Victims' Experiences with, Expectations and Perceptions of Restorative Justice: A critical Review of the Literature

2. Victims in General

2.1 Perceptions of Restorative Justice

Restorative justice approaches crime as an injury or wrong done to another person rather than solely as a matter of breaking the law or offending against the state. Accordingly, it is about reparation by the offender to the victim and it is about negotiation and discussion between victims and offenders. Inherent in restorative justice programs is victim notification; victims are informed that the offender(s) has been caught. Finally, restorative justice offers both parties, victims and offenders, decision-making power. In this section of the report, victims’ views on each of these aspects will be addressed in order to understand their perceptions of restorative justice.

It is well known that victims of crime often feel marginalized and dissatisfied with the treatment they receive from criminal justice authorities. Repeatedly, studies have shown that victims are unhappy with the lack of information they receive and their general exclusion from the criminal justice process (Wemmers, 1996; Resick, 1987; Shapland et al., 1985). While it is well established that victims want more participation in the judicial process (Wemmers, 1996; Shapland et al., 1985), it is yet unclear what that means. Just how actively do victims want to participate in the criminal justice system? Is passive participation (i.e. keeping the victim informed of the developments in his or her case) sufficient? Do victims want to be able to decide on how their case should be dealt with? Do they want to confront the offender? Or, do they want to form demands, determining how to punish their offender?

2.1.1 Information

Victims want to be included in the criminal justice process. In particular, they often want to be notified of the developments in their case. For example, Kilchling (1991) reported that 40% of the victims and former victims (more than 5 years since their victimization) in his study felt that victims should have the right to obtain information regarding their case from police at any time. Kilchling conducted over 3000 interviews with victims, former victims and non-victims. Similar findings are reported by Shapland et al. (1985) concerning victims of violent crime. They found that victims feel neglected and angry about the lack of information they are given regarding the progress of their case.

Information is probably the most common need that can be found in the literature (see Maguire, 1991). Victims want information on the developments in their case and feel they have a right to it given the time and effort that they gave police (Bazemore, 1999; Shapland et al., 1985). For many victims, their need for basic information centred on simple explanations about key decisions related to their cases (Bazemore, 1999; Shapland et al., 1985). Information may be the most important thing the system can provide to reduce victim fear (Umbreit, 1994) and enhance victim coping skills (Wemmers, 1996).

2.1.2 Reparation

Victims do not report crimes to the police in order to obtain restitution. Most victims report their victimization to the police out of a sense of duty, or for insurance purposes (especially property crimes) (Besserer and Trainor, 2000; Mayhew and Van Dijk, 1997). Victims are generally well aware that the police will probably be unable to solve their case (Baurmann and Schadler, 1991; Shapland et al., 1985).

If, however, the police do solve the case, many victims are interested in securing reparation from the offender. For example, Baurmann and Schadler (1991) reported that nearly two thirds (62.5%) of all victims in their study, which included 169 victims of violent crimes and property crimes, expressed an interest in restitution, without the interviewers having asked about it. Upon direct questioning, the number of victims interested in restitution was even higher – 72.5%.

Restitution appears to be particularly appropriate for victims of property crimes. Victims of property crimes are more likely to express an interest in restitution than victims of violent crimes: 85% versus 37%, respectively (Baurmann and Schadler, 1991).

Similar findings are reported by Sessar (1990) in his survey of public views of restitution as a sanction. Based on interviews with 843 victims of property crime and violent crime, Sessar reported that 82% of the victims responded positively when asked the question: “Suppose that the judge in your case makes the following proposal: the offender will be sentenced to make restitution. If he performs this imposed sanction, then the penalty will be reduced or remitted.”

Victims’ interest in reparation is not surprising when one considers that victims often suffer material damages and that these damages are not compensated. In a study based on a random sample of 2000 felony offences, Junger and Van Hecke (1988) found that as many as 74% of the cases involved material damages. Victims with damages frequently do not receive any form of compensation for their financial losses. Research from the Netherlands shows that while the Dutch population is generally well insured (Van Dijk and Mayhew, 1992), as many as 71% of victims with financial losses are not compensated (Mulder, 1989).

Victims may suffer many different types of damages. Material damages, such as damage to property, are just one type of injury as victims can also suffer emotional injuries such as fear and anxiety. In their study on victims’ needs and perceptions, Baurmann and Schadler (1991) reported that when asked to name the single most severe injury they had sustained, 49% of victims indicated emotional injuries. Differentiating between victims of violent crime and property crime, Baurmann and Schadler (1991) found the percentages to be 79% and 25%, respectively. As such, financial restitution may not be appropriate for these types of damages.

However, victims’ interest in restitution is not based solely on material damages; it is also about holding the offender accountable for his or her behaviour. Based on focus group meetings with 18 victims of serious violent and property crimes, Bazemore (1999) reported that for some victims financial compensation is related to offender accountability. Interestingly, Bazemore found that the better victims felt they were treated by the system, the less significant monetary restitution became.

Besides restitution, an apology is another way in which offenders can show accountability for their behaviour. Bazemore (1999) reported that, for many victims, a sincere admission of responsibility and expression of remorse may be an important part of being acknowledged as a victim and may help in the healing experience. However, when mandatory, apologies become cold, impersonal and offensive to victims. According to most of the victims in Bazemore’s study, one must always first determine if the victim is interested in receiving an apology.

2.1.3 Meeting with the Offender

Many restorative justice programs bring victims and offenders face-to-face with one another. An important question is how do victims feel about the idea of meeting their offender. Is this something victims feel they want?

Bazemore (1999) reported that in his previously mentioned study, which used focus groups, only one victim spontaneously mentioned that victims should always be given the opportunity to confront the perpetrator. However, when directly asked about restorative justice practices, most victims were in favour of such practices provided participation was voluntary.

In the 1999 General Social Survey conducted by Statistics Canada, victims were asked whether, with respect to their case, they would be interested in mediation. Mediation was defined in terms of a face-to­face meeting with the offender, mediated by a trained professional. Overall, 24% of victims claimed they would be very interested and 27% would be relatively interested in mediation. However, 46% were not at all interested. The researchers found a significant difference between victims of personal crimes versus victims of property crimes, the latter group being more likely to express an interest in mediation than the former. However, even among victims of serious violent crimes, there was an interest in mediation. For example, 28% of the victims of sexual assault expressed some interest in mediation (Tufts, 2000).

In his study on the preferred role of victims in the criminal justice system, Kilchling (1991) asked victims if, hypothetically, they would be interested in mediation and an out-of-court settlement with the offender. He reported that 42% of the victims in his study expressed an interest in mediation. However, a meeting with the offender in order to reach a satisfactory agreement with that person was rejected by the majority of victims (55.6%). The reasons for rejecting a meeting with the offender that were most often given were:

Kilchling pointed out that about one third of the respondents would have approved of a settlement out of court provided that no direct contact and no personal meeting with the offender would take place.

British research shows similar results. In a 1985 study by Hough and Mayhew (see Reeves, 1989), victims were asked their views toward mediation. The authors reported that 49% of the victims said that, in principle, they would agree to meet the offender in order to work out an agreement. This percentage was lower for assault and robbery victims (33%) than for victims of property crimes (60%). Like Kilchling, they found that the percentage of victims willing to participate in mediation jumped from 49% to 69% when they did not have to meet the offender (as cited in Reeves, 1989).

In another British study, Maguire and Corbett (1987) asked victims if they would be interested in mediation. In this study, as in the other studies mentioned above, mediation did not take place. The researchers were simply interested in polling victims’ views. They found that most victims rejected the possibility of meeting the offender. Interestingly, victims who had been visited by a victim assistance volunteer were more willing to meet with the offender (43%) than those who had not been in contact with victim assistance (32%). As to why they would want to meet the offender, victims gave the following reasons:

Reasons for not wanting to participate in mediation were:

2.1.4 Decision-making Power

Advocates of restorative justice argue that in contrast to the traditional criminal justice system, it offers victims an active role in the decision-making process (Roach, 1999; Umbreit, 1995). However, according to Shapland et al. (1985), victims do not want the “burden” of decision-making power. This finding is supported by Kilchling (1991). He presented respondents with the statement: “After reporting the crime to the police, the victim normally loses control of the further development in his own case” and then asked them to indicate whether they agreed or disagreed with a number of statements regarding the desired role of the victim in the criminal justice process. He reported that 47% of victims, 61% of former victims and 56% of non-victims agreed with the statement that losing control over their own case to the police “can be helpful for the victim.” In addition, 70% of victims, 80% of former victims and 77% of non-victims agreed with the statement that “the victim should neither have to be concerned about (reaching) a settlement with the offender nor about his punishment.” These findings suggest that victims are often quite willing to hand over responsibility to criminal justice authorities.

2.1.5 Summary

Victims support many of the elements of restorative justice; they want notification and restitution. However, they do not seem to want to usurp the power of the courts. Victims are divided in their views when it comes to meeting their offender; some are in favour of it while others are opposed. Victims of property crimes are generally more often interested in mediation than victims of violent crime. However, even victims of violent crime are sometimes interested in mediation. There is a clear consensus among victims that participation in restorative justice programs must be completely voluntary. However, the victims in the studies examined in this chapter do not have experience with restorative justice programs and their views may merely reflect the fact that they have not experienced a joint meeting with the offender. In the next chapter, the expectations and experiences of victims who have directly experienced restorative justice programs will be explored.