Restorative Justice: When is it Appropriate?

Professor Marcia Neave, La Trobe University Law School, 6 October 2004

  • Current criminal justice approaches
  • Serious offences
  • Arguments against restorative justice
  • Arguments for restorative justice
  • Youth Conferencing scheme
  • Commission’s response to young sex offenders
  • Questions that need answering
  • Endnotes

Thank you very much for asking me to speak at this Conference on Restorative Justice. I will start by putting the issue of restorative justice in a broader context. I will then go on to consider whether or not restorative justice processes could be used in the area of sexual assault, and under what conditions.

In 2002 Arie Freiberg wrote a paper in which he used the metaphor of the ‘tectonic plates of the criminal justice system’ to describe the image of the pressures which are currently pulling and pushing the criminal justice system in many different directions. The pressures include community concern about high crime rates and a breakdown of law and order (which is often more a perception than a reality), a feeling of individual and social insecurity and the belief that the current criminal justice system is inadequate to deal with these issues.

Current criminal justice approaches

The paper identifies various approaches or paradigms which have been used to deal with issues which put the tectonic plates of the criminal justice system under acute pressure. Some of these are:

Managerialism. which emphasises elements such as articulating aims and active planning of court processes, efficiency (eg use of more active criminal case management) and cost-effectiveness. Advocates of restorative justice who seek to give it a larger role in the criminal justice system will need to take account of these factors.

Privatisation/contractualisation. As we all know, in Australia and many other Western countries, there is a trend towards privatisation of public services and their delivery. Within the criminal justice system this is reflected in the use of private prisons, increasing reliance on private security agents and in the use of non-government organisations to administer some types of sanctions. Again this trend may be relevant to restorative justice programs. If such programs are put in place who should be responsible for administering them—the police or some other state body or private bodies?

Risk management approach. Manifested in strategies to identify and manage crime, for example speed cameras and red light cameras, surveillance, police targeting of various areas or people.

Therapeutic justice. Early examples include sentences which make provision for treatment and rehabilitation. Today a more systematic approach which seeks to deal with the problems that contributed to the offender’s criminal behaviours and to produce sophisticated solutions which may involve a number of agencies.

Reparation for the victim. This approach focuses on the needs of the victim and in that sense it responds to pressure brought to bear by victims’ lobby groups. It seeks to modify the criminal justice system so that it is more responsive to the interests of victims via, for example, victim impact statements, notification of release of offenders, victims’ services and victim compensation.

Restorative justice, which is what we are talking about today, has the more ambitious goal of responding to the needs of victims and society, while at the same time changing the offender. The victim, or a representative of the victim, and the offender are brought together to agree on how to deal with the effect of the offence on the victim. This is a party-centred approach, parties are not legally represented, and guilt is admitted not proved.

In Victoria, these changing paradigms in criminal justice have led to a number of experiments, including the Dandenong Drug Court and the Koorie Courts in Shepparton, Broadmeadows and Warrnambool. The Drug Court is explicitly based on the principle of therapeutic justice. There is also a Magistrates’ Court diversion programme, and a Juvenile Justice Group Conferencing Program in the Children’s Court.

The Attorney-General’s Justice Statement indicates there is likely to be an increase in such experiments. The focus has largely been on therapeutic rather than restorative justice. However the Justice Statement also acknowledges that restorative justice approaches may be important:

The challenge for the government is to find a model that allows the courts to dispense justice while also using health and social service systems to address the underlying causes of offending behaviour. It requires the understanding of the problems to be addressed, the limits of intervention, the effectiveness of different approaches and the necessary points of difference between human services and justice systems.

Serious offences

This brings me to the second part of my talk. Most restorative justice programs deal with relatively minor offences. Could restorative justice play a role in dealing with more serious offences such as serious assault, particularly sexual assault? The issue which needs to be confronted here is that feminists (including myself) have fought to ensure that domestic violence and sexual assault are recognised as serious crimes. There is a natural concern that a restorative justice approach could push us back to the time when such assault, particularly when committed by spouses or family members, were invisible to law and when women were often blamed or took responsibility for men’s violent behaviour.

The other barrier to a restorative justice approach is the role played by some parts of the victims’ lobby in Victoria who appear to think that all victims want harsher sentences and that this will reduce crime. It may also be difficult to discuss these issues at a time when there is a very high level of concern about child sexual assault within institutions and a real need to make such bodies accountable for ignoring the position of victims in the past. My personal view is that there may be some place for a restorative justice approach, combined with other measures in relation to sexual assault, although the conditions under which conferences might occur need to be strictly controlled.

Arguments against restorative justice

What are the arguments against the application of restorative justice in some sexual assault cases?

Arguments against:

  • The harm caused by sexual assault is very serious:

-    it is often an exercise of power by a stronger person over a weaker one, victims are often very vulnerable;

-    victims may suffer long-term effects of the abuse;

-    abuse often involves a serious breach of trust, making it particularly difficult for a victim to engage in the process.

  • The seriousness of sexual assault as an invasion of personhood suggests that the conduct requires the strongest condemnation. The wrong that has been done to the victim needs to be publicly named and perpetrators need to be punished both to deter them and to deter others. A restorative justice approach may be seen as implicitly condoning the behaviour, or treating it as less serious.
  • Use of restorative justice processes in this area may mean that the perpetrator gets off lightly and is not deterred. He may offend again.
  • Perpetrators of sexual assault are very often reluctant to admit wrongdoing. Even if they admit the acts occurred they may blame the victim. For example, even if the victim was a child the perpetrator may say that the child acted seductively or enjoyed the encounter. Family members may also minimise the harm and support the perpetrator, for example the Pitcairn process. As a result, a restorative justice process in the area of sexual assault creates the risk that the victim will be re-victimised.
  • There are particular concerns about restorative justice processes being used to deal with sexual assault within marginalised communities such as Indigenous Australian women and CALD women. We may end up with a strong criminal justice system for people regarded as deserving of protection and restorative justice for others.
  • Sexual assault perpetrators are often family members and sexual assault is often an exploitation of power. Restorative justice runs the risk that victims may be pressured by their family to participate in a restorative justice process when this is not what they really want.
  • Use of restorative justice in this area may result in sexual assault becoming less visible.
  • Feminists have campaigned for many years to ensure that harms done within families are recognised as criminal offences. A restorative justice approach may undermine this message.
  • Restorative justice may result in the redirection of government funding to these programs and away from services to assist victims.

Arguments for restorative justice

  • Only a minority of sexual assaults are dealt with by the criminal justice system. It is relatively uncommon for sexual offences to be reported. Restorative justice will not help people who decide not to report, but it might perhaps result in people reporting if they think a different process for dealing with these cases is available, for example parents, where a sibling offends against another sibling. People sometimes do not report because of the effect on family or because they are worried about the process.
  • Low prosecution rates. Our Sexual Offences Report showed that less than one in six reports of rape, and less than one in seven reports of incest/sexual penetration, resulted in a prosecution. Note that the proportion of young offenders prosecuted is likely to be much lower. This may be because of lack of evidence or because the police do not think the person will be able to withstand cross-examination. This is a serious problem for interfamilial offences particularly those involving young offenders.
  • Low conviction rates particularly for young offenders. There may be a particularly strong case for use of restorative justice for young offenders. The conviction rate in the Children’s Court is likely to be particularly low. Young people will often be told by lawyers to admit nothing. If they have offended against a family member, complainants may be too young to give evidence or be reluctant to do so because they do not want their sibling to be punished or to have to move out of the family home. The effect of an acquittal may be particularly harmful for a victim who has been offended against. She may not be believed by her family or her community, for example CALD women. We need to come up with other ways of meeting the needs of victims where the criminal justice outcome may be impossible or completely unsatisfactory, for example very old cases. Would restorative justice be better?
  • Conferencing can take account of need for retribution. Kathy Daly argues that conferencing is not inconsistent with retribution in the non-punitive sense of the term. It can respond to past crime, though it is not consistent with the notion of revenge, inflicting pain on the offender. In her review of what offenders/victims thought about restorative justice and punishment, quite a high proportion saw either the fact that people had to go to the conference or do the things they agreed to as punishment. “Should not repress or eliminate the term punishment. People may be less punitive in the sense of wanting revenge than the popular media suggest”.
  • The criminal justice system often fails to meet the needs of victims which include:

-     more information about the process;

-     to be treated respectfully and fairly;

-     acknowledgement for the wrong they have suffered by the perpetrator and to have other significant people know about this wrong;

-     to ensure that other people (eg siblings) are protected from for the perpetrator;

-     may wish to ensure that the perpetrator has treatment; and

-     an opportunity to tell their story which they do not have under the current system because of the way in which adversarial procedures are constructed.

Even if the criminal justice system is substantially reformed it will never meet all these needs.

  • A genuine understanding of the harm which has been caused and an acknowledgement of it could create greater empathy. This seems to be lacking in many sexual offenders.
  • Restorative justice may also recognise the reality that there may be a continuing relationship of some kind between offender and victim. They may be part of the same community or they may be members of the same family and it may be impossible for them to avoid each other.

Youth Conferencing scheme

Professor Kathy Daly and her team evaluated theSouth Australian Youth Conferencing scheme. The study showed[i] that approximately 31 per cent of the sexual assault cases finalised within the six and a half years of the study were disposed of by conference.[ii] The types of cases proceeding to court originally included more serious charges. However, by the time the court and family conference cases were finalised, the cases were similar in seriousness.[iii] This reflects the fact that many criminal prosecutions for sexual offences are likely to result in the charges being dismissed or withdrawn. Cases that went to conference were resolved more quickly than those that went to court. While all the conference cases involved some form of allocation of responsibility to the accused,[iv] in around half of the sexual offences cases that went to court, the accused was not convicted.[v]

According to the authors:

the comparison suggests that conferences have the potential to offer victims a greater degree of justice than court. The Young Person’s [YP] admission to the offence serves as an important public validation of the harm suffered by the victim, and the conference offers a forum for apology and reparation. For victims whose cases go to court, half will be disappointed (and perhaps angry and disillusioned) when charges are withdrawn or dismissed after lengthy proceedings. On all measure of what YPs have to do for victims (apology), for the community (community service) and for themselves (Mary Street counselling) it appears that conferences outperform court.[vi]

Over half the young people who went to a conference undertook to participate in the Mary Street sex offenders treatment program, compared with 33 per cent of the young people who went to court.[vii] If a young person does not comply with a requirement of a family conference the police have the power to lay a charge before the court for the original offence referred to the conference.[viii]

Commission’s response to young sex offenders

In the Sexual Offences Report recently published by the VLRC we discussed the high proportion of sexual assaults which are committed by young people. Victoria Police Crime Statistics for 2001/02 record that offences were reported against 436 young offenders. For reasons mentioned above these are probably only the tip of the iceberg.

An evaluation by the Children’s Protection Society of clients (aged up to 17 years) referred to its young sex offender therapy program from December 1994 to June 1997 found that 71 per cent were aged between 12–15 years; 94.3 per cent knew their victims; almost half had sexually abused multiple victims; and almost 60 per cent reported some form of penetrative assault.[ix] A review of five years of its sexual abuse counselling and prevention program found that of the 534 clients who attended the service one-third had been sexually assaulted by a perpetrator aged 18 years or younger.[x]

I have mentioned that South Australia is using a restorative justice approach for young sexual offenders. They also have a good treatment program which often operates in tandem with the conferencing process. New Zealand also uses conferencing for young sexual offenders. There are a variety of pathways into the system. Because of the wide range of issues which would have to be considered if a restorative justice approach were to be introduced for young sexual offenders in Victoria, in its final report the commission did not feel that it should make detailed recommendations on the introduction of restorative justice to young sexual offenders. However, we recommended the creation of a process to look at these issues. To deal with this problem the commission recommended:

  1.           The Department of Human Services and the Children’s Court should establish a working group, including representation from Victoria Police, to develop a wider range of options for responding to children and young people who have been involved in sexually abusive behaviour and to increase the numbers of young people held to account for this conduct.

  2.           Options to consider include:

  • expansion of existing treatment programs; and
  • introduction of a conferencing process, along the lines of the model which applies in South Australia.

Policy issues to be resolved include:

  • pathways into restorative justice ; and
  • which cases should be covered. Should criterion for selection apply to offenders, victims or some combination of the two?

-     seriousness criterion;

-     young offender criterion;

-     age of case criterion.

  • at what point in the process should restorative justice be used:

-     pre-charge

-     pre-trial

-     post conviction

-     post sentencing?

Questions that need answering

If an alternative to prosecution, how do we deal with admissions? How do we deal with the need for admission as part be a pre-trial or pre-sentencing process? When does the conference occur? Effect of admission of guilt:

  • who convenes/runs the conference?
  • how are victims protected? Ethics of conferencing involving child victims? Informed consent representative of victim rather than victim attending? What support systems do we need to put in place to protect victims?
  • who is present at conference?
  • who develops offender’s plan?
  • is the agreement legally enforceable? Are offenders undertakings enforced?
  • How do we evaluate? What is success suppose for example victims feel better but recidivism rates are not affected?

Endnotes

[i]              387 cases comprising all cases involving juvenile offenders with at least one sexual offence charge at the start of the case and finalised in South Australia (by police caution, family conference or in the Youth Court) between 1 January 1995 and 30 June 2001 were studied. Ibid
[ii]              Compared to 10% finalised by formal caution and 59% finalised in court.
[iii]             This was the cases after plea negotiation and after processes resulted in attrition of some charges.
[iv]             At the least, participation in the conference requires an admission by the accused and requires him to sit at the table, listen to an account of the offending behaviour and assist to develop a response plan.
[v]              The more serious the offence, the less likely it was to be proved.
[vi]             Kathleen Daly, Sarah Curtis-Fawley and Brigitte Bouhours, Sexual Offence Cases Finalised in Court, by Conference, and by Formal Caution in South Australia for Young Offenders, 1995-2001 (2003).
[vii]            Approximately 33% of the offenders convicted in court were ordered to attend Mary Street counselling compared to 53% of the young people whose cases were admitted at conference.
[viii]            Young Offenders Act 1993 (SA) s 12 (8)(b).
[ix]             Children's Protection Society, Adolescent Sex Offender Treatment Program, Evaluation/Client Profile Report, December 1994–June 1997 (1999) 2.
[x]              See above n 1211.

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Date published: 
06 Oct 2004

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