Stories as property: Narrative ownership as a key concept in victims’ experiences with criminal justice

The moralization gap

In a set of studies, social psychologist Roy Baumeister and his colleagues examined the manner in which people speak about moral transgressions (Baumeister, 1997; Baumeister et al., 1990; Stillwell and Baumeister, 1997). Individuals were asked to recount episodes in which they felt wronged by someone – a proxy for victimisation – or in which they thought they had wronged someone – a proxy for perpetration (Baumeister et al., 1990). In follow-up studies they were tasked to remember the details of a given situation from the ‘victim’s’ or the ‘perpetrator’s’ perspective (Stillwell and Baumeister, 1997). Analyses reveal differences in moral tone, impact, importance of context factors and time frame. In these studies, ‘victims’ saw the event as an injustice, stressed the impact, minimized the context and extended the time frame of the event forward and backward in time. ‘Perpetrators’, on the other hand, tended to find justifications for what happened, attributed the event to outside causes, minimized the impact on the victim and saw the event as a moment in time. The two perspectives differ more radically than merely contrasting versions of events. The ‘perpetrator’s’ perspective singles out immediate causes in the context, rather than intentional (and counter-moral) reasons in his or her own character, of which any longer-term chains of causality are difficult to evaluate. In Charles Tilly’s (2010: 393) categorization, the ‘perpetrator’s’ perspective is more similar to what he calls ‘technical accounts’, which ‘claim to identify reliable connections of cause and effect’ than to a story.

Steven Pinker (2011) coined the term moralization gap for these differences between accounts. Although both Pinker and Baumeister (1997) were quick to generalize the experimental evidence to make a broader claim about the way victims and perpetrators speak about more severe forms of wrongdoing such as crime, there is good reason to be more cautious in this regard. First, it might lead to the mistaken impression that criminal offenders do not narrate their experience, which is clearly contradicted by the increasing body of work in narrative criminology (Presser, 2009; Presser and Sandberg, 2015). In a similar vein, it could also lead to neglect of the overlap between victim and offender populations. The aforementioned body of narrative criminology instead reveals interesting parallels between the way victims of crime narrate their experience and the way desisting offenders narrate their experience, which may involve the latter’s own sense of victimisation (Maruna, 2001; Meyer, 2016). Moreover, in Baumeister’s study, the setting and instructions were particularly likely to elicit ‘perpetrator’ tales of explanation or even justification of one’s own transgressions. However, this is by no means the only type of narrative an offender can tell about such situations. In his classic Seductions of Crime, Jack Katz (1988) already pointed to the importance of ‘war story’ narratives of, for instance, ‘the Badass’ or ‘the Hardman’, in which the perpetration of criminal acts becomes a key and rehearsed component of a career criminal (see in similar vein Youngs and Canter, 2013). The experiments were also unlikely to capture the narratives of risk taking – ‘mad pranks’ – that many adolescents find to be transformative experiences and staple stories of these formative years (Lightfoot, 1997; see also Katz, 1988 ‘Sneaky thrills’), notwithstanding that many of these pranks are also moral transgressions.

The relevance of the moralization gap to our current endeavour is therefore not based upon an assumption of a stark dichotomy between victims and perpetrators. Instead, we propose that the ‘victim’s’ perspective in the moralization gap reflects the experience of actual victims, while the constellation in which they find themselves in justice processes confronts them with the ‘perpetrator’s’ perspective. For instance, the historically common practice in courts is to give preference to ‘reporting the facts’, while viewing personal narratives, especially highly emotional ones, with suspicion (e.g. Bandes, 1996). Moreover, notwithstanding our misgivings with the ‘perpetrator’s’ perspective in general, the current subject concerns a situation in which the suspect or offender stands accused of or is in the process of being sentenced for a particular crime. Beyond outright denial of this fact, this is a situation that is likely to foster either explanation or justification of the crime. Such explanation and/or justification is in line with the ‘perpetrator’s’ perspective. We will return to this issue in more detail below.

The justice motive and forms of victim blaming

The basic tenet of Melvin Lerner’s work on the justice motive is that people have an inert need to believe that the world is just (see Hafer and Begue, 2005; Lerner, 1980). The ‘fundamental delusion’ Lerner observed was that people believe that good things happen to good people and bad things happen to bad people. The occurrence of an event that conflicts with this need (i.e. something bad happening to a good person, or vice versa) leads to justice-related distress on the part of observers of this event, who lack a pre-existing personal connection to the target. ¹ In turn, this elicits cognitive, affective and/or behavioural reactions. The level of distress is primarily related to the size of the threat an event poses to the belief in a just world and the (psychological) distance with the target person(s). The threat is larger when something extremely bad happens to someone particularly innocent or when the event happens to someone who is more similar to the observer (see Hafer and Begue, 2005 for an overview). The justice motive can lead to more or less helpful behavioural responses to injustice and misfortune: from compensation and reparation to altruistic punishment and (vicarious) retribution. However, it can also lead to negative reactions to those suffering from the consequences, like (psychological) distancing, derogation of character, appearance and behaviour, and blaming (Hafer and Begue, 2005). It therefore offers a theoretical perspective to understand forms of secondary victimisation: the negative reactions of third parties in the aftermath of victimisation. Those negative reactions can involve a recasting of the narrative of the victim’s experience and/or the character of the victim (Hafer and Begue, 2005). In the case of victim blaming, the individual is re-made from being the victim to someone who is at least sufficiently reckless to warrant moral censure. The outcome of the event can also be viewed anew: from a (potentially) damaging and traumatizing experience to a difficult but ultimately worthwhile opportunity to learn and grow. It can also lead the observer to emphasize the (psychological) distance from the victim: the observer is different from the victim in appearance, character or behaviour. In each of these instances, a possible conflict with the content of the victim’s own narrative can occur. The former maintains it was the victim’s own fault, the second that it was ‘all for the best’, while the third reduces the extent to which the victim can connect his or her story to that of the observer.

Even positive reactions to the victim’s plight can place pressure on the victim’s narrative. A reaction rooted in sympathy, for instance, is concerned with increasing the well-being of a suffering victim (Pemberton, 2014; Wispé, 1986). Sympathy’s primary concern is alleviating the distress felt by the person feeling sympathy upon viewing a victim’s suffering, and the purpose of action is to reduce the victim’s suffering. However, this response may neglect that victims can have needs and wishes unrelated to (coping with) their suffering. In narrative terms, sympathy recasts the victim into a supporting role in the observer’s tale of attempting to alleviate distress through coping with and even overcoming the victim’s suffering. Van Dijk (2009)’s analysis of published victim narratives highlights the difficulties victims face when they do not acquiesce to playing this role. He coined the term ‘secondary victim blaming’ to describe negative reactions to victims who opt for a more active position and/or do not care to be defined (solely) as a victim. ² Like primary victim blaming, the observer’s need to alleviate his or her distress casts the observer in the lead role and defines the victim in terms of suffering.

Finally, the need to believe in a just world motivates people to understand the victim’s situation as something that can be fully resolved. Most fictional depictions and non-fictional news-media accounts of crime are prone to offer a resolution: an end point to the narrative (Katz, 1987). The widespread use of the term ‘closure’ is revealing in this respect (Weinstein, 2011). The view that the final verdict in a case involving severe forms of crime could lead to closure, and allow the victim ‘to move on with his/her life’ is a regular feature of popular debate (Furedi, 2004). To this end, the observer has to view doing justice as something that can fully rebalance the scales, restoring the injustice visited upon the victim. However, these expectations are often at odds with victims’ experiences, who frequently find that the greater the injustice is that is visited upon them, the less likely it is that it can be fully repaired (Peelo, 2006). As Kenney (2004: 244) found: ‘coping is not recovering completely, returning to “normality” or going back to the way they were before […] Instead subjects referred to the ability to live their lives “around it” and “go on”’. Even where some restoration is possible, a feature of victims’ narratives is that they often stretch on a long time beyond any formal resolution in the criminal justice process. Instead of an expectation of closure, a more realistic assumption is that victim narratives have an open-ended quality, moving on largely beyond the sentence of the criminal trial.

Framing and stereotyping victims

A further challenge to victims’ own narratives is posed by the frames and stereotypes used to portray victims and victimisation. Campaigns may, for example, use victim stereotypes to frame issues (Best, 1999; Polletta, 2006). Nils Christie (1986)’s ideal victim is a well-known concept that describes several characteristics that facilitate the recognition of someone as a credible and blameless victim, such as the victim’s unacquaintance with the perpetrator and the legitimacy of his or her errand at the time of victimisation. This concept serves to explain why the harm or death of women, children and the elderly is predominantly reported when the media wish to portray the seriousness of a conflict and elicit compassion from the audience, as they are most easily associated with the role of innocent and vulnerable civilian rather than combatant (Carpenter, 2003; Höijer, 2004). The gendered violence movement has been known to employ the term survivor in an active attempt to revolt against the image of female victims of sexual and/or domestic violence as passive and helpless (Dunn, 2005). Even emerging movements – like one focusing on the plight of victims of environmental harm – adopt a stereotype of their own (see also Pemberton, 2014).

The employment of particular victim stereotypes is understandable as a matter of social movement strategy, in which the use of frames is vital. Frames are shorthand depictions – often captured in one image – of the social problem targeted by the movement (Entman, 1993, 2007). Successful frames incorporate a definition of the problem, an analysis of its causes, a moral judgement and a remedy, preferably in one go. Victim stereotypes allow a victim’s movement to communicate their message to a wider audience, while simultaneously focusing the movement’s own actions to reach their potential constituency (Benford and Snow, 2000). The message is intended to have personal significance for victims themselves and help them recognize their own situation, as well as possible solutions in the terms the movement describes (Entman, 1993). From the perspective of the movement, this framing is meant to be benign. The frame is usually considered an adequate depiction of the situation of victims, and is further informed by an earnest belief that victims do not always recognize their own victimisation. In turn, the movement’s proposals will prove beneficial to victims’ experiences (see also Best, 1999). Victims draw on such frames, like meta-narratives more generally, to make sense and give meaning to their own situation (Polletta, 2006). However, framing can cause difficulties for victims whose story in one way or another does not conform to the stereotype. The gendered violence movement, for instance, has rebelled against general adherence to the ideal victim stereotype, which portrays legitimate victims as those who have no relationship to their offender. Most cases of gendered violence instead occur between acquaintances, family and/or intimate partners (Polletta, 2006). In addition, the concept of the ideal victim includes features like wholesomeness and blamelessness to which, as Christie (1986) himself had already noted, many victims in reality do not comply. In all cases, framing invites stereotypes that unrealistically portray a clear-cut black and white distinction between victims and offenders (Best, 1999). In reality, there is a large victim–offender overlap: victims may have been involved in deviant behaviour themselves at the time of victimisation, may have a history of prior offences and/or may be intimately related to the offenders.

This framing places pressure on the experience of many victims, given that the stereotypical victim is just that: a stereotype, which regularly bears only a distant resemblance to reality (Polletta, 2009). Moreover, imposing a generic script on a victim’s experience is at odds with the deeply personal process of coming to terms with the meaning of victimisation in the context of an unfolding life story. For most victims, the strength of their own story is derived from its quality as a unique, authentic and special account of their own experience, not from its resemblance to a generic shorthand.

Beyond the lack of connection between the stereotypical narrative and the actual experience of large groups of individual victims, the frame might readily transform from a shorthand depiction of social reality to a normative demand (Christie, 1986). Acknowledgement and recognition are contingent on living up to the characteristics of the stereotype. The justice motive already supplies a motivation to scrutinize the victim’s behaviour and characteristics for signs of blameworthiness, and/or for differences from the observer. Judging the extent to which victims follow the plot expands upon this. Sociologist Francesca Polletta’s analysis of the relationship between the narrative structure of victims’ accounts and the extent to which they are supported or believed demonstrates the limited leeway victims have in straying from the stereotypical story of their experience (Polletta, 2006, 2009). Sticking to the script, and following the expected role is an important determinant of societal support, while straying from the plot can lead to blaming, denial and stigmatization.

Mechanism of narrative pressure in criminal justice processes

Clearly, the criminal justice process can also place pressure on the victim’s narrative. First, the criminal justice system can override victims’ narratives in the criminal justice process by dismissing them as mere stories. It can also seek to impose a particular narrative upon victims’ experiences. Finally, it can simply misunderstand the purpose of victims’ narratives in criminal justice proceedings. The mechanisms described in the previous section – the moralization gap, the belief in a just world and aspects of framing and stereotyping – each play their role in these narrative pressures.

First, in a version of the ‘moralization gap’, victim input in criminal justice procedures is often criticized for its inclusion of (emotional) information that is deemed irrelevant to criminal proceedings (Bandes, 1996; Ewick and Silbey, 1995). The chronology of the victim’s narrative, including much that is important to the victim’s experience, and the manner in which the stories are told, are often at odds with the requirements of the criminal justice procedure. The latter employs a vernacular that is both formal and abstract, in contrast with the victim’s emotional and personal story (Strang, 2002). The trial concentrates on the facts of the crime, excluding many events preceding and following it. However, these are often important, if not crucial, to the victim’s experience (Hartley, 2003). This can strengthen the impression – already conveyed in the fact that the trial concerns the state versus the offender – that victims are excluded from or only play a small supporting role in what they consider their own story (Erez, 2004; Strang, 2002).

The criminal justice process utilizes a narrative of its own (see also Bruner, 2000), but as Bandes (1996: 386) notes: ‘[b]ecause it is the dominant story, its character as narrative is invisible. The tale appears to tell itself.’ As a so-called hegemonic narrative (Polletta, 2006), it rules out, constrains and pre-empts other narratives, including victims’ narratives. In other words, where the act of victimisation leads to a sense of disconnection on the victim’s part, which sense and meaning making seeks to remedy, the sealed and formal nature of the criminal justice process adds to, rather than diminishes, this sense of disconnection by subordinating the victim’s story to the hegemonic narrative of the law and legal procedures (Pemberton, 2016). This hegemonic character is strengthened by the fact that, as Susan Bandes (1996) observes, the law pretends to speak in ‘a universal voice of reason’ (p. 385). It does not perceive itself to be a narrative at all, but merely channelling rationality, fairness, efficiency and effectiveness. It then uses this to subsequently discredit (counter-) narratives as mere ‘stories’.

Second and in relation to the previous point, criminal justice processes can impose a particular narrative on victim experience. The need to believe in a just world motivates people to construct a narrative that includes a resolution that fully counteracts the distress caused by being confronted with injustice. An outlet for this desire is the view that the sentence in the trial ends a particular narrative of crime and victimisation and provides closure for the victims or his or her survivors (see also Furedi, 2004). Of course, some victims may experience emotional benefit from their participation, but the expectation that this would amount to closure – in any sense of the word – has no ground in reality. Victims’ narratives of events precede and transcend the justice process: however important the justice process is, it is not the only feature of victims’ sense and meaning making.

In addition, criminal justice processes can impose a particular frame or stereotype to keep the perceived injustice of victims’ suffering at bay. Sticking to the script, and following the expected role is an important determinant of societal support for the victim in question, and indeed for any role afforded to victims in criminal justice processes (Bandes, 1996; Polletta, 2006). Straying from the expectations associated with the script on the other hand bodes poorly for the enduring acknowledgement of the victim’s ordeal (e.g. Klippenstine and Schuller, 2012). Polletta (2009), for example, explains how the story of battered women is often portrayed as a tragedy by third parties: a chosen frame that leaves the victim in the role of passive patient with little choice of her own. Subsequently, if a battered woman who has retaliated is, while explaining her version of events, ‘too angry, aggressive, or insufficiently remorseful – she may not be seen as a victim, no matter what she says’ (Polletta, 2009: 1497). While victims view their experience as unique and idiosyncratic, the criminal justice process imposes a narrative with a particular plot – including a resolution – that will often be at odds with victims’ experience.

Finally, although the understanding that victim input in criminal justice proceeds through narrative and fulfils expressive needs is not new (Roberts and Erez, 2004), a full grasp of its meaning is obscured by the way victim input is commonly understood. First, the storytelling by victims is at times viewed as therapeutic expression, intended to achieve greater well-being through the act of venting emotions (e.g. Winick, 2009). Not only does this misrepresent the role and impact of venting in therapy itself, it also overlooks the fact that victims are likely to be aware of the place and the setting in which they are telling their story, and hence of the deemed appropriateness of their emotional expressions (e.g. Lens et al., 2010). Second, the insertion of victims’ narratives in the criminal justice process is often viewed as only instrumentally important: a means to achieve a more favourable outcome of the criminal justice process (Sanders et al., 2001). However, even without an impact on the outcome, being involved in the criminal justice process can result in a qualitative change in the message the outcome conveys (Bilz, 2007). Much of the value of victim participation lies in the opportunity to stress matters that would otherwise be omitted from the criminal process (Pemberton, 2016). It offers the possibility to construct a narrative that embeds the crime and the subsequent process in the victims’ ongoing autobiography. In doing so, incorporation of victims’ narratives in the justice process can help make the criminal justice process more personally meaningful. It also entails establishing the connection both forward and backward in time, between the crime and other personally relevant elements of the victim’s life, as well as a connection to the other actors and values at stake in the criminal proceedings.

The challenges of restorative justice

However, restorative justice comes with its own challenges to the victim’s narrative. A good deal of restorative justice theory applies to minor transgressions, but is at odds with the experience of victims of more severe crimes. They prioritize values of restorative justice theory over victimological experience by introducing a preferred plotline for victims to follow.

First, there is the recurrent emphasis on the possibility of positive outcomes, and indeed of restoration. For all its benign intention, this emphasis can hew too closely to the sympathetic and benefit finding versions of the belief in a just world. Instead, the experience of victimisation comes fully into its own when it is unclear what, if anything, could amount to restoration. After homicide, rape or permanent bodily harm, coming to terms with injustice is surely a paramount concern. But it is hard, if not impossible to reach (Wolgast, 1987) given that the injustice visited on the victim cannot be fully undone. Restorative processes are a potentially important contribution to undoing/coping with injustice, but perhaps more so without the expectation of full restoration. As Pemberton (2012: 305; see also Graeber, 2011) notes about practices of reparation resulting in compensation:

The compensation does not restore justice […] but is better seen as an attempt to put the matter on hold for as long as possible. Instead of the compensation being deemed sufficient payment for the debt occurred as a consequence of wrongdoing, it is acknowledgement of the fact that this type of debt could never be repaid.

Second, much restorative justice literature, in line with the literature on social harm (Hillyard and Tombs, 2007; Christie, 1977), seeks to replace the term ‘crime’ with ‘conflict’ or other words to that effect. This is argued on the basis of the social construction of the term crime and seeks to avoid any stigma involved with its use. Social harm is instead thought to be a more objective and less biased term. However, in doing so, the literature neglects the explicitly moral nature of the transgression experienced by the victim, including the element of perceived intent of the offender’s behaviour (Pemberton et al., 2019). This can again be viewed in terms of the moralization gap. Victims emphasize the morality of what happened and locate the event in the intentions of the offender. The choice of the term ‘conflict’ or similarly non-stigmatizing terms might then aspire to be a neutral choice, but is in fact akin to the ‘perpetrator’s’ perspective in the moralization gap. So perhaps even more so than in criminal justice proceedings, restorative justice practices carry the risk that the victim must compete with the offender for ownership of their narrative.

Finally, restorative justice comes equipped with its own preferred stereotype of victim behaviour. Van Dijk (2009: 5) has criticized the restorative justice movement for its construction of the ideal victim of restorative justice, described as ‘forgiving, not punitive, more interested in compensation than punishment, and symbolic compensation at that, part of the same community as the offender, not afraid of the offender, wanting and capable of full participation in the case’. This holds the same problems as victim frames elsewhere: it is not an accurate depiction of all – or indeed most – victims, and holds the potential of morphing into a normative demand.