NCJ Number
88154
Journal
American Journal of Comparative Law Volume: 30 Issue: 5 Dated: (1982) Pages: 217-240
Date Published
1982
Length
24 pages
Annotation
The attention to the victim's interests during the criminal justice process has strong historical roots in the common law heritage in England and permits two distinct models of the process, whereby the victim's role in criminal justice may be determined.
Abstract
The adversary-retribution model emphasizes the role of the victim at both the trial and sentencing stages of the penal process. It also regards the trial as a confrontation between the aggriever and the aggrieved and suggests that the injury to the victim should be the main consideration in sentencing. The model minimizes differences between civil and criminal proceedings and views the State as acting mainly on behalf of the victim while playing a somewhat subsidiary role as overseer and enforcer. In contrast, the social defense-welfare model essentially eliminates the victim-offender confrontation. Instead, the State plays a critical and mediating role with respect to each party. The State tries to control the threat to society reprsented by the offender, either by incapacitation or rehabilitation, and also tries simultaneously to serve the needs of the victim. The overall goal of the proceedings is to maximize the benefits and minimize the harm to the victim, the offender, and the community. These models provide a framework for evaluating the victim's function at the successive stages of the criminal justice process. Although the unlimited resources and expertise available to the modern nation should give the social defense-welfare model an advantage, current trends in penal philosophy indicate a preference for the other model. Examples from the legal systems in Israel, England, and the United States are provided. A total of 98 footnotes are included.