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An Old World alternative to victim impact statements

Today, the state’s prosecutor is the defendant’s only official adversary in the courtroom while the victim’s status has been reduced to witness – as such being more object than acting subject during the trial procedure.

The Fountain of Justice in Frankfurt, Germany. Should it be renamed Fountain of Rechtsfrieden?
The Fountain of Justice in Frankfurt, Germany. Should it be renamed Fountain of Rechtsfrieden?

Justice?

There is no such thing. It’s elusive and subjective. What’s considered just or fair has changed over time and depends on the society or culture you live in. Plaintiffs and defendants have very different opinions on how justice should be served. If you are the victim of a violent crime, chances are you and the perpetrator will also violently disagree on what constitutes just punishment. Before legal systems and courts existed, victims and their relatives were in charge of delivering justice – mostly by feud and pretty much on an eye-for-an eye basis. These tribal customs fell out of fashion with the advent of kingdoms and kings who didn’t want their underlings to massacre each other and decided, for the sake of progress and predictability, to strip them of their power to prosecute crimes and make it a state business instead. Today, the state’s prosecutor is the defendant’s only official adversary in the courtroom while the victim’s status has been reduced to witness – as such being more object than acting subject during the trial procedure.

All that’s left to do is for the victim’s supporters to wave signs outside the courtroom that claim “Justice for X” or, if the victim was killed, for relatives to make a victim impact statement. Which may or may not have an impact on the judge. Also, the value of these statements has been questioned. Should a murderer serve more time in jail when its victim had a large, loving family and less time when there is no vocal fan base? If all human beings are supposed to be equal before the law, shouldn’t that include the murdered ones?

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Here is another model where victims or their relatives play a more active – and potentially less frustrating – role in the courtroom as Nebenkläger or “co-plaintiffs.” Co-plaintiffs are part of German trial law which, for example, allowed family members of 9/11 victims to join the Hamburg prosecutor’s case against Mounir El Motassadeq. He was on trial for supporting the Hamburg cell of Al-Qaeda that played a central role in the 9/11 hijackings. The law gives victims’ relatives the right to question the defendant directly if he or she testifies in court. Co-plaintiffs or their lawyers can call witnesses, introduce evidence, and participate in discovery of evidence collected by the prosecution and defense. They can also appeal if they feel the sentence is too low or too high (the latter doesn’t happen too often). El Motassadeq received the maximum sentence and spent 15 years in prison.

Henning Schroeder
Henning Schroeder
The co-plaintiff law is meant to strengthen the rights of the damaged party. It also provides an opportunity to be face to face with the defendant in a role other than victim, which should make it easier to deal with the psychological trauma inflicted by the crime.

Because everyone defines it differently, German trial law doesn’t even claim that it creates justice – it sticks with the notion of Rechtsfrieden as the desired outcome, best translated as legal peace. This means that all legal means have been exhausted to solve the conflict, and the parties have (more or less) accepted the verdict. I imagine that having a role as co-plaintiff makes acceptance easier for victims or their family members. In interviews after the 9/11 trial in Hamburg, the American co-plaintiffs sounded exhausted, yet relieved and one called it “a day to smile again.” They didn’t make impact statements but clearly had an impact on the trial procedure and outcome.

Henning Schroeder is a professor at the University of Minnesota and currently teaches in the Department of German, Nordic, Slavic & Dutch. His email address is schro601@umn.edu and his Twitter handle is @HenningSchroed1.