THE IMPORTANCE OF DETERMINING RESPONSIBILITY IN THE CRIMINAL JUSTICE PROCESS
A wife returns home late at night after having a tryst with her landscaper at a motel. Her husband, an executive and former professor, becomes enraged and slams her face into the floor of the garage, splitting her head open. The police find her blood-soaked body behind the wheel of her SUV in a creek, but when they determine that the apparent driving accident was staged, the husband is arrested. He is prosecuted for her murder, but the jury finds him guilty of the lesser charge of passion/provocation manslaughter. The judge sentences him to eight years in prison. He will be eligible for parole after five and a half years. (Miller, 2005)
The process of fixing responsibility for crime unavoidably rests on judgments that are subject to challenges and criticisms. These judgments are based on values, ethics, allegiances, and prejudices concerning the crucial question of whether (and to what degree) the victim shares responsibility with the offender for a violation of the law. A number of important decisions that affect the fate of the offender, the plight of the victim, and the public’s perception of the crime hinge on this issue of victim responsibility.
Whether or not the victim facilitated, precipi- tated, or provoked the offender is taken into account by police officers, prosecutors, juries, judges, compensation boards, insurance examiners, politicians, and crime control strategists. Victim responsibility is an issue at many stages in the crimi- nal justice process: in applications for compensation; in demands for restitution and compensatory
damages; in complaints about how crime victims are treated by family, friends, and strangers at home, in hospital emergency rooms, in court, and in the newspapers; and in the development of crime prevention programs and criminological theories.
At every juncture in the criminal justice pro- cess, judgments must be made about the degree of responsibility, if any, the complainant bears for what happened. The police confront this issue first. For example, when called to the scene of a barroom brawl, officers must decide whether to arrest one or both or none of the participants and what charges to lodge if they do make arrests. Often the loser is declared the victim, and the combatant still on his feet is taken into custody for assault.
When prosecutors review the charges brought by the police against defendants, they must decide if the complainants were indeed totally innocent vic- tims. If some degree of blame can be placed on them, their credibility as witnesses for the prosecu- tion becomes impaired. A district attorney may decide that the accused person would probably be viewed by a jury or a judge as less culpable and less deserving of punishment and therefore has less of a chance of being convicted. Because relatively few cases are brought to trial, the prosecution will engage in plea bargaining (accepting a guilty plea to a lesser charge) if a blameworthy victim would be an unconvincing witness. Such cases might even be screened out and charges dropped. For instance, a study of files in the District of Columbia during the early 1970s revealed that evidence of victim blameworthiness halved the chances that a case would be prosecuted (Williams, 1976).
Killings that resulted from extreme provoca- tions by the deceased are likely to be considered justifiable homicides and won’t be prosecuted. Jur- isdictions use different standards to determine what constitutes provocation and justification. For exam- ple, a study of slayings in Houston, Texas, deter- mined that 12 percent were justifiable, but in Chicago only 3 percent of all killings were consid- ered justifiable by local authorities. It appears that the legal definition of justification was broader in Texas than in Illinois (Block, 1981).
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If the provocation by the person who died is considered insufficient to render a homicide justifi- able, it might be treated as an extenuating circum- stance. Evidence of victim provocation can persuade the district attorney to charge the defen- dant with manslaughter instead of murder. In a homicide or assault case, the victim’s provocation must have been “adequate” in order for the charges to be reduced or for the defendant to be acquitted on the grounds of justifiable self-defense. In most states, that means that the defendant’s violent responses to the victim’s provocations must have occurred during the heat of passion, before a rea- sonable opportunity for intense emotions to cool (Wolfgang, 1958; Williams, 1978).
If the defendant is convicted, the judge may view the injured party’s provocation as a mitigat- ing factor that makes a lesser sentence appropriate. In jurisdictions where restitution by offenders is permitted or even mandated, the culpability of victims can be a cause for reducing the amount of repayment that convicts must undertake. Simi- larly, the judge or the jury in civil court is likely to consider a plaintiff’s blameworthy actions as a rea- son for reducing the monetary damages a defen- dant must pay for causing loss, pain, and suffering. Parallel considerations arise when persons wounded in violent crimes apply to a criminal injury compensation board for reimbursement. If the board members determine in a hearing that the victim bears some responsibility for the incident, they will reduce the amount of the award or may, in extreme cases of shared guilt and provocation, entirely reject the application for financial assis- tance (see Chapter 12).
In some conflicts that erupt after extensive interaction between two mutually hostile parties, the designations “offender” and “victim” simply do not apply. When both people behaved ille- gally, adjudication under the adversary system may not be appropriate. Neighborhood justice centers have been set up to settle these shared responsibility cases through mediation and arbitra- tion. Compromises are appropriate when both disputants are to some degree “right” as well as “wrong” (see Chapter 13).
In sum, widely held beliefs and stereotypes about shared responsibility can profoundly shape the way a case is handled within the criminal justice process. The frustrations of trying and failing to deter or rehabilitate criminals periodically propels public safety campaigns in the opposite, presumably easier, direction toward crackdowns on victim facil- itation, precipitation, and provocation. What fol- lows is a satire that was written decades ago but remains quite relevant, in which a fictitious profes- sor of victimology puts forward preposterous pro- posals to reduce street crime (see Box 5.6).