Recognizing the Paradigm of the Unknowing Victim and the Implications of Liminality

Abstract

This article presents the novel conceptualization of the unknowing victim (UV) and addresses the ethical ramifications of this status. Criminology and victimology have primarily focused on knowing victims, but certain crimes occur without the victim’s detection (e.g. sexual assault of an unconscious victim). There is a critical liminal dimension to UV’s status: they are on the threshold between unawareness and conscious awareness of their status as victims of crime and are thus situated on the brink of experiencing harm through their own discovery, or someone else’s disclosure, of the crime committed against them. We call for the recognition of UVs and the temporalities of their embodied experiences, and argue that there is an ethical imperative to prioritize their lived experience.

INTRODUCTION

In this paper, we argue that the time is ripe to recognize the novel conceptualization of the unknowing victim (hereafter UV). Both criminology and victimology have primarily focused on individuals who are known as victims, including calls for the recognition of female victims (Dobash and Dobash 1979; Chesney-Lind 2006) and hidden victims of hate crime (Hardy and Chakraborti 2019). Whilst certain crime victims have been less visible due to their marginal positions, this is in the context of their invisibility to society, professionals and policy makers (Hardy and Chakraborti 2019: chapter 2). Yet although, largely, the status of UV is externally invisible in criminology and victimology to date (Ost and Gillespie 2019), a significant element of UVs’ invisibility is internal, since they themselves have no knowledge that they are victims.

There has been some recognition that victims of corporate crime may be UVs (Box 1983). Until now, however, identification of a broader conceptualization of UVs has generally remained beyond victimologists’ radars. One notable exception is Landau’s and Freeman-Longo’s multidimensional victimological typology, which encompasses a victim ‘ignorant of their victimisation’ (Landau and Freeman-Longo 1990: 277). In large part, the lack of a response to Landau and Freeman-Longo’s invitation to subject the UV to further study can be explained by the fact that it is uncommon for a person to not know they are a victim. However, although it may be outside the norm for victims to be unaware of the crime committed against them, the nature of certain crimes—especially sexual offences—can mean that they are perpetrated without the victim’s detection and can remain undetected even after they have occurred. Take, for instance, a sexual assault on an unconscious victim, or an instance of voyeurism in which a photograph is taken underneath the victim’s clothing without their knowledge. There is a critical temporal dimension to their status that has significant ramifications for a UV and the process of their becoming internally recognized as a victim: they are in what we describe as a liminal state, that is, they are on the threshold between unawareness and conscious awareness of their status as crime victims, between as of yet unexperienced harms and discerned harms. Hence UVs challenge victimology’s commonly accepted construction of a victim as someone who has suffered harm. Yet their precarious liminal state means that UVs are situated on the brink of experiencing harm through their own discovery, or someone else’s disclosure, of the crime committed against them. UVs thus have different needs and present particular ethical challenges as compared to the knowing victim who has already suffered harm and is aware of the wrong committed against them.

Because of their distinctive characteristics, we argue that close attention needs to be paid to understanding UVs’ needs and interests through conceptualizing and exploring the implications of their status in victimology. In particular, following on from earlier work (Ost and Gillespie 2019), we contribute to constructivist approaches and cultural victimology’s consideration of the process that becoming recognized as a victim involves (Hall 2017: 15) through a contextual and theoretical conceptualization of the UV. We also make a modest contribution to the criminological study of ignorance ‘as a gloss on all types of unknowns’ (Smithson 2022: 379). Largely, there is an absence of knowledge regarding UVs and an absence of understanding of the harms of disclosure to UVs in criminology, victimology and the criminal justice system (CJS). We argue that there is a risk that if we do not explore these states of ignorance and simply disclose their victimhood, we ignore both the potential harms of disclosure to UVs and the impact of structural issues for marginalized and minoritized UVs. However, our main utilization of the lens of ignorance highlights the way in which internal ignorance of victimhood—the UVs’ own unawareness—poses challenges for criminology, victimology and the CJS. This includes consideration of a lesser explored issue in ignorance studies: the ‘beneficial’ role that ignorance might play. We address this possibility in cases where a UV knows something, but desires not to know more.

Our starting point is to present a series of case studies to illustrate some of the circumstances in which a victim can be unknowing, and to draw out parallels between UVs of various crimes and circumstances. Whilst we are not suggesting that the presence of UVs lies exclusively in the domain of sexual crimes, such crimes offer scope for rich analysis within the confines of one paper. We then situate the UV in the victimology literature, considering how our definition of the UV fits with existing theoretical perspectives. This reveals a knowledge gap regarding the significant implications of the temporal, liminal nature of unknowing victimhood, which we seek to address. Next, we consider the ethical question of how the CJS and victimology should respond to UVs when the critical threshold between their internal ignorance and awareness will be crossed by someone declaring their victim status to them. It is here that we engage directly with the conundrum raised by Landau and Freeman-Longo: ‘One critical question which arises… is whether or not there is an obligation to inform the [victim]… if the victim were ignorant of the victimization. Would such information lead to unnecessary trauma if the person were now to be informed?’ (Landau and Freeman-Longo 1990: 277). We tackle this through applying Pemberton’s constructivist analysis (Pemberton 2015), placing UVs at the centre of our ethical inquiry, considering what impact this will have on their life stories, and what ethical duties are, or should, be owed to them.

CONCEPTUALIZING THE UV

Case study examples

In offering contextual examples of various sexual crimes and circumstances involving UVs here to inform the theoretical analysis that ensues, we do not seek to provide an exhaustive list of situations in which victims can be unknowing. Such a list is likely to constantly evolve. Although we do consider crimes perpetrated whilst victims were children, we also generally limit our focus to unknowing adult victims and older teenagers with mental capacity, because unknowing child victims (especially younger children) and unknowing adult victims who lack mental capacity raise a host of additional issues beyond the confines of one paper. Owing to the current absence of empirical studies focused on UVs, we rely on court judgments and judicial sentencing remarks as primary legal sources and empirical academic studies that include some reference to UVs. Where first-hand accounts of UVs’ experiences that would otherwise not be available are provided from BBC news and newspaper sources, we also make reference to these, albeit recognizing that although we limit our selection to reputable sources, they will be subject to the orientations and biases of news outlets (Kousha and Thelwall 2017).¹

1. A drugged victim of rape or sexual assault

   A person is raped or sexually assaulted whilst drugged and possibly unconscious, having been given drugs or alcohol without their knowledge. They do not perceive any indications of the offence’s occurrence and there are no overt harmful effects or, if there are harmful effects, they do not attribute these to a sexual offence being committed (for example, the UV discovers that they are infected with a sexually transmitted infection (STI) but is unaware of its source). This first case study is exemplified by the multiple victims who were unaware of being raped and sexually assaulted by Reynhard Sinaga (Attorney General’s Reference No 5 of 2020²). During 2016 and 2017, Sinaga targeted lone, intoxicated men, luring them back to his home before giving them a drink laced with a ‘date rape’ drug. Once they were rendered unconscious, he then filmed himself raping (often without wearing a condom) and sexually assaulting his victims. ‘Each of the victims suffered a degree of memory loss after the event with the majority being unaware that they had been sexually assaulted’ and some ‘clearly oblivious to what Sinaga had done’ (Attorney General’s Reference [31]). Sinaga’s crimes came to light when one of his victims awoke whilst being attacked and reported the incident to the police (Attorney General’s Reference [32]). This victim believed that his was a case involving attempted rape, but was told by law enforcement officers (LEOs) of video evidence revealing that Sinaga had raped him three times. In four trials in 2018–19, Sinaga was convicted of 152 sexual offences against 44 victims (Attorney General’s Reference [21]). These 44 men were amongst the 190 potential victims that LEOs found evidence linking him to, with 70 victims still being unidentified at the time of his convictions (Greater Manchester Police 2020). A further example is that of the unconscious victims of Andrew Hutchinson, who he raped or sexually assaulted whilst they were in hospital or in the medical tent at a music festival. The victims were only made aware of the crimes committed against them when they were subsequently informed by LEOs (R v. Hutchinson³; Morris 2015).

2. A victim who is unaware that sexually explicit video or images in which they feature are disseminated online

   This case study includes the situation where an adult consents to the video recording of sexual activity between her and her girlfriend and, following their separation, her ex-girlfriend posts the video on an online porn site (Gillespie 2015; McGlynn et al. 2017). Or a 17-year-old teenager is unaware that the sexually explicit images created for her boyfriend’s own personal use have been made available on an image-sharing website. However, our main focus in this case study is crimes involving child abusive images (CAI) (Quayle et al. 2023: 5). Such cases can involve degrees of unknowingness regarding various crimes depending on whether the victim—who could well now be an adult if the offence(s) are historic or occurred when they were an adolescent—is aware of the abuse, the creation of images and their dissemination online (Ost and Gillespie 2019: 224). In one recent study, 45% of CAI victims who knew images had been recorded were unaware whether their images had been shared (Gewirtz-Meydan et al. 2018: 241). This reflects the findings of another recent study, which also found that incidents of CAI and online abuse are generally uncovered through police investigations rather than victim disclosure (Quayle et al. 2023: 2, 5, 12). The challenges that this poses for professionals who seek to support the UV and minimize further harm in any subsequent intervention are only just starting to be explored in the academic and professional literature (Ost and Gillespie 2019; Marie Collins Foundation 2023).

3. The unaware victim of voyeurism

   This is perhaps the most obvious crime likely to involve UVs and, indeed, one of the primary reasons why voyeurism is not an easy crime to detect (Wood 2019: 23). Covert observation of a UV is ‘the hallmark of voyeurism’ (Green 2020: 206; Brown 2021), providing some voyeurs with a sense of power that they have been sexually intimate with the victim without the victim’s knowledge (Wood 2019: 79–80). This case study would include the hundreds of women who had voyeuristic ‘upskirt’ photographs taken of them whilst they were on the London Underground by the afore-mentioned Andrew Hutchinson and who remain unidentified (R v. Hutchinson; Morris 2015). Another example involving multiple UVs can be found in R v. Roddis,⁴ a case involving a masseur who used a wall clock concealing a camera linked to his laptop to covertly film over 900 of his clients in a state of undress after allowing them the (perceived) privacy to get undressed or dressed before or after their massages. Similarly, in R v. Adams,⁵ the offender recorded at least 50 unidentified people using a public toilet in a hospital via a concealed camera and nurse Paul Grayson filmed up the gowns of female patients whilst they were under general anaesthetic, one of whom remains unidentified (R v. Grayson⁶).

In each of our case study examples, UVs have been wronged through the violation(s) of their rights or interests (Feinberg 1984: 34–5), but they have no knowledge of this. They may have suffered harm that they are unaware of, such as the violation of their bodily integrity and sexual autonomy, or they may be aware of the harm but not the crime that caused it, as could occur for a victim infected with an STI in case study 1.

Situating the UV in victimology

We offer the following definition to encapsulate the parameters of the UV for the purposes of our analysis:

A person against whom a crime has been committed who is unaware of this and thus has yet to experience any harm that this knowledge will bring.

How, then, does this definition connect with the different theoretical victimology perspectives on the victim? Positivist accounts focus on a more static notion of a victim measured by quantitative (official) data, derived from the state and situated within the criminal law (Walklate 2007: 35; Hall 2017: 8). Such accounts might well recognize UVs as crime victims, at least on paper, since ‘all crimes have a victim’ (Quinney 1972: 315). However, the CJS’s fixed notion of a victim is a knowing victim, a concept that does not yet account for the implications of the distinction between knowing and unknowing victims. As we explore in our final section, this presents the risk that any decision to disclose the crimes committed against them to UVs is taken for legalistic reasons related to the criminal investigation rather than being victim orientated. In our view, greater synergy can be found between our conceptualization and revisionist perspectives that deconstruct the victim. Radical victimology’s recognition that the victim is a social construction is arguably a necessary step to accepting the possibility of the UV being a victim, with the way in which the UV is viewed by society having obvious relevance (Quinney 1972; Strobl 2010; Pemberton 2015). It is here that Strobl’s analysis of how someone becomes a victim is particularly useful:

The crucial condition for becoming a victim in [a socially relevant sense] is not suffering from inflicted wounds or experiencing a norm violation (although these factors are certainly important) but rather being seen as a victim by others… (Strobl 2010: 3)

Significantly, UVs’ non-experiential victimhood state does not appear to prevent them from recognizing them as victims in popular discourses. This is apparent from, for instance, the general usage of the word ‘victim’ to describe persons filmed by voyeurs who remain unidentified and unaware of the filming (see, e.g., Elworthy 2017; Bannerman and Simpson 2021). Moreover, UVs of Sinaga were construed as victims in news media discourse (Farthing and Hewgill 2020; Rollings 2021). Applying Strobl’s constructivist approach, the UV has seemingly attained the first step to recognized victim status, because for people to react by ascribing victim status, the evidence must give ‘the receiver of the communication a clear idea that victimization has occurred’ (Strobl 2010: 12). Thus, the UV falls outside the criterion of a non-victim according to Strobl’s conceptualization of someone who not only fails to perceive themself as a victim, but who is also not perceived by relevant others to be a victim (Strobl 2010: 6).

We contend that the UV is more akin to Strobl’s construction of the designated victim—someone who does not consider themselves to be a victim, but is perceived to be so by relevant others (at least in the context of popular discourses). Indeed, Strobl provides ‘ignorance’ in the case of young child sexual abuse victims as an example of a designated victim (Strobl 2010: 6). If we were to continue to apply Strobl’s account, then it is only when the UV becomes aware of their victim status that they become an actual victim, because their status is recognized both by themself and relevant others (Strobl 2010: 6). This is the point at which we veer away from Strobl’s account, since, as we will argue, requiring internal awareness of the crime committed against them and thereby failing to recognize the UV as an actual victim is distorting and obfuscates the implications of the UV’s significant temporal state.

Our conceptualization of the UV draws on critical victimology’s concern with the victim’s lived experience (as developed through our subsequent exploration of the internal aspect of ignorance—the UV’s absence of knowledge—and liminality), the failure of the official construction of the victim to capture this, and the call for victimology to focus on harm rather than crime (Walklate 2007: 44–50; Hall 2017: 9). Finally, recognizing the victimhood of a person who remains unaware of the crime committed against them is compatible with cultural victimology’s conceptualization of victimization as a dynamic, evolving process (Hall 2017: 13) and other more socially constructed approaches (Quinney 1972: Pemberton 2015). We acknowledge that a progression through which we might ascribe victim status to a person who is unaware of the crime committed against them would be very different from the norm of victim status acquisition in these discourses, which begins with ‘a process from the individual recognizing that they have been victimized and thus [that they] may claim the label, through to being socially recognized… as a victim’ (Walklate 2007: 28). This usual process is effectively turned on its head in cases where the UV only becomes aware of what has occurred following their identification as a victim by LEOs and the subsequent disclosure of the crime to them. However, if the status of being a victim is open to interpretation and fluid social constructions, then someone who has until now generally fallen outside the radar of victimologists could come to be construed as falling within reconstituted boundaries of victimhood.

Albeit that this may pose a challenge for the CJS given its more positivist approach to victimhood, the starting point of this system is to ascertain whether there is evidence that can establish beyond reasonable doubt that a crime has been committed. Recognizing ‘degrees of victimhood’ (Mythen and McGowan 2017: 366; see also Strobl 2010: 15) does not conflict with this starting point, as can be demonstrated by the fact that the CJS recognizes certain ‘types’ of victim who do not reflect traditional conceptions of victimhood. Take, for instance, its recognition of both absent victims and ‘unwilling’ victims (as illustrated by prosecutions proceeding without victims’ support in domestic violence cases, for example: Morgan v. DPP [2016] EWHC 3414; College of Policing 2023). Both these examples demonstrate that the requirements of due process can still be met in evidence-led prosecutions where the victim is outside more static notions of victimhood. We explore how criminal justice policy might offer space for the UV in the remainder of this paper.

In sum, the UV illuminates a grey area hitherto ignored, but which could be encompassed by drawing upon the broader concept of a victim within revisionist perspectives and extending this conceptualization to an individual who has been wronged through a crime committed against them, but has not yet suffered harm due to their unawareness of this wrong. Recognition of the UV as a victim requires:

• the deconstruction of the victim: a rejection of a more static notion of victimhood in favour of the recognition of victimhood as a social construction; and

• the conceptualization of victimization as a process that can sometimes involve a significant temporal dimension, including a stage of internal ignorance. Since both ignorance and time can fluctuate (McGoey 2014: 13), the intersection of time and the transition from a state of ignorance to knowledge has a direct impact on when the victim experiences harm, as we go on to discuss.

Radical criminology’s exploration of the role that the state can play in contributing to harm and victimization is also relevant, and a matter to which we will return to. But first, it is necessary to explore further the way in which acceptance of the UV’s victimhood challenges conventional assumptions that a victim of crime is a person who has suffered harm (Walklate 2007: 28; Hall 2017: 9; Green et al. 2021: 853). These assumptions require shifting in order to facilitate a move away from UVs’ almost completely ignored status in victimology.

A challenge for victimology: the UV and the matter of trauma

It is important to recognize that the UV’s lack of knowledge does not connote a lack of harm. For example, we noted earlier how an unaware victim of rape could be harmed even without their awareness of this harm and one of us has previously analysed how a victim of CAI can be harmed without their knowledge (Ost 2009: 119, 128). For voyeurism victims, alongside the violation of their dignity (Gillespie 2019: 1113), harm can occur in the form of an invasion of the victim’s interest in privacy, a ‘visual trespass’ (Green 2020: 206) without knowledge of such harm being necessary. All these cases can be encompassed by a conceptualization of a victim which recognizes a continuum involving degrees of harm that begins at the point of ‘no harm noted’ (Landau and Freeman-Longo 1990: 279).

Even though it can thus be established that a victim can be harmed without their knowledge, any call to include the UV within the boundaries of contemporary victimology is likely to encounter an ‘absence of understanding’ (Barton et al. 2018: 15) whilst recognition of the trauma of the victim is placed in the foreground (Hall 2017: 5). The UV is seemingly at odds with the trauma narrative that also permeates criminal justice policy (United Nations 2006: 303; McGarry and Walklate 2015: 70). Against this theoretical and policy backdrop, how can victimology accept the common reference to UVs as victims in popular culture and media discourse and conceive of the UV as a victim when they have not yet experienced trauma? Even for a UV who is aware of a harmful effect of the crime, such as the victim who discovers that they have an STI, their lack of knowledge that they have been a victim of a rape or sexual assault means that they do not experience the trauma that would come from this knowledge. Consider how the first part of the following explanation of the experience of trauma over time does not fit easily with the UV:

[f]or victims of crime… the resultant suffering and trauma that can be incurred has both an immediacy of the present and is also, in some respects, inherently retrospective. How things like trauma play out over time are, of course, non-linear and far more temporally complex… (Mythen and McGowan 2017: 374)

UVs only have ‘immediacy of the present’ when they are no longer unknowing, and any ‘resultant suffering and trauma’ can only be retrospective, after the point of disclosure or the UV’s own discovery that they are a victim. This thereby contorts understandings in the literature which equate victim and trauma narratives (Walklate 2016), but also serves to emphasize the pertinence of the temporal dimension to victimhood that Mythen and McGowan highlight. We argue that openness to the idea of victimhood as a temporal process, which involves a distinct and crucial step for the UV, would enable victimology and criminal justice policy to engage with UV’s lived experiences. Particularly, this requires consideration of the implications of their internal ignorance of victimhood and the point at which this ends.

The temporal dimension: the implications of liminality for UVs

UVs are in a state of ignorance, an ‘absence of knowledge’, regarding their victimhood (Barton et al. 2018: 15). We are, by no means, utilizing the term ‘ignorance’ in any kind of pejorative way, but in its literal sense. A growing body of work explores the connection and divergent relationship between knowledge and ignorance and the roles that ignorance can play at macro, institutional and micro levels (e.g. McGoey 2014; Barton et al. 2018; Smithson 2022). Our concern with ignorance here is primarily at the micro (individual) level. The UVs experience of this state of ignorance is likely to be unconscious, but, as we will discuss in the subsequent section, a UV who knows something might prefer and choose, as far as possible, to remain in this state. Significantly, this state of ignorance is volatile and could cease at any point in time. Thus, the interaction of time and ignorance is key: the relationship between ignorance and knowledge exists ‘on an ever-changing continuum that constantly fluctuates’ within the ‘contradictory nature of temporality’ (McGoey 2014: 13). Because of this, we suggest that it is helpful to conceive of the UV who is unaware of the wrong and harm done to them as being in a liminal state. First coined by van Gennep, the concept of liminality emerged from anthropology and has since been applied across social and human sciences (Van Gennep 1909; Jewkes 2005; Horváth et al. 2015). It ‘refers to something very simple and universal: the experience of finding oneself at a boundary or in an in-between position, either spatially or temporally’ and it can be experienced by individuals, groups and society (Thomassen 2015: 40, 49). Liminality is concerned with the experience of inbetweenness itself, but also with how it is shaped and re-constructed as it is passed through and what happens after the boundary has been crossed (Thomassen 2015: 39).

Given its exploration of significant thresholds and what happens ‘beyond and between those moments’, liminality enriches our understanding of a process of transition and transformation, and the person’s lived experience of this (Ganguli-Mitra et al. 2017: 89). For the UV, considering that liminal experiences can occur over extended time periods (Thomassen 2015: 50), the liminal state might be conceived as beginning when the person becomes a victim, stepping through the first threshold into their victimhood status, albeit remaining ignorant of this. Liminality can thus synergize with the ‘temporal aspects of victimhood as it changes over time in terms of both private and public recognition’ (Pemberton 2015: 23; Hall 2017: 7). If the crime is repeated or exacerbated, then this gives rise to additional thresholds that the person passes through, albeit without their awareness at this juncture. Others, however, may be cognizant of these thresholds, such as individuals who view the images in case studies 2 or 3, or LEOs investigating the crime(s) in question. But the crucial threshold, the point at which the liminal state is experienced by the UV as a ‘chimney of thunderous acceleration’ involving uncertainty, vulnerability and chaos (Serres and Latour 1995: 57; Jewkes 2005: 375), lies between unknowing (ignorance) and knowing; the threshold of gaining knowledge of victimhood status.

Passing through this threshold causes ‘significant transformations’ (Ganguli-Mitra et al. 2017: 89) to occur which implicate a range of actors including UVs themselves, LEOs and support services. For the now-knowing victim, the impact can be profound, causing a narrative rupture to their life story (Pemberton 2015: 18) thereby posing a radical change to their self-identity and turning their ‘normal’ life on its head. Albeit recognizing that impact on self-identity is individualized, one previously UV of CAI (case study 2) has described the experience of this to the authors as living two lives, one before disclosure and one after disclosure.⁷ In a further example from case study 2, the experience of another child sexual abuse victim who was unaware of the existence of CAI is recounted by a healthcare professional in Quayle et al.’s study:

… that young person had no knowledge that that was what was done… but that was then how it was found out that that’s what happened to them, so then the sort of catastrophic realisation that this act had been shared… all that sort of powerlessness, and exposure, it’s just horrendous. (Quayle et al. 2023: 10)

Whether they become aware of the crime perpetrated against them through their own discovery or disclosure by someone else, passing through this threshold means that the now-knowing victim is highly likely to suffer harm. Returning to case study 1, in the Court of Appeal’s judgment in the Sinaga case, Lord Burnett CJ commented that, for those victims who only learnt of Sinaga’s crimes against them when contacted by LEOs, the psychological harm was significant and ‘notably profound in some cases’ (Attorney General’s Reference [33]). The LEO with whom rested the responsibility for telling victims what Sinaga had done, explained their reactions as follows ‘They just went very quiet and you [could] see the colour drain from their face… And I knew giving them that information that I’ve just ruined this person’s life and you could see it’ (BBC News 2021).

Although victims will respond to their victimization in different ways (Shapland and Hall 2007: 179–80), common harmful effects of victimization have been documented as including shock, loss of trust and anger, ‘psychological effects, including fear, anger and depression’ (Shapland and Hall 2007: 178). For the now-knowing victim, the degree of harm and trauma experienced and the length of duration will depend, in part, on the crime committed—for example, ‘sexual assault victims were more likely to suffer the most psychological and social effects’ (Shapland and Hall 2007: 193). The severe psychological harm suffered by Sinaga’s victims included depression and thoughts of self-harm and attempted suicide (Attorney General’s Reference [80]). A recent study reports that the harms caused to CAI victims (case study 2) include ‘depression, self-harm, anxiety, post-traumatic stress disorder’ and found that disclosure of the existence of CAI to UVs who were aware that they had been sexually abused but not that this abuse had been recorded caused added, considerable distress (Quayle et al. 2023: 2, 10, 12). Victims of voyeurism (case study 3) have reported feeling violated and degraded because of the gross invasion of privacy (R v. Turner [2006] EWCA Crim 63 [5]; R v. Roddis; R v. Anderson [2021] NICA 28).

We address the ramifications of the UV passing through the crucial liminal threshold for LEOs and victimology in the following section but, at this juncture, we highlight the key point that if the UV comes to know of the crime committed against them through disclosure by an LEO, as in the Sinaga case (case study 1, Attorney General’s Reference [33]), it is this disclosure which causes the victim to experience any consequent trauma that this knowledge brings. Hence the intervention of the CJS through the LEO’s disclosure can, in and of itself, be harmful to UVs. Ethical analysis of the impact of disclosure on the victim, and the role of support services—such as mental health support and sexual violence support services—at the point of disclosure and beyond—will thus be crucial, a point that we return to in our conclusion.

Although it is generally the case that ‘liminality is a temporary condition’ (Ganguli-Mitra et al. 2017: 89), some UV contexts mean that there is likely to be a briefer temporal duration to the state of ignorance and the UV may become aware or gain partial knowledge of the crime committed against them before any intervention by LEOs. Take, for instance, the victim who regained consciousness during Sinaga’s attack (case study 1: Attorney General’s Reference [32]). Thus, the speed through which the transition from an unknowing to a knowing victim occurs can be relative to the circumstances of the crime and/or the occurrence of the particular effect(s) of the crime. At the other end of the scale, there may be cases where the liminal state is much more prolonged and cases where, whilst the possibility of finding out about the crime remains, the threshold is not crossed. Indeed, some UVs may never cross the critical threshold because they remain unidentified, as in case study 3: some of Andrew Hutchinson’s victims have proven impossible to identify and are thus likely to forever remain UVs (R v. Hutchinson; R v. Grayson).

All of the above suggests that the liminal status of the UV poses difficulties that have hereto been overlooked by the existing theories, policy and practice based on the habitual conceptualization of the knowing victim. But is this necessarily problematic? One seemingly straightforward response to the complexities posed by the UV’s liminal state would be to maintain the current conceptual status quo in victimology and to simply wait until the UV has passed through the critical liminal threshold, thereby internally recognizing that they are a crime victim, before we ascribe victim status to them. However, this fails to account for, and distorts the reality, that a crime has occurred and has been perpetrated against a victim prior to their point of awareness, as vividly depicted in the case of the UV of a rape or of CAI that are shared online, for example. It would continue the disconnect with the general ascription of victim status to UVs in popular discourses and could serve to perpetuate the notion that no harm is caused if a victim is unaware of it. In addition, failing to recognize UVs for what they are misses a matter of key import: if LEOs are aware that a victim is (or may be) unknowing, then we argue that ethical duties are owed to reflect on the ramifications for this victim before the CJS’s intervention causes them to pass through the critical liminal threshold.

RESPONDING TO THE UV: THE ETHICAL IMPLICATIONS OF THE THRESHOLD OF DISCLOSURE

Explored through the lens of liminality, in cases where a UV is identified by law enforcement, disclosure of their victim status brings about the transition from unknowing-to-knowing victim. This reveals the significance and ethical implications of the disclosure decision in placing UVs at this crucial threshold and starting them on the process of transition:

The lens of liminality, in further emphasizing transition and thresholds… requires to us to be further attentive to the relevant actors, processes and interests associated with those transitions since all of these might change as a result of crossing a significant threshold. (Ganguli-Mitra et al. 2017: 90)

The actor at the centre is the UV, who has different, transitional needs and interests compared to the ‘usual’ victim who has already suffered harm when the CJS intervenes. In what follows, we apply the powerful imperative for victimology that Pemberton has advocated in his constructivist approach: that the person’s experience of victimization shapes the ethical lens through which victimologists should conduct their inquiries (Pemberton 2015: 12).

The disclosure threshold will also have an impact on another pivotal actor, the LEO who makes the disclosure decision, since they are the ones who will cause the now-aware victim to experience trauma. This reality is exposed by the following statement regarding Sinaga’s victims: ‘The trauma that the men experienced wasn’t necessarily the sexual assault, because they couldn’t remember that. It was being visited by the police and being told what had happened to them and also being told that there’s video footage… and that was really difficult for people to accept’ (Deputy Directorate Manager of St. Mary’s Sexual Assault Referral Centre, BBC Two 2021).

Moreover, this is likely to be a novel situation for LEOs to be in, as compared to the usual context in which knowing victims report crime. With this in mind, serious ethical consideration must be given to why a UV should be told of the crime. Further, it is imperative that this includes consideration of the impact of disclosure decisions on marginalized and minoritized UVs.

Ethical arguments for and against disclosure and the existing policy and law context

Turning first to victim-centred reasons to disclose, notably, disclosure can enable victim empowerment: the victim can take control and ownership over what was a previously unknown life experience and exercise the meaningful choice of taking steps that might avoid further harm. Pemberton has emphasized how ‘Questions of identity maintain their ethical relevance to the experience of victims’ ((Pemberton 2019): 466). Regaining control over their life narrative could thus be crucial to victims reclaiming their own identity. In the context of case study 2, some CAI victims have noted an empowering effect through awareness of the existence of images (knowledge that their images were used as evidence to obtain the abuser’s conviction: Gewirtz-Meydan et al. 2018: 245). Disclosure to some of Sinaga’s victims offered the opportunity for empowerment by enabling them to testify against him in court. Furthermore, the fact that at least one victim reported recalling that something had not been quite right about the night is also significant. For him, the disclosure by law enforcement provided an explanation, albeit not a desirable explanation, for his lack of memory and confirmation that his belief that something had happened was correct. He stated that after the disclosure and being shown photographs of his sexual assault, ‘There’s a bit of relief, because you know what happened finally, but probably not the relief that you want… Unknowing was harder than not knowing, even though what I know is horrible’ (BBC Two (2021).

Linked to empowerment, it is only through disclosure that the UV can take possible action to seek restitution. For example, the rape or sexual assault victim could claim compensation from the Criminal Injuries Compensation Scheme since this would constitute a ‘crime of violence’ (MoJ 2012). In contrast, a now-knowing victim of the dissemination of CAI would be unlikely to gain state compensation and little is offered by way of possible avenues for reparation against the perpetrator under the civil law in England and Wales (Ost 2016: 624–9). But being made aware of the crime committed against them could enable the victim to take measures to try to ensure that this does not happen again, such as using the Take It Down service to help remove CAI online (NCMEC 2023). Disclosure to UVs could also be justified where there are health-related concerns. For instance, the nature of the crime committed could have had serious implications for Sinaga’s victims (including the possibility that they may have contracted an STI given that Sinaga did not wear a condom (Attorney General’s Reference [94]), making a strong case for disclosure even though this undoubtedly caused psychological harm.

The case for disclosure could be underpinned by calls for a rights-based approach towards victims in the victimology literature, including a right to knowledge (Mawby and Gill 1987: 229). Human rights jurisprudence in the broader context is also potentially relevant. A person could claim a right to know that they are a victim of a crime under Article 8 of the European Convention on Human Rights (ECHR), which protects, for example, bodily integrity (X and Y v. Netherlands [1985] ECHR 4). Article 8 could therefore be especially pertinent regarding crimes involving an infringement of privacy and sexual autonomy (such as in all three case studies). It has the potential to be used as a foundation for what could be argued to be a UV’s right to know about, and to make informed decisions regarding, their status as a victim of a crime.

It might even be suggested that there is, or should be, a professional duty to disclose on the basis of UVs’ rights, as exemplified in the following statement from one of the LEOs who made disclosures to Sinaga’s UVs: ‘Their life is never going to be the same again, never ever. And you do have to think: “Would I want to know”?… Are you better off going through the rest of your life not knowing? But… You have a right to know’ (BBC Two 2021). This suggests an assumption that disclosure is a UV’s right, seemingly aligned with perceptions of healthcare professionals who work with UVs of CAI (Quayle et al. 2023: 12). But is this reflected, and should it be reflected, in law and policy? Certainly, the overarching principle of keeping victims of crime informed is apparent in police procedure and policy documents (Victim Support 2011) and supporting victims is the principle that lies at the heart of the Victims’ Code (MoJ 2020a). Moreover, there are important rights bestowed on victims by this Code, the most pertinent being the rights to be provided with information when reporting a crime (right 3) and to be referred to victim support services (right 4). On the face of it, right 3 might effectively appear to impose a duty to disclose, because one part of the details relating to this right reads as follows: ‘If you report a crime to the police… or if you are contacted as a victim in the course of investigations, you have the Right to written confirmation of your allegation. This will include the basic details of the offence…’ (MoJ 2020a: 15).

However, the victim is not making an allegation and LEOs are not confirming the victim’s allegation where LEOs disclose the occurrence of the crime to a UV. It is, therefore, difficult to see how this would impose any explicit duty to disclose. The right to access to support services under Right 4 applies whether or not the victim decides to report a crime, but again it is framed around a knowing victim who makes a decision whether or not to report the crime (MoJ 2020a: 17, 4.1, 4.6). Thus, the Victims Code does not set out a duty to disclose; rather, LEOs would be under a duty to guarantee the Code’s rights once the victim has been informed. Arguably, then, a duty to disclose to UVs is a by-product of these rights; that is, it is only possible to offer UVs access to support services, for instance, if the LEO first informs the victim of their status.

There may, therefore, be something of an implied duty to disclose, but there is no explicit, legally enforceable right to be informed. Indeed, we do not support the imposition of such a right because there is a real ethical risk that if we opt for a ‘quick fix’, bundling all UVs into the same ‘box’ and calling for an explicit, automatic duty on professionals to disclose, then we fail to address UVs’ lived experiences. There are numerous victim-centred reasons to be cautious about disclosure. First, it should not be assumed that disclosure will facilitate empowerment and positive action for all UVs. The message in ignorance studies research that ‘Ignorance plays a vital role in the generation of harm [and] its impact…’ is relevant here: without turning attention to structural constraints on empowerment, LEOs could become too narrowly focused on prioritizing the principle of keeping victims informed, so that ‘ethics become proceduralised, formulaic or redundant’ (Barton et al. 2018: 18, 30). Consequently, LEOs may become blind to the varying effects of disclosure on victims from different backgrounds and ignorant of the fact that, even where the same type of crime has been committed against them, individual victims do not all have the same needs, depending on their situation and their personal coping skills (see generally Walklate 2007: 105). For marginalized UVs, minoritized ethnic UVs, or UVs with disabilities, for example, whether they can take control over this life experience and access public services is likely to be impacted by who discloses to them and how this is communicated, especially if the discloser and available services fail to take account of their cultural background, needs and sensitivities, by interpreting their victimization through generalist frameworks (Long 2021; Justice 2022: 20).

Secondly, the potential negative repercussions of disclosure should not be underestimated. Our ‘normal and taken for-granted mode of being involves a temporality that includes past, present and future all at once’ (Pemberton 2019: 457). Discovering their victimhood is likely to throw the previously UV’s life story into turmoil, indeed, ‘this experience can be viewed as a narrative rupture. It diminishes the life story as a meaningful whole’ (Pemberton 2015: 18; Pemberton 2019: 457). In previous work, we explored the potentially damaging effects of disclosure on UVs of CAI (case study 2). We drew attention to the significance of encroaching on the victim’s spatial privacy, their control over what personal information they choose to know and not to know (Ost and Gillespie 2019: 229). Where there are reasons to question that the positive impacts of disclosure, such as empowerment, will outweigh the negative impacts, such as the victim suffering psychological harm, there are surely grounds to think twice about disclosure and instead about maintaining their state of ignorance (Smithson 2022: 379). This is undoubtedly a balancing exercise to be undertaken on a case-by-case basis, depending on the crime committed and the implications for the particular victim. For the afore-mentioned previously unknowing CAI victim whose images were taken voyeuristically, her preference would be to have never been informed about the crime committed against her because of the serious emotional and psychological impact that disclosure has had.⁸ This raises the interesting and lesser studied issue in ignorance studies of the way in which ignorance might serve a beneficial function for some UVs, thereby challenging the tendency we have to ‘value knowledge over ignorance’ (McGoey 2014: 1; Smithson 2018: 385). As with time, knowledge and ignorance exist on a continuum; this continuum can include partial and uncertain knowledge (Heimer 2018: 19). Consider the possibility that marginalized UVs who possess some awareness that they could have been victimized, might seek to remain in beneficial ignorance if they decide that the alternative of approaching LEOs poses too great a threat to their mental health because of their past interactions with the police (Long 2021).We can also refer back to the example of a child sexual abuse victim who possesses knowledge of their abuse but remains in a state of ignorance as to whether this abuse has been recorded and disseminated online (case study 2). Such a victim may seek to remain in this state to avoid experiencing any further trauma and, indeed, the ‘lack of closure’ psychological ramifications when CAI have been made available online are now well-documented (Gewirtz-Meydan et al. 2019: 3; Ost and Gillespie 2019). For such a UV, this information avoidance could constitute ‘beneficial ignorance’ if it protects their psychological well-being (Smithson 2022: 382).

Notably, this choice of remaining in (beneficial) ignorance is legally protected for CAI victims in the United States (Ost 2016: 629). In the United Kingdom, as we have explored in previous work, the interest in privacy protected by Article 8 could operate to ground the claim of a UV who seeks to remain in a state of ignorance about any subsequent crimes connected to the crime of which they are aware (Ost and Gillespie 2019: 233). The statement contained in the Victims’ Code that it does not obligate service providers to disclose information to a victim where this ‘could result in harm to any person…’ is worthy of note here, and must include psychological and emotional harm given the recognition of such harm in the Code’s definition of a victim (MoJ 2020a: 3, 6).

There are, of course, various reasons why it might be necessary to disclose, related to the criminal justice investigation and process which are especially pertinent when viewed through a more positivist lens, but only some of which are victim orientated. For instance, LEOs may need further information from the UV as part of an ongoing investigation. In case study 2, this could be to ensure that self-generated sexually explicit images were not created under duress or, if the images feature child sexual abuse, the potential identification of other suspects or victims, or establishing the victim’s age. Some of this information might be crucial to build a case against the offender. Moreover, following a decision to charge an offender, it is usual for the CPS to make a standard list of requests regarding contact with identified victims, both because of its responsibilities to victims and because prosecutors are likely to seek to build their case with the victim’s support. Disclosure to the victim by LEOs thus pre-empts this, and the risk that a UV may only realize what has happened to them if details of the offence are reported.

However, although such arguments are undoubtedly part of the necessary considerations for the LEO, we advocate an approach to the disclosure decision that is aligned with UVs’ lived experience. Such an approach would involve placing the victim at the centre and considering the impact of disclosure for that victim. Returning to case study 2, for instance, one particular anxiety for CAI victims is the presentation of images to numerous people involved in the investigation (Gewirtz-Meydan et al. 2018: 246). Any decision to disclose to a UV should thus be sensitive to this, with a minimal number of individuals making the CAI disclosure and, crucially, involving a therapist who can offer tailored support (see Conclusion below). It is also vital that the impact of the UV’s position for those from marginalized and minority groups is considered (Long 2021: 345). This may mean, for example, that recognition of a black male UV’s lived experiences suggests that if the decision is to disclose, the discloser should be someone other than an LEO because of structural constraints and past interactions that may make it difficult for this UV to conceptualize LEOs as a source of help (Long 2021: 356). Aligning the disclosure decision with the UVs lived experience should therefore be the core ethical lens that shapes decision-making and criminal justice policy.

CONCLUSION

The questions of how to conceive of and define a victim remain highly contested. But as Walklate reminds us, ‘[n]ew “victimisations” can be recognized and responded to’ (Walklate 2007: 77). In this paper, we have aimed to shed light on the unexplored UV state, its ramifications for the person concerned and the ethical implications for victimology and the CJS. The beginning of the UVs liminal journey as a victim is the point at which the crime is committed against them, although they are unaware of this. The end of their journey in the liminal UV state and the narrative rupture to their life story begins when they reach the end of their state of ignorance, by arriving at an awareness of when they became a victim, whether through their own discovery or someone else’s disclosure. If we do not consider the UV as a victim until this point, we fail to recognize the temporal significance of the disclosure threshold and the ethical imperative to prioritize their lived experience. We are thus calling on victimology and criminal justice policy to offer space for the temporalities of the embodied experiences of UVs to be recognized, and for due consideration to be paid to the implications for the criminal justice agents who encounter UVs.

UVs offer a rich contextual case study for the criminological study of ignorance which we have only been able to scratch the surface of in this paper. For UVs, ignorance can involve both internal and external aspects. Exploring the internal aspect of ignorance—the UVs’ lack of awareness of their victimhood—casts light on the external aspects. Victim perspectives and trauma narratives in victimology and criminal justice policy ignore UVs and, without considering the harms of disclosure, there is a real risk that criminal justice practice will fail to align with UVs lived experiences, including those of marginalized and minoritized UVs. Taking forward our consideration of beneficial ignorance, further criminological study of ignorance might involve critical scrutiny of whether victims seek to utilize ignorance as a strategic unknown in other contexts. Say, for instance, a case is closed without anyone being charged and the knowing victim chooses not to be informed if the case is re-opened. Is this an instance of the victim choosing ignorance as a psychological strategy for their well-being? And following the victim’s decision not to know, does the CJS offer adequate protection of their chosen state of ignorance?

UVs may not generate political interest given that they do not offer more obvious experiences that can be exploited to garner support for politically desirable criminal justice responses (Garland 2001). We might also anticipate potential reluctance in policy circles to extend the definition of a crime victim because of perceived resource implications (cf. the reluctance to extend the criminal injuries compensation scheme to victims of serious non-contact offences (MoJ 2020b: 15–6, 19). True, acknowledging the UV as an actual victim opens the door to calls for a response and for UVs’ needs to be recognized (Holstein and Miller 1990). But we are not arguing for further, significant resource for compensation nor any additional support, other than that which should be available for knowing victims.

That said, given the significance of the arguments for and against disclosure that we have discussed, it should be recognized that those making disclosure decisions to UVs of sexual offences are likely to require support, such as that provided in the Sinaga case by crisis workers from a sexual assault referral centre (SARC) who accompanied LEOs when disclosing to UVs (BBC Two 2021). Whilst SARCs and Rape and Serious Sexual Offence Units (RASSOs) will play a vital role, the need for such services to be specialized to cater for the multidimensional, specific needs of sexual violence victims, and to be rolled out more widely, has been emphasized in the broader context (Justice 2022: 15–7). Tailored support for UVs of sexual offences should involve workers from services such as SARCs and RASSOs supporting LEOs to identify steps that can be taken to provide some mitigation of the impact of disclosure, including the way in which the information is disclosed. The support should be designed to recognize that disclosure to UVs places them at the start of their journey to understanding what has happened to them and work on their recovery. However, this must also be accompanied by guidance and training for LEOs on making disclosure decisions to UVs. Notably, in the specific context of UVs of CAI, our research project has discovered that the question of how to address the disclosure decision is unanswered by either training or guidance. We are designing an ethics toolkit for LEOs who need to decide whether to disclose the existence of abusive images to a victim to address this absence.⁹ We strongly suspect that a similar gap in training and guidance for LEOs exists in other UV contexts which demands attention if criminal justice policy is to make space for UVs. Finally, empirical research involving the voices of victims who were UVs but are now-knowing, including marginalized and minoritized victims, is imperative in order to situate their lived experience at the centre of future studies on UVs.

ACKNOWLEDGEMENTS

We are grateful to the three anonymous reviewers of the journal for their very helpful comments. Special thanks to Sandra Walklate for taking the time to provide valuable comments on an earlier draft of this article. Our colleague Olly Fitton provided very helpful views regarding the investigative process and the policies and principles which shape law enforcement officers’ considerations regarding disclosure to unknowing victims. We are also grateful to the participants who attended our project workshops in November 2021 and May 2023 and shared their experiences as criminal justice agents, counsellors, social workers and charity representatives. Our particular thanks to the previously unknowing victim who has been involved in our project.

FUNDING

This work was supported by the Department for Business, Energy and Industrial Strategy by way of a British Academy/Leverhulme Small Research Grant (SRG19\190354).

Footnotes

1

We also refer to newspaper sources to illustrate constructions of UVs in popular discourses in the following subsection.

2

[2020] EWCA Crim 1676.

3

(2015) Oxford Crown Court unrep. A transcript of the judge’s sentencing remarks is on file with the authors.

4

[2021] EWCA Crim 1583.

5

[2014] EWCA Crim 1898.

6

(2022) Sheffield Crown Court unrep. A transcript of the judge’s sentencing remarks is on file with the authors.

7

This victim has worked with the authors on our Designing a model of restorative justice for victims of online child abusive images project: http://wp.lancs.ac.uk/model-of-restorative-justice-for-victims-child-abusive-images/.

8

As above.

9

As above.