Victim Impact: How Does Harm to Victims and Their Sentiments Affect Sentencing in Japanese Criminal Justice?

The aftermath of a crime invariably leaves victims and their families grappling with a spectrum of consequences, from tangible losses to profound emotional trauma. Modern criminal justice systems worldwide are increasingly acknowledging the imperative to consider these impacts when determining appropriate sentences for offenders. In Japan, "victim-side circumstances" (被害者側の事情, higaisha-gawa no jijō) constitute a significant category of factors that courts scrutinize during sentencing. This article explores how the harm experienced by victims, their expressed sentiments, and efforts towards reconciliation and reparation influence sentencing outcomes within the Japanese legal framework.

I. The Evolving Recognition of Victims in Sentencing

There has been a notable evolution in Japanese criminal justice towards greater sensitivity and responsiveness to the plight of victims. While the primary focus of a criminal trial remains the determination of the defendant's guilt and responsibility for the charged offense, the impact of that offense on the victim is no longer a peripheral concern. This recognition is manifested not only in judicial practice but also through legislative reforms designed to enhance victim participation and ensure their voices are heard.

II. The Nature and Extent of Harm to Victims

The most direct way victim impact influences sentencing is through the assessment of the harm caused by the crime. This is a fundamental component in gauging the overall gravity of the offense.

A. Direct Harm as a Core Sentencing Factor:
The severity of physical injuries, the extent of financial losses, and other direct, tangible consequences stemming from the criminal act are primary considerations in sentencing. These elements are integral to determining the "act responsibility" (kōi-sekinin) of the offender. For example, a violent assault resulting in permanent disability will naturally be viewed as more serious—and thus warrant a more severe potential sentence—than one causing minor, temporary injuries.

B. Psychological and Emotional Harm (Seishinteki Damēji / 精神的ダメージ):
Beyond physical or financial injury, Japanese courts increasingly recognize the profound psychological and emotional trauma that crimes, particularly violent or personal ones, can inflict on victims and their families. This includes conditions such as Post-Traumatic Stress Disorder (PTSD), persistent fear, anxiety, and deep grief in cases of homicide. Such psychological harm is considered a serious consequence of the crime and can serve as an aggravating factor in sentencing, reflecting a broader understanding of the "result" of the offense. However, in homicide cases, while the immense suffering of bereaved family members is acknowledged, the deceased victim's own presumed feelings of regret or anguish (munen sa) are generally considered to be encompassed within the ultimate gravity of the loss of life itself, rather than as a distinct, additional sentencing factor.

III. Victim Sentiments (Higai Kanjō / 被害感情)

A more complex area involves the consideration of victims' expressed feelings and opinions, particularly those relating to the punishment of the offender.

A. Distinguishing Types of Victim Sentiments:
It's useful to distinguish between:

1. Mental and Emotional Suffering: As discussed above, this is the direct psychological impact of the crime on the victim.
2. Desire for Punishment and Sentencing Opinions (処罰感情・科刑意見, shobatsu kanjō/kakei iken): This refers to the victim's expressed wishes or opinions regarding the type and severity of punishment they believe the offender should receive.

B. Consideration of Victims' Punitive Sentiments:
Japanese law, through provisions such as Article 292-2 of the Code of Criminal Procedure (relating to victim participation), allows victims or their representatives to formally express their feelings and opinions in court, including their views on sentencing. This ensures their perspective is officially placed before the decision-makers.

However, the weight given to these punitive sentiments is carefully calibrated due to several inherent challenges:

• Subjectivity and Variability: The intensity and nature of expressed desires for punishment can differ significantly among victims, even for similar crimes. Some may seek the harshest possible penalty, while others might prioritize an apology, restitution, or the offender’s rehabilitation. Relying too heavily on these subjective expressions could lead to unwarranted sentencing disparities.
• Concerns about Fairness and Proportionality: If the severity of a sentence were to fluctuate dramatically based solely on how vociferously a victim demands punishment, it could undermine the principle that punishment should primarily be proportionate to the offender's culpability for the act. Questions also arise in cases where victims are deceased and have no family to speak, or where survivors choose not to express strong punitive feelings; fairness dictates that an offender's sentence should not be drastically reduced solely due to such circumstances.
• The Public Nature of Criminal Justice: While victim input is vital, criminal punishment fundamentally serves public interests—such as maintaining order, deterring crime, and upholding legal norms—rather than being solely a mechanism for private retribution.

Judicial Approach to Punitive Sentiments:
Courts in Japan generally treat victims' specific opinions on the sentence as one piece of information among many to be considered during sentencing. These opinions are not binding directives. Often, the judicial focus is less on the raw desire for a particular punishment and more on understanding the underlying reasons for the victim's feelings—that is, how the crime has specifically impacted their life, safety, and well-being. Furthermore, if the objective gravity of the crime (including its harm and the offender's culpability) has already been fully assessed and accounted for, the victim's expression of a desire for harsh punishment may not independently add significant weight, as it might be seen as a natural reflection of the harm already considered.

IV. Victim Forgiveness (Yūjo / 宥恕) and Consolation of Feelings (Kanjō no Yūwa / 感情の宥和)

Conversely, when a victim expresses forgiveness towards the offender, or when their feelings of anger and suffering have been significantly assuaged, this can be a powerful mitigating factor in sentencing.

The rationale for considering forgiveness or the consolation of victim feelings as mitigating includes:

• Restorative Impact: It signifies a degree of healing and a step towards repairing the relational harm caused by the crime.
• Reduced Need for Societal Retribution (from some perspectives): If the individual most directly harmed has found a path to forgiveness, the societal impetus for severe retribution may be perceived as somewhat lessened.
• Reflection of Offender's Positive Actions: Often, victim forgiveness or eased sentiments are linked to sincere apologies, restitution efforts, or other positive post-offense conduct by the defendant, which in themselves indicate remorse and a potential for rehabilitation.
• Criminal Policy Encouragement: From a broader criminal policy standpoint, fostering conditions where offenders are encouraged to seek reconciliation and make genuine amends with their victims is generally viewed as a positive societal goal.

However, even with victim forgiveness, the court must still impose a sentence that reflects the objective seriousness of the crime and the public interest. As noted in a Chiba District Court decision from July 16, Heisei 22, concerning a case of causing death through injury to a spouse, while the wishes of bereaved family members for leniency are considered, the court stated that determining a sentence solely based on the family's wishes would be unfair, and such wishes cannot be overemphasized.

V. Victim Restitution, Compensation (Higai Kaifuku / Songai Baishō), and Settlements (Jidan / 示談)

Tangible efforts by the defendant to make reparation for the harm caused are consistently viewed as highly significant mitigating circumstances in Japanese sentencing.

A. Rationale for Mitigation:

1. Reduction of Actual Harm: Restitution directly addresses and alleviates the material consequences of the crime for the victim, such as medical expenses or property loss.
2. Evidence of Remorse and Acceptance of Responsibility: Making serious efforts to compensate the victim is often considered a strong indicator of the offender's acknowledgment of wrongdoing and their willingness to accept accountability.
3. Promotion of Victim Recovery: Financial compensation can facilitate the victim's physical, emotional, and practical recovery from the crime.
4. Facilitation of Settlements (Jidan): When an offender and victim reach a formal settlement agreement (jidan), which often includes compensation and an apology, this demonstrates a resolution of the civil aspect of the harm and can strongly influence sentencing.

B. Nuances Based on Crime Type:
The impact of restitution can be viewed differently depending on the nature of the crime:

• Property Crimes: In offenses like theft or embezzlement, full restitution can substantially restore the victim to their pre-crime financial position, effectively negating much of the material harm. This can significantly reduce the perceived need for severe punishment.
• Violent Crimes (e.g., Homicide, Sexual Assault, Serious Bodily Injury): In these cases, monetary compensation, no matter how substantial, cannot undo the primary, often irreparable, harm (e.g., loss of life, severe physical disability, profound psychological trauma). Nevertheless, victim compensation is still considered an important mitigating factor. It is seen as an expression of the offender's atonement, a gesture of responsibility, and a means of providing some support to the victim or their family, even if it cannot erase the core injury. This is often considered from a victim support policy perspective as well as an indicator of the defendant's remorse.

C. Source of Compensation Funds:
The source of the compensation can also be relevant. If the compensation is paid by the defendant themself or through their direct efforts (e.g., by their immediate family acting on their behalf), it more strongly reflects their personal commitment to making amends. Judicial research materials suggest that even compensation paid by an offender's affiliated organization (e.g., a company in a work-related incident, or even an organized crime group in some specific contexts) might be considered somewhat favorably, as it still contributes to the victim's recovery.
Conversely, compensation received by the victim through their own insurance policies or from public victim compensation schemes generally does not mitigate the offender's sentence. This is because such payments do not reflect any effort or sacrifice on the part of the offender, nor do they reduce the offender's ultimate civil liability (as insurers may acquire subrogation rights).

VI. The Victim Participation System (被害者参加制度, Higaisha Sanka Seido)

Recent reforms in Japanese criminal procedure have established a formal Victim Participation System. This system allows victims of certain serious crimes, or their families, to participate more actively in the criminal trial process. Participants can, for example, be present in court throughout the proceedings, express their views on the evidence, question the defendant (with the court's permission), and, importantly, formally state their opinions regarding the facts of the case and the application of the law, including sentencing. This system provides an institutionalized channel for victims' voices to be directly heard by the court, including the Saiban-in.

VII. Balancing Victim Considerations with Other Sentencing Principles

Ultimately, Japanese courts must undertake a comprehensive balancing act. Victim-related circumstances, including the extent of harm, expressed sentiments, and the status of reconciliation or restitution, are carefully weighed against all other relevant sentencing factors. These include the objective gravity of the offense, the offender's "act responsibility," their prior criminal record, their personal circumstances, their perceived potential for rehabilitation, and the broader societal purposes of punishment, such as general deterrence. The aim is to arrive at a sentence that is perceived as just and appropriate from multiple perspectives—that of the victim, the offender, and society as a whole.

VIII. Conclusion

The Japanese criminal justice system has made significant strides in recognizing and integrating the impact of crime on victims into its sentencing deliberations. The tangible harm suffered, the emotional and psychological trauma, and the expressed sentiments of victims are all factors that can influence the court's decision. Efforts by offenders to acknowledge their wrongdoing, apologize sincerely, and make meaningful restitution are particularly valued as strong mitigating circumstances, reflecting both remorse and a commitment to repairing harm.

This evolving approach signifies a justice system that is increasingly attuned to the human cost of crime and the importance of a victim-sensitive response. While navigating the complexities of subjective victim feelings alongside objective legal principles remains a delicate task, the overarching goal is to ensure that sentencing is not only fair and proportionate to the offender's culpability but also duly considerate of the profound impact on those most directly affected by the crime.