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Chapter 4

History of Law:

The Evolution of Victims' Rights

Abstract: The establishment of victims' rights under a system of laws is not a new phenomenon. Indeed, some of the earliest known writings involve organizing and re-recording legal rights. Many vestiges of earlier systems endure today and provide the essential context within which to understand modern day victims' rights laws.

Learning Objectives: Upon completion of this chapter, students will understand the following concepts:

1. The development of law and its impact on victims.

2. The definition of stare decisis.

3. The various theories of what law is and what it does.

4. The different classifications of crimes.

5. The various types of defenses and their impact on victims.

6. The development of victims' rights in criminal law.

• 2000-1750 B.C. Code of Hammurabi adopted.
  

• 450 B.C. Twelve Tables written.
  

• Roman Empire Justian Code drafted.
  

• 1066 A.D. Norman Conquest of England.
  

• Middle Ages Development of the Common Law.
  

• 1215 A.D. Magna Carta signed.
  

• 1787 A.D. U.S. Constitution written.
  

• 1965 First victims' rights law passed in America.

A complete and accurate understanding of the concepts inherent in our American criminal law system can only be attained by a review of its history, philosophy, and development. Modern criminal law is the result of a long evolution of laws that have attempted to deal with and define deviant behavior in society.

Code of Hammurabi

The Code of Hammurabi is considered one of the first known attempts to establish a written code of conduct. King Hammurabi ruled Babylon at approximately 2000 B.C. He was the sixth king of the First Dynasty of Babylonia for about 55 years. During that period of time, Babylon was a commercial center for most of the known and civilized world. Since its fortune lay in trade and other business ventures, the Code of Hammurabi provided a basis for order and certainty essential for commerce. The Code established rules regarding theft, sexual relationships, interpersonal violence, and other issues. It was intended to replace blood feuds with a system sanctioned by the state.

The Code of Hammurabi was divided into five sections:

• A penal or code of laws.
• A manual of instruction for judges, police officers, and witnesses.
• A handbook of rights and duties of husbands, wives, and children.
• A set of regulations establishing wages and prices.
• A code of ethics for merchants, doctors, and officials (Masters and Roberson, 1985).

The code established certain obligations and objectives for the citizens of Babylon to follow. These included:

• An assertion of the power of the state. This was the beginning of state-administered punishment. The blood feuds that had occurred previously between private citizens were barred under the code.

• Protection of the weaker from the stronger. Widows were to be protected from those who might exploit them, elder parents were protected from sons who would disown them, and lesser officials were protected from higher ones.

• Restoration of equity between the offender and the victim. The victim was to be made as whole as possible and, in turn, he or she was required to forgive vengeance against the offender.

Of noteworthy importance in the code was its concern for the rights of victims. In reality, this code may have been the first "victims' rights statute" in history. Unfortunately, as will be seen, society began to neglect victims in its rush to punish the offender, with the result that victims' rights would not resurface until the present century (Gordon, 1957).

Early Roman Law

Another important milestone in the development of American law was early Roman law. Roman law was derived from the Twelve Tables, written about 450 B.C. These tables were a collection of basic rules relating to conduct of family, religious and economic life. Early Roman legions conquered England in the middle of the first century. Roman law, customs, and language were forced upon the English people during the next three centuries of Roman rule.

Emperor Justinian I codified the Roman laws into a set of writings. The Justinian Code, as these writings became known, distinguished between two major types of laws:

• Public laws: Dealt with the organization and administration of the Republic.

• Private laws: Addressed issues such as contracts, possession and other property rights, the legal status of various persons such as slaves, husbands and wives, and injuries to citizens.

It contained elements of both our civil and criminal law and influenced Western legal theory into the Middle Ages.

The Bible

It is unclear when the fifth book of the Old Testament, Deuteronomy, was written, and indeed, as "oral history," the very first version was not written at all (it was probably written for the first time in about 100 B.C.). In any event, Deuteronomy instructs that with respect to certain crimes, the penalty shall be " . . . eye for eye, tooth for tooth, hand for hand, foot for foot." (Chapter 19, Verse 15.) Because the rabbinic tradition taught that this penalty was not to be interpreted literally and that what the Biblical instruction really meant was that a victim of an assault or other crime should receive from the criminal the value of an eye, or the value of a foot, arguably Deuteronomy presents the first more formalized scheme of victim restitution since the Code of Hammurabi.

The Legal System in England

Prior to the Norman conquest of 1066 A.D., the legal system in England was very decentralized. There was little written law except for crimes against society. As a society, England had forgotten or moved away from the teaching of the Code of Hammurabi, and crimes during this period were again viewed as personal wrongs. Compensation was paid to the victim or his/her family for the offense. If the perpetrator failed to make payments, the victim's family could seek revenge resulting in a blood feud. For the most part during this period, criminal law was designed to provide equity to what was considered a private dispute.

The Norman Conquest under William the Conqueror established royal administrators who rode circuit to render justice. These royal judges would use local custom and rules of conduct as a guide in rendering their judgments. This system, known as stare decisis (Latin for the phrase "to stand by the decided law"), would have far reaching effects on modern American criminal law.

Common Law

The next major development in the history of law was the acknowledgment of the existence of Common Law. Early English Common Law forms the basis for much of our present day legal system. Common Law is a traditional body of then unwritten legal precedents created by court decisions (as distinguished from statutory law written by a Congress or other legislative body) during the Middle Ages in England. During this period of time when cases were heard, judges would start their deliberations from past decisions that were as closely related as possible to the case under consideration. In the eleventh century, King Edward the Confessor proclaimed that Common Law was the law of the land. Court decisions were finally recorded and made available to lawyers who could then use them to plead their cases. This concept is one of the most important aspects of today's modern American law.

The Magna Carta and U.S. Constitution

The Magna Carta of England and the U.S. Constitution both stand as great documents and moments in the history of American law. The Magna Carta was signed on June 15, 1215 and was later interpreted to grant basic liberties to all British citizens. The U.S. Constitution established certain individual rights, defined the power of the federal government, and -- among other things -- limited punishment for violation of laws.

American law combines both Common Law and written statutes.

• Statutory laws are enacted by state legislatures and Congress, and are the major sources of American criminal law today.

• These laws are usually compiled in various codes, and are subject to revision by the legislatures and Congress.

An offshoot of written law, administrative law is comprised of rules and regulations adopted by governmental agencies at the federal, state and local levels. Many governmental agencies are invested with the power to pass regulations that prohibit certain types of conduct. Some of these regulations provide for fines rather than imprisonment of the offender.

Constitutional Law

Constitutional law is at the foundation of American criminal law. The Constitution does not define new crimes (the only crime defined in the Constitution is treason); rather, it sets limits on other laws as they apply to individuals. An example of this principle is the U.S. Supreme Court's ruling that flag burning, which was proscribed as criminal conduct by a state statute, is protected under the First Amendment right to freedom of expression.

Max Weber, an acclaimed sociologist during the early twentieth century, stated that the primary purpose of law is to regulate the flow of human interaction (Rheinstein, 1954).

Dr. Weber, who is famous for a number of modern day concepts including the concept of bureaucracy, believed that laws make the behavior of others predictable (Wallace, Roberson, and Steckler, 1994). Thus, one of the accepted purposes of law is to support social order.

Laws also serve other purposes including:

• Banishing private retribution.

• Reflecting public opinion.

• Deterring criminal acts.

• Punishing offenders.

• Providing socioeconomic control (Siegel, 1989).

Banishing retribution occurs because laws replace the power of individuals to carry out revenge against the perpetrator. The law shifts the burden and responsibility of making the victim whole from the individual to the state. Laws reflect public opinion by defining the boundaries between current concepts of illegal behavior and allowing individuals to guide their conduct according to these written requirements. Some argue that laws deter potential law violators. The threat of punishment is sufficient to prevent individuals from committing the prohibited act. Punishment of offenders occurs when laws grant the government the ability or power to sanction wrongdoers. Finally, socioeconomic control occurs when laws support and maintain the social and economic systems they serve.

Roscoe Pound, one of the great legal scholars of modern times, believed that law was a type of social engineering (1968). The law was a tool that met the needs of men and women living and working together in society. Pound believed that law must change with the advent of new ideas. He articulated a series of Jural Postulates that were propositions setting forth the basis of all law because they reflected the shared needs of society.

There are three basic types of crimes:

• Felonies
• Misdemeanors
• Petty offenses/infractions

There are three categories of defenses:

• Personal defenses
• Special defenses
• Procedural defenses

Because of the wide variety of state and federal statutes dealing with these topics, only a brief and basic discussion is possible. However, understanding these concepts is essential to progress to more complex issues.

Types of Crimes

• Felonies are the most serious form of crimes. English Common law required that felons suffer death and/or have their property confiscated by the state. Today, a felony is a criminal offense that is punishable by death or imprisonment in a state or federal institution for more than a year.
• Misdemeanors are the next most serious form of crime and are usually punishable by a fine and/or incarceration in a local penal facility for up to one year in length.
• The least serious crimes are called by a variety of names, e.g.: petty offenses, infractions, petty crimes, etc. These crimes are minor violations of the law, normally are punished by a fine, and do not carry any imprisonment.
  

Categories of Defenses

Defenses are those claims that state the defendant should not be held accountable for his or her acts, even though the defendant may have acted in violation of the criminal law. Defenses may be personal, special or procedural in nature (Wallace and Roberson, 1996).

Personal Defenses

The most common personal defenses include infancy, insanity, involuntary intoxication, and certain syndromes. Each of the personal defenses raises issues that have caused controversy within our American judicial system.

• Infancy. The defense of infancy is grounded on the concept that minors below a certain age cannot form the intent necessary to commit the criminal act. The concept of infancy is one of the reasons for the formation of juvenile courts. These special courts are discussed in greater detail in the chapter on the judicial system and victims of crime.

• Insanity. Insanity defenses are among the most complex and controversial areas of criminal law (Wallace and Roberson 1996). Criminal laws generally require that the offender have the requisite mind-set, or criminal intent, as a threshold to being found guilty of a crime. Insanity at the time the act was committed, sometimes called "diminished capacity," negates the required mental state of the actor and, therefore, the individual is not considered to be responsible for committing the crime. For example, battery requires a general intent to commit the offense. If, however, the individual does not have the ability to formulate the required criminal intent, or "mens rea," one of the essential elements of the crime is missing and the individual is not held responsible for having committed battery.

Insanity at the time of trial is referred to as "incompetency to stand trial." The accused must have a sufficient mental state in order to assist his or her attorney in the defense of the case. If the accused does not have sufficient mental state, then the trial must be delayed. Unlike the question of mental state at the time of the act, which negates the guilt, incompetency to stand trial refers only to the ability of the accused to assist his or her counsel and does not negate the commission of the offense. If the accused is determined to be incompetent to stand trial, the state is required to delay the trial until the individual is competent.

Insanity is a legal term that excuses the defendant's conduct based upon his or her lack of required mental state. This concept uses medical/psychiatric knowledge to come to a determination regarding the defendant's mental status.

There are five basic tests for insanity which have been used in the American court system:

1. The McNaghten Test

2. The Irresistible Impulse Test

3. The Durham Rule

4. The Federal Test

5. The Model Penal Code or ALI Test

• It is no defense if one voluntarily consumes alcohol or other drugs and commits a crime. However, involuntary intoxication by ingestion of drugs or alcohol may occur when a person is tricked or forced into consuming the intoxicating substance. Spiked drinks or drug-laced food may cause a person to be under the influence of controlled substances without his or her choice or knowledge, thereby alleviating their criminal culpability. Because the effects and taste of alcohol are so widely known in America, this defense is difficult to prove.

• Certain syndromes have become more acceptable as defenses in recent years. These defenses include the battered women syndrome. This defense is used when a battered spouse kills her abuser (Wallace, 1994, p. 133).

Special Defenses

The most common special defenses include: self-defense; defense of others; defense of property; mistake; necessity; alibi; duress; and entrapment.

• Self Defense. Self-defense is one of the best known defenses in American law. Depending on the jurisdiction, a person raising this defense must satisfy all of the following elements:

1. They did not provoke the attack.

2. They were threatened with death or great bodily injury.

3. The danger was imminent.

4. They used only the amount of force necessary to repel the attack.

These elements are judged by the "reasonable person standard" and not the subjective point of view of the victim.

• Defense of Others. The concept of defense of others is very similar to self-defense, and allows a person to come to the aid of another person who is being attacked. The rescuer is allowed to use the amount of force that the victim could have used if he or she was able to resist the attack.

• Defense of Property. Defense of property is an old defense and allows a person to protect his or her property from theft or destruction. Unlike self-defense and defense of others, individuals are not allowed to use deadly force in reclaiming property. It should be noted that when people are attacked in their home, they are defending themselves and not property. Therefore, the rules that normally apply in these situations are those set forth in the special defense of self-defense.

• Mistake. Mistake is a complex and confusing personal defense. A person may raise mistake of law or mistake of fact. Mistake of law is rarely accepted as a defense to crimes. Mistake of fact is more common but still confusing. Mistake of fact negates the intent to commit the crime, and therefore does away with a necessary element of any offense.

• Alibi. The alibi defense is unique among the personal defenses in that it denies that the defendant even committed the criminal act. Most alibi defenses are proved by testimony of defense witnesses who indicate that the defendant could not have been present at the scene of the crime because he or she was elsewhere when the crime was committed.

• Duress. Duress is based upon the concept that the law will forgive the lesser of two evils. For duress to be a valid defense, the threat must be to harm the victim or his or her immediate family. Additionally, duress is not applicable in homicide cases.

• Entrapment. Entrapment regulates police conduct and allows a defendant to go free if he or she can prove that law enforcement officers planted the idea of committing the crime in the defendant's mind. Entrapment has been used successfully in many criminal cases.

Procedural Defenses

The most common procedural defenses include lack of a speedy trial, selective prosecution, double jeopardy, and prosecutorial misconduct.

• Lack of Speedy Trial. The right to a speedy trial is guaranteed by the Sixth Amendment of the U.S. Constitution. The purpose of this amendment is to prevent un-convicted persons from being held in jail for prolonged periods awaiting trial. The federal government and most states have statutes that define the time limit necessary for a trial.

• Selective Prosecution. Selective prosecution is a concept that is based upon the Fourteenth Amendment's guarantee of equal protection under the law. This concept prohibits the government from unfairly prosecuting a person based upon a protected classification such as race, age, gender or religious affiliation. This defense is hard to prove since prosecutors have a wide range of discretion that courts are reluctant to overturn convictions based on this defense.

• Double Jeopardy. Double jeopardy is based upon the Fifth Amendment of the U.S. Constitution, which prohibits any individual from being tried twice for the same offense. It is intended to prevent the government from harassing individuals by repeatedly trying them for the same or similar offenses. However, some crimes can be violations of both state and federal laws and an acquittal of one does not bar the prosecution of the other. The Rodney King case is an example of this principle. Mr. King's assailants were acquitted on state criminal charges and convicted on federal charges; however, the charges differed in each system. Double jeopardy does not apply to cases where a trial court has made an error and the appellate court reversed that outcome, nor does it apply when the defense moves for a mistrial.

• Prosecutorial Misconduct: Prosecutorial misconduct occurs when prosecutors engage in conduct that unfairly prejudices the defendant. This may occur when the prosecutor hides the existence of evidence favorable to the defense or makes misstatements to the jury.
  

As the above discussion indicates, we have evolved from the time of blood feuds, to payment of funds to victims, to the concept that the state is the "victim."

The chapter on the history and overview of the victims' movement includes a list of many of the significant milestones in the victims' movement. This section will briefly examine some of the more important areas of victims' rights that directly affect the criminal justice process.

• In 1965, California passes the first victims' rights law (victim compensation). Subsequently, other states and the federal government follow suit with the institution of numerous laws aimed at providing victims of crime with basic rights.

• In 1976, James Rowland, the Chief Probation Officer in Fresno County, California, creates the first victim impact statement to provide judges with an objective account of the victim's injuries prior to sentencing.

• In 1980, Congress passes the Parental Kidnapping Prevention Act and Wisconsin passes the first Crime Victims' Bill of Rights.

• In 1982, the Federal Victim and Witness Protection Act brings "fair treatment standards" to victims and witnesses in the federal court system, and the Missing Children's Act of 1982 guarantees that identifying information on missing children will be entered into the FBI National Crime Information Center. California voters pass Proposition 8 which guarantees restitution and other reforms for crime victims.

• In 1984, the Victims of Crime Act (VOCA) establishes the Crime Victims Fund. This fund is made up of federal criminal fines, penalties and bond forfeitures used to support state and local victim services, including compensation for victims of crime. President Reagan signs the Justice Assistance Act that establishes a financial assistance program for state and local governments. The National Minimum Driving Age Act of 1984 is passed and provides strong incentive for states to raise the minimum age for drinking to 21. The Missing Children's Assistance Act provides federal funding for the National Center for Missing and Exploited Children. During 1984, Congress also passes the Family Violence Prevention and Services Act that earmarks federal funding for programs serving victims of domestic violence.

• In 1986, Rhode Island passes the first constitutional amendment for victims granting them the rights to restitution, to submit a victim impact statement, and to be treated with dignity and respect.

• In 1988, the Federal Drunk Driving Prevention Act is passed, raising the minimum drinking age in all states to 21. VOCA amendments establish the Office for Victims of Crime and induce state compensation programs to cover victims of domestic violence and drunk driving. State v. Ciskie is the first case to allow the use of expert testimony to explain the behavior and mental state of an adult rape victim. The testimony is used to explain why the rape victim did not immediately report the assault.

• In 1990, the Hate Crime Statistics Act is passed, requiring the Attorney General to collect data of incidences of certain hate motivated offenses. The National Child Search Assistance Act requires law enforcement officers to enter reports of missing children in the NCIC computer. The Student Right-to-Know and Campus Security Act requires institutions of higher learning to disclose certain violent crimes on campus. The Victims of Child Abuse Act of 1990 is passed, which features reforms that make the federal criminal justice system less traumatic for child victims and witnesses. Legislation to prohibit drunk drivers from filing bankruptcy to avoid paying restitution or civil fines is enacted by Congress. Maryland v. Craig allows child victims to testify via closed circuit television.

• In 1991, the Attorney General's Guidelines for Victim and Witness Assistance implement new protections of the Crime Control Act of 1990, integrating the requirements of the Federal Crime Victims' Bill of Rights and the Federal Victim and Witness Protection Act of 1982. The International Parental Child Kidnapping Act makes it a federal offense to unlawfully remove a child outside the United States. The U.S. Supreme Court rules in Simon & Schuster v. New York Crime Victims Board that New York's notoriety-for-profit statute is unconstitutional. While this is a blow to the victims' movement, the Supreme Court rules favorably in Payne v. Tennessee, which allows victims to make victim impact statements prior to sentencing in capital cases.

• In 1992, Congress re-authorizes the Higher Education bill that includes a Sexual Assault Victims' Bill of Rights. The Battered Women's Testimony Act, which urges states to accept expert testimony in criminal cases involving battered women, is passed. The U.S. Supreme Court, in R.A.V. v. City of St. Paul, strikes down a local hate crimes ordinance in Minnesota.

• In 1993, Congress passes the "Brady Bill" which requires a waiting period for the purchase of handguns. The Child Sexual Abuse Registry Act establishing a national repository for information on child sex offenders is enacted. Twenty-two states pass anti-stalking laws, bringing the total to 50 states plus the District of Columbia.

• In 1994, five states pass constitutional amendments granting victims participatory rights throughout the criminal justice system, bringing the total number of states with amendments to 20. Congress passes the most comprehensive package of federal victims' rights legislation in its history as part of the Violent Crime Control and Law Enforcement Act. This Act includes the Violence Against Women Act, enhanced VOCA funding, establishment of the National Child Sex Offender Registry, enhanced sentences for drunk drivers with child passengers, mandatory restitution for certain categories of federal crime victims, and allocution at sentencing for federal victims of violent crime.

• In 1996, a federal constitutional amendment was introduced in the U.S. Senate. Amending the Constitution on behalf of victims was recommended by the President's Task Force on Victims of Crime in 1982. The culmination of many years of combined efforts, this amendment to the U. S. Constitution, if passed and ratified, could result in sweeping improvements in balancing the criminal justice system on behalf of victims. The text of the proposed amendment follows here:
  

Victims' Rights Constitutional Amendment

Section 1. To ensure that the victim is treated with fairness, dignity, and respect, from the occurrence of a crime of violence and other crimes as may be defined by law pursuant to section two of this article, and throughout the criminal, military, and juvenile justice processes, as a matter of fundamental rights to liberty, justice, and due process, the victim shall have the following rights: to be informed of and given the opportunity to be present at every proceeding in which those rights are extended to the accused or convicted offender; to be heard at any proceeding involving sentencing, including the right to object to a previously negotiated plea, or a release from custody; to be informed of any release or escape; and to a speedy trial, a final conclusion free from unreasonable delay, full restitution from the convicted offender, reasonable measures to protect the victim from violence or intimidation by the accused or convicted offender, and notice of the victim's rights.

Section 2. The several States, with respect to a proceeding in a State forum, and the Congress with respect to a proceeding in a United States forum, shall have the power to implement further the rights established in this article by appropriate legislation.

While progress has been made in the area of victims' rights, there is still much to be done. Slowly, society is beginning to realize that victims of crime should have access to the criminal justice system in the same manner as criminal defendants. Understanding the history of the American criminal law system allows us to be more effective advocates for victims.

Definition of Terms

Common Law: A traditional body of unwritten legal precedents created by court decisions during the Middle Ages in England.

Defenses: Those claims that state the defendant should not be held accountable for his or her acts, even though the defendant may have acted in violation of the criminal law. Defenses may be personal, special or procedural in nature.

Felony: A criminal offense that is punishable by death or imprisonment in a state or federal institution for more than a year.

Infractions or Petty Crimes: The least serious crimes which are minor violations of the law and normally are punished by a fine, and do not carry any imprisonment.

Misdemeanor: Are usually punishable by a fine and/or incarceration in a local penal facility for up to one year in length.

Stare Decisis: Judges would use local customs and rules of conduct as a guide in rendering their judgment. It is a Latin phrase meaning "to stand by the decided law."

Self Examination Chapter 4

History of Law:

The Evolution of Victims' Rights

1) What is the significance of the Code of Hammurabi?

2) What is the purpose of laws?

3) What are the three various classifications of crimes?

4) List the different types of defenses available to a person charged with a crime.

5) Discuss the evolution of the victims' movement as it relates to the development of American law.

References

Gordon, H. (1957). Hammurabi's code: Quaint or forward looking. New York: Rinehart.

Masters, R. & Roberson, C. (1985). Inside criminology. Englewood Cliffs, NJ: Prentice-Hall.

Pound, R. (1968). Social control through the law. Hamden, CT: Archon.

Rheinstein, C. (Ed.). (1954). Max Weber on law in economy and society. Cambridge, MA: Harvard University Press.

Siegel, L. (1989). Criminology, 3rd Ed. St. Paul, MN: West Publishing.

Wallace, H. (1994). The battered women syndrome: Self-defense and duress as mandatory defenses?. The Police Journal, LXVII (2), 133-139.

Wallace, H. & Roberson, C. (1996). Principles of criminal law. White Plains, NY: Longman.

Wallace, H., Roberson, C., & Steckler, C. (1995). Fundamentals of police administration. Englewood Cliffs, NJ: Prentice-Hall.

Additional Suggested Reading

Kaplan, Skolinick, & Feeley. (1991). Criminal justice: Introductory cases and materials. New York: Foundation Press.

Hagan. (1990). Introduction to criminology, 2nd Ed. Chicago, IL: Nelson-Hall.

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