List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.7.2 Arguments against the use of community restorative justice in cases of domestic violence Scholars find restorative justice inappropriate or less appropriate for domestic violence cases largely because
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Belknap and McDonald (2010:374) support restorative justice processes if the victims choose to use them;
however the victim should not be coerced to do so. Belknap and McDonald accept that restorative justice
“may be the best available alternative to the current court system, which seems ineffective at best and harmful to victims at worst”. Belknap and McDonald (2010:387) further argue that, “if victims of domestic violence have a voice, defendants take responsibility, and communities are more involved in decision making and monitoring domestic violence, particularly if these changes translate into increased victim safety, restorative justice can work”.
Uotila and Sambou (2010:190) explain “that victim offender mediation was introduced in Finland in the 1980s. It was used in intimate relationship violence cases from the onset of mediation practices. Despite the on-going debate questioning the suitability of mediation to domestic violence, there has been a steady annual increase in Finland in the number of domestic violence cases that apply mediation”.
For some scholars, restorative justice broadens the available outcomes of cases. Based on their experience of cases of domestic violence, Edwards and Haslet (2011:902) found that restorative justice is appropriate for such cases. They “witnessed willingness on the part of victims of violence to speak not only about their struggle and grief, but their resilience and strength”. Finally, Landrum (2011:425) points to the appropriateness of restorative justice for domestic violence cases and states without reservation that, mediation can be effective in almost any family law case, even those in which domestic violence is a factor.
3.7.2 Arguments against the use of community restorative justice in cases of domestic violence
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Fulkerson (2001:355) argues that power relations weigh heavily on whether restorative justice processes such as VOM can be effective. Fulkerson feels that mediation-oriented programmes may be ineffective due to the imbalance of power in families that are experiencing domestic violence. There is a risk that the power which the abuser holds over the victim in the family setting will also be a distorting factor in the mediation process. The abusive partner will find a way to prevail over the abused partner despite the mediator’s intervention. Thus the goal of mediation, an agreement, is not actually an agreement at all but rather another subtle capitulation by the abused to the power of the abuser. According to Hudson (2002:621), the case for restorative justice in response to domestic violence usually rests on two planks. Firstly, Hudson notes that the established formal criminal justice system has “allegedly failed to provide effective remedies for victims of domestic violence”. Secondly, Hudson suggests that “restorative justice has greater potential for providing satisfactory outcomes in more cases” (Hudson, 2002:621).
Coker (2004:1349) acknowledges that the criminal justice system’s focus on controlling crime has not provided a solution to the problem of domestic violence; any alternative intervention must be morally grounded since domestic violence is morally wrong. Curtis-Fawley and Daly (2005:603) explain that critics of restorative justice warn that it is not appropriate for domestic violence “because the process and outcomes are not sufficiently formal or stringent, and victims may be further victimised”.
In much the same vein, Daly and Stubbs (2006:18) indicate that the informality of the restorative justice process might reprivatise male intimate violence after decades of feminist activism to make it a public issue.
Nancarrow (2006:118) contends that feminists concerned about gender inequalities in the justice system acknowledge that this system is often not effective in delivering what women want, and need, for protection and validation. Female victims of domestic violence do not share the same perspective on the use of restorative justice. As noted in the previous section, Nancarrow (2006:101) conducted research with a group of indigenous and non-indigenous women in 2000 to obtain their perspectives “on the appropriateness of restorative justice in cases of domestic violence”. Both groups expressed support for some sort of amalgamation of the criminal justice system and restorative justice to address the inadequacies of each approach. However, on the one hand, according to the indigenous group, “restorative justice should be the prominent partner in an amalgamation, backed up by the criminal justice system”. On the other hand, “the non-indigenous group saw the criminal justice system as the best primary response and felt that it should be the prominent partner in any amalgamation”. Unlike the indigenous group, “the non-indigenous group believed that restorative justice could supplement the criminal justice system to deal with non-violent aspects of the case, on condition that these practices are victim-centred and that women are not coerced into them”
(Nancarrow, 2006:101).
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According to Van Wormer (2009:107), some experts have “ruled out the suitability of restorative techniques in cases of domestic violence because of the power imbalance in the relationship and the fact that the relationship between the offender and victim is often on-going. Others have advocated for restorative strategies for the same reason”.
Stubbs (2010:92) captures “three major critiques of restorative justice as a response to domestic violence.
Firstly, there are unequal power relationships between victims and perpetrators of domestic violence and the offender has the capacity to exert power over the victim and the process itself. Secondly, it is assumed that a uniform set of community values exists, that condemns violence against women. Finally, the emphasis on apology and forgiveness may be misplaced”. Stubbs notes that “supporters of restorative justice claim that it offers significant benefits to victims of crime and that it redresses the failure of the conventional criminal justice to attend to victims’ needs and interests”. “While restorative justice is victim-centred with claimed benefits such as numerous symbolic, material, therapeutic, and moral outcomes” Stubbs continues, “many of these claims have not been tested” (Stubbs, 2010:92).
Frederick and Lizdas (2010:50) argue that the people assisting with restorative justice should understand four things: “the dynamics of domestic violence; the harm done to a victim in the past and the likelihood of harm in the future; the likely response of the offender to any proposed resolution; and the dynamics, both political and personal, that might affect the process or the results”. Yet, Stubbs (2010:985) is concerned that domestic violence is highly gendered and submits that “generic models of restorative justice do not address the specific characteristics of gendered violence as they have a very limited vision of victims’ needs. If restorative justice is to be true to the promises it makes to victims, it may need to adopt models that have the potential to connect victims with services, support and outcomes beyond the apology or reparation that the offender may wish to, or be able to, offer”. CBPs and CAOs could represent such a model as described by Stubbs (2010:985).
The literature notes that traditionalists believe that certain aspects of customary law are good and need to be preserved. Since the function of the law is to meet the legal needs of the people it serves, traditional justice might serve some people’s justice needs when they are victims of domestic violence. Curran and Bonthuys (2004:2) point out that research would be “incomplete if it ignored access to justice in rural areas and under customary law”. Curran and Bonthuys (2004:2) submit that, “at the moment there is no comprehensive study, which evaluates the ability of customary law to respond to domestic violence against women”. This
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study may help fill this gap by analysing the traditional justice response to violence against women in rural areas.