List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.7.6 The debate on whether domestic violence cases are a public or private matter in plural legal systems
The literature presents a wide range of perspectives on the reasons why victims of domestic violence have and still are resisting the criminalisation of domestic violence, stating that is a private matter and not a public crime. Various scholars oppose this position, which they say may jeopardise the seriousness of action against domestic violence. However, some scholars sympathise with the victim’s point of view that a private-based approach such as restorative justice better satisfies their needs and interests than a system designed for an abstract “public interest” (Bennet, 2011:247).
Hanna (1996:1868) contends that domestic violence is a public crime; therefore, the state has a responsibility to intervene aggressively. This sends and follows through on the message that the state will not tolerate violence of any kind. This argument is rooted in the feminist principle that, when the state refuses to intervene based on the rationale that domestic violence is a private family matter; it not only condones but promotes such violence. Hanna (1996: 1869) adds that “shielding women who do not want to use the criminal justice system reinforces the idea that domestic violence is a private crime without social consequences and ultimately marginalises and isolates women who are not expected to respond to such violence on a broader scale”. Hanna (1996: 1870) notes that, feminists argue that private violence should be conceptualised as a public issue in order to compel state intervention. The goal is to punish the offender in order to protect potential victims. However, Hanna observes that the feminist public/private paradigm fails to articulate what the responsibilities of individual women are and why it is necessary for them to prosecute despite their reluctance to do so. “Although feminist theorists have called on the state to respond to domestic violence, they have not necessarily advocated that women be forced into the criminal justice system against their will. Furthermore, the public law model on which the criminal justice system is based has been strongly criticised for generally failing to respond to the needs of crime victims”. Presser and Gaarder (2000:188) believe that “the restorative justice perspective reconciles the private-public distinction that underpins the problem of domestic violence. Perpetrators of domestic violence support the view that such violence is private. It is argued that the internal affairs of the marriage are inappropriate material for regulation by a regime of formal act-oriented rules” (Presser and Gaarder, 2000:179).
On the other hand, Coker (2002:131) contends that when restorative justice is applied to domestic violence cases, the reliance on the private realms of family and community threatens to reverse progress by pushing
3-84
domestic violence back into the realm of the ‘private’. Public punishment marks the violence as serious and sends a clear social message that abuse is unacceptable. Coker (2002:131) maintains that, while the feminist critique of the public /private distinction is important, “it is an incomplete analysis of the relationship between abused women and the state”. It is inaccurate to describe the state response to domestic violence as a refusal to intervene in ‘private family’ matters. Race and class mark the history of the state’s relationship with families in general and domestic violence in particular. Furthermore, “feminists have paid too little attention to the dangers of a focus on making domestic violence a public problem” (Coker, 2002:132).
However, Coker (2002:149) argues that feminist critics are right in worrying that restorative justice processes may privatise domestic violence, creating “second rate justice that offers little protection to abused women”. Indeed, current restorative justice processes seem largely inadequate in addressing domestic violence.
Dissel and Ngubeni’s (2003:9) research findings revealed that women desire privacy; their interviews with victims of domestic violence showed that victims opted for mediation “with only those directly involved in the dispute. Most of the respondents indicated that they were happy to have the matter resolved in private without other people witnessing the process. They also preferred not to have other people interfering in their domestic affairs”. However, Braithwaite (2003:159) notes that, by not taking such crimes to court, restorative justice might fail to treat them seriously. Worst of all, this might result in family violence being treated as a private matter rather than a social problem whose dimensions are profoundly public. Morris and Gelsthorpe (2003:131) concur with the view that restorative justice decriminalises men’s violence by according it ‘private’ status.
Mills and Grauwiller (2006:366) add that, on the one hand, restorative justice “approaches may re-privatise domestic violence by locating the solution in a patriarchal family”. On the other hand, scholars such as Daly and Stubbs (2006:18) and Presser and Gaarder (2000:175) contend that the question of whether domestic violence cases are even susceptible to restorative justice depends on whether such violence is considered a public or private matter. For Daly and Stubbs (2006:18), the informality of restorative justice “re-privatises male intimate violence after decades of feminist activism to make it a public issue”.
Frederick and Lizdas (2010:49) argue that the “criminal justice system’s response to domestic violence (which serves as the chief method whereby offenders are held publicly accountable) is designed, in part, to cut through the secrecy surrounding abuse and to undermine communities’ tacit acceptance of violence against women”. Frederick and Lizdas further argue that “restorative justice practices simply undercut the public accountability function of the justice system; the more private process could actually leave many
3-85
women unprotected and could inadvertently slow the progress toward ending domestic violence. Therefore domestic violence cases should not be diverted into restorative justice programs that allow the offender to evade public accountability”. According to Nancarrow (2010:143), for indigenous women, community involvement in administering justice does not represent the privatisation of crime; rather, it represents an alternative public realm, which has more meaning and is safer than the state’s involvement in administering justice for indigenous people. Froestad and Shearing (2011:543) argue that in relationships with acute power imbalances such as domestic violence, the concern is that restorative justice practices may ‘privatise’ the response to domestic violence and thus trivialise offences that the feminist movement has only recently managed to have recognised as particular and serious. Edward and Haslett (2003:7) concede that concerns about privatising continue to “be the subject of much discussion among members of the movement against domestic violence; the focus should be the victim’s wishes”.
Regarding the traditional justice system, Vorster (2001:53), points out that the traditional court process is public – open to all adults. Moult’s (2005:21) research found that the private/public discourse in traditional justice is a matter of discretion. Some Induna are sensitive to the fact that many people are not comfortable talking about their issues in public. “Community members are cleared from the meeting and proceedings resume with just the parties and the mediator present. This is particularly significant in rural settings where the entire village attends cases” (Moult, 2005:21). Curran and Bonthuys (2004:9) explain that the “traditional ways of dealing with matrimonial problems, including domestic violence, enable women to seek assistance from others, including their own and their husband’s families, rather than bringing the issue to public attention by approaching the traditional leader. Many women share their families’ reluctance to expose issues of domestic violence to the public gaze and are thus unlikely to seek outside assistance”. To these scholars women in traditional communities wish to retain privacy about domestic matters. Bringing domestic violence cases to public forum may not just publicly expose domestic problems but also give the appearance that one’s family is failing to remedy family problems (Curran and Bonthuys, 2004:9) yet familhood solidarity is at the centre of traditional communities.
Finally, Roche (2004:201) argues that the legal distinction between the private and the public has been flagged as contributing to concealing and legitimising the subordination of vulnerable groups within society.
“Just as respecting the privacy of the family has hidden problems such as domestic violence, respecting the privacy of restorative justice deliberations may also hide abuses which can occur within the process itself.
Due consideration should be given to the ways privacy needs can be reconciled with those of accountability”.
3-86
3.8 The Unsettled Questions of Whether Community Restorative Justice is Appropriate for Domestic Violence Cases and Whether Domestic Violence is a Public or Private Matter
As the above discussion shows, the debate on the appropriateness of the use of community restorative justice for domestic violence cases has not been resolved. Julich (2010: 250) notes that there is a paucity of research on the effectiveness of programmes that use restorative justice to address domestic violence. Julich (2010:
250, 251) contends that it is too early to tell if victims can achieve a sense of justice through restorative justice. Restorative justice must develop a practice that has the ability to negate the power imbalance inherent in domestic violence. In its current form, restorative justice has limited potential to address domestic violence. Practitioners should avoid reflecting patriarchal structures within society that revictimise and further marginalise victims.
Stubbs (2010:985) points to the need for trans-disciplinary research to address the macro- and micro- foundations of restorative justice in cases of domestic violence. Stubbs argues, “We need to know about the pre-conditions of effective dialogue in restorative justice exchanges and to acknowledge the difficulties of screening domestic violence cases suitable for restorative justice”. The current research study is a step in this direction. The following section considers a conceptual model for CRJ and the nexus between CRJ and domestic violence cases. This is followed by a discussion on CBPs and the nexus between CRJ and CBPs in handling domestic violence cases in rural areas.
3.9 Toward a Conceptualisation of Handling Domestic Violence Cases through Community Restorative Justice
Daly and Stubbs (2006:17) express doubt that restorative justice practices are capable of responding to partner, sexual and family violence. At the same time, these authors provide a useful framework for conceptualising restorative justice by highlighting the problems and benefits indicated in Table 3.1. These problems are pressure on victims, the role of the community, mixed loyalties, the impact on the offender and victim safety. The benefits, according to these scholars, are victim voice and participation, victim validation and offender responsibility, a communicative and flexible environment, relationship repair and responsiveness to victims’ individual needs – each is discussed in turn in relation to the literature.
Table 3-1 Conceptual framework: Problems and benefits of community restorative justice systems.
3-87
Problems of CRJ Benefits of CRJ
Pressure on victims Victim voice and participation
Role of the community Victim validation and offender responsibility Mixed loyalties Communicative and flexible environment Impact on offenders Relationship repair
Victim safety Responsiveness to individual needs of victims Source: (Daly and Stubbs, 2006)
3.9.1 Potential problems with community restorative justice