Is restorative justice suited for gender-based violence?
Jul 26, 2011
from Sylvia Clute's article on Genuine Justice:
Feminists have long decried the deficiencies in the traditional criminal law system when it comes to gender-based violence. The criminal law system fails victims, offenders and the community; there are no winners. Most cases are never reported, and the reported cases have a high attrition rate. Few cases are actually prosecuted.
According to Melanie Randall, a law professor with expertise in legal remedies for gender violence, the needs of the victim are diametrically opposed to the needs of the criminal law system. That system is driven by complex rules; it challenges the victim’s credibility; she has no control; she must tell the state’s story instead of a coherent narrative around what happened to her. There is no protection against recall, and there is no safe face to face confrontation.
The criminal court process forces the victim to relive the experience, often reactivating the trauma after the victim has adjusted to it being in the past. This provokes symptoms of traumatic stress that causes some victims to freeze when testifying and be unable to recall the events, a sign that re-victimization is happening in court. If they lose it in court, they feel devastated and are often judged as deficient once again.
Being a contest between the state and the offender, the criminal process renders the community largely irrelevant. There are other systemic shortcomings that hinder the resolution of gender violence, such as gender inequality and separation based on class. Violence against women and children is not merely a “conflict,” it is complex and replete with issues of safety, subtle dynamics of control and coercion, and assumptions about social relationships that are often unconscious.
....So what does restorative justice have to offer that does work better? Women who have been sexually violated only participate if they consent to do so. The process begins with offenders taking responsibility, instead of the culture of denial that is promoted by the legal system in which defendants are often encouraged by their attorneys to plead not guilty, even when they are. Restorative justice also provides for community involvement.
Haskell sees restorative justice as meaningful for victims of gender violence because it provides validation, acknowledgment and safety. For offenders, it is an opportunity to make amends. It promotes social connection by providing a mental understanding of what the experience of the woman was like. If there was no resistance to the assault, the process permits the woman’s motivation to be considered, instead of automatically deeming it to have been consensual. It permits refutation of the notion that the woman was privileged to have had the offender want her. For the community, RJ provides consciousness raising and enhanced accountability.
While some would argue that the system should be balanced and mutually beneficial for all, Randall and Haskell see the ideal system as victim-driven, meaning the victim leads the process. In their view, the process should abandon the idea of neutrality and favor the victim who has been harmed. Safety and autonomy must be a priority, with continuous risk assessment and safety planning. There must be criteria for inclusion and exclusion and extensive preparation for all participants. Community members are to be trained to help reframe the narrative, and the process must be culturally competent. Lastly, the process needs to be trauma and psychologically informed.