Tailored justice

How do we respond to injustice? How do we ensure both healing and protection, salving the wounds of the victims and ensuring the offenders no longer harm others? These are questions that each of us may have cause to answer individually, but which States address through their choice of legal systems.

A legal system is the set of practices and institutions that allow people the opportunity to receive help to right an injustice done to them, by using the powers of the government (powers that the people as a whole have loaned to it just for such purposes). It’s fundamental that for such a system to be fair, it must work to assure that every person has identical access to justice. But this ideal should not be taken to mean that justice is identical to every person, in every situation. All people deserve justice, but what is just for each person may vary – it is not a concept where one size fits all.

As a result, a system that has evolved to combat one type of evil may be ill-suited to handle another. A mechanism that ensures justice in the case of one person may perpetuate injustice in the case of another. One need not look any further than our own adversarial system of justice to see examples of this.

Adversarial systems utilize confrontation as one of their primary means of discovering the truth. In fact, this right to confrontation in criminal cases has been enshrined in the Constitution, in our Bill of Rights: “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face…” It is a right that has been elaborated upon under the Rules of Court in Rule 115, Section 1(f).

To see why the adversarial system developed such an emphasis on confrontation – to see the specific evil that this was supposed to address – we must turn to its history. The rules that developed to force the presentation of one’s accusers and the disqualification of hearsay evidence arose from cases where people were convicted of crimes against the sovereign based on unseen and unpresented “witnesses”: crimes such as treason and sedition. We see this in the United Kingdom in trials like that of the famous explorer Walter Raleigh, and the concern with preventing similar convictions from unseen witnesses may have led to the popularity of cross-examination in the United States in the early nineteenth century. When the Philippines was colonized by the United States, they brought much of their legal system over as well, including these protections that were created to protect defendants from abuses by the State when the State was  both victim and prosecution.

But when the injustice occurs between two individuals, the emphasis that the adversarial system places on confrontation can prove cumbersome and, in some cases, destructive. The aim of the adversarial system is to let truth emerge through the clashing of forces – defendant and complainant, counsels and opposing witnesses. It is not a gentle process, and in general it makes minimal allowances for the care and comfort of those involved in it. This means for a certain category of victims – those who suffered significant trauma as a consequence of the crime – the cure offered by the courts may prove worse than the disease.

Studies have found that going through the criminal justice process can reopen the wounds of those who suffered from violent crime or sexual assault. This is particularly true the more vulnerable the victim is. As an expert once put it in regards to child witnesses: “[i]f one set out intentionally to design a system for provoking symptoms of post-traumatic stress disorder, it might look very much like a court of law.”

This is one of the reasons why victims of crimes such as rape or trafficking may not be eager to participate in the litigation of their cases, even if these cases are meant to give them some measure of justice. A system that protects the interests of other victims simply does not do the same for them. And that is unacceptable.

Legal systems around the world have begun to engage with this problem. In the Philippines, the Inter-Agency Council Against Trafficking (IACAT) has been pushing for more victim-centric reforms in several areas. This includes reconciling conflicting approaches embodied in the Rule of Examination of a Child Witness and the new cyber-warrants rules; producing a Specialist Prosecutor’s Skills Program on Trafficking in Persons which will allow our government officials to be better prepared to understand the trauma suffered by the victims of trafficking. The IACAT also has victim witness coordinators who provide assistance to those who do choose to take the stand, facilitating their attendance in court and giving them access to needed counselling.

Those who wish to fight, to take a personal hand in ensuring their tormentors do not hurt anyone else ever again, must be given the means of doing so and given the protection and care they need. But the legal system cannot be said to be truly protective of traumatized victims if it does not allow for the opposite: for the victims to be able to opt out of involving themselves in cases against their tormentors without, in so doing, bearing the guilt of a failed prosecution.

In fact, our legal system, adversarial though it may be, does not require in all cases the participation of the victim – how else would the likes of murders be solved? Yet a recent string of trial court decisions shows an alarming interpretation of jurisprudence that would acquit persons accused of human trafficking if the victims are not presented to the court. I will attempt to rebut this line of reasoning in next week’s column.

For now, let me leave you with this: the last thing that should be done, in the name of “justice,” is to add to the burden of those already suffering.