One of Van Oorschot’s key findings was that magistrates use ‘typical narratives’ to assess cases. There are certain storylines they use to identify the similarities and differences between cases. A clear example of such a narrative would be the narrative of the ‘typical angry young man’. “Often the crime will be public assault or assault,” says Van Oorschot. “Judges will see that the incident took place at night, in an entertainment district, and they will immediately jump to the conclusion that this is another one of those cases. On one occasion, a judge summarised it as follows: ‘Young man goes out, gets drunk, someone steps on his toes and the next thing you know, they’re fighting.”
The stereotype of the wired dude
Van Oorschot is not sure where these ‘typical narratives’ come from. “I think that judges exchange knowledge with each other, and to some extent experience comes into it, as well. Once you’ve heard enough cases, you will start detecting certain patterns. But of course the stories are also based on stereotypes. We all know the stereotype of the wired dude who gets aggressive on a night out.”
In such cases, judges do recognise that the victim also contributed to the escalation of violence, but they do not take that fact into account when they try a case. “Very often, they are aware that the two parties involved share responsibility, with the victims also having done things that were unacceptable. When such incidents occur in nightlife, there is a lot of abusive language from both sides, and people getting in each other’s faces and pushing and pulling each other.” In other words, it takes two to tango. However, that fact tends to be ignored in such cases. “The judge will only call the suspect to account.”
Domestic violence
Remarkably enough, Van Oorschot found a different narrative in which judges do take the victim’s role into consideration when trying cases, to wit, in domestic violence cases involving male suspects. “The interesting thing is that in such cases, judges do feel there is a shared responsibility, as in ‘I’m guessing she’s no walk in the park, either.’ They have difficulty sentencing perpetrators to the most severe punishments in such cases, because here they do take the victims’ behaviour into account when determining the severity of the act, even though they don’t do so with the angry young men.”
Discrimination
Van Oorschot’s study was prompted by a study conducted at Leiden University, focusing on variations in the punishments to which people are sentenced in criminal law. The Leiden study drew the conclusion that suspects who looked ‘foreign’ and did not speak Dutch were sentenced to jail time more often than suspects who looked ‘Dutch’ and spoke Dutch well. Judges were quite angry about those conclusions, saying that the academics did not really understand the day-to-day business of the administration of justice, and had therefore wrongfully accused the judges of discrimination.
“As a sociologist, I found myself thinking, we should look into that. Particularly because I was completely fascinated by the intensity of the judges’ response,” says Van Oorschot. Did the judges have a point? To some extent they did, Van Oorschot feels. “The statistical reality of sociologists of law does not always do justice to what actually happens in the legal system. In my thesis, I tried to find a different way to understand and describe what actually happens in the legal system.”
Accountability
As far as Van Oorschot is concerned, that is the main lesson to be drawn from her thesis. “I think it will mainly give other sociologists and anthropologists of law food for thought. My thesis could be construed as a call to researchers to account for how they acquire their knowledge. Always realise, when you are an academic, that your story is very much tied to a particular place and time and make sure you give actual practice an opportunity to make your theories more complicated and more nuanced. The philosopher of science Isabelle Stengers put that very nicely, stating that it is our duty as academics to enable specific real situations to give us food for thought. I very much agree with that.”
Will her study have implications for the way in which the legal system works? Van Oorschot feels that is unlikely. “It is not my position as a researcher to call judges to account with regard to their methods. I have been invited to have a discussion with the Public Prosecution Service and public prosecutors. I do think that judges should occasionally ask themselves how they use the narratives they use. Why do they take the victim’s role into account when hearing domestic violence cases, but not when they try angry young men?”
