Secundaire victimisatie als probleem. Herstelrecht als oplossing? Een onderzoek naar de reikwijdte van secundaire victimisatie en herstelrecht in het straf-, civiel- en bestuursrecht in Nederland

Background
This research focuses on the scope of secondary victimization as a problem, and restorative justice as a solution, in a criminal law, civil law and administrative law setting. Secondary victimization means victims of an accident or crime being victimized for a second time by a stressful or burdensome legal procedure and/or the attitude of others, particularly professional parties. The first part of this report examines the definition of secondary victimization, its types of victims and the causes, consequences and solutions in the above areas of law.
The second part of the report considers restorative justice as a possible solution for secondary victimization. The aim of this restorative justice is for the victim(s) and perpetrator(s) of a crime to meet each other – preferably in the presence of one or more representatives of the community – in order to, as much as possible, repair the damage caused by the crime or accident. Our research investigates both the extent to which restorative justice contributes to victims’ recovery in criminal justice and the extent to which restorative justice principles are also applied in civil and administrative law.
The third part of the report discusses the European network set up to prevent secondary victimization among a specific group – victims of sexual violence – often associated with such victimization. Victims of sexual violence are at greater risk of secondary victimization, given that a fear of shame and of not being believed means that only 14 per cent of them report the crime to the police. On top of that, only 1 in every 10 cases followed up in the criminal justice system results in an offender actually being convicted. In addition, indications suggest that, in some European member states, victims of sexual violence do not receive fair compensation. The aim of the network is to improve access to compensation and hence to encourage victims’ recovery.
The research has an innovative character as it explores the topics of secondary victimization and restorative justice beyond the boundaries of criminal law, thus allowing us to identify overarching problems and share solutions.

Methods

We applied four research methods: literature research, interviews, desk research and an expert meeting.
1) Literature research was conducted: i) to find out what has been written in the Netherlands in the past 10 years on the definition, causes and consequences of and solutions to secondary victimization, and ii) to investigate the impact that restorative justice has on the recovery of victims, based on empirical research conducted in the Netherlands in the past 25 years.
2) In order to obtain more information on the extent to which secondary victimization and restorative justice occur in the various areas of law, we held 11 exploratory interviews with experts in criminal, civil, and administrative law.
3) For the network on victims of sexual violence that we established, we researched the various routes in the Netherlands for victims of sexual violence to obtain compensation by conducting a desk research.
4) Lastly, we organized an expert meeting to assess the strengths and weaknesses of the Dutch compensation system.

Results

In the literature, the term ‘secondary victimization’ is associated mainly with criminal law and, to a lesser extent, civil law. In criminal law, secondary victimization is caused by the attitude of the police, the courts or the suspect/offender, while in civil law it is caused by the attitude of insurance companies and medical experts. In both cases, not being believed or taken seriously is experienced as renewed victimization. In criminal law, secondary victimization is generally associated with victims of serious crimes, child victims, victims with intellectual disabilities, migrants and victims of sexual violence, domestic violence, hate crime or human trafficking. In civil law, by contrast, the types of victims who experience secondary victimization are personal injury victims and victims of medical incidents. In criminal law, secondary victimization mainly results in a loss of trust and confidence in the justice system, whereas secondary victimization in civil law is linked to longer-lasting mental health problems.
The interviewees confirmed that the term ‘secondary victimization’ is more commonly used in criminal law, and less so in civil law and not at all in administrative law. An explanation some of the interviewees gave is that the very term suggests that it has been preceded by some form of primary victimization. In civil and administrative law conflicts, primary victimization occurs only in cases such as traffic accidents, medical errors and situations of conflict and war. However, interviewees recognized secondary victimization – i.e. where legal proceedings have an adverse effect on those coming into contact with the legal system – as existing in all fields of law. Some interviewees reported this to be caused by a mismatch between what people want and what the legal system can offer them. The legal process often focuses only on answering legal questions rather than on victim recovery, while proceedings also take too long to complete and are too protocol-based. Meanwhile, professionals may worsen the relationship between litigants by adhering to a ‘fighting attitude’ rather than focusing on achieving sustainable resolution of conflicts. The legal procedure can sometimes, therefore, prove to be a greater burden for litigants than the consequences of the accident, crime or conflict itself.

The empirical studies on the effects of restorative justice, as discussed in the second part of the report, showed that this form of justice can promote victims’ recovery. Victims who participated in restorative justice (like victim-offender mediation, mediation in criminal cases or conferences) reported experiencing less anger and fear than before the mediation, or experiencing less anger and fear than victims who did not participate in such mediation. The majority of victims indicated that the mediation had contributed to their recovery. Restorative justice was not found to have affected their experience of procedural justice or to have boosted their trust in the law. The literature also warns that being confronted with the offender or party who caused the problem could exacerbate the victim’s trauma (i.e. secondary victimization); however, we found no empirical evidence for this.

Although the experts interviewed reported that restorative justice is a term used primarily in criminal law, they said that the principles of restorative justice could also be applied to conflicts in other areas of law, particularly where high emotional interests are at stake, such as in medical incidents, family lawsuits and labour law conflicts. One interviewee considered the lawyer as a ‘healer’ as a desirable goal, but added that the legal profession still has a long way to go before reaching that situation. Some interviewees argued for a change in culture, with the lawyer of the future being more responsive, devoting more attention to the person in the conflict and asking more about litigants’ needs. This will avoid that litigants do not feel they are being heard or taken seriously and will stimulate procedural justice. According to some interviewees, restorative justice can bring about greater trust in the law and the rule of law, and prevent citizens from becoming alienated from it.
Lastly, the third part of the report examines European networking activities aimed at preventing secondary victimization of victims of sexual violence and possibly promoting restorative justice through ensuring access to fair compensation. We discuss the two main routes through which victims of sexual violence in the Netherlands can obtain compensation: 1) criminal proceedings, and 2) the Violent Offences Compensation Fund [Schadefonds Geweldsmisdrijven]. The desk research was followed by an expert meeting, at which we identified a number of problems and good practices. Participants at this meeting stated that one of the main problems in getting compensation was that many victims of sexual violence do not report the crime to the police. This can be because of the stigma attached to such violence, but also because of victims’ fear that their personal details will become known to the suspect through the case file. Secondly, some participants reported substantial differences in how different judges and courts assessed, awarded and justified compensation claims, and this can lead to legal inequality. An important example of good practice in the Netherlands is the fact that compensation awarded in serious crime and sexual offence cases is paid to the victim in full, even if the offender does not or does not yet have sufficient financial resources. Disbursements of compensation are made through the Central Judicial Collection Agency’s advance payment scheme. Another example of good practice is that, providing the conditions are met, victims can apply to receive compensation from the state through the Violent Offences Compensation Fund, regardless of whether a criminal trial has been initiated and regardless of whether the perpetrator has been convicted. The process of applying for compensation through the Compensation Fund is fast, relatively accessible and standardized, and therefore possibly less burdensome than seeking to obtain compensation through the criminal law route.

Discussion

In addition to the literature review and the interviews on secondary victimization in which it was said that primary victimization is not always immediately evident in all areas of law, we discuss a recent administrative law case that does involve primary victimization, namely the case that has become known as the childcare allowance affair. In this case, the Dutch tax authorities unfairly cut childcare allowances, thus causing hundreds of parents to suffer financial hardship. An advisory committee considered these parents to be victims of conscious, unjust decision-making by the legislator. As a term, however, ‘secondary victimization’ is of limited use and does not sufficiently cover the extent of the problems that litigants may suffer as a result of legal proceedings. In order to focus greater attention on the problem, it is more appropriate to talk about victimization resulting from stressful proceedings and the attitudes of legal and other professionals and the social environment, rather than using the term ‘secondary victimization’. We also discuss various laws, regulations and guidelines in civil and administrative law, such as the codes of conduct on settling personal injury, medical liability and occupational illness cases, and new initiatives by the government and courts that did not emerge from our literature review, but that nevertheless contribute to the discussion on secondary victimization and restorative justice because of being designed to make settlement less burdensome for the victim.

Secondly, we discuss the results of the research into restorative justice. Although most studies report restorative justice intervention to have a positive effect on victims’ recovery (for example, by reducing fear and anger), we found most of these studies to be lacking in methodological rigour. Nevertheless, bearing in mind the positive effects reported by some methodologically strong international studies, we cautiously concluded that restorative justice seems to have a positive effect on victims’ recovery. Was any evidence found to confirm the concern that restorative justice itself may cause secondary victimization? While some studies reported some victims experiencing a negative effect, this was often only a small minority of respondents. We therefore concluded that we found no evidence to indicate that restorative justice can cause secondary victimization. With regard to applying restorative justice principles outside criminal law, we discussed several codes of conduct and other innovations in civil and administrative law – such as multidisciplinary restorative justice services in liability law, and responsive law as applied by municipal officials in administrative law – that would seem to influence whether citizens’ complaints are resolved satisfactorily.

Lastly, we discuss the results of the inventory of the Dutch routes through which victims of sexual violence can obtain compensation, compared with the compensation schemes available in other European member states. The fact that few victims of sexual violence report the violence to the police is a problem because, if victims do not report, they often to not get in touch with the criminal law system or victims support, and hence many victims will not be informed about the opportunities for obtaining compensation. However, the number of reports made to the police in the Netherlands is much higher than in other European countries such as Spain, Italy and Greece. The bottleneck that, according to experts, different courts award substantially different compensation amounts in similar cases, is endorsed in the Dutch literature, but still needs to be empirically researched. The good practice in the Netherlands whereby compensation awarded in cases of sexual and other serious forms of violence is paid to the victim in full through the Central Judicial Collection Agency is unique in Europe and has an important exemplary function. In Spain, for example, only 1% of compensation awarded to victims in a criminal court actually ends up being paid by the offender; 99% is not paid. The other good practice is that the route for claiming compensation through the Dutch Violent Offences Compensation Fund is standardized and fast, which is also very different from the way in which many other countries in the network award compensation. A quick, standardized compensation procedure can prevent secondary victimization and contribute to recognition and recovery.

Conclusion

This study showed that the problem of secondary victimization is mainly known in criminal law but that it is also recognised in civil and administrative law. However, rather than using the term ‘secondary victimization’, we consider it more appropriate to talk about the victimizing influence of legal proceedings and the attitudes of professional parties and the social environment on those seeking justice, given that this description eliminates the association with primary victimization.

This research also showed that restorative justice can be applied in areas extending beyond criminal law. To a certain extent, restorative justice principles - such as providing reparations for suffering, paying attention to the needs of those seeking justice, creating dialogue and showing mutual respect - are also applied in both civil and administrative law, e.g. in certain guidelines and codes of conduct. In order, however, to achieve a real cultural change, more attention needs to be paid to responsive law in the education of legal professionals.

Lastly, we conclude that more research is needed to establish the extent of the problem of secondary victimization, while more methodologically sound research is required to establish the effectiveness of restorative justice. The knowledge we have gained through this report on secondary victimization and restorative justice will continue to be applied in the ongoing European network set up to address the issue of compensation for victims of sexual violence.