1. Introduction
For years, victims of crime did not play a role in Japanese criminal justice other than that of a witness providing evidence. That changed, however, when the Japanese Code of Criminal Procedure (CCP)Footnote 1 was revised in 2000 and again in 2008 to provide victims with various opportunities to participate in criminal proceedings. For example, victims may now make a statement about their feelings and the finding of facts, and they may question the defendant in preparation of their statement. All this is part of a general legal effort to protect and promote victims’ rights and interests and is based on an explicit acknowledgement that the criminal justice system “also exists for the sake of victims” and the idea that victims’ involvement in criminal proceedings can and should be conducive to their (mental) recovery.Footnote 2
This expansion of the victim’s role is in line with other wide-scale legal reforms intended to, among others, increase input from the public in criminal decision-making. Perhaps the most notable reform in this regard has been the introduction in 2009 of a lay-juror (saiban’in) system under which lay jurors and judges together determine defendants’ guilt as well as the appropriate sentence.Footnote 3 Much has been written about this lay-juror system and the way in which it has been functioning since its implementation.Footnote 4 But, despite representing nothing short of a paradigm shift within Japanese criminal justice, victim participation has received very little attention by comparison.
Literature on the subject includes studies introducing and analyzing the new system’s set-up,Footnote 5 examinations of the background against which changes came about,Footnote 6 and discussions of the legal theoretical issues and debates linked to the expansion of the victim’s role in Japanese criminal justice.Footnote 7 Some studies also provide an overview of the numbers of victims who have participated in proceedings and the extent to which victims have made use of the various options that the revised CCP provides for.Footnote 8 Various studies have in addition addressed the impact of victim participation on the finding of guilt or innocence and sentencing. Most of these, however, are based on hypothetical cases and scenarios.Footnote 9
When it comes to research based on actual cases, Saeki has reported on the experiences of victims who delivered Victim’s Statement of Opinion (VSO) in court, and Shiraiwa and KarasawaFootnote 10 have studied how participation impacts a victim’s confidence in the criminal justice system. These two studies discuss victims’ experiences in making use of the new opportunities for participation that the new system set-up provides.Footnote 11 A victim support organization known as Victim Support Forum (VSF) has in addition published a volume in which lawyers representing victims in victim participation trials have outlined their experiences, views, and concerns as lawyers.Footnote 12 These studies thus address aspects of criminal justice administered “also for the sake of victims.”
Missing, however, are studies focusing on the aim of providing for trials conducive to victims’ mental recovery. How has this taken shape in practice and how has it affected traditional courtroom practices? This article constitutes a first step in filling this void. It accordingly aims to examine and contextualize (1) what the newly introduced therapeutic perspective entails, both in theory and in practice, as well as (2) how the implementation of this perspective has affected Japanese courtroom procedures.
Examining these issues will increase our much needed understanding of Japanese victim participation in practice, as well as understandings of how victim participation affects and interacts with existing characteristics of Japanese criminal justice, famously characterized as “prosecutor justice,” in reference to prosecutors’ dominant role within criminal proceedings.Footnote 13 An examination of the therapeutic perspective introduced within a system of victim participation also has implications, however, for more general discussions about criminal justice in terms of its possible therapeutic or anti-therapeutic effects. In other words, such an examination will have important therapeutic jurisprudence implications.
Therapeutic jurisprudence is the “study of the role of the law as a therapeutic agent. It focuses on the law’s impact on emotional life and on psychological wellbeing.”Footnote 14 Accordingly, therapeutic jurisprudence represents a perspective, a way of looking at the law in terms of its therapeutic and anti-therapeutic consequences.Footnote 15 A newly found concern for victims’ wellbeing and a focus on mental recovery suggest that the Japanese criminal justice system has adopted a therapeutic jurisprudence approach. As will become clear, the Japanese experience with this approach has implications when studying and conceptualizing the law’s therapeutic and anti-therapeutic impact in more general terms.
This article will accordingly contribute first of all to the literature on victim participation and criminal justice in Japan. In addition, however, by focusing on the practical functioning of a therapeutically oriented system of victim participation, this article will also contribute to understandings of the therapeutic jurisprudence potential of criminal justice in terms that are not exclusive to Japan.
The article relies on an unpublished survey conducted in 2012 by the Japan Federation of Bar Associations (JFBA),Footnote 16 kindly made available to the author, as well as information gathered through meetings and correspondence with JFBA lawyers and public prosecutors. In addition to statistical data available at the Ministry of Justice (MOJ) and Supreme Court of Japan websites, qualitative data are drawn from case studies compiled by the VSFFootnote 17 as well as the written minutes from 12 meetings organized by the MOJ in 2013 and 2014 (“MOJ meetings”), in which representatives of victims’ organizations, legal scholars, judges, lawyers, and prosecutors as well as MOJ officials exchanged views on victims’ participation in criminal trials.Footnote 18 These data will allow us to form a picture of victim participation in Japanese criminal justice as seen and experienced by the experts involved. Victims’ perspectives are represented through analyses of statements and testimonies made available via websites and journals of victim organizations, and more indirectly through lawyers and public prosecutors speaking and writing on behalf of victims.
2. Legal Revisions: Prelude and Contents
This section will provide a brief overview of the history of the reforms of 2000 and 2008. Doing so will provide the necessary context within which the aims of CCP revision should be understood and will help us to understand how the concept of therapeutic victim participation was conceived—something which, as will become clear, also has consequences for the ways in which such victim participation is in practice pursued.
The legal reforms that have redefined the role of the victim in Japan can be understood within the context of a more general international trend towards the recognition of victims’ rights and interests.Footnote 19 However, two domestic occurrences have been particularly influential in terms of raising public and political consciousness regarding victims’ needs and rights: the sarin gas attacks carried out in 1995 by members of the Aum Shinrikyō doomsday cult, and the serial killing of two elementary school children by a 14-year-old boy in Kobe in 1997. The sarin gas attacks raised awareness of the issue of victims’ rights and needs and led to the adoption of a law created specifically to compensate victims.Footnote 20 New National Police Agency Guidelines were subsequently adopted as well in an effort to offer better protection of victims’ rights.Footnote 21 But it was the Kobe murder case that drew even more acute attention to the issue of victim support and the limited involvement of victims and their families in criminal and juvenile proceedings.Footnote 22 A period of increased media attention for crime victims and their families ensued, and victim activism increased.Footnote 23 Particularly significant in this regard was the establishment in 2000 of the National Association of Crime Victims and Surviving Families (NAVS/ 全国犯罪被害者の
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).Footnote 24, Footnote 25
As crime victims were receiving more attention and media reports on crime helped create the incorrect perception that crime was on the rise,Footnote 26 criminal justice policies became to an increasing extent based on politicians’ perceptions of popular sentiments and demands. Here, “public calls” for harsher punishment for offenders went hand in hand with a “public demand” for a greater recognition of victims’ rights, interests, and needs. It is also against the background of this penal populist climate that the impact of victim activism and the legal recognition of victims’ rights and interest can be understood.
These developments in any case led to the adoption, in 2003, of the Basic Act on Crime Victims, followed by a Basic Plan in 2004 that provided a road map for giving concrete shape to the aims and principles defined in the Basic Act. The most important aims of the Basic Act are to (1) support victims so that they can again live a peaceful life and (2) allow victims to be “appropriately involved” in procedures concerning matters of criminal justice related to the harm suffered. Curing or at least lessening this harm has furthermore become a basic aim underlying various measures.Footnote 27
By qualifying and envisioning a role for victims in criminal justice in this way, the Basic Plan adds a new goal to existing criminal justice aims. In addition to the goal of upholding social order, the Basic Plan boldly states that “criminal justice also exists for the sake of victims.” This refers to the justice of victims’ increased involvement in criminal proceedings as well as the mental recovery that is assumed to result from such participation.Footnote 28 The expanded role of the victim is thus conceptualized as a matter of justice, as well as a practical means of improving mental wellbeing among victims.
Significantly, mental health experts do not appear to have been involved in the deliberative meetings concerning victims’ new role in court. Instead, it was government officials, legal professionals, and representatives of victims’ organizations who were responsible for conceptualizing the goals of victim participation in court proceedings as well as the CCP revisions through which these goals would have to be pursued.Footnote 29
The Act and Plan in any case led to the introduction in 2008 of the victim participation system.Footnote 30 These reforms came on top of those introduced in 2000 that allowed for victims or their legal representatives to make a VSO about victims’ sentiments and their opinion regarding the case.Footnote 31 For a limited number of serious offences,Footnote 32 the victim participation system primarily allows victims to take the following actionsFootnote 33:
1 attend the trial (meaning that they can sit with the public prosecutor), as well as carry out inspections and questioning of witnesses in preparation for the trial (CCP 316–34);
2 question witnesses in court when there is a dispute concerning the credibility of witness statements about mitigating circumstances; questions concerning the facts of the crime may not be asked (CCP 316–36);
3 ask questions in preparation for a statementFootnote 34 (CCP 316–37); and
4 make a statement about the facts of the case as well as the application of the law, within the limits of the charges as specified by the public prosecutor (CCP 316–38).Footnote 35Footnote 36Footnote 37
To review, this section has shown how high-profile crimes and victim activism, combined with political response to both of these have led to legal reforms allowing for an expanded role for victims within criminal justice. The aim of these reforms has been to on the one hand bring about criminal justice practices that exist “also for the sake of victims” and on the other to have criminal justice contribute to the recovery of victims from harms suffered.
3. Pursuing Victims’ Recovery in Japanese Courts
How has the newly introduced therapeutic outlook been conceived in practice? In addressing this question, the focus will be on criminal trial court proceedings. After all, in accordance with the revised CCP provisions, it is especially within court proceedings that victims have the opportunity to speak out, express their opinions and sentiments, and ask the defendant questions if they wish to do so.Footnote 38
Drawing on case studies, surveys, and the minutes of meetings organized by the MOJ for discussion among judges, prosecutors, and victims’ lawyers, it is clear that victims, representatives of victim interest groups, and legal professionals frequently refer to the importance of the opportunities that trials provide to victims in terms of stating what one wants to say and asking what one wants to ask. In-court statements and questioning carried out by victims were said to provide a sense of satisfaction and feelings of accomplishment and liberation. This sort of participation was viewed as essential to the victim’s ability to move forward, regardless of how the defendant might respond. Speaking out was in fact represented over and over as something that constitutes an indispensable first step for victims to leave what has happened behind them.Footnote 39
Similarly, a prefectural Bar Association survey refers to victims who “felt they could recover” (立ち直れそうだ) after they conveyed their suffering to the defendant.Footnote 40 Conversely, being denied the opportunity to speak out was presented as something that could deny the victim’s ability to “move forward towards recovery” and “hinder victims’ mental recovery” to the extent of causing lifelong trauma.Footnote 41
Participating in trial proceedings is often also portrayed, however, as something that could result in “secondary victimization.” For example: one judge feared for the “secondary victimization” that might result from allowing a young girl to participate as a victim in trial proceedings,Footnote 42 and a victim’s lawyer argued that the irrelevant questions that his client was asked by curious lay jurors “unfortunately led to secondary victimization.”Footnote 43 The general conditions under which participation takes place were also discussed as a source of potential secondary victimization.Footnote 44
Victims’ in-court experiences are thus discussed—by victims, victims’ support organizations, lawyers, prosecutors, and judges—in terms of the benefits of such experiences for victims’ recovery and victims’ mental health, and the demerits of added trauma, damage, and secondary victimization that may occur as a result of limiting victims’ participation or the experience of participating itself.
It is unclear, however, what exactly is meant by “mental recovery” or “secondary victimization” in the sources cited. The terms are used without any definition or specification, much less reference to psychological, psychiatric, or any other disciplinary discourse. Discussions and statements instead appear to be based on implicit commonsensical knowledge and assumptions about the therapeutic benefits of speaking out on the one hand and the potentially traumatic effects of being exposed to irrelevant questions, uncooperative judges, etc. on the other.
Qualifying the above-mentioned conceptions and views as commonsensical—as opposed to specialist or disciplinary—is in no way meant to imply that Japanese victims’ participation in criminal trials is or is not in fact therapeutic. The distinction here rather serves to bring into focus the relative lack of definition or circumscription of what was being discussed or aimed for. It appears as if everyone assumed a common understanding and deemed explicit definitions unnecessary.
This commonsensical quality might not be surprising when we consider that the 2004 Basic Plan and the CCP revisions came about on the basis of deliberations in which representatives of victims’ organizations, notably the NAVS, were closely involved but psychologists, psychiatrists, or other mental health specialists were not. The therapeutic aspect of victim participation has from the deliberation stage of reforms been conceived in non-specialist terms—something which explains its non-specialist operationalization in practice.
What then are the implications of these findings for more general therapeutic jurisprudence debates on these issues? And what, conversely, are the implications of such debates for these findings? The next section addresses these questions by placing our findings within the context of general debates on therapeutic victim participation that are also very much focused on the therapeutic effects of victim participation, or lack thereof.
Again, the aim here is to study and think about the conceptualization and implementation of a therapeutic perspective on victim participation, as opposed to measuring the therapeutic effects of doing so. As will become clear, however, general debates on the therapeutic effects of victim participation also involve more or less explicit debates on the conceptualization of therapeutic victim participation and are as such relevant to our discussion.
3.1 Therapeutic Jurisprudence Studies on Victim Participation
The therapeutic effects of victim participation have been widely debated. Many studies, however, have been mainly focused on a single aspect of participation, namely the delivering of a Victim Impact Statement (VIS).Footnote 45 Some suggest that delivering a VIS may lead to secondary victimization, while others argue that it is effective in helping victims to recover from the crime. This has led scholars to make opposing claims that “Victim Impact Statements can work, do work”Footnote 46 on the one hand and that “Victim Impact Statements don’t work, can’t work” on the other.Footnote 47 It has been pointed out, however, that previous studies have typically looked at victims’ satisfaction as a way to measure the therapeutic effectiveness of VISs.Footnote 48 According to Lens et al., “this is troublesome, because neither satisfaction nor dissatisfaction can be directly translated into therapeutic and anti-therapeutic effects.”Footnote 49 She also notes a tendency to equate victims’ dissatisfaction with secondary victimization, even though dissatisfaction does not necessarily lead to negative effects on victims’ wellbeing.Footnote 50
Discussing victim participation in more general terms, some link the therapeutic potential of criminal justice to matters such as respect for and recognition of victims, victims’ satisfaction, empowerment, moving on, and closure.Footnote 51 However, similarly to the above-mentioned discussions concerning VISs, others have pointed out that such understandings of the word “therapeutic” do not necessarily correspond to those in the psychological literature and have questioned whether court proceedings actually have any therapeutic potential at all.Footnote 52
While the debate thus continues, the foregoing in any case illustrates how different researchers have employed very different conceptions of the therapeutic or anti-therapeutic dimensions of victim participation, and have accordingly come to very different findings concerning its effects.
As we have seen, however, such a lack of conceptual clarity is not limited to academic discussions on this subject. It is not clear to what extent the unspecified commonsensical conceptions employed within the context of Japanese trials correspond with specialist psychiatric knowledge. What is also unclear, however, is the extent to which those who aim to implement a therapeutic perspective in criminal trials actually share the same conceptions of what is therapeutic about this perspective.
While general therapeutic jurisprudence discussions thus alert us to the lack of conceptual clarity among those studying the therapeutic and anti-therapeutic effects of victim participation, the findings from a Japanese context alert us to how legal professionals may in turn conceive of therapeutic victim participation in their own way and act accordingly. The worlds of both those studying therapeutic victim participation and those aiming to implement it would thus benefit from further discussion on how to define therapeutic victim participation.
Finally, it is important to note that different studies of victim participation in non-Japanese contexts point out the diversity in victims’ wants and needs.Footnote 53 Such findings are relevant because they raise questions about the feasibility and limitations of a one-size-fits-all conception of therapeutic victim participation. They thus alert us to the possibility that, for example, delivering a VIS or confronting a defendant by means of questions may work for some victims but not for others.
An awareness of the diversity in victims’ wants and needs thus also forces us to re-examine claims about Japanese victims’ wants and needs. Within the various fora and sources examined,Footnote 54 those speaking on behalf of victims tend to discuss victims’ wants and needs in very generalized terms. Victims are represented as a group of people who all share the same wish, that being mainly the severe punishment of the defendant for the sake of victims’ recovery.Footnote 55 The literature on the diversity of victims’ wants and needs here alerts us to the possibility that, within the Japanese debates, only one voice in particular is being forcefully represented—to the exclusion of others.
The literature on victim participation in non-Japanese contexts thus makes us aware of the importance of being sensitive to the diversity of victims’ wants and needs. It is arguably similarly important, however, to be sensitive to diversity in terms of sociocultural contexts, besides the legal ones, when discussing whether delivering a VIS is, for example, emotionally effective or counter-productive.Footnote 56
What victims in Japan need and want is in any case a topic for further research, as is the related question of how assumptions about such wants and needs impact courtroom proceedings. The next section will further address this issue.
4. Consequences of a Therapeutic Focus: Victim Participation and Japanese Criminal Justice Characteristics
This section will address some of the ways in which a focus on victims’ therapeutic wants and needs has affected and been affected by characteristics of Japanese courtroom procedures. This will be done by examining the roles of the traditional players who give concrete shape to these courtroom procedures, namely judges, prosecutors, defence lawyers, and defendants. Special attention, however, will be given to the role of the defendant. As will become clear, the roles of defendant and victim reciprocally affect each other. In order to appreciate how, however, it is necessary to first highlight some characteristics of Japanese courtroom procedures and the traditional roles of the different courtroom players within these procedures.
Japanese criminal justice has been famously characterized as “prosecutor justice,”Footnote 57 in reference to the prosecutor’s dominant role in criminal proceedings. What is particularly significant about the prosecutor’s role is that a prosecutor will refrain from prosecuting a case unless he or she is thoroughly convinced of being able to prove a defendant’s guilt. Prosecutors’ very careful prosecution policies and practices constitute one of the most important factors leading to a conviction rate of over 99% in Japan.Footnote 58
As a consequence, for all practical purposes, trials are typically about confirming a defendant’s guilt and deciding on the sentence that this defendant deserves. The defence lawyer’s role is therefore also typically not to argue a defendant’s innocence, but rather to argue for a lesser sentence—or at least a sentence more lenient than the one demanded by the prosecution. An important part of the lawyer’s role therefore becomes that of showing extenuating circumstances and defendants’ potential for rehabilitation. In this sense, trial proceedings may assume the character of prolonged sentencing hearings.
A defendant’s albeit elicited expression of remorse in this context functions as an indication of rehabilitative potential. Courts furthermore appear to expect confessing defendants to show an appropriately remorseful attitude. One should not underestimate the importance attached to apologies and prospects of rehabilitation, since sentences are, after all, to an important extent determined by the seriousness of the offence, and judges have on average subtracted 20–30% of the punishment demanded by the prosecution.Footnote 59 Nevertheless, establishing facts concerning a defendant’s personality, the absence or presence of remorse, and general prospects of rehabilitation has formed a fixed part of fact-finding procedures.
4.1 Victims and Other Courtroom Participants
As shown, the aspects of participation that are conceived of as therapeutic are related most of all to victims’ own contribution to court proceedings: making statements, asking questions, etc. Conversely, the potentially traumatizing and damaging aspects of participation are portrayed as resulting from the action or inaction of the other participants: judges placing limits on victims’ participation, jurors asking “irrelevant questions,” etc. This, then, leads to an evaluation of other courtroom participants’ actions in terms of their potentially traumatizing or damaging character. Special attention in this regard is being paid to the defendant.
4.1.1 Defendants
The JFBA has criticized and called for revision of the new system of victim participation system in light of the possibility of verbal attacks by defendants in court and the potential for secondary victimization as a result.Footnote 60 While this argument could be viewed with suspicion in view of the JFBA’s earlier opposition to the system,Footnote 61 the JFBA was not alone in its concern for secondary victimization resulting from defendants’ verbal attack. Different sources have pointed to defendants’ statements and demeanour as potential causes for further victimization and suffering. For example, victims were said to have been “further tormented” by defendants’ denial or partial denial of the facts, or to have undergone “further mental anguish” because of defendants’ lack of co-operation.Footnote 62
Verdicts of victim participation cases also show that defendants’ in-court behaviour is scrutinized as a potential source of the participating victim’s suffering. The following quote from a verdict in a case of professional negligence resulting in injury or death (業務上過失致死傷) is instructive in this regard:
The defendant not only … has not shown any consideration for the bereaved family members of the victims,Footnote 63 and his words and deeds in court have caused the victims irritation and have further hurt their feelings. His attitude, and these words and deeds can be thought of as inconsiderate. They suggest not only a serious lacking of any self-awareness on the defendant’s part concerning his … responsibility, but it is accordingly also hard to detect an attitude of serious remorse.Footnote 64 The defendant’s criminal tendencies are deeply rooted.Footnote 65
This quote thus shows a concern for the impact of the defendant’s in-court behaviour on the participating victims. In this context, the absence of appropriately considerate behaviour towards these victims is presented as something that adds to the defendant’s blameworthiness.Footnote 66 This quote in addition shows how a defendant’s demeanour towards the victim constitutes another criterion on the basis of which the quality of his remorse is measured and the criminality of his character assessed. The evaluation of defendants’ behaviour towards the victim thus provides an opportunity to show concern for this victim’s wellbeing, while also helping to assess the defendant’s potential for rehabilitation. The following quote from a verdict in another victim participation case is also illustrative in this regard:
The defendant has … not taken any effective measure to compensate the victims. On the contrary, the defendant has in this court done and said things that have to be seen as irritating for the victims, and in his final statement too, the defendant has not expressed any sentiment of mourning …. It accordingly has to be said that his attitude of reflection on his own responsibility was extremely insufficient, and when one takes these factors into account … one has to say that the defendant’s criminal responsibility is grave.Footnote 67
This verdict also shows a concern for victims’ feelings in connection with the defendant’s in-court behaviour, and how the defendant’s behaviour in relation to the victims adds to his criminal responsibility. This behaviour is represented as symptomizing the defendant’s failure to reflect on his own responsibility—evidence, in turn, of a lack of rehabilitative potential.Footnote 68
Here, it is important to realize that, irrespective of victims’ in-court participation, public prosecutors and judges have generally taken victim-suspect and victim-defendant relationships into consideration. They have mostly done so, however, in relation to suspects’ or defendants’ eligibility for lenient dispositions. In making decisions concerning prosecution and sentencing, prosecutors and judges have thus generally taken into account whether the suspect or defendant has made efforts to compensate the victim or achieve a settlement, etc.Footnote 69 Significantly, the verdicts quoted from here suggest that a defendant’s failure to show the expected demeanour towards the victim not only makes the defendant ineligible for a lenient treatment, but in fact adds to this defendant’s criminal responsibility. Concern for victims’ wellbeing in any case constitutes an amplified opportunity to focus on the person of the offender and his or her lack of rehabilitative potential. Here, the concern for victims’ wellbeing is accordingly put in service of the traditional way of judging offenders.Footnote 70
Victims’ participation provides more, however, than an opportunity to judge the defendant’s character. Victims’ participation and presence in court are also explicitly conceived in terms of their potential to bring about or deepen defendants’ remorse. A MOJ/Prosecutors’ Office pamphlet with information for participating victims states in this regard that “Providing the defendant with the opportunity to directly hear about victims’ and family members’ … feelings is something that is also useful to deepen the defendant’s remorse.”Footnote 71 Similarly, in victims’ lawyers’ perceptions, hearing directly from the victims does indeed deepen defendants’ remorse.Footnote 72 The Aichi Bar Association survey also notes that much can be expected from advising the participating victims to ask questions that “will prompt the defendant’s remorse, and that will have an educational effect.”Footnote 73
Here, victims’ participation is explicitly represented as something that could invoke or strengthen defendants’ remorse and accordingly help defendants take the first step on the road to reform and rehabilitation.Footnote 74 By thus conceiving of the participating victims’ contribution, victims are assigned a role within the courtroom as a place for remorse. Doing so implies that victim participation is here again looked at as a means to bring about a traditional trial goal.
4.1.2 Judges
Representatives of victims’ organizations have noted that judges have a responsibility to take care that jurors do not hurt victims by asking irrelevant questions (see supra).Footnote 75 While data in this regard are very limited, there have been reports of judges who in fact pay attention to this issue by, for example, limiting the number of questions a juror could ask to just one question.Footnote 76
While the concern for victims’ mental wellbeing would thus appear to affect judges’ actions, such concern also provides rhetorical possibilities that can be used to persuade other courtroom participants, but obviously notably the judge, of the desirability of letting victims perform the acts they wish to perform.Footnote 77 The phrasing of a statement submitted to the court by a victim’s lawyer is telling in this regard. This statement was submitted after the presiding judge had announced that he would read a bereaved family member’s statement in court, rather than allowing this family member to read it herself:
If she is not allowed to make her statement, I fear that for the rest of her life she will not be able to organize her feelings …. Her not conveying the facts might result in a verdict in which only the murder victim’s honour will be stained. If that happens she will believe that she was not able to do anything for her mother and her heart will probably suffer a deep wound that she will bear for the rest of her life.Footnote 78, Footnote 79
When it comes to judges’ (and jurors’) sentencing decisions, the impact of a therapeutic perspective is difficult to assess, given the large number of factors that affect such outcomes and the difficulty of comparing like cases.Footnote 80 Nevertheless, when a therapeutic perspective is explicitly acknowledged within the process of justice and victims’ therapeutic needs are equated with desires for harsh punishment,Footnote 81 victim participation will result in pressure on those participating, notably judges and lay jurors, to give victims “what they need” and impose the desired harsh punishment.Footnote 82 This issue will be further addressed in the next section.
4.1.3 Defence Lawyers and Prosecutors
As indicated, victims’ speaking out, asking questions, and expressing feelings of victimization have often been represented as something that helps victims recover (回復・立ち直り).Footnote 83 In this sense, there is a general common-sense recognition of the therapeutic dimension of victim participation, even if such participation is also perceived to have its risks.Footnote 84 As will become clear, the practical implementation of this therapeutic dimension does not so much affect prosecutors’ role, but rather strengthens their position. Here it is important to keep in mind first of all that, when victims participate in court proceedings, their seat is next to that of the public prosecutor. Participating victims in this sense literally join the side of the prosecution.
Concretely speaking, victims’ speaking out is something that may serve to strengthen prosecutors’ sentencing demands. This may on the one hand result from the fact that judges and jurors will hear directly from victims about the impact of the crime on victims’ lives. However, victims will in their statements often also demand a sentence. Such a demand may take the form of a request for “the most severe punishment possible,” but there are also victims who request a specific prison sentence, or the death penalty.Footnote 85 Significant in this regard is that both victims’ and defence lawyers have expressed their impression that harsher-than-usual punishment has been both demanded and meted out.Footnote 86 There have in addition been cases in which, on appeal, the punishment meted out within the first-instance victim participation trial was judged to be too severe.Footnote 87
In addressing the consequences for the defence of participating victims joining the side of the prosecution, the JFBA survey portrays a situation in which lawyers and defendants are outnumbered by a prosecution that is joined by participating victims, who together argue both the defendant’s guilt and participants’ feelings of victimization over and over again.Footnote 88 These repeated actions are reported to have a powerful impact on the courtroom atmosphere. Defence lawyers have in fact qualified this atmosphere as “warlike” (殺伐) and “extraordinarily tense.”Footnote 89
Lawyers have frequently pointed out this change in atmosphere and the consequences thereof.Footnote 90 One of these consequences is that some lawyers have become hesitant to refer to any victim’s fault, while some indicate that they refrain from asking the victim potentially significant questions, as “it is pointless to argue with a victim” and doing so might lead to a higher sentence for their client.Footnote 91 One could in this regard argue, as victims’ lawyers have in fact done, that victims’ presence as well as their speaking out, in addition to bereaved family members’ holding on to a portrait of the victim,Footnote 92 have made it harder for the defence to tell lies to make defendants look less guilty and to blame the victim.Footnote 93
Victims’ increased presence, expressions of victimization, and so on in any case have the effect of strengthening prosecutors’ position. Conversely, keeping in mind also the expectations regarding appropriate behaviour towards participating victims referred to earlier, the defence appears to have less room to manoeuvre than ever.
5. Conclusion
This article has examined the ways in which a therapeutic perspective on victim participation was conceptualized and implemented in Japanese criminal trials. The ways in which therapeutic victim participation was conceived and implemented were furthermore contextualized by also zooming in on (1) the process that led to the incorporation of a therapeutic perspective into criminal justice, as well as (2) characteristics of the Japanese courtroom procedures within which this perspective was implemented. The article accordingly contributes to the sparse literature on both the theory and the practice of victim participation in Japan, as well as therapeutic jurisprudence discussions on therapeutic victim participation. This section will briefly present the article’s findings and conclusions, as well as suggestions for future research based on both these findings and conclusions.
A growing international awareness and recognition of victims’ rights, in combination with high-profile domestic incidents and crimes, victim activism, and politicians’ response to these have led to legal reforms allowing an expanded role for victims within Japanese criminal justice. The aim of these reforms has been to on the one hand to bring about criminal justice practices that exist “also for the sake of victims” and on the other to allow for criminal justice to play a part in victims’ (mental) recovery.
Through these reforms, a therapeutic perspective was incorporated in Japanese criminal justice. This therapeutic perspective was, however, never clearly circumscribed or defined—something which can be explained by a lack of involvement of psychiatrists, psychologists, or other mental health specialists in the reform process. In practice, this perspective in any case involves “common-sense” assumptions held and expressed by especially victims’ lawyers, representatives of victim interest groups, and victims themselves about the therapeutic effects of speaking out and asking the questions one wants to ask.
A review of the therapeutic jurisprudence literature shows that there is no consensus regarding the therapeutic effects of victim participation, speaking out, etc. This is related to the fact that different researchers have very different ideas about what the words “therapeutic effects” stand for. This is problematic, as the meaning and implications of findings on the therapeutic effects of victim participation may remain unclear as long as those concerned do not speak the same language, or have not acknowledged whether they do so.
Besides the difficulty of conceptualizing therapeutic victim participation, a review of the therapeutic jurisprudence literature also alerts us to the diversity in victims’ wants and needs. Accordingly, what may be therapeutic—however one defines the term—for one victim may not be therapeutic for another. An awareness of the diversity in victims’ wants and needs thus brings into focus the unlikelihood that victims’ wants and needs can ever be discussed in general terms. “Japanese victims’ needs,” while discussed in general terms in the various sources consulted, may accordingly also refer to the needs of some victims, to the exclusion of others, whose voice may have remained unheard.
The implementation of a therapeutic perspective has impacted the different courtroom participants in different ways. As part of the traditional division of courtroom labour, defendants will typically confess guilt and express remorse while the defence will show extenuating circumstances as well as potential for rehabilitation. For the defendant, the adoption of a therapeutic perspective has resulted in his or her court statements and demeanour being evaluated in terms of their potentially traumatizing or damaging character. In practice, this means that denying guilt, arguing or suggesting that the victim also shares some of the blame, may be interpreted in terms of a lack of appropriately considerate behaviour towards the victim. Here, a defendant’s demeanour becomes one more criterion on the basis of which his or her character and prospects of rehabilitation are evaluated. The adopted therapeutic perspective accordingly allows for expanded opportunities to judge defendants in terms of traditional criminal justice criteria and goals.
A concern for victims’ wellbeing puts pressure on judges to shield victims from irrelevant or potentially traumatizing questions. “Victims’ wellbeing” also functions as a rhetorical tool used to pressure judges to let victims perform the acts they wish to perform, and to impose punishment that is harsher than usual. While there is anecdotal evidence suggesting that judges have responded or given in to such pressure, the extent to which they in fact do so remains unclear.
The implementation of a therapeutic perspective has not so much affected prosecutors’ role in court, but has rather strengthened their position. This strengthening results from the fact that victims literally join the side of the prosecution in court, providing support in numbers and argumentation. Alongside prosecutors, participating victims argue both defendants’ guilt and express feelings of victimization, at times over and over and over again. Victims’ speaking out and expressing their wishes concerning punishment lend support to the demands made by the prosecution in this regard.
Conversely, victims’ presence, (repeated) expressions of victimization, and the resulting “extremely tense” atmosphere have weakened the position of the defence. Out of fear of negative consequences for their clients, some lawyers have become hesitant to refer to any victim’s fault, refraining in addition from asking potentially significant questions. As indicated, under the traditional division of courtroom labour, the role of the defence has often been limited to arguing extenuating circumstances and defendants’ potential for rehabilitation. Within victim participation trials, defence lawyers would appear to have less room to manoeuvre than ever.
Based on this article’s findings, a number of topics of future research and discussion can be identified. One concerns what victims want and how this relates to what is known about victims’ therapeutic needs. Here it is important for researchers to acknowledge and further address the persisting issue of conceptualizing the therapeutic within therapeutic jurisprudence in general, and the context of victim participation in particular. More research, in full acknowledgement also of victims’ heterogeneity, may contribute to a more informed way of addressing victims’ diverse needs and wishes. For this to happen, however, efforts should also be made to disseminate the results of such research also among legal professionals.
In a similar vein, in the case of Japan, it is important for legal professionals to be informed about victims’ wants and needs not only by victims’ organizations such as the NAVS, but also by researchers and (mental health) professionals active in the field of victim counselling. As indicated, mental health professionals were not involved in the development of the laws aimed at therapeutic victim participation. Nor were they involved in evaluative meetings such as those organized by the MOJ. A greater exchange of views and knowledge between these professionals and legal professionals could be fruitful, as such an exchange of knowledge might lead to victim participation practices that are more evidence-based.
It would in addition be fruitful to study and explore ways to resolve the tension between a therapeutic concern for victims’ wellbeing and defendants’ freedom to mount a defence. This tension could be partly resolved, for instance, by separating the stages of fact-finding and sentencing, where victims would partake in proceedings only from the moment that defendants’ guilt is established—as has in fact been suggested by the JFBA. Doing so may diminish the repressive effect on in-court fact-finding processes that victim participation in its current form appears to have. It would also reduce the risk that judges would become complicit in such repression, as a result of their concern for victims’ wellbeing.
At this point, however, there are no signs that victim participation is going to be limited to the sentencing stage, and it seems safe to assume that the system will continue to function in its current form. Given that this is the case, it is especially up to judges to ensure that, within the context of court proceedings, the rights of both victims and defendants are upheld and balanced. After all, as we have seen, many aspects of victim participation are subject to judges’ approval and discretion. Here, respect for victims’ wishes needs to be balanced against the defence’s right to present its case. While judges may decide to reward a defendant’s co-operative and remorseful behaviour, they should not penalize a defendant for invoking the right to respectfully speak up on his or her own behalf.
Even a respectfully mounted defence may, however, cause victims further aggravation. Judges may also cause aggravation by limiting victims’ opportunities for participation—for the sake of balancing defendants’ and victims’ rights. The very possibility of this occurring as a result of actions that are arguably part and parcel of criminal justice proceedings lends credence to the claim that such proceedings do not make for a very therapeutic environment. It is accordingly of great importance that victims who express the wish to participate in court proceedings are also given easy access to victim support services, including mental health support services. In this sense, the existing services provided by the MOJ and the various Prosecutors’ Offices remain of undiminished importance—providing information on the victim participation system while also guiding people to other relevant support services.
Finally, it may be worthwhile to explore alternatives for the alliance between the prosecution and participating victims. While victims may obtain their own lawyers, they are still together with their lawyer placed on the side of the prosecution—both literally and figuratively. Providing victims with their own space in court, assisted only by a neutral party rather than one that has a clear stake in getting the defendant convicted and sentenced in a certain way, may allow the possibility of a more independent role for victims—one less predefined by existing criteria for judgment, goals, and scripts. Findings from this article concerning the situation in Japan as well as studies in non-Japanese contexts in any case point to the importance of acknowledging that finding the right modus of victim participation is still very much a work in progress.
