List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.4.7 Limitations of restorative justice theories
Some limitations of restorative justice theories relative to domestic violence include community support for perpetrators, power imbalance, victim misuse, and the coercion and cheap justice problem.
Community support for perpetrators of domestic violence
Smith (2010:259) argues that all the models of restorative justice involve the community in holding the perpetrators accountable. However in cases of domestic violence, the community often sides with the
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perpetrator rather than the victim. Frederick and Lizdas (2010:50) argue that the “most confounding and problematic aspect of community involvement in domestic violence cases is the prevalence of norms that support violence against women, excusing such violence as private or as deserved by the victim”.
Shapland (2003:215) believes that a perfect approach to justice is well-nigh impossible. Shapland adds that even though restorative justice might achieve legitimacy, constraints will still exist at individual level.
Therefore, agreements, healing and participation should be pursued with both individuals and communities.
Victims can experience a power imbalance as a result of restorative justice
Strang (2004:57) observes that restorative justice has been criticised for its potential to replicate and perpetuate existing power imbalances between the victim and the offender. Restorative justice interventions do not address the structural inequality and oppression which victims may experience in their relationship with the offender. Strang notes that there has been little research on how to achieve equal treatment.
Frederick and Lizdas (2010:51) point out that the power imbalance caused by domestic violence also has implications for the victim’s involvement in the process. Morris and Young (2000:22) observe that, while women want the violence to stop; they do not want necessarily their partner to be prosecuted. Therefore, restorative justice increases the options available to the victim (Morris and Young, 2002:22).
Victims may be ‘used’ in restorative justice
Strang (2004:58) maintains that victims must be able to see the benefits of participating and should never be used as a tool to rehabilitate the offender, due to the danger of being revictimised. In contrast, Morris and Young (2000:22) argue that the benefit of restorative justice is that victims have veto over the acceptability of the proposed sanctions.
Coercion and cheap justice problem
Nancarrow (2010:128) explains that this involves forced “participation in informal judicial process and coercive tactics by the perpetrator in these processes”. In addition, Nancarrow (2010:128) points to the tendency to overemphasise the value of an offender’s apology, and argues that apology is frequently used by those who perpetrate domestic violence as a means of restoring control of their partner – this amounts to cheap justice.
With the general context, philosophy and theories of community restorative justice in mind, the discussion now turns to the elements, principles and practices of community restorative justice.
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3.5 Key Elements and Principles of the Community Restorative Justice Process
Latimer et al (2005:128) note that the main elements of the CRJ process are voluntary participation by the victim and the respondent, telling the truth and a face-to-face encounter. These terms are defined as follows:
Voluntary Participation – “knowingly and willingly agree to the CRJ process”.
Truth telling – “the offender needs to accept responsibility for the harm done and be willing to openly and honestly discuss the criminal behaviour”.
Face-to-face encounter – “the participants should meet in a safe and organised setting to collectively agree on the appropriate method to repair the harm”.
Turning to the principles of CRJ, Zehr (2004:307) explains “that restorative justice reflects three basic assumptions: (1) crime is a violation of people and relationships; (2) violation creates obligations; and (3) setting right the wrongs is central to that obligation”. Zehr (2004:307) contends that this amounts to the following “set of restorative justice principles”:
“To focus on the harm and consequent needs of the victims, as well as those of communities and offenders;
To address the obligations that result from the harm (the obligations of offenders as well as communities and society);
To use inclusive, collaborative processes to the fullest extent;
To involve those with a legitimate stake in the situation, including victims, offenders, community members and society;
To seek to put right the wrongs” (Zehr, 2004:307) .
3.6 The Practice of Community Restorative Justice
Pranis (2004, 139-140) submits that the practice of restorative justice should include the following characteristics:
“Opportunity for increased involvement of victims;
Repair of the harm done to victims to the highest degree possible;
Increased offender understanding of the harm done to the victim, the community and oneself;
Encourages the offender to take responsibility for the harm done;
Results in changes that will reduce the likelihood of the crime happening again;
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Increases the capacity for self-regulation in individuals and the community”.
These practices have led to a number of restorative justice models, including victim offender mediation (VOM), family group conferences, peace-making circles and community panels, each of which is discussed in turn. Before reviewing those models, it is worth considering the origins of the term VOM.
According to Van Ness (2004:96), victim offender mediation (VOM) “was the first contemporary and most common expression of the restorative justice practice. It brings victims and their offenders together in a face- to-face meeting, with a trained facilitator coordinating and facilitating the meeting”. The victims describe
“their experience of the crime and the effect it has had on them. The offenders explain what they did and why, answering any questions the victims may have. When both the victim and offender have had their say, the facilitator will help them to consider ways to set things right. Typically, the facilitator will have met with each party prior to their meeting to prepare them”. Van Ness exlplains that “the VOM can take place at any time during the criminal justice process, or outside the system”. Hooper and Busch (1993:3) describe VOM as a process that “endeavours to allow victims to fully articulate the consequences of the offending for them and to have a voice in structuring the response to the offending”.
Presser and Gaarder (2000:182) agree that VOM is the most common expression of restorative justice, and note that the model was first used in Canada in 1974. Pranis (2004:142) points out that the VOM is sometimes referred to as victim offender dialogue or victim offender conferencing. In contrast, Van Wormer (2009: 110) is of the opinion that “VOM is not the same as victim offender conferencing”. For Van Wormer, on the one hand, victim offender conferencing brings the parties together when one person has injured the other in order to resolve and, if possible, right the wrong; it recognises the victim and offender as participants”. On the other hand, VOM “implies a dispute among equals that must be negotiated”, and recognises the parties as disputants. Bazemore and Schiff (2001:27) point out that VOM is the most widely implemented restorative justice technique in the world.
According to Van Wormer (2009, 110), a family group conference is a model adapted from a Maori (indigenous people of New Zealand) practice to resolve community problems. The “victim, victim’s supporters, offender, offender’s supporters and a facilitator engage in dialogue to explore what happened, how each person has been affected, and what needs to be done to make things as right as possible”. Van Wormer (2009: 110) terms this a solution-based process that is “most often used by child welfare
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departments in cases of child abuse and neglect and notes that it works well in close-knit minority communities with strong extended family ties”.
Pranis (2004:142) refers to this practice as restorative group conferences, while Van Ness (2004: 97) distinguishes family group conferencing from VOM; a family group conference involves more parties. The people involved in the conferencing process have an interest in the matter; the motivation for participation could be that “they have also been affected in some way by the offence, or because they care about one of the primary participants”.
As to peacemaking circles, Pranis (2004:143) notes that peacemaking circles involve the “victim, victim’s supporters, offender, offender’s supporters and interested community members in a structured dialogue about what happened, why it happened, what the impact is, and what is needed to repair the harm to prevent it from happening again. The participants sit in a circle. This practice can be used for the adjudication itself as a sentencing circle”. Van Wormer (2009:110) refers to this practice as “healing circles, used in North American native rituals for work with victims and to provide family and community support. As in family group conferencing, truth telling and open communication are primary aspects of this process”.
With regard to community panels (CP), Pranis (2004:144) explains that, “in this approach, a small number of trained community members meet with an offender to talk about what happened. They determine how the problem or situation affected the victim and the community and decide on activities that the offender must engage in to address restorative goals”. Some panels involve victims while others receive input from the victim. Pranis (2004:145) adds that community panels often involve working with just the victim or with the offender, outside of the face-to-face context.
Pranis (2004:145) expains that community panels practices require the offender to admit to the charge in a face–to-face meeting. “Victims’ participation in the panels is always voluntary and offender participation is typically voluntary or represents some level of willingness relative to other options. CP practices also use post-conviction as part of healing or as part of reintegration into the community after a period of incarceration. Some CP practices require community or government resources in addition to offender efforts even if offenders are not involved at all in some restorative practices”. Although there are many models of restorative justice that may or may not include face-to-face contact between the parties or disputants, debate continues as to whether restorative justice works in general and with specific reference to domestic violence.
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Similarly debate continues on the question of whether indigenous or traditional dispute resolution processes have influenced restorative justice as it is applied today in various countries. These debates are presented in the following section.
3.7 The Debate on the Practice of Community Restorative Justice in Domestic Violence Cases Edwards and Sharpe (2004:12) observe that the literature presents a wide range of perspectives on the use of restorative justice in the context of domestic violence. A common theme among both supporters and opponents of the restorative justice process is that the dynamics of domestic violence create challenges for this practice. These include the difficulty of achieving safe and unencumbered participation, and the significance of screening and facilitating skills. Another issue is whether domestic violence should be treated as public or private matter, which extends the debate on whether domestic violence should be dealt with through the criminal justice system, the traditional justice system or the restorative justice process.
Coker (2004:1349) warns that proponents of alternative interventions in domestic violence must not lose sight of the fact that domestic violence is morally wrong. On the other hand, Ptacek (2010:9) notes that, although restorative justice practices were not specifically created to deal with domestic violence, and are expressly excluded in many jurisdictions, they are nonetheless applied to cases of domestic violence. Presser and Gaarder (2000:186) suggest “that there are risks in applying restorative justice to domestic violence, including that of framing domestic violence as not sufficiently important to warrant serious attention”.
Hudson (2002:255) points out that the “formal criminal justice system is still the recognised way of demonstrating that society takes domestic violence seriously”. Curran and Bonthuys (2004:17) argue that customary dispute resolution mechanisms are an integral part of the traditional justice system; their research revealed that the attitude of presiding officers in traditional courts “to women’s problems influence the ways in which they deal with complaints of domestic violence”.
The section that follows discusses whether community restorative and traditional justice systems are appropriate for domestic violence cases. Some scholars believe that, while mediation should not be outlawed for domestic violence cases, it should generally not be encouraged. Mandatory mediation should never occur when the relationship has a history of violence, unless the victim opts for mediation. Another school of thought believes that each situation should be evaluated individually through screening to determine whether mediation could be appropriate even when there has been a history of domestic violence. Finally, a small group of scholars argues that mediation can be effective in almost any family law case, even those in which domestic violence is a factor. Similarly, scholars disagree as to whether domestic violence cases are suitable
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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