Restorative Justice in Cases of Domestic and Sexual
Violence: Healing Justice?
By: Stephanie Coward
Directed Interdisciplinary Studies,
Carleton University
December, 2000
Table of Contents
INTRODUCTION
A woman is raped and beat by her common-law husband of two years, after
escalating verbal and emotional abuse. He is charged and sentenced to
three years. Prior to the completion of his sentence, they meet together
with a victim-offender mediator. She feels the need to face him to come
to terms with the past and determine what relationship they will have
in the future, particularly in light of the fact that they have a son
and will share custody. The husband is also anxious to meet as he has
taken a program called "Healthy Relationships" during day parole in
Moncton and this has changed his life. The two meet and she questions
him at length about why he did what he did and what had changed to make
him different now. He takes full responsibility for what happened and
reassures her that she had done nothing to bring the assault on. They
agree on how to parent their child and, in the end, she shares that
she forgives him for what he's done. The relationship remains healthy
and both report that the mediation was the best thing that could have
happened between them. 1
Another victim of domestic violence, participating in family mediation
in Dartmouth, Nova Scotia, is being constantly harassed by her ex-husband
who is calling everyday and writing letters throughout the mediation.
She informs the mediator and is told, "Yes, but we have to go on." 2
Yet another women, an Inuit, is seated in a sentencing circle. She is
the victim of terrible acts of domestic violence and the circle is meeting
to decide what steps should be taken in the criminal case against her
husband. She does not speak unless the judge calls upon her to do so,
an indication of the measure of control held over her by her husband,
who also sits in the circle. Of the many participants in the circle,
only three have any supportive relationship to the victim: her sister,
the family violence worker and a trusted friend who also happens to
be the sister-in-law of the accused. The sentence that is created requires
that the victim and accused attend counselling together, a proposal
put forward by the accused. Demonstrating a misunderstanding of the
life circumstances of this victim of violence, the judge strongly suggests
to the victim that this would be a positive step, assuming the victim
would speak out should the abuse continue. She hears the suggestion
as an order and feels compelled to comply, though it is unlikely that
she will speak out about further abuse. She has been silenced not only
by fear of her husband but by a process that should have given her voice.
3
These are just three examples of the many stories that involve alternative
criminal justice initiatives—initiatives that attempt to deal with
the effects of crime in a setting outside the confines of the regular
adversarial criminal justice system. They can be used in conjunction
with the regular system (as in the last story) or in place of the system
(as in the case of the sentencing circle and, often, in the case of
mediation) and are often lumped into categories such as "restorative
justice" or "alternate dispute resolution". These initiatives have applied
to the entire range of crimes, from property crimes 4
all the way to murder 5
. However, for many reasons, there is great controversy over their application
to cases involving domestic or sexual violence. Many opinions exist
on the efficacy of such initiatives when they are used in cases involving
domestic or sexual violence. Indeed, the first two stories illustrate
that these approaches can actually be revictimizing to women. However,
there are also examples of women who have expressed satisfaction with
the process. The question this paper will examine is whether or not
these initiatives—particularly restorative justice initiatives—are
effective, or even appropriate, in cases of domestic or sexual violence
and, if so, what steps might be taken in order to ensure that women
are not revictimized in the process.
The Research
This research was born of professional need. From May 1999 to July
2000, I worked with The Church Council on Justice and Corrections as
a community educator. As an organization representing eleven Christian
denominations across Canada, the Church Council is known for its work
on restorative justice issues. Throughout my year there, the issue of
restorative justice and women's needs kept resurfacing, either through
inhouse discussions on restorative justice in general or, often, following
government-initiated round table discussions with other colleagues in
the field—particularly those colleagues who were involved in the women's
movement. On the one hand, we were hearing that women's advocacy groups
did not support restorative justice initiatives for various reasons.
On the other hand, we were also hearing from initiatives that reported
satisfaction on the part of women who had been through the process.
It became clear that answers were needed.
Unfortunately, answers were not readily available. An extensive literature
search quickly made it apparent that, although there had been considerable
academic investigation into family mediation as it applied in domestic
and sexual violence cases, very little had been documented regarding
actual restorative justice initiatives (of which family mediation is
generally not considered). It then became my intention to conduct primary
source interviews with practitioners and women who had been through
these processes in order to ascertain the benefits and disadvantages.
This quickly became unwieldy due to financial constraints (there is
no funding available for undergraduate research) and I could not continue.
Therefore, this research is limited to interviews with various practitioners
and professionals in the women's movement throughout Canada and the
smaller body of literature (including some literature which focuses
on mediation) that examines this issue. This paper does not, at all,
purport to be an authoritative voice on what truly needs to happen in
order to make restorative justice effective for domestic and sexual
violence cases (far more extensive research is required for that). It
merely seeks to broadly examine the issue with the hope that it might
point to the need for continuing research in the field.
In short, this paper will briefly examine the background to this issue
including the historical struggle for women's rights, particularly in
the criminal justice context, as well as the current criminal justice
system and it's efficacy for meeting women's needs. It will then turn
to the issue of restorative justice, its definition, and general opinions
regarding its use in cases of domestic and sexual violence. Part three
will examine, in more detail, the more significant concerns held by
women's groups, and will look at recommendations put forward by various
people in the field. Finally, part four will consider a way forward
and will conclude that funding must be found for extensive, impartial
research to be undertaken in this field.
Part I: Women's Fight for Justice in the Current System
In the first place, the struggle to have violence against women taken
seriously in the criminal justice system, must be placed within the
context of the continuing effort for women's equality in other areas
of society. The issue is multifaceted and includes areas such as employment
equity, economic issues, health care, social security, among others.
All are intertwined. Therefore, restorative justice and other criminal
justice measures should never be removed from this larger lens as initiatives
often are only as effective as the society in which they are placed.
The work must be interconnected and continuous. However, it is to the
smaller lens of criminal justice, and particularly crimes against women,
that we now turn.
In his look at restorative justice in Canada, Kent Roach writes: At
a practical level, many feminists may have reasons to be suspicious
of and even hostile towards restorative justice. Throughout the last
three decades, feminists have fought to have sexual and domestic violence
recognized as true crimes that deserve public attention and punishment.
Restorative justice has the potential to place these gains in jeopardy
by allowing such crimes to be discussed in private settings where women
may suffer from a power imbalance and perhaps be blamed for the crimes.
6
Indeed, the fight to have domestic and sexual violence taken seriously
by the criminal justice system has been hard and long.
Traditionally, domestic violence was treated as a "private problem"
and was either "dealt with as an annoyance, or even avoided entirely
by the formal justice system." 7
Between 1909 and 1960, assaulting a wife was considered to be legally
different from other assaults. 8
Instead, an offence of wife battery required a woman to prove that there
had been a greater degree of bodily harm. Otherwise, a crime was not
considered to have been committed. 9
Marital rape was not recognized as an offence in Canada until 1983.
Until that time, it was presumed that "the marriage contracted endowed
husbands with the unrestricted right of sexual access to their wives."
10
Despite these legal changes, there were still procedural obstacles which
kept the abuse of women a private matter. For instance, in most areas,
it was left up to the women to charge their abusive partners. This left
these women prone to pressure, through threats or kindness, not to proceed.
11
Many didn't. This led to few charges being laid by police and/or the
Crown, even though both had the ability to lay charges over a woman's
objections. 12
This situation was remedied in the 1980s following pressure from women's
groups. Procedural changes were made that forced police officers to
arrest men in domestic violence calls if there was evidence of assault.13
As well, Crown attorneys could no longer drop charges once laid, despite
the wishes of the victim. 14
Eventually, action was also taken to ensure that judges took domestic
violence seriously, though this proved to be more difficult as it was
claimed that any directive would "interfere with an independent judiciary..."
15
However, steps were taken to sensitize judges through workshops that
focused on the impact of abuse on women and the implications for society
at large, women, batterers and their families, if such assaults were
not taken seriously. As well, it was believed that stiffer sentences
would send a message "that wife assault was a crime, that it would not
be tolerated, and that abuseres [sic] would be prosecuted to the full
extent of the law." 16
Therefore, calls for harsher penalties were made. All of these actions
worked to bring domestic violence out of the private sphere into the
public domain and increase its profile in the criminal justice system.
However, these advances do not necessarily ensure that the needs of
battered women are seriously addressed by the current system. Braithwaite
and Daly argue that most men are still not held accountable for their
violent actions against women. This is due to complaints not being filed
by women, evidentiary problems and police indifference, which lead to
low rates of prosecution for domestic abuse cases and high rates of
plea bargaining and acquittal for those cases which do go forward. 17
Besides this, there are other concerns regarding the current criminal
justice system.
A report by the Provincial Association Against Family Violence (PAAFV)
in Newfoundland, Keeping an Open Mind: A Look at Gender Inclusive
Analysis, Restorative Justice and Alternative Dispute Resolution,
reports that, "Victims have concerns about not being part of the process
and sometimes feel like they are on trial instead of the person who
has committed the crime. This has been particularly true for women who
are victims of abuse and violence. The system is often very confusing
and overwhelming." 18
It also reports that the way the current system operates tends to keep
offenders in the system rather than encouraging them to stop offending.
19
The Church Council on Justice and Corrections, in its 1996 compendium
of alternative justice programs, highlights these and other concerns
with the criminal justice system. The Council notes that recent research
into the experience of victims has found that "contact between the victim
and the administration of criminal justice has been primarily a source
of revictimization, frustration, disappointment and annoyance rather
than a contribution to the solution to the victim's problems." 20
It argues that the victim's needs are overlooked by an adversarial system
in which the main purpose of proceedings is to establish guilt and attach
a sentence which has little to do with the actual harm done and does
not speak to true accountability. 21
Furthermore, it is argued that the current system overlooks the community
context of crime, failing to consider initiatives that could be taken
in order to prevent crime in the future. 22
These concerns are even more prominent within the cultural context
of Inuit and other Aboriginal communities. Pauktuutit Inuit Women's
Association of Canada, a national, non-profit organization representing
Canadian Inuit women, states that there is "...a general consensus amongst
all those involved or affected that the current criminal justice system
has been failing Inuit and other Aboriginal peoples across Canada."
23
I will not expound on this particular research any further as it is
well assumed within this field that this is tragically true. It becomes
even more tragic within the context of Inuit and other Aboriginal women
dealing with cases of violent domestic abuse and sexual assault.
Tracy Porteous, a B.C. participant in a conference on domestic violence
and restorative justice sponsored by the Provincial Association of Transition
Houses of Saskatchewan (PATHS), summed up some of these concerns regarding
the system:
I think it's important to acknowledge, though, that I think we've
also all been saying for quite some time that the system is far too
adversarial, that women and others who have been victimized have been
saying that they feel brutalized by the court process, that they have
been revictimized in their involvement. They have been saying that
they don't feel very central to a process that is very, very central
and very, very personal. I think that advocates have been saying that
there isn't enough staff in the current system for community services
and police and crown to really be able to deal effectively [with these
cases]... 24
Tracy later expressed the thought that moving to an alternate vision
might be appropriate, referring to restorative justice initiatives.
25
Part II: Restorative Justice: What are we talking about?!
When the staff at The Church Council were writing the text for their
restorative justice reflection sheet, we quickly agreed on a title:
"Restorative Justice: What Are We Talking About?!" There was very good
reason for this. It had become clear that the term "restorative justice"
was being used by different people and different groups to mean many
different things. The same was discovered in undertaking this research.
Various statements were found which made reference to the ambiguous
nature of a definition. Pauline Bush, Executive Director of the Regina
Alternative Measures program, stated at the Saskatchewan PATHS conference,
"I think there needs to be a lot more understanding of what restorative
justice stands for before we continue within this dialogue because clearly
it's something that's not understood within the room." 26
Irene Smith, the Executive Director of the Avalon Sexual Assault Centre
in Halifax, Nova Scotia and also a participant at the PATHS conference,
noted that the definition of restorative justice was elusive in her
experience with the new policy in Nova Scotia and that this could lead
to serious consequences. 27
She questioned how the limits of the program could be defined if the
actual program could not. 28
Bev Putra, another conference participant noted the differing definitions
within the Aboriginal community when she stated that, "Sentencing circles
have different meanings...Each community is unique and each community
decides what a sentencing circle is to them. So, when you say a sentencing
circle in one community, it doesn't mean the same thing in another community."
29
To be sure, definitions of restorative justice vary considerably.
Judge Bria Huculak took the PATHS conference participants through the
evolution of the definition:
I want to start out with a definition because I think it's a particularly
good one. This is just a sentence: Restorative justice is a way of
thinking, a way of behaving, and a way of measuring. This was written
in 1995...In 1990, some writers had described restorative justice
as a response to criminal behaviour that seeks to restore losses suffered
by crime victims and facilitate peace and tranquility among opposing
parties. It was in 1991 described as having principles of support
and reparation for the victim with mediation being used if necessary,
reparation to the victim or the community, and cooperation in the
rehabilitation of the offender with the limited use of restrictions
or detention. 30
In Keeping an Open Mind, the Provincial Association Against Family
Violence agrees with the philosophy approach when it defines restorative
justice not as a distinct model or system of law but as a philosophy
or vision which keeps in mind the needs of the victim, the community
and the offender. 31
The Association cites community justice forums and sentencing circles
as restorative justice initiatives and identifies some forms of alternate
dispute resolution as restorative in nature, while others are not. 32
Throughout this research, I also found that others focused on shaming
33
and forgiveness 34
and defined restorative justice as being for the benefit only of the
victim and not the abuser 35
—all presuppositions that would be challenged by many in the field.
Others included programs or models within their definitions which would
not be identified as restorative justice initiatives by others. These
included: family mediation and alternative dispute resolution, 36
as well as victim assistance and victim participation in the criminal
justice process. 37
It is important to note, therefore, that opinions on restorative justice
initiatives may be formed on the basis of the experience of programs
that are not truly restorative in nature.
There were some common areas, however. Overall, most agreed that restorative
justice is a philosophical approach to crime which includes a focus
on three areas: the victim, the offender and the community. They also
agreed that restorative processes mean to meet the needs of each person
affected by crime, and particularly those of the victim. It does seem
apparent that the first step in taking this conversation further would
be to come to an agreement on what restorative justice actually is.
For the purposes of this paper, and perhaps a way forward, I will use
the description of restorative justice and the five essential components
of the approach, as outlined in The Church Council's reflection sheet.
Restorative justice is described as:
…the popular name given to a wide range of emerging justice approaches
that aim for more healing and satisfying responses to crime. While
each approach is different, these processes try to give active participation
to those directly involved or affected. Everyone hears each other's
experiences, feelings and questions. Together, they sort out matters
of accountability, safety, and the need for a fair and meaningful
course of action. 38
As well, five elements must be present in order to consider an initiative
to be restorative in nature.
First of all, restorative justice invites full participation and
agreement. This means that room is made within the process for the
voices of all who are affected to be heard. This includes the victim,
the offender, their families and friends, as well as people from the
community who have been affected. 39
Secondly, restorative justice attempts to heal what has been broken.
It focuses on the needs of the victim (e.g. what does she need to help
heal the trauma; restore a sense of safety, etc.), offender (e.g. what
is needed to ensure the harm never reoccurs; what is needed to ensure
his adherence to any agreement, etc.), and community members (e.g. what
will help them feel safer, what steps can be taken to improve their
community so crime is less likely to happen in the future, etc.). 40
Thirdly, restorative justice initiatives seek full and direct accountability.
Accused persons face their victims and others who have been affected
and are given the opportunity to explain their behaviour, take full
responsibility and be part of a process which decides on a way forward
which meets the needs of all concerned. 41
Restorative justice also seeks to reunite that which has been divided.
Crime divides community into an "us-them" way of thinking which is unhealthy.
Restorative initiatives find ways of bridging this gap so that "the
"us" and "them" are connected within a healthy community. It is important
to note that this reunification looks at breaking down the isolation
within community that occurs following a crime—isolation felt by both
the accused and the victim, as well as other community members who have
been affected. Restorative justice initiatives do not necessarily seek
to reunite the victim and offender in what has been an unhealthy, abusive
relationship. 42
Finally, restorative justice initiatives strive to strengthen community
in order to prevent further harm by "building relationships and
addressing the underlying social problems that create crime in the first
place." 43
Many programs and models fall within the above definition. These include
family group/accountability conferences, victim-offender mediation or
reconciliation (which may or may not have community members present),
sentencing circles, healing or community circles, community justice
panels, circles of support and accountability for sexual offenders,
and others. For the purposes of this discussion, those initiatives which
meet the five standards outlined above will be considered as restorative
justice initiatives. Others, such as family mediation, will be considered
in this paper only in so far as experiences within that framework have
led to lessons which are applicable to restorative justice initiatives
as well. 44
Having set a definition, the question remains whether or not restorative
justice is an effective tool in meeting the needs of women victims of
domestic and sexual violence. Opinions on this subject range from those
who state restorative justice should never be used, to those who think
that benefits are possible in the future, to those who believe that
current programs are beneficial.
In a recent volume of "Interaction", the publication of The Network
Interaction for Conflict Resolution, Kathleen Cleland Moyer recounted
an incident which took place at a gathering of people in the field:
Last May...one of the executive directors involved with women's groups
confronted a consortium of federal civil servants and directors from
non-profit agencies with a challenge and plea that was hard to ignore:
'What do we have to do to convince you that restorative justice is
harmful to victims? Representatives from victims groups across Canada
have tried to talk to you about this. Why will you not listen? Women's
lives are at stake!' No one responded: not the John Howard Society,
Salvation Army, Church Council on Justice and Corrections nor the
Network...The truth was all of us were savvy enough to know she wasn't
asking for a response that involved discussion or dialogue, rather
a strong clear message about restorative justice was being delivered.
The message was 'STOP!' 45
As well, the Canadian Association of Sexual Assault Centres released
a statement which announced that it is "...strongly opposed to the use
of [Alternate Dispute Resolution/Restorative Justice] in cases of violence
against women including, but not limited to, women in violent and abusive
relationships." 46
We know that others concur.
Others, however, support the use of restorative justice. Presser and
Gaarder, in their look at restorative justice and women who are battered,
admit that the "truth-telling and emotional expression" that are present
in restorative initiatives and not available in the current system,
are valued activities. 47
They go on to support the contention that these initiatives are designed
to allow healing processes to occur 48
and even go so far as to note that some are calling restorative justice
a 'feminist vision of justice.' 49
Kirstin Lund, Chairperson of the Restorative Justice Network of the
Conflict Resolution Co-op of PEI and a consultant on conflict resolution
and crime prevention, also noted that restorative justice initiatives
"can be a helpful part of the healing process for victims of crime if
they are done in an appropriate way by trained and experienced facilitators."
And, others agree. Here, support is qualified by the need for proper
measures to be taken to ensure that revictimization does not occur.
It is within this level of support that the majority of opinions fall.
Throughout this research, I found that women are not necessarily opposed
to restorative justice initiatives per se. Rather, they are opposed
to these initiatives as they are presently developed and applied. Many
of the women consulted during this research stated that they had serious
concerns with present restorative justice initiatives but that they
would like to see them implemented in the future, after careful research
and consultation has been carried out. Others share this approach.
Tracy Porteous noted that, "...I think we do recognize that removing
cases of crime and violence against women out of the traditional court
system into a process that is more conciliatory and seeking of an alternative
resolution might sound good, and I think that many women, especially
women in abusive relationships, have been saying that they are interested
in some alternative processes..." 50
She continues, however, with the realization that missing from the current
restorative justice literature is an analysis of the dynamics of gendered
violence, an analysis of violence in relationships and sexual assault,
as well as an analysis of how the impact of women's socialization is
connected to these issues. 51
Similarly, the B.C. Association of Specialized Victim Assistance and
Counselling Programs, in a 1998 paper, identified a provision which
allows Crown Counsel to divert certain cases of violence against women
in relationships (VAWIR) to alternative measures and restorative justice
programs. The Association advised that this provision be "...eliminated
in relation to VAWIR, sexual assault, child sexual abuse, criminal harassment,
and hate-motivated offences until there is an opportunity to conduct
all of the necessary research, analysis and evaluation of these initiatives
and consult with all of the affected parties." 52
[italics mine] It would seem that, apart from a few staunch opponents
of restorative justice, the majority of women looking at this issue
are not opposed to using these initiatives in the future, but have serious,
legitimate concerns that need to be addressed before these programs
are implemented in cases of domestic and sexual violence. It is to these
concerns that I now turn.
Part III: Issues Pertaining to the Use of Restorative Justice Initiatives
in Cases Involving Domestic and Sexual Violence
A number of concerns regarding current restorative justice initiatives
were identified by various people throughout this study. Some of these
included: the fear that initiatives would not effectively deal with
issues of safey and risk; 53
the concern that some initiatives (particularly mediation, which we
are not considering to be a restorative initiative) would treat the
situation as that of a "problem couple" and focus, therefore, on the
relationship and not the harm done; 54
the fear that participating in restorative justice while still entangled
in an abusive relationship can foster an inappropriate feeling of responsibility
for "changing" her partner and contributing to his healing; 55
a concern regarding lack of legal support, particularly when the initiative
involves a binding agreement; 56
the fear that appropriately trained and culturally appropriate support
persons may not be available to women participating in these programs;
57
and, a concern that restorative justice initiatives focus primarily
on offenders and not victims. 58
These concerns were identified by only one or two people. Therefore,
although important, I will only list them here and hope that others
will examine them in detail at a later date.
Other concerns, however, were commonly identified by many and arose
time and again throughout the course of this study. They included:
1) a concern over a lack of consultation with women's and victim's
groups;
2) a fear that restorative justice initiatives would not work to sufficiently
denounce domestic and sexual violence and would, ultimately, undo
the advances made by women's groups to have these crimes taken seriously
by the criminal justice system;
3) a concern that women victims be given an informed choice regarding
whether or not they participate;
4) a concern over issues of power dynamics and imbalance;
5) a concern that programs are being transferred to the community
without the requisite resources (financial and human) also being made
available; and,
6) a concern with a lack of training and evaluation standards.
I will consider each concern in turn.
1) Consultation:
One of the issues that emerged in various interviews, journal articles,
the PATHS conference and other reports was that of consultation. Many
groups feel that government has not sufficiently consulted with women's
and victim's groups when developing policy in the area of restorative
justice. As well, there is a general feeling that non-governmental organizations
(often the developers of restorative justice programs) have not obtained
enough input on the part of women victims and their advocates into the
actual development of the programs that fall under the justice policies
directed by the government. Some examples follow.
Irene Smith, in discussing the government-initiated restorative justice
program in Nova Scotia, reported that there had been no consultation
with women victims in order to assess their feelings on being involved
in restorative justice processes. She then linked this lack of consultation
with an approach that "displaces the survivor to a position in the peripheral,
not central to the process" and identified the issue as a significant
concern. 59
Bonnie Diamond, Executive Director of the National Association of Women
and the Law, noted that she would not be opposed to restorative initiatives
if equality principles are considered to be central and if women—particularly
women victims—are involved in the development of these initiatives.
60
She does not feel that this has been the case, so far.
The Provincial Association Against Family Violence also noted, in its
report Making it Safe, that in order for restorative justice
initiatives to be victim-centred, "...the views and experiences of victims
must be evident in the design, implementation and evaluation of programs."
61
The Association further asserts that consultation must take place at
the program planning stage in order to identify how best to serve victims
in these processes. 62
In an example pertaining to the Inuit community, Pauktuutit, in its
report, Setting Standards First, commented on the fact that efforts
to reform the justice system in the North have, so far, "been initiated
by reform-minded people working within the justice system and are not
part of the Inuit community." 63
Although the group concedes that not everything must be "an original
creation by the community in order to be useful or successful," it does
state its belief that the most successful programs will stem from the
community itself and will reflect the input of all segments of the community,
in particular, the women and children who are the victims of abuse.
64
Mary Crnkovich, while addressing a conference of the Canadian Institute
for the Administration of Justice agreed, siting that all segments of
the Inuit community must be allowed to fully participate in redesigning
an "appropriate, responsible and respectful system" and that "Sentencing
circles stop far short of this possibility." 65
Others feel that consultation is undertaken and then ignored. In Michelle
McLean's article on circle sentencing in the Fall 1998 issue of Jurisfemme,
Viola Thomas, President of the United Native Nations, states that she
feels the government has let down Aboriginal groups in their ignoring
the voice of women on the issue of the circles. She states, "There were
four years of input by women's groups and Aboriginal women's groups
on this issue and they chose to ignore that input." 66
Government officials often contend that such consultation has been
undertaken and included in the resulting policies. For instance, at
the PATHS conference in April, a question was asked regarding what consultation
had taken place in the forming of a ministerial directive in Saskatchewan
that would not allow domestic and sexual violence to be included in
alternative measures. The speaker who answered the question (who was
unidentified in the transcript, but I'm assuming was a government representative),
stated that the government undertook 18 months of consultation with
various different groups about what should comprise that policy and
that it was being considered a starting point in developing a consensus
document. 67
It would seem that consultation has taken place in at least one case.
It was beyond the scope of this research to undertake a follow-up to
the many allegations of inadequate consultation and ascertain whether
or not government and non-governmental organizations who implement these
programs agree. It may very well be that the developers of policy and
programs feel they have done sufficient consultation. However, the fact
that this concern has been and continues to be raised consistently,
points to the fact that there is either a misperception that less consultation
is taking place than is the case or that it truly has not been undertaken
to an acceptable degree. In either case, a remedy is required before
restorative initiatives will be acceptable to a large portion of the
women's movement.
2) Denunciation
In light of the fact that it took many years and a hard-fought struggle
to have domestic and sexual violence taken seriously within the criminal
justice system, it is understandable that women do not wish to support
restorative justice initiatives that appear to reverse such advances
in denunciation. Presser and Gaarder, despite their support for community
circles, still conclude that caution is in order for this reason. They
assert that, "There are clear risks in applying restorative justice
approaches to battering. Chief among them is the risk of framing such
violence as not important enough to warrant serious attention, lest
the gains of feminists be lost." 68
Some argue that, even though the current system is flawed, turning to
restorative justice would actually be worse. Judy White (alias), a survivor
of domestic violence and a participant in the PATHS conference, commented
during those proceedings: "During the judicial process, abusers do not
receive the message that their behaviour is unacceptable much less criminal.
Restorative justice strategies seem to me to leave the door wide open
for even less onerous consequences for the abuser." 69
Still others are concerned about the decriminalization of sexual and
domestic violence through the use of restorative initiatives. 70
On the other hand, some people in the field consider the denunciatory
impact of restorative justice to be quite significant. Judge Bria Huculak
commented on this issue earlier this year:
Communities denouncing violent conduct has a very powerful effect,
and I have never seen a process where the community hasn't made it
very clear that this is not acceptable. It's illegal, and it's not
acceptable to have violent conduct in their community. What that does
is it clarifies to those present and the participants and the community
at large that this conduct is not acceptable and it has to change.
71
Many look to the presence of family, friends and other influential
persons in the process as a positive factor in increasing denunciation.
One PATHS conference participant, quoting Australian professor, John
Braithwaite, noted that "...the people who are in the best position
to communicate the shamefulness of what we had done is those we love,
family we love, friends we respect, those individuals who have the most
influence on us." 72
Leonard Bush, the officer in charge of Aboriginal police, crime prevention
and victim services for the RCMP headquarters in Ottawa, agreed when
he summed up the value of restorative justice in the following illustration:
When you have a guy who's beating his wife and you put him in court,
he doesn't have to say anything. His lawyer speaks for him. He never
has to admit that he ever did anything, but if he wants to participate
in a circle, he has to be prepared to be accountable for what he did
and to articulate in detail what he did, and he's not doing it in
front of a judge that he may never see again. He's going to be in
a circle where perhaps his buddies from work are going to be there,
his minister is going to be there, his parents are going to be there,
his children are going to be there, his siblings are going to be there,
and then he has to say in front of him what he's doing and this is
a hidden crime, nobody knows what's going on. When he does this, the
chance of these people condemning that behaviour, people that he cares
about and wants respect from condemning his behaviour, certainly has
a lot more potential of changing that pattern of behaviour than say
a judge saying, well, six months probation or two months in jail.
73
Voices can be heard on both sides of the issue.
In listening to and reading the arguments that support or negate the
denunciatory effect of restorative justice, I couldn't help but wonder
if part of the answer doesn't lay in obtaining a clearer understanding
of restorative justice. Issues around the definition and around the
practice of restorative initiatives seem to have an impact on women's
views about these processes. How women understand restorative justice
provides the basis for their opinion in this matter. For instance, during
one interview, the executive director of a national women's organization
wondered at the wisdom of applying restorative justice initiatives,
which carry a primary goal of saving money (another misconception that
should not be applied to truly restorative processes), first to violent
domestic crimes and not property crimes. She commented that, unfortunately,
often people look first at alternatives for areas that are clearly criminal
and where there are very real dangers, particularly for women. When
I explained that restorative justice initiatives had actually begun
with property crimes, back in 1974, and it is in fact only in the recent
past that they have been applied to domestic and sexual violence, and
only sparingly, she admitted that she didn't really know much about
the development of restorative justice. She merely knew that when she
encountered information about restorative initiatives it always seemed
to be within the area of domestic and sexual violence. She was not aware
if initiatives were taking place apart from that. In light of this understanding,
her concerns about a "new" form of justice solely being used in cases
of domestic and sexual abuse would be justified. However, her understanding
failed to recognize that restorative justice has evolved in Canada over
the past twenty-five years, beginning with much less serious crimes
and moving toward an application to crimes that involve violence.
Another example of a misunderstanding of restorative justice can be
found in PAAFV's report, Making it Safe. The writers clearly
state that "In criminal law, women's fears about restorative justice
in part stem from recent sentence reform, particularly the use of conditional
sentences for a wide range of offences including sexual offences, harassment,
stalking and hate crimes...Conditional sentences mean offenders avoid
jail by serving time at home under court imposed conditions—usually
seen as easy punishment or no punishment at all." 74
Although the report goes on to let readers know that conditional sentences
are not based on restorative principles (they would certainly not meet
the five criteria in the definition above), it would appear that many
beliefs about the denunciatory effect of restorative justice stem from
women's reactions to other processes within the criminal justice system,
such as this one, which are not restorative in nature. That is not to
say that a restorative process would necessarily result in a sentence
that would be considered more harsh. However, in a restorative process
the sentence is but one part of the denunciatory effect of an overall
process that has sought healing for all parties. Denunciation takes
place throughout the entire proceeding and is not merely contained in
the sentence. This must be taken into account when considering whether
or not restorative justice is effective at denouncing crime.
The other aspect of this discussion stems from the application of the
word "informal" to restorative justice initiatives, a distinction which
emerged on various occasions throughout this research. We talk about
offenders being "diverted" away from the "formal" court system to alternative
processes, thereby equating these processes with less serious measures.
However, I think that such a distinction is false. The philosophy of
restorative justice requires not merely an add-on program to the regular
criminal justice system, but a complete shift in the way we approach
crime. This approach seeks some of the same goals as the current system
such as denunciation and appropriate consequences (though the two approaches
would differ on what those might be), but moves beyond it in a bid to
deal with the deeper issues of healing. I would argue that one form
is not more formal or informal than the other, merely different. In
the end, it comes down to a philosophical statement on one's outlook
on criminal justice responses. If one is seeking retribution in a criminal
justice system, then no restorative justice initiative will ever meet
the required level of denunciation. It is retribution that restorative
justice seeks to supplant. On the other hand, if one is searching for
a means to move toward healing and appropriate consequences that rebuild
community and work to prevent crime, then restorative justice programs
that seek to meet those concerns expressed in this paper, seem better
equipped to meet those needs. Denunciation may be better expressed there.
Unfortunately, as long as restorative justice remains a "new" and little-used
approach that is given few resources by government (more on that later),
the general public will continue to view these "alternative" programs
as "informal" and lenient, thus limiting their denunciation potential.
As in so much about restorative justice, there are no clear answers
regarding this issue. As Judge Huculak points out, there has been little
research looking at the effect of denunciation within restorative justice
initiatives. 75
This investigation needs to take place so that sufficient data is available
upon which we can base our conclusions. As well, in current and future
initiatives, measures need to be taken to ensure that restorative processes
include an appropriate denunciatory message, both to the accused and
to the community, so that these measures are not seen to decriminalize
such harmful crimes.
3) Choice
Another concern that surfaced repeatedly identified the fear that women
are not being given a true choice in whether or not to participate in
restorative justice initiatives. The empowerment of women victims emerged
as key. Tracy Porteous relayed this message at the PATHS conference
when she noted that "The whole issue about violence in relationships
and sexual assault is about disempowerment. We believe that in order
for the system to be working effectively we need to be building in at
every step of the way processes that work towards her empowerment, so
giving her the opportunity to have some control we think is key." 76
That empowerment obviously begins with having the right to choose. Unfortunately,
most references to this issue within the research revolved around mediation
and not restorative justice measures. It is clear that additional research
is needed in this area. For the purposes of this discussion, however,
I will use many of the examples from mediation as their lessons are
applicable to restorative approaches.
The concern that women may not have a real choice in mediation or restorative
initiatives is grounded in the experience of many. The Transition House
Association of Nova Scotia (THANS) noted many examples of women who
were coerced into accepting a mediation process rather than court. They
recount numerous situations like the one experienced by Linda T., who
had mediation urged on her three times in two years by courts and lawyers,
despite a history of severe emotional and sexual abuse. She says, "The
judge was tired, my ex was not agreeable to anything, but the judge
still suggested mediation. My lawyer urged me to agree so that I wouldn't
look uncooperative. I ended up agreeing since I didn't want to look
bad." 77
Dorothy Barg Neufeld, Staff Coordinator and a mediator with Mediation
Services in Winnipeg, noted the same pressures when she observed during
a recent interview that the victim has to make the decision to participate
or not. She further noted that if they decide not to, they're often
considered the "bad" person. 78
Unfortunately, too many experiences support this premise.
Irene Smith, in referring to the new Nova Scotia policy on restorative
justice, noted that under these new measures the case can be referred
to a restorative process regardless of the victim's wishes. The victim
is not permitted to veto the process. 79
In this case, the victim will obviously not be forced to meet with the
offender. However, in a process that seeks to empower victims, it would
seem that the victim's needs are dismissed.
Others assert that real choice in the case of domestic violence is
impossible. Some submit that a woman cannot truly choose due to the
power dynamics that are inherent in these situations. They contend that
it is difficult for a woman to choose not to enter into mediation without
suffering consequences from her partner. 80
Some, such as Kelly Rowe and Barbara Hart, identify a period of healing
and empowerment which takes place after a women separates from an abusive
spouse and which can last for several years. They contend that until
this period is complete, women cannot enter into processes such as mediation
or restorative justice voluntarily or participate freely—a situation
often described as "learned helplessness". 81
Therefore, they claim that crimes involving domestic abuse should be
excluded from these processes. 82
Others, however, assert that true choice is possible and should not
be undermined by a blanket exclusion of all domestic and sexual crimes.
A 1998 study undertaken by Erez and Belknap found that the majority
of battered women did not believe that the criminal justice system "could
effectively solve their problems with abuse." In these cases, the women
wished to retain their freedom to choose and asked to be treated as
individuals in seeking to find ways to end the abuse. 83
Presser and Gaarder, in quoting another study, noted that "'some victims
of abuse are angered at being excluded (from mediation) and others are
upset at being required to mediate.' In short, victims are demanding
choice and control." 84
They further assert that "prohibiting mediation in cases of battering
also 'implies that we know better what (victimized) persons' needs are
than they do.'" 85
Victims voices have also been clear in this. Inspector Leonard Bush
shared with the PATHS conference that his office receives calls from
victims saying that they would like to report an abuser, but they want
assurances first that the situation will be dealt with in a family group
conference. 86
Of course, the RCMP must say no to those requests. However, it is indicative
that some victims are choosing another form of justice. Indeed, Dave
Gustafson, with the Fraser Region Community Justice Initiatives Association,
recounts the story of an incest survivor in her early 30s, who wished
to enter into a victim-offender process with her abuser:
I responded that, while I believed in victim-offender reconciliation,
it was contraindicated in cases of sexual violence without strong
public sanctions and a number of other interventions...Colleen graciously
reminded me that victims are capable of straight thinking and that
helping professionals might do well to take seriously the clients'
sense of their own needs before suggesting what those needs ought
to be and how they ought to be addressed. 87
It would appear that flexibility and precaution is in order.
Women should be able to make informed, supported choices when deciding
whether or not to enter into mediation or a restorative process. According
to the Transition House Association of Nova Scotia, in referring to
mediation, an informed choice would include a provision of information
on:
- confidentiality
- advantages and disadvantages of all options
- details regarding the importance of and right to legal advice at
specific stages
- the available of appropriate advocacy and support
- access to mediators' credentials. 88
The same information should be made available to those making choices
around restorative processes. As well, it has been suggested that the
initial approach to women victims should be made by someone who has
extensive experience in the nature and dynamics of abuse and the psychological
socialization that accompanies it and that time should be taken, perhaps
over a number of sessions, to provide the victim with an opportunity
to fully look at the impact of the abuse and make an informed choice
about a way forward. 89
Furthermore, restorative processes should allow enough flexibility
to meet the differing needs of the people they serve. C.A. Bethel and
L.R. Singer argue that, "By being able to take into account and adapt
to the specific aspects of the relationships between the victim and
the offender, mediation [read also restorative justice] can tailor a
solution, in this case a sentence, that is reflective of the individuals'
interests." 90
Programs should be available in cases where victims have made an informed
choice to proceed in this manner. To deprive victims of this choice
based on a blanket exclusion of certain crimes, I feel, is just as disempowering
as forcing victims to participate without their full consent.
Such flexibility might also include recourse for those victims who
choose not to enter into a restorative initiative but where the offender
is still interested, or in cases where the restorative process has not
been satisfactory to the victim (or the accused, for that matter). In
referring to mediation, Van Ness suggests a "two track system" which
would include mediation as one track and the formal court setting as
the other. He proposes that throughout the restorative process, either
party could have recourse to the court at any time. 91
For instance, in a case where the victim is not interested in pursuing
a restorative model but the accused would like access to a process that
might be more supportive than court, the case might proceed in court
with the understanding that a healing circle (in which the victim is
represented by someone else) would take place at a future time. As well,
if a victim enters into a restorative process and is not satisfied,
there could be recourse to the court system.
There are those, including myself, who have reservations about such
a two-track system. Some of these involve the meshing together of two
systems that have very different philosophical bases (e.g. is it truly
possible to meet the goals of a restorative process if recourse to the
adversarial method is constantly waiting in the wings?) However, the
reality of the situation is such that at the present time, a two-track
system may be the only effective means of ensuring that flexible choice
is presented to those who are affected most.
4) Power Dynamics Within Restorative Justice Initiatives
Another concern that continually resurfaced revolves around power imbalances
that arise in cases of domestic and sexual violence. These issues are
particularly important within the context of restorative justice initiatives
as these programs are meant to facilitate solutions that meet the needs
of all the parties involved, and particularly those of the victim. With
power imbalances present, it may be very difficult to reach an equitable
level of victim input into these solutions. 92
As well, it is important to note that these power imbalances may not
be overt to the facilitator or mediator as often, in violent and abusive
relationships, manipulation and intimidation are extremely subtle. 93
Often, the consequence is the revictimization of women rather than her
empowerment.
For instance, the THANS report noted that mediators infrequently "offered
or accepted power-balancing techniques for use when women were negotiating
with abusive ex-partners" 94
and went on to quote various women who had been involved in the mediation
process and who felt revictimized:
I had a very hard time saying "no" to him. I agreed to things I regret.
I was too scared to stand up for myself. (Dartmouth, NS) 95
No one knows like I do what he's capable of. And I had never crossed
him before. He banged his fingers on the table. That brought back
too much...I broke down. (Digby, NS) 96
In another example, Irene Smith recounted to me the well-known story
of a woman who was involved in a mediation situation. She felt completely
revictimized when her husband began to play with his watch during the
mediation—something he would do prior to beating her. 97
Here, then, is an example of the extreme subtlety of power being played
out in what is supposed to be a safe environment. Indeed, some feel
that these dynamics between victim and offender can never be overcome,
arguing that it is not possible for even the most skilled mediators
to offset these power imbalances. 98
Author Barbara Hart considers that the "co-operation needed to reach
a mediated resolution, is an oxymoron in the context of domestic assault."
99
Negative power dynamics can also be found within the structure of the
program itself. 100
For instance, Mary Crnkovich identified the case of a sentencing circle
in which specific members of the community were ordered by the judge
to identify those community members who would participate. 101
She argues that if critical program decisions such as who participates,
how the role of the accused and victim are defined, and how the circle
is conducted, are left up to certain members of the community, then
power imbalances, differences and conflicts within that community may
all be transferred into the circle as well. 102
Communities are not homogeneous and inequalities that exist in community
can easily become a part of a program that is meant to give equal voice.
To be sure, community pressure in a restorative initiative can be powerful.
Katharine Kelly and Susan Haslip, in their look at mediation, identify
a community conference case in which a young woman was pressured by
other members of the conference to let the young man who assaulted her
visit her home in order to apologize, despite her fear that once he
knew where she lived he would hurt her again. 103
Here, power dynamics displayed by the rest of the community, and not
necessarily the offender, forced a woman to agree to a resolution she
did not necessarily support.
These are obviously serious concerns which cannot be dismissed. However,
there are those who believe that steps can be taken to deal effectively
with these dynamics. Judge Huculak, in her address to the PATHS conference,
stated that the issue of power dynamics was one that definitely needed
addressing. 104
She identified the fact that facilitators needed to be "very well informed
and educated about the dynamics of violence and what the issues are
around domination and power." 105
She also articulated the need to ensure that the processes allowed the
victims to feel safe enough to speak and suggested that support people
such as family and others are an essential component in order to allow
this to happen. 106
Others agree, asserting that once a power imbalance is recognized, the
mediators' "skills combined with balancing tools can help balance the
unequal power between the parties." 107
These techniques can include the constant presence of legal counsel
and support persons during the process, attention to the seating arrangement,
the provision of counselling services, the use of caucuses (when mediators/facilitators
meet separately with the parties), as well as ensuring that parties
maintain the right to terminate the process at any time. 108
Others identified extensive case development, preparation, assessment
and screening as all needing to be present in order to deal with power
dynamics. 109
Dorothy Barg Neufeld noted that they do extensive background work before
the mediation ever takes place, ensuring that in cases that warrant
it there is a safety plan for the victim and also ensuring that the
offender is taking the requisite degree of responsibility and is willing
to change his behaviour. They also examine such areas as:
- how to begin a session (e.g. when people show up; who goes into
the room first);
- how to close off the session (e.g. who leaves first; does there
need to be heightened awareness of safety issues; is there a safe
time between the meeting and getting the victim home);
- allowing the participants to control the process (e.g. allowing
them to progress at their own pace; allowing breaks when needed, etc.);
- identifying power imbalances as they arise throughout the process
and being willing to call participants on inappropriate behaviour
during the process. 110
These are only a few suggestions in how mediators/facilitators might
deal with power dynamics within a restorative initiative or, in these
cases, mediation. However, it is clear that more work needs to take
place before these initiatives will provide the requisite environment
of safety and equality necessary for the program to meet its healing
goals.
5) Training/Standards:
The previous section looked at power dynamics and mediators/facilitators'
responses to those dynamics. Some argue, like Bonnie Diamond, that facilitators
will never receive enough training to be able to deal with these dynamics.
111
Others disagree. To be sure, however, the lack of training and program
standards is certainly one area that has been identified as a major
concern.
Presser and Gaarder assert that, "To help achieve reconciliation...facilitators
should be carefully trained and monitored and...must be sensitive to
—and capable of interrupting—abusive dynamics that characterize the
relationship and that get acted out, however, subtly, in the conference."
112
Others, like Kirstin Lund, Barbara Landau and Niki Landau, concur. They
identified training as key to making restorative justice approaches
more effective in meeting women's needs and suggested that such training
include: training for restorative justice practitioners on issues pertaining
to woman abuse, including physical and psychological abuse and its effect
on family members 113
; training regarding screening for abuse; 114
training for practitioners on how to ensure that processes don't revictimize,
including the implementation of safety measures and safe termination;
115
sensitivity to cultural and racial and ethnic differences which may
be applicable to situations of domestic violence; 116
and, even training for referral agencies, including government and community
agencies, on abuse and how to ensure the safety of the victim throughout
the process. 117
Unfortunately, I was unable to track down any information pertaining
to training for practitioners of restorative justice, and very little
in regards to mediation. I would not consider this research to be complete
or extensive. Certainly, more needs to be done. However, the findings
still point to an area that requires more consideration before these
initiatives will be considered safe and effective for women as, within
the information acquired, there seemed to be a lack of specific training
for mediators regarding domestic and sexual violence.
The Transition House Association of Nova Scotia noted that some mediators
working on these cases did not even have mediation training and that
"even conciliators and mediators with mediation training often did not
appear to understand the dynamics and cycle of abuse, and seemed unfamiliar
with the different forms of abuse (physical, emotional, sexual, financial
and psychological). Many mediators minimized the impact of forms of
non-physical abuse." 118
In various interviews, it was noted that mediators have been hired by
programs having been trained elsewhere and having practiced, often,
in another field not related to family law or criminal justice (e.g.
workplace mediation; medical mediation, etc.), although some do come
from family mediation backgrounds that may have included training in
abuse issues. 119
Within these programs, training is subsequently offered that is specific
to the program and that may cover abuse issues if the program deals
with that type of situation. 120
However, it was noted that training in that area is not extensive.
There is no government regulatory structure, including certification
guidelines, in place in Canada which regulates the practice of mediators
throughout the country. 121
As the Provincial Association Against Family Violence in Newfoundland
states, "In this unregulated climate, someone with one day of training
can set themselves up as a mediator or facilitator." 122
Family Mediation Canada (FMC), however, has developed a set of national
practice, certification and training standards, in consultation with
provincial, territorial and international mediation associations, under
which family mediators must complete a certain level of training and
practice before they receive certification. 123
Unfortunately, these standards are not compulsory. In their section
on training standards, FMC makes it clear that a formal degree is not
a prerequisite to training as a mediator, though it is highly recommended,
and that "The FMC certification process will not prevent anyone from
practicing family mediation but merely prevent family mediators who
are not certified by FMC from claiming FMC certification or accreditation."
These standards do, however, form the basis for higher higher professional
standing within the field. Perhaps they could also serve in the development
of national governmental regulatory standards in the future.
Abuse issues are identified throughout the FMC practice, certification
and training standards. Mediators are expected to: assess families with
histories of abuse for the appropriateness of mediation and refer them
to other services if necessary; 124
ensure that power imbalances or differing levels of negotiating abilities
are managed in order to allow full and equitable participation; 125
maintain a safe environment and terminate the mediation if safety cannot
be assured; 126
and, allow partisan support for participants who are at a disadvantage
due to power imbalances, 127
among others. In order to attain FMC certification, mediators must also
demonstrate a knowledge of the literature, research, skills and techniques
related to issues of domestic violence. These include areas of family
dynamics, the "dynamics and effects of abuse, coercion and control in
families," as well as "the implications of gender in mediation, particularly
in terms of power imbalances and family dynamics, participant negotiating
styles and mediator-participant interaction." 128
Within their training standards, a minimum of twenty-one hours of training
(out of a total of 180 or 12%) must focus on "abuse and control issues
including instruction on power imbalances, the dynamics and effects
of abuse on family members, indicators of danger in abuse cases, child
protection matters associated with family abuse and violence, safety
issues in mediation, the use of tools and techniques to detect and assess
family abuse before and during mediation, the use and application of
assessment tools to screen inappropriate family abuse cases from mediation,
referral techniques, and information about sources of help for abused
family members in communities..." 129
Again, however, these training standards are not compulsory in order
for mediators to practice in this field.
Within the Transition House Association of Nova Scotia report, the
recommendation is made that "Legally regulated professional standards
should replace voluntary standards for the training and certification
of mediators...Work should begin immediately to develop and implement
legally regulated standards for training and certification." 130
I would suggest that the same should apply to facilitators working in
restorative justice initiatives. THANS further advocates measures that
could also be applicable to restorative process faciliators:
- Mediators should have ongoing training regarding abuse issues even
after certification, to deepen their understanding, and to assimilate
new research and professional practices.
- Mediators should be subject to periodic qualitative practice evaluations.
- Mediators' training should emphasize the safety of women and children,
and an understanding of systemic gender discrimination and power imbalance.
- Front line workers serving abuse victims should be directly involved
in mediator training.
- Presently planned training hours for conciliators and mediators
on abuse issues should be increased.
- There should be legal mechanisms put in place to assure mediator
accountability, including an accessible grievance process, and a discipline
process with consequences. Work, should begin immediately to develop
and implement these mechanisms.
Clearly, training standards such as these need to be set in place in
order to ensure that women are not revictimized when they participate
in restorative initiatives.
Beyond the issue of training, women's groups are also calling for accountability
structures for the actual programs being implemented, including better
evaluation. PAAFV question, in their report Keeping an Open Mind,
whether or not adequate assessment of alternate dispute cases takes
place in order to ensure that the standards or the program are met.132
Having undertaken further research on this question, they assert, in
Making it Safe, that some people fear that restorative justice
programs "present even greater possibilities for injustice and harm
to vulnerable groups because they are less open to the public and have
fewer accountability structures." 133
Throughout the PATHS conference in Saskatchewan, the issue of evaluation
was raised on several occasions, citing concern that little evaluation
of restorative programs seemed to be taking place. 134
Indeed, my experience undertaking this research pointed to a lack of
evaluative reports within the field, with some programs (particularly
mediation) informally evaluating their services through feedback from
participants. 135
Others note the lack of standards and guidelines on how restorative
processes should operate, including determining which cases are eligible
and who can or should participate. 136
Pauktuutit, in referring to programs that take place within the Inuit
community, call for careful scrutiny of any new initiatives before they
are accepted and state that, "Unless community-based services adhere
to a clear set of guidelines and standards that reflect the needs and
interest of all members of the community, potential exists for victims
to suffer all over again. Without strict adherence to such principles,
alternatives could end up being even more dangerous than their predecessors,
especially to victims who are disproportionately women." 137
They further assert that, "The pace of transfers must slow down to allow
for the development of adequate standards and guidelines." 138
Although Pauktuutit is referring to programs taking place within a
certain cultural environment, many of their concerns can also apply
to programs delivered throughout the rest of Canada. They call for discussions
which focus on: who can participate in the delivery of these services;
what conduct guidelines should apply to those who are administering
and facilitating these programs; the relationship between community
politics and the delivery of such community services; and, the restrictions
that must be put in place in order to guarantee that these initiatives
do not perpetuate the inequality of Inuit women [or any women]. 139
Significant research needs to take place regarding the evaluation of
current restorative initiatives in order to ascertain the present effectiveness
of programs. This information needs to be gathered and made available,
preferably at a national level and at the least, provincially and territorially.
It does seem clear, however, that there is a considerable need for legal
standards and guidelines, both for training and for the overall implementation
of programs, in order to ensure safety for those involved in the process.
6) Resources
The final concern that this paper will turn to revolves around a lack
of financial and resource support for restorative justice processes.
In an interview with Lisa Addario, the Executive Director of National
Associations Active in Criminal Justice (NAACJ), she commented that
the apparent motivation for these programs at the political level—
to decarcerate and ultimately save money—does not lead to effective
restorative justice initiatives. 140
Rather, she contends, there should be little or no cost-saving, as money
diverted from the prison system should be transferred into the community
in order to provide sufficient program support for restorative initiatives.
141
Currently, however, that is not the case. On top of this, there is little
indication of successful decarceration. 142
Irene Smith also pointed out this concern when she stated, in Saskatchewan:
I think it's important to say that given the history of [Nova Scotia]
when it comes to allocating resources to the community to respond
to the various public policies and programs that they've implemented,
it's very unrealistic that sufficient resources will be allocated
for groups like Avalon Centre to provide the kind of support and counselling
that women need. We've not seen and we certainly do not believe that
sufficient resources will be allocated to ensure that there's money
there to assist the offender in reintegrating into the community.
143
Pauktuutit also identified this as a concern, claiming that a lack
of technical and financial resources has the potential to undermine
the efficacy of any community-based service; that while the intent behind
alternative sentencing reforms may be positive, "...they can nonetheless
do a disservice to communities that don't have the resources to implement
them successfully." 144
For instance, Pauktuutit questions how an alcoholic abuser might access
counselling, not merely for his substance abuse, but for his abuse against
his partner, if there is no one in the community trained to deliver
such a service or if there are no resources to train interested persons.
As well, they inquire as to how a victim can participate in restorative
initiatives without the availability of advocacy support and counselling.
145
In short, Pauktuutit asserts that "These kinds of attempts at restorative
justice run a high risk of failure unless the proper resources are provided
to support them. They can also leave women and children in a position
of continuing danger." 146
They further advance that communities should not take on such initiatives
unless government is committed to providing the ongoing resources necessary
to develop, implement and maintain these programs. 147
Others, such as Viola Thomas, concur citing that the professional therapeutic
counselling services required to facilitate the healing process of victims
or sexual offenders is just not available in most Aboriginal communities.
148
Such concerns should be taken seriously in all communities. For instance,
it is likely that a non-Aboriginal small, rural community would not
have access to the resources available in Toronto or Montreal. Even
in metropolitan areas, it should not be taken for granted, in implementing
any initiative, that the community is sufficiently resourced to support
that program.
Community resources should consist of the necessary means to provide
continual support to both the victim and the offender, prior, during
and following any process. To Judge Bria Huculak, this means, among
other things, addressing the need for counselling services, including
individual and family. 149
Mary Crnkovitch cites the following as necessary to support alternative
initiatives: "...the development and operation of adequate public legal
education on alternatives; paid administration to operate the alternative
approach; support and advocacy workers for women and children who are
victims of violence; male batterer counselling programs; in addition
to the social worker and addictions counsellors that may already be
located in the communities." 150
I am sure that there are needed resources missing from this list. Once
again, the proper steps must be taken to research this issue and ensure
that these measures are in place prior to engaging in restorative processes.
Within this discussion of resources, there was some debate over the
appropriateness of utilizing the services of volunteers for restorative
initiatives. For instance, Irene Smith, among others, shared her concern
that volunteers might not possess the appropriate background and training
in order to facilitate these processes. 151
She also noted that the use of volunteers, and not paid professionals,
removes the responsibility of resourcing these processes from the government
and moves it into the community. 152
PAAFV grants that using volunteers in alternative processes can benefit
by bringing down the very high costs of our current legal system. However,
it also echoes Irene Smith's concern when it points out that governments
could very easily take advantage of the generosity of those who donate
their time and then expect volunteer programs to provide services that
should be funded publically. 153
The onus to provide sufficient financial and human resources to support
these programs adequately must remain with government and should not
be devolved to the community. However, that doesn't necessarily mean
that volunteers should never be used. Many volunteers may already come
to the program with extensive training in these issues. For those who
do not, funds must be made available to undertake sufficient training,
in keeping with the standards and guidelines that will hopefully be
developed in the future. As well, though it is true that these programs
must maintain a certain standard and must include professional support,
restorative initiatives are meant to take place within community. Therefore,
as Bev Petras pointed out at the Saskatchewan conference, it is important
to not underestimate the resources available in one's own community,
154
both paid and volunteer.
Part IV: A Way Forward?
In reviewing the available material and opinions surrounding restorative
justice and cases of domestic and sexual violence, it is abundantly
clear that legitimate concerns exist that must be addressed before current
and future programs can be considered effective and safe. In order to
address these concerns, and in order to develop future programs that
are appropriate, both government and the designers of initiatives must
enter into extensive consultation and cooperation with victims and women's
advocacy groups. Concurrently, women's groups must continue to openly
dialogue on these issues with each other, as it is apparent that, although
these concerns are shared by many, there is no homogeneous "women's"
voice on restorative justice. All the voices should be heard and respected.
Other measures must also be taken. The development of restorative initiatives
must ensure that denunciation plays a significant role in the process.
This is not to say that the result must include harsh punishment. Rather,
the process must convey a clear message to the offender and to the community
that the action was harmful and will not be tolerated. As well, flexibility
must be a key part of these initiatives. Restorative justice programs
must always empower the victim to make carefully informed, supported
choices about whether or not to participate and this choice must be
respected. In cases where victims do decide to participate, process
structure and training must ensure that negative power dynamics are
appropriately handled so that revictimization does not occur.
Finally, despite the fact that restorative justice initiatives take
place within and seek to involve the community in finding positive solutions
to situations caused by harmful actions, they are still a response to
crime. Therefore, the government cannot abrogate its responsibility
to provide sufficient funding and other resources for the effective
implementation of these programs. As well, the government bears a responsibility
to ensure that effective standards and guidelines exist for both program
development and training. Until this is so, it is likely that, despite
the benefits of restorative programs, some women will continue to be
revictimized.
As noted in the introduction, this research is not complete. Indeed,
I feel I have only touched on the proverbial "tip of the iceburg". Funding
must be found in order to allow academics and practitioners to conduct
extensive, impartial research at the national and provincial/territorial
levels into these issues. It is my hope that government will provide
such funding as part of its responsibility to respond to crime in an
appropriate and effective manner. For, although restorative justice
may be shadowed by legitimate concern, such cooperation and research
could contribute definitive answers to these questions and thereby discover
a way forward that truly meets the needs of those affected by crime.
Footnotes
1 Atlantic Community Justice Project, Stories
File, Community Legal Information Association of PEI, Charlottetown,
PEI, N.D, pp. 11-12.
2 Transition House Association of Nova Scotia,
Abused Women in Family Mediation: A Nova Scotia Snapshot, January 13,
2000, p. 8.
3 Pauktuutit Inuit Women's Association, Inuit
Women and the Administration of Justice: Progress Report No. 2, Ottawa,
Ontario, October 4, 1993, pp. 41-43.
4 In 1974, the first restorative justice project
in Canada began in Elmira, Ontario, based on a vandalism case.
5 A National Film Board of Canada video, Glimmer
of Hope, documents a family's journey with victim's family-offender
mediation following the murder of a daughter in Minnesota.
6 Roach, Kent, "Changing punishment at the turn
of the century: Restorative justice on the rise", in Canadian Journal
of Criminology, Volume 42, Number 3, July 2000, pp. 272-273.
7 Kilkie, Marke, "Restorative Justice: Exploring
the Limits—Mediation as an alternative to the Criminal Justice System
in Cases of Domestic Assault", Winter 1997, supervised research obtained
through PATHS, Saskatchewan, p. 35.
8 Kelly, Katharine D. and Susan J. Haslip, "'But
we don't mediate wife assault!': A Case Study of the Proposal to Shift
from Court to Mediation as a Response to Woman Abuse", Faculty of Sociology,
Carleton University and Faculty of Law, University of Ottawa, N.D.,
p. 237.
9 Ibid.
10 Ibid.
11 Kelly and Haslip., op.cit., p. 238.
12 Ibid.
13 Ibid., p. 239.
14 Ibid.
15 Ibid.
16 Ibid.
17 Kelly and Haslip, op.cit., p. 240.
18 Provincial Association Against Family Violence,
Newfoundland and Labrador, Keeping an Open Mind: A Look at Gender Inclusive
Analysis, Restorative Justice and Alternative Dispute Resolution, St.
John's, Newfoundland, June, 1999, p. 24.
19 Ibid.
20 The Church Council on Justice
and Corrections, Satisfying Justice: Safe Community Options that attempt
to repair harm from crime and reduce the use or length of imprisonment,
Ottawa, Ontario, 1996, p. X.
21 Ibid., p. XI
22 Ibid., p. XII
23 Pauktuutit Inuit Women's Association, Setting
Standards First, Ottawa, Ontario, N.D. (post-1994), p. 2.
24 Provincial Association of Transition Houses
of Saskatchewan, proceedings from conference, "Restorative Justice:
Is it justice for battered women?", tape two, April 15, 2000.
25 Ibid.
26 Ibid., tape one, April 14, 2000.
27 PATHS Conference, tape there, April 15, 2000.
28 Ibid.
29 Bev Putra, PATHS Conference, tape two, April
15, 2000.
30 PATHS Conference, tape one,
April 14, 2000.
31 PAAFV, op.cit., p. 30.
32 Ibid., p. 31.
33 Kelly and Haslip, op.cit., p. 256.
34 Irene Smith, at the PATHS Conference, stated
that the program restorative justice encourages forgiveness and that
we are not in the business of forgiving sexual assault and domestic
violence. PATHS Conference, tape there, April 15, 2000.
35 In her paper, which was presented by Virginia
Fisher at the PATHS Conference, Judy White (alias) refers to mediation and
states that this understanding would need to be in place before an initiative
like mediation could be of benefit. PATHS Conference, tape two, April
15, 2000.
36 Transition House Association of Nova Scotia,
op.cit., and Marke Kilkie, op.cit.
37 Pauktuutit, Setting Standards First, op.cit.,
p. 3. Although supplying victim assistance and victim participation
would definitely be present in any restorative justice initiative, many
would argue that on their own, they do not constitute a restorative
approach.
38 The Church Council on Justice and Corrections,
"Restorative Justice: What Are We Talking About?!", reflection sheet,
Ottawa, Ontario, 2000, p. 1.
39 Ibid, p. 3., borrowed from Susan Sharpe,
Restorative Justice: A Vision for Healing and Change.
40 Ibid.
41 The Church Council, "Restorative Justice:
What Are We Talking About?!", op.cit., p. 3.
42 Ibid.
43 Ibid.
44 It is important to note, however, that family
mediation, which provides the focus for the bulk of academic literature
on the subject of domestic abuse and alternative processes, is not necessarily
restorative in nature.
45 Cleland Moyer, Kathleen, "Trying to listen"
in Interaction, The Network Interaction for Conflict Resolution, Volume
12, Number 2, Summer 2000, p. 3.
46 PAAFV, Making it Safe, op.cit., p. 21.
47 Presser, Lois and Emily Gaardner, "Can Restorative
Justice Reduce Battering? Some Preliminary Considerations", journal
and date unknown, though it appears to be late 1999 or 2000 (photocopy
of article received from The Church Council on Justice and Corrections),
p. 182.
48 Ibid., p. 184.
49 Ibid., p. 176.
50 PATHS Conference, tape two,
April 15, 2000.
51 Ibid.
52 PAAFV, Making it Safe, op.cit., p. 21.
53 Dorothy Barg Neufeld, Staff Coordinator/Mediator,
Winnipeg Mediation Services, in personal interview, November 14, 2000.
54 Kilke, Marke, op.cit., p. 33.
55 Paper by Judy White (alias), presented by Virginia
Fisher, PATHS Conference, tape two, April 15, 2000.
56 Transition House Association of Nova Scotia,
op.cit., p. 19. This report focused only on mediation and not restorative
initiatives. However, this concern has been expressed by others in the
field in regards to restorative justice programs.
57 Ibid., p. 20. Again, although this report
deals with mediation, the concern is still valid regarding restorative
justice initiatives.
58 Irene Smith, Executive Director, Avalon Sexual
Assault Centre, Halifax, Nova Scotia, October 27, 2000, by telephone,
and also stated again in the PATHS Conference transcript, tape three,
April 15, 2000.
59 Irene Smith, op.cit.
60 Bonnie Diamond, Executive
Director, National Association of Women and the Law, November 8, 2000,
in person, Ottawa, Ontario.
61 PAAFV, Making it Safe, op.cit., p. 12.
62 Ibid.
63 Pauktuutit, Setting Standards First, op.cit.,
p. 8.
64 Ibid.
65 Crnkovich, Mary, "The Role of the Victim
in the Criminal Justice System—Circle Sentencing in Inuit Communities",
for the Canadian Institute for the Administration of Justice Conference
in Banff, Alberta, October 11-14, 1995, p. 10.
66 McLean, Michelle, "Circle Sentencing," in
Jurisfemme: News from the National Association of Women and the Law,
Volume 18, No. 1, Fall 1998, p. 4.
67 PATHS, tape four, April 15, 2000.
68 Presser and Gaarder, op.cit., p. 186.
69 Paper by Judy White (alias), presented by Virginia
Fisher, PATHS conference, tape two, April 15, 2000.
70 For instance, Irene Smith,
in referring to the new restorative justice policy in Nova Scotia, raised
this issues as a concern. It was raised by others throughout the research
and at the
71 PATHS conference, as well. PATHS conference,
tape one, April 14, 2000.
72 Norma Green, PATHS conference, tape two,
April 15, 2000.
73 Leonard Bush, PATHS conference, tape two,
April 15, 2000.
74 PAAFV, Making it Safe, op.cit., pp. 16-17.
75 PATHS conference, tape one, April 14, 2000.
76 PATHS conference, tape two, April 15, 2000.
77 TRANS, op.cit., p. 10.
78 Dorothy Barg Neufeld, op.cit.
79 PATHS conference, tape three, April 15, 2000.
This allegation has not been clarified by this author. However, if it
is not the case, then the fact remains that this perception is an issue
and needs to be addressed.
80 Bonnie Diamond, op.cit.,
and Marke Kilkie, op.cit., p. 32.
81 Kilke, Marke, op.cit., p. 32.
82 Ibid.
83 Presser and Gaarder, op.cit., p. 178.
84 Ibid.
85 Presser and Gaarder, quoting a 1990 report
by Yellott, op.cit., p. 183.
86 Leonard Bush, PATHS conference, tape two,
April 15, 2000.
87 Atlantic Community Justice Project, op.cit.,
p. 17.
88 TRANS, op.cit., pp. 18-19.
89 Tracy Porteous, PATHS conference, tape two,
April 15, 2000.
90 Kilke, Marke, op.cit., p.
35, quoting C.A. Bethel and L.R. Singer, "Mediation: A New Remedy for
Cases of Domestic Violence", 1982, Vermont Law Review, Vol. 7:15 at
20.
91 Kilke, Mark, op.cit., pp. 36-37.
92 PFAAV, Keeping an Open Mind, op.cit., p.
22.
93 PFAAV, Making it Safe, op.cit., p. 18.
94 THANS, op.cit., p. 15.
95 PFAAV, Making it Safe, op.cit., p. 19.
96 Ibid.
97 Irene Smith, op.cit.
98 Kilkie, Marke, referring to author Barbara
Hart, op.cit., p. 33.
99 Ibid.
100 PFAAV, Making it Safe,
op.cit., pp. 18-19.
101 Crnkovitch, Mary, op.cit., p. 11.
102 Ibid., p. 14.
103 Kelly and Haslip, op.cit., p. 260.
104 Judge Bria Hukulak, PATHS Conference, tape
one, April 14, 2000.
105 Ibid.
106 Ibid.
107 PAAFV, Making it Safe, op.cit., p. 19.
108 Ibid.
109 Dorothy Barg Neufeld, op.cit.
110 Ibid.
111 Bonnie Diamond, op.cit.
112 Presser and Gaarder, op.cit., p. 187.
113 Landau, Barbara and Niki Landau, "Domestic
violence policy: Lessons to be learned" in Interaction, The Network
Interaction for Conflict Resolution, Volume 12, Number 2, Summer 2000,
p. 5.
114 Kirstin Lund, op.cit.
115 Landau and Landau, op.cit., p. 5.
116 Ibid.
117 Kirstin Lund, Settlements, Inc., Prince
Edward Island, October 20, 2000, by telephone.
118 THANS, op.cit., p. 15.
119 Denise A. Moore and Leigh Holm, Dispute
Resolution Centre for Ottawa-Carleton, November 2, 2000, in person,
Ottawa, Ontario; Dorothy Barg Neufeld, Mediation Services of Winnipeg,
op.cit.; and, Kirstin Lund, Settlements, Inc., PEI, phone interview,
October 20, 2000.
120 In these cases, two of
the three programs did not generally deal with issues of abuse and one
program did only rarely. Unfortunately, I was unsuccessful in contacting
the two programs that I knew did carry out mediation or restorative
initiatives involving domestic violence.
121 PAAFV, Making it Safe, op.cit., p. 7.
122 Ibid.
123 Neilson, Linda C., Peggy English and The
Certification Committee, Practice, Certification and Training Standards,
Family Mediation Canada, http://www.fmc.ca/fmctoc.cfm.htm, November
26, 2000.
124 FMC Standards, Section 2, Part 4.
125 Ibid., Section 3.1, Part 3a.
126 Ibid., Section 3.2, Part 1l.
127 Ibid., Section 2, Part c.
128 Ibid., Section 4.1.
129 Ibid., Section 5.3, Part 2c.
130 THANS, op.cit., p. 17.
131 THANS, op.cit., p. 17.
132 PAAFV, Keeping an Open Mind, op.cit., p.
34.
133 PAAFV, Making it Safe, op.cit., p. 12.
134 Tracy Porteous, Irene Smith, Faye Blaney,
and other speakers who were not identified.
135 Dorothy Barg Neufeld with Mediation Services
of Winnipeg, which does few domestic violence cases and Denise Moore
and Leigh Holm, with the Dispute Resolution Centre of Ottawa-Carleton,
which does not presently take on domestic violence cases, both shared
that evaluation processes were informal at present. In the many phone
calls made to programs throughout this research, I could not secure
one evaluative report. Unfortunately, I was unable to secure interviews
with many of these programs, either, in order to follow-up with these
questions.
136 Crnkovitch, Mary, op.cit., p. 5.
137 Pauktuutit, Setting Standards First, op.cit.,
p. 7.
138 Ibid., p. 12.
139 Ibid., p. 12.
140 Lisa Addario, Executive
Director, National Associations Active in Criminal Justice, July 26,
2000, in person, Ottawa, Ontario.
141 Ibid.
142 Ibid.
143 Irene Smith, PATHS Conference, tape three,
April 15, 2000.
144 Pauktuutit, Setting Standards First, op.cit.,
p. 8.
145 Ibid., p. 9.
146 Ibid.
147 Ibid.
148 McLean, Michelle, op.cit., p. 4.
149 Judge Bria Huculak, PATHS Conference, tape
one, April 14, 2000.
150 Crnkovitch, Mary, op.cit.,
p. 24.
151 Irene Smith, PATHS Conference, tape three,
April 15, 2000.
152 Ibid.
153 PAAFV, Keeping an Open Mind, op.cit., p.
41.
154 Bev Petras, PATHS Conference, tape three,
April 15, 2000.
Sources
Addario, Lisa, "Background Paper on Conditional Sentencing", for National |
