Paper to International Conference on Restorative Justice,
Winchester, 28-31 March 2000.
This is inevitably a very sensitive subject, and especially so for a male author. I should like to say, as a preface, that I approach it because I as a man deplore what some men have done to women; that I have based the article mainly on female authors; and consulted female colleagues. Indeed it is not an original contribution, but an attempt to open up the subject, because there are reports that a restorative approach can be very helpful to victims of rape and sexual assault, and they should not be deprived of it because of a reluctance to discuss it.
The aim of this article is to test the principles of restorative justice by applying them to very serious cases. It will consider mainly those cases where the victim and the offender are acquainted with each other, which are some nine out of ten of reported cases (45 per cent acquaintances, 43 per cent intimates, in a Home Office study of 483 cases: Harris and Grace 1999: 6). This category largely overlaps with ‘simple rape’, where there are no aggravating circumstances such as violence, several assailants, or rape of a complete stranger (Goolsby 1990: 1183). Given the well known failings of the criminal justice system, especially in regard to victims of rape, should restorative justice be considered not as a supplement but as an alternative to the system? Very serious types of sexual offence will not be included, such as violent rape by a stranger, where if the man is convicted there is no question of anything but a custodial sentence, but most would agree that there should be a procedure in place for a woman to ask to make contact with him at a later stage, so that she can rid herself of her nightmares, as in the examples to be given later. This can also increase the man’s understanding of the seriousness of what he did, which will assist the treatment programme which should be available in prison. Nor will the question of child sexual abuse be considered here, although this too can be dealt with in a restorative way (Yantzi, 1998; Church Council 1996).
A basic principle of restorative justice is that when one person harms another, the primary aim should be to heal. All individual victims should be offered whatever help and support they need, by community-based organizations such as Victim Support, with specialist back-up where needed (except perhaps for some crimes whose emotional impact is usually slight). Secondly, where offenders are known, if there was a relationship between them and the victim there should be an opportunity to repair it; in any case the offender should be held responsible and contribute to the reparative process, and victims should be able to discuss with them how they can make appropriate reparation. Thirdly, many offenders have needs which have to be met if they are to be able to do what is required of them by making reparation and staying out of trouble. Fourthly, the community itself, through its individual members and its collective structures, should assist this process. The final dimension is crime reduction: we should learn from what the victim and offender say about how the offence occurred, and develop a strategy for crime reduction and social reform accordingly. The ideal is to empower communities and individuals, as far as is possible, to restore peace and harmony within themselves – or to create it.
The minimalist aim of any intervention in other people’s lives is not to cause any further harm: as the Latin tag says, primum non nocere. Half a world away from the ancient Romans the Inuit of northern Canada had a similar insight: an informal rule that ‘punishment must not cause more problems than the initial infraction’ (Cayley 1998: 208). So the next proposition is that there is ample evidence that in appropriate cases restorative justice can do what is claimed for it, provided that it is done well. This applies to all types of case, but in those where the victim is severely traumatized, such as rape and sexual assault, it is especially important. Some cases of ‘simple rape’ can be suitable; the need to empower the victim by helping her to reassert control over her own life has to be balanced against the need to protect her from re-victimization, but is jeopardized by overprotectiveness.
After considering the needs of victims, and then those of the offender and the community, the article will show how the criminal justice system fails to meet these, and suggest what restorative justice offers instead. Finally it will look at possible difficulties, both in the procedures and in the conduct of mediations and conferences, and how they can be overcome.
The words ‘mediation’ and ‘mediators’ will be used generically to include conferencing and facilitators, unless otherwise stated, although as will be seen later, there are important differences. By ‘community’ is meant mainly the ‘community of care’, the family and other people who are concerned about the victim and to the offender. When conferencing is used, these are the people from whom the participants will be invited to take part.
Restorative justice begins with victims, so let us begin by considering them. Suppose a young woman has reported that she was escorted home by a young man after a party, invited him in, and refused his suggestion that they go to bed, but that he then raped her. He admits that sexual intercourse took place, but claims that she consented.part.
What do victims want?
What will be the priorities of this young woman? There have been attempts to summarize what many victims want, and there is every reason to suppose that to a large extent they apply also to victims of rape and sexual assault by an acquaintance. We may expect that the young woman will want: an explanation of why the crime occurred, a recognition by the offender of what he has done, and his acknowledgement of responsibility for that harm (Gustafson, quoted by Cayley 1998: 226-7). The criminal justice process is focused only on whether the crime occurred, and does not meet the first requirement; and as we shall see, it actively discourages the other two.
A more detailed list of what victims want is given by Teresa Reynolds, policy and information manager for Victim Support (quoted by Wright 1997). Some of these can be provided by changes to the system, and there is already some progress: for example, to know what’s happening in the case. Some victims want retribution, but most, in Reynolds’s experience, do not. She states that victims want public acknowledgement that wrong has been done, and courts are a way of achieving this; but they allow no acknowledgement by the offender, which is central to restorative justice.
Among the other needs of victims listed by Reynolds, there are some where the system is improving, but which communities of care are better suited to provide, such as helping with the practical/emotional effects of crime and treating the victim sensitively and with respect. She also mentions providing a quick resolution of the case: it is true that the system could be speeded up, and that restorative justice always takes time to organize, and that victims’ decision to participate should not be rushed; but at present the restorative justice process usually begins sooner, and thus shows everyone that something is happening, which is what matters.
Thirdly, Reynolds lists some wishes of victims that merit further discussion.
To be heard and taken seriously. In the conventional Anglo-American system, the majority of offenders plead Guilty, and the victim gets no chance to speak at all. Where the plea is Not Guilty, a victim who is also a witness is asked to answer questions that try to establish whether the accused committed the crime, but are not concerned with the victim’s feelings. ‘Victim statements’ are due to be introduced in England and Wales in 2001, but research on pilot schemes questions whether they have clear and achievable aims (Morgan and Sanders (1999).
To know ‘Why me?’ This is a common wish of victims who were not acquainted with their offender, and the mediation/conferencing process is well suited to answering the question, which the conventional process does not address.
To know that the offence will not be repeated. This cannot of course be guaranteed, but researchers have reported that after they and the offender have met, both have an understanding of each other which makes it unlikely that the offender will repeat his behaviour. As Zehr says, ‘Victims often feel that safety is important. They want reassurance that this will not happen again – to them or to others.. They want to know that steps are being taken toward this end’ (Zehr 1995: 28) It must be said, however, that where there was already a relationship, there is some scepticism about whether the man will make promises that he will not keep, and this will be considered below. One of the advantages claimed for conferencing is that it brings together the communities of care which can not only provide support and reassurance for the victim, but also a combination of support and supervision of the offender.
To receive an apology from the offender Not all victims want this, but many do, and some also want some form of reparation from the offender as a sign of genuineness. In the conventional process, the only expression of regret is likely to be made by the defence lawyer, not the offender himself, in the context of a plea in mitigation of sentence, which lessens its credibility, to say the least, even if it is sincere.
To receive compensation This may be the tangible sign of a sincere apology, as mentioned above, or after an offence against property the victim may want the money to pay for the harm or loss. It does not however appear at the top of so many victims’ priorities. in Leeds and Coventry, for example, 62 per cent of victims thought it important, whereas 90 per cent attached significance to an apology (Umbreit and Roberts 1996: 91).
To be free of responsibility for decisions about the offender. This is a point that has consistently been argued by Victim Support in the UK (for example in Victim Support 1995). But two distinctions need to be made. Firstly, it is probably the consensus in the UK that it is in the interests neither of victims nor of offenders that victims should influence the amount of punishment (see for example Ashworth 1993), but this is by no means the case in the United States. It could be a burden of anxiety for some victims and even place them at risk of retaliation, and it would make sentences even more inconsistent. Secondly, however, the same objections do not apply to reparation, where it seems entirely appropriate that victims should express a view about what they feel to be appropriate. If we are to be protective but not overprotective, victims should be empowered by being enabled to regain control. ‘The fastest recovery for a victim occurs when the victim starts controlling her life again as soon as possible after the rape’ Goolsby 1990: 1206-7, 1187).
Victims and criminal justice
Victims of rape and sexual assault must feel, more than most, that the criminal justice system is like a surgeon who operates but does not bind up the wound. Academic careers have been built on demonstrating how much pain it causes them. It does so in three main ways: before the court process, during the trial, and as a result of the side-effects of punishing the offender.
The first two have been well documented, and since they were exposed, substantial progress has been made in treating victims better, notably by giving them more information. But Victim Support (2001) still finds it necessary to demand, for example, that dedicated examination suites for victims of rape should be available nationwide. Rape victims in a small sample whose cases were recorded in 1993 to 1995 still found police attitudes and practices varying from ‘caring and supportive’ to ‘amateurish’ and ‘a mockery’ (Temkin 1999). There are still cases where the Crown Prosecution Service discontinues a case because there is insufficient evidence, or where the charge is reduced in order to persuade the accused to plead guilty.
A victim can still be treated as a cog in the machinery of justice, and punished for objecting to it: for example, a woman in Marion County, Illinois, whose alleged rapist was released without having to post bail, made a protest by failing to appear to give evidence, and was jailed for contempt of court (Evansville Courier and Express 19 February 2001).
If the case does get to court, the victim is often subjected to a demeaning cross-examination by the defending counsel. Since it is usually one person’s word against the other’s, the case often depends on whose evidence the jury believes, so the standard defence tactic is to try to ‘shake’ the victim, to make her appear confused and unreliable. ‘Harassment does still happen’ and discrediting the complainant ‘was the central strategy in the defence armoury’ (Temkin 2000: 229, 231; based on interviews done in 1995-7). Counsel may also bring up the victim’s previous sexual conduct; in the hope of persuading the jury that she has consented to sex previously and was therefore doing so on this occasion. This was so widely done that it was restricted in the Youth Justice and Criminal Evidence Act 1999; which is in turn being challenged in the House of Lords as contrary to the right to a fair trial (Guardian 27 March 2001). Some lawyers question whether such interrogation is even relevant: one judge told the Home Office researchers: ‘It is wrong simply to say to a girl “You will go with anybody”, because she may go with anybody except him’ (Harris and Grace 1999: 48). For that matter, she may have gone with him previously but not wished to do so on the night in question (Cloke 1988), the situation alleged in the current House of Lords case. Lees reports examples of defence counsel who humiliated women by asking what underwear they had been wearing, about their menstrual cycles, if they had had a black boyfriend and whether or not they were on benefit (Lees 1994). As one QC told Professor Temkin, ‘juries are not very good at convicting when somebody can be depicted as a slut’ (Temkin 2000; Guardian, 8 March 2000). It is still possible for a senior judge, Lord Abernethy in the Scottish High Court, to maintain that rape is not rape without the use or threat of force (Independent, 27 March 2001). It has become a commonplace to say that ‘The court often in effect puts the victim on trial instead of the alleged rapist’ (Goolsby 1990: 1185).
After going through all this, many victims still see the defendant, whom they know to be guilty, acquitted. Daly (forthcoming), for example, shows that in South Australian juvenile courts in 1998, 72 per cent of all cases were proved, but only 33 per cent of sexual offences. In a study in England and Wales, a quarter of all cases reaching Crown Court ended in an acquittal, but half of those where the woman was over 25 years old. Many more were discontinued by police or prosecutors for various reasons, and only 6 per cent led to a conviction (Harris and Grace 1999: 12, 31, 33).
If in spite of this the defendant is convicted, the defence makes a plea in mitigation of sentence, and this gives another chance to denigrate the victim’s character. According to the Victim’s charter the prosecution is supposed to challenge unwarranted assertions, but this is seldom done – among other reasons, no doubt, because the prosecutor doesn’t know enough about the victim to be able to deny them confidently. This is all the more serious because court proceedings are privileged, and can be fully reported by the local or even national media. As Goolsby (1990: 1195) points out, the legal profession’s role should be to deal with hurt and conflict, but it fails to deal with hurt and anger, and ‘By increasing hostility and polarizing the parties, the criminal justice system impairs the parties’ ability to interact if future contact is necessary.’
Side-effects of punishment
Paradoxically, these problems are aggravated by the steady increase in the punishment for rape. The fear of punishment can lead the offender to blame the victim, intimidate her from giving evidence, or retaliate against her, and occasionally it leads a woman to settle an old score by making a false accusation (Wright 1996: 32-33). The then Lord Chief Justice, Lord Lane, laid down that the ‘benchmark’ sentence for rape, with a plea of Not Guilty and with neither aggravation nor mitigation, starts at 5 years’ imprisonment (R. v. Billam, February 1986). But some lawyers and even judges think that stiffer sentences make juries less likely to convict; as one police officer commented, ‘Juries think “do I really put this nice bloke from the students union unto prison for rape when, you know, they were both drunk as skunks?” ’ (Harris and Grace 1999: 38, 37). When the accused does not conform to the jury’s stereotype of a ‘monster’, ‘the severity of punishment required by many current rape statutes may actually work in favour of the defendant’, so a lesser penalty could aid prosecutors in getting convictions (Sauter 1993: 183-4).
A case has been made for creating a separate offence of ‘date rape’ with a lower maximum penalty, in the hope of securing more convictions – among others by Jill Saward, herself the victim of a brutal and much publicized rape by a stranger (Daily Mail, 4 July 2000). From her own experience, Carol Sarler also criticizes women’s groups who refuse to make a distinction between ‘the boyfriend we fancied last night but don’t to-night’ and the male who dragged her into bushes and sexually assaulted her at knifepoint at the age of 10. ‘Believe me’, she writes, ‘I’ll take the inebriated boyfriend first, any time’ (Observer, 9 April 2000). There are arguments against such changes in the law, however, because of the difficulty of classification, and because for some women ‘date rape’ cannot be brushed aside so lightly: at least one young woman, raped after her drink was spiked in a night club, later committed suicide (Guardian, 13 December 2000).
As always with punishment, the offender’s attention is focused on the impact on himself, not of his victim: this system does not encourage him to accept responsibility. It may also discourage some victims from reporting the offence at all: where a boyfriend or acquaintance has been guilty of ‘what is technically in law a rape [but] is little more than bad manners and a lack of consideration’, as Ann Mallalieu QC has put it (Mail on Sunday, 26 March 1995), she may feel that he should be shown that he cannot get away with it, but that she does not want to be responsible for his being sent to prison for several years; in such a case she has the choice of making the point by reporting the offence and then refusing to give evidence, which would expose her to strong pressure from the police and the court, possibly even including the threat of imprisonment, or doing nothing. As Goolsby (1990: 1187) says, ‘In crimes within relationships, victims may be reluctant to report or to press charges because the victims do not want the offender to be punished or because the victims fear hostility or retribution from the offender.’ Juries may feel the same way: in the experience of Lady Mallalieu (ibid.), ‘We are in danger of putting juries in a position where they prefer to acquit rather than risk a defendant, whom they believe to be guilty, being sent to prison for many years’. The academic Sue Lees agrees: ‘The new emphasis on heavier sentences for rapists has, I believe, made it increasingly difficult [for the jury to find them guilty]’ (New Statesman, 24 November 1999). Hence some victims are turning to the civil law: since it does not entail such heavy penalties, it does not require the ‘beyond reasonable doubt’ standard of proof; though there are other drawbacks from the victim’s point of view (Sauter 1993: 184-5.
Mandatory life sentences for repeat offenders could actually make women more vulnerable by increasing the possibility of murder following a rape, in the view of the Lord Chief Justice and of Women Against Rape. At the very least, Helena Kennedy QC has argued (Times, 12 March 1996), ‘rapists facing automatic life sentences have no incentive to plead guilty’ but on the contrary will contest even ‘the most clear-cut cases, subjecting their victims to further humiliation and trauma’ (see also Natasha Walter, Guardian, 19 March 1996). Obviously this case should not be overstated, but it is to say the least likely that every increase in the benchmark sentence will decrease the proportion of defendants who are willing to spare the victim the ordeal of a trial by pleading guilty, and in view of the notoriously high acquittal rate it is rational for them to calculate that it is worth forfeiting the sentence discount for a guilty plea, in order to pursue the quite high chance of securing an acquittal and escaping punishment altogether.
The more serious the punishment, the more important it is to have safeguards against wrongful conviction; but also the greater the pressure on the accused to use or abuse those safeguards to save his skin. All in all this is not in the interests of the victim or the community: offenders are not prosecuted, or are acquitted. Politicians who determine penalties, and courts which impose them, are fond of saying that they are ‘sending out a message’, but the message which is received may be the wrong one: that people should not break the law because if they do they may be punished, but if they deny or minimize their responsibility they may escape.
The potential of restorative justice
The restorative message would be that people should not harm others, and if they do they should accept responsibility and do what they can to repair the harm. However, for those who are not prepared to contemplate that restorative justice could replace the conventional punitive response, it should be remembered that the restorative justice process is also possible after sentencing. In some very serious sexual assault cases victim/offender dialogue has been helpful to both, even where the offender was already serving a prison sentence. For example:
In one case of rape by a stranger in northern Wisconsin, a man stopped by, pretending to use the phone, checked out the house and then used a knife and gun to assault/rape the woman. Eventually her husband left her, and got custody of their only child; she moved to another town, and changed her name. Five years later she wanted to meet with the man. The Iowa Peace Institute (IPI) arranged it in a maximum security prison in Wisconsin. They met for about 4 hours. It went very well and she reported back that it was very helpful. The IPI were able to keep in touch with her for about a year, then she moved.
In another case a woman had been sexually assaulted by her older brother for many years. He was in prison on another charge and agreed to meet with her, even though he had always denied ever touching her and no one in the family ever acknowledged it. He was the oldest of several children, and she was the youngest. The IPI organized a meeting in the prison. The man admitted his prior acts and heard her entire story. It really helped the woman; she has since telephoned the IPI to say that she is engaged to be married (big news as she had never had a successful relationship with a man) and that this past Christmas was the first time the entire family had been together for Christmas in over 20 years. (Information from Kittle, 2001)
In another one case a serial sexual offender, and probably his victims, were deemed not yet ready for a circle sentencing process; the judge felt also that the community wounds created by one man’s sexual offences were ‘still too raw’, and imposed a prison sentence followed by probation, during which a circle could be arranged ‘when the time is right’ (Cayley 1998: 212-3)
What restorative justice offers victims
Returning to the case of the young woman mentioned earlier. You are visiting her to help her consider her options. What can you say? You can explain that the prosecutor may consider that there is a less than 50/50 chance that a jury will believe her ‘beyond reasonable doubt’, and therefore discontinue the case. Or the young man may agree to plead guilty to a charge of attempted rape, which she may well find inadequate. Or the case may go to trial, she would have to give evidence and be cross-examined, but there would still be a high chance of an acquittal, whether because the jury was not sure, or because they considered that he was guilty but did not deserve the five-year sentence which they knew was likely. She would not have the chance to tell him the effect he had had on her, he would go away believing that he had been in the right, and possibly that she had been vindictive, so that he would not have learnt anything about relationships with the opposite sex. ‘This failed communication between the victim and the offender precipitates the rape in at least some cases’ (Goolsby 1990: 1183); and if failure to communicate is the problem, an approach that promotes communication rather than stifles it may well be appropriate.
In restorative justice, in contrast, both parties may learn: on hearing the man’s account, the victim may understand how she had behaved in a way that the offender misinterpreted or chose to ignore. This gives an opportunity for the offender to express remorse, and if his apology is accepted, it may reduce the victim’s hostility; but it can also allow her to express her intense rage, providing an outlet which can help in healing psychological wounds and regaining control of her life (Sauter 1993: 185).
On the specific subject of communication with the offender, an early British Crime Survey (when victim/offender mediation was relatively unknown) found that 52 per cent of victims who had reported various types of offence to the police said they would have accepted the chance of meeting the offender in order ‘to agree a way in which the offender could make a repayment for what he had done’ (with higher figures for burglary and theft, and lower for threats and robbery) (Maguire and Corbett 1987:227-231).
Thus since the offender in our example had not denied that intercourse took place, you could tell her about another option. If he agreed, she could meet him in the presence of mediators, and her community of care if she wanted it, describe what happened in her own words, and leave him in no doubt about what is and is not acceptable. If she tries to do this in the courtroom, she is liable to be told not to make a ‘speech’ (Lees 1994). Afterwards she would be able to meet him again, if she wanted to, without undue embarrassment. There would be no trial, and the whole thing would be over much more quickly. This is not to make any assertions, but merely to pose the question: is it not possible that some women would prefer this option, and ought it not therefore to be available to them?
Effects on men
What about the man? Is this too lenient? Restorative justice does not operate on the tough/lenient dimension; instead it asks: Is it not appropriate to encourage offenders to face what they have done and take a course of action which has benefits for the victim, just as there is a sentence discount for pleading guilty and sparing her the ordeal of a trial? As we have seen, the effect of a trial is to encourage them to deny what they have done or make excuses for it; they see the woman as the person responsible for their punishment, whereas in restorative justice they are encouraged to see her as the person they hurt. ’By increasing hostility and polarizing the parties, the criminal justice system impairs the parties’ ability to interact if future contact is necessary’ (Goolsby 1990: 1195). Facing a victim is certainly not more lenient than discontinuance of the trial; and it may be that the offender will have something to say from which the woman can also gain a better understanding of what took place between them. For those men who recognized that they overstepped the mark, there should be an opportunity to apologize. Mediation should in any case be voluntary, although there would be some expectation that he would take part if the victim wanted it. It is in his interest to do so, because the matter is likely to be handled more quickly, and a conference can proceed without any admission of guilt by the man; he only has ‘not to deny’ the charges, and can opt for a trial at any time (Braithwaite and Daly 1995: 219).
As Goolsby says (1990: 1207-8), since rapists use sexuality to express anger or power, ‘sexual conquest’, a restorative method can help such men to deal with relationships; thus it may change some of the societal causes of rape, because it does not threaten the man and so he is more likely to be receptive to the victim’s viewpoint; nor does it blame the victim.
The public interest
Does this serve the public interest? It is sometimes suggested that this approach would ‘send out the wrong signals’, by indicating that rape is not so serious and by not taking place in public. In the criminal justice system, in the rare cases where there is a conviction, the message is sent out that the offender is punished because he has broken the law. But this requires a public trial, and even in Britain, where the victim’s name cannot be reported in the media, many victims do not wish to make a public appearance, and it is wrong to require them to do so for the sake of a notional ‘message’ to the public. Restorative justice respects the victim’s confidentiality, and it enables her to give a different message, not to the public but to the offender: if he meets her, she will let him know that the reason his behaviour was wrong was that he hurt her. In some cases it may be appropriate touse conferencing rather than mediation; then he would have to listen and reply in front of his own relatives and hers, and they in turn would hear the more detailed message coming from the meeting. Braithwaite and Daly (1995:225-6) argue that ‘traditional mediation risks a limited, privatised justice’, and that a conference bringing together a ‘community of concern’ can deal with problems such as attempts at domination better than mediation, and certainly better than courts . But here too the victim should be able to choose whether the presence of her supporters (and therefore the offender’s also), or a one-to-one meeting, with mediators, would be more helpful to her.
But how legitimate is the public interest? Just as, in the debate about sentencing, there is often a conflict between punishment and rehabilitation, so also there may be a conflict between the alleged public interest in bringing wrongdoing to light so that it is seen to be dealt with, and the interest of the woman in recovering from the experience and of the man in learning from it. If so, the interest of the participants, especially the victim, should surely come first. Denunciation and crime reduction should be tackled in other ways.
How to avoid making things worse
Returning to the point that we must aim at the very least not to cause any further harm: what are the risks? We need to distinguish those which are inherent in the idea of communication between victims and offenders, and those which are the result of poor practice. Of the main concerns that have been expressed, some apply to mediation generally, and some especially to sensitive fields such as sexual offences. They include pushing people towards mediation when they do not want it, or at least are not ready for it; if they have embarked on mediation, pushing them towards an agreement rather that concentrate on the communication and the relationships; domination by one party, so that the other acquiesces in an agreement that does not meet her needs; and a man who appears to make an agreement but reverts to his former abusive behaviour. Many of the fears concern the possible behaviour of the man: that he will either dominate the proceedings, or will pretend to comply and make promises which he does not keep.
The first safeguard is to be clear about the aims and objectives of the offer to promote communication, and hence the criteria for success. Bush and Folger (1994) have written about ‘transformative’ mediation, Umbreit (1995) also calls it ‘humanistic’, but in both cases the emphasis is on the needs of the parties to have a dialogue and focus on their relationship, rather than on the wish of the mediators to achieve a written agreement, a ‘result’. This does not necessarily imply that the relationship will continue, but it improves the chance that the parties will at least be able to pass each other in the street without embarrassment or fear. Mediation Services in Winnipeg, Manitoba, carefully refrains from naming a specific outcome, because that is for the participants to decide; its first goal is therefore ‘To provide a safe place for victims to take back control of their lives’, rather than the more conveniently measurable and politically attractive aims of reducing reconvictions and costs, although that programme achieved good results on those dimensions too (Lajeunesse 2000). Daly agrees about the aim: a conference ‘provides an opportunity for the stories of victimization to be heard’, but there should be no expectation ’that participants will want to reconcile or that victims can ever forgive the offender or even that offenders will feel remorse for their actions’ (Daly, forthcoming; italics hers).
This is about empowerment, and that means choice. As Morris and Gelsthorpe remind us (2000: 418), ‘the availability of restorative processes does not prevent women who prefer to use the criminal justice system from doing so.’ The woman should be able to choose between criminal prosecution, civil action, or mediation; thus asserting her own rights rather than passively rely on the legal system to do it for her (Goolsby 1990: 1206-7).
Some examples will give an indication of good practice.
The overarching requirement is for training of co-ordinators and mediators to understand these principles and aims, and carry them out, so that they are reflected in both the procedures and the mediation practice itself. Training should include, for example, speakers from women’s groups (Braithwaite and Daly 1995: 226)
Procedures need to include the preparation and assessment of cases, and appropriate timing. Cases where there may be a risk of harm to participants should be screened out (Sauter 1993: 188), especially where for example there are mental health concerns that are not being met by medication (Drew 2001), but also those which are appropriate should be screened in, especially where there was a relationship (Goolsby 1990: 1201). Those who visit victims to explain what mediation can offer should be carefully selected and trained. Concern has been expressed that the victim should be put under no pressure to take part in mediation or conferencing; but it is important, conversely, that those who might want to take part should be made fully aware of the opportunity, with all its likely benefits and disadvantages, so that they can make an informed choice. One form of pressure is insensitive timing: the timing should as far as possible be adapted to those of the participants, especially the victim, and not those of the system. Thought needs to be given to ways of determining the best stage, if any, of the proceedings to consider mediation: pre-charge, pre-trial or post-conviction. The visitor must be able to reassure the victim that her address will not be revealed to the offender (if he did not already know it) apply to the conventional process as much as to any restorative justice process. At some points of the restorative process victims will need support, and this is one of the aims for which Victim Support is asking for additional funding from the Home Office (Victim Support 2001: 6).
As regards techniques used by mediators in the session itself, in their conduct of the meeting, they can support the woman, challenge the man (or indeed support him if he needs it) and ensure procedural fairness, for example by holding separate sessions (Goolsby 1990: 1210). The use of two mediators, one male and one female, is probably preferable.
Although, for those who want it, a face-to-face meeting can be the most satisfactory, it should be remembered that indirect mediation (‘shuttle diplomacy’) is also available; for a woman who wishes to communicate with her attacker but is fearful of facing him, there should be the option of conveying messages by mediators, or of asking someone else to represent her, so that she is empowered and there is no question of disempowering her by putting pressure on her to participate (Goolsby 1990: 1212).
Another method of countering possible attempts at domination by the man is the use of conferencing rather than one-to-one victim/offender mediation, so that ‘Friends and families can also provide a supportive base for [the woman’s] voice to be heard or, if appropriate, [to] speak for the woman, more powerfully than any prosecutor in a criminal court’; ‘Violent men may be unable to “hear” their female partners, but they are likely to find it more difficult not to hear the voices of concern from their friends, their parents, their partners’ parents, their siblings and so on’ (Morris and Gelsthorpe 2000: 417).
It should not be assumed that the mediation can be sufficient in itself; arrangements are needed to ensure that any agreements are kept, and to enable the offender to keep them, for example by providing sexual offender treatment programmes, or circles of support; in the case of conferencing, the offender’s extended family and community members may provide the combination of supervision and support that many sexual offenders need, and can help monitoring and informal enforcement after the restorative justice intervention. More than one meeting is likely to be necessary (Nicholl 2001), and the meetings themselves, however well they go, should not be expected to be enough to produce lasting change..
As was said at the beginning, there is no unequivocal answer that will fit every case. Daly (2000) ‘can neither fully endorse not disparage restorative justice processes in responding to sexualised violence or other gendered harms’. The case for restorative justice is made strongly yet cautiously by Cayley (1998: 219):
If contrition is possible for the offender, it is the victim’s suffering above all that is likely to trigger it. If healing and reconciliation are possible for the victim, it is the humanization that occurs when an offender acknowledges and tries to atone for what he has done that is most likely to bring it about.
From this it may be concluded that women have a right to choose a method which offers the possibility of alleviating their pain; the indications are that provided it is adequately resourced it can be more empowering for them than the conventional criminal justice system. But restorative justice is not only concerned with victims: what does it offer offenders? For the majority of the cases discussed in this paper, that is cases where the offender and victim already had an acquaintanceship or relationship, .it enables them to understand not only that what they did was wrong because it broke the law, but why it was wrong: because it violated the woman. If the woman herself wants to tell him, it gives her the opportunity, in a way that no court trial can do; otherwise the lesson can be put across by other people on her behalf.
Finally the community should benefit when both the victim and the offender are enabled to resume their places in it, and the knowledge gained by them and other members of the community who had a part in the process can contribute to a process of public education and crime reduction
This paper was presented to conference, ‘Restorative and community justice: inspiring the future’, Winchester, 28-31 March 2001
I am grateful to Margarita Zernova and Debby Kivimaa for comments on earlier drafts of this paper, and to all the e-mail correspondents who also provided valuable information and views.
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