Dr. Ian Marder (Maynooth University)
Callie Zinsmeyer (Restorative Justice Services)
This article is adapted from an invited presentation given by the authors at the 22nd ACJRD Annual Conference in Dublin, October 2019. It will soon be published in the conference report and is republished below with permission from the ACJRD.
Introduction
Intimate partner violence (IPV) is perhaps the most controversial offence with which to use restorative justice (RJ). Many countries have experimented with RJ in this context, or have even made RJ widely available in such cases. Questions remain, however, as to how we might offer and deliver RJ safely in cases of IPV – and some still question whether it is worth the risk at all.
We spoke of our experience in working as a practitioner in both restorative justice and IPV perpetrator programmes (Callie) and in researching and developing RJ policies and practices (Ian). We noted that RJ is also used for other types of domestic abuse (such as inter-generational or inter-sibling violence) and in other arenas in which IPV may be present (including in the family law and social work contexts). However, we opted to focus on RJ and IPV in the criminal justice process, rather than addressing this broader range of applications.
This article outlines some of the main arguments for and against the use of RJ with IPV. It uses research and practice experience, and refers to the various models of RJ available, to explore the circumstances under which this might or might not be possible. Ultimately, we conclude that RJ processes (including, but not limited to, victim-offender dialogue) are possible, but should be co-designed with IPV experts, sufficiently resourced, and delivered only by those with an adequate level of training, experience and dedication to restorative principles and victim empowerment.
Why offer restorative justice?
Restorative justice (RJ) is both a group of processes and a set of principles. Some models of the process involve communication between victims, offenders and other stakeholders, including victim-offender mediation and restorative conferencing. We know from the research that these processes can reduce reoffending, support victim recovery and lead to high levels of victim and offender satisfaction relative to courts, even with serious and persistent offending (Shapland, et al., 2011; Strang, et al., 2013; Angel, et al., 2014; Sherman, et al., 2015). In contrast, the recent Women’s Aid research illustrated the deep dissatisfaction that victims of IPV in Ireland feel after the criminal justice process, even when offenders are convicted and imprisoned.
The point of RJ is to empower stakeholders (especially victims and offenders) by enabling them to play an active role in responding to ‘their’ offence. In doing so, we give the victim an opportunity to express what is important to them and to participate in decision-making – neither of which occur in court. RJ also gives offenders the chance to listen to the harm they have caused and to be active in repairing that harm, to the extent that this is possible. These aims reflect the key restorative principles, including stakeholder participation, voluntariness, respect, impartiality and a focus on repairing harm, among others. Ideally, the victim finds the process empowering and cathartic, helping them to move on from what happened. However, the RJ process might still be seen as successful if it gives the victim a chance to get things off their chest, or otherwise achieves a more moderate level of participant satisfaction. Measures of success are case dependent, and the facilitator must always be able to gauge and manage the participants’ expectations of the process.
Restorative principles can also inform other interventions that may be used when the parties cannot communicate safely, or do not wish to do so. This is explained in Rule 59 of the 2018 Council of Europe Recommendation on restorative justice, which notes that ‘innovative approaches to reparation, victim recovery and offender reintegration’ need not involve communication between victims and offenders. For example, victims can participate in support circles, in which they come together with professionals and personal supporters to tell their story and receive support and validation. For offenders, the best-known restorative-informed intervention in Ireland not to involve the victim is the reparation panel, in which professionals and volunteers work with offenders pre-sentence, encouraging them to reflect on the harm done and determine whether any reparative or rehabilitative activities might help repair that harm. Just as IPV cases can vary enormously, so, too, do restorative interventions.
Concerns with victim-offender dialogue and intimate partner violence
The Council of Europe Recommendation says that RJ should be a ‘generally available service’, meaning that one should not be excluded from participation based on the type of offence alone, in the absence of other considerations. However, some have concerns as to whether RJ can ever be appropriate with IPV. These concerns include that the offender might pressure the victim into participating or otherwise manipulate the process, especially if a successful process might have an impact on court proceedings (e.g. if pre-sentence). There is also the risk of retraumatising victims or putting them in further danger, while some worry that offenders might use RJ to trivialise the abuse (Drost, et al., 2015). Additionally, if an offender successfully manipulates the RJ process, the victim’s participation might be used against them in child custody hearings and other subsequent or parallel legal processes.
Many of these anxieties are underpinned by the fact that there is an acute power imbalance between the parties. As Delgado said of alternative dispute resolution generally, private processes are ‘no safe haven for the poor and powerless’ (Delgado, et al., 1985: 13). Indeed, what if RJ reprivatises IPV (Drost, et al., 2015), an offence which activists have fought so long and hard to publicise as a pressing societal concern?
Consider the social and institutional context in which RJ may be used with IPV cases. The reality is that victims are often assaulted dozens of times before they report violence to the police, while only a tiny minority of reported cases result in a conviction. They may blame themselves and, indeed, be blamed or stigmatised by others in their community. Within the criminal justice process, offenders may have much to gain and little to lose from participating in RJ; for victims, the reverse may be true. Meanwhile, criminal justice professionals do not always fully understand the dynamics of IPV, and may or may not be aware of the implications of their actions for ongoing or future civil proceedings.
Research suggests that victim advocates are ambivalent, in that they both have concerns and see the potential benefits of using RJ with IPV (Curtis-Fawley and Daly, 2005). For some, the unique dynamics of IPV mean that RJ can never be suitable. For others, it might be suitable in certain cases, if done very carefully. Gaarder, for one, asks us to consider ‘whether the philosophy and practices of RJ can or do result in the repair of harm and safer realities for victims of IPV’ (2015: 344). This raises an empirical question: what impact does RJ actually have in cases of IPV?
Research evidence
The research on RJ and IPV is generally positive. For example, Austrian researchers in 1998 observed RJ meetings and interviewed participants, concluding that the process was empowering for the victims (Pelikan, 2010). Through RJ, they found, ‘men don’t get better, but women get stronger. […] It was the women whose claim to a partnership free of violence had been reinforced and confirmed by the [RJ] intervention, while a deep-reaching inner change of the men had happened only very rarely.’ The same researchers surveyed 162 of the participating victims ten years later and found ‘that it has been possible to contribute to the prevention of violence both by way of an empowerment of women, but also by an effect towards a change of attitude of perpetrators’ (Pelikan, 2010). The implication of their original and follow-up research is that RJ can indeed help make victims safer.
Others have tested new RJ models, designed in collaboration with IPV experts. For example, a recent American study assessed the use of RJ in cases involving repeat offenders who had not responded to previous interventions, as well as same sex couples for whom no interventions existed. There were ‘separate restorative processes for each party — sentencing circles for offenders and support circles for victims […] enlist[ing] the help of family and community members to disrupt abusive patterns’ (Gaarder, 2015: 342). The victim and offender did not participate in each other’s circles, and the process could only happen if the offender accepted responsibility. Victim advocates would be present in every circle, and victims could provide input into sentencing (subject to judicial approval) or decide that their case should be sentenced in the normal way. Overall, it was found that ‘the programme appeared to decrease violent actions of offenders and increase safety, social support and material resources for some victims’ (p.342), while the victims’ circles ‘focused on creating a safe and non-judgmental place for the victim to tell her story and expand her options’ (p.348). Gaarder also reviews previous studies from Canada, the USA, South Africa and New Zealand, finding that RJ contributed to feelings of safety and satisfaction for victims and to desistance among some participating offenders.
Most recently, a study from the USA used a randomised control trial to assign over 200 misdemeanour IPV perpetrators either to a traditional ‘batterer intervention programme’ (BIP), or to a shorter version of that programme, plus an RJ intervention using circle processes (CP) in which the victim could choose to participate or not (Mills, et al., 2019). This study concluded that ‘the “hybrid” BIP-plus-CP resulted in statistically significant reductions in both new arrests (53%) and crime severity scores (52%) for all offences, including DV, over a 24-month period’ (p.1). Finally, in October 2019, a study by the Center for Court Innovation (2019) explored 34 programmes of this kind in the USA, finding that they prioritise survivor agency and safety, and focus on active accountability for those who cause harm.
Of course, this research does not ‘prove’ that RJ is necessarily safe and effective in these cases. Many studies have small sample sizes; others involve programmes that would be difficult to replicate on a large scale, or use imperfect measures (like arrest rates) to evaluate success. One barrier to restorative justice research generally is the self-selective nature of the cohort, due to the voluntary nature of the process. Still, there is much to learn from this work. One learning relates to the importance of involving IPV experts in programme design, so that the process reflects the dynamics of IPV. In countries where RJ is available with IPV, it is delivered differently than with other offence types. In Finland and Austria, for example, these cases tends to be co-facilitated by two opposite sex mediators (Drost, et al., 2015). Stubbs summarises this position neatly: when it comes to IPV, ‘generic models of RJ will not do’ (2010: 985).
Overall, it is significant that the results of research in this area are generally positive – albeit, based on programmes that were often small scale and meticulous in their design and delivery. This raises a final question: what are the practical limitations to safe and effective RJ in Ireland in this context?
Practical limitations
Assuming that it is possible to use RJ safely and effectively in IPV cases, questions remain over whether or not this is scalable in Ireland in practice. Much of its success is reliant on facilitation quality and on practitioners having a full understanding of why IPV is unique (Lünnemann and Wolthuis, 2015). We know from work on RJ and sexual violence that it is possible to equip experienced RJ facilitators with advanced training on facilitating serious cases and on the dynamics of certain offences (Keenan, 2018). We cannot be sure, however, that criminal justice agencies will always provide sufficient training and oversight, or afford their practitioners the time and space, to use RJ optimally in the IPV context.
This relates to the institutionalisation of RJ within the criminal justice system. Research indicates that the possible benefits of RJ are most likely to materialise when the process adheres to core restorative principles (McCold and Wachtel, 2002). When agencies adopt RJ as a mainstream practice, however, hybrid practices may emerge that reflect existing institutional rationales, goals, priorities, routines and ways of working, as much as reflecting restorative principles (Daly, 2003; Blad, 2006; Crawford, 2006; Marder, 2020). Yet, there are elements of these institutional cultures that run counter to the principles that act as safeguards for participants and help explain the effectiveness of the process.
An example of this can be seen in the police, an institution in which the priority of efficient case closure is prominent. In some countries, officers may facilitate RJ within their day-to-day operational roles. In parts of England, for example, it is now expected that all informal police disposals must be restorative in nature (Marder, 2020). Yet, many police may still see IPV as a private matter that does not require a significant intervention. As a result, some police officers now use RJ – or, more accurately, they use their discretion to resolve cases informally and record this as RJ – without preparation and in situations that may require further action to guarantee the victim’s safety (Westmarland, et al., 2017). In other words, mainstreaming RJ risks give responsibility for its facilitation to practitioners who lack the time, skills or inclination to operate according to best practice, or are under competing pressures and goals that are in tension with best practice. If this is going to go ahead, the evidence suggests that specialist, slow and deliberate facilitation is crucial.
Conclusion
Facilitating RJ in cases of IPV is difficult. Practitioners must find a way to balance the power and remain neutral, while dealing with the possibility that victims may blame themselves. They must also identify if offenders use subtle threats and if there are any other risks to the victim’s safety or any other efforts to manipulate the process. They must manage parties’ expectations and communicate precisely what the process can and cannot achieve. Much depends on the capacity of the facilitator to establish when RJ is unsafe, or in cases where it seems possible to facilitate safely, to ensure that the process has the best chances of success.
Equally, we cannot be too paternalistic. Victims are often stronger than we give them credit for – after all, many IPV victims continue to live with the offender for years following multiple (or even ongoing) violent incidents. Is it credible to say it will never be safe to offer them an opportunity for a mediated conversation? It is wrong to force victims to fight for RJ against systems that are too risk averse.
We must also remember the enormous cohort of people who are victims of IPV, but whose cases will never result in a formal criminal justice intervention of any kind. In the same way that the courts may bring justice for some, we might consider RJ as an option in cases where any other form of justice may be unavailable.
