112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSVICTIM REDRESS AND VICTIM-OFFENDER
RECONCILIATION IN THEORY AND PRACTICE:
SOME PERSONAL REFLECTIONS
Ezzat A. Fattah*
I. INTRODUCTION
For many centuries, redress to the victim
has been the primary, even the sole,
objective of justice. Restorative justicecontinues to be the dominant practice insmall, rural, agrarian societies and incultures that have not been influenced by
the religious principles of Judaism,
Christianity and Islam. Anthropologists
who studied the mechanisms of conflict
resolution in non-state societies haveobserved a development that seems to beuniversal. The primitive and rather
instinctive reactions of vengeance andretaliation, which inevitably result in
weakening the group and eternalizing thefeud, always gave way to the constructive
and reconciliatory practices of composition,
restitution and compensation. In thesesocieties, untouched by western thought
and practices, punishment for the sake ofpunishment, as a means of atonement andexpiation, is totally unknown. Justice has
utilitarian goals.
Indigenous populations in countries thatwere colonized by the powers of western
Europe : Australia, Africa, North and SouthAmerica, had a long tradition of restorative
justice and continue to opt for healing
practices over punitive sanctions. Western
societies are beginning to recognize thesuperiority of restorative justice overretributive justice, and it seems likely thatthe paradigm shift in criminal justice will
occur quite early in the next millennium.
* Professor Emeritus, School of Criminology, Simon
Fraser University, Canada.

In an article I wrote few years ago for a
Festschrift honouring Prof. Koichi
Miyazawa, I tried to compare the twoparadigms and it was obvious at the end of
the comparison that restorative justice isthe way of the future, because it is thenatural way of doing justice.
I was converted to restorative justiceearly in my academic career. In the early
1970’s, I was a visiting professor at the
University of Abidjan in the Ivory Coast
when I decided to do a comparative studyof criminal homicide in Africa and North
America. Once I started examining theofficial statistics and started studying
police files, I was intrigued by the findingthat there were very few homicide cases inrural and remote areas of the country. I
wondered if they were peacefulcommunities, free from conflict?
Unfortunately, this was not the case. It
turned out that there were two parallelsystems of justice operating in the Ivory
Coast: the formal punitive/retributive
system imposed by France (the colonial
power) and the tribal/restorative systemthat solved conflicts and settled disputes
using the traditional, customary practicesof reparation, compensation andreconciliation. The kinship of homicide
victims, getting no satisfaction from theretributive practices of execution andincarceration, deliberately abstained from
reporting the homicides to the police andpreferred to have them dealt with within
the tribe or the community. This was aneye opener that confirmed my long-heldbelief in the superiority of restorative87

RESOURCE MATERIAL SERIES No. 56
justice over the destructive and futile
system of punishment.
II. FROM RESTITUTION TO
RETRIBUTION AND FROMREDRESS TO PUNISHMENT:THE HISTORICAL EVOLUTION
The origins of criminal law can be traced
to the attempts by the kings and feudallords to consolidate their authority, toenhance their powers and generate
revenue for themselves and their estates,by imposing fines and by seizing the lands
and property of convicted persons. As thecommon law developed, criminal law
became a distinct branch of law. Numerous
antisocial acts were seen to be ‘offences
against the state’ or ‘crimes’ rather thanpersonal wrongs or torts. This tendency tocharacterize some wrongs as ‘crimes’ wasencouraged by the practice under which thelands and property of convicted persons
were forfeited to the king or feudal lord;fines, as well, became payable to feudallords and not to the victim. The natural
practice of compensating the victim or theirrelatives was discouraged by making it anoffence to conceal the commission of afelony or convert the crime into a source ofprofit. In time, fines and property thatwould have gone in satisfaction of thevictim’s claims were diverted to the state.
Compounding an offence (that is,
accepting an economic benefit insatisfaction of the wrong done without theconsent of the court or in a manner that iscontrary to the public interest) still remains
a crime under the Canadian Criminal Codeand discourages private settlement or
restitution. It would now seem that
historical developments, however wellintentioned, effectively removed the victim
from sentencing policy and obscured theview that crime was social conflict.

88

A. Crime is Not Different From Tort
Parker ’s (1977, p28) account of thehistorical development that led to theemergence of criminal law shows that thedifferentiation between crimes and torts isof relatively recent origin. Parker states:
At this stage of legal development
there was no differentiation between
what we know as crime or criminal
law and tort or civil liability fordamage inflicted. All injuries topersons of property were consideredas ‘wrongs.’ The seriousness of thewrong depended upon the disruption
caused to the community or the actualor perceived affront to the injured
parties. Slowly, a distinction emerged
between wrongs which were private
disputes and required payment to theinjured party or his kin and wrongs
which had a public quality andrequired compensation to the wholegroup.
This historical fact is often ignored bythose who claim that crime is a unique,exceptional or distinct category of harmful
behaviour. In the not too distant past, allharmful injurious behaviours were civil
torts treated in more or less the samemanner. The emergence of the criminal law
saw the creation of a new category of
behaviour believed to be deserving ofpunishment. The selection of behaviours
to be brought under the realm of thecriminal law was guided by political,
historical and religious considerations, andnot by the unique qualities of the
behaviours that came to be defined as
crimes. As a result, the distinction between
crime and tort, between the criminal andthe civil code, is both artificial andarbitrary, and the demarcation line
separating the two is blurred. Veryfrequently the same act is both a crime anda tort. And yet, as Morris and Hawkins(1969, p46) point out:

112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
No research projects have been conducted
to search for the primary cause of tort..., no
one inquires what social or psychologicalpathologies underlie the incidence of tort
in our society, [and] no one has suggested
that those who commit torts are biologicallyinferior to their fellows.
They add that a large part of criminal
behaviour is perfectly ‘normal,’ both in thestatistical sense and in the sense that it
occurs naturally.
B. Criminal Behaviour is Not
Qualitatively Distinct
Punitive /retributive justice is based onan erroneous premise (that crime is adistinct or exceptional category of
behaviour) and on a false dichotomy
between the so-called crimes and civil
wrongs. This is a faulty premise because
a comparison of acts made illegal by thecriminal code or by statutes with similar
behaviours that are unregulated by thecriminal law suggests that there is no
qualitative difference between criminal
and non-criminal behaviour.
For every behaviour defined as criminaland sanctioned by law, there are identicalor similar types of behaviour that areneither illegal nor punishable. Even actsthat may, at first glance, appear to be
morally heinous, socially harmful, and,
therefore, condemnable are generally
condoned in certain circumstances and are
required or encouraged in specificconditions. The act of killing is notinvariably criminal. Killing the enemy in
war is not a crime (in fact, refusal to do so
may be a criminal offence); it is an act of
courage and heroism. The killers are notpunished; they receive medals, decorations,awards and citations. Executing aconvicted murderer is considered by manyas an act of ‘justice’ or a ‘proper’ measureof social protection. It enjoys the support
of a majority of the population and was once

so popular that public executions drewhuge crowds to the places where hanging
or beheading took place. Killing a prison
inmate trying to gain freedom or a hold-up
man attempting to escape is considered ajustifiable or excusable homicide in many
jurisdictions. But killing in most othercircumstances is regarded as a very
serious, perhaps the most serious, crime.
The difference does not lie in the nature of
the act itself. Killing is killing. But killingis only defined as a crime if it is committed
under certain conditions or against certain
victims. Shooting and killing East
Germans trying to flee to the West by
crossing the Berlin wall was a legal act
under the laws of the former German
Democratic Republic. After thereunification in 1989, and the replacementof the East German Code by the Criminal
Code of the Federal Republic of Germany,
these killings are being prosecuted as
murders, and the shooters are now charged
with the deliberate taking of a human life.
Until a few years ago, the Canadian
Criminal Code and many others did not
define forcible sexual intercourse with one’s
own wife as a crime. But the same act
perpetrated on a woman who is not the
man’s wife did qualify as a serious crime
punishable by imprisonment for life.
Although the behaviour in the two cases is
identical, in one case it is criminal; in theother, it is not. depending on whether thetwo parties are bound by marriage or not.
The same can be said of statutory rape,where an arbitrarily determined age is thedeciding factor whether the behaviour iscriminal or not, is punishable or not.
Not all types of violent, aggressive, orassaultive behaviour are made criminal by
the law. Many forms of violence arecondoned and tolerated to the extent that
become culturally legitimate. Until
recently, use of the strap in school for
misconduct, using violence to discipline or

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RESOURCE MATERIAL SERIES No. 56
control the behaviour of inmates in penal
institutions, and flogging offenders guiltyof certain crimes were all seen as legitimate
forms of violence, and those on whom suchpunishments were inflicted were seen as
deserving targets. Milder forms of violence
within the family are not criminal in mostjurisdictions. Children are consideredlegitimate targets for the use of physicalforce in the process of training and control,
and for a long time, husband-wife violence
was regarded as legitimate by both thepolice and courts.
The absence of a qualitative difference
between behaviour defined as criminal andbehaviour that is not can also be observedin the areas of property and traffic offences,where the line between what is legal andwhat is illegal is often quite arbitrarily
drawn. Offences like speeding andimpaired driving are determined by speed
limits and blood-alcohol levels set up in anarbitrary fashion. And the line separating
the criminal offences of theft and fraud
from what are normally referred to as‘sharp business practices’ is exceptionallythin.
If crime is not qualitatively different
from civil torts or civil wrongs, then why is
it that we accept redress to the injured or
harmed party in the latter but would notsettle for anything less than criminal
sanctions for the former? And why is it thatin the case of civil torts the damages
ordered by the court go to the victim
whereas in criminal offences the penal finegoes to the public treasury?
C. The Crisis in Penal Law
The penal law in modern industrializedsocieties is in a state of deep crisis. It islagging behind the times. The malaise isfelt by scholars and practitioners alike. The
commissions of reform established in many
countries on a temporary or permanent
basis are the proof that something must90

be done. The needed reform has to be
sweeping and radical. The stage seems to
be set for a scientific revolution or aparadigm shift in the sense proposed byThomas Kuhn (1970). This is because mostof the current problems can be traced
directly to the old paradigm. As Barnett(1977) points out, many, if not most, of theills of the present system stem from errors
in the underlying paradigm. Thus any
attempt to correct these symptomatic
debilities without a reexamination of thetheoretical underpinnings is doomed tofrustration and failure (p.245).
The last fifty years have witnessed majorchanges in many branches of law: corporate
law, labour law, insurance law, etc, to keep
pace with the rapid changes that weretaking place in society. The same could not
be said for penal or criminal law. It is one
branch of law that is least susceptible tochange. As a result, penal law in mostcountries has not kept up with social
evolution, it is lagging behind the times.
It is in a state of crisis and is in urgent
need of reform and modernization.
The Canadian Criminal Code (enacted
in 1892), and many others, date back to thenineteenth century. The kindest thing that
could be said about all these penal codes isthat they are historical documents thatmirror the mentality of the era in which
they were enacted. The piecemeal changes
that they have undergone since they werepassed reflect various social and politicalcircumstances occurring over a century.
The fact that these codes have neither been
overhauled nor replaced by new modern
ones speaks eloquently to the criminal law’s
unmitigated resistance to change. That all
the fundamental principles, all the basic
notions of the criminal law of today, havebeen borrowed from the philosophy andtheology of the 18th and 19th centuries is
hard to understand. Such are the notionsof evil, wickedness, malice, guilt,

112TH INTERNATIONAL TRAINING COURSE
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culpability, retribution, expiation,
atonement, to name but a few.
The time has come to ask whether
notions such as ‘free will’, ‘moral
responsibility’, ‘criminal intent’, ‘mens rea’,‘premeditation’, ‘malice aforethought’, aswell as many others, do have a place in amodern, secular, socially oriented criminal
law, like the one we would like to have inthe 21st century. It is time we ask whether
legal concepts such as ‘insanity’,‘diminished responsibility’ etc, could
withstand the test of science or whether
notions such as retribution, punishment,
just deserts and so forth, have a place in amodern, scientific and secular criminal
policy.
D. The Crisis in Penal Policy
E a r l y i n t h e 2 0 t h c e n t u r y, t h ephilosophical notion that punishment is ameans to pay a debt to society generated
by the offence, and the theological view ofpunishment as a means of inflicting pain
and suffering to atone for, or expiate, amoral fault, were largely discredited andpractically abandoned. Treatment andrehabilitation of offenders, re-education, resocialization and reintegration in society
became the key goals of penal policy. The
word corrections, used to designate theprobation, prison and parole systems, wasused everywhere to emphasize the nonpunitive features and goals of the newpolicies.
The liberal and progressive ideas of the
1960’s and 1970’s gradually lost ground andwere fiercely attacked by the newconservatives who came to power in the
1980’s: Margaret Thatcher in England,
Brian Mulrony in Canada, Ronald Reagan
in the United States. The manifest failureof treatment and rehabilitation programs
to reduce crime or to prevent recidivism
provided right wing politicians with thenecessary ammunition to discredit

corrections and to advocate a return to theharsh punitive policies of the past.
Punishment, as a means of retribution andas an instrument of deterrence, was being
pushed to its absolute limit. In the 1980’s,
both traditionally repressive countries,
such as England and the US, as well as
traditionally progressive countries, such as
Holland, have seen their prison
populations increase, sometimes to newrecords. And yet, none of the salutary
effects promised by right wing politicians
materialized. The bankruptcy of thesepunitive and highly expensive policies canno longer be denied and has been at
tremendous social, human and financial
cost.
In addition to the manifest failure ofpresent policies to curb crime or to reduce
crime rates, there are several otherrealities that illustrate the inconsistencies
and deficiencies of the present system:• As a result of gross under reporting
most of the cases that the system is
supposed to deal with are handled
outside the system.
• As a result of ridiculously low
clearance rates and of the attritionin the criminal justice process, only
a tiny minority of all those who
commit criminal offences face charges
before the courts and an even smaller
minority is punished. Estimates
range between 5 and 10 percent.
• As a result of the widespread practiceof plea bargaining (common in AngloSaxon countries) most of those whoare punished are punished foroffences other than the ones they
have committed, or are offered alenient sentence in exchange for a
guilty plea. Ranish and Shichor’s(1985) estimate that 90% of criminalcases in the US are disposed of91

RESOURCE MATERIAL SERIES No. 56
thorough plea bargaining gives someidea of the magnitude of the problem.
A criminal law system that uses ‘theability to distinguish right from wrong’ as
the prerequisite for criminal responsibility
must rely on psychiatric evidence and calls
upon the forensic psychiatrist to play animportant role in the judicial process. It is
the psychiatrist who supposedly enlightens
the court on issues such as insanity, partial
or diminished responsibility, mentald i s o r d e r, p s y c h i a t r i c d i s a b i l i t y,dangerousness, and so forth. Psychiatry,
however, is not an exact science and is, infact, one of the least developed branches of
medicine.
With the 21st century fast approaching,
many countries are in the process ofchanging and modernizing their criminal
law. While none of the new codes hasabandoned the old paradigm (moral guilt/
moral responsibility/ punishment/
retribution) in favour of the new one (harm/social responsibility/ restitution/compensation), they are deviating more
and more from the old paradigm andintroducing more and more elements of the
new one. This is particularly evident in
the way strict liability is replacing moral
responsibility. It is also visible in someareas where it was imperative to move froma guilt orientation to a consequenceorientation, such as the areas of negligenceand endangerment. Not only is the timeripe for a paradigm shift in the criminal
law, but there are also specific political andsocial developments that are creating acontext conducive to a successful shift. Twodevelopments in particular, are worth
noting:1. Overwhelming Recourse to Insurance
as a Means of Risk Coverage
One dominant feature of life in a modern,i n d u s t r i a l , t e c h n o l o g i c a l , h i g h l y,mechanized society, and of the social policy

92

of the welfare state, is the overwhelming
recourse to insurance (public and private)
as a means of risk reduction and risk
coverage. Recent criminological literature
increasingly stresses the fact that the riskof criminal victimization is a ‘natural’
hazard of modern life, of social interactions.
There is also a growing awareness of a
strange anomaly that currently exists:
whereas most other risks are covered bysome insurance (public or private), the riskof criminal victimization is not. Actually,
one of the ironies of the present system isthat those who face the greatest risks ofcriminal victimization are the ones who canleast afford the insurance, and the ones
most frequently denied coverage by private
insurance companies. Joutsen (1987)
deplores the fact that state insurance
schemes are rarely designed to cover crimerisks. Instead, they generally cover losses
or injuries incurred in certain risky fieldsof activity, regardless of the cause of thisloss or injury, the most notable example
being mandatory traffic insurance
schemes. The insurance covers risks
caused not only by traffic offences per sebut also by any traffic accident. Joutsen
adds that there is usually a national fundcovering parties to a traffic accident who
are not covered by insurance.
Slowly but surely, we are coming torealize that the distinctions that are madebetween victimization by crime and othervictimizations, between the risk of crimeand other social risks, are not only
meaningless but also unfair to those whoare victimized by actions that happen to
be included in the criminal code. This
paves the way for a new paradigm whose
primary focus is restitution andcompensation to the victim.
2. The Victim Movement
F i r s t e s p o u s e d b y t h e w o m e n ’s
movement and then by the politicians of
the new right, the cause of victims of crime112TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
has led to the emergence of a powerfulpressure group, the victim lobby. Active inmany countries, including the US andCanada, the victim movement has focused
attention on the plight of crime victims anddemanded the re-examination of criminaland penal policies to render them more
responsive to the needs of the victims.
Persistent efforts at the national andinternational level culminated in the
United Nations Declaration on the Basic
Principles of Justice for Victims of Crimeand the Abuse of Power which was adopted
by the General Assembly on 11 of December
1985. The Declaration contains 21
paragraphs, at least 3 of which (8,9 and
10), are devoted to restitution. The threeparagraphs exemplify the growing
acceptance of at least two basic elementsof the new paradigm: harm and restitution.
Paragraph 8 addresses restitution from theoffender or responsible third parties. It
declares that:
Offenders or third parties responsible
for their behaviour should, whereappropriate, make fair restitution to
victims, their families or dependents.
Such restitution should include thereturn of property or payment for theharm or loss suffered, reimbursementof expenses incurred as a result of thevictimization, the provision of services
and the restoration of rights.
Paragraph 9 of the Declaration
recommends the use of restitution as a
sanction in its own right. It proposes that:
Governments should review theirpractices, regulations and laws to
consider restitution as an available
sentencing option in criminal cases,in addition to other criminal
sanctions.
Joutsen (1987) draws attention to theconfusing wording of this paragraph in that

it first calls for restitution as an option andthen states that this option should be “inaddition to other criminal sanctions”. Healso points out that, at present, few
European countries provide for the
possibility of restiution as the only sanction
in criminal cases, whereas most allow the
courts to order the offender to pay
restitution in addition to the main criminal
sanction.
Paragraph 10 of the Declaration
recognizes the substantial harm that may
be caused by environmental offences andthe primacy of restitution in cases of thistype. It stipulates that:
In cases of substantial harm to theenvironment, restitution, if ordered,should include as far as possible,
restoration of the environment,
reconstruction of the infrastructure,
replacement of community facilities
and reimbursement of the expenses ofrelocation, whenever such harm
results in the dislocation of acommunity.
Joutsen (1987) explains that anenvironmental offence may be so seriousthat the community cannot continue toexist in the same place. The air or water
may be so polluted as to cause a danger tohealth, or may seriously hamper the
livelihood of the whole community. We
might add that it is precisely these
extremely harmful, injurious actions(Bhopal, Chyrnoble, Exxon Valdez, etc)
which very well illustrate the obsolescenceof the old paradigm of the criminal law andthe total inadequacy of conventional
punishments (whether imprisonment ordeath ) as a social reaction or a criminal
sanction to these behaviours.
Christie (1977) has observed that the key
element in a criminal proceeding is thatthe proceeding is converted from something

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between the concrete parties into a conflict
between one of the parties and the state.
He points out that in the modern trial two
important things have happened. First,
the parties are being represented.
Secondly, the one party that is represented
by the state, namely the victim, is so
thoroughly represented that she or he, formost of the proceedings, is pushedcompletely out of the arena, reduced to thetrigger-off of the whole thing. The victim,
Christie argues, is a double loser; first vis
a vis the offender, but secondly and often
in a more crippling manner, by being
denied rights to full participation in whatmight have been one of the more important
rituals encountered in life. The victim has
lost the case to the state.
The criminal law, which does not cease
to broaden its mandate and extend its
boundaries, has declared a monopoly on
every conflict or dispute falling under its
jurisdiction. Joutsen (1987) cites manyfactors which speak in favour of informal,
private settlements. These generally
provide a quick decision at low cost. The
individual features of the conflict can bestudied to an extent not possible for theauthorities of the criminal justice system,and there is considerably more discretionin deciding on the proper solution.
Instead of the ‘all or nothing’ decisionthat is often the only option for the criminal
justice system (and in which one party is
usually held to be the guilty offender, theother, an innocent victim), informal
settlement can seek a compromise decisionthat fits the unique features of the case athand and the parties to the conflict.
Joutsen notes further that the parties canbe directly involved in the search for theproper outcome to an extent that is notpossible in formal criminal proceedings.
Finally, he points out that private
settlements avoid the legal formalism that94

typifies criminal procedure. Rather thanthe black and white approach whichcharacterizes the rules of criminal
procedure, the mediation approach allows
a more far-ranging view of the broad
circumstances underlying the alleged
offence, on the side of both the victim andthe offender. He concludes that the trend
towards private settlements will, in manycases, provide an alternative form ofconflict resolution that can be of moreassistance to the victim than can thecriminal justice system.
Since current criminal law is centered
upon punishment and retribution, andbecause of its avidity to extract revenue
from the wrongdoers (in the form of fines),
it naturally shuns any initiative for disputesettlement or conflict resolution especiallywhen it is done outside the system. As aresult, the criminal justice system has
missed a golden opportunity to reduce its
case load and to stop the repetition ofcertain offences through the reconciliationof the feuding parties.
Jobson (1977) asserts that the criminal
justice system has overextended itself into
conflict situations that are not adequately
solved by existing processes. He estimatesthat almost fifty percent of crimes against
persons and crimes against property
prosecuted in the courts are characterized
by an ongoing relationship between theoffender and the victim. These crimes,
argues Jobson, are not committed bystrangers but by family members,
neighbours, tenants or landlords, or withina customer-seller relationship.
Barnett (1977, 1981) insists that theparadigm of punishment is in a “crisis
period”. This, he believes, is as muchbecause of its practical drawbacks as theuncertainty of its moral status. He further
suggests that the alleged absolute justiceof repaying evil with evil is really an empty

112TH INTERNATIONAL TRAINING COURSE
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sophism since Christian moralists havealways preached that an evil is to be put
right only by doing good. Barnett concludes
by admitting his inability to find any theory
which justifies the deliberate, forcefulimposition of punishment within orwithout a system of criminal justice. To
replace the punishment paradigm, Barnett
offers the restitution paradigm. This newparadigm views crime as an offence by one
individual against the rights of another.
The victim has suffered a loss and justiceconsists of the culpable offender making
good the loss s/he has caused. This newparadigm, argues Barnett, calls for acomplete refocusing of our image of crimealong the lines of what Thomas Kuhn calls
a “shift of world view”:
Where we once saw an offence against
society, we now see an offence against
an individual victim. In a way, it is
a common sense view of crime. The
armed robber did not rob society: herobbed the victim. His debt, therefore,
is not to society; it is to the victim(1981, p251).
Barnett proposes two types ofrestitution: punitive restitution and pure
restitution. He also outlines six
advantages that a restitution system hasover a system of punishment. These are:(a) The first and most obvious advantage
is the assistance provided to victims
of crime.
(b) T h e p o s s i b i l i t y o f r e c e i v i n gcompensation would encourage
victims to report crimes and to appear
at trial.
(c) R e s t i t u t i o n w o u l d a i d i n t h erehabilitation of criminals because it
is something the offender does, notsomething done for or to him/her.
(d) Restitution is a self-determinative
sentence.
(e) Savings to tax payers would beenormous.
(f) Crime would no longer pay.
One big advantage of a system centered
upon restitution is that it would enjoy theunqualified support of most victims. Thereis, in fact, overwhelming empiricalevidence indicating that victims preferreparative sanctions (such as restitution)
to punitive sanctions such as imprisonment
or fines.
III. THE RESTORATIVE JUSTICEPARADIGM
Justice paradigms have to change withsocial evolutions in order to remain inharmony with current belief systems andto take stock of whatever advances anddiscoveries are made in the fields ofcriminology and penology. It seems rather
clear that the abstract goals of expiation
and atonement are no longer in harmony
with the realities of the secular, postindustrial society of the 21st century thatis dawning upon us. In the modern, secularsocieties of today, the notions of risk andharm are gradually replacing those of evil,
wickedness, malice, and are bound to
become the central concepts in social andcriminal policy of the future.
Future policies of crime control will belargely based on risk assessment, risk
management, risk coverage, risk reduction,and risk prevention. The measurement ofharm will become a central component ofsocial reaction to crime, and the primaryaims of such a reaction will be redress,
reparation and compensation. My guessis that the artificial distinction between
crime and civil torts will disappear and thatthe artificial boundaries that have been
erected over the years between criminal
courts and civil courts will be removed. All
harmful actions will generate an obligation
to redress, coupled with endeavours toprevent their future occurrence. This will

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be the era of restorative justice.
It is not easy to define restorative justice.
It means different things to different
people. It is a leit-motiv for various policies
and models which can be implemented inpractice in many different ways and forms.
To me personally, restorative justice offersa radically different (and rather refreshing)view of the criminal act. The act is nolonger viewed as an offence against deity
or divinity, nor an offence against the Kingor the Sovereign, not even as an offence
against society. It is rather seen for what
it really is: harmful, injurious behaviour
that causes death, injury, loss, pain andsuffering to the victim. Crime is regarded
as one of the many risks to which we are
daily exposed in the industrial,
technological, mechanized and motorizedsociety in which we live.
IV. IS PUNISHMENT NECESSARY?
If punishment has failed in achieving
any of the utilitarian goals assigned to it,
and empirical research provides ample
proof of this failure, the question is whether
punishment is necessary. The theologicalnotions of expiation and atonement are
inculcated in the minds of children in theirtender age: if you commit sin you will go tohell, if you misbehave you will be caned, if
you hit your sister you will spanked, if you
commit crime you will go to prison. Lateron it becomes extremely difficult to breakthis strong association between crime andpunishment. It becomes almost impossible,
particularly for the average citizen, toconceive of a non-punitive society, a society
without prisons, a community that does not
respond to harmful actions by the inflictionof pain and suffering. Advocating andgaining acceptance for an alternative, nonpunitive, justice paradigm becomes
extremely difficult because the notion of apunishment that has to follow the fault, thewrongdoing, is too deeply anchored in the96

minds of most individuals. The idea of
doing away with punishment altogether is
not even acceptable to most criminologists.
In her presentation of a feminist vision ofjustice, Kay Harris (1991, p94) questions
this unshakeable faith in the need forpunishment. She writes:
Indeed, we need to question andrethink the entire basis of thepunishment system. Virtually all
discussion of change begins and ends
with the premise that punishment
must take place. All of the existing
institutions and structures- thecriminal law, the criminal processing
system, the prisons - are assumed. We
allow ourselves only to entertain
debates about re-arrangements andre-allocations within those powerfully
constraining givens... The sterility ofthe debates and the disturbing ways
they are played out in practiceunderscore the need to explore
alternative visions. We need to stepback to reconsider whether or not weshould punish, not just to argue about
how to punish.
V. DO CRIME VICTIMS WANTREVENGE?
There is no evidence to support the claimthat crime victims want revenge or that
nothing other than the punishment of theoffender will satisfy their thirst for justice.
If anything the evidence clearly shows thatvictims are not as vindictive or as bloodthirsty as some victim groups would want
us to believe. Healing, recovery, redress,
and prevention of future victimization are
the foremost objectives of most crime
victims (Fattah, 1997, p270). Studies by
Boers, by Sessar, by Pfeiffer in Germany,by Umbreit in the United States, and by
many others, show that victims’ primaryconcern is to have redress: to have thestolen property returned, the broken

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VISITING EXPERTS’ PAPERS
window fixed, the vandalized car repaired,the destroyed bike replaced. Their
expectations and their demands are
realistic, not moralistic (Fattah, p265). But
what about victims of violence? One has tokeep in mind that a high percentage ofviolent crime is committed between people
who know each other or who are related
by some family or other personal
relationship.
Punitive justice ruptures social andfamilial bonds and destroys the chance forreconciliation. It widens the gap that
separates the doer and the sufferer,
generates further animosity andantagonism, and engulfs the parties inbitter, never-ending hostilities. It also
forces others to take sides, thus
contributing to the widening andperpetuation of the conflict (Fattah, 1995,p307). This fact alone shows how essential
it is to have a conflict-resolving mechanismthat settles the dispute and prevents
further violence while maintaining thosevital relationships intact. Moreover, thepunitive, stigmatizing, and ostracizing
nature of criminal sanctions prevents many
victims from reporting their victimization
to the police and from mobilizing a justicesystem that will expropriate the conflict
and take no account of the victim’s wishes.
The result is that they continue to suffer
in silence and try to cope on their own.
Even victims of the most serious andmost heinous crimes of violence are not as
vengeful as they are usually portrayed in
the media or in the manifestos of right wingparties. The powerful television
documentary From Fury to Forgiveness, theexperiences of M. Umbreit in the UnitedStates and Ivo Aertsen in Belgium
demonstrate in a vivid and deeply moving
fashion that even victims who lose their
young children or close relatives tohomicidal killers can show genuine
forgiveness and can plead with the justicesystem for the lives of their victimizers.
The fatal defect of the punishment
paradigm is that it responds to harm withharm, to pain with pain, and its attempt
to alleviate victims’ suffering by inflicting
yet more suffering on the offender. The
flaw in this logic is best summarized in
Ghandi’s famous phrase: “an eye for an eye
makes the whole world blind!”. Or as
Martin Wright said “responding to harmwith harm doubles the amount of harm insociety”. In punitive justice systems there
are at least two losers: the offender getsthe punishment and the victim getsnothing.
Punitive justice neither serves theinterests of crime victims nor does it satisfy
their most obvious needs. Todd Clear(1994) affirms that penal harm does not
actually help the victim. Whilepunishment might be a public statementthat the victim deserved better, it does little
else. Clear insists that while penal harmcannot make the victim whole again, thefocus on getting even with the offender
could in some ways divert the victim fromhis or her personal path of recovery. He
adds:
In this way, the emphasis on penal
harm may actually be a disservice tothe victim, in that it promises that if
the State is only able to impose apenalty severe enough, the victim will
be able to overcome the crime. The
focus is placed on what happens to thelaw violator, not what happens withthe victims. The victim’s victory atsentencing is eventually exposed as apyrrhic conquest, for the problem
faced by the victim does not centre on
the offender (1994, p173).
IX. CONCLUSION
Attempts to exploit the cause of crime
victims for political ends, and to sell the97

RESOURCE MATERIAL SERIES No. 56
policies of law and order under the pretextof doing justice to victims, often required
the portrayal of victims as vengeful,vindictive, retributive, and evenbloodthirsty. Those claiming to represent
and speak on behalf of victims gave theimpression that concern for crime victims
invariably requires harsh, punitive justicepolicies. While the distress of some victims
might be so overwhelming that they will
demand the harshest possible penalty for
their victimizer, this could hardly be saidof the majority of victims. Healing,
recovery, redress, and prevention of future
victimization are the primary objectives ofmost crime victims.
If the primary purpose of social
intervention is to restore the peace, redress
the harm, heal the injury, and stop the
repetition of the offence, then it is easy tounderstand how and why the restorative
system (based on mediation, reconciliation,
restitution, and compensation) succeeds
where the punishment system fails.
Mediation and reconciliation bring thetwo parties together, face-to-face, andensure that they see each other as humanbeings in a state of distress. When facedwith the victim, it becomes impossible forthe victimizer to deny the victim’s existenceor the injury or harm caused. They can nolonger depersonalize, deindividuate,
objectify or reify the victim. They can nolonger avoid post-victimization cognitive
dissonance. The confrontation between theoffender and the victim in a mediation
situation is the surest and most effectivemeans of sensitizing them to the victim’s
plight, of countering and reversing themental process of desensitization that s/he
has gone through in order to avoid guilt
feelings or bad conscience (Fattah, 1991a).
The mediation process, when done
properly, can be very effective in awakening
and activating any positive emotions the98

offender might have lying beneath theircruel and indifferent façade. Emotionss u c h a s p i t y, s y m p a t h y, e m p a t h y,compassion, commiseration, can all be
brought to the surface and reinforced.
On the side of the victim, the mediation
situation can also have salutary effects.
The feared, strong, cruel and unemotional
victimizer is bared to their weak and often
helpless being, a being that evokes morepity than fear, more compassion thananger. Distorted but long held stereotypes
disappear when checked against the real
offender. Both parties end up by gaining arealistic view of one another andreconciliation becomes possible (Fattah,
1995, p312)
Thus in the long run, the interests ofcrime victims and of society at large are
best served by humanity, empathy andcompassion, by tolerance and forgiveness,by the development of conciliatory andforgiving communities rather than hostileand vengeful ones (Fattah, 1986, p13).
Constructive healing, not destructive
punishment, should be the primary andforemost goal of both victim policies andvictim services.

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