Is there a role for restorative justice after sexual crime?
The ‘beyond reasonable doubt’ evidential threshold can inhibit pathways to justice in the aftermath of sexual crime. In the absence of a fundamental shift in legal and criminal justice thinking, alternative avenues to justice should be considered. Marie Keenan, an Associate Professor at UCD’s School of Social Policy, Social Work and Social Justice, writes.
For more than 40 years I have worked in the field of sexual violence. From my first child sexual abuse ‘case’ as a young Irish social worker in Brixton in 1976 to issues involving sexual violence and harassment on university campuses today, my professional life has involved almost every aspect of sexual violence and abuse over these years, including legal, social, therapeutic, organisational, research and policy1 and more latterly the arts2.
Over those years I have seen low rates of reporting, high rates of attrition and reports of secondary victimisation leading to important legal and social reforms, aimed at making criminal justice processes more robust, victim-friendly and better able to address the concerns of victims, without infringing the due process rights of accused persons. But despite the progress, fundamental challenges remain. We simply cannot continue to defend a position whereby most victims of sexual crime receive no effective justice outcome whatsoever and the majority of perpetrators are not held to account. Can anything be done to remedy this situation?
Let us begin with a philosophical question that is moot: Does justice in the aftermath of sexual crime always require a prosecution? If the answer to this question is ‘yes’ then perhaps this may explain, at least in part, why so many victims are distraught when the office of the Director of Public Prosecution decides not to proceed to trial in the majority their cases because of ‘insufficient evidence’ against the evidential threshold of ‘beyond reasonable doubt’.
Following this line, if we truly believe that justice in the aftermath of sexual crime requires prosecution should not this obligation outweigh all other considerations? For example, if a prosecution is the justice ideal, how can pathways to justice be made more accessible for complainants, within the context of a ‘beyond reasonable doubt’ evidential threshold? To follow this argument further, should not the DPP proceed to trial with the majority of reported cases?
Many readers will understand how such a prospect would require a significant shift in legal and criminal justice thinking. While not discounting such a prospect perhaps in our lifetime, with the influence of human rights thinking, if we fail to grasp this justice nettle in contemporary times and ignore the reality of high attrition in sexual crime, we continue to blindly create false expectations of delivering justice for victims, and allow perpetrators go forth with impunity. Creative options and additional routes to justice must therefore be considered.
If access to justice is accepted as a fundamental human right for all citizens, it behoves us to find honest solutions to the current justice impasses.
From where I stand, if access to justice is accepted as a fundamental human right for all citizens, it behoves us to find honest solutions to the current justice impasses. It is here that restorative justice has something to offer, not as a stand-alone, but as part of a more broadly conceptualised justice response. Aside from bridging gaps in justice provision, restorative justice also can provide healing and reintegration opportunities for complainants and accused, victims and offenders, including those whose cases have been successfully prosecuted3.
However, let me be clear; I am not proposing restorative justice in the aftermath of sexual crime as an informal mechanism without statutory legitimacy or without dynamic relational collaboration and oversight within the justice arm of the State. Neither am I proposing restorative justice as an additional punishment for offenders. In what I am proposing, the rights and interests of both parties are respected and engaged.
International context
In some jurisdictions, such as Belgium, legislation provides for restorative justice for all types of crime, for all individuals, at all levels of criminal justice and runs in parallel to or following criminal proceedings. Restorative justice is a voluntary process and is based on respectful dialogue face-to-face or in shuttle and other types of meeting. In Belgium, all complainants and accused persons get notice of the existence of the restorative justice service as soon as a crime is reported. It is at the discretion of the victim to initiate the process and accused persons are under no obligation to participate.
However, we know from research that high levels of satisfaction are reported by victims and offenders who do, with other healing outcomes reported for both. In Belgium, referrals for restorative justice are thus directly linked to reports of sexual crime to the police.
A limitation of the service is it cannot accept referrals from people harmed by sexual violence who have not reported the crime to criminal justice authorities. While a firewall of procedural and safety safeguards exists between criminal and restorative justice processes when both run in parallel, reports of the restorative justice proceedings can be given to a trial judge, with the consent of both parties, who may or not take it into account in subsequent sentencing.
The primary focus of the restorative justice work in Belgium is on repairing the harm and social integration. It gives victims an opportunity to exercise their voice, to ask questions of the perpetrator and to make statements about the impact of the crime and other matters of interest to them. Offenders also have opportunities to answer questions, bring forth their story, make recompense, and as offenders in my own study reported4 “to do something honourable in the face of such dishonour”. Preparation is key to these restorative meetings, the agenda for which is well worked out and prepared in advance with both parties.
Restorative justice after sexual violence must only be facilitated by trained facilitators who understand the impact of trauma, the dynamics of sexual crime, the law and due process as well as restorative justice methodologies. Various studies suggest that restorative justice is best delivered by designated independent agencies within a broad criminal justice or cross governmental umbrella.
In other jurisdictions, such as New Zealand, where legislation also provides for restorative justice, the reach is somewhat wider than in Belgium. Referrals can also be accepted from individuals harmed by sexual violence who do not wish to make a formal report of the crime to the police. Referrals are also made by the public prosecutor and the police.
We can no longer ignore the justice rights of victims of sexual crime or the integration and healing needs of victims and offenders.
Restorative justice processes follow similar patterns to that outlined above but in non-reported cases and instances where cases do not proceed to trial. A raft of policy guidance exists to work for accountability and community safety, by means of restorative agreements, generated during and agreed as part of the process. The agreement may include a contract regarding the social conduct of the offender were the parties to meet in the future; mandated sex offender therapy for the offender; support or therapy for victims if desired and in some instances financial or other recompense. The formal agreements generated at the end of the process are monitored by the designated agency or in some instances by the police or probation service.
In New Zealand the focus of the restorative justice work is to contribute to an experience of justice for victims, as well as working for healing and integration. Achievement of these goals are reported as outcomes for many participants in follow up research.
While legislation exists for restorative justice after sexual crime in some jurisdictions, lack of legislation does not prevent this practice in others. For example, in an international study in 2014 of 74 geographically dispersed restorative justice organisations across the globe I found that 41.9 per cent had been dealing with cases of sexual violence for more than 10 years and more than 63.5 per cent had engaged with cases of sexual violence for more than five years.
I also found that restorative justice after sexual violence is taking place ‘under the radar’ partly because of perceived fear that it could cause further harm to victims or that offenders would misuse the process for their own ends. Time here does not permit me to expand on these issues but interested readers are referred to further publications on these matters5. What I can report is that each of the risks can be managed and mitigated in the restorative process and a number of UN, Council of Europe and EU documents and instruments, as well as empirical studies, are available to guide us through best practice.
For legal practitioners and defence lawyers who may be concerned about all of this I want to assert that restorative justice after sexual violence need not be a lawyer-free-zone as some suggest; legal advice for the parties is important. However, while lawyers are welcome, the focus of their work is different to that of prosecuting and defending cases. There is also a significant role for An Garda Síochána, the office of the Director of Public Prosecution and the judiciary. We can no longer ignore the justice rights of victims of sexual crime or the integration and healing needs of victims and offenders. We have innovative mechanisms available for us to consider.
- See Keenan, M. (2012). Child Sexual Abuse and the Catholic Church: Gender, Power and Organizational Culture. New York: Oxford University Press
- Theatre play ‘Stronger’ Dublin Theatre Festival, 2020, https://dublintheatrefestival.ie/programme/festival-plus/stronger; Webinar UCD ‘In Conversations’ https://www.youtube.com/watch?v=hwz5vB9gzvg
- See Aibhe Griffith’s account of her experiences in film ‘The Meeting’ www.themeetingfilm.com in which she played herself.
- See Keenan, M. (2014). Sexual Trauma and Abuse: Restorative and Transformative possibilities http://hdl.handle.net/10197/6247
- www.ucd.ie/research/people/socialpolicysocialworksocialjustice/drmariekeenan
