Criminal law, victims, and the limits of therapeutic consequentialism

Abstract

In the 1971 cult movie A Clockwork Orange, the main character Alexander de Large is thrown into prison after a night of excessive ultraviolence. In ?normal? circumstances, the regular night?outs with his buddies are limited to beating and raping helpless victims, yet this time Alex killed a woman by giving her a fatal blow to the forehead with a gigantic artificial penis. Alex is sentenced to fourteen years imprisonment. After spending two years behind bars, he hears rumours spreading in the prison about a new kind of treatment which could in a fortnight cure criminals of their criminal tendencies. Alex takes the opportunity to volunteer as a guinea pig for the new aversion therapy. An experimental substance ?No. 114? is pumped into his veins which makes him feel miserable. Next, Alex is strapped into a chair in a movie theatre and brutal scenes of violence, rape, and nazi?terror are projected on the screen. The conditioning sessions prove to be highly successful: nausea and vomiting prevent him from relapsing in his old habits. Movies such as A Clockwork Orange ridicule and satirise some penal practices which prevailed at the time, namely treatment programmes which promised to ?cure? criminals and prepare them for return in due course to the majority of (presumably) law?abiding citizens. At that time, movie director Stanley Kubrick did not pay any attention to what might have happened to the relatives of the murder victim. How did they cope with the loss of somebody close to them? Were they able to resume their lives' How did they feel about the way in which they were treated by police officers, prosecutors, and judges' Were they in need of therapy to recover from trauma or to alleviate post?traumatic stress symptoms' And so on. Obviously, to give the movie a victimological touch would have resulted in less interesting cinema; it would have directed viewers' attention away from a much more appealing and exotic topic: the dystopia of a brain?washing State and the painful consequences of an obsession with order, conformity, and lawfulness. Yet, at that time, victims were not only of minor importance to movie?makers; also in society at large they hardly received any attention, notwithstanding some early victimological activity at the fringes of criminology. Victims, as some rare voices complained at that time, seemed largely to be forgotten. By 2008 much has changed. Since the 1970s, victim surveys (which ask people about their victimisations and their experiences) have started to compile and map the impact of crime and the views of crime victims on a broad range of topics. This avalanche of numbers on victims has been complemented by qualitative research into their experiences and their dealings with the aftermath of crime. As such, this newly emerging focus on victims was able to provide an increasingly detailed picture of the other side of crime. Moreover, at the same time ? and partly coinciding with the former ? a victims' movement (or better: victim movements, since they draw their support from different corners of society ranging from feminist critiques of the patriarchal order to conservative preoccupations with getting tough on criminals) started to raise its voice and campaigned to turn victims' personal troubles into public issues, such as victims' rights and services.2 This reform movement, like any other, explores the limits of criminal law. Reformers, by definition, perceive the existing system to be inadequate: either it fails in doing the things it claims to do (and so we need to change the way it operates), or it should start doing other things (and so we need to change its ends). By looking at crime from different perspectives and the multiple reactions it provokes, reformers are able to highlight new, previously unseen, facets of the crime problem. As a result they question why and how we punish. Taken?for?granted reasons for justifying penalties may suddenly appear invalid, or other reasons, related to new aspects (such as victimisation), are added. Sometimes this reform activity aims at the formulation of new ?good consequences'; that is, the criminal justice system needs to incorporate certain ends that are deemed to be desirable, goods it should try to achieve. This is what philosophers of punishment call ?utilitarian? or ?consequentialist? reasoning. If we punish on the basis of such good consequences, so the argument goes, we will be able to punish and go to bed without running the risk of suffering from sleepless nights: the deliberate suffering of the punishee turns out to be justified. This consequentialist type of penal thinking will be at the centre of this chapter. In the next section we step back a number of centuries in order to demonstrate how a penal reform movement started to question prevailing ways of thinking about punishment. With the help of the insights of a new scientific discipline called ?criminology?, it aimed to instrumenalise late 19th century criminal law in order to make it more effective in the fight against crime, inter alia by trying to ?cure? criminals. In the third and fourth sections we return to the present. The plight of the crime victim poses new challenges for contemporary criminal law. It will be argued that a new kind of consequentialism is in the making which strives towards ?healing victims' and which avails itself of a therapeutic language to describe what these desired ?good consequences' are: closure, emotional restoration, trauma recovery, reducing post?traumatic stress, and so on. The fifth section will explore the limits of this form of victim?oriented therapeutic consequentialism. © 2009 Springer-Verlag Berlin Heidelberg.