¹ Dubber, Markus D., Victims in the War on Crime: The Use and Abuse of Victims' Rights (2002)Google Scholar; Fletcher, George P., with Justice for some: Protecting Victims' Rights in Criminal Trials (1995)Google Scholar; Roach, Kent, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (2d ed. 2010)Google Scholar.

² Goodey, Jo, Victims and Victimology: Research, Policy and Practice (2005)Google Scholar; Spalek, Basia, Crime Victims: Theory, Policy and Practice (2006)CrossRefGoogle Scholar; Cole, Alyson M., The Cult of True Victimhood (2007)Google Scholar; Sandra Walklate: Imagining the Victim of Crime (2007).

³ Simon, Jonathan, Governing Through Crime (2007), esp. ch. 3Google Scholar.

⁴ Horovitz, Anat & Weigend, Thomas, Human Dignity and Victims' Rights in the German and Israeli Criminal Process, 44 Isr. L. Rev. 263 (2011)CrossRefGoogle Scholar.

⁵ Doerner, William G. & Lab, Steven P., Victimology 380 ff. (4th ed. 2005)Google Scholar.

⁶ Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, ¶ 4, U.N. Doc A/RES/40/34 (Nov. 29, 1985); Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power art. 3(4), Nov. 14, 2006, available at http://www.tilburguniversity.edu/research/institutes-and-research-groups/intervict/undeclaiation/convention.pdf. Art. 4 of the Declaration and art. 3(4) of the Draft Convention refer to the victim's right to dignity.

⁷ X and Y v. the Netherlands, 91 Eur. Ct. H.R. (ser. A) at 11 (1985).

⁸ The emphasis was thus on the special part of the criminal law. For the relevance of victim issues to the general part, see Sebba, Leslie, Victims' Rights and Legal Strategies: Israel as a Case Study, 11 Crim. L. F. 47, 62 ff. (2000)Google Scholar. For an updated Hebrew version of this article, see Sebba, Leslie & Gal, Tali, Rights of Persons Harmed by Offences in Israel, in 2 Shamgar Book 157, 165 (Barak, Aharon et al. eds., 2003) (in Hebrew)Google Scholar.

⁹ Cf. Roach, Kent, The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control, 44 Isr. L. Rev. 91 (2011)Google Scholar, for reference to the dual character of human dignity and its use to both support and restrain criminal offenses.

¹⁰ While Hömle and Kremnitzer find that humiliation is the key to such justification, Kleinig expresses a preference for degradation as a criterion. The question as to the circumstances in which the infliction of an indignity gives rise to a state of victimhood is the subject of much debate in the feminist literature, where there is ambivalence as to whether expansion of its ambit is empowering or disempowering.

¹¹ See generally Dubber, supra note 1, ch. 5.

¹² But cf. the modified title of the revised version: “Human Dignity and Victims' Rights in the German and Israeli Criminal Process.”

¹³ Doerner & Lab, supra note 5.

¹⁴ Horovitz & Weigend, supra note 4, at n. 117 and accompanying text.

¹⁵ Id.

¹⁶ See Simon, supra note 3, at 76. By contrast, Simon's paradigmatic victims, who are at the heart of contemporary penal legislation, are “primarily white, suburban, middle-class victims,” but his focus is on punitive measures such as “three strikes” laws rather than the creation of new offenses.

¹⁷ It is interesting to note that mainstream victim advocacy groups have not laid emphasis on the promotion of this type of legislation but have preferred to focus on procedural issues. See Sebba, Leslie, Victim-Driven Criminalisation? Some Recent Trends in the Expansion of Criminalisation, in Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law 59 (McSherry, Bernadette et al. eds., 2008)Google Scholar.

¹⁸ Rights of Persons Harmed by Crime Law, 5762-2001, SH No. 1782 p. 183.

¹⁹ See the explanatory notes to paras. 1 & 7 of the Draft Bill on Rights ofPersons Harmed by Crime (No. 2978), 2001, HH 506. Indeed, most of these rights are restricted to victims of “serious sex and violence offenses.” Id. (emphasis added). However, the connection between the seriousness of the offense and the nature of the right is not self-evident.

²⁰ This topic may in turn be linked both to the question of the definition of the victim, a question considered by Horovitz and Weigend in somewhat formalistic terms (in the context of entitlement to procedural rights), and to the broader issue of the social construction of victimhood referred to above.

²¹ Indeed, such a message may even take the form of renaming a sub-category of an existing offense, such as “domestic violence.” See Sebba, supra note 17.

²² This theme seems to have been de-emphasized in the final version of the article, where they refer to the victim's “active participation.” See Horovitz & Weigend, supra note 4, at sections IV.E & V.C.

²³ Id. especially at section IV.F.

²⁴ Id. at section IV.D.1.

²⁵ Id. at sections IV.F & VI.

²⁶ It should be recalled, however, that the British Mandate of Palestine was the successor to the Ottoman Empire, which incorporated European inquisitorial characteristics, including the victim as a civil party. See Sebba, supra note 8.

²⁷ The authors refer to the latter as an “impact statement,” which would not be a problem except that the term “victim impact statement” has been popularly applied in Israel (at least in academic circles) in relation to the professional reports. This instrument was adopted by way of Amendment no. 18 to the Criminal Procedure Law, 5755-1995, 1511 LSI 152 (1994-1995), a few years before the passage of the Rights of Persons Harmed by Crime Law, in which the second instrument (the victim declaration) is found.

²⁸ In the German system, “[a]cting as a subsidiary prosecutor is probably the only effective option.” Horovitz & Weigend, supra note 4, at text following n. 175.

²⁹ For Horovitz and Weigend's references to this interesting debate, see Id. at n. 190.

³⁰ See id. at section IV.E.2 (text accompanying nn. 180-81).

³¹ Id. at section IV.F (text accompanying n. 188).

³² As measured by prison population relative to the number of inhabitants, Israel is more than three times as punitive as Germany, and this is only partly accounted for by the large number of security prisoners in Israel's prisons. See Walmsley, Roy, World Prison Population List (8th ed., 2009), available at http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th41.pdf.Google Scholar I am not arguing that victim participation in sentencing necessarily leads to punitive policies (see below) but that the two phenomena result from the same types of social and political pressure. On the relationship between punitiveness and the nature of the political economy, see Cavadino, Michael & Dignan, James, Penal Systems: A Comparative Approach (2006)Google Scholar.

³³ The uncertainty derives from the fact that the point was presented not as a part of the authors' views on victims' rights but as an explanation as to why the victim has been reincorporated into the system.

³⁴ The authors note that the Israeli courts have held that in those cases in which victims have the right to express their views on a plea bargain, prosecutors are obligated to take the victim's position into account. Horovitz & Weigend, supra note 4, at section IV.E.1 (text following n. 160).

³⁵ It will be recalled that the authors also contrast “active rights” with “passive rights,” a term that refers to “their protection from undue invasions of their privacy and risks to their personal safety.” Id. at section IV.F, first para.

³⁶ See supra note 18. Cf. supra note 27, and accompanying text.

³⁷ Rights of Persons Harmed by Crime Law, supra note 18, §§ 16-20. Horovitz and Weigend note that a Supreme Court ruling provides for this option as part of a “victim's declaration”—a procedure that is not confined to victims of sexual or violent offenses.

³⁸ It was consequently observed by Marvin Wolfgang that the decline of the rehabilitation model and the contemporaneous enhancement of the victim role might be perceived as a move from the individualization of the offender to the individualization of the victim. See Erez, Edna & Sebba, Leslie, From Individualization of the Offender to Individualization of the Victim, 8 Advances in Crim. Theory 171 (1999)Google Scholar. In a system in which the death penalty may still be imposed, the potential significance of victim input at the sentencing stage may be enormous. See Sebba, Leslie, Sentencing and the Victim: The Aftermath of Payne, 3 Int. Rev. of Victimology 141 (1994)CrossRefGoogle Scholar.

³⁹ Cf. supra note 32.

⁴⁰ Wemmers, Jo-Anne & Cyr, Katie, Victims' Perspectives on Restorative Justice: How Much Involvement Are Victims Looking For?, 11 Int. Rev. of Victimology 259 (2004)CrossRefGoogle Scholar.

⁴¹ Id. at 270. In a similar vein, it may be noted that many studies show that victims, when involved in the system, are not necessarily punitive. For a review of the evidence, see Sebba, Leslie, Third Parties: Victims and the Criminal Justice System 115–19 (1996)Google Scholar and, more recently, Doak, Jonathan, Victims' Rights, Human Rights and Criminal Justice 151–55 (2008)Google Scholar.

⁴² Contra von Hirsch, Andrew, Doing Justice: The Choice of Punishments 80 (1976)Google Scholar (arguing that the degree of harm that should form the basis of the sentencing equation is that typically caused by the offense in question rather than the harm actually inflicted).

⁴³ Cf. supra note 38, and the sources cited therein.

⁴⁴ See Structuring Judicial Discretion in Sentencing Bill (No. 246), 2006, HH 509 [hereinafter Sentencing Bill]. Apart from provisions related to the nature and circumstances of the harm inflicted, the only victim-related provision specified in the bill is one that would take into account the defendant's efforts to repair the harm inflicted by the offense. Id. § 40F(d). However, the bill includes a general provision whereby the court will be empowered to take into account additional circumstances, both aggravating and mitigating.

⁴⁵ Although the Sentencing Bill refers to the determination of “the appropriate sentence” for any offense, the formulation currently proposed by the Constitution, Legislation, and Law Committee of the Knesset indicates that an appropriate range of sentences will be identified—whether by the court or the sentencing guidelines committee. For a similar attempt to incorporate victim influences in a desert framework, see the proposal of Fenwick cited in DOAK, supra note 41, at 155.

⁴⁶ Duff, R.A., Punishment, Retribution and Communication, in Principled Sentencing 126 (Ashworth, Andrew, von Hirsch, Andrew & Roberts, Julian eds., ^3d ed., 2009)Google Scholar.

⁴⁷ Roberts, Julian V. & Erez, Edna, Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements, 10 Int. Rev. of Victimology 223, 227–28 (2004)CrossRefGoogle Scholar.

⁴⁸ Id.

⁴⁹ DOAK, supra note 41, at 119. Much of Doak's book constitutes an attempt to identify solutions consistent with this principle at the various stages of the system including, as noted above, at sentencing. A more schematic proposal for a victim participation model was delineated a few years ago by Beloof but arguably departed too radically from the traditional due process model. See Beloof, Douglas Evan, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev 289Google Scholar. But see Goodey, supra note 2, at 180 (arguing that “to position defendants' rights in opposition to victims' rights is to misrepresent new avenues for criminal justice development”).

⁵⁰ For reference to this movement, see Horovitz & Weigend, supra note 4, at n. 7.

⁵¹ A persuasive case for a victim-oriented criminal justice model based upon restorative justice can be found in Roach, Kent, Four Models of the Criminal Process, 89 J. Crim. L. & Criminology 671 (1999)CrossRefGoogle Scholar. Roach believes that the integration of the victim in the prevailing adversary system will enhance punitiveness.

⁵² See Braithwaite, John & Pettit, Philip, Not Just Deserts: A Republican Theory of Criminal Justice (1990)Google Scholar.

⁵³ See, e.g., Restorative Justice & Criminal Justice: Competing or Reconcilable Paradigms? (von Hirsch, Andrew et al. eds., 2003)Google Scholar; Walgrave, Lode, Restorative Justice, Self-Interest and Responsible Citizenship (2008)Google Scholar.

⁵⁴ See, e.g., Strang, Heather, Repair or Revenge: Victims and Restorative Justice (2002)Google Scholar.

⁵⁵ See generally Sebba, supra note 41.

⁵⁶ Horovitz & Weigend, supra note 4, at 284-85. Cf. the discussion in Sebba, supra note 41, at ch. 9.

⁵⁷ It was once proposed by this writer that a special procedure be added at the end of the trial to ensure that the victim has “his (or her) day in court.” See Sebba, supra note 38.

⁵⁸ For a discussion of “functional alternatives,” see section I.