Thursday, October 21, 2021
Rachel J. Wechsler (The Peter L. Zimroth Center on the Administration of Criminal Law, New York University School of Law) has posted Victims as Instruments (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.
This Article is the first to analyze the treatment of crime victims through the lens of moral philosophy and liberal legal theory. It demonstrates that the application of these concepts is helpful in evaluating the legitimacy of the state’s approach to GBV victims. Following this analysis, it proposes a normative shift in the approach, from one that conceptualizes GBV victims primarily as instruments to one that constructs them as agents whose dignity and autonomy the state must respect.