Abstract
This article engages with the mental and emotional transition of victims in the post-violation process in light of recent retributive theories. It argues that two separate yet related needs of victims must be addressed by legal intervention: normative vindication and therapeutic recovery. Retributive punishment can be said to right the wrong done to victims, expressing the message that they are violated and should be vindicated. It achieves this by reaffirming their normative status while also addressing and redressing their sense of injustice and moral vulnerability: normative restoration. However, the senses of injustice and moral vulnerability are different from those of injury, loss, and grief. Even if retributive punishment provides a means of communicating solidarity with victims in a normative sense, it is doubtful how it provides healing for the losses and injuries left unrepaired. Victims also require a therapeutic intervention, allowing them to come to terms with the sufferings of violation: ethical restoration. This article claims that recent victim-oriented retributivism highlights a dimension of punishment that has not been sufficiently explored in penal theory by providing normative restoration, but it is not clear whether it is structurally well positioned to address and heal the deeper wounds caused by criminal violation.
Introduction
Holding a long-standing and yet contentious position in modern penal philosophy, retributivism is a theory of punishment on which a voluminous literature has accumulated since the classical works of Kant and Hegel. It has transformed, particularly for the last five decades, from its traditional traits to a more nuanced and comprehensive theory. During the period of what is called ‘revival’ or ‘renaissance’, it has taken many guises, moving beyond the ideas of desert, pay-back and moral debt towards reform, reconciliation, and restoration. The result is an unresolved debate both within and outside of the retributive camp, especially around the question of how it should be understood and framed in light of its underlying features and values.
One of the debates that has not been fully resolved is to do with the place of victims in retributive thinking. Some think that the ‘fidelity’ to victims is irreconcilable with the demands of the principle of retribution (Sarat, 2003) or at best should play a secondary role in our conception of legal punishment. On this view, the normative stance and experiences of victims can be significant only in so far as they help us establish the violation of law (Dubber, 1999). Others, however, argue that there is an intrinsic relationship between the justification of retributive punishment and the normative status of victims. The underlying idea behind the ‘victim-oriented’ approach is that the state owes to victims a duty to take crime seriously and respond to it appropriately. On this approach, by punishing perpetrators of crimes, the state expresses solidarity with victims, rejects the dominance acquired over them by offenders and corrects the inequality caused by crime (Alm, 2019; Fletcher, 1999; Hampton, 1992a; Hershenov, 2010; Lippke, 2003; MacLeod, 2008; Whiteley, 1998).
This article does not aim to resolve the debate between the two approaches. Rather, it seeks to enrich it by shedding more light on whether or how retributive punishment can be related to victims in the light of their needs and interests. To this end, it mainly engages with the recent victim-centred retributivism, in particular by reflecting on the restorative dimension of punishment in relation to victims. Although it raises some misgivings, this article argues that retributive punishment counteracts the disruption of an equal normative relationship between victims and their perpetrators, and reaffirms the former’s value and dignity. In this sense, punishment can be seen as restoring victims to the position they occupied prior to criminal violation. It is restorative of their subjectivity in their relationship with offenders and others. We may call this normative restoration. By way of punishment, normative restoration recognises the injustice that victims suffer from and affirms their normative standing in the face of criminal violation.
The suffering of injustice, however, is different from the sense of loss and grief that victims experience. The latter requires more than punishment. In other words, the recognition of crime as an injustice against victims does not sufficiently address their losses and sufferings. From this perspective, victims do need recognition and restoration – but of what I call an ethical kind, where their grief at what has happened is genuinely shared by the offender and others. Unlike normative restoration, where the state declares crime as a public wrong through punishment, ethical restoration addresses crime as a wound to be healed, with an awareness of or sensitivity to the deeper harms and injuries related to how victims subsequently move on with their lives. Ethical restoration does not only seek to relocate victims in relation to their offenders by repairing the normative harm they suffer. It also becomes more attuned to the losses and vulnerability of victims, and looks for ways to improve their well-being and restore their trust in the world.
The aim of this article is first to explore and spell out the two-fold nature of restoration and then seek to answer whether retributivism is well equipped to address the ethical harm caused by criminal violation as well as the normative harm. It will proceed as follows: the first section will begin with a brief analysis of the impact statement of a rape victim, Chanel Miller, by discussing what it means to be victimised, with a particular emphasis on the ideas of vulnerability and resilience. In that section, it will be claimed that apologetic recognition is better than legal punishment to address both the normative and ethical harms caused by crime. Then, it will be followed in the second section by a theoretical inquiry into Hampton’s theory of punishment, wherein retributive punishment is presented as a principal way of standing up for victims. The third section will provide a critical examination of her theory, in which some doubts are raised over whether legal punishment is restorative even in a normative sense. Finally, the fourth section will be concerned with whether there is theoretical room in retributivism that may provide us with both normative and ethical restoration.
Two levels of harm
I have become a little barnacle always needing to be at someone’s side . . . It is embarrassing how feeble I feel, how timidly I move through life, always guarded, ready to defend myself, ready to be angry . . . I have to relearn that I am not fragile, I am capable, I am wholesome, not just livid and weak. The damage is done, no one can undo it. And now we both have a choice. We can let this destroy us, I can remain angry and hurt and you can be in denial, or we can face it head on, I accept the pain, you accept the punishment, and we move on. Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead, he took the risk of going to trial, added insult to injury and forced me to relive the hurt . . . [He] should face the consequences of challenging his crime, of putting my pain into question, of making us wait so long for justice. (Baker, 2016)
After having ‘a year of anger, anguish, and uncertainty’, during which the rape trial had been searching for the legal truth, Chanel Miller gave a strong statement that tells her story of what it feels like to be a victim. It may not be ‘universal’, describing the internal tribulations of every single human being who has been violated. Neither is it a fully completed emotional journey for the victim in question. But veering between the various forms of anger and the feelings of distrust and fear, it provides vivid hints about the dynamic nature of victimhood with its struggles and pains, as well as its subsequent process of recovery and healing.
Driven initially by an injurious violation, this story starts with feelings of frailty and disappointment along with hidden bitter emotions of rage and frustration. Here perhaps, the most dominant theme that pervades the inner world of the victim is an uncontrolled anger at the offender, presumably accompanied by a powerful desire for punitive payback. It then moves on to the acknowledgement stage, where the victim gains some acceptance towards the assault. At this stage, the narrative strikingly shifts from the ‘I’ to the ‘We’: ‘We can face it head on, I accept the pain, you accept the punishment’. Here comes the moment of realisation: that the two lives can be related to each other in a more positive and constructive manner (Amstutz, 2009). The wish for payback, along with a relatively more moderate form of anger remains, and yet it notably diminishes within a quasi-reconciliatory spirit (Nussbaum, 2016: 6). Finally, the story goes on with the feelings of further anger and resentment, sparked by the denial of responsibility on the part of the offender. This stage is somehow diverted from the previous stage where reconciliation has failed.
This short narrative of victimhood provides an interesting emotional map that discloses the victim’s two related, yet distinct needs. On the one hand, it shows that the victim wants to see that justice is done when the offender is punished. We may call this the need for vindication: the victim’s sense of injustice should be addressed and redressed. On the other hand, the narrative also shows that the victim needs healing and recovery alongside the desire to see the offender suffer. We may call this the need for healing: the victim’s injury should be acknowledged and treated. Vindication and healing are separate, as they require two different responses. While vindication requires holding the offender accountable, healing involves providing therapeutic support to the victim. Yet, they are also connected, as vindication can pave the way for healing. Consider, for instance, Miller’s words: ‘Had Brock admitted guilt and remorse and offered to settle early on, I would have [been] grateful to be able to move our lives forward’. What is remarkable is that vindication is demanded from the offender, not solely from the state. It is the offender’s apologetic response that seems to help the victim ‘move forward’, not the state’s punitive actions, which bypass the offender’s soul. In fact, the state is portrayed as a party that causes her to ‘relive the hurt’ through the penal process, not one that soothes her pain.
To express my thoughts in a clearer way, I now want to draw your attention to the second stage of victimhood, in which both the desire for justice and recovery are mingled. The wounds are not unbearably fresh at this point, and yet not entirely healed either. This stage marks the moment of awareness that the victim’s life is in some way connected to that of the offender. Adam Towler, a victim of serious physical violence, describes that moment, perhaps in a quite unusual way for many, as ‘a sense of connection’, where two individuals are linked in an event (Grierson, 2022). Likewise, Paul Kohler (2024), a victim of a violent attack, which causes a serious trauma within a family, says that his daughter was ‘hugely helped’ by meeting with their attacker because it ‘demythologised’ him. Not all victims would phrase the sense of interrelatedness with a sense of connection or be helped by being physically together with their offender. But in a typical form of victimhood there comes a period where two lives are joined and mingled together, and the victim realises that his or her healing might be to do with the offender’s taking responsibility.
Note, however, that there is no complete withdrawal from the demand for retribution at this stage. In this sense, legal punishment is usually thought to bring a sort of relief to the victim, a legitimate moral need to be met, deriving naturally from their rightful status as someone seeking justice (Butler, 1998; Duff, 1998; Goti, 2001; Hampton, 1992a). The most common way to understand the linkage between punishment and the victim is based on the assumption that the victim is morally satisfied by seeing the offender suffer, in that the victim’s ‘pain of injustice’ is soothed with the pain of the offender. In this line of thinking, the victim is severely disturbed by the affective imbalance between themselves and the offender in the aftermath of criminal violation: ‘He walks in pleasure and I in suffering’ (Frijda, 2017: 267). This moves them to look for ways to reduce this imbalance, either by exacting a retribution or just by wishing the offender to suffer (Holmgren, 2012: 30). In score-keeping mode, legal punishment provides a sense of gratification to the victim by inflicting an appropriate amount of harm upon the offender. That is, it helps them to satisfy their sense of reciprocity and view the world again as balanced and fair, a perspective which has been disturbed by the commission of crime. I take this to mean that punishment restores victims to the position they were in before their right was infringed, at least in their own eyes (Strang and Sherman, 2003). This is what I call normative restoration, the sort of restoration that can be provided by retributive punishment.
Nevertheless, there is another – less dangerous – emotional layer in the second phase of victimhood, from which emerges an active and a more enduring form of restoration and recovery. Here the wish for things to go badly for the offender starts to fade, while also being infected with a willingness to work through the pains of violation in a non-punitive way. In this transitional process, the victim is more inclined to ask their offender to admit the crime than to have a blind desire to retaliate. ‘I do not want Brock to rot away in prison’, says Miller (2020), for example. ‘What I truly wanted was for Brock to get it, to understand and admit to his wrongdoing’ (p. 1). At this ambivalent stage, Miller explores that there are other ways of asserting herself against the wrongful behaviour without being exclusively directed by vengeful anger. At the heart of her concern lies the offender’s taking responsibility for his crime and changing his moral standing in relation to her.
In other words, the victim wants the offender to be engaged in an effort of rearranging their ‘mental furniture’ about what has happened, and acknowledge the injustice the victim suffers. What is typically expected or demanded from the offender is a genuine apology or similar form of rectifying response, perhaps, but not necessarily concretised by an act of restitution. Inherent in the victim’s mental state is the need to be confirmed by the offender about their wrongful loss and suffering (Bibas and Bierschbach, 2004; Funk et al., 2014; Umbreit, 1998). This is an important juncture for the victim, in that they come to realise that their healing is not solely concerned with a punitive sanction imposed on the offender. In fact, they may even reckon that their immediate desire to hurt back is part of a more fundamental need for the recognition of their loss and suffering. (Zehr, 2001: 191).
One might react here by claiming that the state’s punitive action against the offender operates well if the aim is to recognise the wrong and harm done to the victim, since by punishing the state publicly declares that it is on the side of the victim (Kleinfeld, 2015: 1509). That said, we should distinguish the mere recognition of the wrong from the therapeutic healing of pain and loss. While the former is most of the time to do with a normative stance towards the offender, the latter requires a deeper set of vindicatory responses that address the victim’s harms and injuries. Legal punishment does recognise the wrong in an abstract sense; but it does little to provide a meaningful opportunity to deal with the ambiguities and unaddressed wounds that haunt the victim (Mills, 2005: 507). It may give the victim a sense of closure, and yet this happens often unsatisfactorily, leaving a variety of injuries unhealed (Bandes, 1999). 1 It may even sometimes cause the victim, as stated above, to ‘relive the hurt’ rather than to heal it. There is, therefore, often a deep crevasse between formal justice and true healing.
An apology or a similar kind of response, however, is better suited than the law to address and recognise both the sense of injustice and the pains of victimhood. In other words, it has the power or capacity to both ‘right the wrong’ and ‘repair the harms’ caused by the criminal violation. Certainly, as with legal punishment, the offender’s vindication involves an arduous process where they come to terms with their past behaviour and its consequences. In this sense, the offender is burdened with a peculiar form of suffering that results from their realisation of the victim being unjustly treated by themselves. In apologetic recognition, the offender, in a sense, participates in the suffering of the victim while seeking ways to relieve it. Being punished by the boomerang of their own behaviour, the offender suffers a retributive loss. But the punishment they undertake does not simply restore the victim to their former pre-injury status in a normative sense. That is, it does not simply vindicate the equal status of both offender and victim. Rather, it sets the ground for a deeper therapeutic recovery of the victim by recognising or sharing in their suffering. In other words, the aim is not merely to acknowledge that a wrong has been done but also to seek ways to mend the victim’s wounds and support the process of healing and recovery. 2
If apologetic response is successful, it helps the victim to view the world again as unified and whole, in which their personal insecurity or vulnerability gradually dissipates. This is what I call ethical restoration, the sort of restoration that might be provided by apologetic recognition. I do not, of course, argue that an apologetic response by the offender is always sufficient for complete healing and recovery. I do, however, argue that an apology is better than a legal response at recognising both the wrong and the suffering of the victim. We should, therefore, reform our criminal justice systems more in the direction of apology and away from retributive punishment, which simply recognises crimes as wrongs without concern for the victim’s healing.
To highlight, my aim in this article is not to map out a comprehensive account of victimhood, but rather to explore how retributive punishment relates to the victim’s various needs. In this regard, it must so far have become clear that from the perspective of the victim, there are two layers or levels of need. At the first level, the victim seeks moral balance and normative vindication. At this level, legal punishment can be taken as restoring the asymmetry between the victim and offender, by bringing the latter down from an ill-gotten position and reaffirming the former’s moral status. At the second and more fundamental level, however, the victim needs a more substantial recognition that would help them take active steps to facilitate their own recovery and healing. Apologetic recognition can operate at this level, seeking to vindicate the victim and repair their relationship with themselves and the world.
Some might question whether my analysis applies only to certain types of crimes or to all crimes in general. They could argue that each crime has its own specifics and therefore requires a tailored approach. I agree that different crimes can have varying effects on victims, but I believe that all victims, regardless of the crime, share two core needs: vindication and healing. First, victims should be recognised and acknowledged as individuals who have been wronged. Second, they should receive actions that make amends and provide therapeutic support. While minor offences may not necessitate the same depth of restorative and therapeutic intervention as more severe crimes, even in cases of relatively minor violations, such as battery or trespassing, victims still need healing and reassurance that their environment is secure. This reassurance is an integral part of their therapeutic recovery.
My argument is that retributive punishment vindicates victims, but it does little to facilitate their healing and recovery. In contrast, an apology or a similar response is more effective at recognising both the wrongs and the harms done to victims, and offers more support in their healing process. The question is then whether retributive punishment can be transformed into a form that incorporates apologetic elements. The aim is to pursue a victim-oriented (legal) punishment that not only acknowledges the wrong done (vindication) but also sets the ground for the victim’s healing (therapeutic recovery). To this end, I will now analyse Hampton’s theory of punishment, which takes the victim’s world, needs, and interests seriously.
Why victims need vindication and healing?
In the first section, I have supplied an analysis of victimhood around the feelings of vulnerability and fragility mixed with a desire for justice and punishment, arguing that the victim needs both normative vindication and therapeutic healing. Yet, I have said little about how and why victims need vindication and support. In this section, by focusing on Hampton’s account of resentment, more light will be shed on victimhood in a theoretical way, particularly connecting it to the normative foundation of retributive punishment.
For Hampton, what bothers victims about being wronged is, at bottom, a peculiar form of moral sentiment that is combined of various emotions, including resentment. ‘Frequently linked with a verbal rebuke, reprimand or complaint directed at the insulter’, Hampton (1988a: 55) says, resentment is generally viewed as a protest declaring that what has been done is not morally acceptable. Involved in this mental state is a perception of unfairness along with the feeling of anger. So being, it has fundamentally to do with the disapproval of certain sorts of behaviour, and reaffirming a particular moral norm or principle that the victim finds valuable in the face of its violation.
But Hampton also thinks that resentment is not only concerned with a sort of aversion about the failure of moral or normative expectations. For crime is not a mere violation of a law or moral rule. It is rather also an expressive act that conveys certain messages about the value of individuals. At its heart, though not always expressed unequivocally, for Hampton (1988a), crime involves a message that the victim is ‘not valuable enough to require better treatment’ (p. 55). In other words, crime is an intentional attitude of disrespect and disregard for the victim, and an attack against his or her dignity and self-image.
In Hampton’s view, therefore, there is something more in the build-up of resentment that moves beyond the annoyance that results from the violation of law. In this regard, resentment is firmly to do with an emotional challenge against the moral-meaning that is implicit in the offender’s disrespectful or demeaning behaviour. It is somehow a self-defensive resistance, seeking to communicate a counter-message that refutes the initial (moral) message of the crime. But when someone is slighted or insulted, Hampton (1988a) emphasises, defensiveness comes with the feelings of suspicion and uncertainty There are (at least) the following two ways a victim can respond to this message: She can reject it as wrong and hence regard the action as inappropriate given what she believes to be her true (high) worth, or she can worry (or even believe) that the wrongdoer is right, that she really isn’t worth enough to warrant better treatment, so that his action is permissible given her lower worth. (p. 44)
For Hampton, what is at stake in most cases of resentment is the mixture of these two responses. The victim is generally stuck in a psychological vacuum, in which they try to vindicate their moral value while also being influenced by the false implication given by the crime. The message of the crime, which raises a doubt about the value of the victim, can tenaciously be rebuffed by those who are what Hampton calls ‘beyond resentment’. Yet, those who resent the wrongful act have usually some degree of fear of the fact that their status is either low enough to be treated this way, or that it can be lowered by the offender, even though they would challenge that (Hampton, 1988a: 57). Put differently, manipulated by the affront to their dignity, the victim is somehow disposed to engage in a kind of self-questioning, where they come to doubt whether their suffering is deserved or permissible (Janoff-Bulman, 2010: 80).
Grave criminal offences, such as physical assault or rape, are obvious examples where victims come to question their own dignity. But for Hampton (1991: 397), even a petty act of wrongfulness, like sneaking a book out of a university library without checking it out, can ‘inflict’ a demeaning message upon the victim. When sneaking, the wrongdoer’s action ‘means (or is evidence of) the superiority of his needs over those of the rest of the university community’. Standing in the way of the victims’ realisation of their real value, Hampton (1992a: 1679) thinks this trivial wrong is an attempt to diminish the victim, by making circumstances such that they cannot benefit from the services of the library as much as the wrongdoer. The victims are, therefore, injured by the wrong in both material and moral senses, and rightly become resentful, asking ‘why should she get exclusive enjoyment of the book while the rest of us can’t use it at all? Who does she think she is’, and thus who does she think I am? (Hampton, 1992a: 1681).
I do not think that victims typically question their own value in cases of petty wrongs or some crimes that do not affect their self-esteem (Duff, 1990; Garrard and McNaughton, 2003). In some crimes, such as theft or battery, victims usually feel anger towards the offender but remain confident that the offender’s actions do not diminish their own worth. It may, thus, be useful to differentiate between wrongs that lead victims to question their value and those that merely provoke anger without impacting their self-esteem.
Nonetheless, I agree that the acts of defiance in most of the serious wrongs can involve an unstable emotional state, in which the victim alternates between the feelings of fear and low self-esteem, and those of courage and restored self-respect. In the grip of this psychological uncertainty, the victim can search for evidence to be assured that they are not as low in rank and value as the wrongdoer’s action assumes them to be, and to fight against the wrong. But Hampton (1988a) is not full of hope about this fight: No matter how much we applaud resenters, there is something worrying about their defensive response. How can one succeed in defying the truth of something that one half believes? Resenters are vulnerable, . . . their defiant act requires buttressing if they are going to be able to gain a high degree of belief in what they wish to believe. (p. 58).
When faced with a denial of their value, this passage stresses, the victim goes in pursuit of validation and reaffirmation. But because they are vulnerable, Hampton thinks, we should be in careful and attentive engagement with the victim’s painful experience of having been wronged. We should have a decent compassion for their distress and stand in (moral) solidarity with them. In other words, to be wronged is somehow to be misrecognised by another, and to fall into a flawed pattern of thinking, in which one becomes susceptible to having a demeaning or contemptible picture of oneself. And the non-recognition of this misrecognition, to use Charles Taylor’s (2021) terms, can inflict further harm: ‘can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being’ (p. 25). We should, therefore, confirm the victim’s sense of injustice and ‘offer some forms of solace, safety, and relief’ to them (Walker, 2006: 20).
Here is where resentment in Hampton’s theory is linked to retributive punishment. For Hampton, punishment denies the false message procured by crime, and repairs the damage to self-respect entailed by the resentful feelings of the victim. It expresses solidarity with the victim by reaffirming the equality of relationship that precedes the crime. Even in cases where the crime does not alter the victim’s self-perception but only causes anger, punishment validates the victim’s position and asserts that what has been done is unacceptable. This can be termed as normative restoration.
Yet, for Hampton, punishment as a form of retribution must also ‘repair the damages’ caused by crime, constructing a moral situation in which the victim’s injustice and loss is recognised by the offender. As Hampton (1992a) puts it, ‘to vindicate the victim, a retributive response must strive first to re-establish the acknowledgement of the victim’s worth damaged by the wrongdoing, and second, to repair the damage done to the victim’s ability to realise her value’ (p. 1686). As suggested by Hampton, retributive punishment should not only help the victim recognise their own value but also address the harms and injuries caused by the crime. This may require additional support from the state to ensure the victim’s full recovery and healing, which I referred to earlier as apologetic recognition.
To clarify, in Hampton’s theory, resentment is followed by retributive punishment not because it manifests the rightful retributive anger of the victim (Feinberg, 1965). In other words, Hampton does not believe that resentment is an appropriate reaction to criminal wrongdoing. Rather, she argues that we should support those who have been violated and reaffirm their value in the face of its denial. There seems less controversy about the fact that legal punishment, at least symbolically, restores victims by standing by them when it publicly declares that they have been wronged (Farnham, 2008; Lippke, 2003). But it is not clear how retributive punishment bears centrally on their coming to terms with their injured past and their healing. Equally debatable is whether legal punishment is the only way to vindicate the victim’s value and whether this would pose the risk of degrading the offender’s value (Ripstein, 2001: 146). In the light of these misgivings, the discussion now moves on to the role that punishment plays in Hampton’s theory, analysing it in terms of whether it can take an apologetic form.
Linking resentment to retribution: punishment as defeat
What has been evident from the previous section’s analysis of Hampton’s conception of violation is that crime is a wrongful act, and one that not only causes some harm in its ordinary sense, where the victim suffers some sorts of physical or material harm. It is also an act that generates what Hampton (1992a: 1666) calls a moral injury, an injury that is to do with the damage to the realisation of the victim’s value. Crime, on the other hand, is also an expressive act, from the perspective of the offender, involving a claim about the moral position of the offender. It reveals that the offender holds themselves to be superior to the victim, or that their needs are more important than those of the victim. Whether or not the offender intends their act to be demeaning, Hampton (1992a) says we can read crime, ‘as defeating the victim and elevating the offender’ (p. 13). At the hands of the offender, the victim ‘is humbled and made to look inferior’. Crime somehow creates evidence that the victim is less valuable than the offender. But because all human beings are of equal and immutable worth, in Hampton’s (1992: 13) theory, legal punishment performs to nullify the evidence produced by crime with the new evidence effected through punishment.
As with criminal wrong, punishment is a communication about the values of individuals (Hampton, 1991: 397). It represents ‘the defeat of the wrongdoer at the hands of the victim (either directly or indirectly through an agent of the victim’s, e.g. the state) that symbolises the correct relative value of wrongdoer and victim’ (Hampton, 1991: 397). By conveying the message that the political community is committed to the equal dignity of all persons, punishment clears the offender’s hubris asserted in the criminal wrong (Onayemi, 2006: 85). 3 It ‘masters the offender in the way that he mastered the victim’, writes Hampton (1988b), so that ‘the score is even’ (p. 128). In other words, punishment is retributive in a moral sense, ‘the victim’s value ‘striking back’ and in this way proving itself’ (Hampton, 1991: 396). It is typically and conventionally unpleasant or painful for Hampton, aiming to cause the offender to suffer so that their wrongful elevation is decisively rejected. For the suffering in punishment is a useful medium that incorporates the ideas of defeat and submission to the punisher (Hampton, 1988b: 143).
There are, however, a couple of major problems with the way Hampton formulates crime and punishment from the perspective of the offender. First, Hampton is not as scrupulous about the world of the offender as about the victim’s world. Unlike the meticulous construction of the victim’s ambivalent mental state, her account of the moral psychology of the offender is largely based on an unclear metaphor that seems barely supported by serious reflection: the idea of superiority (crime) and the symbolic message of ‘getting someone down’ (punishment). There is perhaps a sort of disregard for the value of the victim in most cases of violation, but does this always include a superiority claim? (Gert et al., 2004: 81). Even if it does, is that not sometimes mixed with or resulting from the inferior self-image of offenders that has been caused, for example, by social injustice or insufficient recognition? (Duus-Otterström and Kelly, 2019; Gargarella, 2011; Honneth, 1996; Sadurski, 1991). After all, the lack of due respect and the wounds that accompany it are often part of an offender’s mental life that may set the conditions for criminal violation.
Second, it is doubtful whether the intentional infliction of pain upon someone necessarily connotes their defeat or surrender to the punisher. When suffering, one is usually forced to endure a kind of hardship that is outside of one’s control. Human beings are disposed to accept the hardship with the hope of preserving a kind of peace and harmony in their lives, but they are also inclined to keep resisting it, if they view it as unfair or pointless. In this sense, the suffering of punishment may sometimes imply the defeat of the offender, but it can also be an indication of a continuous battle or struggle, if the suffering is rejected and seen to be unjustified. In fact, even if punishment is experienced as a kind of defeat, it is not clear why that should happen through force and hard treatment.
Hampton acknowledges that punishment does not have to involve harsh treatment, but it does have to involve an unpleasant experience that is designed to humble the offender. She says: If one considers the wide variety of experiences which count as punishment in our society but which are not inherently painful (e.g., requiring public service), one realizes that what makes any experience the suffering of punishment is not the objective painfulness of the experience, but the fact that it is one the wrongdoer is made to suffer and one which represents his submission to the punisher (Hampton, 1991: 399).
I am dubious about the way inherently painful punishments are separated from the other types of practices (Duff, 1992; Kahan, 1996). But the underlying thought in this passage is that punishment is in essence ‘the infliction of defeat’ on the offender, not the imposition of certain sorts of pain or harm. The idea of punishment as a means of defeating the offender resonates with the sentiment expressed by many victims of crime, particularly those who have been physically harmed or sexually assaulted, who often feel a strong desire to assert: ‘I won’t let you win’.
When understood in this light, the suffering caused by punishment becomes instrumental, or a means to the aim of a moral goal, i.e. representing the offender as the equal of their victim. But this is not to say that punishment is used to produce social goods in a utilitarian sense. Rather, as Hampton (1991: 399) puts it, exists to ‘establish goodness’ by revealing the moral truth that every human being is equal in value. In this line of thinking, the offender deserves punishment, not because they deserve the right amount of suffering; but because they deserve ‘a kind of subjugating experience’ that would remove the appearance of their superiority and make the equal status of the victim manifest (Hampton, 1992b: 15). To sum up, the real motive behind punishment in Hampton is not mere pain delivery; but rather the repair of the moral injury caused by crime through the subjugation of the offender and elevation of the victim. For this reason, any experience that can humble the offender and raise the victim up can be classified as a justified form of retributive punishment or perhaps an apology extracted from the offender to validate the victim’s real value.
Some would perhaps find this an interesting and yet pernicious way of sidelining the problem of suffering in legal punishment. I am also uneasy about the idea of defeat, particularly when cast as a way of justifying punitive forms of punishment like imprisonment (Crewe, 2011). Suffice it to say, for the purpose of this discussion, the main concern is the question of how legal punishment is related to the victim’s restoration. From that point of view, certainly, the defeat of the offender may be thought of as shoring up the victim’s sense of worth or their moral standing in their own eyes. Legal punishment is a way of expressing that the message – implicitly or explicitly claimed by crime – is denied: the offender is not superior in value to their victim.
Nonetheless, by visiting harm on the offender as they did on their victim, punishment can also feed the logic of revenge into the victim’s inner world, making them susceptible to the deceptive thought that they are elevated directly in proportion to the suffering of the offender. Because of its ‘violent’ or ‘painful’ nature, such punishment may seem to lower the offender to the level to which the victim has been reduced (Zehr, 2015: 193). Doing so, it may give to the victim a message as misleading as the message involved in crime. Punishment, however, elevates the victim not because the offender is made to suffer and look inferior to the victim and others; but because the unjust treatment of the victim is addressed and clearly announced. Accordingly, punishment may be viewed as a suitable public tool for the recognition of the wrong, but it may also misdirect the victim about the moral meaning of punishment, by leading to the view that hurting another is adequate compensation for being violated.
Related to this is the worry that, with its sole focus on blaming and placing fault on the other, punishment may reinforce the victim’s negative moral position and sense of vulnerability (Herman, 1992). 4 It can divert the victim’s attention from their responsibility to heal and deal with the other significant issues of mourning, such as finding the meaning in suffering, working through the wound, and reconnecting with others. In this regard, the Glasgow rape case of 1982 serves as a notable example. In this case, the victim sought justice and vindication by bringing a private prosecution against the offenders, aiming to ensure that others would not endure similar suffering (Harper and McWhinnie, 1983). Her fight against the injustice and her altruistic actions vindicate both her own rights and those of others. Nevertheless, it also masks the significance, for the victim, of undertaking a process of self-rehabilitation, as the focus is placed solely on punitive measures, rather than on a more constructive approach that incorporates healing and personal growth. Perhaps, more concerningly, an intense focus on punishment may lock the victim into a repressive kind of relationship with their offender, in which there remains a continuing control exercised over themselves (Henderson, 1997). Thus, while punishment can vindicate the victim, it can also lead to ongoing and regressive suffering if it does not help the victim rebuild their sense of self and restore their life (Wheatcroft et al., 2009).
That being said, Hampton claims that the poor instances of punishment in contemporary societies should not blind us to the moral potential of the principle of retribution. For her, the idea of defeating the offender – despite its negative connotations – can also facilitate the healing and recovery process for the victim, or at least help address the harms caused by the criminal violation. It can bring the offender to acknowledge the victim’s value, and thereby set the stage for a full recognition of the position of the victim by addressing their losses and suffering. In other words, retributive punishment for Hampton can turn into what I call apologetic recognition where the suffering of the offender might be more closely tied up with the recovery and healing of the victim. In the final section, I will expand upon the restorative effects of retributive punishment.
Between defeat and correction: punishment as restorative retribution
Once we start conceiving of punishment primarily as restoring the victim’s value and correcting the false message created by crime, rather than the infliction of suffering, any type of moral response, for Hampton, may have a penal character. In this sense, surprisingly, Hampton (1992a) says, the most common and successful practice of retributive punishment is ‘the one that all of us, when we commit a wrong, standardly inflict upon ourselves when we come to understand ourselves as guilty of an offence’: apology (p. 1697). What is crucial in our performance of apology is the idea that we express regret and humble ourselves in front of the one whose value we have failed to respect. We accept our wrong as behaviour that harms and disrespects the person we hurt and acknowledge their real value by attempting to make amends or set the things right. In Hampton’s (1992a) words, ‘by apologizing, we deny the diminishment of the victim, and our relative elevation, expressed by our wrongful action’ (p. 1698). The practice of apology is, thus, retributive – not because it causes us an unpleasant experience – rather, it reaffirms the value of the wronged person or rights the wrong by repairing the moral injury (Hampton, 1992a: 1607).
Exploring a retributive rationale in the most common type of restoration (apology), Hampton draws an interesting parallel between restoration and retribution. For her, just because vindication of the victim ‘requires among other things, repairing the wrongdoer’s damage to the victim’s entitlements (generated by her value)’, the demand for a wrongdoer to apologise and make amends to their victim is essentially a retributive idea. Thus, a punishment can incorporate ‘actions or services that constitute such amends and remedies’ which may express the offender’s apologetic reaction and efforts to help the victim to recover from their injuries (Hampton, 1992a: 1697). But, in Hampton’s (1992: 16) view, even where our response has an implicit demand from the wrongdoer, retribution can be tied up with restoration.
Consider, for example, the passive and loving response of ‘turning the other cheek’ when faced with a wrongdoing. Hampton (1992) posits that ‘acting benevolently towards one’s enemy cannot be said to be a way of inflicting punishment’ (p. 1695) in its usual sense. Neither does it encompass an explicit moral demand from the wrongdoer. It might even, for some, be seen as a sort of unconditional forgiving and condoning. But Hampton (1992a) views the kindness of the victim’s response as enabling the triggering of ‘emotions of humiliation and shame’ in the wrongdoer, leading them to rethink their actions as ‘so much uglier than his victim’s behaviour towards him’ (p. 1695). Though not being punished in the ordinary sense, Hampton thinks the wrongdoer in this instance undergoes a retributive experience that humbles and corrects them. When defeated by such a loving response, as Murphy (1999) says incisively, shame in the wrongdoer ‘creeps through guilt and feels like retribution’ (p. 327).
If unconditional forgiveness is constructed as some sort of dishing out of pain or humiliation, rather than restoration, then ironically it may become a form of payback and punitive retribution (Nussbaum, 2016: 77). It may even be viewed as a kind of revenge in Hampton’s sense, establishing the forgiver’s superiority over the wrongdoer. 5 For sure, this is the darkest way of thinking about the good behaviour and forgiving demeanour of human beings. Unconditional forgiveness is usually produced to place a tacit demand on the offender, inviting them to embrace ‘the good’, and cultivating a kind of moral growth within themselves, often done with the awareness of the painful process that must be endured. 6
No doubt, here one would not be too wrong to challenge that acts of benevolence are effective only on offenders who are remorseful or who possess some measure of ‘goodness’. After all, one might go on, some offenders are simply not receptive to ‘loving’ or ‘compassionate’ responses, as they take pleasure in causing others pain rather than reflecting on their actions or seeking to make amends. In such cases, it may seem more appropriate to impose penal measures that send a clear message to offenders, ideally causing them significant discomfort and distress and prompting an apologetic response that addresses the wrong and harm done to the victims.
Nevertheless, as Hampton puts it, it is sometimes too hard to construct ‘right responses that succeed in vindicating the victim’s value without compromising the wrongdoer’s value as a person’, particularly in a legal context. But she claims that retribution is still often the best and normatively most appropriate method that can function as a mechanism of restoration (Hampton, 1992a: 1689). Having stressed the necessity to be creative and flexible about retributive responses in criminal justice, Hampton remarks on an alternative and thought-provoking practice: confrontational programmes. In programmes of this kind, ‘convicted sex offenders are forced to listen to the words and accusations of rape victims’, with a role-play where they take the role of the women they raped. Undergoing an experience that is more or less similar to the feelings of anger, hurt, and frustration they caused in their victims, offenders are challenged to admit their wrong in a retaliatory tone. Commenting on these practices, Hampton (1992a) argues: They must confront what they did to other human beings, and appreciate how badly their actions affected them. Thus, these programs are intended as an experience in retribution, not rehabilitation. . . . By doing so, not only does the state confirm the victim’s importance, but it also defeats the rapist’s claim to mastery by putting him in a position where he must, through his imagination, become her, and suffer as if he were her (p. 1659).
There seems a peculiar form of pain delivery in this sort of victim empathy role-play that is oriented towards a particular moral goal. It drives offenders to recognise the substantive harm they have done by making them identify with their victims, through a process in which they are expected to feel their victims’ pains and distress (Wakeling et al., 2005). 7 It requires offenders to enter into the world of their victims, or to mould their identity into that of victims, in order to atone – or as Norrie (2019: 389) phrases it, to be ‘at one with’ their victims. 8 More directly, it seeks repentance from offenders, ideally expressed through an apology and proportionate reparation, moving them to do what they can to make amends.
Taking a form of retribution, the process of identification seems surprisingly like a rehearsal of the archaic notion of lex talionis: an eye for an eye, a tooth for a tooth, and a life for a life. It is so, however, not in the sense that it does to offenders what they did to their victims, or that they suffer losses equal to the losses of their victims. Delivering to offenders what they delivered to their victims is a futile and impossible endeavour, as the common criticism goes. The process of identification is, however, a civilised and ‘phenomenological’ form of lex talionis, because it inflicts hardship on offenders that mirrors the crime in a psychological sense, calling for a kind of suffering that echoes that of victims. But in Hampton’s view, in this form of lex talionis, the discomfort imposed on offenders does not automatically cause the kind of suffering we normally find in punishment. Rather, the suffering in offenders is internally generated, bringing offenders to recognise the wrongfulness of their crime in a deeper way, and make reparation for what they have done.
From the perspective of offenders, there is certainly a sense of being punished and humbled by the process of facing truth and understanding their victims’ feelings. Their distress and negative emotional experiences may represent their vulnerability and equal standing with their victims. In this sense, victims can be said to be restored by the penal suffering of offenders in a normative sense, as offenders, through their remorse and the pain of realising they have wronged another, reaffirm the victims’ normative status. On the other hand, the distressing sense of humility in offenders also comes with a genuine concern and compassion for victims, followed by the full recognition of their loss and grief. It enables offenders to accept responsibility for their crimes and take steps to enhance the well-being of victims. In so doing, it is driven by the logic of a full apologetic response that may facilitate a deeper form of recovery and healing for victims, which I previously referred to as ethical restoration.
Thus, there are two kinds of restoration that are due to the victim in retributive punishments, tuned more towards apology, such as confrontational programmes. The first one, termed here as ‘normative restoration’, springs from the compulsory subjection of offenders to a particular (restorative) practice in a legal setting. Offenders are required to bear a burden in response to their wrongful behaviour. They owe a (forced) apology to their victims to acknowledge their wrongdoing and reaffirm their victims’ equal standing. The aim is to persuade offenders to withdraw the insult to the dignity of their victims that was expressed by their wrongful act. The second kind of restoration, termed ‘ethical restoration’, involves whether offenders take positive or constructive actions to make amends for the harm they caused. In ethical restoration, offenders are obligated to bear the costs of their wrongful behaviour in a way that lays the foundation for deeper and more substantial reparation to the victims. Ethical restoration, in other words, goes beyond mere compensation or material restitution. It involves a kind of emphatic pain in offenders, compelling them to share in the suffering of their victims. The aim is to vindicate the suffering of the victims and help them recover from the injuries or deeper harm caused by the crime.
Nevertheless, punishments, even reformed in the way of apology, are typically imposed within an uncaring, unresponsive, or punitive environment, where offenders are expected to pay their debt through non-constructive suffering. This suggests that these forms of punishment are at significant risk of being overshadowed or seriously undermined by a broader retributive mechanism that is solely concerned with a status adjustment between victims and offenders. There is also a general consensus that standard criminal justice systems not only fail to encourage deeper forms of restoration but often actively prevent them (Zehr, 1990: 51–52). Ethical restoration is, therefore, deemed to be incomplete if punishments aim to restore victims solely by imposing requirements and restrictions on offenders or by subjecting them to sanctions. After all, the healing and recovery of victims is not simply about whether offenders have an obligation to bear a cost or suffer in response to their crime. Rather, it is also about whether victims can rebuild trust in the world after offenders apologise and seek ways to alleviate their suffering so that they restore their sense of self in order to fully recover from what happened.
That said, one might still insist that punishments that are of a restorative nature can still provide ethical restoration even in a punitive setting if they successfully demand offenders to show due recognition to the losses and sufferings experienced by the victim. On this view, when asked to develop empathy or the capacity to care about others, the offender can identify a profound lack of concern involved in their crime, and recognises the normative or moral stance of the victim. And this ‘normative’ awareness can also be accompanied by an opening of their mind and soul towards the victim’s experience (Haldemann, 2008: 698). By adopting a more caring attitude towards the victim, the offender can take active steps to eliminate or diminish their suffering. In other words, the victim-offender interaction can take place not physically but in the offender’s mental world through which ethical restoration paves the way for both normative vindication and therapeutic recovery.
I do not categorically reject restorative practices in legal settings and find them as ethically invalid. It is worth noting, however, that two kinds of punishments are at stake here. The main one is the sort of punishment inflicted on offenders in response to crime on the basis of what they deserve. The other one is the sort of punishment that is designed to create meaningful relationships between victims and offenders. If the latter can do what the former does – status adjustment or normative vindication – then we would not need the former. In other words, legal punishment would become pointless in so far as normative restoration is achieved by non-punitive ethical caring interventions.
In fact, because legal punishment is automatic, unbending, and impersonal, it usually stands in the way of ethical restoration. For it produces a ‘passive’ suffering for the offender that does no good to them, nor their relationships with their victims. Concerned exclusively with what offenders deserve with no regard to the needs and interests of victims in an ethical sense, its ‘cold’ face is prone to undermine the possible warm bonds that may be developed between victims and offenders. This is to say that ethical restoration somehow seeks to ‘flourish on a soil that is eroded’ by the terms of a legal vision that produces retributive punishments.
Conclusion
This article started with a brief analysis of Miller’s victim statement, arguing that retributive punishment can be linked to the restoration of victims in a closer and more complex way than is commonly held. In contrast to the tendency to associate retributive sanctions with the institutionalised form of vengeful feelings, it emphasised that punishment could address the victim’s moral vulnerability and restore their sense of injustice. By recognising the crime as a wrong done to the victim, it can serve a restorative function: normative restoration. However, the public recognition of crime can also be followed by the recognition of further and deeper sufferings that befall the victim. Drawing on the term apologetic recognition, this article sought to explore a zone in which the punishment of the offender is tied up with the victim’s healing and recovery in a deeper way.
To shed more light on the moral and psychological vulnerability of the victim and investigate if retributive punishment can turn into an apologetic form, this article moved on to analyse Hampton’s account of resentment, where the victim’s loss of self-respect caused by criminal violation is fused intricately with their moral anger. Resentment is a form of self-defence for Hampton, seeking to suppress the diminution in the victim’s self-respect. But this is the form of defence that should be backed by others. In Hampton’s theory, punishment serves as a legal means of supporting victims, and reaffirming the equal relationship that existed between victims and offenders before the crime. Imposing punishment on offenders aims to humble their will and remind them that committing a crime does not make them superior to their victims. In other words, punishment expresses solidarity with victims and helps to restore the balance that was disrupted by the crime. For Hampton, in order for balance to be fully restored, punishment should not only impose suffering on offenders but also involve requirements designed to make amends for the harm and injuries done to victims.
This article has raised doubts about Hampton’s theory, particularly her conception of punishment as defeating the offender. Questioning whether the idea of punishment as defeat benefits victims, it also argues that legal punishment, understood this way, may divert victims’ attention from healing and recovery, ultimately leaving them vulnerable. The article further focused on the retributive practices Hampton suggests, which may be seen as stemming from a spirit of apology, such as confrontational practices. It was argued that these practices can be restorative both normatively and ethically, as they may foster a sincere sense of care and empathy within offenders towards their victims, accompanied by a full acknowledgement of the harm and suffering inflicted. Underlying this argument is the idea that by apologising, offenders can help victims recover from their injuries and rebuild their trust in the world. Nonetheless, the article concluded that the dominant legal vision obstructs the creation of punishments that provide both normative vindication and therapeutic healing.
