Conventional and innovative justice responses to sexual violence
Nov 10, 2011
from the article by Kathleen Daly in ACSSA Issues:
Despite 30 years of significant change to the way the criminal justice system responds to sexual violence, conviction rates have gone down in Australia, Canada, and England and Wales. Victim/survivors continue to express dissatisfaction with how the police and courts handle their cases and with their experience of the trial process. Many commentators and researchers recognise that the crux of the problem is cultural beliefs about gender and sexuality, which dilute and undermine the intentions of rape law reform.2 These beliefs affect victims adversely, but at the same time, increased criminalisation and penalisation of offenders is not likely to yield constructive outcomes.
This paper reflects on the limits of legal reform in improving outcomes for victim/survivors. Given the extent of reform to procedural, substantive, and evidentiary aspects of sexual assault legal cases, we may have exhausted its potential to change the response to sexual assault. We may need to consider innovative justice responses, which may be part of the legal system or lie beyond it.
....Changing the way in which rape cases are handled in the legal system has proved to be even more challenging today than it was three decades ago. Justice remedies for the vast majority of victims of sexual violence are inadequate. In hindsight, we can see that incremental legal reform could only go so far. “Real rape” continues to construct everyday imaginings of what rape is to most victims, offenders, legal officials, and others in society.
Finding the right balance between censuring wrongs, validating and vindicating victims, protecting society, and providing supports and services for offenders and victims in a democratic society that is committed to the rule of law and due process for citizens is a significant and far-reaching task. It requires imaginative and innovative ways of thinking about justice beyond the standard approaches of prosecution and trial, or of increasing punishment.
Legal reform may improve the situation at the margins, but more visionary change is required. Rather than only trying to assist victims to fit better within the requirements of the law or to change legal language and procedures, innovative responses should be considered. These provide opportunities for victims to participate more directly in justice activities, to voice their stories, and to acknowledge and validate wrongs they have suffered. For the minority of cases that remain in the legal system, these activities are not a “second class” or inferior form of justice because some innovative responses do or can articulate with the formal criminal justice system. They may offer options for the vast majority of victims who do not report sexual assault to the police or whose cases never reach court.
If we listen closely to the many sources of dissatisfaction that victims have with the criminal justice system, they are about how system officials, the accused or convicted offender, and others do not fully acknowledge and recognise the harm caused (i.e., a lack of vindication and validation), the inability for a victim/survivor to tell the story of victimisation on her own terms (lack of voice), and loss of power in the justice process (lack of participation). These elements can be addressed by responses that are more dialogue-based and interactive and have a greater degree of active participation and decision-making by victim/survivors.
Innovative justice responses may or may not articulate with the criminal justice system; they can take place in many legal and organisational contexts or operate entirely in civil society. There are many ways that victims’ justice needs can be better addressed in the aftermath of rape. Openness to new ways of thinking about the problem, coupled with reflection and debate on desired justice goals, will be significant steps forward. [from the article]