Colin James 22 July 2007
Quick thinking by National’s Simon Power forced a defeat of the government on 19 July on an ACT amendment to preserve victims’ right to attend and speak at parole hearings of their attackers. Losing this right would have compounded a serious constitutional error which we are only slowly addressing.
Originally an attack by one person on another causing harm, injury or death was treated as a tort — a wrong — between two people, much as a trespass would today. The wronged person could seek or enforce redress for the wrong.
Left unregulated, this can lead to long-running feuds — an eye for an eye, a tooth for a tooth, in biblical parlance. In tribal or clan societies, such as Aotearoa or Sicily — or youth-gangland South Auckland today — this breeds a spiral of retributive violence as scores are settled, then re-settled and re-settled. Romeo and Juliet is the most famous fictional example, revived in West Side Story set in 1950s New York.
A killing was avenged with a killing, a maiming with a maiming. That is the dark side of utu. Once it starts it is hard to stop.
The result can be intractable social disorder. That is inimical not just to a peaceable life but also to prosperity because a disorderly society is condemned to suboptimal economic development.
It also offends the counter to “eye for an eye”: “Love thy neighbour as thyself.” Forgiveness is morally preferable to revenge in Christian teaching.
The response was to delegate the regulation of interpersonal violence to the state as an impersonal upholder of order and (at least nominally) defender of Christian values. The King (in Britain’s case) took a case against the attacker in the King’s courts, which heard the case and meted out a penalty: hanging or prison or detention of some other sort or a fine (to be paid to the state).
Thus a tort against a person became a crime against the state. The victim was sidelined, left without recompense and, if disabled, reliant on charity or, as social security took over from charity, the state.
Only in the recent past has the victim been recognised as having rights against the attacker beyond that of having the state act on the victim’s behalf. Occasionally now an attacker is ordered by criminal courts to pay restitution to the victim.
The victim is also allowed, within constrained limits, to read an “impact statement” to the court before sentencing. This potentially influences a judge towards a harsher sentence to account better in some way to the victim for the wrong.
An attacker seldom serves all his or her sentence. The prisons are full. Parole boards need to play their part in emptying them to ameliorate the crushing fiscal pressure of incarceration.
Now Power has joined with ACT to add a small extension to these tepid victims’ rights, a right to argue to the parole board that the attacker should continue to serve the sentence. (Victims, of course, include close family members of some killed or maimed.)
Why has this taken so long? Because there is a hope that attackers can be “rehabilitated” so that they will not attack again. If victims can have a go at them in court and then potentially derail their rehabilitation by delaying their release from an institution that is likely more to entrench than expunge their wrongheadedness, that does not serve society’s greater long-term interest in their becoming a positive contributor to society than is likely to result from simple revenge.
But a victim should not be the state’s victim in addition to being an attacker’s victim. That compounds victimhood. A victim is more likely to acquiesce in or positively contribute to a genuine rehabilitation if there is a sense of real, not just impersonal state-meted, justice — and society’s greater interest in rehabilitation than simple revenge is thereby more likely to be served.
The issue is balance, as in all things political. The balance is being slowly restored.