Suppose someone causes grievous injury or harm to someone but the victim and accused later on reconcile voluntarily. Can the accused still be prosecuted for the act? Specifically in jurisdictions where states can take cognizance of an offence without a complaint, like in Malaysia, Singapore or India/Pakistan/Bangladesh? If yes then are there exceptions for special classes such as women and children?
Can the conduct of a victim after the act has occured have any bearing on the guilt of the accused?
9That would actually be BAD, though. If victims can withdraw charges, then far-and-way the best play for the accused is to pressure the victim into doing so. So the victim gets re-victimized and re-victimized. Their wife and children disappear for instance, now what do you tell the police? That there was a kidnapping also (and body parts start showing up in the mail)? Or that you recant about the orignal crime (and then family reappears shaken but unharmed)? This would become routine.– Harper - Reinstate MonicaMar 30 at 20:40
While not necessarily applying to great bodily harm cases, there are other types (many sexual offenses for example) where a victim's post-report behavior could cast serious doubt on their credibility. And not necessarily just reconciling with a purported offender.– SoronelHaetirMar 30 at 20:48
2"Specifically in jurisdictions where states can take cognizance of an offence without a complaint". That's pretty much every country in the "Greater Anglosphere". Probably Civil Law countries, too.– RonJohnMar 30 at 22:00
IIRC, something like that was possible in Japan, where the accussed could get off lightly by paying off some kind of indemnity to the victim. But I am recalling about something I read in the general press a long time ago, so I could be wrong; just commenting in case it rings a bell for someone more knowledgeable to write a proper answer.– SJuan76Mar 30 at 23:03
@Harper-ReinstateMonica That's actually exactly the problem the Swiss lawmakers tried to prevent when they updated the corresponding articles a few years back. See my answer.– PMFMar 31 at 7:12
No. Reconciliation between victim and attacker has no bearing on the guilt of the attacker.
It may have a bearing on the decision to prosecute: A victim can be forced to testify, but they may well not make a very convincing witness if they are. Also, in past times (when the police were the prosecutors for most crimes), they often had a "least said, soonest mended" approach to domestic violence.
It may also have a bearing on the sentence.
Note: England and Wales is a jurisdiction where prosecutions can occur without a complaint (in general).
2While that is (I assume) formally true, the after-the-fact behavior may be part of the information that goes into the fact finding: What actually happened in the act? Let's assume somebody damaged a car and the owner claims it was totaled, but then actually went on an extended road trip with that very car after the fact: It cannot have been totaled. Similar, but more contentious are assault allegations where the victim after the fact continues to be friendly with the attacker. Ergo true: The guilt for any given act is defined by law -- but what was the act? Mar 30 at 23:21
The question title asks whether behavior affects verdict, while the body asks whether a person can be convicted, so starting with just "no" is ambiguous. Mar 31 at 5:46
@Peter-ReinstateMonica "totaled" just means that the estimated cost of repairs to get a car to a point where it can be legally driven exceeds the value it would have after the repairs. It doesn't mean that it isn't drivable (although if someone did drive a totaled car, then they would be breaking the law, in that they are driving a vehicle that isn't road-legal). Mar 31 at 5:50
2I always understood "totalled" or "written off" to mean that the insurer determined the cost of paying for repairing the vehicle back to it's condition before the accident/crime to be greater than the value of the car. That doesn't always mean the car is illegal and/or unsafe to drive, an old car with little value can sometimes be written off by even relatively minor damage. Mar 31 at 16:37
1@Acccumulation "Totaled" just means that the "cost of repair" exceeds the value of the vehicle, not "cost of repair to a road-worthy condition". Mar 31 at 18:44
German criminal code explicitly states in §46 StGb that
the offender’s conduct in the period following the offence, in particular efforts to make restitution for the harm caused as well as efforts at reconciliation with the victim.
is one of the circumstances that needs to be considered when fixing the penalty. So while the offender will still be prosecuted, the penalty will typically be less harsh if the offender actively makes amends.
For smaller offenses, courts will often suggest a mediated reconciliation between offender and victim (which the victim does not have to accept), which may even lead to no prosecution or no penalty at all (§46a StGb)
More information about victim–offender mediation is provided by the Federal department of Justice, unfortunately, that link is in German and I wasn't able to find an English version.
1I believe that they are some crimes in the German criminal code that can only be prosecuted with the victim's consent although I don't recall the name of that category of crimes or which crimes are in it. All of this needs to be considered in light of the background rule, however, that German prosecutors as a default, must prosecute every crime of which they have knowledge subject to some caveats, the reverse of the common law rule. Mar 30 at 22:09
Note that this is based on actions by the guilty party towards the victim, NOT actions by the victim towards the guilty party. If the criminal threatens to kill the victim's children unless victim gives a statement saying what a swell guy the criminal is, that's not going to make any sensible court act more leniently towards the criminal.– jwentingMar 31 at 7:04
3@ohwilleke You are correct. They are called "absolute Antragsdelikte" and include things like trespass or libel. In these cases, the victim has to request the criminal charge. There are also "relative Antragsdelikte" where this requirement can be waived in case of a special public interest. (en.wikipedia.org/wiki/Antragsdelikt).– xyldkeMar 31 at 7:44
To re-iterate jwenting's comment: this does not answer the question. It only addresses actions by the guilty party, not the victim. Mar 31 at 7:48
In Switzerland, and as far as I know in most civil law systems, there's the distinction between crimes that are prosecuted "ex officio" (by office) and those that are only prosecuted on complaint. For bodily injury (Criminal Code, Art 123), it depends on the actual crime commited (namely whether the crime was commited using some kind of weapon) and to whom the crime was commited (e.g. violence against one's own spouse or children is always prosecuted).
Art 55a gives some reasons for suspending a proceeding against family members, but these are mostly exceptional, like if the judge deems that this is better for the family.
So generally speaking, the prosecution cannot normally be suspended particularly if the victim is a close relative. This is to prevent that victims of family violence would not complain for fear of more violence. Also, victims might otherwise be forced to take back their complaints by the offender, as they threat them also with more violence.
united-states and other common law countries.
Suppose someone causes grievous injury or harm to someone but the victim and accused later on reconcile voluntarily. Can the accused still be prosecuted for the act?
Specifically in jurisdictions where states can take cognizance of an offence without a complaint, like in Malaysia, Singapore or India/Pakistan/Bangladesh? If yes then are there exceptions for special classes such as women and children?
There are some countries, generally in civil law countries, where select offenses can be brought in the first place only with the victim's consent (although I don't know that once a charge is brought that a victim has the unilateral right to withdraw charges). I believe that Germany is one of them. This comes against the backdrop that while in common laws, prosecutors have vast discretion to decision what charges to bring against whom in an unprincipled manner, in most civil law countries, prosecutors have a duty to prosecute every substantiated crime that they believe they can obtain convictions for subject only to the limits of their office's personnel and economic resources which may require prioritization (often on a principled basis only) of different possible criminal cases to bring. Requiring victim consent, or allowing a victim veto of the bringing of criminal charges in that case serves a role similar to that of prosecutorial discretion in common law legal systems.
Similarly, in Germany, like many other civil law countries, there are circumstances much broader than in common law countries, where victims can refuse to testify or cooperate in a criminal case. See, e.g., STPO § 52 (Right to Refuse Testimony on Personal Grounds) and there are provisions for perpetrator-victim mediation which have also been tried in common law countries but give the victim more authority in civil law countries than they do in common law countries.
U.S. legal scholars and courts have soundly criticized this approach in many circumstances, even though so called "restorative justice" programs have their place and are used in some circumstances. See, e.g., Albert W. Alschuler, "Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases" 99(8) Harvard Law Review 1808-1859 (June 1986). See also, e.g., People v. Justice, 2023 CO 9. The law review article's open paragraphs are quite famous and often quoted in legal scholarship:
At about 2:30 p.m. on January 26, 1981, in a subway station in Manhattan, three youths attacked a man who was carrying electronics equipment worth between $8oo and $1ooo. The victim attempted to escape by running up a stairway, but his attackers pursued him. They caught their victim, beat him, and shoved him into a plate glass window. Although the window did not break, a door handle hit the man in the chest, tearing some tissue and cartilage and causing considerable pain. The youths continued their beating until a police officer arrived. Then two of them fled. The third failed to notice the arrival of the officer and was apprehended while beating the victim.
Although only sixteen, the arrested youth was wise in the ways of the criminal justice system. He claimed that the man with the electronics equipment had attacked him and thereby provoked the incident. Because both the attacker and the victim had filed complaints, the victim soon received written notice of an informal hearing at which he could mediate his dispute with the mugger. The victim declined the opportunity.
The youth was ultimately punished for his crime. Although he failed to appear in court on the return date specified in the summons, it was not long before he was arrested for a similar crime in Brooklyn. The two cases were consolidated, and after the defendant pleaded guilty to reduced charges, he served six months in jail. He later received a three-to-nine year penitentiary sentence for additional robberies committed after his release. At last word, he was still in prison. The victim of the mugging, however, was never told what had happened to his attacker. He thought that the case had ended when he declined the offer of mediation.
The victim decided that he needed a gun, and his gun became famous. The victim's name was Bernhard Goetz.
But, in countries with a common law history, like Singapore, India, Pakistan and Bangladesh (I'm simply not familiar with Malaysian law one way or the other), the public prosecutor can bring any criminal charge without the consent or input of the victim or the victim's next of kin. And, the victim can't force someone to withdraw a prosecution.
In a handful of U.S. states and some other common law countries, a private individual can commence a criminal case without approval from a public prosecutor, but even then, the public prosecutor has the authority to take over the case from the private prosecutor.
This said, prosecutors are not insensitive to the needs and wishes of crime victims, whom they often see as their de facto clients most of the time, and many U.S. states expressly require that victims have a voice in the way that prosecutors handle cases involving them (although not decision-making power) in what is often called "victim's rights" legislation.
A prosecutor will often take a victim's request to drop charges seriously, even though the prosecutor isn't require to honor a reconciled victim's request to drop charges. And, as a practical matter, it is frequently difficult or impossible to prosecute many kinds of criminal charges without the willing cooperation of the victim.
On the other hand, it isn't unheard of in the United States for the prosecutor to issue a subpoena forcing a victim to testify involuntarily in a criminal prosecution, enforceable by fining or incarcerating the victim for failing to do so. While this power can, in theory, be used in a variety of cases, in practice, it is done most often in cases involve statutory rape, incest, child abuse or neglect, or domestic violence.
Prosecutors press forward in these cases over a victim's objections because they know that there is often a pattern of criminal conduct by the defendant followed by repeated cycles of reconciliation, that future harm is inevitable even if the victim denies it, and that the victim's free will can be overcome by undue influence and by economic dependence, love, and family loyalty. Basically, sometimes a prosecutor decides that the defendant's conduct is so bad that society must punish it as a message to others and out of righteousness, and that future violations are inevitable and need to be prevented.
This cases are very frustrating for lawyers (as I can attest as a private lawyer who has dealt with similar situations in family law and protective order cases). The lawyers can see the perpetrator's lies and certainty of repeating the misconduct, but the victim is blinded by hope and other complicated emotions.
Another situation where this comes up is in fraud cases, where the victims care about compensation for themselves which can be impaired if the perpetrator is incarcerated and they want to bring civil lawsuits instead. But, the prosecutor may be more concerned that if the defendant isn't convicted of a crime that the perpetrator will be more likely harm new victims in the future with similar conduct. These cases are far less fraught emotionally and simply involve the conflict of interest that fraud victims have between their own economic restitution and protecting the public that is frequently obvious to everyone involved.
In what US state(s) is private clinal prosecution allowed? Mar 30 at 23:39
1@jmoreno Massachusetts is one of them. I don't have a full list at hand, but they are all Eastern states. Mar 30 at 23:41
I asked because I have been wondering if private prosecution could aid in reducing police misconduct. Mar 30 at 23:43
@jmoreno That's a complicated issue beyond the scope of this question. Ask another question about it if you want, although it is quite involved and obscure to answer and there is a fair amount of well intentioned misinformation on the process on the net. There are at least one or two other questions on this site that address private prosecutions. Mar 30 at 23:45
1Didn’t mean to imply I wanted you (or anyone else) to address my wondering thoughts, mainly said it to make sure it was understood to NOT BE an expression of disbelief or an attack, it gives me something to look into and is therefore helpful. Thanks. Mar 30 at 23:50