Empathy for Victims in Criminal Justice: Revisiting Susan Bandes in Victimology

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Empathy for Victims in Criminal Justice: Revisiting Susan Bandes in Victimology

ANTONY PEMBERTON^*

I.Introduction

Where in other areas of legal scholarship the notion of law and emotions might meet enduring resistance, this is certainly not true for Victimology. Indeed the understanding that emotions play a key role in the way victims of crime and abuse of power experience legal processes all but goes without saying. Assuaging the burden—the ‘secondary victimisation’¹—of the criminal justice process has from the outset been couched in emotional terms, while the positive value of participation is increasingly portrayed in such a way as well.² A victimologist therefore, with an interest in justice processes, is automatically involved in law and emotions scholarship, even without any explicit awareness of this fact.

This is not to say that the debates surrounding the role of emotions in law are unfamiliar terrain to scholars involved in victimological research; indeed it is a recurrent phenomenon. However, the perception of an emotional essence to victims’ issues, combined with the relative novelty of considering the position of victims within criminal justice processes, means that the kernel and outcome of these debates are understood as concerning the appropriate place for victims in law rather than the appropriate place for emotions. Both the victims’ (supposed) nature as emotional beings, as well as particular emotions associated with victimisation deemed particularly problematic—anger, outrage, hatred and their connection to revenge—often feature in these discussions.³ The questions at issue are whether it is true, problematic and/or valuable that the victim’s input in the process is emotionally charged,⁴ and similarly whether it is true and/or problematic that the emotions victims experience are vengeful in nature.⁵

One of the upshots of this is that much of the normative discussion about victims’ emotions in criminal justice focuses on the issue of revenge, which, although it is an important topic, drowns out consideration of the more subtle and complex ways in which victims’ emotions can interact with or be expressed in justice processes and the extent to which legal processes can and should respond to these emotions. A classic text in the Law and Emotions canon that deals with a victimological subject does do so, and much of its line of thinking merits renewed attention. It is Susan Bandes’ Empathy, Narrative and Victim Impact Statements (ENV) that appeared in the University of Chicago Law Review in 1996.⁶

In this paper Bandes offers an incisive analysis of two concepts—empathy and narrative—which are of lasting importance in understanding the complexities of the position of victims of crime in criminal justice.⁷ As I will argue, this value only increases when divorced from the immediate topic of concern to Bandes, whose ‘interest in victim impact statements was originally propelled by concern about—or, more accurately, outrage over—the result in Payne’.⁸ This, of course, refers to the landmark US Supreme Court decision in Payne v Tennessee,⁹ which allowed victim impact evidence at the sentencing phase in capital cases.

This is so for a number of reasons. At the most general level the relevance of re-examining Bandes’ insights applies to a wider context, other jurisdictions and to a broader conception of victims’ rights. In particular, the reasoning in Payne can stifle debate by setting up a straw man, that can and should be criticised, but has the unfortunate by-effect of skewing discussion towards issues that only arise in or are intimately connected with the particular context of the death penalty. Any trial that can lead to capital punishment should be viewed with concern, but it also casts a long shadow over the purpose of the proceedings, including the framing of the perspectives of participating actors, whether the judge, the jury or indeed the victim. Given the issues at stake in a capital case, the value of debating Payne is difficult to overstate for legal practice in the United States; however the portability of this specific context is limited, which in turn restricts the contribution to victimological theory elsewhere.

This will lead me to argue, secondly, that the criminal justice process is a part of rather than a reaction to the narrative of victimisation. The legal context has particular narrative qualities, not only due to its specific organisational characteristics, but also because it contributes to the victim’s narrative both when it is and when it is not involved in the reaction to victimisation. Whether victims’ narratives feature in criminal justice or not, criminal justice features in victims’ narratives. Much of the underlying motivation of victim participation in criminal justice can therefore be helpfully reinterpreted as a means to connect the victim’s narrative to the criminal justice process. We will develop the importance of inclusion of such communion-based motives in this desire and argue how this can give rise to new ways of conceiving of practice and purpose of victim input.¹⁰

Finally, I will show that understanding the competing narratives surrounding victim input in criminal justice can illuminate some of the negative experiences subsumed under the term secondary victimisation. Similarly, the imposition of these competing narratives upon the victim’s perspective underlies practices that are victimological in name only. The victim impact statements (VIS) in the aftermath of Payne are one particular example of this phenomenon.

This will lead me to conclude that although I concur with Bandes’ position in the discussion of Payne v Tennessee, including her adoption of empathy and narrative to make her case, they can also support a decidedly more positive evaluation of victim participation in criminal justice.

II.Revisiting Empathy, Narrative and Victim Impact Statements

A.The Impossibility of Excluding Emotion and Narrative in Legal Proceedings

In line with a large body of research, Bandes argues that neither emotion nor narrative can be excluded from legal proceedings.¹¹ She argues that ‘There can be no debate about whether narrative belongs in the law. Such an argument would begin from the faulty assumption that we have a choice about whether to permit narratives into legal discourse’.¹²

Indeed, the argument against emotion and narrative in law turns out, on closer inspection, to be a manner of privileging certain narratives and certain emotions over others, under the pretext of speaking in ‘an universal voice of reason’.¹³ It is a particular instance of the hegemonic character of certain narratives.¹⁴ This hegemony applies not only to the content of the story, but also concerning the kind of story that is appropriate, the question of who is entitled to tell stories, the settings in which stories are appropriate and the way stories are perceived. Hegemonic narratives pre-empt other narratives, in which their quality of appearing self-evident is an important factor. As Bandes notes, ‘Often, one story (usually the dominant story) drowns out or pre-empts another (usually the alternative story). Because it is the dominant story, its character as narrative is invisible. The tale appears to tell itself’.¹⁵

This rhetorical strategy derives its force in part from the juxtaposition of two main modes of cognition: the logico-paradigmatic mode and the narrative mode.¹⁶ The former attempts to fulfil the ideal of a formal, mathematical system of description and explanation, and deals in general causes and their establishment, while making use of procedures attempting to ensure verifiable reference and empirical truth. Narratives, on the other hand, explain events in terms of human or human-like intention and action, concerning the particular, the emotional and the idiosyncratic. Instead of abstraction from the particulars of a given situation, narrative seeks to make sense and give meaning to the experience contained in that situation, including the motives and intentions of the actor’s behaviour. The seeming self-evidence of dominant narratives offers the possibility to retain the authority afforded to logico-paradigmatic-type arguments—rationality, efficiency, effectiveness¹⁷—within the rhetorical strategy, while positioning counter-narratives as mere ‘stories’.

This strategy exploits the inherent janus-face that Francesca Polletta analyses in narratives.¹⁸ She emphasises that the same stories may be seen as unique and special versus idiosyncratic and unrepresentative; universal and of interest to us all versus mundane and uninteresting; authentic versus deceptive and manipulative; and as an expression of potency versus an expression of powerlessness.¹⁹ Bandes finds the reasoning of the US Supreme Court to be inconsistent in the way it allow emotions and narratives to play a role. Where emotions are endorsed they are portrayed as universal, authentic and special, where they are opposed they are portrayed as unrepresentative, distortions of reason and manipulations of justice. Her outrage flowed from several sources, including

indignation at the inconsistency of Chief Justice Rehnquist, who denounced compassion toward a civil rights plaintiff as an invalid ground for decision in DeShaney v Winnebago County Department of Social Services, yet invoked compassion toward crime victims in support of the Court’s holding in Payne.²⁰

B.Coincidence of Empathy and Narrative

the two strands should be more explicitly intertwined. Ordering events into a narrative is a key component of the ability to empathize with another’s suffering: One [must] be able to run a narrative through one’s mind about what happened to the sufferer to bring the individual to his or her current state, and what might be done to help. To empathize is to understand beginnings, middles and possible ends.²¹

A main issue that will be further elaborated below is that the coincidence of narrative and emotion can be generalised and enlarged in two ways. First, narrative is not only a key concept in the ability to empathise with another’s suffering, but more generally to empathise with the meaning other persons grant to experience, situations and their lives in general.²² The narrative mode of cognition is used in the situations where individuals try to make sense of and give meaning to the events and occurrences in their own lives.²³ Second, the unity of emotion and narrative runs deeper. Narrative relies on a dialectic relationship with expectations. The combination of expectations about the world with an event that is at odds with them functions as a main driver of the plot of a story, in which the characters attempt to cope with, resolve, integrate or overcome the unexpected event and its consequences.²⁴ Moreover, and relevant to the situation of victims of crime in particular, those deviations from the canonical that have moral consequences—relating to legitimacy, moral commitments and values—form the basis of stories.²⁵

An event that stands out sufficiently from daily routine can also form the trigger for the type of appraisal that is characteristic of emotions.²⁶ This appraisal is inherently evaluative, in that it relates probable outcomes of the unexpected event to the individual’s concerns.²⁷ In doing so it implicitly positions the event in the individual’s past and future selves, simultaneously redoubling the connection between emotion and narrative. Not only does this mean that narrative and emotion share the same nuclear episode, but it also underlies the characteristic of narrative as the main vessel for actively transmitting emotions, with narrative being crucial in the formation of collective emotions.²⁸ Understanding meaning therefore necessitates narrative, while transmitting meaning does so as well: narrative forms the bridge between both parties involved in an empathic relation.

C.The Importance of Context in the Normative Assessment of Empathy and Narrative

The main immediate conclusion made by Susan Bandes is that empathising with the victim’s narrative in VIS in capital cases is morally undesirable. She expresses support for a positive presumption towards ‘outsider’ narratives, that is to say, narratives that dominant discourse chooses to neglect or suppress.²⁹ However, she argues that victims’ narratives in VIS in capital cases are only superficially ‘outsider’ narratives; instead they reinforce what is already the dominant narrative of the trial, while endangering empathy for the even more ‘outsider’ narrative of the convicted offender. In the words of Bandes:

Victim impact statements evoke not merely sympathy, pity, and compassion for the victim, but also a complex set of emotions directed toward the defendant, including hatred, fear, racial animus, vindictiveness, undifferentiated vengeance, and the desire to purge collective anger. These emotional reactions have a crucial common thread: they all deflect the jury from its duty to consider the individual defendant and his moral culpability.³⁰

Given the stage of the trial in which VIS are submitted—following the guilty verdict of the offender—the offender’s perspective is necessarily an ‘outsider’ narrative, not because his perspective is excluded, but because of the way the offender, his actions and often his other characteristics are viewed. The knowledge of the extent of his wrongdoing leads to psychological processes of increasing or maintaining a distance, of ‘otherising’ the offender, which places pressure on the extent to which empathic understanding is possible.³¹ Again, as Bandes stated:

More often, for the jury to empathetically connect with the defendant during the sentencing phase of a capital trial is an extremely difficult task. Not only has the defendant been convicted of a heinous crime—a fact that by itself sets him very much apart from the jury’s experience—but he may be from a radically different socioeconomic milieu as well. Thus, the jury has difficulty making an empathetic connection.

The more general point is to challenge the understanding that certain emotions are automatically benign, while similarly unsettling ideas that move too quickly from the observation of a silenced narrative to the conclusion that this narrative should be included. In both instances their value cannot be assessed outside the context. What narratives? Empathy for whom and why? Two issues merit preliminary attention in considering answers to these questions in the case of victims of crime. First, there is the variety in manners in which empathy is understood, including maintaining sufficient conceptual distinction from sympathy. Second, there is the level of abstraction upon which the concepts of empathy and narrative are deployed. I will discuss each of these issues in turn.

One very useful definition of empathy in the study of victimisation sees it as ‘the attempt of one self-aware to understand the subjective experiences of another self’.³² It involves the recognition of another world of experience, acknowledging another’s reality and humanity and the awareness that the self is not exempt—at least in principle—from finding oneself in the same position.³³ However, as Bandes notes, in much of the literature empathy resembles ‘something of a moving target’. In a similar vein Henderson explains that the word has several definitions, in particular: ‘1) feeling the emotion of another; 2) understanding the experience or situation of another, … often by imagining oneself to be in the position of the other; [or] 3) action brought about by experiencing the distress of another’.³⁴

Where empathy is focused on the victim’s narrative, repeated confusion of empathy and sympathy further complicates matters.³⁵ Bandes notes that ‘Ordering events into a narrative is a key component of the ability to empathize with another’s suffering’,³⁶ showing that she already understands victims’ experiences in justice in a sympathetic manner. Sympathy is defined by Wispé as ‘the heightened awareness of the suffering of another person as something to be alleviated’.³⁷ It is hard to envision sympathy without a measure of empathy: one can only reasonably be assumed to be moved by another’s suffering if one can at least partially understand the other’s plight. In turn, empathising with the experience of a victim will often, if not always, include increased awareness of what he or she has suffered, with the necessity of action to alleviate this suffering as a close corollary. However, this concurrence should not lead us to overlook the crucial distinction: empathy is concerned with understanding the point of view of the other, while sympathy is concerned with increasing the wellbeing—from a negative point of departure—of the other, irrespective of the other’s own view. Although sympathy is caused by the perception of another person’s suffering, it is driven by the distress felt by the observer, upon viewing this suffering, rather than the perspective of the person suffering. Moreover, it predetermines the focus and direction of the victim’s perspective. As Wispé notes, it is exactly the psychological process that involves the painful awareness of someone else’s affliction as something that needs to be relieved. This precludes sympathising with someone’s happiness, because why, except for malicious reasons would one want to terminate someone’s happiness?³⁸

I will return to some of the different potential upshots of this below, but for now it is sufficient to recognise that the focus of sympathy presupposes that victims’ needs should be cast in a therapeutic guise, even when it relates to their position within criminal justice.

The importance of the level of abstraction in weighing the moral issues about victim involvement can be helpfully understood by a proposition put forward by John Rawls, whereby the moral argument concerning a practice might be of a different nature from the moral argument concerning actions under that practice.³⁹ For instance, according to Rawls punishment could be driven by retribution in individual cases (action), while the overall institution of punishment for crimes (practice) could be motivated by utilitarian calculi. Much of what Bandes finds disagreeable about VIS in capital cases involves empathising with victims within the action of sentencing. It becomes apparent however from her arguments that empathising with victims at the level of the development of practice is another matter. As she says: ‘Quite to the contrary, though, victim impact statements may actually disempower, dehumanise, and silence victims. In short, victim impact statements offend human dignity—the victim’s as well as the defendant’s’.⁴⁰ In other words, involving empathy for the victim’s position in arguments at the level of justifying practice can be deployed as an argument against VIS, even though and in fact because this practice involves the action of empathising with a victim’s views.

As will be argued below, the general issue of empathising with victims’ narratives cannot be settled on the particular practice of using VIS in capital cases. Rather, empathising with the victim’s position in understanding and shaping practice can lead to the conclusion that other forms of victim input do not warrant the dismissal Bandes affords to VIS in her article.⁴¹ To this end, it is necessary to understand the manner in which legal context interacts with victims’ emotions and narratives. It is to this issue that we now turn.

D.The Particular Impact of Legal Context on Emotions and Narratives

A final important issue raised by Bandes is the understanding that the legal arena is a particular context for emotions and narratives. In this connection she notes the distinction between the legal and therapeutic contexts. The therapist has considerable leeway in following the shape and form of the narrative of those who seek help, does not have to analyse their narratives in terms of veracity, and will view the narrative primarily in terms of its contribution to certain psychological outcomes. But the legal context can only allow narratives that follow a particular format, has to scrutinise them for their evidentiary value and cannot prioritise the emotional impact of the process, although it pays to refrain from being completely oblivious to ‘therapeutic’ impacts.⁴²

Moreover, as Bandes amply demonstrates, the law has its own narrative with which participants will have to engage.⁴³ Certainly, this also applies to the therapeutic context, as the debates around False Memory Syndrome and the proposals of the positive psychology movement amply demonstrate.⁴⁴ Nevertheless, therapy’s narrative context is considerably less explicit and dominant than that associated with the law. Legal narratives and the emotions that they prioritise can also vary from one context to the next. Reading Bandes’ characterisation of the dominant narrative in capital cases in the American criminal law system from the vantage point of Dutch legal practice makes this point abundantly clear. Not only the practice of capital punishment, but also other structural features of the American criminal justice system—such as the draconian sentences, the widespread involvement of laypeople, the politicised nature of the process, including elected magistrates, the adversarial character of the process, the use of victim impact evidence after the guilty verdict—influence the dominant narrative of the criminal process at this point.⁴⁵ In any case it is hard to imagine making the same argument concerning Dutch criminal proceedings, with its inquisitorial process, and highly professionalised and appointed magistrates, whose years of legal training have instilled a deep dislike for anything related to vengeance and a natural tendency to counteract populist pleas for ever increasing sentences.⁴⁶ The normative questions concerning emotion and narrative in the legal sphere therefore need to factor in the context in which they are deployed.

These specific features of the legal context interact with the narratives spoken and the emotions expressed, even beyond the extent of conformity with the dominant, hegemonic narratives. To a certain extent narratives are always socially constructed, while the experience of emotions cannot be fully grasped without reference to their social and cultural environment, but the legal context brings this social construction into sharp relief.⁴⁷ In this particular sense there is not a single victim narrative possible in a given situation, but a variety of narratives that are in part framed by the legal context in which they are elicited.

This is also part of the reason why drawing a direct analogy of the therapeutic setting to the legal process is mistaken. It overlooks the obvious fact that victims involved in the act of narrating are also aware of the place in which they tell their stories, as well as the function of the process in which they are offering their account, and will adjust their narrative accordingly.⁴⁸ This would already be true if the only difference was the public nature of the legal process, compared with the private and confidential nature of the therapist’s consultation room, but it is further enhanced by the particular meaning of the justice process, including the extent to which the justice process and its actors form important representations of some of the most important norms and values that members of a community, including the victims, hold dear.⁴⁹ Where the criminal justice process does not act, in full or in part, this also conveys meaning; the importance of access to justice, or rather the lack of it, is particularly pronounced in the experience of victims of crime.⁵⁰ One upshot of this, as I will discuss below, is that it is not accurate to conceive of the criminal justice process as a reaction to a victimisation experience in the past; instead it is better understood as a part of the still unfolding narrative of the victimisation experience itself.

III.Empathy for the Victim’s Narrative

A.Understanding the Narrative Nature of the Experience of Victimisation

Recently my colleagues and I argued the importance of narrative in the experience of victimisation.⁵¹ We did this drawing on insights from personality psychology concerning cognition, identity and motivation. As noted above, the psychologist Jerome Bruner distinguished two main ways in which people attempt to understand the world around them: the logico-paradigmatic mode and the narrative