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The Disappearance of the victim in court

GENDER

Feminist historians instigated some of the earliest historical research into victimiza- tion, notably through studies of the experiences of female victims of sexual violence and child abuse (Clarke, 1987, 1997; D’Cruze, 1998; D’Cruze and Jackson, 2009; Jackson, 1999, 2000; Tomes, 1978). In addition, local and regional studies have offered snapshots of male and female victims appearing in selected courts (Conley, 1991; Rudé, 1985). While these studies offer much in terms of empirical depth, they tend to offer less in terms of chronological breadth, with most focusing on a time span of a few decades at most. None of the authors of these studies were able to make use of digitized crime or census data. A broader view is offered by more recent historical studies that have more directly addressed victims over time. Recent internationally focused studies include Kirchengast’s (2006) collection, The Victim in Criminal Law and Justice, which traces the devel- opment of the victim from feudal law to the present day in an international survey. Rock (2004) produced a very good analysis of the shifts in the historical power of the victim to prosecute and punish offenders, and their impact on the development of the modern criminal law and justice system. Large-scale empirical studies of victims are few and far between, however.

As part of a project on the meanings of violence carried out in 2000 (‘Prosecutions

for violent offences in selected English, Australian and New Zealand petty sessions’ courts, 1880–1914’, ESRC project R000223300), a database of 10, 000 prosecutions for minor violence in ten English courts in the 1880–1914 period was constructed. The quantitative data collected for this project is archived at the Data History Data Service (ref. no. 4483). Because the court registers from which these statistics were drawn recorded the names of the victim and defendant, it was possible to carry out an analysis of the conviction rates and the penalties imposed by gender of the victim involved (see Table 8. 3).

TaBle 8. 3 Conviction by ‘gendered context’ (sex of victim and assailant) (%)

	Dismissed	Bound over	Convicted
Women assaulting women
Women assaulting men
Men assaulting women
Men assaulting men

In Table 8. 3, we can see that men were always more likely than females to be convicted, regardless of the gender of their victim, with 69% of the men who attacked other men convicted, in contrast to 56% of the women who attacked another woman. The women who assaulted men had a considerably lower conviction rate (45%) than men who assaulted women (65%). If we rank the contexts, in terms of the likelihood of conviction, men were most vulnerable to conviction. The gender of the victim did not seem to alter this general position.

Turning now to consider the penalty imposed (Table 8. 4), the majority of female offenders, regardless of the gender of the person they attacked, received a mid- ranking penalty. Male offenders received more serious penalties. The highest proportion of offenders receiving the most severe punishments was men assaulting women (57%).

TaBle 8. 4 Penalty by ‘gendered context’ (sex of victim and assailant) (%)

	Low (costs/bound)	Mid (1–7 days)	High (+7 days)
Women assaulting women
Women assaulting men
Men assaulting women
Men assaulting men

As Godfrey et al. (2005: 717–18) found, ‘Magistrates clearly targeted “male” contexts of violence, and handed down more convictions and harsher penalties to men involved in these, in contrast to women involved in “female” contexts … magistrates downplayed … the majority of assaults which involved females as both assailants and victims’. In order to arrive at this conclusion, the researchers on the project compared court outcomes, not only by the gender of the accused, but also by the amount of culpability they had for the offence, the severity of the assault, the social bond between offender and victim (spouses, strangers, and so on), and (through analysis of a subset of offenders in newspaper trial reports) demeanour, attitude, and ‘performance’ in court. What was missing (and looking back at this research again, it is still surprising that it was not carried out) was an analysis of the outcomes by gender of the victim.

What would also take this research forward is an analysis not only of the gender of victim or complainant, but also whether they were actually present in court during all or part of the prosecution. Given all we have said about the centrality of the vic- tim in the prosecution process, this seems an odd thing to say, but as the nineteenth century entered its final quarter, the victim was disappearing from the courtroom.

THE DISAPPEARANCE OF THE VICTIM IN COURT

Available evidence on historical victims is limited but suggests that victims were highly active drivers of the criminal justice process in England in the past. For much of the eighteenth and nineteenth centuries, they brought prosecutions as complainants, acted as their own prosecution ‘lawyers’, gave evidence as witnesses and put up per- sonal rewards for the recovery of lost goods. Before the introduction of the police force in the 1830s, many victims paid private prosecution associations to bring offenders to direct – and sometimes – indirect justice (Gray, 2016; King, 1989). However, from the later nineteenth century on, the role of victims as active drivers of justice was severely reduced. One consequence of the rise of the ‘policeman state’ was the increasing willingness of the police to act as prosecutors in court (Emsley, 2007: 272, 2013: 195). By the 1870s and 1880s, the police were prosecuting drunkenness, fighting, assaults, burglaries and some sexual offences on behalf of victims who could not, or would not or were discouraged from, prosecuting on their own behalf. Due to their power of detecting and apprehending suspects, and then determining whether those suspects ‘should’ be tried in court, the police slowly grew to exert a very power- ful influence over recorded crime through the centrality of their role in the detection and prosecution process (Rock, 2004). It may be that, ironically, the professionaliza- tion of the justice system resulted in the erosion of wider public access to justice.

The ESRC ‘meaning of violence’ project inspired a further study funded by the Leverhulme Trust to explore the changing contours of crime in a single north-west English town, Crewe. The ‘Crewe database’ of 50, 000 prosecutions was interrogated for evidence of the ‘police take-over’ of the prosecution process. In analysing pros- ecutions for assault by category of complainant (whether the person who took the case to court was the individual who was assaulted or a police officer, or someone else), fascinating patterns were revealed. It seemed that the number of police-led prosecutions remained steady between 1880 and 1940, whereas the number of individual-led prosecutions fell away over that period. The impact on recorded vio- lent crime over this period, in Crewe at least, was considerable (the added trend-line indicates a flat-line for police prosecutions, and a falling trend-line for individuals; see Figure 8. 3).

Kearon and Godfrey (2007) argue that, although victims were less often present in court, they retained a symbolic power, and the state and its agents often invoked absent individual victims as representative of the whole community. It became much easier for newspapers and social commentators to make claims for victims (and, by extension, for the community) when actual victims were not in court. Victims there- fore became more easily idealized in the nineteenth century. More significantly, by the end of the century, victims and offenders were viewed as completely distinct and separate groups with their own characteristics. The real situation was much more complex.