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«Jo-Anne Wemmers Katie Cyr Université de Montréal While victims are often considered the forgotten party in the criminal justice system, restorative ...»

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WHAT FAIRNESS MEANS TO CRIME

VICTIMS: A SOCIAL

PSYCHOLOGICAL PERSPECTIVE ON

VICTIM-OFFENDER MEDIATION

Jo-Anne Wemmers

Katie Cyr

Université de Montréal

While victims are often considered the forgotten party in the criminal justice

system, restorative justice has emerged as a new approach that includes victims by

making them part of the legal response to crime. Based on interviews with victims who were invited to participate in a victim-offender mediation program, the present study examines victims’ procedural justice judgements. The theoretical framework for the study is based on the procedural justice theory (Lind & Tyler, 1988; Tyler, 2003).

Victims seek more than merely an opportunity to express themselves. It is not enough that victims can make demands; they also want their voices to be heard. This paper closes with a discussion of the implications of the findings.

Victims have been referred to as the “forgotten party” in the criminal justice system (Viano, 1978). Studies have repeatedly shown that victims seek recognition and want to be included in the criminal justice system (Baril, Durand, Cousineau, & Gravel, 1983; Kelly & Erez, 1997; Shapland, Willmore, & Duff, 1985;

Wemmers, 1996). Excluded from any formal role in the proceedings other than that of witness, victims are often left feeling frustrated with the criminal justice system and do not sense that justice has been done.

Correspondence concerning this article should be addressed to Jo-Anne Weemers, Email : jo-ann.m.wemmers@umontreal.ca © Applied Psychology in Criminal Justice, 2006, 2(2) WEMMERS & CYR 103 Victims often report a sense of secondary victimisation or the second wound, which refers to the enhanced suffering resulting from insensitive reactions of others, particularly the criminal justice system (Maguire, 1991; Symonds, 1980).

The absence of any formal recognition of victims in the criminal justice system has prompted some authors to argue that victims are better off staying out of the conventional criminal justice system and should instead use alternatives such as civil legal procedures or restorative justice programs such as victimoffender mediation (Langevin, 2002; Roach, 1999). These alternative procedures allow victims to make demands and give them veto power. For example, during mediation victims are able to confront their offender and can accept or reject any offer of reparation.

One alternative sanction is victim-offender mediation is an alternative sanction. In Canada, it is offered to young offenders as a form of diversion, redirecting their cases from the youth courts.

If a juvenile has committed a minor offence and pleads guilty to the offence, the youth can be offered an alternative sanction.

Mediation is a voluntary program; the youth may accept or reject the offer to partake in mediation. If the offender accepts, the victim is then contacted by phone and invited to participate in mediation.

There are generally two types of victim-offender mediation: direct and indirect. Direct mediation, which is the more common of the two types, involves a face-to-face meeting between the youth and the victim, and is mediated by one or two project workers. During mediation, both the victims and offenders have the opportunity to ask questions, provide explanations, and express their sentiments.

The objective of the meeting is to reach an agreement, which is not limited and may involve anything from financial reparation to an apology by the offender. Either party can accept or reject any offer.

If an agreement is not reached, mediation is stopped and the youth receives another sanction, such as community service. The second type of mediation, indirect mediation, is less common in North America (Wemmers & Canuto, 2002). It does not involve a faceto-face meeting between the victim and offender. Instead, the © Applied Psychology in Criminal Justice, 2006, 2(2) 104 FAIRNESS mediator acts as a go-between, communicating with the victim and the offender separately. It is a practical alternative if there is any reason the victim does not wish to meet the offender.

While victim-offender mediation gives victims an active role, it also places a burden of responsibility on them. Many studies suggest that when victims indicate a desire to participate in the criminal justice system, they do not necessarily mean an active participation but rather a passive participation (Kilchling, 1995;

Shapland, et al., 1985; Wemmers, 1996). Victim advocates have expressed concern that extrajudicial programs like victim-offender mediation, in which victims confront their offenders, may enhance the fear and stress suffered by victims and hence constitute a secondary victimisation (Côté & Laroche, 2002; Wemmers & Canuto, 2002;). Restorative justice initiatives have not evolved from victim services but instead from offender services, much like probation. Hence, there is concern that these programs, much like the criminal justice system, simply use victims to meet crime control objectives (Wemmers, 2002).

The importance of victim satisfaction with the justice system cannot be overstated. Victimization surveys show that most crimes go unreported with only a minority of victims actually reporting criminal acts to the police (Eijken, 1994; Geis, 1990; Van Kesteren, Mayhew, & Nieuwbeerta, 2001). For example, in Canada only one out of every three victims contacted the police following their victimization (Besserer & Trainor, 2000). Victims’ negative experiences in the justice system are an important source of dissatisfaction with the system. Crime victims tend to have less positive attitudes towards the police than non-victims (Van Dijk, 1999), and show similar levels of satisfaction with the police as people who have stopped by the police (Tufts, 2000).





Furthermore, victim dissatisfaction with the criminal justice system is associated with a reduced willingness to report future crime to the police (Shapland, et al., 1985; Van der Vijver, 1993). It is important to understand why victims are dissatisfied and what they seek in the justice system in order to curb secondary victimisation by the system and enhance victim cooperation.

© Applied Psychology in Criminal Justice, 2006, 2(2) WEMMERS & CYR 105 Since the 1960s, social psychologists have asked the question, what is justice? The early literature in this area focused on the fairness of outcomes or distributive justice (Adams, 1965;

Walster, Walster, & Berscheid, 1973). In other words, victims’ judgments of fairness were presumed to be based on the outcomes or sentences imposed upon offenders. However, in the 1970s, Thibaut and Walker (1975) introduced the concept of procedural justice. They argued that while outcomes were important, the manner in which they were reached was especially important (Thibaut & Walker, 1975). More recently, Van den Bos and his colleagues (Van den Bos & Lind, 2002; Van den Bos, Lind & Wilke, 2001) have demonstrated that while both procedural and distributive justice are important, what occurs first is imperative and people typically receive procedural information before they know the outcome. When procedural information precedes outcome information it has a stronger impact on the individual's overall fairness judgement than does distributive justice.

Lind and Van den Bos (2002; Van den Bos & Lind, 2002 have tried to explain why people value fairness. They argue that fairness is primarilly about the management of uncertainty; when people are confronted with uncertainty in their environment, they turn to their impressions of fair treatment to help them decide how to react. In other words, fairness becomes especially important when people are faced with uncertainty. Crime victims are confronted with a great deal of uncertainty following their victimization, which may cause them to question their basic beliefs about the world (Lerner, 1980). Victims are often uncertain about the criminal justice process, what will happen with their case, and what role they will play (Baril, et al., 1983; Shapland, et al., 1985). Victims have no formal control over the criminal justice process and according to Lind and Van den Bos (2002) uncertainty is increased in situations where people feel that they are not in control. Victims may also be uncertain and fearful about the reaction of their offender, whom they may fear will seek revenge.

As they are confronted with a great deal of uncertainty, fairness may be particularly important to crime victims.

© Applied Psychology in Criminal Justice, 2006, 2(2)106 FAIRNESS

In the early studies of procedural justice, Thibaut and

Walker (1975) identified two determinants of procedural justice:

process control and decision control. Process control refers to whether or not parties are able to present information throughout the decision-making process. Later, this was referred to as “voice” (Folger, 1977) and since that time voice has been identified as one of the most stable findings in procedural justice research (Van den Bos, 1996). Decision control refers to whether or not parties have control over the outcome. In other words, do they have the veto power to accept or refuse decisions made by a third-party? When parties are allowed to have input, they view the procedure as fair.

Based on this model, victim-offender mediation, which allows victims to present their views and gives them veto power over any offer made by the offender, should be viewed as fair.

In later procedural justice studies, Tyler and Lind (1992) developed what they called the Relational Model of procedural justice. In their view, procedural justice has a normative value instead of an instrumental value, meaning that procedural justice has a value in itself. They emphasize the quality of the interactions between individuals and organizations like the criminal justice system. Departing from Thibaut and Walker’s (1975) original theory, neither process control nor decision control are included in Tyler and Lind’s (1992) model. Instead, they identify three determinants of procedural justice: trust; standing and neutrality.

Trust is directed at the individual’s concern about an authority’s intentions (e.g. is the authority trying to do right?). Standing is defined in terms of being treated with dignity and respect and showing regard for the rights of the individual. When people are treated with dignity and respect they feel like valued members of society and feel good about themselves. Neutrality refers to honesty, the absence of bias, and making informed decisions based on the facts of the case. People want authorities, such as the police and judges, to be impartial and free from any bias. Based on this model, victims’ procedural justice judgements will be based on the quality of the interaction with project-workers within the criminal justice system, regardless of whether or not they feel they had any control over the outcome.

© Applied Psychology in Criminal Justice, 2006, 2(2) WEMMERS & CYR 107 While Tyler and Lind’s (1992) Relational Model is based on empirical research, none of their research dealt explicitly with crime victims. However, Wemmers (1996) examined the meaning of fairness for victims of crime in the conventional criminal justice system and used procedural justice as the theoretical framework.

Her model explicitly includes process control, or voice, and is based on the two factors of neutrality and respect. According to Wemmers (1996), neutrality is based on victims’ perceptions that authorities were impartial, honest, and made informed decisions based on the facts of the case. Respect refers to the quality of the interpersonal treatment that occurs between crime victims and criminal justice authorities. It includes whether or not victims were treated in a friendly manner, whether they were given an opportunity to express themselves (voice), and whether or not authorities showed an interest in the victim and took their concerns into consideration. These findings suggest that the quality of the interaction between victims and criminal justice authorities is essential for positive procedural justice judgements.

Further research by Tyler (1997; 2000) has identified another set of determinants of procedural justice. As in the Relational Model, Tyler (2000) identifies neutrality and trust as important determinants of procedural justice. However, in order to emphasize the quality of the interaction, standing is replaced by two separate factors, participation and respect. Participation is a derivative of voice or process control, first identified by Thibaut and Walker (1975). According to Tyler (2000) “people feel more fairly treated when they are given an opportunity to make arguments about what should be done to resolve a problem or conflict” (p. 121). Tyler (2000) suggests that when parties are given an active role they will feel that the procedure was just.

Respect focuses on the interpersonal treatment of parties by authorities (Tyler, 1997). When people are treated with dignity and respect, they are more likely to report that they have been treated fairly. Based on this model, the active role given to victims during victim-offender mediation, along with the respectful treatment by criminal justice project workers should enhance victims’ perceptions of fairness.

© Applied Psychology in Criminal Justice, 2006, 2(2)108 FAIRNESS

More recently, Tyler (2003) has identified trust as a factor that is separate from but closely intertwined with procedural justice. Similarly, Van den Bos and Lind (2002) argue that the trustworthiness of authorities is separate from procedural justice.

They view trustworthiness as a factor contributing to uncertainty.



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