Question 7

What is the impact of probation in terms of reparation to victims and communities?

by Leo Van Garsse
University of Gent (BE)

Experience shows that victims often perceive the promise of being ‘repaired’ as an insult. Confronted with this ‘goal’, they may not feel that their experiences have been taken seriously. This is probably one of the reasons why victims of serious offences may, at least at first, tend to reject reparative measures or approaches.

A directive of the European Parliament on victim’s rights is obviously based upon this kind of experience, stressing the victim’s right to refuse restorative measures or to be protected against their risks, rather than to actually have access to it. However, this protective attitude neglects the prominent finding that the more serious crime is, the more victims feel the need to actively re-position themselves towards the event and its consequences. This is not just a question of being a passive recipient of information or compensation, but of actively taking a stand that actually matters for the offender, the criminal justice system and for society.

Some scholars (myself included) advocate a change in vocabulary from ‘reparation’ and ‘restoration’ to ‘respectful co-involvement’ in doing justice. Herein, the focus shifts from the authoritarian projection of a desired outcome to an open, process-oriented invitation of civic capacity. The crucial question being the one of personal identity: who did I appear to be in the process of dealing with this event. The reasoning holds institutional and political consequences, the citizen (be it a victim or an offender, or just a fellow-citizen) should be not just a rights-consumer but a valid co-actor in making sense of justice.

‘Victim’ and ‘Community’
The notions of ‘victim’ and ‘community’ are commonly used but lack clarity. The concept of victim can be defined broadly as ‘every person/organisation economically, emotionally… affected by the event’. This broad definition includes the families of offenders, neighbours, friends, school etc. The notion of ‘victim’ can also be restricted to those recognised by the judicial authorities as formal stakeholders in a specific case.

In this narrow approach many citizens’ concerns are neglected or considered irrelevant, alienating the process of ‘doing justice’ from social realities. This is a process which can cause a lot of secondary victimisation. But moreover, the ‘official’ victims might feel obliged to be ‘a good victim’ and to adapt themselves to the expectation of being not only somehow materially damaged, but also morally ‘shocked’ as well. Playing the role of the victim, especially in cases of minor crime, can indeed be perceived by ‘victims’ as a burden: an educational responsibility they somehow owe to the (young) offender.

The very Anglo-Saxon concept of ‘community’ on the other hand is sounding increasingly vague in many urbanised, bureaucratised and multi-cultural societies. This makes the idea of ‘the damaged community in need of reparation’ somewhat artificial, and is often perceived as a cheap justification of public intervention. This becomes obvious when we examine discussions of what kind of activities can be considered ‘community-service’; too often, these are discussions of what is likely to please only some citizens. Even the cleaning of a public garden, an often applied offering of community-service, implies an enormous set of assumptions, only rarely checked-out in relation to people’s perceptions of the value and the meaning of this work in terms of ‘making good’.

The notion of probation
As long as probation is applied as a supposedly lenient verdict in cases of minor offences committed by youngsters or first-offending adults, it is doomed to be seen as a favour, taking neither the victim’s perspective nor the offender’s public responsibility seriously.

Obliging the offender to reimburse the victim, to engage in mediation or to do ‘something for the community’ inevitably presupposes the victim or the community to be carriers of needs and expectations consistent with their role in this controlling and vaguely educative approach.

In this line of thought the limits of the cases suitable for probation should not be a matter of public regulation or of binding selection by professional experts, but rather a matter of checking out and supporting the individual and social motivation and civic capacities of those concerned: victims, offenders and the surrounding communities. And this should not exclude even the most serious cases.

There is indeed no reason, besides an ideological and anti-democratic one, for excluding those involved from contributing to their constructive integration in the common ‘life-world’. In this respect the value of probation could be found not in the offering of ‘easy’ solutions, but in putting forward far-going human and socio-political challenges with an uncertain outcome.

Such an approach sees probation not as a set of alternative measures to ‘real’ punishment but as an appeal for civic participation, respecting legal protection and open to public involvement and control in constructing (and constantly re-constructing) in practice what the notion of ‘justice’ means in a democratic society. This kind of justice leaves space open for restoration, not as a easy way to secure repair or reimbursement, but as a process of re-positioning oneself in relation to the criminal event and its consequences – and to one’s fellow citizens.

This pedagogical challenge addresses not only the offender and the victim. We rather see it as a social-pedagogical; a call to social environments (including victim and offender) to carefully examine and gradually enlarge their abilities to respond to crime and to constructively contribute to the process of definition and redefinition of the social rule in a democratic legal state.

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