Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing

Abstract

Should the victim of a domestic crime be entitled to express her views and concerns when her violent spouse is being sentenced, even if her request is for leniency? This may well be the most difficult question for supporters of victims' rights, who are accustomed to relate to victims who ask for severe sentences for their assailants. This question is affected by the complicated conflicting interests at the sentencing stage. The harm suffered by the victim of an offense is pitched against the personal profile of the assailant and the public interest.

This article seeks not only to confront this issue but also to suggest a progressive resolution model, based on firm ground. At the base is a unique interpretation and application of an expressive theory of criminal justice. It is then supported by a complex feminist view and psycho-social research that will be used to highlight the flexibility required of any suggested solution. This uniqueness will be explained by the characteristic dynamics of a violent relationship and the inherent differences between the women being discussed and the abstract category of 'classic (female) victims' asking for harsh sentences to be imposed on their attackers.

The article not only challenges sentencing theorists and supporters of 'classical' criminal law theory but also certain feminist theories, as it analyzes these issues from the perspective of conflicting theories, paternalism versus autonomy, and asserts their inadequacy in this case. The authors call for the adoption of a complex feminist view instead of the dichotomous understanding of the autonomy-paternalism tension. This argument necessitates a resolution-sensitive model that recognizes the variety of situations reflecting the actions of women living in the shadow of violence and functioning from a position of partial autonomy. A development of a multi-dimensional model that recognizes the plurality of female typology is essential in order to best serve this multifaceted victims' rights theory. The article then translates the theory into practice and suggests using Victim Reports as a means of empowering the women, hearing their authentic voices, enriching the Criminal Justice System and, potentially, even advancing the study of violence.

Keywords: criminal law, criminal procedures, sentencing, sentencing considerations, victims, victims' rights, expressive theories, domestic violence, gender theories, voice, therapeutic jurisprudence, women, feminism