The government's proposed Victims' Compensation Scheme seems to a victory of politics over principle and purpose. What's it meant to achieve? And if we all think victim compensation is such a decent idea, why don't we pay for it?
At first glance, the government's proposed Victims' Compensation Scheme, now widely being called a crime tax, is like a mother's love. How could you be against it? It's a policy idea that seems to satisfy the much-cherished New Zealand instincts of commonsense and compassion for the most disadvantaged. But the more I think about it, the more thorny questions occur.
National said last week that every offender convicted in court would be fined $50, acting on its campaign promise. The fines would be collected in the same manner as court costs and reparations and a new victims' service centre within the Ministry of Justice would make one-off payment to the victims of "serious crimes". Justice minister Simon Power estimated about $5 million a year would be paid out to help with, for example, travel costs or loss of income.
It sounds simple, but trying to figure out the specifics of the scheme soon has you running round in circles and crashing into complications. What is defined as a 'serious crime'? Does a murder victim's family get more than a manslaughter victim's? What value do you put on rape, compared to, say, kidnapping? If a jury knows that a victim's financial future depends on a guilty verdict, doesn't that put more pressure on them? How is a government opposed to growing the public sector going to administer the scheme and collect the fines? Won't already stretched courts get clogged with fine defaulters?
And they were just the questions off the top of my head. The Hand Mirror points out:
if a man is convicted of domestic violence and has to pay an additional $50 in crime tax, his wife/partner/kids end up sharing the added financial burden. They end up being victimised twice.
Nelson lawyer Mark Dollimore argues in a Stuff story that the cost of collecting the debt could end up exceeding the $50 to be collected, while a sensible police area commander points out that courts can already order offenders to compensate victims, not just for financial loss, but also for "emotional harm" (and "victims" can include immediate family members). So what does the crime tax add?
But that's only the beginning of the devilish detail. After I read the Law Commission's report, Compensating Crime Victims, written in October, I was left with even more questions. The commission took a pretty thorough look at the issue on the prompting of the Justice and Electoral select committee and its 2007 report on the issue.
The state first stepped in to assist victims of crime in 1963, but the Criminal Injuries Compensation Act of that year was soon absorbed when ACC was created in 1974. Since 1985, criminal courts have been able to order offenders to pay reparation to victims, and since the Sentencing Act of 2002, judges have been required to impose a sentence of reparation unless it would "result in undue hardship for the offender or the dependents of the offender, or any other special circumstances would make it inappropriate".
The trend has certainly been towards more and more financial compensation for victims, yet as the report says the law changes have "been introduced in a piecemeal fashion without much regard to any underlying principles". And while at first blush a bit of money to help victims through tough times might seem the least that could be done, finding those supporting principles is harder than you might think.
The report reasonably dismisses social contract theory as a justification for a crime tax. You just can't blame the state for every crime, if for no other reason than it would mean a government has to completely eradicate crime to uphold its end of the social contract. To achieve that, the government would have to become a tyranny.
It also says "social utility" does not justify such a scheme. The ACC system, for example, was created because there was a public good in getting people rehabilitated and back to work. It was in everyone's best interests. In contrast, the Law Commission argues that a crime tax has no social utility because it only benefits individual victims, not the community as a whole. I'm not convinced. A community is made up of individuals and it benefits when those individuals are treated with compassion and fairness. If those who suffer through no fault of their own are compensated, and if we all live with the reassurance that if we were ever to meet tragedy in our own lives we would get some support, aren't we all better off?
However this point raises perhaps the core problem with the lack of principle behind the government's proposed scheme. You don't have to be a crime victim to suffer undeserved tragedy. We don't offer financial support to those who lose their jobs because of cancer, for example and we don't pay travel costs to those who have to repeatedly visit a hospital for chemo. So why should crime victims get special treatment?
As the report puts it:
The difficulty is that there are many victims of other misfortunes who are also deserving of society’s recognition and compassion: people whose uninsured houses are damaged by flood; parents whose children suffer cancer; and so on. if more than the usual welfare entitlements are provided to crime victims, why are these other victims precluded? and where should we draw the line? should there be additional entitlements for all crime victims or only some? These are difficult questions, and the answers to them are bound to produce illogical and anomalous distinctions.
The report deals with this issue in the context of "a symbolic expression of the community's concern and sympathy" for victims. That, the commission believes, is the only possible argument for such a scheme, and it's a tenuous one at that.
The fact is that the court already has the power to ensure victims get compensation. According to the Ministry of Justice, $146.5 million in reparation was ordered between 2001 and 2008, and $116.5 was paid. Not perfect, but an 80 percent payment rate is probably about as good as you could expect.
Further, counselling is available for the members of families of murder and manslaughter victims. Travel funds are available to victims of serious crimes so they can attend court hearings, pay for childcare and cover accomodation costs. The problem seems to be that not many people take advantage of these schemes. The government spent only $53,000 was on counselling in 2007/08 and only about $165,000 helping people travel to High Court or parole hearings. That suggests to me that people aren't aware of what they're entitled to.
Given the targeted options that already exist, why introduce a fiddly new fine to punish all and every offender? If we see victim compensation as a way of forcing offenders to pay a price for their crime directly to their victims (rather than simply paying a price of money or liberty to the state), then surely the reparation system does the trick, in principle at least. If in practice the money is not getting through or the fines aren't high enough, or whatever, then simply fix the existing system. Adding another fine to the list is unwieldy and stands utterly at odds with the small government ethos both National and ACT usually espouse.
Alternatively, if National and ACT think the reparation system is flawed, perhaps they should look to some core principles rather than just tacking on another piece of scaffolding to our already makeshift legal system.
If offering financial aid to victims of crimes is something that we as a society support, then perhaps we should follow the ACC example and pay for it out of our taxes. If we see it as a public good, then surely the community at large should shoulder the responsibility of paying for it.