List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.9.2 Potential benefits of restorative justice
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Non-indigenous women who participated in Nancarrow’s (2010:139) study contended that restorative justice compromises women’s safety; that women are not be able to make genuinely informed decisions about participating in a restorative justice process, or negotiate what they really want; and that the chance existed that the restorative justice process would trivialise domestic violence and not send a strong enough message that it is wrong. Uotila and Sambou (2010:201) argue that the aim of restorative justice is to ensure that the
“safety of the victim and society is given priority and to change the attitude and behaviour of the offender”.
In their 2009 study conducted in Norway, Uotila and Sambou (2010:202) found that rather than the formal justice system’s focus on punishing the offender, women victims of violence would prefer a method through which to understand the reasons behind their partners’ abuse and a solution where safety and help could have been assured to both parties. This comports with the restorative justice theory of social and moral development.
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where the “victim is relegated to the role of witness or spectator in the unfolding drama between the offender and the state”, Green points out that the aim of restorative justice is to empower victims, providing them with a forum in which their voices are both heard and respected. Yet Sawin and Zehr (2011:50) suggest that offenders should also be engaged and empowered in order to avoid the process becoming an activity done to offenders rather than with them. Finally, Stubbs (2010: 982) contends that it is difficult to discern whether victim participation is voluntary. Therefore the outcomes of the mediation encounter should take “into account underlying inequities and injustices” between the parties.
3.9.2.2 Victim validation and offender responsibility
There is general consensus in the literature that victim validation and offender responsibility are connected.
Daly and Stubbs (2006:18) contend that validation of a victim’s account should eliminate blame and facilitate vindication, while offenders take responsibility for their behaviour. Sharpe (2011:28) argues that reparation can validate victims, thereby demonstrating that the wrong suffered was in fact a wrong. Victim expression is central to validate. In this regard, Nancarrow (2006:97) and Pranis (2004:155) points to restorative justice’s openness to exploring creative and constructive responses to offences through heart and spirit. A victim can articulate self-representation, expression of feelings, understanding of events, and wishes and demands for the future. It may be meaningful for a victim to hear an offender take responsibility for harmful action and to explore how to repair the injustice and harm (Edwards and Haslett, 2011:893, 902).
Zehr and Mika (2003:41) argue that, in restorative justice, offenders are provided with opportunities and encouragement to understand the harm they have caused to victims and the community and to develop plans for taking appropriate responsibility. Zehr (2005:197) concedes that in some cases offenders accept responsibility reluctantly at first. However, Zehr (2005:204) continues, offenders often need strong encouragement or even coercion to accept their obligations so the offender and the victim can move toward responsibility and closure. Johnstone and Van Ness (2011:7) contend that decision makers should strive for a response that will not stigmatise or punish the offender, but make the offender recognise and take responsibility to right the harm in a manner that will directly benefit the victim.
3.9.2.3 Communicative and flexible environment
Most scholars agree that restorative justice practices are communicative and flexible. For Daly and Stubbs (2006:18), “the process of restorative justice can be tailored to victims’ needs and capacities. Because it is flexible and less formal, it may be less threatening and more responsive to the individual needs of victims”.
Similarly Curtis-Fawley and Daly (2005:609) point out that restorative justice not only gives victims a platform for communication but also helps strike a better balance between the “needs and rights of both
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offender and victim than the criminal justice approach which primarily focuses on punishment”. While communication is seen by some as the core process of restorative justice, scholars call for proper victim screening and capable facilitators who can ensure productive ways of communication that parties may not have been able to explore together before (Presser and Gaarder, 2000:187; Edwards and Sharpe, 2004:16). In addition, flexibility allows solutions to be shaped that “are appropriate for their family, community, and culture as these customised interventions are more effective” (Pennel and Burford, 1996:207; Presser and Gaarder, 2000:186). Flexibility also enables victims’ cultural considerations to be taken into account.
Sokoloff and Dupont (2005:51) argue that, “Service providers who are aware of their clients’ cultures make a difference to their clients’ psychological and emotional wellbeing”.
Stubbs (2010: 981, 982), a critic of restorative justice, notes that CRJ is problematic due to “power imbalances and the dynamics of control” and given the “context of gendered violence, there may be risks in communicating in a more intimate setting”. Nevertheless, toward a communicative environment Uotila and Sambou (2010:196) suggest that “there must be at least some capacity for accord, a willingness to be honest, a desire to settle the dispute and some capacity for compromise”. Van Ness and Strong (2010:77) and Belknap and McDonald (2010:370) attest to the role of facilitators and the community in creating an appropriate environment. Van Ness and Strong (2010:77) argue that a facilitator’s function is to regulate and facilitate communication within the encounter setting and to create a safe environment in which the parties can make their own decisions – which contributes to flexibility of the environment. Belknap and McDonald (2010:370) explain that, for the practice of restorative justice to “be truly restorative in nature, there must be opportunity for communication and dialogue between offenders and victims; both must be actively involved in the process; and community groups and/or citizen volunteers should play facilitative and supportive roles”.
3.9.2.4 Relationship repair
Daly and Stubbs (2006:18) argue that the restorative justice process “could address violence between those who want to continue the relationship. It can create opportunities for relationships to be repaired, if that what is desired”. The restorative justice theory of reparation and repair, as indicated earlier, encompasses both material and symbolic reparation (Sharpe: 2011:27).
Van Ness and Strong (2010: 49) argue that “those responsible for the harm resulting from the offence are also responsible for repairing it to the greatest possible extent”. Johnstone and Van Ness (2011:7) similarly maintain that the process should be informal and open to participation by the victim, offender and others
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closely connected to the parties to the dispute or the offence in discussions on “what happened, what harm resulted, and what should be done to repair that harm and, perhaps, to prevent further wrongdoing or conflict. Johnstone and Van Ness add that the process should emphasise strengthening or repairing relationships between people, and using the power of healthy relationships to resolve difficult situations”.
3.9.2.5 Responsiveness to victims’ individual needs
According to Zehr (2005:191), when it comes to crime, the starting point should be the needs of those violated. Victims “have a variety of needs, which must be met if they are to experience even approximate justice. In many cases, the first and most pressing needs are for support and a sense of safety”. Mills and Grauwiller (2006:366) argue that restorative justice increases the chance of condemning the violence while allowing victims to express their needs and concerns. Schellenberg (2010:55) explains that restorative justice grew out of the concern that the needs of victims of “crimes were not being met. In the criminal justice system, crime is considered a violation of the law rather than a violation of victims’ rights”. The state becomes the victim and those harmed by crime become, at best, witnesses for the state. If the victim’s testimony is not required, their role becomes secondary or irrelevant. For Zehr (2005:200) power and responsibility for meeting individual needs of victims should be placed in the hands of those directly involved, the victim, the offender and the community with an aim of addressing future intentions outside of immediate individual needs. Taken as a whole, these scholars suggest that efforts to meet the needs of victims can be based on the restorative justice theory of engagement and empowerment.
3.10 Interactive Nexus between Access to Justice, Community Restorative Justice and Domestic Violence Cases
The debate in the literature advances the question of whether there is an interactive nexus between access to justice, CRJ, and domestic violence cases on the one hand. On the other hand, the question is whether there is an interactive nexus between access to justice, traditional justice systems and domestic violence cases.
Scholars disagree on the appropriateness of informal restorative justice and traditional justice systems for domestic violence cases. As to the use of CRJ for domestic violence cases, arguments of proponents centre on victim satisfaction with the mediation process. The restorative justice programme studied by Edwards and Sharpe (2004:6) recorded an 80% satisfaction rate with the mediation process and its outcomes. This suggests that mediation is appropriate for less serious forms of assault. Similarly, Dissel and Ngubeni (2003:12) interviewed 21 female domestic violence victims in South Africa who had completed a mediation process with their abusers six to 18 months earlier. They found that abuse stopped post-mediation and noted
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that these results were consistent even in cases where men felt culturally entitled to behave in an abusive manner. Other proponents focus on such factors as the failings of the criminal justice system in responding to family violence (Stubbs, 2010:974; Van Wormer, 2009:108)); uniqueness of relationship between victim and offender (Mills et al, 2006:357); and potentiality for victim healing and offender behaviours (Burkemper and Balsam, 2007:133). In contrast, opponents of the use of CRJ for domestic violence cases claim that CRJ trivialises domestic violence with its concern for family sustainability (Hooper and Busch, 1993:11);
reinforces domestic violence as a private matter; fails to address unequal power relations (Fulkerson, 2001:355); does not have the capacity to specifically address gendered violence (Stubbs, 2010:985); and lacks enforcement powers for offender accountability (Ptacek, 2010:7-8). It does appear that, for victims who choose CRJ for domestic violence cases, this choice advances access to justice by one not being limited to the formal justice system. Therefore, irrespective of how one weighs in on the debate about the use of CRJ for domestic violence cases, there appears to be an interactive nexus between access to justice, CRJ and domestic violence cases.
As to the question of whether there is an interactive nexus between access to justice, traditional justice systems and domestic violence cases, again, scholars are on both sides of the debate. Scholars who advance the use of traditional justice systems for domestic violence point to the role of culture in resolving matters on each side of the parties’ families such as making offerings of cows or goats (Ntlama and Ndima, 2009:23);
avoidance of alienation from the ancestors (Vorster, 2001:53); and immediate focus on mediation and negotiation rather than punishment of the offender (Moult, 2005:19). In contravention scholars convinced of the unsuitability for domestic violence cases being handled by traditional courts indicate that traditional courts are partriarchical and replete with gender bias (Ubink and Van Rooij, 2010:5); exclusion of women from traditional court councils (Kane, et al 2005:14); and oral tradition of customary courts (Curran and Bonthuys, 2004:2). This debate is yet unsettled. At any rate, as yet another forum opportunity, there appears to be an interactive nexus between access to justice, traditional justice systems and domestic violence.
The debates underlying the interactive nexus of access to justice, plural legal systems and domestic violence as well as the debate on whether domestic violence cases are a public or private matter comprise the point of departure for this study. The next chapter brings the role of community-based paralegals into the discussion through a review of relevant literature.
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This chapter examined the different views of various scholars pertaining to restorative justice generally and with specific reference to community restorative justice. Community restorative justice was defined and described and the philosophy underlying restorative justice was discussed. Process theory-building through narrativity was highlighted before different theories of restorative justice were presented as well as limitations of restorative justice theories. A discussion about the key elements, principles and practice of community restorative justice followed before a series of debates about the practice of CRJ was highlighted.
Scholars disagree about the use of CRJ and traditional justice systems for domestic violence casesand counter arguments were presented in this regard. This chapter briefly explored the debate on whether domestic violence cases are a public or private matter. Toward a conceptualisation of whether CRJ should be used for domestic violence cases, a series of problems and benefits were highlighted in relation to the literature. That conceputalisation led to part of the conceptual framework that will guide this study. In this chapter it was suggested that there is an interactive nexus between access to justice, CRJ and domestic violence cases on the one hand and an interactive nexus between access to justice, traditional justice systems and domestic violence cases on the other hand. This summary concludes the chapter followed by a more detailed literature review regarding community-based paralegals in Chapter 4.
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