List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
3.9.1 Potential problems with community restorative justice This section discusses each of the problems identified in Table 3-1
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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
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providing support and follow-up to ensure that reparative agreements are honoured. Long-term responsibilities involve developing capacity to resolve the problem without involving the state and developing and supporting re-integrative strategies for victims and offenders (Schiff, 2011:236-238).
According to Graef (2001:40), community participation is the cornerstone of CRJ. The role of the community differs among communities. Daly and Stubbs (2006:17) caution that, “Community norms may reinforce, not undermine male dominance and victim blaming. Communities may not be sufficiently resourced to take these cases”. A uniform set of community values that condemn violence against women may not exist (Nancarrow, 2006:91), which is problematic. Stubbs (2010:975) notes that “communities are intolerant, illiberal, coercive, engage in socially exclusionary practices and espouse a form of communitarianism that is not at all ‘individual centred’ but authoritarian and repressive”. Nonetheless, community involvement is important to provide the support and enforcement crucial to stop violence and to repair consequent harm and damage (Presser and Gaarder, 2000:183). Hence, the role the community assumes can either hinder or encourage restorative justice. According to Pranis (2004:153), “several decades of referring more and more community problems to professional services (e.g., police, social workers) has eroded community skills and the sense of efficacy in handling community problems – which would detract from restorative justice”. Similarly, Zehr (2005:204) contends that the community has a role to play in the search for justice but that by turning to experts, individuals and communities tend to lose the power and ability to solve their own problems.
3.9.1.3 Mixed loyalties
Daly and Stubbs (2006:17) argue that “friends and family may support victims, but may also have divided loyalties and collude with the violence, especially intra-familial cases”. Supporters of victims must be sensitive to and understand the tenacity of the victim’s victimisation. Van Wormer (2009: 108) contends that it is the criminal justice procedures of arrest and prosecution that create problems of mixed loyalties, not restorative justice – extended family and in-laws may be disgruntled by criminal prosecution of the alleged offender, placing the victim in an environment of mixed loyalties. According to Schiff (2011:232), victims experience triple marginalisation; first the offender marginalises the victim, then friends, relatives and community members who usually give support in the immediate aftermath of the crime but not in the weeks and months following the event. Finally, the justice process is interested in the victim only if and until the offender is convicted. In contrast, restorative justice aims to develop on-going relationships that “can sustain care for the victims over time”. The problem of mixed loyalties can be avoided by focussing on victim well-
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being and safety from a holistic perspective (Presser and Gaarder, 2000 :186) irrespective of the justice system of choice.
3.9.1.4 Impact on the offender
Scholars disagree on whether the impact of restorative justice on the offender is problematic. On the one hand, Daly and Stubbs (2006:17) argue that, “The process may do little to change offender behaviour”, while on the other hand, Presser and Gaarder (2000:185), drawing on Braithwaite’s (2003:55) reintegration shaming theory, contend that the restorative justice process may allow friends, family, and neighbours of the offender to move beyond condemning offenders to welcome them back into the community with the ability to change their behaviour. Offender apologies and remorse do not necessarily imply that restorative justice positively influences offenders. Hopkins (2012: 325) points out that, although apologies by offenders are not uncommon, they are often used to keep victims in relationships rather than to end violence. Even if offender remorse signals a commitment to end violence, this is only successful if interventions such as counselling, environmental change and space to converse about accepting responsibility are provided and if offenders participate meaningfully (Edwards and Haslet, 2011:901-902). Sawin and Zehr (2011:50) point out that restorative justice has focused too exclusively on accountability, neglecting the offender’s needs, such as their need to come to grips with their own sense of victimisation and their need for personal growth.
3.9.1.5 Victim safety
Umbreit (2001:21) argues that the safety of the victim is a fundamental guideline for VOM programmes.
The “mediator must do everything possible to ensure that the victim will not be harmed in any way”. Morris and Gelsthorpe (2003:133) note that restorative justice increases women safety: “in our view friends and families are far better placed than professionals to prevent the recurrence of violence and to play a role in monitoring the safety plan”. In contrast, Grauwiller and Mills (2004:62) argue “that all battered women are disempowered by violence and that their safety is threatened whenever they are in the presence of their abusers or not”. Grauwiller and Mills (2006:366) submit that the “certainty of this power to silence the victim is a fundamental reason to reject restorative justice processes that address intimate abuse. Mills and Grauwiller (2006:366) add that restorative justice advocates recognise that “whether or not a woman leaves her abuser, she may remain connected to him through her children and that interventions must address this reality and enhance the safety of both the woman and her children”. Both supporters and critics of restorative justice recognise that, safety and offender accountability must be a priority.
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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.