@ Basil Blackwell Ltd. 1993, 10% Cowley Road, Oxford OX4 (JF, l J K and 238 Main Street, Cambridge, MA 02142, USA The Howard Journal V o l 2 No 4. Nov 93 ISSN 0265527

Giving Victims a Voice: A New Zealand Experiment

ALLISON MORRIS, GABRIELLE M. MAXWELL and JEREMY P. ROBERTSON

Allison Morris is Reader, Institute o f Criminology, Victoria University o f Wellington

Gabrielle Maxwell is Senior Researcher, 0ff;ce o f the Commissioner for Children, Wellington

Jeremy Robertson is Researcher, Office of the Commissioner for Children, Wellington

Abstract: More weight is now being given in many criminal justice systems to the needs and wishes of victims. Few jurisdictions, however, have gone as f a r as the recently introduced system oj’youth justice in New Zealand. There, a meeting is arranged between the victim (or their representatives), the young person who committed the offence, his or her f a m i b and a police officer to decide the appropriate response to the offending. The arguments behind this were that it would increase victims’ satiSfaction, enhance the prospects of reconciliation and provide a more effective means ofrestitution and reparation. In this article, we examine the extent to which these objectives have been met.

Traditionally, the criminal justice system has given only a minimal role to victims. Indeed, in part, one of its functions has been to protect offenders from the vengeance of victims. However, increasingly, criminal justice systems are giving more weight to the needs and wishes of victims. There arc a number of reasons for this shift in emphasis. In particular, the failure of criminal justice systems to reform and/or deter offenders is now accepted as is, consequently, the need to substitute alternative justifications for intervention. These range from ‘just deserts’ (for example, von Hirsch 1986) and ‘crime control’ (for example, Wilson 1975) to ‘reintegrative shaming’ (Braithwatie 1989) and ‘restorative justice’ (Wright 1991; Cragg 1992). And a number of pressure groups representing a range of political interests (from the women’s movement to ‘law and order’ proponents) have emerged which have begun to highlight victims’ concerns and criticisms of the criminal justice system. Specifically with respect to court processes, these concerns relate primarily to a lack of information about key decisions including sentences and a lack of support (see, for example, Shapland et al. 1985).

Thus, in most jurisdictions in recent years, there have been a number of significant statements about both the ‘rights’ and ‘needs’ of victims. In

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England, for example, the Home Office published in February 1990 a Victims’ Charter. This claims to have set out for the first time ‘the legitimate rights and expectations’ of victims. In effect, it does not because remedies are not provided for any deficiency in provision. Victims in England do not, therefore, have the right to be consulted about decisions, do not have the right to be informed about decisions, do not have the right to tell courts about the impact of the offence on them or of any losses incurred, do not have the right to any financial help and do not have the right to any specialist, professional help or support’. At the same time, the Home Office in England has put a considerable amount of funds at the disposal of Victim Support Schemes. This is intended ‘to offer a comprehensive service to all victims of crime’ (Victim Support Annual Report 1990/91). Parallel developments have occurred in most European and North American countries.

Few jurisdictions, however, have gonk as far in giving victims a voice as the recently introduced system ofyouth justice in New Zealand. One of its key principles is that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending’. The main mechanism for achieving this is a meeting between the victim (or their representatives), the young person who committed the offence, his or her family and a police oflicer to decide the appropriate response to the offending. These are called Family Group Conferences or FGCs for short. Victims (or their representatives) attend these meetings, participate in these discussions, are parties to the negotiation of agreements about what should be done to make the young offender accountable and can, in effect, in the majority of cases determine whether or not a court appearance is necessary3. Such meetings take place for all offences with the exception of murder and manslaughter. This is in marked contrast to mediation schemes elsewhere where the focus tends to be relatively minor offending and where some selection is usually made of those cases thought ‘suitable’ (by, for example, the police, the probation service, the judge or some inter-agency panel).

In the New Zealand context, this decision to involve victims in decision- making at these meetings comes not only from a consideration of the needs or wishes of victims themselves, but also from representations by Maori (the indigenous population of New Zealand) to restore traditional processes of conflict resolution which actively involved offenders, victims and communities. Giving victims a greater voice and role in decision- making fits with many indigenous systems of justice. There the victim is central rather than peripheral to the proceedings and the objective is not simply to punish the offender but to restore community balance. Maori, for example, were traditionally concerned both with atonement for the offence and restitution to the victim and also with the individual offender’s potential for reintegration within the community where the kinship networks of whanau, hapu and iwi4 are central to the social structure and to the way of life.

There are other innovatory features in these meetings too - giving young people and their families a voice in determining the appropriate

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response to their offending, encouraging a process which is culturally sensitive and creating a decision-making forum which is consensual rather than hierarchical. We recently completed research5 on the youth justice system in New Zealand and the extent to which it has met its radical objectives.

In each of the cases in our sample for which an FGC was held at which a victim could have attended, we attempted to interview a victim. If more than one victim was involved, we chose the victim who appeared, from the file, to have suffered the greatest loss or damage except that, in cases where more than one victim attended the meeting, we attempted to intcrview all the victims. We were able to make contact with and interview a victim (sometimes more than one) in 81% of the cases which involved a victim. In all, we interviewed 117 victims and seven victims’ representatives6. Very few of the victims we approached declined to be interviewed; the shortfall results from an inability to trace some victims. In addition, we observed the FGCs involving these (and other) victims.

Each victim was interviewed using open-ended questions which were later coded independently by two people. We collected information directly from victims on the impact of the offence on them, the level of support provided by thcir family and friends and/or by professionals, whether or not they were satisfied with the way in which the police handled their case, whether or not they had attended the meeting wih the young offender and his or her family, their reasons for attending (or not), their views on the process in general, whether or not they required or obtained reparation, and whether or not they were satisfied with the outcome. Where victims attended the meeting, we were particularly interested in thcir views on the procedures adopted, and how they felt about meeting the young person who had offended against them. We also collected data on the characteristics of the victims, whether or not they had any prior relationship with the offender and whether or not they had any previous experience as a victim.

In this paper, we focus on the views of victims on the FGC process and outcomes reached at the FGCs. In particular, the main arguments in fmour of victims’ involvement and participation in these meeting were that they would increase victims’ satisfaction with the process and outcomes, enhance the prospects of reconciliation between offenders and victims and provide a more effective means of restitution and reparation. We examined the extent to which these objectives had been met within the FGCs in our sample. But first we describe briefly the youth justice system in New Zealand.

Youth Justice in New Zealand

The youth justice system in New Zealand deals with juveniles aged at least ten years and under 17 years at thc time that they offend with the exception of murder and manslaughter. Anyone over the age of ten who commits either of these two offences must appear in the High Court.

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However, all other offences committed by juveniles are dealt with, at least initially, in the youth justice system.

The intention underlying the 1989 Act is to encourage the police to adopt low key responses to offending by young people wherever possible. Young offenders cannot be arrested unless certain conditions are met7. As a result, there has been a considerable reduction in the arrest rate: from approximately a third to 10% of those coming to police attention. Since only those arrested have to appear in the Youth Court' (a branch of the District Courtg which deals with juvenile offenders only), this means that there has been a corresponding reduction in the number of young offenders appearing there.

As in most jurisdictions now, it is expected that minor and first offenders will be diverted from courts by means of an immediate (street) warning. Where further action is necessary, young offenders are referred to the police Youth Aid section (a specialist unit dealing only with juveniles) for follow-up - for example, a warning in the presence of the parents or a written warning to both parents and young people. The Youth Aid section may also require an apology to the victim or impose an additional sanction (for example, some work in the community). About 60% ofjuvenile offenders dealt with by the police in 1990 were warned or diverted by the police.

Where Youth Aid sections feel that action beyond that which they normally arrange themselves is required, they refer the young offender to the Youth Justice Coordinator (YJC) for consideration of a Family Group Conference (FGC). This is what usually happens where the offence is moderately serious or where the young person has previously offended. Approximately 30% of the cases dealt with by Youth Aid in 1990 were referred for an FGC. The YJC also arranges FGCs that result from a referral by the Youth Court after a young offender has been arrested and appeared in court. This, as we mentioned earlier, represented a further 10% of known juvenile offenders in 1990. Thus FGCs dealt with about 40% of juvenile offenders who came to the notice of the police in 1990; they also dealt with juvenile offenders who had committed very serious offences. In our sample, for example, FGCs were held for a young man who had broken into a house and raped a young woman, for three young people involved in an arson which had destroyed an entire school block, for a young man involved in a robbery during which the victim was beaten over the head and for a young man who had assaulted a woman who barely survived the attack and who was left with permanent brain damage.

The FGC, therefore, is central to the new youth justice system. It lies at the heart of the new procedures both as a means of avoiding court processes and court sanctions and as a means of determining how young persons who commit offences should be dealt with. In contrast elsewhere, mediation between victims and offenders seems more marginal depending on the interest of a particular police force or probation service. In England, for example, mediation schemes tend to operate either at the police cautioning stage or at the pre-sentence stage.

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As we stated before, the FGC is made up of the young person, members of the family, whanau or family group and whoever they invite, the victim(s) or their representative and the police; it can also include the young person’s youth advocate (if the case has been referred by the Youth Court) and a social worker (if the Department of Social Welfare (DSW) has a statutory role in relationship to the custody, guardianship or supervision of the young person). The family and those it invites are entitled to deliberate in private during the FGC and can ask for the meeting to be adjourned to enable discussions to continue elsewhere. FGCs can take place in a DSW office, in the family’s home, in a marae (Maori meeting houses) or wherever the family wish.

The most usual beginning for FGCs is for everyone to introduce themselves, although in some areas this may be preceded by prayers or a karakia (a blessing) and a welcome in Maori. The YJC then explains the procedure to be followed, invites the Youth Aid officer to read the summary of facts and then asks the young person whether or not these are accurate. If the information is incorrect, it may be possible to correct it there and then. If the young person denies his or her responsibility for the offence, however, the FGC then stops and the matter goes back to the police. If the police still think that the young person committed the offence, the matter will go to the Youth Court by way of a ‘summons’. If the young person admits the offence, the FGC can proceed and the YJC usually then asks any attending victim to speak or reports any views from victims not present (in some areas this is done by a youth justice social worker). Following a general discussion amongst all the participants about possible outcomes, families can discuss in private how best to respond to their child’s offending. Whether or not the professionals and victims withdraw at this stage, it is the family’s task to come up with a ‘plan’. This could involve an apology to the victim, work in the community or for the victim, reparation, a donation to charities or whatever the family feel appropriate. There may be some further discussion or negotiation after this with the non-family members. about the detail of the plan. The YJC then seeks agreement from the police and from any victim who is present, records the agreed plan and closes the meeting, sometimes with a prayer.

The plans and decisions are binding when they have been agreed to by all those present at an FGC, and, where it is relevant, accepted by the court. Nationally, 95% of FGCs held in 1990 ended with an agreement between the parties. (We offer more critical comment on this later.) This means that most cases are resolved without the need for a court appearance. In the years just before the Act, there were between 57 and 72 cases in the court for every 1,000 young people in the population; in 1990, there were only 16. In other words, nearly four times as many young people appeared in court for offending before the Act compared to now. And, of those who do appear in court, the judges in the main accept the recommendations of the FGC. Eighty-one per cent of the Youth Court decisions in our sample followed the recommendations of the FGC and only 17% resulted in heavier penalties than those recommended by the FGC.

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Attending the FGC Providing victims with a voice in how to deal with those who have committed offences against them is a key ingredient of the new system and a major way of achieving this is to encourage victims to attend FGCs. Victims simply by their presence have the opportunity to participate more in this youth justice system than is usually the case. Almost all the victims we interviewed welcomed this opportunity and said that either they attended or would have been pleased to attend if that had been possible. Victims expressed to us a range of reasons why they decided to attend the FGC. Some referred to their own interests - for example:

To try and get reparation . . . I thought it would help my case if I attended.

Because I was a victim and wanted to ensure that things were done properly.

Because I could confront them with what they had done.

Initially I did not intend going to the FGC, but after talking to the other victim I saw the importance of attending and putting forward how I felt.

Other victims indicated a willingness to attempt to help or support the young person:

To see if we can help to do something about staightening the offenders out . . . to see how offenders react to meeting victims.

To see if he was learning anything from it.

I wanted him to see what he did was wrong . . . personally I believe that he had good in him.

I attended the FGC to give L my view. To see if he was learning anything from it. Being Maori myself I felt it was important to be supportive.

A few victims attended the FGC because they believed that victims should attend such meetings, because they had a sense of duty and because they were curious.

I felt a responsibility to attend. It is important that the victim and the offender make contact.

I attended out of a sense of duty - no one else was willing to go. Also out of interest. It didn't affect me personally much, but if the process is going to be of benefit then victims should go.

In practice, however, less than half of the FGCs in our sample were attended by at least one victim". Why was this?

Some victims, of course, do not wish to attend FGCs for a variety of reasons: they are too busy, uninterested, afraid of the young person or of his or her family or afraid that they will not be able to cope in the FGC, feel that they could contribute nothing, see no value in the FGC for them and so on. But it is clear from our interviews that most of the victims who did not attend the FGC would have liked to attend and the fact that they did not attend is explained quite simply by their not being invited, not being told of the FGC in time or not being able to come at the time chosen.

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More than a third of the victims we interviewed who did not attend the FGC said that they were not invited to it; more than a quarter of the victims we spoke to said that the time was not suitable for them; and just under a fifth said they were not told soon enough about the FGC to make arrangements to attend. Collectively, these reasons were given by over three-quarters (84%) of those who did not attend the FGC. Only three victims (6%) said they did not want to meet the offender and another small group gave a variety of other reasons. Table I presents this information.

TABLE 1 Reasons f o r Not Attending the FGC (N = 51 cases:

numbers and percentages)

YO N

Not invited 19 37 Time unsuitable 15 29 Notice inadequate 9 18 Did not want to meet offender 3 6 Other 5 10

Typical responses of victims who were willing to attend but who had not were as follows:

I would have liked to attend but they rang on the night of the meeting and asked my views. I would have gone to give my opinions if I’d been given more notice.

We were very annoyed that the notice for both FCCs was inadequate. We received two hours notice for one and the other was over before we received the letter. We had not previously attended a FGC and would have liked to.

Its important that the time is OK for victims. Victims should be looked after. It is difficult if it is held during the day.

Police told me that I could ‘front up’ to offenders. I thought that this was on a one to one basis and felt threatened by this type of situation -frightened they might be angry at this type of meeting and decide to burgle my home [her address was in her car when they stole it].

I was told i t was not really important to attend in this case.

From our research i t seems that victims are more likely to attend FGCs held on or after 6 prn: they may not want to take much time off work or give up their time just after work. Yet during our research, most FGCs were held between 9 am and 4 pm on a weekday, a time probably best suited to the police, YJCs and other professionals who seemed to prefer to attend FGCs during normal working hours.

A common concern, expressed to us by the police in particular, was that

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victims were less likely to attend FGCs held in the offender’s home or in a marae. In fact, only about a quarter of FGCs in our sample were held in the offender’s home and only a very few were held in marae. The most common venue was DSW offices”. However, we found no evidence that victims were less likely to attend FGCs which were held at the offender’s home though it was commented on occasionally. One victim spoke as follows:

I was surprised to learn, on the footpath before we walked in for FGC, that it was the home of the offender. However, we did not mind in the end that it was at the offender’s home, but that was due to good luck rather than YJC’s good management.

We were unable to test whether or not victims were less likely to attend FGCs which were held in marae because so few FGCs were held there.

Although victims did not give the nature of the offence as a reason for attending the FGC, it was clearly a factor. All those who had been the victim of offences rated by us as maximum or medium/maximum seriousness (see Maxwell and Morris 1993 for further information on this) attended the FGC or had their views represented while only 12% of the victims of offences which were rated as minimum for seriousness did so. This may have been due to the greater efforts made by YJCs to get victims to the FGC and to find times suitable for them in such cases. But it is almost certainly also due to victim’ perception of ‘what was it it for them’. We know that victims weigh up the pros and cons of reporting an offence to the police (Hough and Mayhew 1985). I t is even more likely that they will engage in these calculations with respect to attending FGCs.

Victims’s Views of the FGC Process

The theory underlying the bringing together of victims, young offenders and their families is to effect a reconciliation between the parties. I t is intended that the offender should accept responsibility for the wrong done to the victim and should offer to make amends to the victim. In particular, it is intended that attendance at the FGC should in part be a healing experience for victims. There is no doubt that some victims found attending the FGC and, more importantly, participatin in the FGC,

attended the FGC and who were interviewed by us said this:

Impressed with it . . . very useful exercise . . . very positive.

A bit strange at first, but in general jolly good.

Generally, the victims who felt better as a result of the FGC said that they had been involved in rather than excluded from the process. They understood better what had happened and why:

To know what is happening is to be involved.

I t helped me understand what happened.

helpful, positive and rewarding. Overall, close to 60/0 0 1 B of those who

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I had a better understanding of the situation. I felt alarm at first, then sympathetic.

In some ways also the meeting with the offender was seen as a cathartic experience; negative feelings about the offence and the offender could be released:

I got the ill feelings out of my system.

It was very good, able to air my feelings.

It was great. I could air out my grievances. Share what could be done.

I told him what I thought of him.

Initially I was angry. I told the young person what she had done and that it had to be dealt with. Later on it was more constructive. I felt she was more reccptivc. Hoped my presence had emphasised the severity of her actions.

Victims also commented on two other specific ‘benefits’ for them: providing them with a voice in determining appropriate outcomes and meeting the offender and the offender’s family face to face so that they could weigh up their attitude, understand more why the offence occurred and assess the likelihood of it recurring.

Have been an advocate of this type of thing for years - that is, for the victim to have a say.

Very pleased about the family’s concern. I felt able to understand the girl and her problems. I gave advice and hoped it was listened to. I wanted to help the young person.

You get . . . the chance perhaps to get some insight into young person’s background . . . how they come to offend.

It made me feel better. It cleared things up. Meeting the parents was good, they were decent people who cared about their son. Made me feel better that they cared.

Not all victims, however, were as enthusiastic. Some victims clearly felt worse after attending the FGC. Overall, about a quarter of the victims who attended and whom we interviewed said that they felt worse13. The victims who felt worse expressed feelings of depression, fear, distress and unresolved anger after the FGC:

I felt isolated and under a lot of pressure to say yes. I felt a bit intimidated. After the meeting I felt very depressed as if it was my fault and I was causing the bother. The direct involvement was not helpful for me. I did it for the sake of the kid rather than for myself. Perhaps I mightn’t go again.

It made me feel worse. He’s only 15 but he’s big and strong and so I was more fearful and when I heard he had stabbed some-one, I wondered what would have happened if I had woke up.

I’m still very angry . . . nothing in the meeting . . . silly . . . he’s just laughing at you.

I didn’t sleep for three nights after for fear, felt vulnerable. They could look up my address and set fire to it.

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It was a waste of time. There were more there for the offender rather than for the victim . . . the victim’s point of view was lost. I felt worse . . . very, very angry. I was shaking. She didn’t seem to care what she had done . . . I decided not to go to second offender’s FGC because the first was a waste of time. (Father of victim of assault .)

I t was a waste of taxpayers’ money. It should have been dealt with by the court. Families abuse the privilege, for example, the travel costs for a large family to attend. I was angry and didn’t see the point . . . too much weight for the offender’s family . . . resented discussions in Maori. (Brother of victim of rape.)

I wanted to ring his neck, I was really angry. I felt it was all a waste of time and energy. I had been really positive to start off with but quickly became disillusioned. I felt he was getting off too lightly and that there was no deterrent in any of the suggested options.

I went in [to the FGC] negative, and got more negative. I t was a waste of time - I had a feeling of total uselessness. With the cost of it all - fees paid - I wonder whether it is cost effective.

And some victims were only partly able to express their true feelings:

I couldn’t say exactly what I wanted as there were a lot of people, including a lawyer, and it was a strange setting.

I didn’t want to say anything for fear of being thought racist.

I had to tailor down what I had to say to be more polite. I felt on show and therefore couldn’t show real anger.

Specific reference was made by some of the victims who felt worse to the lack of support they had in the FGC in contrast to how they perceived the offender’s situation to be:

He had a free lawyer. We had no help.

I felt . . . unsupported and . . . it was of no benefit to me.

This point was raised in particular when there were a large number of whanau present at the FGC:

The first family had up to twelve and there was just me . . . very unbalanced.

Too much weighted for the offender’s family . . . should have been less people there.

I felt outnumbered by the rest of the family and under attack.

It was very intimidating. There were so many of ‘them’ and because they spoke Maori. I felt as if I were on trial.

Overall, a number of factors contributed to the victims feeling worse: remembering the feelings that occurred at the time of the offence, a belief that the FGC’s outcome was inadequate, distress at the lack of remorse shown by the offender, the lack of redress at the FGC and anger at extent of the young person’s offending. In general, those victims whose offences had the greatest impact on them were most likely to result in the victims feeling worse if they attended the FGC. It is a mistake to assume that victims and offenders can simply be brought together without first careful

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briefing of the parties and without much training of YJCs to manage such emotional and, by their nature, unpredictable meetings. However, we do not know whether these negative feelings are short or long term. It could be that, although the immediate effect on the victim is worse, in the long term, attending an FGC may hasten the healing process.

We asked victims if there was anything that should have been done differently in terms of FGCs; most (70%) of the respondents thought not. Of those who did want to see changes, 10% wanted more support for victims, particularly in light of the support they perceived offenders to have, 10Y0 wanted more information before the FGC about what to expect, the likely length of the meeting and so on, and 4% wanted more notice of the timing of the FGC; the remainder were not sure about whether or not changes were desirable.

Victims’ Views on FGC Outcomes

For almost three-quarters (74%) of the cases in our sample, the FGC agreed that the young person should apologise to the victim. Carrying out work for the victim or making financial reparation to the victimI4 was also agreed to for nearly half (45%) of the cases. Together, one of these three forms of making good the damage to the victim was agreed to by at least one offender for 80% of the offences about which we interviewed a respondent. In another 11% of cases, some other form of penalty was agreed to.

Generally, the police, young offenders and their families expressed high levels of satisfaction with these outcome^.'^ Those least satisfied with FGC outcomes, perhaps predictably and not surprisingly, were the victims. Though over a half of those victims contacted by us expressed some satisfaction with the outcome, more than a third expressed dissatisfac- tioni6. These results are presented in Table 2.

TABLE 2 Views on Decisions by those Victims Attending and Not Attending the FGC

(N = 8117; percentages*)

Attenders Non-attenders Total (N = 51) (N = 30) (N = 81)

Agreed with decision 55 73 62

More welfare 10 3 8 More penalties or reparation 43 23 35

* Percentages can sum to more than 100 due to the ract that some wanted both more penalties and more welfare provisions.

Most of the victims who were dissatisfied wanted harsher penalties or reparation but a small number of victims felt that more attention should have been paid to the welfare of the young person.

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Adam needs help with his anger/alcohol problem. His father needs guidance as well.

Having got to know him I think he still has problems that are not being addressed.

Those victims who did not attend the FGC were able to express a view about the appropriateness of the outcome less frequently than those who attended (because they had not been informed what the outcome was) but, when they did, three-quarters indicated that they were satisfied with the outcome and fewer than those who did attend wanted harsher penalties. This is probably explained by the fact that the offences against them tended to be less serious. Contrary to expectations, reparation was not significantly related to the satisfaction felt by the victim about the outcome in general. In fact, those who were satisfied with the outcome were less likely to have received reparation than those who were, in general, dissatisfied (33% of those satisfied received reparation compared to 45% of those not satisfied).

Since many of the victims we spoke with who had attended the FGC also had strong reservations about the FGC outcome, this raises questions about the extent to which they were fully informed at FGCs that their agreement was necessary for the outcome to be accepted. In one case we observed, the victim was asked how she felt about a proposal for the boy to perform 150 hours community work. She replied:

Its disgraceful . . . not punitive. Even 200 hours community work to compensate for $4000 worth is like $20 an hour payment. I get paid $12 an hour . . . it’s a let off, an easy option. This was left hanging in the air. There was no further discussion of the penalty and the victim’s disagreement was not mentioned in the official record of the FGC’s recommendations produced for the Youth Court.

Overall, although most FGC outcomes are recorded as ‘agreed’ - 95% nationally and 93% in our sample - this does not sit well with the high levels of dissatisfaction expressed by victims who attended ‘their’ FGC:

It is a soft option. He needs jail. It was very serious. I could have been killed. The crime stinks, but the punishment stinks more. Disgusting , . . allowed to get away with it. It’s lenient. He’s only paying $20 a week. I had to pay out cash and lose interest. It’s me that suffers . . . not good enough . . . I’d shoot the bastards. Its all a farce . . . he doesn’t give a shit . . . none of the options were the punishment he deserves. Community work through the church is a cop out. Its too sheltered.

This failure on the part of FGCs to satisfy victims may reflect the lack of adequate briefing for victims about their role in FGCs and what they might realistically expect. If victims attend FGCs with false or unrealistic expectations it is not surprising that they remain dissatisfied; for instance, victims may be unaware of the relatively moderate penalties that are normally used for similar offences by the courts and may believe that the court would have been more severe.

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Such high levels of disatisfaction among victims must affect the extent to which reconciliation between offenders and victims can occur. Reconciliation, however, did clearly occur on occasions. At one FGC we observed, after tearful apologies had been made by both the youth and his family, there seemed to be a reluctance amongst the parties to leave the meeting. There were handshakes and embraces all round and finally a suggestion by one of the victims that the offender and his family join him for a meal at a later date. In another, the victim became very sympathetic towards the youth and, after the break, moved to sit by him in a sort of symbolic alliance. In yet another, victims who were intitially very angry with the young person became supportive after spending half an hour with her on their own and subsequently offered to attend court with her (the girl had been arrested). The researcher’s field notes ended: I feel privileged to have been at such a touching and effectiue FCC.

Conclusion

For many victims, the results of FGCs were positive; they received apologies, they received reparation or had work done for them and they felt better about the matter as a result of participating in the FGC. But too many (about a quarter) said that they felt worse as a result of attending the FGC. Sometimes this was because they felt unable to express themselves adequately. At other times, they felt that families sided with young offenders and excused their behaviour. A few expressed a fear of reprisals and consequently they were unwilling to say all that they wanted to say. One case of serious injury was dealt with in a large marae-based FGC in which most of the proceedings were conducted in Maori. The Pakeha (of European origin) relatives of the seriously injured victim felt very alienated and hurt by the process which seemed to them to exclude them. They were also distressed to find that most of the time was spent considering the young person and his family rather than their needs.

While about half of the victims in our sample were satisfied with the outcomes reached at FGCs, about half were not. In part, this was due to the inadequate preparation of the victims (and of the other participants) about what to expect. Victims did not necessarily know what to expect in their immediate role at the FGC and what it might be like to meet the offender in person. In the words of one victim, there wasn’t adequate preparation f o r meeting the offender - the psychological preparation f o r meeting ofjnders needs more thought. In part also this was due to unrealistic expectations about outcomes. In one area we are aware of, there is a very high level of attendance of victims at FGCs because the victim advocate there contacts all victims and tells them that their chances of reparation are higher if they attend. As we have shown, this is not always the case. In practice, few families involved in the youth justice system can afford to make reparation. This is reflected in the fact that it was agreed to at less than a third of FGCs nationally in 1990 (the figure was slightly lower in our sample).

I t is possible that victims’ negative feelings and dissatisfaction could be

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remedied by improved practice - for example, better briefing of and more support for victims. Victims require time to think through the possible consequences of meeting offenders and their families and in serious cases (such as rape, serious physical injury and arson) to explore (with the help of the YJC or a youth justice social worker) the best way they can contribute to the process and what type of contribution they might wish to make.

But victims’ negative feelings and dissatisfaction also raise more fundamental questions about victims’ involvement in criminal justice processes. The primary arena for meeting young offenders’ needs and ensuring their accountability is the FGC; it is also the primary arena for responding to the victims’ interests. Research (for example, Marshall and Merry 1990) suggests that in such situations victims almost invariably lose out: offenders’ interests are promoted and the victims’ neglected.

I t is our view that this has occurred in the New Zealand system of youth justice too. Tension has been created by expecting very different interests to be met in a single forum without one or the other being compromised. Indeed, further compromises are likely since legislation will, early in 1993, introduce a requirement‘* to consult victims about the venue of an FGC and to allow victims to have supporters at the FGC. Such changes are symbolic of a shift in focus from young offenders and their families towards victims; they are not resolutions to the conflict. There will undoubtedly be costs - in particular, a probable decrease in the levels of satisfaction expressed by young people and their families about both the FGC process and outcomes. And there may be other and better ways of meeting the needs of victims.

In recent years, acknowledgement of the situation of victims and a general preparedness to pay attention to their needs has contributed to heightened expectations among victims, but there is little agreement about what society can actually do for them. As in any situation where social norms are changing, there are many competing pressures and views. At one extreme, there is a forceful notion of victims’ rights which seems only to be met by the very severe punishment of offenders. This notion of ‘justice’ for victims which ignores offenders’ basic civil rights and demands lengthy incarceration of offenders is problematic. Even more problematic are increasing trends in a number of jurisdictions to ‘victims’ taking the law into their own hands.lg Revenge is not justice.

An alternative view is to recognise the range of unmet needs of victims and to consider ways of meeting these needs both within and outside the criminal justice system. I n our research, we found that most of the victims lacked adequate information at some level. Sometimes they were not told or were misinformed about how they could be involved and what was likely to happen and sometimes they were not told what the outcomes were. Usually information was reasonably good at the start of the process when the police were still investigating the offence but in the later stages there was often a failure to follow through (see also Shapland et al. 1985). Improvements to the methods of providing information to victims at all stages of proceedings could substantially reduce some of the dissatisfaction

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felt by victims about this and go some way towards making them feel that the justice system is concerned about them.

Friends and family provide the most important support for victims of offences and they are usually thc most valuable because they are known and trusted. But sometimes outside help is needed. The development of Victim Support schemes in many jurisdictions is a response to this. Their aims are to provide immediate practical assistance and counselling in a crisis and to provide information to victims about what they can expect to happen to them and what services are available to help them with their particular needs, especially psychological services in cases of severe distress. The movement is largely voluntary and receives the co-operation and hrlp of the police who, in some areas, inform the Victim Support co- ordinator of incidents in which they might be needed. But there are a number of problems: Victim Support groups are by no means universally available, their role and methods of operation are still being defined, funding remains uncertain and not all victim supporters are adequately trained and skilful. Unless these issues are sorted out, the unmet needs of victims for support will remain a source of resentment within any forum dealing with offenders.

Some victims are deeply emotionally distressed by the offence and their distress continues. This can take the form of fear of certain places, certain typrs of people and, in particular, of the offrndcr. Confidence and certainty in the world can be reduced leading to a damaged sense of self and reduced effectivenrss in various aspects of life. Many victims need professional help in coming to terms with their experience. At present, thcrc are gaps in the funding of psychological scrvices and in referring victims for these services. 'There are real anomalies for victims who see services being arranged and funded for offenders while their needs for psychological help remain unmet.

Some victims are concerned about the lack of reparation or compensa- tion they receive after an offence has been committed against them. Their likelihood of receiving any seems to depend on a number of chance factors: for example, the financial circumstances of the young offender and his or her family. But there is a wider issue here - the criminal justice system inevitably focusses on offenders and so cannot itself mcct all the needs that victims have for compensation and reparation. If these needs are to be responded to more fully, it must be within the context of a broader social policy of providing compensation for victims of crime or within a system of public insurance.

Giving victims a place in decision-making, as we have already commented, does create conflicts. Furthermore, not all victims are willing to be involved or feel positively afterwards. I t is for these reasons that we think it unwise to put pressure on victims to attend meetings with offenders. On the other hand, victims should be provided with the option to attend such meetings - many victims in our sample did feel better as a result and it seems likely that the number who felt worsc could be reduced through improved practice. Providing victims with enough support and information to help prepare them for such meetings are, however,

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essential precursors. Otherwise neither victim nor offender is deal t with justly.

Notes I The United States has gone much further in this regard and so in many States

victims have the right to participate in, for example, bail, plea bargaining, sentencing and parole decisions. See Hall (1991) and Henderson (1992) for a critique. Section 208(g) Children, Young Persons and Their Families Act 1989. The exception to this is where the juvenile has been arrested by the police. Almost all of these cases must currently appear in the Youth Court. However, only about 10% of known juvenile offenders are arrested and even where the case is referred to the Youth Court the judge cannot deal with the juvenile without first hearing the recommendations of the Family Group Conferences. Whanau literally refers to family members having a single grandparent in common although more recently it has also come to mean a support network who are not necessarily linked by kinship. Hapu refers to the clan, usually made up of those linked by an ancestor who first established the group in a particular locality in New Zealand. Iwi is a tribe, usually defined by common ancestry from one of the canoes which settled New Zealand. The important point to note about ‘whanau, hapu and iwi’ is that the words refer not simply to kinship but to an entire social system which defines relationships, beliefs and customs. The research examined what happened to a sample of 692 children and young people apprehended by the police or the Ministry of Transport (MOT) over a three month period in 1990 to 1991 in five areas of New Zealand. In particular, the study focussed more intensively on 203 young people who participated in an FGC and included interviews with them, their families, victims and pro- fessionals. For more detail see Maxwell and Morris 1993. Where victims choose not to attend an FGC their representative can attend. ’ The most important are that the arrest is necessary to ensure the young person’s appearance in court, to prevent the commission of further offences, or to prevent the loss or destruction of evidence or interference with witnesses. A few juveniles who have not been arrested but whom the FGC feel should be prosecuted in the Youth Court will also appear there by summons. This amounted in our sample to a further 4%. This is the court which deals with the bulk of offending by adults.

l o This seems lower than mediation schemes elsewhere. For example, in Marshall and Merry’s (1990) review of the four victim/offender schemes funded in England by the Home Ofice (as well as some others), 79% ofvictims agreed to take part in police-based mediation. But in practice, only 47% of all the cases referred for mediation reached the stage of a direct meeting between the victim and the offender. The figures for the court-based schemes were much lower. Only 51% ofvictims agreed to take part and meetings only took place in 34% of the cases. These figures are on a par with or lower than the New Zealand figure which in some senses, therefore, must be viewed as comparatively high given the non-selective nature of the FGC cases.

I ‘ This was usually presented to us as neutral ground but from the point ofview of families i t clearly is not. I t is viewed rather as reflecting DSW’s control over the proceedings. This again seems lower than schemes elsewhere. In Marshall and Merry’s

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(1990) review referred to earlier, for example, 82% of the victims felt that meeting the offender was valuable. This included 22% who said that it had helped relieve their worries about the offence. But these figures are likely to be influenced by the more minor nature of the offences dealt with in these schemes and by the fact that some selection of ‘suitable’ cases had already been made. Victims’ representatives were even more inclined than victims to say they felt worse after attending the FGC and, in these cases, it was usually because the FGC had increased their awareness of the nature of the offence.

l 4 Although reparation was often seen as a central issue by victims, it was not necessarily critical. One reason was, of course, that the majority of the offences against them involved property and most of the property was recovered. On the basis of the files in which information on reparation was given (and this may not have been complete), in only 9% of the cases was none of the property recovered. However, reparation claims occurred also for damage so that all in all we noted 40 claims for reparation. In a third of these, there was no award or only a token award but, in the remainder, a t least half the value of the goods or damage and usually the full amount was awarded. Ninety-one per cent of the police, 86% ofyoung people and 88% of parents said they were satisfied with the decision. This seems higher than the levels of dissatisfaction reported elsewhere. Croates and Gehm (1989), for example, report that 59% of victims involved in Victim Offender Reconciliation Programmes (VORPS) in the United States were ‘very satisfied’ and a further 30% were ‘somewhat satisfied’; only 11%, therefore, must have expressed some dissatisfaction. Reparation, however, is a common outcome in these programmes.

l 7 A relatively large number did not reply to this question, especially among those who did not attend the FGC. ’* This is the result of pressure to amend the legislation in this way, particularly from the police. Recent examples of this in England are the admittedly deliberate shooting by Stephen Owen of the man sentenced to 18 months’ imprisonment for the death of Owen’s son by dangerous driving (the jury acquitted Owen) and Brian Nelmes who seriously assaulted (with a hammer and battery acid) a man alleged to have abused his daughter, The Crown Prosecution Service did not prosecute the alleged assailant because it believed the daughter was not a ‘good’ witness. Nelmes was sentenced to six years’ imprisonment, but served only six months.

13

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Braithwaite, J. (1989) Reintegrative Shaming, Cambridge: Cambridge University

Coates, R. and Gehm, J. (1989) ‘An empirical assessment’, in: M. Wright and

Cragg, W. (1992) The Practice of Punishment, 1,ondon: Routledge. Hall, D. (1991) ‘Victims’ voices in the criminal court: the need for restraint’,

Henderson, I,. (1992) ‘The wrongs of victims’ rights’, in: E. Fattah (Ed.),

Hough, M. and Mayhew, P. (1985) Taking Account of Crime, London: HMSO. Marshall, T. and Merry, S. (1990) Crime and Accountability, London: HMSO.

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B. Galaway (Eds.), Mediation and Criminal J w t i c e , London: Sage.

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Maxwell, G. and Morris, A. (1993) Families, Victims, and Culture: Youth Justice in New Zealand, Wellington: Social Policy Agency and Institute of Criminology, Victoria University of Wellington.

Shapland, J., Willmore, J. and Duff, P. (1985) Victim in the Criminal Justice $stem, Aldershot: Gower.

von Hirsch, A. (1986) Past or Future Crimes, Manchester: Manchester University Press.

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Date submitted: December 92 Date accepted: February 93

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@ Basil Blackwell Ltd. 1993