One rule for the goose, one for the gander? Wrongfulness and harmfulness in determining reactions to offenders and victims of crime
| Author | Kim M. E. Lens,Stefan Bogaerts,Esmah Lahlah,Janne van Doorn,Antony Pemberton |
| DOI | 10.1177/1477370816649623 |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| Subject Matter | Articles |
649623EUC0010.1177/1477370816649623European Journal of CriminologyLens et al.
research-article2016
Article
European Journal of Criminology
2017, Vol. 14(2) 183 –199
One rule for the goose, one
© The Author(s) 2016
for the gander? Wrongfulness
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https://doi.org/10.1177/1477370816649623
DOI: 10.1177/1477370816649623
reactions to offenders and
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victims of crime
Kim M. E. Lens, Janne van Doorn,
Antony Pemberton, Esmah Lahlah and
Stefan Bogaerts
Tilburg University, The Netherlands
Abstract
People’s reactions to offenders and victims of crime follow different rationales. Whereas the
punishment of the offender is primarily determined by the severity of the crime (which includes
its foreseeable harmful consequences), the actual harm that is experienced by the victim drives
the need for his or her support and assistance. With the introduction of the Victim Impact
Statement (VIS), in which victims are allowed to express the (harmful) consequences of the
crime on their lives, the question is raised whether allowing such victim input during criminal
proceedings would influence the offender’s sentence. The main goal of the current research is to
disentangle how a crime’s wrongfulness and harmfulness influence people’s reactions to offenders
and victims. We show that, whereas people’s perceptions of the offender (and the outcome of
the trial) are influenced by the severity of the crime, people’s judgements related to the victim
are more likely to be influenced by an interaction between the severity of the crime and the
experienced harm of the crime. That is, in this study no support was found for the argument that
the delivery of a VIS would lead to a violation of the proportionality principle.
Keywords
Expectancy violation, harmfulness, reactions to crime, Victim Impact Statement, wrongfulness
Previous research has shown that decisions about the punishment of an offender are
based upon the severity of the crime rather than the extent of the harm that is experienced
by the victim. However, ever since the introduction of the Victim Impact Statement
Corresponding author:
Kim M. E. Lens, INTERVICT, Tilburg University, Warandelaan 2, Tilburg, 5000 LE, Netherlands.
Email: k.m.e.lens@tilburguniversity.edu
184
European Journal of Criminology 14(2)
(VIS), in which victims are allowed to express the harmful consequences of the crime as
a part of the court proceedings, there has been debate about whether or not this victim
‘instrument’ introduces an irrelevant issue into the sentencing of the offender. Proponents
argue that any weight given to the experience of the victim in terms of ‘harm’ would lead
to disproportionate sentences and thus to a violation of the proportionality principle. In
this study, we examine this issue by disentangling which factors determine people’s reac-
tions to offenders and victims of crime. We predict that, whereas judgements relating to
the offender (and his or her punishment) co-vary with the severity of the crime, people’s
judgements related to the victim co-vary with both the severity of the crime and the
experienced harm.
Punishment of offenders: Empirical desert and the severity
of crime
Theories concerning the punishment of perpetrators of crime have been widely debated
for centuries. Although they come in many shapes and sizes (for an overview: Tonry,
2011), the key distinction is between the family of deontological theories, most often
associated with Immanuel Kant and G.F. Hegel and the utilitarian theories, the heritage
of which can be traced to Jeremy Bentham. Whereas utilitarian theories consider the
consequences of punishment to be its key motivation, deontological theories view pun-
ishment as a necessity, an imperative in the light of the wrongdoing that preceded it. The
utilitarian wonders whether punishment will deter the offender from committing crime
in the future, or whether the existence of punishment prevents others from doing the
same. For the deontologist, these consequences are irrelevant, and in particular in the
latter case immoral, because they entail using the offender as a means to the end of crime
prevention. What matters is the wrongfulness of the deed (that is, the actus reus) and the
motive and mind-state of the wrongdoer (that is, the mens rea). These different rationales
also translate into different dimensions upon which the question of the magnitude of
punishment is to be decided. For utilitarians, this is proportional to the punishment’s
forward-looking, deterrent and preventative effects. For deontologists, it is proportional
to the wrongfulness of the crime.
For a long time the debate has been the sole province of ethics and moral philoso-
phy. More recently, investigators have become interested in providing empirical input:
how do people actually make decisions about punishment? In particular, the work of
Robinson and Darley, and their colleagues, has sought to provide answers to this ques-
tion. An increasing body of evidence suggests that, even though respondents might
explicitly allude to utilitarian theories (Carlsmith et al., 2002), their actual decisions
and theories in use are guided by deontological notions of desert (Darley, 2009;
Robinson and Darley, 1997, 2007). Importantly, this ‘empirical desert’ (Robinson and
Darley, 1997) has been shown to be based upon the severity of the crime in question
– its wrongfulness – rather than the extent of the harm the behaviour causes (Alter
et al., 2007). Sorting out the wrongfulness and harmfulness of crime can be a tricky
matter, given that much of the reason crime is wrong (‘mala in se’) lies in the fact that
it is harmful – either in a manifest manner (the damage to property or personal harm)
and/or in the symbolic threat it poses to core values of our society (Duff, 2001). The
Lens et al.
185
crime of rape is wrong to a large degree because of (the presumption of) the harm it
causes, and the extent to which a given crime is more severe (that is, has a higher
degree of wrongfulness) is correlated with the harm it is thought to cause. Nevertheless,
wrongfulness and harmfulness can be disentangled. An illustration is the intuition that
a higher level of punishment is warranted for attempted murder (high level of wrong-
fulness, lower level of harmfulness) than for negligent homicide (lower level of wrong-
fulness, higher level of harmfulness), which is indeed also the rule in criminal codes in
most, if not all, jurisdictions (for example, Alter et al., 2007).
The importance of experienced harm to victims of crime
Whereas people’s reactions to offenders follow the logic of empirical desert and are
guided by the severity of the crime committed, assistance and support to help victims
recover from the crime’s impact are guided by the harm that actually emerges. Pemberton
(2014) concludes that whereas the offender’s actions and the proportionate reaction to
these actions should be measured along the dimension of wrongfulness (‘the yardstick of
wrong’), the reaction to the victim’s predicament should take the experienced harmful-
ness as the point of departure (‘the yardstick of harm’).
Crime’s wrongfulness is in part determined by the harmfulness it usually and/or fore-
seeably causes, but research in victimology reveals that the experienced consequences of
similarly severe crimes display large variation from one case to the next (for example,
Winkel, 2007). Although there is a clear correlation between the harm victims experience
and the severity of the offence, pre-existing, co-occurring and aftermath factors all influ-
ence the experience of victims of crime (Ozer et al., 2003). These idiosyncratic experi-
ences of victims of crime should, as a matter of course, be mirrored in the way they are
treated, with emerging consequences determining the necessity of psychological and/or
medical treatment (NICE, 2005). A key task of psychological professionals in the after-
math of mass victimization events is to match support and treatment to the extent of harm
experienced by the victim.
This is not to say that third-party support and assistance will necessarily track victims’
experience of harm. The research surrounding the justice motive (Hafer and Bègue,
2005; Lerner, 1980) has repeatedly demonstrated that victims’ suffering can give rise to
negative derogating and blaming reactions, where paradoxically the extent of enduring
suffering can lead to a lack of support and an increase in negative reactions (Aguiar et al.,
2008; Correia and Vala, 2003). In addition, recent research has revealed the importance
of people’s pre-existing expectations of victims’ reactions: A ‘mismatch’ between the
observers’ expectations of the victim’s suffering and a victim’s emotional demeanour
negatively influences the observers’ attitude towards the victim (Lens et al., 2014).
Where as a rule the (non-verbal) expression of emotions has positive effects on people’s
perceptions of the victim’s credibility (also called the ‘Emotional Victim Effect’; Ask
and Landström, 2010; Winkel and Koppelaar, 1991), this is constrained by the extent to
which the emotional reaction is viewed as a proportional response to the severity of the
experienced crime. Lens et al. (2014) showed that, in comparison with victims of severe
crimes, victims of less severe crimes who deliver a highly emotional VIS run the risk of
being derogated and...
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