BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.
In 1982, after their son Scott was murdered, the Campbell family was barred from entering the courtroom when the murderer was tried. They were not allowed to make sentencing recommendations and only learned of the killer’s subsequent release from prison through media reports. The Campbells were not alone. Victims at this time were not simply a blind spot, a group that the criminal justice system simply failed to include in its calculations. They were actively marginalized.
Throughout the latter decades of the 20th century, victims of crime were granted no formal legal status. To the criminal justice system, these people – who had been injured and traumatized – were little more than witnesses or sources of evidence, likely to be re-traumatized by their encounters with law enforcement and prosecutors. It comes as little surprise that victims were frequently, if not systematically, excluded from criminal proceedings.
Today, there is little doubt that victims of crime have been granted some place at the table. But this place was only formally set in 2004, when Congress passed the Crime Victims’ Rights Act (18 U.S.C. § 3771) – granting victims and their families the right to be informed of trial developments and a limited role in criminal proceedings. This was certainly a step in the right direction; however, victims and families are often nevertheless left on their own. Compensating victims – especially for the non-financial harms – has traditionally been an afterthought.
As an aspect of sentencing, restitution is only mandated in about one-third of states, and it’s usually limited to violent felony offenses. Even where restitution is required, courts make no room for losses that cannot be strictly quantified. Pain, suffering and psychological trauma – in many cases the most lasting harm to victims – are not accounted for in the equation.
Perhaps more onerous, although certainly easier to rationalize, restitution frequently requires conviction. Of course, there is a glaring disparity between the rationale underpinning this conviction requirement and the reality of criminal justice – one that becomes more obvious in sexual assault and abuse cases. Convictions are few and far between. In cases of assault and battery, only 41 out of every 10,000 criminal offenses will lead to a criminal conviction, according to the Rape, Abuse & Incest National Network (RAINN). Thus only a small minority of victims will receive the “justice” made possible through criminal proceedings, let alone the private remuneration promised by restitution.
Thankfully, conviction usually isn’t required for victims to receive compensation through a state-administered compensation fund. In most cases, an arrest isn’t required, either. But prompt reporting is, and victims are required to cooperate fully with criminal investigations. But even here, we find a glaring disparity. Only 34% of rapes are ever reported, according to the Bureau of Justice Statistics, often because the victims are related to the perpetrators and fear retaliation. When children are the victims, the statistics become even less heartening.
And while there has been progress compensating victims for physical injuries, recognition of compensable psychological injuries has been less successful. Some state programs only compensate victims, even direct victims, for physical injuries. The legislative process is slow, and we can’t expect federal and state legislatures to capture every scientific development instantaneously; but a maturing neurobiology of trauma has closed the gap between “psychological” harm and physical damage. Brains are flexible and trauma is real. Where children are concerned, we now understand that brain development “grows” around traumatic experience. It’s time that we brought “pain and suffering” under the heading of physical injuries, where a robust science of victimization tells us it belongs.
For now, civil action completes the picture, making up for the deficits inherent in the criminal justice system and expanding the scope of those damages which are considered compensable.
Likewise, the bright line separating criminal and civil proceedings – public and private wrongs – has been obscured in recent years. Victims have been granted a limited role in criminal proceedings and, in increasing numbers, are learning that they have a right to private action.
These developments are critical, and while parallel proceedings can produce significant complexities for prosecutors and civil attorneys, a truly rational justice system demands both concern for societal health and individual lives.