Restorative justice after sexual violence
The time has surely come to put innovative justice — as well as major improvements in conventional justice — on to the social and political agenda, says
Much has been written in recent days and months on the problem of sexual violence and abuse, raising yet again much needed debate about the context of the problem, including privilege, power, and control; the meaning of consent; the position of women; the need for men to take a stand; attitudes to sexuality, and the problems that arise when we continue to have gender inequality at almost every hand’s turn.
Recent coverage has also cast light on the limitations of the criminal justice system in responding to sexual violence. Here, the issues range from questioning the adequacy of the evidential threshold of “beyond reasonable doubt”, to questioning the way in which complainants are positioned as a witness in the State’s case without independent legal representation apart from those times where the defence makes application for the prior sexual history of the complainant to be raised in court. Some have even raised questions about the inadequacy of protections for accused persons, especially those who have been acquitted, when they are subjected to online and other attacks in their everyday lives. All perspectives have value.
At the moment, we are witnessing a kind of Western global social movement in relation to sexual violence underpinned by an almost visceral outrage when wrongdoing is seen to have occurred, individually and institutionally, frustration at the pain and suffering that sexual violence and abuse continue to inflict, absolute resolution that this must stop, and determination that the responses must be improved. For those of us working in the area of sexual violence for many decades, while none of this is new, and we have been here before, to a greater or lesser extent. We also know the importance of ‘the critical moment’ when change is inevitable, and I for one am hoping that the time has now come. Now acknowledged as a multi-layered problem sexual violence requires responses at multiple levels: Preventative, legal, social, and therapeutic. Here I want to focus on the legal justice situation.
Criminologists make the distinction between conventional and innovative justice or a hybrid of both and increasingly prefer to talk about justice mechanisms rather than justice types. Justice mechanisms reside on a continuum from conventional to innovative. Conventional mechanisms are standard approaches to criminal justice, such as investigation, trial, sentencing, and post-sentence management, and involve criminal justice professionals, including police, legal professionals, the probation service, and the courts.
Innovative mechanisms do not rely solely on the standard tool kit of criminal procedure or justice practices, or those wedded to legal processes alone. They permit greater participation and interaction of the relevant parties especially the complainant and the accused. The processes are often more informal, although structured by rules and procedures. One such innovative mechanism is restorative justice.
Conventional and innovative mechanisms are not mutually exclusive. In other words, differing mechanisms (conventional and innovative) can be used in one case.
Restorative justice is as a process whereby all the parties with a stake in a particular offence or experience of wrongdoing come together to resolve how to deal with its aftermath and its implications for the future. Basically it is about repairing the harm and involves a meeting (or set of meetings) either directly or indirectly between the injured party and the person who has harmed them. The parties are well prepared for the meeting and the processes are facilitated by skilled restorative justice practitioners. Although the main focus of the work is on the dialogue, restorative justice can also include the use of agreements in which specifications are made regarding future behaviour of the wrongdoer, therapeutic support for participants and methods of reparation. We have been using restorative justice in cases of youth crime for many decades internationally and in Ireland.
In order to participate in restorative justice, which is an entirely voluntary process for the parties, the person who had done the harm must acknowledge wrongdoing. This is different from an admission of legal guilt and, in other jurisdictions, restorative justice is offered even when there has not been a criminal conviction.
In general, a firewall of procedural and confidential safeguards exists between the criminal justice process and the restorative justice. Preparation of the key participants is essential, and safety of all is paramount. In cases involving sexual violence, facilitators must have an excellent understanding of the impact of sexual trauma and of the dynamics of sexual violence, as well as training in restorative justice.
The idea of using restorative justice for adult sexual violence cases was almost unthinkable not so long ago. However, this is now changing. One of the reasons for this is that formal justice processes alone cannot effectively handle the complexity and range of sexual violence cases. Some complainants and victims of sexual crime tell us they wish to take this option, not instead of conventional criminal justice but as well as it and in many jurisdictions, such as Belgium and Australia, these options are available. Some victims also tell us they do not wish to engage in formal criminal justice processes at all, especially in historical or intra-familial sexual violence, and are seeking other avenues of response. In addition, given the high attrition rate in sexual violence cases, which means that some complainants receive no justice whatsoever, restorative justice also offers possibilities for some form of justice for these victims too.
My research on this topic further found that convicted offenders would be willing to participate in restorative justice were they asked to do so. Although effective criminal law and improvements in conventional justice responses will always be required, there is now growing need to develop other additional justice mechanisms in the aftermath of sexual violence.
While legal professionals may have reservation about such innovations, because of the concern for due process, they can be assured, as can we all, that there exists a robust set of EU and UN instruments and a growing body of empirical research to guide proper procedure and fairness in the processes.
Contrary to popular myth, restorative justice is not a lawyer-free zone. Rather, the role of the lawyer in restorative justice is different to that in criminal justice.
In all that we have heard and seen in recent months, from #MeToo to events closer to home, the time has surely come to put innovative justice as well as improvements in conventional justice onto the social and political agenda. That is if we are serious about improving our responses.
