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2.2 KEY DEFINITIONS
2.2.5 RESTITUTION, REPARATION AND COMPENSATION
I will continue to provide a working definition of the above three terms and then go on to describe my use for them and how I see the concept of restitution in the context of this thesis. I say "three terms" instead of "three words" because "terms" carries with it a connotation of a richer set of descriptions and definitions.
I have grouped the three terms together because their meanings are practically interchangeable.
It would seem that preference for each term depends on the discipline within which it is being used. It would seem that "restitution", is preferred as more of a theological term and
"reparation" has a preference in a judicial context. Restitution then would be used in this thesis to describe compensation more at a spiritual- psychological level, and "reparation"
would be used to describe compensation more in a legal, economic sense.
The Oxford Complete Wordfinder (1990:289) describes the term "compensation" as "the act of compensating". And "compensate" amongst other nuances, means "making amends [and]
counter balancing." In psychology it is used to refer to "offsetting a disability or frustration by development in another direction". The significant description for the thesis here is, "offset",
"atone" and "make up for..." It also means to "make restitution or reparation". "Reparation"
is described as "the act of making amends" (1990:1300). It is "an act or instance of repairing or being repaired". "Reparation" is also defined as "compensation". "Restitution" also means, amongst other nuances, "amends, compensation, reparation for an injury...etc." My working definition of the three terms will simply be, "making amends", ie.- the offender attempts to "make amends" to the victim, for injury that he has inflicted on that victim.
However the idea of "making amends" should be understood, as being far from simple. Who exactly is it that determines what is a just measure of restitution, so that the offender can make
amends?
While financial estimates for the loss or damage of property can be made fairly accurately, the attendant spiritual- psychological losses, mean that restitution overall, is a complex issue.
Restitution is an ancient practice that we even see in the Old Testament.1 Here the practice of returning four sheep as restitution, for one stolen, indicates that it was not just material value that was taken into account when restitution was made then.
In the case of rape, I agree that financial restitution cannot be measured equivalently to the injury suffered. A woman's bodily or sexual integrity, may be regarded by her as priceless because it could be argued by her to be irreplaceable, both physically and psychologically.
However as I mentioned earlier, healing is a dynamic process and restitution can be used to spur on the process. In fact it may even be the case that the possibility of restitution, may be the key that kick- starts the reconciliation process for some victims. They may feel (and justly so) that this is the only valid indication of true repentance on the side of the offender. My stance is that victims should be offered restitution in all crimes and that the victim should have a say in what this restitution should be. It is a pity that modern legal systems, particularly in the West, have generally done away with restitution but encouragingly, restitution for victims is beginning to be revisited. Dicanio (1993:228) in the Encyclopedia of Violence, Origins, Attitudes and Consequences, supports this claim when she says, "Historically, restitution in kind or cash prevented ancient societies from having unending cycles of violence. The practice disappeared in about AD 1400... In 1972 England passed the criminal Justice Act, which provided for restitution".
South Africa now has legislation in place, which allows the state, to seize property acquired through crime.2 The assets seized are used to help combat crime. This is an encouraging sign, which could move in the direction of a restitution fund. Dicanio (1993:228) says that in the state of Massachusetts in 1987, victims collected R10,3 million in court- ordered restitution.
Hopefully this is the direction in which we will move in, in South Africa. In South Africa
1 See Exodus 22:1 "If a man steals an ox or a sheep, and kills it or sells it, he shall pay five oxen for an ox, and four sheep for a sheep. He shall make restitution; if he has nothing, then he shall be sold for his theft." (RSV). Also look at Ex 22:2- 22:15.
2 This is the "Prevention of Organized Crime Act, No. 121 of 1998".One of its aims is an "Assets Recovery Account" which will use money seized from crime, to fight crime.
victims presently will have to make a delictual claim for "restitution". Burchell (1993:2) says,
"Presently in South Africa the victim would have to pursue a delictual claim. Here the plaintiff seeks damages as compensation from the defendant for infringement of his rights. This comes under Private Law rather than Criminal Law." The Truth and Reconciliation Commission which attempted reconciliation between elements who fought against each other during Apartheid, promoted reparation, but this it seems, was hardly realized in practice.1
However, it is necessary that a skilled mediator, facilitate the "bargaining" process, lest the victim and offender reach intractable positions or make futile demands. I put forward that forgiveness in no way nullifies the need for restitution, nor is it a "free" pardon. By obtaining the option of reparation, victims regain some form of power as well as some level of dignity and autonomy over themselves, in front of the offender. However, from my sample it would seem that the survivors do not expect anything material in terms of restitution (al 87-188; i87- M70; il29/cl65; dl29-131). But the option must still be wielded by the victim to exercise as she wills. The power that the criminal exercised over the victim is now given back to the victim and she exercises the power, but in a non- destructive way. She does not lose her humanity, dignity and compassion in exercising this power in the way that the offender did.
This will be a force for rehabilitation for the offender too because that violent unholy power, is constructively transformed before him.
An opportunity is provided, via reparation for the offender to pay his dues, and regain his sense of human dignity. I believe it is an opportunity that also helps break the criminal desire or lust for power over his victims. Through restitution the offender realizes the extent (perhaps not fully though) of his assault on the victim by having to pay an "equivalent price" for the crime.
This will prevent the offender from repeating the crime, because he knows a "free" pardon is not inevitable. Restitution will be costly and so deters a habitual pattern of crime.
While we may never be able to put an accurate assessment on the actual amount of restitution needed to "balance out" the criminal deeds in general, for me the most important thing is that the victim has a say in 'how much' it should be. This empowers the victim and indirectly the offender, to recovery.
1 See The Truth and Reconciliation Commission of South Africa Report (1998:312- 313), for the aim of granting "reparation and rehabilitation" and their "value to the truth seeking phase".
If the offender cannot make financial restitution, then he can make restitution in other creative ways. Physical labor and other skills can be used to provide "payment", depending on the crime.
2.2.6 VICTIM AND OFFENDER x
I will again provide brief working definitions of "victim" and "offender'. The Oxford Complete Word finder (1993:1751) defines victim as "a person or thing injured or destroyed in pursuit of an object or in gratification of a passion etc." While there are other variations in description of this term, I think the above definition is sufficient for this thesis.
It must be noted that the term survivor is more likely to be used and preferred in the therapy of rape victims. The idea is to empower the one suffering as a result of the crime. The term
"survivor" is loaded with powerful inferences. My opinion is that "victim" on the one hand, denotes a passivity, while the "offender" on the other hand, exercises control not only in the crime but also in the post- crime phase. I feel "survivor" indicates an "overtness". Cheston (1993:450) says that "survivor" has a "more upbeat positive ring to it than "victim" ". I tend to think that the word "survivor" implies that the "victim" takes her recovery into her own hands and actively makes her recovery happen. She does not seem to have such a positive view of
"survivor" though, because she says, "Survivor would be too limiting because victims do not want to survive, they want to thrive"(:450). In terms of a definition, Lew (1990) says, "...A victim is a victim during the abuse but a survivor after the abuse ceases" (quoted in Cheston
1993:450). I would disagree with such a definition because it seems to relate only to the actual crime incident and not the complex psychological after- effects.
I have used and will continue to use the term "victim" or "survivor" as is necessary in the context of its use. The term "victim" though is a more "objective" term for me, in describing the one against whom the crime is perpetrated. "Survivor" has an element of objective hope, especially when examining the crime encounter on its own. I have therefore used the term
"survivor" especially when talking to the interviewees. A significant point which seemed paradoxical to me in the interviews was that Survivor C saw herself as a "survivor" rather than a "victim" in spite of the fact that she said that she was not healed (il2/c57; il4/c63).
1 For a discussion of some views on the definitions of "victim", "survivor", "abuser"
and "perpetrator" see Cheston (1993:450-451).
The "offender" is the one who causes the offence in the crime encounter, he causes the injury and is the one guilty of causing the wrongdoing. The Oxford Complete Wordfinder
(1993:1054) defines the "offender" as a "criminal malefactor, lawbreaker... ,etc." Other words are also given to describe the term offender, but the above list is sufficient for this thesis.
Whenever I use the term "perpetrator" it will just be to emphasize the "protagonist nature" of the offender.
2.3 THE NEED FOR A VICTIM-OFFENDER RECONCILIATION PROGRAM