Who is the victim?

If someone does something wrong to you, that hurts you, you are aggrieved.  You are, or at least you feel like you are, a ‘victim’ of their bad conduct.  My Oxford English Dictionary looks outmoded: ‘In a weaker sense:  One who suffers some injury, hardship or loss, is badly treated or taken advantage of, or the like.’  My Macquarie has ‘a sufferer from any destructive, injurious or adverse action or agency’. 

A victim is someone hurt by another.  So, the hurtful conduct need not be intentional, unlawful, malicious or wrongful in order for the person hurt to be described as a ‘victim’.

You also think that you are a victim if someone sues you – especially if you think that there is no basis for the suit.  The person suing you is hurting you by invoking the power of the state to order you to do things adverse to your interests, and to expose you to expense, anxiety, delay, and public sympathy or worse.  You might lose your name, marriage, job or profession, or solvency, or sanity, as a result of being sued.  In one kind of litigation – in the criminal law – the suit may lead to your loss of liberty.  In the U S, and in worse regimes, you might lose your life.

Take a simple case.  Betty is told that John tells people that she is a thief.  Betty is hurt and a victim of the conduct of John.  On legal advice, she sues John.  From that moment, John is a victim of the conduct of Betty.  And he is hurt so much more if he says that he said no such thing, or that he did and that it is true (which in our law is a defence). 

From that moment, each of both Betty and John claims to be a victim of the other.  In one sense, the litigation will determine not what happened – which is a matter for God – but which of John and Betty is held by the court to have had a better claim to be the victim.

It follows that in any case where there is an issue to be tried about what happened in fact, or who might answerable or liable in law, it may be at best misleading to describe one side as the ‘victim’ – if the inference is that the other side until judgment does not have an equal claim to that description.

That is so in any civil suit where liability is in issue.  The case is stronger in criminal cases where the law presumes that the accused is innocent.

Yet in one narrow class of case – those involving sexual offences – the complainant is often referred to as ‘the victim,’ when in a real sense that may be the issue to be determined by the court.  We do not find this leaning to one side in cases of blackmail, mental cruelty, child pornography, fraud, insider trading, minority shareholder oppression, predatory pricing, conveyances to defraud creditors, or misconduct in custody cases – or any others I know of.

This propensity to see a case from one side only is a problem that practising lawyers do not have.  People are in conflict just because they dispute what happened and what the court should do.  Those lawyers also know that the court does not stand in place of God.  Unless the parties settle their difference, the court will rule on which side prevails by its rules, and life will go on.

But sadly, as the man said, too often, everyone loses, and it is the case that everywhere the ceremony of innocence is drowned.  And, yes, the best lack all conviction and the worst are full of passionate intensity.

The preference for the case of one side as the victim in a small class of cases looks to me to have two things in common.  For the most part, it is not expressed by practising lawyers.  And it comes from people who have an argument to pursue, and who are content to have their position identified with the side of the person they see as the ‘victim’.

The title to the word ‘victim’ can hardly be determined by the order of the names on the writ – plaintiff or defendant.  There is a childish spat between a member of the Murdoch family and a member of the press.  Which do you think Australians regard as the victim – young Lachie or Crikey?  It looks to me that officers of the Federal Court will be offering free smiley koala stamps to any bystander who manages to keep a straight face in a farce for the ages.

Someone said that victims demand allegiance.  On one view, that propensity is the foundation stone of one major faith; and of the Collingwood Football Club.  But, it seems, some kinds of victims demand more allegiance than others.

So much is I think clear from a paper I wrote years ago when I sought to say what going to law was about after fifty years at it, including more than thirty years hearing and deciding cases on a sessional basis.  It began as follows.

Conflict

A court of law – the place that Sir Owen Dixon called ‘the judgment hall’ – is a combat zone.  People go there to fight.  It may not look that way to you, but it certainly does to most of the punters.  A court room is a scene of conflict.  For ‘conflict’, the Oxford English Dictionary gives us ‘an encounter with arms; a fight; especially a prolonged struggle’.  That is very apt for this note. 

The court sees two types of conflict.  What are they?

People generally go to law because they have been hurt and they think that the law might be able to give them some form of redress – in the writ that starts their legal action, their lawyer often asks for ‘relief.’  That is a good word for what they want.  They believe that someone has done them some harm by breaking their word or their trust, or by some careless act, or by some other harmful conduct that some precedent or statute enables the court to do something for them in return.  The conflict starts with a wrong, and the victim believes, usually with legal advice, that if they go to court, the process of the law will help them to deal with that wrong.  They hope to come out better off than they were before suing.

If a stranger runs into the back of your car, or bad mouths you in the press, you are put into a position of conflict.  By and large, only deranged people enjoy conflict or seek to create it.  Most of us try to avoid it, or we at least try to reduce the risk or extent of it. 

But some conflict is worse than others, and this is why although it is hard to think of any good litigation, some litigation is worse than others.  The conflict is usually worse if there has been a breakdown in a previous relationship, especially one of trust, say between business partners or husband and wife, or where the parties have to live together, and the conflict is eating into their lives, as in a fencing or nuisance dispute between neighbours.  The resulting litigation is likely to be a lot more wounding and stressful – and the wounds incurred are likely to take much longer to heal, and to be even more beyond the kind of relief that a court can direct than wounds suffered in conflict between strangers.  Purely commercial brawls might involve money and face, but they are a lot less wearing than cases where real people have real lives on the line.

So, the first form of conflict arises from the conduct that leads to the legal action.  Then, if the person wronged does go to court, there is another form of conflict.  The initial conflict is resolved by a process that in itself entails conflict.

Under our process, which goes back for many hundreds of years, the judges do not sit under a palm-tree, make such inquiries as they think fit, and then pronounce some decree that they think is right to resolve the conflict.  That system has not appealed to us – as someone said, he who sits under a palm-tree knows not where the nut may fall. 

Under our system, each side presents their side of the case according to the rules laid down for this kind of contest, and the judges award the decision to the party found to have the stronger case under those rules.  We do not hold an inquiry into some kind of abstract truth.  That kind of thing is far too grand or, or too ambitious, for our taste.  We leave that kind of inquisition to foreigners and royal commissions.

The great legal historian F W Maitland compared our judges to cricket umpires – people who stand there silently and respond to the question: ‘How’s that?’  Sir Daryl Dawson put it this way (in a criminal case, where onus plays a bigger role):

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.

Put differently, the party with the stronger case wins and the one with the weaker case loses. 

It would be silly to suggest that mistakes are not made or that innocent people do not get hurt under our model.  What we have is a kind of judicial duel where the prize goes to the side that is found to have the stronger case – and in the process, both sides, including the eventual winner, can get badly hurt.

People thinking of going to court to resolve some conflict need to understand these things.  To resolve their conflict, they are taking it to another level, and to a process that involves its own kind of conflict, often in a very public way.  There must be the risk that in escalating the conflict, they are making it worse.  They are certainly raising the stakes.

One of the first things that the lawyer has to tell someone complaining of the hurt flowing from some wrong is that it is highly unlikely that as a result of legal process they will be put in a position as if that wrong had never happened.  They are now worse off than they were before the wrong was done, and the probabilities are that they will stay that way even if they ‘win’ in the court battle.  This is important.  To go back a bit, they may or may not come out of court better off than they were before suing, but they are quite unlikely to end up as if nothing bad had happened at all.

Paraplegics who get millions would hand them all back, even with a few more zeroes, if they could be put back to the way they were before the accident.  Money is very imperfect in measuring pain and suffering.  If someone instructs you to insert a clause in a contract requiring one party to ‘make the other whole’ after a breach, you should tell them that this may or may not be possible in dollars, but it will very likely be impossible for other purposes. 

It is fundamental in considering any legal action, and whether to settle it once it has started, that the party claiming to be wronged is quite unlikely ever to return to their position before they suffered the wrong.  They’ve taken a hit, and we can’t just wipe out the effects of that hit.  The law cannot rewrite history.

And this goes for the other side as well.  No sane person wants to be sued.  Some know that it is coming, because they know they have done something to upset the person suing, but often the writ will come as just as nasty a surprise to the person sued as would a slap in the face.  But once the party is effectively sued, they too are likely to have suffered a form of harm – the anxiety, cost, and risk flowing from being sued – that they will never entirely get over – even if they ‘win’ the case.

The point is that in both these kinds of conflict, neither side is ever likely to feel quite as well as if the relevant events – the initial hurt or the resulting legal action – had never happened.  They are both behind scratch – and, sadly, often one side or the other has a lot of trouble getting over that simple fact of life.

Common law- adversarial v inquisitorial – leanings in certain cases – experience in the law – facts of life about litigation in the world as it is – litigating in principle.Who is the victim?

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