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Communicative punishment and the role of the victim

Christopher Ciocchetti presents an important challenge to the communicative account of criminal punishment that we defend (indeed, to any normative penal theory that claims to take the rights of victims seriously), and suggests a way of revising that account to meet that challenge. (1) His own account, however, still faces a version of the challenge that he poses for our account. What is needed to meet that challenge, we will argue, is a robust defense not just of victims' rights, but of their responsibilities--a defense that depends on the modest type of communitarianism to which our account appeals. Such a defense will raise liberal hackles, but we will argue that it is crucial to an adequate normative understanding of the criminal law as a distinctive institution. Communicative Punishment and "Atypical" Victims Criminal punishment, in our account, is an essentially communicative enterprise. It aims not merely to communicate censure--the somewhat abstract condemnatory message that "You have done wrong" (2)--but to communicate and to persuade the offender to accept a substantive understanding of his crime as a particular kind of "public" wrong--a wrong, that is, against its individual victim (when there is one), but also, through the victim, against the political community whose criminal law he has violated and to which both he and the victim belong. (3) This communicative enterprise is pursued through a multi-stage process: through the criminal trial, as a process that calls the defendant to answer a charge of wrongdoing, and the conviction that follows on proof of his guilt; through the sentencing discussion (involving the victim if possible, as well as a suitable representative of the polity, such as a probation officer) that should ideally follow conviction, and that would focus both on the past crime as a wrong that the offender must confront and on the question of what sentence would constitute an appropriately reparative and apologetic penance for that wrong; (4) and through the punishment that is then imposed on or demanded of the offender. Now one set of issues, which we have addressed, concerns the status of the offender, and whether punishment, as thus portrayed, can be said to respect the offender as a responsible citizen. A particular challenge is posed here by the "defiant offender," who is unpersuaded of the wrongfulness of what she has done and who perhaps refuses even to listen to the attempts at persuasion that her punishment involves. It is important to show that punishment, while it does involve a forceful attempt to make her listen and to persuade her, can and must respect her moral agency by leaving her in the end free to remain unpersuaded and unrepentant. (5) But Ciocchetti highlights another set of issues that we have not sufficiently addressed: the status of victims, and whether and how the punishment of "their" offenders can do justice to them. The particular question on which Ciocchetti primarily focuses is, as he notes, just one of a set of questions about the responsibilities or duties that victims of crime should be taken to have: do they have any moral duty, and should they have a legal duty, for instance to report the crime; to assist the police in its investigation; to give evidence in court; to take part in a mediation or post-conviction meeting with the offender; to negotiate, and accept, some kind of reparation and apology from the offender? We return to some of these questions later, but first we will attend to Ciocchetti's particular concern. The criminal law portrays the offender's crime as a particular kind of public wrong; but what if the victim dissents from that portrayal? Such dissent could take various forms. At its simplest, it could deny that what the law condemns as a crime is wrong at all. That might be the response of (what the law portrays as) the victim of an attempted voluntary euthanasia, for instance, or of those who received injuries in the consensual sadomasochistic activities that were held to be criminal in R. …