Victims of Crime Research Digest No. 14

Restorative Justice and Gender-Based Violence: A Look at the Literature

Summary by Jane Evans

This article presents excerpts, selected by the Department of Justice Canada, of a discussion paper shared with participants in advance of facilitated dialogue sessions on restorative justice and gender-based violence. The Ending Violence Association of BC and Just Outcomes hosted these dialogue sessions in 2020.

Introduction

Restorative justice (RJ)Footnote 13, part of Canada’s criminal justice system for over 40 years, is based on an understanding that crime is a violation of people and relationships. RJ can be defined as an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime (Federal-Provincial-Territorial Working Group on Restorative Justice 2018b). RJ encourages meaningful engagement and accountability, and provides an opportunity for healing, reparation and reintegration. Some key principlesFootnote 14 of RJ include respect, empowerment, safety, and inclusivity (Federal-Provincial-Territorial Working Group on Restorative Justice 2018b). In recent years, growing recognition of the limited ability of the mainstream criminal justice system to meet the needs of victims/survivors of crime has increased interest in RJ (Bourgon and Coady 2019).

Generally speaking, RJ models may be employed at any stage of the criminal justice process, from diversion through pre-sentence and post-sentence processes. The models usually involve a third-party facilitator or a respected community member (such as an Elder for Indigenous community-based programs) who accompanies parties through a process of exploration, preparation, dialogue and follow-up. RJ requires that all parties participate voluntarily and that offending parties accept responsibility.

Gender-Based Violence (GBV) is violence committed against someone because of the victim’s gender identity, gender expression, or perceived gender. It includes several types of violence, such as intimate partner violence and sexual violenceFootnote 15 (Women and Gender Equality Canada 2018). Victims and survivors of GBV experience significant short- and long-term impacts, and have distinct needs in their pursuit of safety, recovery and justice.

The power dynamics and imbalances inherent in cases of GBV necessitate victim/survivor-centered approaches to justice that prioritize victims/survivors’ needs and restore power to those harmed. In the aftermath of GBV, victims/survivors frequently feel dehumanized and disempowered; a victim/survivor-centered approach ensures that victims/survivors have opportunities to decide what happens next and how it happens, particularly in their pursuit of justice.

While the mainstream criminal justice system offers one way to address GBV, its limited abilities to meet the needs of GBV victims/survivors and to hold offenders accountable inspires most victims/survivors to look elsewhere for support and healing outside the system (Boutilier and Wells 2018; Prochuk 2018). The mainstream criminal justice system treats GBV victims/survivors as witnesses to their own victimization, provides them few opportunities to participate meaningfully in processes, and can expose them to potential re-victimization (e.g., during trial). According to the 2019 General Social Survey, only 19% of intimate partner violence cases were reported to the police by the victim or someone else (Conroy 2021) and only 6% of sexual assault cases were reported (Cotter 2021). GBV victims/survivors “often [have] complicated, drawn out, and harmful interactions with legal systems” (Mogulescu 2020, 233). As Koss and Achilles (2008) argue, “the conventional justice system is very good at doing little to respond to sexual assault reports” (2008, 10). RJ offers another pathway toward justice for victims/survivors of crime, but is used with great caution in cases of gender- and power-based crimes.

Many theorists and practitioners suggest that since RJ positions the needs of victims/survivors as a central starting point for the pursuit of justice, it represents a beneficial alternative or complement to mainstream criminal justice processes. The roots of RJ can be found within aspects of some Indigenous legal traditions, faith traditions and critical criminology. The hallmarks of RJ can include: direct participation and input of both accused/offenders and victims/survivors; focusing on the harm that has occurred and on the possibilities for healing; asking those who have caused harm to take direct responsibility; attending to the wider repair required within the community; and identifying how to prevent future harm.

Those working in the GBV sector, such as victim services workers and advocates, have often reacted with caution, skepticism or outright dismissal when asked to consider RJ for victims/survivors of GBV crimes (Goundry 1998). A moratorium was placed on the use of RJ processes in GBV cases within most contexts in British Columbia (BC) based on past critiques of feminist and GBV scholars and advocates (Cameron 2006). Although many GBV-sector advocates remain cautious about the use of RJ in cases of gender- and power-based crimes, additional responses to GBV are being explored that prioritize the needs of victims/survivors.

This article summarizes historical and current literature that explores some of the concerns and benefits related to the use of RJ in GBV cases. This article highlights changes in the literature over time to help foster an evidence-based, victim/survivor-centered, cross-sector examination of RJ processes in GBV cases. It aims to inspire discussion and strives to avoid promoting a particular viewpoint or outcome.

RJ and Victims/Survivors of Crime

In considering RJ discourse as a whole, the needs of victims/survivors are positioned as central to justice. For example, “the main focus [of RJ] is… on repairing as much as possible the harm caused. Support for the victim, then, is the first and foremost important action in doing justice through reparation” (Walgrave 2008, 628). This view is echoed by Ada Pecos Melton who, in exploring the connection between Indigenous justice and RJ principles, writes: “The victim is the focal point, and the goal is to heal and renew the victim’s physical, emotional, mental, and spiritual well-being” (2005, 108-109). Umbreit and Armour have suggested, “[c]ore to restorative justice principles is the understanding that it is a victim-centered process. This means that the harm done to the victim takes precedence and serves to organize the essence of the interaction between the key players” (2010, 7). This emphasis on victims/survivors’ needs also reflects the victim/survivor-centered approaches vital to the anti-violence sector’s work to support and empower victims/survivors of gender- and power-based crimes.

In Canada, RJ has gained increased national recognition, supported by international evidence that suggests promising benefits for participants. In 2018, Federal, Provincial, and Territorial Ministers Responsible for Justice and Public Safety (FPT Ministers) expressed support for the increased use of RJ processes (though not specifically in GBV cases), at all stages of the criminal justice system to help modernize the system and promote safer communities (Federal-Provincial-Territorial Working Group on Restorative Justice 2018a).

This commitment is backed by public support from many Canadians who called for increased use of RJ as a way to transform the criminal justice system (Department of Justice Canada 2018a). In a 2017 Department of Justice Canada national survey of Canadians (n=2,027): 80% of respondents agreed that criminal justice officials should be required to inform victims/survivors and accused of the availability of RJ processes; 62% thought that RJ would provide victim/survivors with a more satisfying and meaningful experience than the mainstream criminal justice system; and 87% indicated that victims should be able to meet with offender(s) and tell them about the impacts of the crime if they wish to do so (Department of Justice Canada 2018b).

Internationally, discussions continue regarding the appropriateness of, and the risks associated with, using RJ in cases of serious crime, although there is growing recognition of the importance of providing an opportunity for victims to make informed choices about the possibility of dialogue and reparation. In addition, it is recognized that RJ can be blended with conventional criminal justice responses to address some of the gaps left by mainstream justice responses and to better respond to victims’ needs (UNODC 2020).

Although support for RJ has increased, some RJ practices may be more offender-focused and fail to meet victims/survivors’ needs due to several factors. The factors include: inadequate preparation of victims for RJ processes; victims feeling used by the RJ program as instruments for offender rehabilitation; victims feeling pressured to participate, to forgive the offender, to under-represent the intensity of their emotions and/or to move quickly through the RJ process; victims feeling that their views are not taken seriously; victims feeling re-victimized by the RJ process; concerns about practitioner competency; and lack of follow up. Some studies report that victims had negative opinions of the offender’s sincerity, genuineness and likelihood of reoffending (Koss 2014), while others raise concerns that diversion-based RJ could cause more harm if it fails to adequately accommodate the needs of victims (Marsh and Wager 2015).

Psychiatrist and trauma-recovery researcher Judith Lewis Herman (2005) similarly observed that, “because the [RJ] movement has been highly defendant oriented at the grassroots level, it has reproduced many of the same deficiencies as the traditional justice system with respect to victims’ rights” (p.578).

Early Literature on Addressing GBV Through RJ

Historically, the use of RJ in cases of GBV has been contested and controversial, both within RJ scholarship and among commentators from other disciplines (Edwards and Sharpe 2004), including advocates within the GBV sector. For example, Howard Zehr, at the start of the modern RJ movement, indicated that “domestic violence is probably the most problematic area of application, and here caution is advised” (2002, 11).

Alan Edwards and Susan Sharpe (2004) undertook a literature review concerning the use of RJ in the context of intimate partner and family violence, documenting some promising outcomes (Pennell and Burford 2002, 110-121), as well as the failures of some programs operating under the auspice of RJ to provide for victims/survivors’ safety and meaningfully hold abusers to account (e.g., Coker 1999; Griffiths and Hamilton 1996; Stubbs 2004). Edwards and Sharpe (2004, 22) concluded that while “restorative justice holds theoretic promise as an intervention in domestic violence […] evidence demonstrates that the risks are real: domestic violence victims (and their families) have been further harmed through inappropriate discussion that was intended to help them.”

Feminist scholars and those who work in the GBV sector have also been cautious and, at times, resistant toward the use of RJ processes in cases of GBV. For example, the British Columbia Association of Specialized Victim Assistance and Counselling Programs (BCASVACP, 2002 – now the Ending Violence Association of BC, or EVA BC) highlighted a number of pertinent concerns about RJ. Along with those listed above and pertaining to all victims/survivors, these also relate to intimate partner violence and sexual assault, and include: failure to screen out cases involving current violence; inadequate safeguards for victims/survivors; inadequate accountability of perpetrators of violence; offender rehabilitation and reintegration trumping victim/survivor safety and well-being; dialogue sessions that reinforce destructive power imbalances between the victim/survivor and perpetrator; and underfunding, resulting in undertrained staff and/or low program capacity.

In 2006, feminist legal scholar Angela Cameron argued that although RJ may offer victims/survivors an option beyond the mainstream criminal justice system, this option has not yet been well implemented so could not be safely used in GBV cases (Cameron 2006). Consequently, at that time, Cameron concluded that “there must be a moratorium on new western RJ or Aboriginal justice for cases of intimate violence until more research has been completed” (2006, 59, emphasis in original) because using RJ in cases of intimate partner violence “without clear evidence that it is safe and effective, is gambling with the lives and safety of Canadian women” (59). Since then, a number of studies, within Canada and internationally, have explored the use of RJ in GBV cases.

Contemporary Literature on Addressing GBV Through RJ

Across Canada, conversations within the RJ and GBV sectors are ongoing, and many victim/survivor advocates continue to raise concerns about the safety of victims of GBV. Criticisms “often involve safety, accountability and the relegation of violence against women to the private sphere” (Goodmark 2018, 373). These concerns and those identified in the past still exist today and need to be considered and addressed.

However, Goodmark argues that while it is important to attend to “feminist cautions about safety [these] are not a reason to abandon restorative practices” (2018, 381). Studies have also found that victims/survivors want to “know their choices and [be able to] decide which justice option they want to pursue” (Wemmers 2017, 15). Feminist law professor Melanie Randall found meaningful resonance between RJ principles and feminist scholarship, noting, for example, that “although the project of achieving gender equality has not been central to restorative justice, its commitment to equality in social relationships is certainly consonant with this goal” (Randall 2013, 466). She argued that the shortcomings of the criminal justice system for women who survive violence make it imperative that approaches like RJ be examined as potentially viable options for victims/survivors. Randall further suggested that, if pursued in a victim/survivor-centered manner which incorporates both the critiques and the expertise of GBV scholars and service providers, options such as RJ have the “potential to develop more radical, nuanced and transformative remedies than we currently have” (Randall 2013, 498).

A recent annotated bibliography on RJ and sexual violence by the Department of Justice Canada (Bourgon and Coady 2019) reports on outcomes from several studies, including increased victim-satisfaction rates and victim sense of control, and decreased risk of re-victimization and post-traumatic stress symptoms (Daly 2006; Koss 2014; McGlynn et al. 2012). A study by David Gustafson (2018) of 25 victims/survivors (approximately half of whom had experienced sexual violence) found that after completing facilitated victim offender dialogues, they had substantial reductions in post-traumatic stress symptomology, including reduced patterns of withdrawal, physiological arousal, intrusion and shame.

International research suggests a complex picture for the application of RJ in cases of GBV. For example, a study conducted by Emily Gaarder (2015) found that RJ conferencing had mixed success with meeting women victims/survivors’ needs and with contributing to ending intimate partner violence. She concluded, however, that, “restorative processes have some ability to create positive changes in cases of intimate partner violence, when grounded in the experiences and contributions of the battered women’s movement” (2015, 363). More recently, promising evaluative data was documented from some victim/survivor-centered RJ initiatives in the United States, including a survivor-initiated, post-sentence, therapeutic model used with cases of intimate partner violence and other serious crime cases (Miller 2011; Ptacek 2017).

A 2018 New Zealand survey of victims who had participated in a RJ process found that, “victims of family violence cases were the most likely to report feeling better after their conference (76 percent), compared with 70 percent of victims in standard cases and 67 percent of victims in sexual offending cases. Victims in family violence cases were also statistically significantly more likely to say that “undertaking the conference process made them feel a lot better (55 percent compared with 38 percent of victims in all other cases)” (UNODC 2020, 74).

While some studies have shown promising outcomes, it is important to note that empirical research exploring the use of RJ in GBV cases remains limited (Gang et al. 2019; Singer 2019), and “very little is known about the potential advantages and disadvantages of RJ specifically for crimes of gendered violence” (Miller et al. 2020, 65). Also noteworthy is the vast variability of RJ practices and programs, which adds complexity to the question of whether and how RJ “works” in GBV cases.

A recent literature review highlights a number of RJ models that have been used in the United States, New Zealand and Europe (Singer 2019). The author concluded that using RJ in GBV cases is a complex process. Care and a nuanced approach are required to ensure the safety and security of victims. The models that were developed successfully were done so in cooperation among GBV experts, RJ practitioners and criminal justice system providers (Singer 2019).

Standards for the Use of RJ in GBV Cases

The GBV sector has considered whether RJ may be appropriate in GBV cases for many years, recognizing the unique experiences and needs of victims/survivors. There have been a number of attempts to articulate minimum standards.

In the late 1990s, the BCASVACP (now EVA BC) recommended a number of standards specific to program concept and design, funding, referral and screening, victim support, training, transparency, privacy and confidentiality, tracking and record-keeping, and evaluation.

In 2019 following their review of 34 programs, Cissner and colleagues outlined three guiding principles for using RJ to address intimate partner violence and/or sexual assault. The principles include: centering responses on the agency and safety of the person(s) harmed; engaging the person(s) causing harm and community members in an active, participatory process of accountability; and recognizing the importance of culture, including being “mindful of the tension between honoring and appropriating Indigenous practices” (Cissner 2019, 50).

Emphasizing a victim/survivor-centered approach, Goodmark articulates the importance of RJ being organized “around the needs and timing of the person who has been harmed” (Goodmark 2018, 381). Additionally, effective and safe RJ approaches to addressing GBV necessitate extensive training, both in RJ approaches and in the complex dynamics of GBV (see Keenan 2018; Goodmark 2018) and highly experienced and specialized facilitators. There are also specific tools/guides that have been developed to facilitate the effective use of RJ in cases involving sexual violence and domestic violence (see Mercer and Sten Madsen 2015).

The United Nations has encouraged Member States to develop guidelines on the use of RJ processes in the context of violence against women (UNODC 2014) and several countries have developed RJ standards in cases of family violence and sexual violence (see New Zealand Ministry of Justice 2013 and 2018). The standards recognize the need for additional safeguards and processes in these cases. This is to:

…maximize the chances of healing for all parties, and minimize the chance of the process itself inadvertently causing harm, further consideration needs to be given to the psychological needs of the victim/survivor and the person who caused the harm, the psychological components of the harming behaviour, its impact on surrounding community such as family and the impact of cultural beliefs about sexual violence (UNDOC 2020, 4).

While remaining generally cautious, the literature suggests that the principles of victim/survivor empowerment, healing, inclusion, prevention and offender accountability are embedded in RJ. Miller and colleagues (2020) emphasize that despite theoretical arguments against the use of RJ in GBV cases, it would be prudent to not overlook the potential benefits for victims/survivors. Also given that many GBV victims/survivors in Canada choose not to report to police (see Conroy 2021; Cotter 2021), RJ could be a path to healing and addressing the harm caused by crime (Wemmers 2017; Zinsstag 2017).

Revisiting the Conversation

RJ practices centered on the needs of victims/survivors and responsive to the distinct impacts of GBV, have the potential to “further feminist goals and provide those who have been harmed with justice” (Goodmark 2018, 382). In revisiting the conversation about the use of RJ in GBV cases, anti-violence workers and RJ practitioners may benefit from aligning key objectives, including engaging with the community, employing a feminist and intersectional analysis, and centering victims/survivors through supporting their autonomy and amplifying their voices (Goodmark 2018, 372).

National discourse is moving the RJ field toward greater responsiveness and rigour with respect to victims/survivors’ rights and needs. There have also been recent calls in the Canadian context to develop and assess programs that respond to GBV outside of the criminal justice system through approaches based in RJ principles (see Boutillier and Wells 2018).

In BC, increased discussion and scrutiny of RJ as a response to crime raises questions about its use in GBV cases. It is important to address these questions in a pro-active, careful and intentional manner given potential risks and benefits for victims/survivors.

It is within this context that EVA BC and Just Outcomes worked with the Department of Justice Canada in 2020 to undertake facilitated dialogues in BC with RJ, GBV, Indigenous, and immigrant leaders to explore the use of RJ in GBV cases. While acknowledging historical and ongoing barriers and concerns, the objectives of the project were: to foster dialogue; examine the risks and potential benefits of restorative approaches to address GBV; increase awareness of the dynamics of GBV; and identify research gaps and best practices in the use of RJ in GBV cases.

For more about these facilitated dialogues, see the next article in this issue: Restorative Justice and Gender-based Violence: Revisiting the Conversation in British Columbia by the Ending Violence Association of BC and Just Outcomes.

References