The Victim-Offender Relationship
LEROY G. SCHULTZ
Instructor, School ofSocial Work, University of Missouri
Deputy Chief Probation and Parole Officer, Circuit Court for Criminal Causes,
St. Louis, 1957-66
B.S., 1956, M.S.W., 1964, Washington University
The victim of an offense may have engaged
in behavior that
intentionally or his own victimization;
unintentionally triggered
some victims may have consented to the criminal act. Since
consent occurs in degrees, and a certain degree of consent negates
or reduces the
severity of the offense, probation officers should
become familiar with the concept of "victimology" and consider
its application in the presentence investigation. About 85 per
cent of all defendants plead guilty without a trial; the presen-
tence report, therefore, is perhaps the best device for acquainting
the court with factors ofvictimology. Probation and parole
officers must understand victim-offender relationships. The per-
sonality of the victim, as a cause ofthe offense, is oftentimes more
pertinent than that ofthe offender.
PRESENTENCE INVESTIGATION has of due process and the rule ot law.3
THE
become the keystone of the sen- Since 80-90 per cent of all criminal
tencing Courts are begin-
structure. cases are disposed of without trial,4
ning to demand professionally pre- the report is the only method of ac-
pared, well-rounded reports before quainting the sentencing judge with a
sentencing.’ Some permit the defend- host of significant factors regarding
ant or his counsel to read and chal- the offense and the offender in the
lenge the validity of the presentence majority of cases.
investigation report and to cite errors &dquo;Victimology&dquo;-the study ot the de-
and omissions.2 gree and type of participation of the
The presentence investigation re- victim in the genesis or development
port is a vital and significant legal of the offense, and an evaluation of
document. Increasingly, both it and what is just and proper for the vic-
its preparer are being considered a tim’s welfare-is a relevant consider-
crucial part of the administration of ation in many professional presen-
criminal justice and subject, to some tence investigation reports. Just as we
degree, to the procedural safeguards 3 Kadish, The Advocate and the Expert
1 For the development of this pattern, see Counsel in the Peno-Correctional Process
, 45
, 8-
Rubin, Developments in Correctional Law MINN. L. REV. 803-30 (1961); Silving, Rule
12 CRIME AND DELINQUENCY 80-90 (1960) , , in ESSAYS IN
of Law in Criminal Justice
64-74 (1961), 65-73 (1962), 189-98 (1963), CRIMINAL SCILNCE 77-151 (1961).
172-85 (1964), 192-99 (1965). 4 Newman, Pleading Guilty for Considera-
2
Higgins, Confidentiality of Presentence tion: A Study of Bargain Justice, 46 J. CRIM.
Reports, 28 ALBANY L. REV. 12-45 (1964). L. C & P S. 780-95 (1956).
135
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136
stress individualizing the offender and perienced probation officer is familiar
his sentence, so we should also indi- with offenses in which ,the victim in-
vidualize the offense and the victim. vited, initiated, and worked diligently
A good presentence investigation ie- toward the success of the offense.
port will direct the attention of the Typical instance are criminal abor-
sentencing judge to factors of aggra- tion, where the female hunts for and
vation and mitigation where relevant. pays the abortionist&dquo;; prostitution,
Since the victim-offender relation- where the male seeks out the prosti-
ship is significant and a prime factor tute to contract for illegal sexual be-
affecting sentencing,5 the judge and havior°; and various &dquo;con games,&dquo;
the probation officer must be thor- where the victim’s larcenous impulse
oughly acquainted with it. The Amer- is exploited by the criminal.10 At the
ican Law Institute’s Model Penal same time, we are all
experienced
Code states that a prime consider- with cases in which the victim was
ation for granting probation is that totally innocent of any involvement
&dquo;the victim ot the defendant’s crimi- in vi~timogenesis.ll We are not con-
nal conduct induced or facilitated its cerned here with the latter.
commission.&dquo;6 In general, consent of Many types of crimes have two
the victim nullifies an offense against partners: the offender and the victim.
that person. There are varying de- These two are put into separate
grees of consent. In many cases, the mechanical terms by the law when, in
victim-offender relationship will de- fact, there may be some degree of
termine the question of guilt and the symbiosis or mutuality. To know the
type and degree of penalty. The ap- offender completely, we must also be
plication of criminal sanctions must acquainted with his complementary
vary in meeting the individual needs partner, the victim. From a certain
of the offendei, and the presentence perspective, the victim may shape or
investigation report is one method of mold the offender. A careful investi-
helping the judge determine this de- gation of many oftenses reveals a psy-
gree of flexibility. Probation officers chological interaction between offend-
must understand victimology in order er and victim that makes one indis-
to prepare professional presentence tinguishable from the other.12 The
investigation reports. concepts of aggressor and victim are
not always absolutely opposite; the
Victim’s Role
aggressor is not always guilty, and the
the study of &dquo;victimolo-
Although
gy&dquo; is rarely
stressed in this counti y- 8
BATIS& ZAWADSKI, CRIMINAL ABORTION
Hans von Hentig’s book is perhaps (1961).
the only work in English7-every ex- Winick, Prostitutes’ Clients’
9 Perception
of the Prostitutes and of Themselves
, 8
5 HMSO ROYAI COMM. ON CAPI TAL PUNISH INT’L. J.Soc. PSYCH. 289-97 (1962).
MENT, REPORT 1949-1953 45-53; MODEL PENAL 10 MAURFR, THI BIG CON
(1949) : R. Glas
CODE§7 01 (Proposed Official Draft, 1962) , ser, The Confidence Game, I ed. Prob Dec
HENTIG, THL CRIMINAL AND His VICT IM 384 1963, pp. 47-54.
(1948). SCHULTZ, How MANY MORI VICTIMS?
11
6 MODEL PENAL CODE, supra note 5. (1966).
7 HENTIG, supra note 5. For the European 12
Ellenberger, Psychological Relationships
contribution to victimology, see 1-3 INT’L. between the Criminal and His Victim, 2
BIBLIO. ON CRIME & DELIN. (1963-1965). ARCH. CRIM PSYCHO 257-90 (1955)
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137
victim is not always innocent. The The victimology factors that should
terms &dquo;victim&dquo; and &dquo;aggressor&dquo; are be included in the presentence inves-
sometimes interchangeable; the vic- tigation may be gathered from a close
tim and the offender (referred to in review of the police report of the
Europe as the &dquo;penal couple&dquo;) are offense, the prosecution file, the notes
not always antagonistic to each other. of the grand jury, and a series of
The personality of the victim as a interviews with the offender and his
cause of the offense is sometimes more victim. In crimes of violence and sex
significant than that of the offender. offenses, the victini’s police record
A victim can contribute to the should be checked and his reputation
offense and facilitate its execution in should be determined as a matter of
the following ways: (1) By provoking routine. Knowledge of victimology
or initiating a hostile reaction in the may become a new element in under-
offender; e.g., during a heated argu- standing criminal dynamics.
ment one party hands the other a gun Each of two types of victims reveals
and, knowing full well the other’s a common background and pattern.
hostile mood, accuses him of not hav- These two groups consist of certain
ing &dquo;the guts to shoot.&dquo; (2) By direct victims of sex offenses and victims of
invitation or incitation; e.g., a female certain types of assault and homicide.
engages in heavy petting and mutual
sexual preludes and, at the last mo- Sex-Victim Typology
ment, begins to resist the man’s ad- In sex-offense studies, victims have
vances that are, by that time, uncon- been described as &dquo;collaborative&dquo; in 8
trollable. (3) By omission of normal per cent of 330 offenses,13 as &dquo;non-
preventive measures; e.g., the auto- objecting&dquo; in 40 per cent of 1,994
theft victim parks his unlocked car offenses,14 as &dquo;participating&dquo; in 60
with the engine running while he per cent of 73 offenses,15 and as
does some shopping. (4) By uncon- &dquo;seductive&dquo; in 21 per cent of 185
sciously inviting the offense through offenses,.16 The conclusion is that, of
his emotional pathology; e.g., a wife all types of crime, the sex offense re-
has masochistic needs that are quires the closest investigation and
gratified by her assaultive husband. evaluation of the actual offender-
Von Hentig has described four psy- victim relationship if the true dynam-
chological types of victims: (1) vic- ics of each offense are to be fully
tims who desire the injury; (2) vic- comprehended. These studies further
tims whose injury may be the price of indicate that victims may trigger the
a greater gain; (3) victims who bring offense, be unnecessarily cooperative,
about the detrimental result partly by invite the offense, simulate resistance,
their own concurrent effort; (4) vic-
tims who provoke or instigate the
13
Gagnon, Female Child Victims of Sex-
Offenses, 13 Soc. PROB. 176-92 (1965).
offense. He further divides victim atti- RADZINOWICZ, SEXUAL OFFENSES 83-109
14
tudes as (1) apathetic or lethargic, (1957).
(2) submitting or conniving, (3) co- 15 Weiss et al., A
Study of Girl Sex Victims
,
29 PSYCH. Q. 1-29 (1955).
operative or contributory, and (4) 16 FINAL REPORT
(Research Project for the
provocative, instigative, or soliciting. Study and Treatment of Persons Convicted
To view each offense as Cain v. Abel of Crimes Involving Sexual Aberrations) 296
is oversimplification. (Glueck ed. 1956).
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138
or act as the aggressor. Some victims Most sex offenders are acquainted
may encourage the manifestation of witch their victims prior to the crime,
an overt act by the offender or entice and the overt act is not directed
the offender by showing curiosity. against a sexual object selected by
In sex offenses, what oftentimes ap- chance alone. The victim must be
pears, on the surface, to be a convinc- regarded as a clue to the behavior of
ing story is often pure fabrication.17 the offender. This refers to the recip-
Because the sympathy of the police, rocal personal relationship between
the prosecutor, the judge, and the victim and offender, one serving as
jury naturally flows to the outraged stimuli to the responses of the other.
female, easy credit is given to plausi- Two studies of sex-offenders’ young
ble tales, often at the expense of the victims22 hold that they have the
innocent male. Although men tend to following personality traits in com-
view the sex act as an end in itself, mon : they are very attractive, charm-
;ome women use it as a means to ing, appealing, submissive, and seduc-
other ends.18 tive ; they attempt to win adults over
A woman’s sexual need can lead to by being masochistic; they make adult
the unconscious desire for the aggres- contacts easily; they want pity and
sive act, the coercion serving to avoid demand proof of affection. They use
guilt feelings which may arise against the sex act to defy their parents (who
willing participation. The presump- encourage them to be &dquo;sexy&dquo; and al-
tion that all young women lack the low them to watch sexual intercourse
capacity to comprehend the nature at home), to generate a feeling of
and implication of the sexual act is a independence, and to satisfy their
legal fiction, another example of insti- urge for approval and attention.
tutional lag.l° Evidence that the vic- They manifest a need to act out sex-
tim understood the significance of the naIl); they are promiscuous, impul-
sexual act2° should be allowed-if not sive, incorrigible, and given to fluctu-
at the trial or arraignment, then cer- ating moods.
tainly in the presentence report.
Assault-Homicidal Victim Typology
Many victims are nothing more than
aiders and abettors, if not offenders Assault and homicide are treated
themselves, and should be examined together since the dynamics are simi-
psychiatrically along with the offend- lar. In some instances, the difference
er.21 between the offenses depends on how
17
Machtinger, PsychiatricTestimony for quickly the victims receive medical
the Impeachment of Witnesses in Sex Cases
, attention.
39 J. CRIM. L., C. & P.S. 750-54 (1949). The concept of victim provocation
18 Reckless, Female
, 3 NPPA
Criminality as a mitigating factor has been long
J. 2 (1957) ; Menachem, Patterns of Forcible
Rape (unpublished Ph.D. dissertation, U Orenstein, The Sex Offender, NPPA
21
Pa. 1965). YEARBOOK 201 (1950). Switzerland has such
19 EHRMANN, PREMARITAL DATING BEHAVIOR a law
(1960) ; Sherwin, Sex Expression and the Law 22 Bender & Blau, Reaction of Children to
of Rape, 4 INTER. J. SEX 206-10 (1951). Sexual Relations with Adults, 7 AM. J
20 Note, Forcible and
Statutory Rape: An ORTHO. 500-18 (1937) ; Bender, Offended and
Exploration of the Operation and Objective Offender Children in SEXUAL BEHAVIOR AND
of the Consent Standard, 62 YALE L. J. 55-84 THE LAW 687-703 (Slovenko ed. 1965); Weiss
(1952). supra note 15
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139
accepted in the legal history of homi- cipitated by the victim.26 Porterfield
cide,23 and the importance of the says that &dquo;the intensity of interaction
role played by the victim’s person- between the murderer and his victim
ality and conduct is established in may vary from complete nonpartici-
crimes of violence more than in any pation on the part of the victim to
other type of crime. The terms almost perfect cooperation... in the
&dquo;aggressor&dquo; and &dquo;victim&dquo; are blurred process of getting killed.... It is
and interchangeable, and it is difficult amazing to note the large number of
to fix blame in many crimes of vio- would-be murderers who become the
lence. Legally, to view one as totally B ictim.&dquo;27
responsible and the other as totally The provocative and precipitating
innocent distorts our picture of the factors may be overt or covert, psy-
situation. The usual close relation- chological or physical, and over a
ship between victim and offender in long or a short period of time. In
crimes of violence24 should lead us to some homicides, the victim’s behavior
test the extent to which the crime is a is so provocative that it must be as-
product of that relationship and, as sumed he is using the killer as an
such, how much both victim and instrument of suicide.28 Wolfgang
offender contributed toward its found that many victims had the
denouement. characteristics of offenders, that 54
The motive to assault or kill not per cent of the victims had arrests for
only is indicative of the offender but, crimes of violence, and that, in many
in many cases, points to a distinct ot the relationships, chance deter-
relationship with his victim, under- mines which of the pair will be the
stood only by the play of motive-form- victim and which the offender.2a
ing and inhibition-removing inter- The victims of many assaults and
actions. Some take sadistic delight in homicides have what may be called
finding out the limits of the offender’s an aggressive-tyrannical personality
&dquo;cool&dquo; by teasing, baiting, tormenting, and engage in acts with the offender
or overchallenging his manhood self- which invite or excite assaultive re-
concept. Von Hentig reports that in sponse.3~ The victim is usually emo-
85 percent of homicides the motive tionally involved with the offender-a
for killing indicates the actual part- spouse, parent, or lover.31 The as-
nership between victim and offend- 26 note 24, at 4.
Wolfgang, supra
er,25 usually in response to hostile 27 PORTERFIELD & TALBERT, MID-CENTURY
stimuli which may be ignored by the CRIME IN OUR CULTURE 47-48 (1954).
law but are reflected in jury verdicts 28
Wolfgang, Suicide by Means of Victim-
of acquittal or recommendations for , 20 Q R. PSYCH. &
Precipitated Homicide
NEUR. 335-49 (1959); Gold, Invitation to
mercy. Wolfgang reports that, of 588
homicides in Philadelphia from 1948 Homicide, 10 J. FOR. SCI. 415-21 (1965).
29 WOLFGANG, PATTERNS OF CRIMINAL HOMI
through 1952, 26 per cent were pre- CIDE ch. 3 (1958).
30 Mendelsohn,
Origin of the Doctrine of
23HMSO, supra note 5. Victimology, 3 EXCFRPTA CRIM. 239-42 (1963).
24 Victim Precipitated Criminal
Wolfgang, 31 Schultz, The
Spouse Assaulter, 6 J. Soc.
Homicide, 48 J. CRIM. L., C. & P.S. 1-11 THER. 103-11 (1960) ; Cormier. Psycho-Dy-
(1957); MCCLINTOCK, CRIMES OF VIOLENCE namics of Homicide Committed in a Marital
37-39 (1963). , 8 J. Soc. THER. 111-18 (1962) ;
Relationship
25 HENTIG, supra note 5, ch. 4. Sargent, Children Who Kill—A Family Con-
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140
saulters and killers can be described wide range of social, medical, or psy-
as submissive and passive, desiring to chiatric agencies, depending on his
avoid conflict whenever possible, par- needs.33
ticularly if playing the masochistic Methods of interviewing victims, al-
role results in gaining them affec- though complex, since they involve
tion.32 The victim sadistically ex- avoidance of further trauma and in-
ploits these traits in the offender, be- vo1B e determining blame while dem-
comes demanding, critical, and un- onstrating compassion, are based on
mercitul, or threatens to withold basic interviewing skills with some
love and affection. In short, the vic- modifications.3~ In some instances,
tim oversteps the offender’s previously rehabilitation ol the victim may be in
overcontrolled hostility threshold. order. An inteiview also allows the
victim to express his version of dam-
Interviewing the Victim ages and losses, physical and mental
In many offenses, the victim must disability, and doctoi and hospital
costs.
be interviewed. The emphasis by po- I
lice and the prosecutor is primarily
on the if and when of the alleged Correctional Restitution
offense, but the probation officer will New Zealand, and Cali-
England,
also be concerned with the hozu and fornia have established victim-
why. The latter information may be compensation programs.35 A recent
obtainable only through a contact White Paper in England suggested
with the victim, which would afford that society has concentrated so much
him an opportunity to give his ver- on the rehabilitation of the offendei
sion ot the offense, perhaps revealing that it has lost sight of the equally
valuable details of the offender’s be- important concern for the victim’s
havior, hinting at motivation and welfare.3° The tendency is to see the
personality factors. This allows the offender’s personality primarily in
probation officer to assess the type terms of society’s needs rather than
and degree of victim-offender relation- those of the victim, and the reforma-
ship and its bearing on the offense. tive potential of the requirement of
Typically the victim feels that, once lestitution has been given only sec-
the state completes the prosecution, ondary emphasis.&dquo;’7 Restitution is
he is forgotten. This attitude could be generally ordered as a condition of
corrected by an interview with a sym-
33 Halleck, Emotional Effects of Victimiza
pathetic court official, who would en- tion, in Slovenko, op. cit supra note 22, 673
courage him to express his hurt and 86.
outrage and who could refer him to a 34 Schultz,
Interviewing the Sex-Offender’s
Victim, 50 J CRIM. L , C. & P S. 448 52
? 7
spiracy Soc. WORK 35-43 (1962) ; Snell ( 1960)
et al, The Wife Beater’s Wife
, 11 ARCH. GEN 35
Schultz, The Violated: A Proposal to
PSYCH. 107-12 (1964). Compensate Victims of Violent Crime
, 10
32
Megargee, Undercontrolled and Overcon- St. LOUIS U.L.J 238-50 (1965).
trolled Personality Types in Extreme Anti- 36 HMSO C..P, 645 PFNAL PRACTICE IN A
social Aggiession (unpublished Ph D. disserta- CHANGING SOCILIY 7 (1959).
tion, U. Calif. 1965); MacDonald, The 37 Schafer, Restitution to Victims of Crime
Threat
120to AM. Kill,J PSYCH 125-30 —An Old Correctional Aim Modernized, 50
(1963). MINN. L REV. 243-55 (1965).
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141
probation only if it does not hinder can be worked out in agreement with
the offender’s rehabilitation and never the victim.
in an amount greater than the vic-
tim’s loss.38 It should not be so high Conclusion
as to jeopardize the security of the Two aspeots of victimology are im-
offender’s family, who may be devoid portant for the probation officer. The
of any direot responsibility for the first is an understanding of the spe-
offense. cific role the victim plays in the
Many probation officers feel that offense; the second, an understanding
extracting large amounts of restitu- of the factors affecting the victim’s
tion unduly strains the traditional welfare after sentencing. Where a de-
relationship, even with its authority gree of consent to the offense was
overtones, and interferes with treat- present, or the victim &dquo;induced or
ment ; others feel that the probation facilitated its commission,&dquo; the use of
office should not be a collection agen- probation is indicated.39 The presen-
cy ; while still others have strong nega- tence investigation report should be
tive feelings about revoking proba- so conclusive in dealing with factors
tion for nonpayment of restitution, a of victimology that it can serve as the
practice that finds the probationer determining document in state vic-
sentenced to a &dquo;debtor’s prison.&dquo; tim-compensation eligibility.4o
After assessment of the victim’s loss 39MODEL PENAL CODE art. 7, § 701;
and the offender’s ability to pay, a Hughes, Two Views of Consent in Criminal
payment plan, subject to fluctuating Law, 26 MOD L R., 233-48 (1963).
economic circumstances in the future, 40The New Zealand Victim Compensa
tion Commission requnes receipt of a pre-
38 RUBIN, THE LAW OF CRIMINAI CORREC- sentence investigation repoit in each case of
TION 198-202 (1963). victim application Act 134. 1963.
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