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

3. Victims Participating in Restorative Justice Programs (cont'd)

3.2 Court-based Programs (cont'd)

3.2.3 Restitution

The Netherlands

Van Hecke and Wemmers (1992) reported on a Dutch program that used indirect mediation to arrange the payment of restitution by the offender to the victim. The program was based in an office of the public prosecutor and the mediator was an employee of the public prosecutor. An important characteristic of the program was that the mediator acted on behalf of victims who desired restitution from the offender. All cases were returned to the public prosecutor after mediation.

All 175 victims were contacted and asked if they were willing to be interviewed; 103 (59%) consented. Their responses provided some insight into victims’ experiences and expectations. The sample consisted of victims of vandalism/destruction of property (49%), theft (27%), minor assault (10%) and other offences (14%). Cases in which the victim(s) had suffered material damages were also selected for the project.

Expectations

Victims clearly want restitution: 98% of the victims interviewed wanted restitution from the offender. When asked if an apology from the offender would be enough, only 4% agreed. To ascertain whether the victims were merely interested in reimbursement, regardless of who paid, or if it was important that the offender pay, victims were asked if they would be equally happy with compensation from the state; 96% felt that the offender and not the state should provide the compensation. Moreover, victims saw restitution as a suitable sanction; 80% felt that the payment of restitution was an adequate sanction in their particular case and 98% felt that ordering offenders to pay restitution was a suitable or very suitable means to fight crime.

Experiences

When asked how they felt about being approached to participate in the program following their victimization, 64% had “no problem,” 30% found it “pleasant” and only 6% found it “unpleasant.” Apparently, victims are generally not bothered by being confronted again by the offender. However, it is interesting to note that the mere offer of restitution without meeting the offender can be offensive to some victims.

The respondents were generally satisfied with the manner in which the mediator had arranged mediation; 82% were satisfied and 18% were not satisfied. When asked if they were satisfied with the results achieved by the mediator, 23% said they were unable to answer as their case was still being dealt with, 56% were satisfied with the results and 18% were not satisfied.

Several factors were related to victim satisfaction. First, victims who knew that the offender was willing to pay restitution were more satisfied (79%) than victims who knew that the offender was not willing to pay restitution (67%). However, victims who did not know whether or not the offender was willing to pay were the least satisfied (59%). The authors suggested that this finding reflects the importance that victims place on information. Second, victims who said that the information the mediator had provided was clear were more likely to be satisfied with the mediation.

Victims were also asked to indicate what they felt had contributed the most to their coping with the victimization. Most (58%) indicated that talking with family or friends had helped, 25% said that time had helped, and 25% felt that restitution had helped (more than one answer was possible). In addition, 17 (18%) indicated that restitution was the one factor that had helped the most. Seventy-five percent felt that the payment of restitution by the offender had helped reduce the consequences of the offence. Twenty percent felt it did not reduce the consequences of the offence, and 5% had no opinion. Thus, the results suggest that restitution may help some victims in dealing with the aftermath of victimization.

3.2.4 Sentencing Circles

A relatively new form of restorative justice is sentencing circles. In circle sentencing, the victim and other community representatives have input, and their needs are considered on par with those of the offender (see Stuart, 1996). Unlike other restorative justice programs such as mediation, in circle sentencing the decision-making power is not delegated to parties but remains in the hands of the judge. Despite an extensive review of the literature, research on sentencing circles was not found. This conclusion is supported by Immarigeon (1999) and Griffiths (1999) who, in their respective reviews of the literature on restorative justice, both concluded independently that sentencing circles have not yet been evaluated scientifically. According to LaPrairie (1995), one of the problems with new Aboriginal community justice programs like sentencing circles is that there is little victim involvement. Referring to a review of four diversion programs for Aboriginal offenders, LaPrairie claimed that victims rarely attended hearings or were kept informed of the consequences or outcomes of hearings. In addition, victims often felt that offenders were being given a “slap on the wrist” and that offenders, not victims, were the focus of healing needs. However, while these findings are reported in relation to sentencing circles, they are based on diversion programs. It is not clear whether these findings apply equally to sentencing circles.

3.2.5 Summary

Once again, the research shows considerable consistency regarding victims’ reasons for participating or not in restorative justice programs.

Very few studies include information on how victims felt about being asked to participate in restorative justice programs. In particular, no information is available on the impact among victims who refused to participate. Perhaps being approached to participate opens up old wounds and adds to the victims’ suffering. The one study that included information on how victims felt about being approached to participate in restorative justice programs revealed that a small group (6%) did find being approached unpleasant.

One could argue that much of the available research on restorative justice programs has been offender-oriented. For example, Gehm (1990) suggested practitioners may want to consider victims’ psychological needs, not so they may help victims, but to improve victim participation in programs. An important observation is that although victims tend to be satisfied with the programs, overall they tend to be less satisfied than offenders. Victims sometimes complain that programs are offender-oriented. To assist victims and avoid revictimizing them, programs and research must give priority to the needs of victims.

Several of the European programs offer indirect mediation in addition to, or in lieu of, direct mediation. Victims often prefer indirect mediation, as it is less confrontational. Offering victims indirect mediation respects their desire to not meet the offender, while giving them the opportunity to request reparation. Moreover, there is no evidence that victims who meet their offenders are any more or less satisfied with the justice system or with the outcome of the mediation than victims who opt for indirect mediation. Indirect mediation, like direct mediation, offers victims both reparation and psychological benefits. Victims who received restitution through indirect mediation felt that it helped reduce the consequences of the offence (Van Hecke and Wemmers, 1992).

3.3 Post-Sentencing Programs

A limited number of programs exist at the post-sentencing stage. In these programs, restorative practices generally do not affect sanctions. Their value is largely psychological – allowing victims and offenders to come to terms with the offence and to put it behind them. These programs typically deal with serious offences. Most of the programs are relatively new and the available research is largely qualitative in nature; however, they are an interesting addition to the spectrum of available services for victims of crime.

3.3.1 Restorative Mediation

The Netherlands

In The Hague, an experiment with restorative mediation has been in effect since 1997. The program is run jointly by a Probation After-Care Organization and Victim Assistance. The aim of the program is to bring a victim and an offender into contact with one another in the hope that it will make a positive contribution to coping with the feelings of guilt and suffering resulting from the crime. It is not about compensation or material assistance. Mediation does not take place until after sentencing. Participation is fully voluntary and there are no consequences for the criminal proceedings.

In spring 2000, a process evaluation of the program was conducted. The evaluation focused on the implementation of the program, not on its effects. It was based on interviews with professionals working in and with the program, as well as on 10 interviews with “clients” (victims and offenders). The researchers emphasized that the results are only preliminary and the small sample made it difficult to generalize the findings. Nevertheless, the program is novel and the findings are interesting.

Unlike most mediation programs, this one targets serious crimes. In one quarter of the cases referred to the program, the offence had resulted in the death of the victim. In these cases, the program is offered to the victim’s family.

The program offers victims a chance to meet their offenders. However, for victims who are hesitant to meet face-to-face with the offender, indirect mediation is also possible. When only one of the two parties is open to mediation (direct or indirect), victims and offenders are offered the opportunity to discuss the case with the mediator. This is referred to as a “positive experience” by program workers. It is hoped that by talking with the mediator, victims will be assisted in dealing with the emotional aftermath of victimization.

Expectations

Victims’ reasons for participating in restorative mediation are to:

Experiences

The results suggested that there is a need for restorative mediation among victims and offenders.

Victims who participated in the program believe that restorative mediation had value and significance for them. The authors reported that the expectations of the clients who ultimately underwent mediation were largely borne out. Victims reported diminishing feelings of fear, finally knowing why, having the feeling that they had done “everything they could” and that they were able to “close that chapter.” In addition, clients who did not ultimately opt for mediation indicated that they were definitely positive about the project as well. Whether they underwent mediation or not, most respondents indicated that the entire process of preparation and seeking contact had helped them in working through and in being able to leave events behind them.

An important issue is timing – when should mediation be offered? The respondents emphasized that parties must be “ready for it.” However, opinions were divided as to whether this is always the case at a certain point within the criminal justice process. Here too, parties themselves can best decide whether or not they are ready. This requires, however, that parties know of the existence of the project so they can make their own choices, alone or in consultation with aid workers, their environment or the project managers.

3.3.2 Victim-Offender Conciliation

England

Victim-offender conciliation brings offenders and unassociated victims together as a group to vent their feelings. Launey (1987) reported on a conciliation program in Rochester, England. The program brought young, convicted burglars together with burglary victims as part of a custodial treatment. The advantage of conciliation programs is that they are less confrontational for victims than coming face-to-face with their offender, while they can still vent their feelings and ask the offenders questions.

The present study is based on data from 26 victims who participated in the program. Questionnaires were administered at the end of five meetings for feedback on the program. In addition, questionnaires were administered before and after the third meeting to assess if, and how, perceptions of victims change before and after the meeting. The researchers, however, did not provide any information on victims who chose not to participate.

Expectations

The study did not examine victims’ expectations but did report that victims had favourable attitudes toward reparation.

Experiences

Most victims (58%) agreed with the statement that the meetings were helpful in understanding why crime occurred. Most (92%) felt the meetings had not been a waste of time. Almost all (96%) of the victims felt it was rewarding to talk about their experiences with other victims. They were also glad (96%) to have had the opportunity to have confronted burglars on their actions. All of the victims agreed that it was interesting to listen to the offender’s side of the story.

Victims were often less angry and less anxious after the meeting. However, four victims (15%) felt more anxious and angry because some offenders said they had waited for six months for the owners to replace stolen goods before burglarizing the same house. Finally, the meetings did not affect victims’ attitudes toward punishment.

3.3.3 Restitution in Correctional Half-way Houses

Canada

Bonta et al. (1983) reported on a program at the Ottawa-Carleton Detention Centre for recently sentenced offenders. Offenders who were willing to pay restitution to the victim and were eligible for placement in a Community Resource Centre could participate in the program. The aim of the program was to reduce recidivism by making offenders pay restitution to their victims. Offenders in the program avoided a custodial sanction. Instead, they worked to earn money so that they could reimburse the victim.

The researchers sent a questionnaire to the 139 victims who were involved in the program. In all, 77 (55%) returned the questionnaire. Unfortunately, the authors did not provide information concerning the victims, or types of victimizations, in the sample.

Experiences

Most victims (65%) were in favour of the program. Moreover, most victims supported the idea that offenders would avoid prison and that in the program offenders were held responsible for their actions. Only 3% of victims were categorically against the program.

Factors affecting victim satisfaction included the amount of damages incurred by the victim and the amount repaid; the more money lost, the lower the rating of the program and the more money repaid, the higher the rating of the program.

3.3.4 Summary

Compared to pre-sentencing programs, there are relatively few programs at the post-sentencing stage. Of the three programs presented above, two focused on the psychological benefits of mediation and one was directed solely at material reparation.

One may question the value of pecuniary damages so late in the criminal justice process. Victims are faced with the material losses resulting from their victimization immediately after the offence. Their need for financial assistance is greatest at this time. By the time a case reaches the post-sentencing stage, years may have passed. In all likelihood, by that time, they will have already found a solution to their financial problems. Nevertheless, the program did hold offenders accountable for their actions and victims were generally supportive of the program.

Of particular interest are the programs focusing on conciliation or mediation between victims and offenders of serious crimes. Unfortunately, the available studies are limited and leave many questions unanswered. For example, it is unclear how many victims are interested in mediation and how many turned down the opportunity to meet with the offender. Also, the studies only consider the impact of the project on victims who participated. It is unclear whether and how the program affected victims who turned down the opportunity to meet with the offender. Perhaps being approached about the project brought back bad memories and reopened old wounds. Perhaps they had already successfully put the experience behind them and had no need to meet the offender. Or perhaps they were not yet ready to meet the offender. Further research is needed to know more about this group.

Nevertheless, these programs illustrate that there is a group of victims of serious offences who are interested in meeting the offender. For these victims, meeting the offender can be an important part of coping with victimization. Confronting their offender, asking him or her questions, and telling that person what impact the crime had can all be very therapeutic for the victim.

As always, participation in such programs must be absolutely voluntary both for victims and for offenders. In this respect, it is significant that the Dutch program made it quite clear that participation by offenders was not associated with any benefits in terms of sentence reduction. As has been pointed out above, victims are extremely sensitive to the sincerity of the offender and a lack of sincerity is associated with dissatisfaction and a feeling of revictimization.