It takes two to tango, goes the famous saying, and despite what 70s sitcoms try to tell you, three is most definitely a crowd. This is even more so in the criminal justice system, where there are two parties to every prosecution: the individual accused and the rest of the citizenry, on whose behalf the accusations are made.
But in recent years there has been a move – and to some extent rightfully so – toward giving the individual victim more input and a greater voice in the process. But the basic structure has – and should – remain the same: State v. defendant. In a sense, it is the State as a whole that has been victimized; the collective peace, law and order. Our laws, which are rules we have agreed to in order to maintain a semblance of morality and structure, are designed to protect the orderly functioning of society. We give up certain rights in order to have others.
So it’s good to see a court even as conservative as Connecticut’s top court acknowledge and reaffirm this. Today, in State v. Gault, the CT Supreme Court held that a victim is not a party to a criminal case.
It is a ‘‘basic tenet of the criminal justice system that prosecutions are undertaken and punishments are sought by the state on behalf of the citizens of the state, and not on behalf of particular victims or complaining witnesses.’’ State v. Barnett, 980 S.W.2d 297, 308 (Mo. 1998), cert. denied, 525 U.S. 1161, 119 S. Ct. 1074, 143 L. Ed. 2d 77 (1999). ‘‘A criminal prosecution is a public matter and not a contest between the defendant and his victims, or their relatives.’’(Internal quotation marks omitted.) Id. It is axiomatic, therefore, that ‘‘[t]he parties to a criminal action are the [state], in whose sovereign name it is prosecuted, and the person accused’’; Dix v. Superior Court, 53 Cal. 3d 442, 451, 807 P.2d 1063, 279 Cal. Rptr. 834 (1991); and not the crime victim(s). State v. Harrison, 24 P.3d 936, 945 (Utah 2001).
It is important to note that while the decision, viewed most simplistically, is a ruling against a victim in a privacy case, there are broader, more important implications here. It is a ruling for due process and the rights of a defendant and that of society as a whole to have an orderly determination of the matter of guilt or innocence of one of its citizens. That the victim in this case was raped or kidnapped is irrelevant to the story. She might as well have been a he and he might as well have been defrauded out of $1,000,000.
The very thing that the victim in Gault sought to do was considered and rejected by the legislature in 2007, for much the same reasons that the supreme court rejected it today. To permit to enter into the fray a third party, whose interests are already ostensibly represented by an existing one, but not tempered or checked in any way by concerns of judicial economy, fairness, due process and – sometimes – justice, would be to take an already chaotic system plagued by allegations of disparity and unfairness and turn it into even more of a quagmire.
Whaaat? Next you’re going being saying being the surviving victim of a horrible home invasion and murder doesn’t make an individual the sole authority on the appropriateness of the death penalty!
If I hadn’t taken a vow of silence on that whole matter, I’d say something in response. But yeah.
This is good news indeed.
It becomes clear why some ‘victim-friendly’ or victimist legal lights would like to see the German criminal trial system adopted here. There is no jury, only a banc of judges (including two ‘lay specialists’ who may well be victim-friendly and meant to ensure a correct vote on the decision – which, by the by, is now being called for in the US military-justice system for all sex-related cases). The judges are inquisitorial, meaning that they do the questioning; the prosecutor’s role is pretty much over once the charges are filed. And the designated Victim is actually a formal Party and can have counsel.
A variant demand is for the erection of ‘special courts’ – such as the old ‘family court’ has often become in regard to Domestic Violence issues – for sex-related crimes. The judges in such cases would be specially-trained in the ‘complexities’ of sex-related cases (code, I would say, for knowing how to sidestep the profound evidentiary problems in so many of these he said/she said matters by simply presuming the utter credibility of the alleged victim’s story and ‘memory’.
I would say that all of this type of thing is the poisonous fruit of radical-feminism and then critical legal studies having adopted the principles of an alien political and legal Universe, to wit the poisonous tree of Marxist-Leninist ‘revolutionary law’: the law is the law-at-war, on behalf of the ‘oppressed’ and ‘dominated’ and ‘marginalized’, and the current ‘rule of law’ (that is to say, the constitutional jurispraxis and jurisprudence according to the Framing Vision) is simply the rule of dominanant and oppressive ‘patriarchy’ and said infamy must be swept away (as forthrightly demanded by radical-feminist legal professor Catharine MacKinnon in her 1989 book ‘Toward a Feminist Theory of the State’).
The presumption against any member of the ‘oppressor’ class (can you hear ‘kulak’ here?) is that he is guilty by nature; transposed – as MacKinnon does – from matters economic to matters sexual, the ‘male’ is thus by very nature guilty and ‘mens rea’ is merely another male ploy (‘the rule of law is the rule of patriarchy’) to keep up the oppressive status-quo. And since so many women are enthralled by ‘patriarchy’ and their submissive role in it, then no woman can possibly be said to actually ‘consent’ to (heterosexual) sex and thus all (heterosexual) sex is rape.
These assertions (you can hardly call them legal principles) are fatal to the Framing Vision and to any continuance of the Framing Vision and Western law. That should have been clear from the get-go, decades ago.
In the state attorney office in my area (i’m a defense attorney) the desires of the victim as to punishment are taken very strongly into consideration by both the prosecution in plea bargaining and by judges. State law provides that victims have the right to be heard at sentencing and to be informed of progress of the case, etc. it is frustrating for the character of the victim to be determinative of sentence.