criminal-law
Can the conduct of a victim after the act has occured have any bearing on the guilt of the accused?
<p>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?</p>

<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="tag-england-and-wales-tooltip-container">england-and-wales</a></p>
<p>No.  Reconciliation between victim and attacker has no bearing on the guilt of the attacker.</p>
<p>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 &quot;least said, soonest mended&quot; approach to domestic violence.</p>
<p>It may also have a bearing on the sentence.</p>
<p>Note: England and Wales is a jurisdiction where prosecutions can occur without a complaint (in general).</p>

<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" aria-label="show questions tagged &#39;germany&#39;" rel="tag" aria-labelledby="tag-germany-tooltip-container">germany</a></p>
<p>German criminal code explicitly states <a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0250" rel="noreferrer">in §46 StGb</a> that</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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.</p>
<p>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 (<a href="https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0260" rel="noreferrer">§46a StGb</a>)</p>
<p>More information about victim–offender mediation is provided by the <a href="https://www.bmj.de/DE/Themen/OpferschutzUndGewaltpraevention/TaeterOpferAusgleich/TaeterOpferAusgleich_node.html" rel="noreferrer">Federal department of Justice</a>, unfortunately, that link is in German and I wasn't able to find an English version.</p>

<p><a href="/questions/tagged/switzerland" class="post-tag" title="show questions tagged &#39;switzerland&#39;" aria-label="show questions tagged &#39;switzerland&#39;" rel="tag" aria-labelledby="tag-switzerland-tooltip-container">switzerland</a></p>
<p>In Switzerland, and as far as I know in most civil law systems, there's the distinction between crimes that are prosecuted &quot;ex officio&quot; (by office) and those that are only prosecuted on complaint. For bodily injury (<a href="https://www.fedlex.admin.ch/eli/cc/54/757_781_799/en" rel="noreferrer">Criminal Code</a>, 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).</p>
<p>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.</p>
<p>So generally speaking, the prosecution cannot normally be suspended <em>particularly</em> 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.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a> and other common law countries.</p>
<blockquote>
<p>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?</p>
</blockquote>
<p>Yes.</p>
<blockquote>
<p>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?</p>
</blockquote>
<p>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.</p>
<p>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., <a href="https://www.unafei.or.jp/publications/pdf/RS_No70/No70_07VE_Loffelmann2.pdf" rel="noreferrer">STPO § 52</a> (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.</p>
<p>U.S. legal scholars and courts have soundly criticized this approach in many circumstances, even though so called &quot;restorative justice&quot; programs have their place and are used in some circumstances. <em>See, e.g.</em>, Albert W. Alschuler, &quot;<a href="https://www.jstor.org/stable/1341209" rel="noreferrer">Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases</a>&quot; 99(8) Harvard Law Review 1808-1859 (June 1986). <em>See also, e.g., People v. Justice</em>, <a href="https://cl.cobar.org/from-the-courts/people-v-justice/" rel="noreferrer">2023 CO 9</a>. The law review article's open paragraphs are quite famous and often quoted in legal scholarship:</p>
<blockquote>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>The victim decided that he needed a gun, and his gun became famous.
The victim's name was Bernhard Goetz.</p>
</blockquote>
<p>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.</p>
<p>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.</p>
<p>This said, prosecutors are not insensitive to the needs and wishes of crime victims, whom they often see as their <em>de facto</em> 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 &quot;victim's rights&quot; legislation.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
