Suggested citation:

Kelly, T. L. (2001). "Survivors of Child Homicide vs. The Criminal Justice System." (Unpublished graduate paper, Portland State University, February 2001). Portland, OR: Author.

Introduction

This paper examines some of the standard criminal justice procedures that occur in the investigation and prosecution of a child homicide, and suggests how a restorative approach to justice may improve cooperation from secondary victims and facilitate their recovery from the trauma of losing a loved one. This examiniation will be limited to the crime scene and the initial investigation and how a restorative approach can be realized there, though there is peripheral reference to the role of traditional criminal justice proceedings for the purpose of making a clear point about the difference a restorative approach makes.

For purposes of this paper, homicide or murder is defined as the "willful (nonnegligent) killing of one human being by another" (Federal Bureau of Investigation, 1997). In addition, a person may be considered a victim regardless of whether the killer is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the killer and the victim. "The term 'victim' also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization" (U.N. Commission on Crime Prevention and Criminal Justice, 1998). This is a look at how to rectify the situation where it ends up as "Survivors of Child Homicide vs. The Criminal Justice System" rather than all parties working together to make killers accountable for their crimes.

A Summary of Standard Procedures

When law enforcement investigators first arrive at the scene of a child homicide, all eyes are on the look-out for the killer. Secondary victims are singled out only for their capacity to reveal the killer among them. "The purpose of crime scene investigation is to help establish what happened (crime scene reconstruction) and to identify the responsible person." (Andrus et al, 1993) In order for investigators to gather the crucial evidence in the first few hours after the initial discovery of a homicide, the considerations of innocent survivors must be of secondary concern. Standards of crime scene investigation rarely call for tending to the needs of secondary victims at the onset. This is not due to negligence as much as it is necessarily in keeping with the integrity of securing and processing a crime scene for the purpose of identifying the killer.

A law enforcement investigator is responsible for "securing the scene," which means in large part "establishing a restricted perimeter." (Byrd, 2000) These restrictions include survivors, and even potential suspects: "Once the scene is secured, the restrictions should include all nonessential personnel." (Byrd). It is easy to see how quickly the victims' perspective is of no consequence to the inital stages of the investigation, and in those critical first few hours after a child is murdered the survivors may perceive "the criminal justice system" - which includes law enforcement - as cold, uncaring, and preoccupied with the criminal.

National guidelines suggest that the emphasis at the scene should be on securing and "controlling" the scene to avoid "contamination" (Technical Working Group, 2000). This puts the emphasis on the physicality of the scene itself (the physical evidence, the body, the terrain. etc.) Although this is critical to finding the killer(s), it puts law enforcement in a frame of mind that the object of law enforcement is to *protect the crime investigation rather than to *protect the victims. This focus is not lost on the victims themselves, who perceive right away that unless they "act" like pieces of evidence they will lose the small amount of control they may have over possibly the most traumatic event of their lives. This results in victims who may not be so cooperative with law enforcement farther down the road to justice.

The Perspective of Survivors

That's not to say that survivors are not interested in catching the killer. They are. But one of the major complaints survivors have about what goes on in those initial few hours of investigation is that they are rendered helpless, useless, and have no control over what is happening. They are often locked out of their homes (if the home is the scene of the crime) and not allowed to see their dead child for days after the body is discovered. Circumstances of the crime and the crime scene determine when and how the first responding officers are able to address victims and their needs. By approaching victims appropriately, officers will gain their trust and cooperation. Victims may then be more willing to provide detailed information about the crime to officers and later to investigators and prosecutors, which, in turn, will lead to the conviction of more criminals.

Sometimes it is assumed that survivors don't want to know the "gory details" of how the murder took place. This is usually not the case - in fact, the opposite is usually the case. Why would a murdered child's family members want to know how their child died? Because if they do not know the exact details, they will carry with them several traumatic scenarios in their mind, instead of one, the right one. When they know exactly what happened, then they can begin to process the grief about that event, and be secure at least in knowing they are processing the correct version of events. It is a way to feel some sense of control over their own grieving process. By taking the restorative approach, it falls in line that since the focus is on healing the harm done, providing family members with the facts as soon as they request them would be part of standard procedure and there would be qualified personnel who can fulfill that request.

Finally, all victims (including children) should be offered the opportunity to submit or update victim impact information during the investigation on the financial, physical, emotional, and psychological effects the crime is having on them, their family members, and friends. This requires that law enforcement make a sincere effort to locate all who will consider themselves victims of the crime.

Restorative Justice

Retributive justice focuses on the rules that have been broken. Restorative justice focuses on the harm that has been done to people, individually and as a community. Restorative Justice recognizes that crime (violation of persons and relationships) is wrong and should not occur and also recognizes that after it does, there are dangers and opportunities. The danger is that the community, victim(s), and/or offender emerge from the response further alienated, more damaged, disrespected, disempowered, feeling less safe and less cooperative with society. The opportunity is that the injustice is recognized, the equity is restored (restitution and grace), and the future is clarified so participants are safer, more respectful, and more empowered and cooperative with each other and society.

Standard crime scene procedure does recognize that the people affected by the crime are important to the investigation. In fact, official guidelines suggest that the *first response a law enforcement officer should have when she reaches the crime scene is to make survivors' well-being the priority. "The safety and physical well-being of officers and other individuals,in and around the crime scene, are the initial responding officer(s') first priority" (Technical Working Group, 2000). The restorative approach would add to this that the survivors' mental well-being is just as much a priority as physical well-being, and that with just a slight shift in focus from *investigation of the criminal to *investigation of harm done, this priority can be realized at the scene.

Conclusion

Losing a child through homicide is one of the most traumatic experiences that an individual can face; it is an event for which no one can adequately prepare, but which results in traumatic emotional pain and upheaval for all concerned. In most crime scene investigation guidelines, immediate secondary victims of a child homicide are said to include surviving family members, and close neighbors and friends of the victim's family. However, when a restorative justice approach is applied to this scenario, secondary victims also include the law enforcement and social service personnel who process the crime scene and handle the case, the killer's family members, and the community at large. The community is affected because the social rules which all abide by in order to feel safe and secure have been violated, threatening the social climate. It is clear that a restorative approach takes in "the ripple effect" of the harm done when a crime has been committed, whereas the traditional criminal justice approach focuses attention on the criminal for the purposes of retribution.

The difference between the standard criminal justice approach and the restorative justice approach is in where the attention is focused: on the crime committed by the criminal, or on the harm done to the victims.

References

Andrus, Rod et al. "Crime Scene Response Guidelines." California Commission on Peace Officer Standards and Training Workbook. The Forensic Telecourse Development Committee, State of California Commission on Peace Officer Standards and Training. May 13, 1993.

Byrd, Mike. "Duty Description for the Crime Scene Investigator." Crime Scene Investigations. Online. Internet. Available: http://www.crime-scene-investigator.net/dutydescription.html. March 2000.

Federal Bureau of Investigation. (1997). Crime in the United States, 1996. Washington, DC: U.S. Department of Justice.

Technical Working Group on Crime Scene Investigation. "Crime Scene Investigation: A Guide for Law Enforcement." Department of Justice Office of Justice Programs. National Institute of Justice. January 2000.

U.N. Commission on Crime Prevention and Criminal Justice. "Victims of Crime." Guide for Policymakers on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Online. Internet. Available: http://www.victimology.nl/onlpub/guide/node5.html. 1998.