Most commonly, victims will blame the perpetrator, but they also frequently blame the police for failing to protect them and blame society for creating the circumstances leading to the crime.

If the word "attribution" is substituted for "blame," the questions of meaning be come more apparent See Miller & Porter, Self-Blame in Victims of Violence, 39 J. Soc. Issers 1:39 (19803) (self blame is defined as attribution, control and meaning are supplied for victims through attribution)

133 Bingess & Holstrom, Coping Behavior of the Rape Victim, 133 Am. J. PsychATRY
413, 416 (1976) (some women denied the event; some dissociated the experience; some
One sexual assault victim captured this phenomenon perfectly: "You
suppressed it.
It's so unreal that you don't want to believe it
don't want to believe it happened
happened or that it can happen. Rape, supra note 101, at 5, col. 3.
་་་ See note 131 supra.
135

Robert Lafton's formulation of responsibility postulates that adjustment oc-
curs in three phases The first is "confrontation," a recognition of the impact of exter-
nal forces and of the potential for choice. The second is "reordering." an exploration of
existential guilt and a testing of new ideas and behaviorS The third is "renewal," the
chowe of an ideological path R LIFTON, THOught Reform, supra note 95, at 463–67.

136 See W Ryan, Beaming THE VICTIM (rex ed. 1976). Blaming victims for their
plight tends to make them feel guilts The trap of blame and guilt creates a bond be
tween the victim and the event that may come to dominate the victim's life, making it
impossible for the victim to live independent of the criminal event. See notes 268-275
mpa and accompanying text.

968

STANFORD LAW REVIEW

(Vol. 37-937
or by withdrawing from the victim's distress'"'—may deprive the
victim of the reassurance of relationship to others. Frequently,
like Job's comforters, we are not content simply to console or to
provide victims with the connection to others that they need.
Rather, we tell the victim what the victim should feel or think, or
we blame the victim for his or her plight. In part, nonvictims
tend to blame victims, misunderstand the particular experience
of victims, and expect victims to return to their “old selves"
quickly in order to protect themselves from perceived threats to
116 Even if members of the vic-
their own sense of invulnerability,'
tim's family or community are initially responsive and supportive,
tolerance for a victim's feelings of loss, anger, fear, or meaning-
lessness is likely to wane long before the victim has time to begin
to integrate the experience,147

Answers to the questions of death, meaning, responsibility,
and isolation vary from individual to individual, just as behavioral
and psychological manifestations of these existential issues differ
from victim to victim. And these questions do not follow each
other in the orderly way in which this discussion has presented
them. They merge, overlap, and differ in saliency at particular
times. The issues of victimization seldom manifest themselves
clearly as "death anxiety" or crisis of meaning: Anger, fear, frus-
tration, loss, grief, confusion, and guilt are feelings that may re-
late to or mask these issues, and the underlying issues may take
years to express or understand.

B.

The Implications of the Theory

Common assumptions about crime victims-that they are all "outraged" and want revenge and tougher law enforcement—

for Victims. 39 1 Soc Issues 169, 171-75 (1983) (summary of studies of reactions of TOHV JCTIBIS to victimis)

145 Id. Our culture places a great emphasis on "happiness" and the absence of Seeing another's distress makes us uncomfortable, so we often withdraw

distress

contact.
146
Coates & Winston, supra note 144, at 175 CIt would appear, then, that when
117
victims ful to quickly snap out of it, others try to enforce standards indicating they
should do so")

See notes 108-109 supa and accompanying text

118 Given the profound nature of the experiences of victims, it would be foolish to say that there is one "right" way to cope with the experience Although some gener alizations about the effect of extreme trauma on individuals are possible, the resolution of the crisis depends on an inhmte number of external and internal variables influencing Moreover, as Bettelheim observes, "[a] survivor has every tight to the individual B. Bertenheim, supra note 90, at 37. choose his very own way of trying to cope

April 19851

VICTIME'S RIGHTES

965

underlie much of the cinrent victim's rights thetoric.'"" But in
light of the existing psychological evidence, these assumptions
fail to address the experience and real needs of past victims. The
theoretical outline just presented speaks to the experience of be-
ing a past victim; the prospect of becoming a past victim as the
concern of society is evidenced by the concern for future victims.
In this way, violent crime touches all of us with the reality of the
unpredictable, the threat of death, the dilemma of meaning, the
responsibility for choice, and the reality of isolation. To the ex-
tent that we examine these issues of our own accord—to the ex-
tent that resolution comes through more voluntary reflection and
experience—the concern for future victims is very different than
that for past victims. For future victims, we can seek to prevent
the experience, but for past victims, the experience is already a
reality. For past victims, we can only seek to avoid interfering
with or denying the individual victim's efforts to resolve these
questions.

While questions of existence rarely manifest themselves in a
pure, abstract form, the issues are nevertheless unavoidably pres-
ent for all victims at some level. Past victimization catapults indi-
viduals beyond what nonvictims or future victims can know; the
ontological rules change. What is "good" for future victims-the
prevention of harm, the diminution of evil—is no longer applica-
ble to past victims, who, for at least an instant, have seen the
abyss. The rape victim who becomes hysterical soon after police
arrive provides an illustration of this tension: Hysteria may be a
necessary release of tension and an affirmation of being for
someone who has just seen the prospect of nonbeing."" But in
the interests of future victims-apprehension of the culprit
before he creates more damage and punishment of the guilty—
the police necessarily seek rationality, information, and evidence.

A victim's contact with the criminal justice system may hinder
him or her from coming to grips with death, meaning, responsi-

119

Ser notes 70-71 supra, 266-267 mpa and accompanying texts

150 Tronically, the hysterical reaction is the one most likely to give the victim cred
ibility in the eyes of the police Although a lack of a perceptible response of affect is not
unusual, it may lead the pohee to believe no crime oremred Ser Berger, supra note 68,
at 23-21 & 150, see also Burgess & Holstrom, supra note 89, at 982 (discussing two
forms of mmediate emotional response to rape, one, "the expressed style, in which
feelings of fear, anger, and anxiety were shown through such behavior as crying, sob-
bing, smiling, restlessness, and tenseness"; the other, "the controlled style, in which
feelings were masked or ludden and a calm, composed. of subdued affect was seen)

966

STANFORD LAW REVIEW

Vol. 37:937 bility, and isolation in innumerable ways. The criminal justice system provides a ready set of opportunities for blame and denial, proceeds on the basis of mistaken normative assumptions about victims, and emphasizes rationality—or the appearance of

it.

To be of value to past victims of core crimes, victim's rights
proposals ideally ought to assist, rather than interfere with, the
victim's resolution of the experience. The remainder of this arti-
de examines the meaning of victim's rights proposals in light of
both traditional legal thinking and the existential nature of vic-
timization. Of course, the criminal justice system cannot ulti-
mately answer the individual's questions of death, meaning, and
responsibility because its focus is on the event itself; its concern
is with the narrower issues of identifying the offender and deter-
mining legal responsibility. But insofar as the isolation of past
victims is concerned, the criminal justice system may provide a
social context in which some meaningful "connection" for the
Whether or not "victim's rights" provides this con-
nection will be a central part of the remaining inquiry.

victim exists.

A COMPOSITE OF VICTIM'S RIGHTS PROPOSALS
One persistent image of the American criminal process is that
it "revictimizes" the victim. The President's Task Force Final Re-
** for example, portrays the ill-treatment of crime victims in
port.
a particularly apocryphal story. The Final Report describes the in-
sensitive treatment of a widowed 50-year-old rape victim by the
police and hospital personnel. It then details the numerous
abuses that the criminal justice system inflicted upon the victim,
including an indifferent and ineffective attempt at preventing
threatening phone calls to the victim by her attacker from jail, an
inconvenient scheduling of line-ups, unethical activities by de-

toward the

One study of assault and robbery victims in Brooklyn and Newark found that 151 the motivations of victims differed from the goals of the criminal process and that vic tims were often dissatished with the performance of prosecutors, judges, and police. R. Furys, supra note 72, at 83-110. I wenty percent of those sinveyed had negative feelings "system" that manifested a transfer of blame. Typical comments included: The law doesn't protect the citizen," and I'm frustrated I won't deal with system anymore. Next time I'll just kill him and when they take me to court I'm the going to tell the judge that I want the same treatment as thus guy gor Id at 134 Although many of the victims surveyed saw a need for better law enforcement or stricter sentencing. 26% had no suggestion for improving the situation for future crime victims because they were apparently satished with the way in which their cases were handled 14 at 135

April 1985]

VICTIM'S RIGHTS

967

fense counsel, repeated failures by the prosecutor to inform the
victim about her role in hearings and the trial and to promptly
notify her about postponements, the emotional and financial bur-
den of delays in the process on the victim, the enormous pres
sure and humiliation of testifying, and the short sentence that
was eventually imposed on the rapist.

་་་

The scenario presented in the Final Report is indec` horrify-
ing. It is also somewhat incredible to anyone acquainted with
criminal law practice, and it is insulting to judges, prosecutors,
defense attorneys, and law enforcement officers. It is a compos-
ite of everything that could go wrong in the process, rather than
a chronicle of an actual case. Yet the scenario presented in the
Final Report, and other horror stories like it, have led to numer-
tion, 15%
ous victim's rights proposals that purport to remedy the situa-
following elements:
These proposals typically contain one or more of the

(a) that the suspect remain in custody after arrest;

(b) that few, if any, delays exist between arrest and prelimi

nary hearing, and between hearing and trial;"'7

determined;'
(C) that plea bargaining either be eliminated or be victim-

(d) that there be minimal, if any, cross-examination of vic
tims by defense counsel.

ויין

(e) that exclusionary rules be abandoned;

153 Id 3-13

151

The President's Lask Force admits as much "Based on the testimony of
victims, we have drawn a composite of a victim of crime in America today" Id at 3
nonetheless asserts, however, that the composite victim is every victim

155

"

Senator Edward Kennedy heard "horror stories of murder, rape and torture"
from witnesses advocating the abolition of parole ma hearing before the Senate Jucher
1983, at 8, col I
aty Committee, for example See Crime Victims Agony. San Francisco Chron, May 21,
One seldom hears from victims for whom the system has worked
But see Silverberg, My Mugging Justier Is Done, Newswerk, July 1, 1983, at 13 Garguing
that the press may have overemphasized those instances where malfunctions in the crum
inal justice system have occured)

156 See g
157
See. CR
158

WIS. CONST art 1. §8 (1981). TASK FORCE, supra note 74, at 22
LASK FORCE, supra note 71, at 57-68, 75 76

See, eg, CA PENAL CODE & 1192 7 (West 1983), R. RET, supra note 25, at
111-17, TASK Lower, supra note 71, at 65-66, Gilford, Meaningful Reform of Plea Barpan
159
ing the Control of Prosecutorial Diarction, 1983 U In 1. Roy 17,90-92

LASK FORCY, supan meste 71, at 21 gecommendhing that victimis not be
required to appear at prehmmmary proceedings and that hears is testimony of jedne of
other law enforcement officers be admissible isteach

ltit} zཛg, ་ ་ CONST at 1. § 2861). Lask Force, supra meite 71, at 24 fourth
amendment exclusionary rule only), see also California Lagistative ASSEMBLY COMME
ON CRIMINAL JUSTICE, ANALYSIS OF PROPOSITION 8, 9-10, 14 17 (1985

968

STANFORD LAW REVIEW

Vol. 37:937

161

(b) that victims be allowed to participate in sentencing;' (g) that victims receive full restitution.2 This composite portrays an "ideal" criminal process, one that more closely resembles a model produced by crime control ideol ogy than by supporters of a program designed to spare victims unnecessary trauma. Nevertheless, it may be that these proposals do in fact benefit past victims. The composite victim's rights proposal just presented has two components: One involves the process leading up to conviction, and the other involves the process of imposing sanctions. Part IV addresses the relationship of the pre-conviction component to the psychological effects of crime on victims; Part V makes a similar inquiry with regard to the sentencing component.

IV.

A.

PRECONVICTION CHANGES AND THEIR RelationsHIP TO THE
PSYCHOLOGICAL Needs of the VICTIM

Denial of Bail and Preventive Detention Statutes

Although the eighth amendment's prohibition against exces-
sive bail would seem to preclude pretrial incarceration of individ-
uals who can pay bail, the Supreme Court has declined to
apply the provision to the states or to address the issue of “pre-
ventive detention" of adults, "Preventive detention" is the im-

161

See, eg, note 233 mpa.

162.

See, eg, notes 315-317 mpa.

See Brosnahan v. Brown, 32 Cal. 3d 236, 305-06 app., 651 P.2d 274, 319 app..
163.
186 Cal. Rpt 30, 75 app (1982) (reprinting ballot statements); Victim, Rights Bill Fuels
Get-Tough Stand, 68 ABA. J. 530, 530 (1982) ("Geotge Nicholson, a candidate for Cali-
forma attorney general and a member of a five-man committee pushing the initiative,
sand the move is an effort to counteract liberal decisions by the California Supreme
Count :")

As of this writing, the Supreme Court has declined to decide whether preven
164
tive detention statutes violate the eighth amendment. See, eg, Murphy v. Hunt, 455 U.S.
178 (1982) (vacated as moot): United States v. Edwards, 430 A.2d 1321 (D.C. 1981), cont
demed, 155 US 1022 (1982). See generally Note. The Eighth Amendment and the Right to Bail.
Historical Perspectives, 82 Corvm 1. Rev. 328 (1982) (arguing that the historical meaning
and development of a right to bail and the intent of the Framers precludes the use of
preventive detention).
The Court did seem to approve preventive detention of
165 See note 161 supra
juvenile offenders last term See Schall v. Martin, 104 S. Ct. 2403 (1984). No suggestion
of meorporating eighth amendment concerns appears in the opinion; however, Justice
Rehnquist, writing for the majority, may have indicated a broader interest in preventive
detention by emphasizing the existence of a "legitimate and compelling state interest'
in protecting the community from crime" while, at the same time, stating that "the harm
given the high rate of recidivism among juveniles.”
to society may even be greater

April 1985]

VICTIM'S RIGHES

969

prisonment of a person before a formal determination of criminal
culpability based on an assumption that the individual is guilty,
dangerous, and should be removed from society. Conserva-
tives have supported preventive detention statutes since the
Nixon era, and preventive detention can be viewed as part of the
conservative support of the crime control model,17

Although preventive detention has slowly gained acceptance
in the law, first in the area of civil commitment, then by means

of a specific statute adopted in the District of Columbia," the
rate of its acceptance has quickened because of the emergence of
"victim's rights." By using both "past victim" and "future vic-
tim" rationales, conservatives have made substantial progress in
formally legitimizing preventive detention. 17 Both rationales fo-

Id at 2410 (quoting De Veau v. Braisted, 363 U.S. 144, 155 (1960)). The majority also
concluded that detention of juveniles in a juvenile facilty is not "punishment,” id at
2414, a conclusion sharply disputed by the dissenters, id at 2429 (Marshall, J.
dissenting).

166, These justifications are characteristic of crime control ideology, H. PACKER,
supra note 47, at 210-14, and of conservative ideology as well, see, eg. Borman. The
Selling of Preventive Detention, 1970, 65 Nw. UL.. Rev. 879, 881–84, 926–28 (1971); Mitch-
ell. Bail Reform and the Constitutionality of Pretrial Detention, 55 VA. 1. REV. 1223 (1969)
167 See Mitchell, supra note 166 (Nixon's Attorney General John Mitchell arguing
in favor of preventive detention); The Case for Pretrial Detention, address by Kleinhenst,
ALLA Midwinter Meeting (Jan. 30, 1970), reprinted in Preventive Detention Hearings before
the Subcomm on Constitutional Rights of the Senate Comm on the Judiciary, 91st Cong, 2dl Sess
1187, 1190 (1970) [hereinafter cited as Ieventive Detention Hearings) (We in the Depart-
ment of Justice believe that pretrial detention is essential to any serious effort to reduce
crime in the District of Columbia").

168. For example, the argument of then-Attorney Geneval John Mitchell in sup-
port of preventive detention rested in part on an analogy to civil commitment of the
mentally ill. See Mitchell, supra note 166, at 1283-34, 1241. The analogy is not entirely
appropriate, however, because civil commitment is based on a treatment model rather
than a punitive model. Moreover, subsequent decisions by the United States Supreme
Count and other counts have required the state to prove, by at least cleat and convincing
evidence, dangerousness as a result of mental illness. Compare Addington v Texas, 441
US. 418 (1979) (clear and convincing evidence requned in civil commitment proceed-
ings), with Estate of Roulet, 23 Cal. Sd 219, 590 P.2d 1, 152 Cal. Rpt.–424 (1979) tproof
beyond a reasonable doubt required for civil commitment). In O'Connor v. Donaldson,
422 US. 563 (1975), the Supreme Count indicated that civil commitment of the mentally
ill without treatment might violate the due process clause. Id at 577. Thus, a purely
preventive detention rationale, even in the context of civil commitment, night not pass
constitutional scrutiny.

169 DC. ComE ANN. § 23-1322 (Supp–1982) The statute provides that defend-
ants accused of crimes of violence can be detained for 90 days if the prosecution certiles
that the detention will "protect the community" on if the defendant has been convicted
of a violent crime within ten years of the current offense charged Id

170. Past victims who were victimized by someone released on bail are a perfect symbol of what can happen to the inocent public and are therefore used to raise fears of future victimization The fact that some mnocent people become victims of persons