GERD FERDINAND KIRCHHOFF
IN 2015, a court in Lueneburg (a city in Germany) sentenced a former guard of the extermination concentration camp at Auschwitz. He had abetted, though in a rather subordinate position, the criminal organization and management of the concentration camp by handling some of the money that was taken from the victims in Auschwitz before they were murdered. An Auschwitz survivor, Eva Mozes Kor, participated in the trial against the former guard, undertaking the long journey from California to Germany, notwithstanding the considerable investment of time, money, emotions and memories. She also served as an accessory joint plaintiff on the side of the prosecutor and as a witness.1
But before the trial formally commenced, she reached her hand out to the defendant – and he accepted this offer. The victim and the former Nazi concentration camp guard shook hands – a highly poignant and symbolic gesture. This action was an expression of forgiveness. All her life, she had suffered – first at the hands of the Nazis, then from her own hatred against the Nazis. As Ms. Kor explained: she decided to forgive those who had caused her suffering ‘not because they deserved it; I deserved it.’ She wanted to set herself free.2
In February 2017, the former chief minister of Madhya Pradesh, Uma Bharti, in an election speech justified an order she gave to the police to beat up those arrested for rape in front of their victims. The accused were to be beaten ‘until their skin came off’. The rationale advanced was that once ‘when their screams were heard by the women, the women would get closure’. Evidently, in her perception, the offenders were not human and did not have any human rights.3
The above represents two different ways of dealing with the trauma of violence: a surviving concentration camp victim of the Nazi regime in Germany liberates herself by forgiving her ‘oppressor’ from the burden of hatred. With this gesture of peace she not only helps herself cope with unforgivable suffering, but also enable a closure. In contrast, a politician valorizes revengeful torturing, bragging about ordering the policemen to torture rapists in the belief that the ‘victims could get closure’ by witnessing this ‘criminal’ punishment – political exploitation in the form of hate speech, and the commission of the crime of torture, extra-judicial execution without justification.
Do victims want revenge? Posed in this generic manner, it is difficult to answer the question in any meaningful way. Victims cannot be lumped in a homogeneous mass – they are different, each having individually suffered to varying degrees. Nevertheless, victimologists attempt to find common denominators: all victims experience some damage. These damages can be described as emotional, physical and financial. Victims experience an upsetting and revolting invasion into their privacy – of differential intensity from mild to life-threatening. The process of victimization is an invasion into the self of the victim. To state that victimization is the other side of the crime, like a coin has two sides, is inane, little more than an expression of a comfortable complacency. If an event does not cause suffering, then the event does not qualify as victimization, i.e., there might be a crime but no victimization.
Victimizations results in crises, situations of escalating insecurity. Victims realize, with differential intensity, that their normal crisis management functions are blocked, a consequence of the invasion. Victims express this experience in different ways: they become confused, disoriented, insecure, helpless. They react with bewilderment and, often, outright anger – at the invader, at the persons and/or institutions from which they expect help, understanding and orientation (police, prosecutor, court – also husband, family, friends, colleagues). But, above all, they fear getting lost in a whirlpool of events and emotions. They are, minimally, in an unfamiliar situation, one they are not used to.
In my lectures I often employ the allegory of an onion. The onion has a rough outer peel, followed by protective layers that cover and sheath the soft centre that becomes open to the sunlight only after violent exposure. Likewise, the self of the victim is covered and protected by different layers. Victimization is like an invading needle which cuts through these layers, touching and violating the inner protections. A physical assault is not only painful, it leaves the victim, previously a self-secure person, feeling helpless and vulnerable. Sexual victimization, for instance, is not only a painful, unusual and embarrassing experience, it also reminds us that contrary to our everyday beliefs, we are always vulnerable to sexual invasions, an experience that is new, confusing, injuring, embarrassing and degrading. Victimizations are invasions into the self of the victim. In the graph, the different arrows symbolize the intensity of the invasion.4
We routinely tell ourselves stories about life that often are not true (especially after victimization). We are invulnerable, we are strong, we are sexually self-determining – these are some of the fictions we tell ourselves about life. Victimization destroys the protective shield of these fictions, without which we would find it difficult to cope with life.
Victimizations are Invasions into the Self
A slightly different way to address the effects of the process of victimization is to describe them as ‘shattered assumptions’. We simply assume that the world is benevolent, that we are strong enough to stand up to the challenges thrown at us by life. Victimizations – at least for a time – shatter the assumptions about life and our ability to master it, though it is plausible that these assumptions can be restored. In the process of restoration, crisis intervention may be needed to help provide emotional stability and to repair the victim’s violated sense of agency.
Do victims desire revenge? It is both understandable and plausible that some victims actively seek out revenge in an attempt to successfully cope with the loss and the violation of their emotional stability. But revenge cannot bring the murdered daughter to life, or restore the loss suffered. This is a conditio humana.5 All we can do, since we cannot repair and undo the invasion, is to work at changing our attitude. We can learn more about ourselves. If we want to achieve peace of mind, which we think we deserve, then revenge is unlikely to help. That is often a painful and liberating revelation. In all likelihood, Ms. Kor would understand. But that is mere speculation.
Do victims seek revenge? This is an empirical question and so the answer should be derived from inquiry, not speculation. To deal with crime and consequent victimization, all societies have evolved different systems of criminal justice to punish offenders, provided of course that they are captured. The ruling groups in our societies uncritically accept the proposition that the raison de’etre of the criminal justice system is to hand out punishment. But that is a fiction.6 The response of criminal justice is an exception, not the rule.
This can be proven empirically: a vast majority of crimes are not reported to the authorities. A recent study on sexual victimization in the high schools in USA revealed a very high incidence of this kind of crime, despite harsh laws and stringent punishment, suggesting that we might already be living in an era where the expected mechanisms of criminal law do not apply. Such a study should be carried out in every country; it is not typical for the US alone.7 If what we accept as the normal response of the criminal justice system is actually an exception, then it should come as no surprise that so many victims do not expect much from such a system.
Why did these societies develop systems of punishment? Historically, the western criminal justice systems evolved out of the idea that a cruel, repressive reaction to crimes (originally acts against the wishes and interests of the feudal sovereign) endangered everyone subjected to this criminal law. The powerful wanted to protect themselves against abuse of power from the more powerful nobility – after all, in England there were as many as 200 acts punishable by the death penalty. Clearly, the interest of the victims was not at the centre of the reactions to crime. We need to think why nowadays victims approach the police and report their victimization? Arguably, it is not because they want the offender to be punished. The desire of victims for revenge as justification for the extant system of criminal justice turns out to be mere propaganda.
Acontemporary analysis of motives to invoke the criminal justice system clearly reveals that most victims want an end to the process of victimization, so that they can once again feel safe. This is abundantly clear in cases of domestic violence or stalking. In all cases of persistent duress and suffering, 95% of the victims approach the police primarily because they want the problematic event to be stopped. Only secondarily do victims want to be compensated for the damage suffered.
Victims as a rule, and in a way that surprises most people, are not vengeful. On the contrary, they are quite realistic. They want that the state restore order and safety, an action directed to the future. Additionally, they want restitution for damages suffered.8
Recent surveys of victims in Austria, Germany, Netherlands and Switzerland reveal that less than one-third of the respondents want a sentence pronounced by the judge at the end of the proceedings – close to 70% want that some diversionary measures be put in place. Diversionary measures do not have the character of punishment or revenge. 98% of the victims want ‘something’ to happen: they want someone in authority to state – to both the offender and to society – that the behaviour of the offender was wrong and unjust, and that he has to make good the damage.
When asked what kind of sentence they would prefer, 55% wanted restitution of damage; 40% proposed that the guilty be asked to do some community service; 10% wanted a donation to be made to an NGO. In Austria, a large majority favour punitive restitution, that is a restitution order with a clear statement of the wrongdoing. The traditional imposition of fines and prison sentences is seen as less satisfactory – less than 20% favoured them.
Of course there are victims who desire, even seek out, revenge. But these are few in numbers and, arguably, not enough to justify a system involving harsh punishment. The populist call for harsh punishment is thus useful only for those who make their living from the correctional system. Giving in to the vociferous demands of a small group only fills prison cells, little more. Victims gain nothing by the imposition of fines and prison terms.
So, on the whole, are victims revengeful? If so many among them do not find it necessary to even report a crime to the police, can we not assume that the need to hit back on ‘their offenders’ is not very intense? Often there is a common assumption that the more severe the crime, the need for revenge will be more intense. But very severe crimes are rare. Also, the severity of a crime is disproportionate to the severity of victimization. The experience of the various Truth and Reconciliation Commissions teaches us that even in situations of very severe victimization, reconciliation is possible. Even if we meet revengeful victims, they are likely to be the exception.
Finally, we need to reinforce and underline a constitutional argument. Respect for the dignity of man forces the state of law to search for a reaction that carries the minimum burden for the citizen concerned, in our case the offender. The structure of a state that is respectful of human rights not only favours the mildest possible reaction, it obliges the state to react in a manner that promotes social peace. The voices of the few revengeful victims cannot count for more than this constitutional obligation.
In many of the countries analysed, victims have a right to participate in criminal proceedings. They can even join the prosecution as a ‘Side Prosecutor’.9 Though they do not have the same status as the prosecutor, they have the same rights. It stands to reason that if victims were as a rule revengeful, they would take advantage of their right to join the prosecution. But less than half of all those who were entitled to do so actually exercised their right – 56% did not take the opportunity to be revengeful. And it seems that there is little appetite for a culture of revenge: before 1985 about 30% of all those who were entitled used the right; after 1985 the percentage decreased to 20%.
The institution of ‘Nebenklage’ is obviously intended to achieve goals other than merely ensure stricter punishment. Victims are usually represented by a lawyer. These lawyers are relatively passive in the oral proceeding. As Nebenklaeger, they have access to the files of the prosecution. Based on this, they prepare the ground for the civil law claims for restitution of damages. The system in which this happens is very different from the English ‘adversarial’ system of jurisprudence. The structure of criminal justice proceedings can favour, even provoke, a revengeful climate – equally, it can prevent it.
* The author is grateful to research scholars Bhanu Prakash Nunna and Ishani Sharma for their helpful comments.
1. The German Nebenklage – verbatim ‘side prosecution’ – is a legal arrangement which permits some victims to participate in the criminal proceeding as joint plaintiffs with the same rights as the public prosecutor.
2. Sueddeutsche Zeitung, 29 May 2015.
3. AFP and Mail Online India, 14 February 2017, http://www.daily.mail.co.uk. Uma Bharti served as chief minister of Madhya Pradesh from December 2003 to August 2004.
4. See G.F. Kirchhoff, ‘What is Victimology?’ Tokyo, 2005.
5. A conditio humana describes a condition that is inherently connected with our life as human beings. The German poet Johann Christian Guenther (1685-1723) calls these conditions ‘the alphabet of our life’ which we should attempt to spell out. (Unsres Lebens Alphabet ist doch wohl noch auszusprechen!’ See http://www.gutzitiert.de/zitat_autor_ johann_christian_guenther_ 533.html (accessed 10 May 2017).
6. This idea was developed by the Dutch abolitionist Louk Hulsman. See http://hulsmanfoundation.org/wp-content/uploads/2014/07/abolitionistapproach.pdf (accessed on 4 May 2017).
7. R. McDowell, R. Dunklin, E. Schmall and J. Pritchard, ‘School House Sex Assault: An Associated Press Series’, Crime Report (Washington), 1 May 2017.
8. The following part of the paper is informed by Lyane Sautner, Viktimologie. Die Lehre vom Verbrechensopfer. Lehrbuch, Wien (Verlag Oesterreich), 2014, especially p. 105ff.
9. In German criminal procedure, the victim acts as a ‘Nebenklaeger’ (a side-prosecutor) That term is often translated as privatklaeger, private prosecutor, but that word signifies a different institution of criminal procedure . This must suffice for now – a detailed discussion would lead us far away from the main topic of the paper.