Communications of autonomy and vulnerability in criminal proceedings

In some high-profile Swedish cases on violence in intimate relationships, policemen and judges have been blamed for missing important aspects of the victim’s vulnerable situation and the ongoing violence, and indirectly causing the death of the women victims. When these types of cases encounter the criminal justice system, two seemingly opposites are confronted: autonomy and vulnerability. In determining whether a penalty should be imposed, autonomy is vital, in the sense that freedom and rationality of the bounded individual is fundamental for criminal responsibility. Violence in intimate relationships, on the other hand, is clearly related to the vulnerability of the individual exposed to the violence. This vulnerability represents something contextual, where power relations are crucial, and is also connected to its structural context. I argue that a move towards a vulnerable subject as a starting point would affect the criminal justice system. This concept assumes a potential for all humans to experience vulnerability during a life span, and does not prevent autonomy. In the judgments explored in this article, this view is already reflected when it comes to the positioning of the defendant, who is seen as highly autonomous, at the same time as his vulnerable situation is taken into account in determining the penalty. However, the communications regarding the victim does not include these nuances. A move towards establishing a more accurate definition of subject in this field of law, the vulnerable one, would emphasize an awareness of a more complex notion of the subject and be more consistent with the embodiment of the everyday individual encounter with the criminal justice system. (Less)