Discussing The Fear Of The Legal System Criminology Essay

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By the criminal justice system, regardless of the type of crime, victim is often adrift as the "forgotten third party" and treated as a piece of evidence in a criminal investigation or trial (Ellison and Buckhout, 1981). The victims, by law, must report the crime, which will likely cost their time, money and other unexpected resources. Their name and personal background may become a matter of public record, belongings may be confiscated and kept interminably. Even worse, victims have no veto power over their own counsel, as some defendants do. Moreover, the turnover is often so high in the prosecuting attorney's office that victims may justifiably lose confidence in the quality of the advocacy on their behalf. Survivors and victims' families are often not unreasonably outraged when the state agrees to a plea-bargain for a conviction to a lesser crime, such as attempted assault rather than aggravated rape (Allison and Branscombe, 1992). These reasons explained the role of victim is passive and being ignored under the contemporary criminal justice system.

For the rape cases, Campbell, Wasco, Ahrens, Sefl, and Barnes (2001) found that only 25% of the participants' cases that were reported to the legal system were prosecuted. Of these 25% that were actually prosecuted, 10% of the reported rapes were tried, but the rapist was not convicted at trial, 10% were tried and convicted, and 5% were resolved by a guilty plea from the assailant. Another study that examined the legal outcomes of women who sought treatment for sexual assault in an urban emergency room found that of 888 women who sought treatment, only 132(15%) had charges filed by the prosecutor. The majority of cases resulted in either a plea before trial (70%) or guilty verdict by the jury (15%). Another 13% of cases were dismissed or acquitted (Wiley, Sugar, Fine, & Eckert, 2003). This consistent with previous research, which showed that the expense of a trial, the response to agreeing to plead guilty and saving the state the expense of a trail, the offender is allowed to admit to a lesser crime. (Koss, Bachar, Hopkins, &Carlson, 2004).

For the rape victim, the challenges go far beyond this unenviable litany. Basically, the truthfulness of the person who reported the rape is more likely to be questioned, doubted and challenged than are the statements of other crimes victims (Allison and Wrightsman, 1993). Recounting in public one's victimization is exceedingly stressful to the victim, but the reactions by police, attorneys and judges, including skepticism, cynicism and in some cases, harassment, only compounds the agony. Astute observers suggest that this second victimization, by representatives of the criminal justice system and officers of the court, is just as bad as, if not worse than, the original rape (Brownmiller, 1975; Gager & Schurr, 1976; Medea & Thompson, 1974). When the victim of rape decides report the crime, the victim first has to tell every detail about the rape to the police for statement recording. Victims can be subjected to probing and embarrassing questioning by the police and prosecutors to verify that a crime has occurred, and the extent to which the victim employed (or did not employ) physical resistance may be a factor (Pino &Meier, 1999). Despite these questions, the police officer will use different questioning techniques to guide the victim for repeating every parts of the case. This is a traumatic experience for the victim to recall the incident repeatedly. At the same time, she has to bear the risk that her case may not be put on trial or the charge might be turned into a relatively minor offence, which means her effort is forbidden.

If the case is approved by the Secretary of Justice and put on trial, the prosecution side will inquire into the intimate details of the victim's recent life, including her relationships with men, and with the rapist, if she knew him, that her personal background and habits are being scrutinized. During the trial, she has to again tell the incident, fully aware the defense lawyer is paying full attention to find flaws in her testimony or otherwise impugn her personal credibility. One study found that the primary reason given by the rape victims for not pressing charges against their assailant was the desire to avoid the ordeal of courtroom testimony (Holmstrom & Burgess, 1978). In most of the cases, only victim and offender were present in the sense, therefore the victim will become the witness. During the cross-examination, victim will be subjected by misleading questions from the defense lawyer to create contradictions and differences between the testimony and statement. Another common technique is using embarrassing and insulting questions to attack the credibility and moral integrity of the witness. Last but not least, defense attorneys likely utilize rape myths to convince the jury that the victim consented to the rape (Koss, et al., 2004), such as the drunk lady is willing to have sex intercourse, the rape victim mostly has not clearly claim her willingness, etc (吳惠貞、梁éº-å„€, 2007). At the same time, the court has long established that the prior sexual history of the complainant of rape was relevant evidence to be admitted at trial (Allison and Wrightsman, 1993). The history will affect the juror and judge to agree that the victim attributes to the crime and she has to bear a level of responsibility to the crime (Tang, Pun and Cheung, 2002; Longsway and Fitzgerald, 1994; 吳惠貞、梁éº-å„€, 2007). Under this circumstance, it can be justifiably said that the victim is being punished for her sexual behavior rather the defendant for his (Bohmer, 1991).

Summary

From this review, victims who do have their cases prosecuted may find that the procedures are traumatizing and fearful. Their feeling and psychological damage are being ignored, also their personal backgrounds are being displayed to the public for review and challenge. They feel that they are not being protected by the system and the system cannot uphold the justice for them. After considering the cost and benefit by the victim, she will less likely to report the crime because she is frightened by the system.

Allison, J.A., & Branscombe, N.R. (1992). The influence of affective and general personality factors on the likelihood of sexual aggression. Unpublished manuscript, Pittsburg State University, Pittsburg, KS.

Bohmer, C. (1991). Acquaintance rape and the law. In A. Parrot & L. Bechhofer (Eds.), Acquaintance rape: The hidden crime (pp. 317-313). New York: John Wiley.

Brownmiller, S. (1975). Against our will: Men, women, and rape. New York: Simon & Schuster.

Gager, N., & Schurr, C. (1976). Sexual assault: Confronting rape in America. New York: Grosset & Dunlap.

Medea, A., & Thompson, K.(1974). Against rape. New York: Rarrar, Straus, & Giroux.

Campbell, R., Wasco, S.M., Ahrens, C.E., Sefl, T. & Barnes, H.E. (2001). Social reactions to rape victims: Healing and Hurtful Effects on Psychological and physical health outcomes. 16, 287-302.

Ellison, K., & Buckhout, R. (1981) Psychology and criminal justice. New York: Harper & Row.

Holmstrom , L. L., & Burgess , A. W. (1978). The victim of rape: Institutional reactivons. New York: John Wiley.

Koss, M.P. Bachar, K.J., Hopkins, C.Q., Carlson, C. (2004) Expanding a community's justice response to sex crimes through advocacy, prosecutorial, and public health collaboration: introducing the RESTORE program. Journal of Interpersonal Violence. 19(12):1435-63, 2004

Pino &Meier, 1999

Pino, N. W., & Meier, F.R. (1999). Gender Differences in Rape Reporting. Sex Roles 40(11/12): 979-990.

Longsway, K. A. & Fitzgerald, L.F. (1994). Rape myths: In review. Psychology of Women Quarterly, 18, 133-164

Tang, S.K. Catherine, Pun, S.H. & Cheung, M.C. Fanny (2002); Responsibility Attribution For Violent Against women: A Study Of Chinese Public Service Professionals. Psychology of Women Quarterly.

Wiley, J., Sugar, N., Fine, D., & Eckert, O.L. (2003) America Journal of Obstetrics and Gynecology: Legal outcomes of sexual assault. 188(6): 1638-41.

吳惠貞、梁éº-å„€ ( 2007) 《法庭內望 : 從法官的總結詞看強姦案件的審判與迷思研究報告》。香港:香港中æ-‡å¤§å­¸é¦™æ¸¯äºžå¤ªç ”究所性別研究中心,é-œæ³¨å©¦å¥³æ€§æš´åŠ›å”會。

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