Intern Kate Duffy’s second summary reviews the UCD working paper by Joyce and Keenan, Restorative Justice, Sexual Violence and the Criminal Justice System, which explores the benefits of restorative justice in promoting access to justice for victims, and the issues apparent in efforts to reconcile restorative and criminal justice. You can access the working paper here.
Key message:
Building on their previous work, Joyce and Keenan discuss the use of restorative justice as a method of handling cases of sexual violence. A hybrid system of justice would give survivors access to a number of justice options, with restorative justice offered at all stages of the process.
Summary:
Restorative justice processes can assist the criminal justice system in addressing the prevalent inadequacies among its response to sexual crime. In fact, restorative justice is often used as an alternative justice model for responding to sexual violence, despite many believing that its use should only be complementary to the criminal justice system.
The criminal justice system generally fails to address sexual violence adequately. It is seen as outdated, disconnected, and prejudiced. Issues include high rates of attrition and low levels of prosecution of sexual violence cases, and a limited role for survivors, aside from as witnesses to the State’s prosecution of the suspect. Other flaws include limited opportunities for offender accountability, poor reintegration of sexual offenders into the community, and the limited role of the community within the criminal justice system.
Restorative justice processes can complement and strengthen the criminal justice system, and address some of these issues. To account for high rates of attrition, the authors advocate for the use of restorative justice, not in opposition to retributive justice, but as a flexible way to give survivors access to justice, whether that be within or outside the criminal justice system. When further incorporating the victim into the criminal justice process, restorative justice can avoid re-traumatizing and re-victimizing the survivor of sexual violence, placing them at the centre of justice proceedings and ensuring that their participation and respect are key features in the delivery of justice.
Regarding accountability, restorative justice requires an acknowledgement of responsibility by a perpetrator, in contrast with the current system’s incentives to deny responsibility. As such, restorative processes facilitate both offender and survivor, allowing them to become key figures in the justice process. By ensuring that the offender is held fully accountable for their actions, the stigma they face in the aftermath of such a crime may be alleviated.
Indeed, restorative justice can contribute to community reintegration when paired with a form of therapy, rather than hinder it as the current justice system does. By better incorporating community into the justice process, their bonds are ultimately strengthened. Restorative justice programmes have shown that the active inclusion of the community in the justice process as an extension of the primary victim, and as a solution to the crime, can have significant benefits to survivors, offenders, and communities. This encourages interdependence between stakeholders.
A hybrid system consisting of restorative and retributive approaches to justice would include reconciling the terms ‘restorative justice’ and ‘criminal justice system’, and comparing laws and international instruments, which contrast between jurisdictions. Further distinctions focus on sentencing principles and due process considerations. Consideration is also given to victims’ rights, situating restorative justice within, alongside, and outside of the criminal justice system.
The authors highlight how the issue of language influences how restorative justice processes are depicted and understood. The term “restorative justice” is seen to be at odds with “criminal justice” due to the lack of conceptual clarity regarding the meaning of the former (p.11). Only by melding these definitions together can victims be offered a “menu of justice options” (p.12), enabling them to choose a form of justice delivery suitable for them.
Legislation and international instruments are both core features of any criminal justice system and are relevant to the development of restorative justice. The UN Basic Principles established the international benchmark for restorative processes. At the European level, the Council of Europe Recommendation encourages the use of restorative justice practices by member states, while the EU Victims Directive provides clear guidelines, but grants States a significant degree of flexibility to enact restorative justice. While Ireland has cautiously implemented restorative justice measures, recent developments indicated a move towards the UK’s model. Overall, the Belgian approach highlights that law may be key to reconciling restorative justice and criminal administration, and to facilitate a hybrid model of authority. Moreover, advocates may explore the role of the judiciary in considering restorative solutions, especially in response to serious offences.
Although restorative justice can cater to the rights of the victims, appropriate safeguards can prevent a power imbalance and any infringement upon the rights of suspects. Scholars and practitioners must consider that survivors seeking to engage in these services must have their rights adhered to. Whether this comes at the expense of offenders’ rights raises questions as to the relationship between restorative justice, and any statute of limitations for specific offences.
Survivors and offenders need to be referred to restorative justice processes at all stages of the judicial process, as feelings can change over time. Just because it was not the right moment for them at one point does not mean they should be unable to take part in it in future. There is no wrong stage for restorative justice to take place.