The role of restorative justice in the field of sexual offending.

 By Kieran McCartan, PhD, Paul Gavin, PhD, Cody Porter, PhD, & Charlotte Kite, MSc

Two weeks ago we held a conference at UWE Bristol on the use of restorative justice in sexual offence cases, the aim of the conference was not to fundamentally answer the question of whether you should or could use restorative justice, but rather to consider the role of restorative justice. Restorative justice is not a new concept and is just a lot across the criminal justice system, but it is seen as controversial in the field of sexual abuse, with it been seen as revictimizing the victims, potentially traumatizing to victims at the individuals who have committed the sexual abuse, as well as potentially allowing the individuals who have committed sexual abuse to relive and gain power over their victims. These debates where raised and discussed, however, the aim of this blog is not to re-walk old ground but rather to consider a way forward.

The challenge of restorative justice is often the packaging that it comes in and the months that surround it, these are important to challenge and debunk before we even discuss sexual offending.

Language: The language used in the field of restorative justice is subjective and often problematic as it explains one aspect of the work, but it does not fully encapsulate it all. The challenge is the words “restorative” and “justice” as the process can be restorative in several ways (maybe forgiveness, maybe closure, maybe therapeutic), may not result in justice (in a criminal justice or healing way) and may not end in forgiveness, empathy and/or understanding. The reality of restorative processes is that they are as much about communication and understandings, as they are about forgiveness and redemption. The reality is the language gives on perception on of the outcome that may not be reflected in the participants engagement.

Perception: There is a perception from the criminal justice system that restorative justice can be challenging and risky for all involved, which it has the potential to be on occasion, but this ignores the skills, training, and ability of restorative justice practitioners. Restorative justice is a long process with many people involved that puts the victim at the centre of the process and is not a piece of work that is undertaken lightly. Yes, there may have been problematic examples of restorative justice in the past but that is by no means the norm these days.

Process: The restorative justice process has a number poof paths that it can take, the idea that the victim and individuals who committed the crime against them sit alone together in a room is not necessarily the norm, or even the best way in practice. Restorative justice can take the form of written testimony, victims’ panels, circles, and other approaches. In deciding to do restorative justice decision s will be made with the practitioners on what the best approach for all parties involved will be. Restorative justice is a suite of techniques, a toolbox, rather a than a single prescribed approach.

Safety and Risk: In developing and using restorative justice the safety of the victims central, in terms of their psychological, emotional, and physical safety. Which is evidenced through the prep done with them in advance about what to expect, what to do if things to not go to plan, the position in the room and the role that everyone will play in the process. The restorative justice process can be stopped at any period, with no consequences.

Clarity: The most important aspect of restorative justice is an understanding of the process and the potential outcomes, it’s essential for all parties to recognise that although they might go into the process with one set of expectations this may not be what they get out of it. The process my provide closure, understanding, insight or restoration; but it may not. This is important in different ways for all the parties involved, especially for the person who has committed the offence being in a restorative justice process may not aid their rehabilitation and/or community integration in the way that they think (i.e., that the parole board, prison, or probation will look kindly on them).

 The conference was about the use of restorative justice in sexual abuse cases, throughout the day practitioners, policy makers, and academics debated the pros and cons of its use. Findings from a literature review on the topic were presented, which led to both discussions and reflections throughout the day. There was a recognition that while sexual abuse was a challenging issue restorative justice was used in other challenging forums and with challenging topics, and it was the skill of the practitioner that was central to success as was the motivation and engagement of the participants.

 For Kieran, the interesting debate came at the end of the conference when talking with one of the speakers, Dr Ian Mader, about the reality of restorative justice and a debate about whether restorative practice was a more effective term and a better way to understand the process from a sexual abuse perspective. The benefit of restorative practice is that the language is not rooted in the criminal justice system, and it does not come laden with the old pejorative discourses. Restorative practice is as much about reflection and insight, as it is about understanding and restoration. The other benefit of restorative practice id that it can be an intervention per offence, a disruption technique, as much as a response to an offence. Additionally, restorative practice fits within the trauma informed, strengths-based approach to desistence from sexual offending that we use in the UK now. Sexual abuse impacts all aspects of the victim and the person who has committed the sexual abuses lives, it plays a role in their future development and social functioning and therefore it is important to reflect and process the impact of this abuse; this is what restorative practice dies. Restorative practice does not do this via a one size fits all model and enables the victim to regain control, and power, in an often-powerless situation (both in terms of the abuse and the criminal justice response to it). While the conference did not provide responses to the question of the reality, use or efficacy of restorative justice in sexual abused cases, it allows us to recognise that these processes are important tools that can be use in some cases.

 

For links to the Council of Europe recommendation on restorative justice and the accompanying HMI Probation report as well as European Forum for Restorative Justice piece please see below:

https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016808e35f3

https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2020/06/Academic-Insights-Building-restorative-probation-services.pdf

https://www.euforumrj.org/sites/default/files/2020-05/EFRJ_Policy_Brief_CoE_Rec.pdf