The Human Rights of Victims in the Criminal Justice System*
| Published date | 01 September 1979 |
| Author | Grant Wardlaw |
| Date | 01 September 1979 |
| DOI | 10.1177/000486587901200304 |
AUST &NZ JOURNAL OF CRIMIN()L()CY (September 1979) 12 (145-152)
THE
HUMAN RIGHTS
OF
VICTIMS IN
THE
CRIMINAL
JUSTICE SYSTEMo
Grant
Wardlaw]
145
Any discussion of the rights of victims (and their remedies in the case of
violation of these rights) must first seek to clarify the context within which these
rights are said to arise.
One
commonly held view is
that
citizens have
surrendered to the State their right to
defend
themselves directly, except in ,an
emergency. In return for this diminution of individual power, the State
undertakes to provide protection
for
the citizen in the form of police, courts, and
penal systems. It.is accepted, therefore, that the State is
under
some obligation to
provide a safe environment for its citizens. Having
accepted
this obligation the
State must then decide whether it must also
accept
the responsibility for treating
or providing redress for those citizens it fails to protect.
We can trace the historical genesis of this dilemma. There are numerous early
references to the blood feud and private revenge (the Bible's "an
eye
for an eye,
a tooth for a tooth") as the legitimate exercise of a vitim's rights in compensating
for a wrong
done
to him. As the fabric of society became more complex, and the
need for regulation correspondingly greater, the idea of the State organizing'
compensation
became
prominent. Thus,ss 22-24of Hammurabi's
code
in ancient
Babylonia stated that:
If a man has committed robbery and is caught that man shall be put to death. If the robber is not
caught, the man who has
been
robbed
shall formally declare
what
he has lost'
...
and
the city
.•.
shall replace whatever he has lost for him. If it is the life of the owner that is lost,.the' city or the
mayor shall pay one maneh of silver to his kinsfold.!
As the criminal justice systems evolved, community interests became
predominant over those of the individual. This change was complete when,
instead of reparation to the offended citizen, fines were levied which passed
directly to the State. Now crimes
came
to be viewed as offences against the
State with a consequent distinction
between
criminal
and
civil proceedings.
Within this context an offender owes a
debt
to society rather than to the
individual victim of his offence.
The
punishment meted
out
by
the courts is
presumed to be "psychological reparation" to the victim, which satisfies his
desire for revenge. If further redress is sought, it is the victim's
right
to bring a
private action in a civil court;
but
only after he has co-operated with the criminal
justice system as a witness for the State.
The transfer of
power
from individual to State has seriously curtailed the
rights of victims of criminal actions
and
has, consequently diminished their
• This.is a modified version of a paper delivered to the United Nations Course on Human Rights in
the Administration of Criminal Justice, Canberra, Australia, 29 November-17 December 1976. The
opinions expressed are those of the author
and
do not necessarily represent the official views of the
Australian Institute of Criminology.
tPhD Criminologist, Australian Institute of Criminology.
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