Victims' Experiences with, Expectations and Perceptions of Restorative Justice: A critical Review of the Literature
3. Victims Participating in Restorative Justice Programs (cont'd)
3.1 Diversion (cont'd)
Dignan (1992) reported on a police-based reparation scheme for adult offenders in England. The aim of the scheme was to divert offenders out of the criminal justice system. The types of offences eligible for the program were minor offences such as theft, criminal damage, shoplifting and minor assaults. Dignan described this program as
“even-handed reparation” which contrasts with the offender-oriented programs described by Marshall and Merry (1990). The findings are based on interviews with 90 victims who participated in the program.
In this particular program, victims had the choice between direct mediation (a face-to-face meeting with the offender) and indirect mediation (the mediator acts as a go-between). Dignan reported that one third of victims chose to meet their offender while more than half of all cases were handled indirectly. Unfortunately, Dignan did not address the question of why victims might prefer indirect mediation. Nor did he specify whether all victims were offered the opportunity to meet their offender. Most victims supported the principle that offenders should normally be expected to make amends for the offences they have committed. Only four victims expressed outright opposition to the whole program.
In most cases (62%), when victims reached an agreement with the offender, the agreement included some sort of action, and that action was usually to compensate the victim. Thirty-eight percent of the agreements consisted solely of an apology by the offender. Dignan (1992) reported that 19% of victims felt they had been pressured to participate in the program. However, he did not address the possible reasons why so many victims felt pressured. Most victims expressed satisfaction with the way their particular case had been handled by the bureau (71% of corporate victims and 62% of individual victims).
Wemmers and Van Hecke (1992) evaluated a Dutch program which followed the abolitionist philosophy that criminal law should be a last resort (ultimum remedium). The aim of the program was to divert offenders out of the criminal justice system. The program supplied victims and offenders with their own lawyers (free of charge) who would try to work out an agreement. Only the lawyers had contact; the parties themselves did not meet. Cases in which an (civil) agreement was reached would then be dismissed by the public prosecutor. When no agreement was reached, the case would be returned to the public prosecutor who would then take it to court.
Cases were selected at random for inclusion in the program. In all, 162 cases involving 182 offenders and 192 victims were selected. The types of offences included simple assault (33%), vandalism (15%), theft (49%) and various other offences (3%). Interviews were held with 83 victims who were contacted by the project workers and offered the opportunity to participate in the program; 71 had taken advantage of the opportunity to participate in the program and 12 did not. In addition, quantitative data were gathered from the case files for all 162 cases.
Several factors were related to victims’ willingness to participate in the program:
- Restitution: Some victims who suffered no material damages as a result of the offence saw no benefits from the program and refused to participate in it. Other victims liked the idea that they could ask for compensation for both the material and immaterial damages. One victim chose to participate because the program offered him the opportunity to make demands. A number of victims noted that the program offered victims a better position than the traditional criminal justice system.
- Relationship between victim and offender: Victims who shared a relationship with the offender (especially in cases of domestic violence) were more often willing to participate in the program than victims who did not know the offender.
- Prevention: Several institutional victims participated in the program because they thought that it might teach the offender a lesson and prevent him or her from committing an offence again in the future.
- Seriousness of the offence: One victim was insulted by the offer of the project workers and felt the case was serious enough to merit a criminal sanction. Another victim agreed to participate in the program because he or she thought the offence was not very serious and therefore would probably be dismissed by the prosecutor anyway.
In general, the victims agreed with the program and had no objection that cases were dismissed by the prosecutor when parties had reached a settlement. Nevertheless, both victims who reached an agreement with the offender and those who did not felt that the offender was the “winning party.” Victims generally appreciated the time and attention given to them by both the program workers and by their lawyers.
Victims had no objections to how they had been approached by the program workers. There were no complaints about the clarity of the information provided. One victim complained that he felt somewhat obliged to participate. One victim complained about the failure by the program workers to monitor whether or not the agreement had been carried out by the offender.
Of the 58 agreements between victims and offenders, two-thirds involved financial compensation. In eight cases the offender agreed to abstain from certain behaviour. These were typically cases of domestic violence. Two victims felt that an apology was sufficient and six victims agreed that the case was settled without requiring further action by the offender.
Around the western world, programs using restorative justice have been introduced and evaluated. The research shows several trends. First, victims’ expectations appear to be relatively consistent. Victims participate in restorative programs to seek reparation, help the offender, and to confront the offender with the consequences of the crime and to ask the person questions such as why he or she committed the offence. Victims decline the offer to participate in restorative justice because they do not think it is worth the effort (loss too small or too trivial), because they are too angry with the offender, or disbelieve his or her sincerity.
A problem common to all programs is voluntariness. While all programs were based on voluntary participation, all studies that addressed this issue showed that a small group of victims felt pressured into participating. Victims who feel they have been pressured into a meeting with the offender may feel they have been revictimized by the system. Clearly, this should be avoided at all costs. It is important that victims are given clear and comprehensive information about the program, where it is emphasized that they are in no way obliged to participate or to accept any offer made by the offender.
While advocates of restorative justice claim that it enhances victim satisfaction with the justice system (see Umbreit, 1994), the research reviewed here does not confirm this assertion. Most studies employ weak experimental designs that do not allow the researchers to draw causal inferences. Therefore, any observed differences in victim satisfaction cannot be attributed to mediation. This error is sometimes made by researchers (see, for example, Latimer et al., 2001 and Umbreit, 1994) and policy makers, the effects of which can be harmful to the development of effective criminal justice policies. Only one study employed a sufficiently rigorous design: Strang’s (2000) evaluation of conferencing practices in Australia. However, Strang’s findings are not clear cut and raise many questions about what victims are responding to. In other words, there is no clear evidence of greater victim satisfaction in restorative justice programs.
While restorative justice may not enhance satisfaction, most victims are satisfied with restorative justice programs. Across the various programs, victims are generally satisfied with the program and only a minority of victims are dissatisfied. Reasons for victim dissatisfaction include failure to receive restitution and a lack of information. These reasons are also associated with general dissatisfaction with the traditional justice system (Shapland et al., 1985). These complaints could be reduced by following up on cases and monitoring compliance by offenders.
Besides reparation, advocates of restorative justice argue that it can have a healing effect on victims. Again, most studies do not have a sufficiently rigorous design to deduce causality. Hence, it is often unclear whether an observed reduction in anger or fear is a consequence of participation in the program or simply the passage of time. The one exception is once again Strang (2000), who examined feelings of vindictiveness. She found that among victims of violent crimes, those who participated in conferencing were significantly less vindictive than those whose cases were handled in the traditional criminal justice system. It seems that conferencing had helped these victims come to terms with their victimization.
Interestingly, victims do not seem to have a problem with the principle of diversion. Moreover, victims generally support the principle of restorative justice. In particular, victims of property crimes prefer restorative justice programs to the traditional criminal justice system.
One important concern is the lack of priority given to victims in some programs. For example, in their evaluation of family group conferencing in New Zealand, Morris et al. (1993) found that victims were not always invited to attend conferencing. This reflects a lack of interest in the position of the victim. Similarly, Marshall and Merry (1990) concluded that mediation programs are often offender-oriented. For example, the types of cases selected for mediation are based on offender and/or case characteristics, without any concern for the victim. Clearly, such developments are not to the advantage of victims and make them vulnerable to revictimization.
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