List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.7.1 Arguments in favour of the use of community restorative justice in cases of domestic violence
3-73
for resolution by traditional courts. As discussed earlier, the proposed but unsuccessful Traditional Courts Bill (TCB) excluded domestic violence. The first two sections raise opposing arguments regarding restorative justice and the last two raise opposing arguments relative to the traditional justice system.
3.7.1 Arguments in favour of the use of community restorative justice in cases of domestic
3-74
especially when they do not wish to end their relationship for emotional, financial or cultural reasons”.
Morris and Gelsthorpe argue reasons such as children, love, the desire to save the marriage, residential challenges, lack of financial resources, fear of the offender influence the choices women make and it should be an independent choice “that best suits them rather than professionals deciding for them” (Morris and Gelsthorpe, 2003:132). Daly (2003:209) concedes that “face-to-face encounters between victims and offenders and their supporters is a practice worth maintaining, and perhaps enlarging, although we should not expect it to deliver strong stories of repair and goodwill most of the time”.
Dissel and Ngubeni’s (2003:12) research “with 21 female victims of domestic violence in South Africa who, six to 18 months earlier, had completed a mediation process, revealed that restorative justice practices can be successfully used in domestic violence cases, and that it can result in lasting and meaningful change”. Dissel and Ngubeni argue that the research findings indicate that restorative justice practices are relevant in the majority of cases reviewed and are understood within African culture. Dissel and Ngubeni point out that women “felt that mediation provided a safe space to speak” (Dissel and Ngubeni, 2003:6-8).
Edwards and Sharpe (2004:22) suggest that restorative justice holds theoretical promise as an intervention in domestic violence, offering victims and offenders a choice of avenues to meet particular needs. Facilitators help maintain focus during the dialogue and improve communication in constructive ways. The parties are given an opportunity to explain and understand issues that they were not previously able to explore together.
These authors argue that despite the risks involved in the restorative justice process, there is evidence that some domestic violence victims and offenders have found value in participating in this process (Edwards and Sharpe, 2004:22).
Grauwiller and Mills (2004:66) favour restorative justice as a process that “moves intimate abuse beyond the narrow parameters of mainstream feminism, allowing for the possibility of reconceptualising domestic violence to incorporate its nuances and dynamics. This offers the opportunity to address the problem more holistically and directly. It also provides a more culturally specific response that addresses the unique gender dimensions of the problem, including violence by both men and women in heterosexual and homosexual relationships”. Restorative justice provides the kind of justice that women seek, which is non- threatening and healing-oriented (Grauwiller and Mills, 2004:63).
Similarly, Curtis-Fawley and Daly (2005:612) “conducted interviews with victim advocates in two South Australian states on their views on the appropriateness of restorative justice strategies for the women they serve. Twelve of the 15 advocates interviewed held favourable attitudes towards restorative justice, which
3-75
most saw as a positive alternative to criminal justice processes. Those who had unfavourable attitudes were unfamiliar with the process and seem to have confused conferencing with mediation”. Mills et al (2006:357) in support suggest that alternative approaches to criminal justice “may be particularly useful in domestic violence cases because of the unique relationship between the victim and the offender”. Many victims and offenders continue in their relationship regardless of the violent behaviour that has developed.
A number of studies demonstrate victim interest in the use of restorative justice for domestic violence cases.
Nancarrow’s (2006: 101) study compared an indigenous and non-indigenous group in 2000 in order to obtain their perspectives on the appropriateness of restorative justice in cases of domestic violence. “The indigenous women believed that restorative justice offers hope for a more effective justice response to domestic violence” (Nancarrow, 2006: 101).
Burkemper and Balsam (2007: 127) note that some victims of domestic violence may want to engage in a restorative justice process. Burkemper and Balsam (2007: 133) point out that “where restorative justice practices have been used in domestic violence situations, they have resulted in greater victim healing and changes in offender beliefs and behaviours and that those that desire to participate in such processes should be given the opportunity to do so”.
Presser and Gaarder (2000:186) regard “restorative strategies as a viable alternative to standard practices.
The restorative justice model acknowledges that many people seek to end violence, but not the relationship”.
To Van Wormer (2009:113) “the process serves partners and those who would like to separate in a more amicable fashion better than standard adversarial disputes”.
Van Wormer (2009:108) argue further that the “results of victim satisfaction surveys show that even when the prosecution of a perpetrator of domestic crime has been successful, the results may not meet the needs of the victim survivor. In addition women victims had a negative view of the criminal justice system. Most expressed the desire to make the decision whether or not to have the person arrested and whether or not to withdraw the charges at a later stage. Lack of control over the process was one of the key determinants of dissatisfaction; if the case comes to trial and the victim is forced to testify, what she says against her partner may compromise her safety later on. The restorative process is an informal method that stresses resolution through dialogue and is consistent with women’s need to speak on their own behalf.
3-76
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