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Sunday, Feb. 8, 2009

MEDIA MIX

New law may backfire on victims


In December, a new law went into effect allowing victims of crimes and their families to participate in trial proceedings. Previously, victims were virtually shut out of criminal courts unless they were called on to provide testimony. Under the new law, they may sit next to prosecutors during trials, talk to the judge and even question the defendants themselves.

The law is controversial. Its proponents say that victims and their families should be given the right to face suspects in court and confront them with the results of their alleged crimes, while detractors claim that allowing victims to make statements during proceedings will prejudice judges and undermine the fundamental principle of a criminal trial, which is that the defendant is deemed innocent until proven guilty.

So far, the law's impact seems to be more cathartic than anything else. In a trial currently underway in Nagoya, three men are accused of picking up a 31-year-old woman at random in Aug. 2007 and then killing her. During one session, the mother of the victim gave testimony for two hours, during which time she showed judges family snapshots of her daughter and explained what a selfless individual she was. The prosecutors said that it was their idea to present the photo exhibition "in order to accurately show how the victim lived her life."

However, if it is proved that these three men did kill the woman, it should make no difference whether she was a saint or a reprobate. The slide show is essentially a sideshow. After her appearance, the mother told reporters, "I wanted the judges to see what sort of person my daughter was. I'm glad I had the chance to show them." In that regard, the main benefit of the new law is to the victims' and their family's peace of mind, but based on the results of trials in other countries where victim participation is already in place, victims and their families may not always receive the closure they desire.

Last month, the Asahi Shimbun ran a series of articles on the victim-participation system, and mentioned how it has fared in Europe. In Germany, victims can attend trials and make statements. However, only 25 percent of victims or their families opt to participate. As one Berlin jurist told the Asahi, it's impossible for judges not to take victims' feelings into consideration, but he was certain that such testimony has never resulted in a conviction or a harsher sentence, and most victims understand this.

In fact, it could very well have the opposite effect. During one 2006 murder trial in Germany, a man who lost five family members spoke to witnesses and the suspect in court at such length and with such emotional vehemence that more court sessions had to be added. In the end, the suspect was convicted but he received a sentence of nine years rather than the life sentence demanded by the prosecution. One of the judges later said that "it was difficult to concentrate on the case when all the attention was focused on the victim."

This was presented as a rare case, but one that illustrates the tricky dynamic between so-called victims' rights and what actually happens in a courtroom. Another article in the series described a murder trial in Paris. The victim was a 25-year-old Japanese woman who was sent to France by the education ministry. Two men were charged with killing her in her apartment. At first, the victim's parents had no intention of attending the trial, but the prosecution talked them into it. In the end, only one of the two suspects was convicted, and he received a lighter sentence than what the prosecution wanted. The parents were disappointed, but the father said that he was convinced that the judges executed their mandate carefully and responsibly. "I felt as if my daughter had been treated as a human being," he said.

It should be noted that both Germany and France utilize a lay-judge system that is similar in spirit if not necessarily in execution to the one Japan will launch in May. A central concern about the victim-participation system is that it will unduly influence these new lay judges, who, because they are perceived as being more emotional than tested, experienced professional judges, will pass out harsher sentences.

But that may not be true, either. About 50 mock tribunals have been conducted throughout Japan to test both the lay-judge and victim-participation systems. The example case is usually the same — vehicular manslaughter — and the victim always asks for the maximum 20-year sentence. In every case, however, the lay judges have handed down four to 8-year sentences.

Victims who formerly despaired over being ignored by the criminal-justice system may in the end not gain much satisfaction from participating in it, which brings up the question of what it is that they really desire. If they have lost a loved one, they may desire retribution, or they may simply want the criminal (assuming he has confessed) to apologize. However, based on the examples presented in the Asahi articles, apologies, regardless of how sincere they may sound to third parties, rarely satisfy victims.

Many victims who are vocal about the shortcomings of the system already have an outlet: the media, which is only too happy to convey their anguish. Victims want the world to acknowledge their pain and frustration, but in the end the loss they have suffered can only be borne by themselves.

The real problem with the victim-participation system is not so much that it's likely to lead to wrong convictions or harsher sentences, but that victims who don't participate for whatever reason will be made to seem cold an uncaring. After a man was recently arrested for the murder of a little girl in Chiba last fall, reporters asked the mother what she wanted to say to him. Understanding that the arrested man was only a suspect at that point, she said, "I don't know." Many pundits found this strange, as if it weren't the proper response. Victims are expected to act a certain way.



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