INTRODUCTION

Attention has only recently been drawn to the plight of the victims of crime in South Africa. For various reasons, attention has mainly been focused on offenders and their rights within the criminal justice process. Internationally, however, the crime victim has moved to the forefront of criminological research, and criminal justice policy and victim protection and compensation laws have been enacted in most developed countries. South African attempts to cater for the needs and rights of victims within the criminal justice system do not compare favourably with those in other countries: there is no state compensation scheme, nor a uniform approach to the treatment of victims of crime by criminal justice authorities such as police and prosecutors.

From the initial contact with the police to encountering confusing court procedures, there are few mechanisms available to accommodate the crime victim's needs, or to reduce the impact of a traumatic experience. It is argued here that a growing awareness of victims' needs as well as the recent reforms, in line with international trends, of the South African Police Service (SAPS) and the court system may help to avoid secondary victimisation. In the interests of alleviating the harmful impact of crime on citizens, these needs, as well as drastic reforms of the victim's position in the criminal justice system, must be addressed as a priority by criminal justice authorities.

Recently, there have been several initiatives aimed at placing crime victims firmly on the national agenda. These are reflected in the National Crime Prevention Strategy (NCPS), SAPS documents, and moves by the ministry of justice to examine the issue of a state compensation fund. Victims of crime have traditionally been ignored. From now on, the level of attention given to them must be closely monitored.

VICTIMS AND THE NCPS

Elsewhere in the world, support services for victims of crime are provided at a national level by organisations offering a variety of psychological and practical services. These multidisciplinary initiatives, involving both states and NGOs, have become known as 'victim movements', and they are lobbying internationally for changes to the victim's position in the criminal justice process.1 In South Africa, awareness of the needs of crime victims and the provision of support services compare unfavourably with developments elsewhere in the world.

It can be argued that the increasing attention being paid to victims of crime is largely resulting from public concern over rising crime rates. Whereas traditionally the response to rising crime has been to devote more resources to law enforcement, and to introduce tougher penalties in the hope of deterring offenders from committing further crimes (still the prevailing approach in South Africa), these so-called 'offender-based' strategies have become less prominent in recent years. 'Get-tough' policies involving harsher penalties have not had the desired results;2 as a result, the focus in crime prevention research and policy internationally has shifted away from the actions and motives of offenders towards those of victims. Examples of this new focus are: 1) victimisation surveys which record victims' actual experiences as well as their attitude to crime, and are a more reliable indicator of actual victimisation than official police statistics;3 and 2) studies of repeat/multiple victimisation, suggesting that police resources can be employed more effectively by protecting those who are most at risk.4

Recent developments in crime prevention policy in South Africa are embodied in the NCPS. Characterised as a victim-centric document, where the stated "onus is on government to deliver a crime prevention approach which places the rights and needs of victims at the centre of the strategy" (NCPS: 2.3.3.), the need for empowering and supporting crime victims is specified as one of 17 national programmes. In many ways, the two-day consultative workshop on victim empowerment and support held at the World Trade Centre in August 1996 was intended to put meat on the bones of this initiative, by inviting relevant stakeholders to buy into the process and carry it forward. Decisions taken at the workshop are documented in the conclusion.

According to the NCPS, the national programme on victim empowerment and support is aimed at addressing the negative effects of criminal actions on victims by mediating these effects, and providing the support and skills to address them (1.9.1.1). It also states that available resources should be focused on those areas of crime which cause the most damage, and where victim empowerment has a substantial chance of reducing repeat victimisation and cycles of violence (1.9.5). Connecting the more favourable treatment of crime victims with a decreased likelihood that they will take the law into their own hands, the NCPS acknowledges that victimisation lies at the heart of much retributive crime, and that the absence of victim aid and empowerment plays an important role in the cyclical nature of violence and crime in South Africa.

This new direction underlines the belief that both victim support and victim empowerment programmes have an enormous contribution to make to crime prevention: that victim support, including counselling and steps to protect victims, can lead to a reduction in repeat offences (1.9.2.2), and that, in the longer term, a judicial process which provides a real role for victims imposes a more meaningful moral burden on offenders, hence reducing the justification for crime inherent in a system which conceals the victim entirely (1.9.3).

At this point, a note of warning may be raised about linking victim issues too directly with crime prevention. According to Helen Reeves, national director of victim support in England and Wales, crime prevention and victim support should not be confused with one another. Victims are victims in their own right, and need to be treated as an end in themselves. One must not allow various parties (such as the law and order or mediation lobbies) to hijack victim support, and divert attention away from the real issues. Victims must not be used to make offenders feel good, or be classified as co-operative or unco-operative. Victim support is there to lessen the harmful effects of crime on the victim – ie, to reduce the effects of crime. If the effect of this is to reduce crime, this is only a bonus.5

VICTIMS AND THE CRIMINAL JUSTICE SYSTEM

In order to avoid accusations that the rights of offenders may be unfairly jeopardised by focusing on the victims of crime, the NCPS has framed its focus on victims in a human rights perspective. It argues that an uncompromising commitment to build popular respect for human rights (for both victims and offenders) can be best achieved by investing considerable energy in the development of a victim-centred crime prevention programme. This must be rooted in the effective delivery of victim aid and empowerment, which demonstrates that the human rights of victims are treated as a priority – without compromising the rights of any other citizens.

Critics have questioned the propriety of formulating the rights of offenders within the criminal justice process, and those of victims in a human rights framework. Because of the way in which crime victims have been marginalised in the past, it may be necessary to spell out the way in which they (as well as offenders) should be treated by criminal justice agencies. There are international precedents which South African policy-makers could follow.

The United Nations declaration of basic principles of justice for victims of crime and the abuse of power6 provides basic guidelines for the treatment of crime victims. In Britain, a comprehensive victims' charter setting out more than 25 standards of service for all criminal justice agencies will be published soon. Building on the 1990 victims' charter, this new and wide-ranging document will specify the minimum standards of service victims can expect at all stages of the criminal justice process. It sets out in detail how victims should be treated, and what information they will be given at every stage. For instance, victims have a right to expect fair, considerate and responsive treatment from the criminal justice system, and timely information about the matters which concern them. Compliance with these standards is monitored by the victims steering group, which includes representatives of all the principal criminal justice services, as well as Victim Support, a national charity which provides emotional support and practical help to the victims of crime.7

It has been convincingly argued that South Africa's criminal justice system is in crisis.8 The NCPS recognises the need to address inappropriate or unsympathetic responses by the police and the courts, ie secondary victimisation, which may actually serve to disempower and multiply the effects of crime on the victim. Recognising the system's deficiencies, the NCPS aims to enhance its efficacy as a deterrent to crime and as a source of relief and support to victims through:

improving the access of disempowered groups to the criminal justice process, including women, children and victims in general (8.1.5);



redesigning the criminal justice process to reduce blockages, empower victims, and reduce unnecessary time delays (8.2.1);



providing a greater and more meaningful role for victims in the criminal justice process (8.2); and



dealing with the damage caused by criminal acts by providing remedial interventions for victims (8.2.9, 1.9.1).

Motivations for making the system more accessible, user-friendly and understandable include the enhancement of both its legitimacy and the public's understanding, in order to reduce incidences of intense dissatisfaction that lead to vengeful and retributive cycles of crime and violence.

Besides the national programme on victims, pillar one of the NCPS focuses on the re-engineering of the entire criminal justice process. This process has begun with a report by a consultative group tasked with identifying blockages in the system, which recognises that South Africa's system of criminal justice is in crisis. The report specifies that, as important stakeholders in the criminal justice process, victims of crime must be taken into consideration by criminal justice authorities at key junctures in the process. This includes being kept informed about the process, and being referred to community-based support services by policing and justice officials. It is understood that the secretariat for safety and security will use this report as a basis in deciding how problems in the criminal justice process should be addressed.

VICTIMS, POLICE AND SUPPORT SERVICES

As the gatekeepers to the criminal justice system, the police play an important role in shaping the crime victim's initial experiences. Although police depend on victims to report crime and to co-operate with them throughout the investigation, the attitudes of police towards victims have been found wanting throughout the world. In South Africa – where the police were seen as agents of apartheid – historical circumstances have exacerbated the situation. To address these problems, a variety of reforms have been introduced over the past decade, including special training, statutory amendments, administrative guidelines, and state-funded or voluntary services connected with police stations to provide counselling and information to victims.

In South Africa, the current focus on community policing – which is strongly promoted in the new Police Plan – is an attempt to address a tradition of reactive policing that has led to the isolation of the police from the broader community. Developing proactive strategies and closer relationships with community representatives is effective on a pragmatic level, since the key to the establishment of viable crime control policies is the flow of information from the public to the police. As such, good policing requires the cultivation of a co-operative relationship between the public and the police, for instance to ensure that victims will report incidents, especially if they know that the police will keep them informed of progress made in their case. On the other hand, policing without consent, and an inefficient and generally ineffective flow of information, involves a massive deployment of personnel and resources in order to cover all contingencies.9 In line with developments in international policing, the introduction of community policing and community safety plans in South Africa bodes well for improved co-operation with the public. However, community police forums have been characterised by apathy, a lack of resources, questionable representivity, and a lingering distrust of police personnel, who are inadequately trained for this type of policing.

It has been argued that the police need to be shocked into treating victims differently. This was the effect achieved by Maguire's path-breaking work (1983) in which he found that 25 per cent of crime victims were dissatisfied with the service they had received from the police. The police need performance indicators with regard to victim satisfaction, and should be penalised if they don't perform. In Britain it has taken 14 years for victim support to get to a point where victim care forms part of inspection procedures, and is taught at Bramshill, the national police training agency.

A scientific evaluation of the effects of better treatment of victims by the police, the prosecutors and the courts in The Netherlands has shown that these victims, when compared with a control group, had a more positive attitude towards the police and the criminal justice system in general. Also, they were more inclined to respect the law, and were less likely to commit crimes themselves. In other words, by treating victims better, the criminal justice system helps to maintain respect for the law, and therefore to prevent crime. Focusing on victims and addressing and accommodating their needs is one of the most effective public relations policies the criminal justice system can pursue.

In terms of support services for victims, police activities internationally prioritise juvenile victims, and victims of gender crimes. South Africa is no different in this regard, and a limited number of specialised services for victims of certain crimes, such as sexual assault or child abuse, have been established countrywide at specialised units. Police officers are specially trained to deal with these victims in a confidential and sympathetic manner. However, the training has been criticised as inadequate,10 and has yet to be applied in a wider context.

Apart from these specialist areas of innovation, little has changed with regard to police attitudes or responses towards victims of crime in general. The next contribution, dealing with the SAPS approach to victims of crime, may challenge this perception. If real progress is to be made, I would argue that all police officers should be trained in victim aid, and that every police station, as a matter of priority, should provide services – whether in the form of a separate waiting room, or immediate referral to community resources – to all victims of crime, not just women and children. Although this may sound difficult, there are existing international models that can be followed.

The initial establishment of victim support services at a limited number of police stations (the first opened recently in Port Elizabeth) are part of the SAPS's own reconstruction and development programme (1.9.4). Training police officials in victim aid, such as taking statements in a sensitive manner, will be complemented by referral systems for victims. This programme will eventually be extended to include justice officials. It also encourages the growth of a victim support infrastructure, in co-operation with the departments of health and welfare as well as relevant NGOs. Ideally, however, it is not up to the police to provide victim services, but the community, making use of volunteers. In a sense, police stations which offer chaperone or family liaison services are confusing roles, and this is problematic.

Research conducted in 1990 and 1995 on South African victim support services11 revealed many fragmented initiatives, heavily reliant on foreign funding, providing a limited and patchy service to specific types of victims. The results of a survey conducted among service providers present at the national workshop on victim empowerment and support gives some indication of their scope and nature. But this questionnaire – which is analysed later – is only the beginning of a comprehensive audit of services geared towards victims of crime, to be conducted by the NCPS VESP team.

COURTS AND COMPENSATION

In South Africa, criminal procedure is focused on apprehending the offender rather than consoling the victim. Deterrence rather than restitution is the pivot of South Africa's justice system, and of all the role players, the victim tends to be the most marginalised. If an offender is arrested, the case is conducted as a matter between the state and the accused; in effect, the state 'steals' the conflict from the victim, to render a crime that has been committed a crime against the state.12 The victim is often merely a witness to proceedings, and is commonly regarded as an 'item of evidence' or a 'non-person'.13 Apart from the consequences of such an approach for compensation and restitution, the victim is made to feel that justice is on the side of the offender, giving criminal justice a whole new meaning. Since the system is not designed to deal with the practical, financial, medical or mental health problems that victims may face, many might resort to retributive action – a scenario well-documented in the NCPS – if the situation does not improve. However, focusing on the victims of crime may impact on wider perceptions of courts as places where justice is done, and may inhibit retributive action.

Internationally, during the last 20 years, the role of the victim in the criminal justice system has been 'rediscovered', and certain measures have been introduced to counter secondary victimisation that may occur in court. Reforms have been introduced which ensure that victims are not treated as mere witnesses, but are provided with information on the outcome of their case, as well as compensation and counselling. In some countries, improvements to the victim's position in the criminal justice process have been embodied in a victims' charter, such as those referred to earlier, spelling out certain specific rights. These include the right to be heard on what impact the crime has had on the victim's life; the right of victims to state their wishes and desires to the court, and for those to be taken into account during sentencing; and the right to restitution, protection, and separate waiting areas at court.14

In the United States, for example, victims are now allowed to participate more actively in the criminal justice process through, for example, 'victim impact statements' or 'victim statements of opinion'. These are documents intended to provide information to the court on the physical, financial, emotional and psychological effects of a crime on a victim, and, where relevant, his or her family.15 However, while there is emerging consensus that the balance between victim and offender must be restored in the criminal justice system, these measures are by no means uncontroversial.16 It has been argued that such statements can prejudice the criminal justice system's ability to maintain equality in punishment, and that the call to address victims' needs and reorient the criminal process away from the offender towards the victim may have certain dangers.

A "law and order" approach that characterises victims as weak innocents may lend itself to movements towards harsher penalties, stiffer bail conditions, and more oppressive treatment of offenders generally – all disguised under the noble cause of securing a better deal for victims. The danger thus exists that a healthy victim movement will be transformed into a backlash against criminals, and that advances made over the years to humanise the criminal justice system will be reversed.17 Research indicates, however, that victims are not excessively punitive or vengeful, nor do they desire heavy sentences.18 While wanting to 'provide a greater and more meaningful role for victims in the criminal justice process' (NCPS 8.2), it will undoubtedly take some time before victim impact statements are seriously considered by South African law-makers, although initial research undertaken on the viability of introducing such measures here showed that "allowing a victim to submit into proceedings details of how the violent crime affected his or her life, will help deliver more appropriate sentences and promote credibility for the criminal justice process".19

However, even where victim protection and compensation laws have been enacted, for instance in Germany, justice officials such as judges, lawyers and prosecutors still regard victims as outsiders and 'troublemakers'. Increased victim attention is seen as involving additional trouble, effort, time, and possibly creating longer delays in proceedings.20 As a result, criminal justice officials should be made to 'buy into' victim support at a very early stage, and all measures should be adequately enforced.

COMPENSATION

There is growing support in South Africa for the idea that victims of crime should be compensated by the state, or receive restitution from offenders.21 The Law Commission's recent appointment of a project committee to consider proposals made in this regard is a move to be welcomed. It has also been suggested that a white paper will be produced on the issue.

Internationally, state compensation rests on the premise that since the state is obliged to maintain law and order, and crime results from the state's failure to fulfil this duty, the state is liable for compensation.22 Compensation schemes may differ depending on the following: definitions of crimes; the degree of loss or harm; the obligation to co-operate with the authorities; and consideration of the victim's conduct.

Usually, only victims of violent crimes receive compensation. Research has found that victims of violent crime are not necessarily interested in the size of the settlement. Instead, compensation is regarded as an important symbol of society's recognition that they have suffered a loss.23 In most countries, however, the prevailing notion is that compensation is not a right but a reward given to 'deserving' victims. Consequently, compensation schemes only reach a small proportion of victims, with most either being unaware of their eligibility for compensation, or not being encouraged to apply.

State compensation for and protection of the victim has been developed in many countries since the late 1970s. England and Wales have the most generous scheme in Europe, with the criminal injuries compensation scheme compensating the innocent victims of violent crime from public funds. In 1994–5, 175 million pounds sterling were paid out to nearly 40 000 victims through a simplified tariff scheme which seeks to provide a balance between the needs of victims and the interests of the taxpayer, and is simple, transparent, and easy to administer. Restitution by offenders is facilitated by compensation orders enforced by courts; in 1994, 97 000 such orders were issued, valued at 28 million pounds sterling.

The current situation in South Africa is the following: sections 300 and 301 of the Criminal Procedure Act (1977) deal with compensation and restitution claims. Research has shown that the courts are reluctant to make use of these powers, and in most cases victims are left empty-handed.25 Since the state acts on behalf of victims of criminal offences, the state is usually the beneficiary of the fine. Victims are often unable to institute civil charges, thus forfeiting any possible monetary restitution. Among the proposals to be considered by the Law Commission are that all court fines and forfeited bail money – except those paid to local authorities – should be paid into a central fund, and that victims should be compensated from this fund. This means that these costs will not be borne directly by the taxpayer. Compensation claims are to be assessed by a board of trustees – a multidisciplinary group of experts – appointed by the minister of justice for a five-year period. If successful, victims of violent crime or their dependants could receive between R200 and R30 000 each.26

Similar schemes are operating elsewhere in the world to ameliorate the social damage caused by violent crime, and there is no reason why such a scheme cannot work in South Africa. The minister of justice has argued that increases in violent crime have rendered justice for victims, including expeditious restitution, particularly relevant, and the NCPS aims to 'develop a programme for the extension of policy proposals around victim compensation and restitution' (1.9.9.7). While the political will may be there, these proposals need to be enacted as soon as possible.

CONCLUSION

At the August 1996 workshop, an interim steering committee was elected to plan a national victim policy for South Africa. This gathering, which brought together stakeholders ranging from organisations providing rape and trauma counselling to researchers, the police, government and the media to thrash out issues around victims of crime, may have seen the birth of the institutionalising phase of South Africa's victim movement. Introducing a new approach to victims will mean changing the attitudes of police personnel and justice officials towards a newly rediscovered role player in the crime scenario; as such, the magnitude of this challenge cannot be overestimated.

Aiding and empowering the victims of crime – and making the heavily bureaucratised justice system more victim/user-friendly – will require hard policy decisions, considerable resources, and a strong commitment, particularly from the departments of justice and safety and security. Rather than focusing exclusively on offender-based crime prevention strategies, such as stiffer penalties and harsher bail conditions, South Africans needs to be persuaded that mobilising the agents of civil society and the criminal justice system around the victims of crime could form the successful basis of a long-term, proactive crime prevention strategy.

ENDNOTES

L Camerer, 'Settling the score', Crime and Conflict, Summer 1995, pp 25–28.



Schwendiger and Schwendiger, 'Giving crime prevention top priority', Crime and Delinquency 39 (4), 1993, pp 425–446.



See J van Dijk and J van Kesteren, 'The prevalence of perceived seriousness of victimisation by crime: some results of the international Crime Victims Survey', in European Journal of Crime, Criminal Law and Criminal Justice, 4 (1), 1996, pp 48–70.



See G Farrell, and K Pease, Once bitten, twice bitten: repeat victimisation and its implications for crime prevention, Police Research Group, Crime Prevention Unit Series Paper No 6, London: Home Office Police Department, 1993.



Interview with Helen Reeves, Victim Support, 20 September 1996, London.



See appendix 6.



See chapter 6, Protecting the public: the government's strategy on crime in England and Wales, Home Office: London.



M Shaw, Reforming South Africa's criminal justice system, IDP Paper no 8, August 1996.



R Matthews, Crime prevention, disorder and victimisation, pp 87–101.



J Rauch, 'An independent assessment of basic training on the police response to rape', in P Skiwward, S Jagmanth and B Grant (eds), Women under the criminal justice system in South Africa, HSRC, Pretoria, 1992.



See H F Snyman, ''n Kriminologiese perspektief op dienslewering vir slagoffers van misdaad', unpublished D Phil thesis, University of South Africa, Pretoria, 1990; L Camerer, 'A comparative perspective of victim support services with specific reference to South Africa', unpublished M Phil thesis, Oxford University, UK, 1995.



See N Christie, 'Conflicts as property', British Journal of Criminology, 17, 1977.



J Shapland, 'Victims, the criminal justice system and compensation', British Journal of Criminology, 24, 1984.



B Naudé, 'Taking victims to court: a call for victim impact statements in South African courts, Crime and Conflict 5, Autumn 1996, pp 22–24.



Ibid.



See A von Hirsh and N Jareborg, 'Gauging criminal harm: a living standard analysis', Oxford Journal of Legal Studies, 2, 1991.



E A Fattah (ed), From crime policy to victim policy: reorienting the justice system, Macmillan, London, 1986.



Naudé, 'Taking victims to court'.



Ibid.



H Kury, M Kaiser and R Teske, 'The position of the victim in criminal procedure – results of a German study', International Review of Victimology 3, 994, pp 69–81.



Compensation involves payments to the victim by the state, often from a central fund, and restitution involves payments to the victim by the offender, typically as a result of a court order.



Council of Europe, Convention on compensation for victims of violent crime, Strasbourg, 1983.



M Maguire and J Pointing (eds), Victims of crime: a new deal?, Oxford University Press, Milton Keynes, 1988.



The Home Office, Protecting the public: The government's strategy on crime in England and Wales, 1996.



D J McQuoid-Mason, 'The role of legal aid clinics in assisting the victims of crime', in W Schurink, I Snyman and W Krugel (eds), Victimisation: nature and trends, HSRC, Pretoria, 1992.



J Selfe, Fund for Victims of Violent Crime Bill, Parliament, Cape Town, 1995.