Dr. Marie Keenan
Associate Professor, University College Dublin
I welcome the launch of the Restorative Justice: Strategies for Change (RJS4C) website and commend the team and the Department of Justice for developing this important resource. It represents an important initiative and its interactive and developmental commitment will serve us all well.
As my first response to the invitation to engage, I want to make a strong plea: let us carve out sections of the website for victim-initiated restorative justice work; for restorative justice work conducted by individual/independent practitioners; for training considerations for practitioners working with complex violence cases; and for thoughts on service delivery. In particular, let us not shy away from offering victim-initiated restorative justice services for victims of sexual violence and abuse, and continue the research and debate regarding the possibilities and challenges for restorative justice and, indeed, transitional justice type-initiatives in the context of other gender- and power-based, violent and institutional crime and abuse. We know from a strong body of research that the greater the impact of the crime in question, the greater the outcomes for restorative justice. In this piece, I will focus on restorative justice after sexual crime.
There are four groups of complainants (victims) and accused persons (perpetrators) to be considered, as of right, in the aftermath of sexual crime. This is based on a host of relevant Victims’ Legislation, Charters, Directives, research, reviews (p.130) and policy documents (p. 64), as well as the recent Programme for Government (p.86), the 2018 Council of Europe Recommendation concerning restorative justice in criminal matters and other international instruments. These four groups are:
- persons for whom a complaint results in criminal proceedings and a criminal conviction;
- persons for whom a complaint results in criminal proceedings and an acquittal;
- persons for whom a complaint does not proceeded to trial by direction of the Director of Public Prosecution; and,
- persons for whom no formal complaint is made to An Garda Síochána following sexual violence and abuse.
While the Irish Probation Service provides restorative justice services for victims and offenders of sexual crime referred by the courts where there is a conviction and when the offender is in custody or a client of the Probation Service, gaps exist in the statutory provision of services for victims and offenders in the remainder of cases outlined above. In addition, when time has elapsed between the sentence being served and the victim’s decision to seek restorative justice, victims are left scrambling for services, not knowing exactly where to go. Many of these situations find their way to independent practitioners. I sometimes think of these individuals and families as ‘criminal justice orphans’, abandoned by the state in their search for restorative and other forms of justice.
Evidence tells us that the majority of sexual crime victims get no justice whatsoever and the majority of sex offenders go forth with impunity. This reality is no longer morally justifiable or legally defensible in terms of a human rights imperative. We must find additional justice and accountability responses, and it is here that restorative justice can play a role. The legal and social science expertise exists in Ireland to work with policymakers in this endeavour.
As well as conducting research, I have delivered restorative justice services in the aftermath of sexual crime for many years. In recent years, my restorative justice work included:
- eleven victims;
- six offenders; and,
- thirteen family members.
While each case was different and some involved multiple restorative justice meetings between the parties in different combinations, all bar three of the cases involved intra-familial sexual violence. Some cases involved both intra-familial and external sexual violence. Three ongoing cases, not included in these above data, are pending because of COVID-19 constraints on meetings. The models of practice I have used include victim-offender dialogues, shuttle dialogue and healing circles. Part of the reason for my involvement with these families is that there is no statutory service available to them to respond to their restorative justice needs and requests.
So, what do I want to share about this work that might be helpful regarding policy? Apart from the practice issues which are easily addressed when one is highly trained for this work, which is essential, there are structural challenges inherent in every situation. One challenge is trying to locate offenders when they have been released from prison or when they no longer live at their last known address. I could write a whole paper on that. A second challenge is cost, and a third challenge is the lack of information about the possibilities of restorative justice after sexual and other violent crime in the public domain, resulting in victims not knowing how to find what they need, including a suitably qualified practitioner.
I have written in many fora about what is needed to remedy this situation, but here I want to make a few suggestions.
1. An all-of-government approach is required to respond to the rights and needs of victims and secondary victims of sexual and other gender- and power-based violent crime. This initiative needs to be led by one Department; my suggestion is the Department of Justice.
2. A designated agency under the remit of the Department of Justice needs to co-ordinate and deliver restorative justice in serious violent cases that fall outside the remit of the Irish Probation Service. This should have the capacity to use all models of practice: victim-offender dialogues, shuttle dialogue, restorative conferences, and healing restorative circles.
3. A National Contact Preference Register for Serious Crime (NCPRSC) should be established on a statutory footing and maintained by the Department of Justice. The register would log the willingness of offenders to participate in restorative justice, if the victim came seeking this information. If two registrants are matched with each other on the NCPRSC and they wish to engage in restorative justice, the referral is made to the designated agency. If an offender has not registered with the NCPRSC, a victim seeking restorative justice is referred to the designated agency. The case can be processed with the additional task of locating the offender and working appropriately with the victim if the offender cannot be located or is unwilling to participate. The NCPRSC would be adequately resourced and advertised nationally at regular intervals. This resource would be enormously helpful for victims of historic sexual and other violent crime and for victims and offenders of sexual abuse perpetrated by Catholic clergy.
4. The multi-agency group to be announced by the Department of Justice that will now follow the publication of the mapping exercise by RJS4C, “to scope requirements for a more integrated, consistent, visible and high quality restorative justice service for vulnerable victims who wish to pursue that pathway” (p. 64), must include personnel with the requisite expertise and experience to advise on restorative justice after sexual- and gender-based violence.
I suggest we switch the lens for a moment and consider making a new, rights-based space for victims and secondary victims of violent crime, as of right, in the restorative justice commitment of criminal justice services broadly defined. There is a welcome commitment now to develop and expand restorative justice services in the state, but let’s not forget victim-initiated restorative justice services alongside the important offender-initiated and -focused work that many criminal justice agencies and NGOs are doing so well. The three pillars of RJS4C – “to improve accessibility of safe, high quality restorative justice in Ireland, to increase knowledge about restorative justice processes and services and to change culture through the wider application of restorative principles and practices in criminal justice settings” – can only be met if we think outside the box and include in our thinking the broader, sometimes unseen, impacts of crime and aspects of justice that exist beyond the gaze of specific criminal justice agents and agencies.
Marie Keenan has conducted national and international research on restorative justice after sexual crime. She is a member of The Gender Based Violence Working Group for the European Forum of Restorative Justice, Chairperson of the Sexual Exploitation Research Programme at UCD, and a member of the Global Advisory Council of Restorative Justice International.