The Need for Emotional Recovery of Victims

Justice for victims in Europe – VSE Berlin May 2010

The Need for Emotional Recovery of Victims Prof. Arno AkkermansMr. Liesbeth Hulst LLM BSc

The Need for Emotional Recovery of Victims

• Monetary compensation can be a vehicle for emotional recovery as well

• The law on damages holds that recovery takes precedence over compensation => and consequently can be an ally in efforts to make compensation procedures more victim friendly

• Sometimes great improvements can be made by very simple means => e.g. personal contact

• Behavior and procedures often contain an inherent symbolic message => once identified this can be the subject of improvement

• More empirical research is needed

Key messages of presentation:

The Need for Emotional Recovery of Victims

‘Hard’:

• Compensation of victim

• Punishment of offender

• Safety of victim

Psychological perspectives on recovery

Angelica Treibel: What can we do to bring the balance back?

‘Soft’:

• Considering the victim’s needs

• Acknowledgment• Helping to ‘finish’• Protection from

needless shame and exposure

The Need for Emotional Recovery of Victims

‘Hard’:

• Compensation of victim

• Punishment of offender

• Safety of victim

Psychological perspectives on recovery

Angelica Treibel: What can we do to bring the balance back?

‘Soft’:

• Considering the victim’s needs

• Acknowledgment• Helping to ‘finish’• Protection from

needless shame and exposure

Focus of presentation

The Need for Emotional Recovery of Victims

• Constant outcome of any survey: claims for compensation are not only made for the money, non-pecuniary needs always play an important role

• E.g. presentation of Mirjam Spek of survey among victims of crime who receive compensation from Dutch Criminal Injuries Compensation Fund => over half of the victims who receive compensation say money is not the most important reason to apply

• Survey of VU University Amsterdam among PI victims (crime, traffic accident, workplace accident, medical malpractice) => similar results

Compensation: its not just about the money!

The Need for Emotional Recovery of Victims

• Money and life or personal injury are incommensurable entities

• Can a financial award for emotional losses lead to perceived acknowledgement and justice?

• Survey of VU University Amsterdam among 726 secondary victims:=> yes it can: 75% expected that such compensation would aid in their recovery of the accident/crime and contribute to the fulfillment of their emotional needs=> provided that such compensation is offered in the context of well thought-out communication!

Money alone cannot heal – but it can help!

The Need for Emotional Recovery of Victims

Non-pecuniary needs of PI victims and their relatives

1. ‘Acknowledgment’

A. Specifically by the opposing party that he was at fault that he realizes the consequences for the victim by offering apologies by his making the situation as bearable as possible

B. By the opposing party, the outside world and the victim’s own social environment

of what has happened to the victim by being taken seriously that not the victim, but the opposing party is responsible that the opposing party is liable

C. By the receipt of financial compensation

2. Wanting to know what precisely happened3. Calling the opposing party to account4. Not wanting to suffer for someone else’s error5. Wanting to obtain justice6. Wanting to prevent the same thing from happening to someone else

The Need for Emotional Recovery of Victims

Psychological aspects compensation process

• Secondary victimization (social psychology)

• Secondary gain (epidemiology)

• Procedural Justice (PJ) (social psychology)

The Need for Emotional Recovery of Victims

• Information• Involvement• ‘Voice’• Consultation• Respect

Determinants of Procedural Justice:

The Need for Emotional Recovery of Victims

Discrepancy in PI compensation process

The virtually exclusive focus on

financial compensation

The great importance victims

attach to needs of a non-

pecuniary nature

The Need for Emotional Recovery of Victims

This discrepancy is all the more problematic because of the following:

Failure to fulfilnon-pecuniary needs

PromotesSecondary victimisation

Secondary gainImpedes recovery

Fulfilment ofnon-pecuniary needs

PromotesEmotional recoveryProcedural justice

Promotes recovery

And this while recovery should take precedence over compensation!

Discrepancy in PI compensation process

The Need for Emotional Recovery of Victims

The law on damages holds that recovery takes precedence over compensation

=> legal obligation of wrongdoer/agency/insurer to shape behavior and compensation procedure is such way that it favors restorative justice and procedural justice

Law on damages can be an ally in reforming compensation procedures of victims of crime

Feldthusen et al. 2000

The Need for Emotional Recovery of Victims

Provisional frame of reference for reform: pos & neg aspects PI process

Positive aspects Negative aspects

Being provided with adequate information (in terms of content, comprehensibility, dosing and timing)

The feeling of not being provided or being insufficiently provided with information

Participation in and control over the settlement process

The feeling of having no control over the settlement process

Opportunity to tell one’s own storyWrongdoer/opposing party avoids direct contact

concerning emotional dimension

Being able to confront the wrongdoerUnnecessary polarization of the relationships

between the parties

Respectful and dignified approach

The feeling of not being taken seriously, of being mistrusted and not being believed. The necessity of undergoing repeated medical examinations

Friendliness, openness and justification by the opposing party of his conduct in the interaction

Perception of the opposing party as impersonal, cold, cynical, and solely bent on minimizing the compensation as much as possible

Confidence in the impartiality of the decision when a third party has to decide the dispute

The feeling of also losing out in court to the omnipotence of the insurance company

The Need for Emotional Recovery of Victims

Possibilities depending on the circumstances of the case

• Information• Victim Impact Statement, etc.• Conviction of offender • RJ conference• Apologies by wrongdoer• ‘Acknowledgement’ by agency, insurer, etc => compensation

procedure

Promoting emotional recovery

The Need for Emotional Recovery of Victims

• Presentation of Ulf Hjerppe and Margareta Bergström of Swedish Court Introduction website(see www.courtintroduction.se)

• VU University Amsterdam => RCT with interactive info- and support website (employing e-health insights and methods in PI compensation procedure):- General information- Personal file online- E-course on problem solving and depression

Information: develop tools on the internet!

The Need for Emotional Recovery of Victims

(‘Brown envelope’ anecdote Lord Justice Thomas)

Promoting personal contact

• Pilot by several Dutch administrative bodies concerning procedure of handling administrative complaints and petitions

• Personnel to take up direct contact with citizen as soon as possible by means of telephone call, before putting complaint / petition further through formal administrative procedure

• Results of this rather modest intervention:

• 40 to 60% of complaints / petitions were informally settled in one way or another and withdrawn from formal procedure

• Eventually some departments could be scaled down in size to such extent that retraining program for personnel had to be initiated

The Need for Emotional Recovery of Victims

Promoting emotional recovery

• Empirical research: suffering a wrong (also unintentional) disrupts moral and emotional balance between wrongdoer (WD) and victim (V)

• V experiences moral and emotional injustice

• Need for ‘emotional recovery’ as well as financial recovery

• Paramount need of V: that WD (and his agents – e.g. insurer) takes responsibility for incident and its consequences (‘acknowledgement’)

The Need for Emotional Recovery of Victims

• V has to make claim, take initiative, suffer the burden of proof• Agency/insurer appears to be able to allow himself a passive attitude

=> carries across implicit message that not wrongdoer/agency/insurer but V is responsible for solving problem of damage caused

• Often: WD doesn’t pay compensation himself, no direct communication between WD and V, WD often not even aware of consequences for V => V experiences that WD does not take responsibility

• In case of out of court settlement – no decision by judge => no formal establishment of moral responsibility of WD for accident

• In absence of criminal proceedings => also no symbolic acknowledgement of moral responsibility of WD by agency/insurer

The symbolic message inherent in many compensation procedures

The Need for Emotional Recovery of Victims

Effective elements of apology by wrongdoer

• Acknowledgment of responsibility for wrongdoing and its conseqenses

• Expression of compassion

• Undertaking of action: compensation and prevention

The Need for Emotional Recovery of Victims

Effective elements of ‘acknowledgement’ by wrongdoer’s agents:

• Acknowledgment of responsibility for wrongdoing and its conseqenses

• Expression of compassion

• Undertaking of action: compensation and prevention

The Need for Emotional Recovery of Victims

• Insurer/agency must take and keep initiative in resolution process• Behavior of insurer/agency should carry across implicit message

that insurer/agency and not victim is the ‘owner’ of the problem that mistake was made and damage was caused, which now has to be managed, assessed and compensated

• Compensation procedure should favor determinants of Procedural Justice:– Information– Involvement– Voice– Consultation– Respect

The symbolic message inherent in RJ compensation procedure