. In contrast, it made a negative impression on them if the victim of a ‘banal’ case exhibited a seemingly over-the-top reaction. Judge Christine juxtaposed the examples of an apparent overreaction in ‘[a case] in which you think “come on and pull yourself together”’, with the subsequent example of a case of ‘aggravated violence, or […] something that it’s okay to be emotionally affected by’. This correlation between comprehensible emotions and criminality is echoed in experimental psychological studies on emotions in court. Rose et al. (2006), for instance, note that mock jurors’ understanding of feelings expressed by victims and other witnesses rely on their own evaluation of the severity of the case, leading them to distinguish between appropriate and inappropriate emotions. We might add that non-reaction on the part of victims can be just as puzzling to judges. In a group interview with judges, this exact situation was described as follows:
Well, I’d say, I’m often most surprised when there’s no reaction. I mean, I’m most surprised when somebody comes in and seems totally unaffected.
What do you think about that?
Then I think, that’s kind of … that’s quite incredible that it hasn’t … well that they … either that it hasn’t made a greater impression, or that … that they’re not more affected by it, or that they are so much in control or -how can I put it? – That they’re capable of … usually it’s because they are not particularly affected, right. And that surprises me.
This judge was astonished by the fact that some victims show no emotions at all, irrespective of the suffering inflicted upon their person. The judges in this group interview reflected on this type of situation by referring to the environments in which some victims live and the ‘extremely hard life’ that many of them had experienced which may be the reason for their non-reaction. On the contrary, when people from more ‘normal’ environments similarly did not express any feelings, judges tended to question the victim’s reasons for reporting the violence, as well as their credibility in this regard. This finding is in line with previous research showing that socially marginalized victims have difficulties being accorded victim status because of their bad associations and problems in communicating their victimization successfully (Fattah, 2003; Strobl, 2004). It may add also perspective to Christie’s (1986) definition of an ideal victim being a person who does not frequent dubious environments, since judges in our study seemed to accept an emotional reaction relative to the environment that the victim lived in. Their evaluation handled the intersections between the expressed feelings and the information that judges thought they could elicit from the victim’s environment or milieu, as similarly stated by van Oorschot (2020) in her study of judges in the Netherlands.
Judges expressed a belief that victims’ and other participants’ emotions are included in the overall assessment of evidence:
You sit up there as a judge and hear and see the victim’s explanation, and of course, the way the person acts will affect their trustworthiness – either by enhancing their credibility or the opposite. And being emotionally affected, I don’t think you can say whether it plays a role one way or the other, because it depends a lot on how and when. And … but that it does have importance for the evaluation of credibility is unquestionable, I think. Just as any other kind of action in [the court] will carry a significance.
Judge Henrik included emotions as part of the victim’s demeanour, which he believed has an impact on the perceived credibility of the person in question. He stated that it is difficult to say anything conclusive about how being emotional affects credibility, only that it does. Based on judges’ overall statements, however, it seems as if they work on the basis of quite fixed perceptions of normal versus more unusual emotional reactions which they note, as well as on desirable versus undesirable emotions. This finding is supported by research showing how victims are generally met with emotional expectations of being able to constrain their possible anger (Miers, 1990; Van Dijk, 2009), just as the specific performance of anger in the courtroom is sanctioned by the emotional regime of the criminal trial (see, for instance, Bosma et al., 2018; Rose et al., 2006; Schuster and Propen, 2010). In our own observations, we noted how victims’ displays of overt anger might be evaluated negatively and even as a possible sign of complicity and thus untrustworthiness. In one of the trials which were observed for this research, the victim appeared agitated, verging on angry, when she explained how her neighbour had hit her. She rose from the witness stand to re-enact the blow. After the trial, the prosecutor and the judge had an informal exchange about the case in which they both agreed that the victim had behaved as if she were part of the conflict.
In conclusion, judges dealt with the spatial, situational and communicative aspects of victim emotions and attempted to balance them accordingly. Judges centred their role around being impartial and as providers of the ‘right decision’. However, judges’ performance of this role depended on the prosecutors’ and defence counsel’s ability to mediate, control and organize victims’ explanations into ‘ordered matter’ which the judges could then evaluate and decide upon (cf. Bergman Blix and Wettergren, 2018). Judges experienced a schism between their desire to meet the victim’s needs, and the reservations they voiced about the person’s status as a victim. Their professional ideals of impartiality and balance thus prompted them to evaluate, (dis)trust and handle victims’ emotions in ways that might best fulfil their own professional roles rather than catering to victims’ needs.
Concluding discussion
This article has sought to identify how different professional ideals serve as powerful elements in the construction and understanding of victims’ emotions. We believe that our use of a case-tracking method focusing on how emotions influence multiple actors during the entire criminal justice process (cf. Maroney, 2019) has enabled us to show how criminal justice actors understand and handle victim emotions differently because of their professional self-perceptions. This insight would be difficult to reach based only on experimental psychological studies on ‘observer’ reactions to victim emotions. The professional lens is consequential in identifying needs and in evaluating credibility based on victims’ emotional responses. In our study, police officers’ comprehension of victims was fuelled, in part, by self-perceptions of being authoritative and energetic, which led them to categorize victims as somewhat immature, dependent, unrealistic and possibly underserving of formal police intervention. This could result in informal police interventions – or none at all. Victims have no insight into the ways in which their own emotional reactions may influence police actions and evaluations, resulting in a lack of transparency. The prosecutors we interviewed preferred an emotionally manageable and open victim in court since this understandably facilitated their own professional role. Not all victims meet these expectations, however, and some prosecutors voiced how they might switch tactics and ‘go tough’ on non-cooperating victims with a tendency to downplay their potential emotional needs. Prosecutors’ self-perception as ‘translators’ in the courtroom context may have unintended effects insofar as they cannot understand or identify with the victims’ feelings. Although prosecutors tried to translate incomprehensible emotional reactions to the court in order to boost victims’ credibility, their examples of melodramatic (Middle Eastern) emotions signal potential limits to their identification. The victims’ counsel adhered to the prosecutors’ conditions in the sense that they must also support the victim and may, therefore, be seen as part of the prosecutor’s ‘team’ (Flower, 2019). Counsel wanted to support and prepare the victim emotionally for the trial, by which, however, they conferred upon victims a need of having management of his or her emotions (cf. Holstein and Miller, 1990). Judges, for their part, acknowledged that victims’ emotions play a role in their assessment of credibility, but they found it more difficult to define how these feelings play a role. Judges pointed to a spectrum of difficult emotions ranging from anger to sorrow and more inconspicuous feelings such as indifference (cf. Richards, 2005) when they evaluated credibility, but the victim is unable to identify the possible links that judges make between emotions and trustworthiness.
Criminal justice actors, then, try to understand and meet victim emotions from their own professional perspectives, supporting the stance that emotions are not static entities since they exist in dynamic relationships between lay people and professional structures (cf. Bandes, 2009; Kenney, 2004). Victims are subject to quite different conceptual frameworks within the criminal justice system regarding their status and characteristics as victims, since these conceptualizations serve the purpose of helping professional actors fulfil their obligations regarding the victim as well as the case itself. The victim is in a sense shuffled between professional roles and during that process, he or she may be regarded as immature, erratic, unmanageable or even potentially complicit, depending on the professional gaze the victim is exposed to. These emotional conceptualizations are institutionally embedded and may initiate various actions towards the victim (Leser et al., 2017), such as taking (no) action against a complaint, (poor) support from prosecutors, or judging victims as (un)trustworthy. In Adrian et al. (2020), we argue that ‘procedural justice’, conceptualized by Lind and Tyler (1988) as a subjective conception of process fairness, seemed more important to the victims we followed through the criminal justice system than the outcome of the case itself. Furthermore, victims’ sense of not feeling respectfully treated or listened to may lead to a ’secondary victimization’ (Fattah, 1997). Criminal justice actors’ more or less explicit classifications of appropriate, deserving and trustworthy victim emotional expressions may thus be consequential for victims’ recovery.
In addition, and consistent with existing research, we found generalized notions about victim emotions, not least how anger and too much crying are undesirable in a courtroom context. This has been labelled a legal ‘emotion culture’, regulating what kinds of feelings seem acceptable to criminal justice actors. Bandes (2009) points out that these emotion cultures go beyond geographies since they seem recognizable across jurisdictions. While true, our data also suggest that the criminal justice actors themselves seem to assume a specific Danish emotion culture that provides them with scripts for socially and culturally appropriate enactments of emotions which allow them to evaluate emotions across institutional settings. As shown particularly in our analysis of prosecutors’ and counsel’s classification of victim emotions, our informants characterized the legal process as being ‘calm and quiet’, unlike American movies about dramatic court cases. We ask what function this juxtaposition seems to perform for criminal justice actors in a Danish context, since some emotional expressions are characterized as being inappropriate and alien, not only within the criminal justice system but also more generally within Danish society. Acting ‘calm and quiet’, then, may imply exhibiting appropriate Danish emotions as opposed to American or even Middle Eastern emotional expressions which seem to elicit discomfort from professional actors over ‘too much emotion’. Taken together, this may suggest that emotion cultures in crime cases regulate what the victim ‘ought to be feeling’ (Bandes, 2009: 7), not just by virtue of the legal professional context but presumably also because of a legal and cultural tradition in which Danish emotional behaviour is defined as ‘calm and quiet’ 3 . Based on this, we believe future studies could comparatively and comprehensively explore the cultural feeling rules that underpin criminal justice systems and are co-constructed by their professional actors.
Footnotes
Acknowledgements
This work was supported by the Rådet for Offerfonden [16-910-00046].