Impact of Restorative Justice on Victims of Crime
Tony Marshall tried to explain the meaning of restorative justice in the following manner :‘Restorative justice is a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’, (Johnstone, 2002:164).
Conceptually, restorative justice sees crime as fundamentally a violation of people and interpersonal relationships, and the point of action is to seek to heal and put right the wrongs (Zehr, 1990: 52). The emphasis is on reparation of harm to the victims, addressing the offenders needs and competencies, and sending offenders a message of disapproval about the impact of the crime. Some of the programmes and outcomes typically identified with restorative justice include; victim/offender mediation, conferencing, sentencing circles, and restoration. Generally speaking, model tends to focus on the ‘victim’, the ‘offender’, and the ‘community’. (Walgravge, 2002: 133).
Victim-offender mediation is often seen as central to restorative justice. It is a process through which a neutral person assists the parties to communicate with each other. In some cases it will take the form of face-to-face meetings, alternatively parties can choose to use shuttle mediation. Although mediation has obvious attractions, sceptics have questioned whether it can really operate ‘in the shadow of the court’. Some sceptics have warned of additional burdens on victims in terms of time, delays, goodwill, energy, costs, further emotional strain and exhaustion, (Hirsch and Roberts et al, 2003:39). According to Heather (2000:21), mediation is a credible means by which issues can be resolved. Firstly, it can be argued that mediation is beneficial to the victim than the uncertainty and dissatisfaction often experienced in court where the victim has little choice but to accept the judgement made. The majority of victims honour most agreements or resolutions reached within mediation, simply because the victim has worked hard with the offender to achieve the settlement and upon terms that were always within the victim’s control, unlike an imposed court decision. It is worth stressing too, that in most restorative justice practices, victims have a veto over the acceptability of the proposed sanction. It can further be argued that mediation is less time consuming than the court process as it resolves disputes faster than the criminal justice system. A case being resolved through mediation however intractable it may seem, can be settled quickly at a fraction of the cost of going to court, (Marshall and Merry, 1990: 52-56).
Walgrave, (2002:168-72) suggests that it is very doubtful whether mediation could substitute for formal adjudication in serious crime cases. Referring to Johnstone (2002) he states that the state has stolen disputes from the hands of victims and offenders and in doing so has usurped the rights of victims to seek recompense for the harms suffered. In Restorative Justice-Philosophy to Practice, Heather has argued that mediation is a difficult and painful process for the victim and can put the victim under considerable pressure. However, it is for this very reason that mediators are fully trained to deal with victims. It is understandable that victim’s emotions can run very high but the mediator is tasked with dealing with people who are under considerable pressure, (McLaughlin and Fergusson et al, 2003: 54-62). Writing in 2002, Adam Crawford argued that because mediators help victims to resolve problems, victims are left better equipped to tackle such problems in the future, (Crawford and Goodey, 2000: 37-40). It is also worth mentioning that mediation is arranged at a convenient time for the victim, unlike court hearings it is not limited to ordinary working days or hours, if it suits the victim to negotiate at weekends this is what happens.
The following case illustrates the benefits of restorative justice practices, in relation to victim’s needs. A masked intruder confronted a woman in the night, who grabbed her. To her horror she found it was her neighbour. He was charged and convicted of rape. The women had suffered painful injuries to her body but the mental suffering was much worse. A victim liaison officer visited the women to ask her if she would consider mediation between herself and her neighbour. She felt that mediation might help her answer a number of questions that were worrying her. Did he blame her for his arrest? Was he going to come after her? Where was he going to live? She also wanted to know whether he understood how awful the experience had been for her, and how angry she was with him. He told her that he was sorry, and that he knew it was his fault and didn’t blame her. He would be living in another town and would not be coming near her home. He wanted her to understand him and forgive him. The women was pleased with the outcome, and much less afraid, she felt that mediation had made her feel confident enough to get on with her life, (www.Mediationuk.org.uk: 2003).
This case above clearly demonstrates that victims can benefit from restorative justice practices. It gives them a chance to tell their side of the story, when they are listened to they can feel supported. They can also express how upset they are; many victims try and cope with events by pretending they do not care. By ignoring situations or not addressing the conflict the whole scenario can become very frightening. It also helps the victim to decide the course of action they want to take next. It can be argued that victims feel much better when they hear the offenders side of the story, in many cases a simple apology from the offender is all that is required to put the situation right, (Strang, 2002: 32-45).
It can be argued that compared to courtroom interactions, victims can benefit more from using restorative justice practices. I refer here to the recent Soham case and the murdered schoolgirls, Holly and Jessica. Ian Huntley, 29, denies murdering the schoolgirls, despite the fact that he had keys to the hangar where the girl’s burned clothes were found. Furthermore, he often went plane spotting close to the ditch where the bodies were found and a co-worker said that Huntley’s car had a, ‘sickly sweet smell like body filler’ in the days following the disappearance of Holly and Jessica (Daily Mail, Nov 14 2003:5). Some people may argue that restorative justice is not the best option for the murdered schoolgirl’s parents who are the victims of this crime. However, it can be argued that despite all the evidence to prove that Huntley is guilty the CJs does not encourage him to plead guilt, rather he is encouraged to plead ‘not guilty’ because this is in his best interest. The current system minimises the harm done to the victims, by denial on behalf of the offenders. However, this conflicts with restorative justices practices, they attempt to put right the harm encountered. Offenders are also more likely to admit the wrong they have done and take responsibility for their actions, instead of lying they attempt to make amendments and repair the harm done to the victims, (Marshall, 2001: 34-41).
It can also be argued that if offenders recognise the personal liberties of the victims they can help restore the victim’s status. Unlike the CJs, the parents can also have a voice they can describe how they feel and describe the effects of the harm caused by the consequences of the actions. In criminal justice processes, lawyers and advocates speak on behalf of the offenders and victims. Lawyers discourage the offender from directly speaking to the victim; the effects of offences are communicated through a victim impact statement presented by the prosecutor in written form. This differs from the processes of restorative justice practices, offenders and victims speak for themselves, and dialogue takes place between them. Meeting with the offenders may mean that some of the victim’s emotional needs are met; for example, they may be provided with the opportunity for some healing, for some understanding of what happened and why, and for some closure, (Finer and Nellis, 1998: 46-48). Furthermore, Walgrave (2002) asserts that the current system sees the offence as one against the state and shuts the victim out. The criminal Justice system almost totally neglects and disempowers the victim, which amounts to secondary victimisation. This has become very clear from the feminist critique of the way in which the judiciary deals with victims of sexual offences, but it is too often true in general, (Maguire and Morgan et al, 2002: 566-9). In Restorative Justice and the Law, Walgrave argues that victims are often used in the criminal justice system, or even misused, as witnesses in the criminal investigation, and then left alone with their grievances and losses.
Other restorative justice programmes include restoration, sentencing circles, and conferences. Restoration seeks to restore the victim and/or the community to the state of wholeness that existed prior to the offence, (White and Haines, 2000: 177-8). There are cases where the victims may not wish for the offenders to come to their house, in such cases the victim’s views are respected and alternative arrangements are made. In sentencing circles, interested community people take part in a discussion of what happened and what should be done to prevent further such incidents. The community plays a vital role in these practices, when offenders are accepted back into the community it is for the community to monitor offender’s behaviour. However, it can be argued that a sense of community has become increasingly fragile and in some places eradicated altogether, therefore these claims are not realistic. It can further be argued that communities themselves can be biased, members of the community may be racist and others may be patriarchal, for example, a patriarchal community will do little to help the victims of sexual violence. On the other hand it can be argued that the communities involvement in the process can help make better decisions, this helps strengthen community bonds and can lead to close knit communities. Also, members of the community can provide effective ‘support and assistance’ to victims as they proceed through the justice process and seek recovery. ( Johnstone, 2002: 27-28).
Conferencing involves, victims, offenders, and any other interested parties which can include, family members, the police, social workers, and community members. It can be argued that the family’s presence is beneficial to victims especially if they need support. Moreover, if the offender’s parents have neglected him or her and are responsible for the offender’s actions they are made aware of the consequences of neglecting their children. Furthermore, members of the offenders family may resolve to monitor the offender and support them from further law- breaking and anti social behaviour, (Wright, 1996: 46-53). It is important to note that conferencing is influenced by Braithwaite’s theory of reintegrative shaming. He argues that family and community shaming directed at offenders, followed by efforts to reintegrate them is an extremely powerful form of social control. It can be argued that reintegrative shaming is not effective, there is no point of the shaming the offender and accepting him or her back into society. However, this conflicts with those who argue that this form of shaming is effective. Adam Crawford (2000:32-3) argues that through reintegrative shaming the conscious of offenders will be reached and they will experience shame about their misdeeds, as a result they will be less likely to repeat them. It has also been argued that reintegrative shaming is better than prison shaming. Prisons stigmatise, shame, but fail to reintegrate, (Braithwaite, 1991: 165-8).
One of the principle popular complaints put forward by critiques of restorative justice is that some victims may feel that restorative justice practices are soft on crime, especially serious crime. It can be argued that it is not a soft option for offenders to confront victims. The reason as to why it is seen as a ‘soft option’ is because the objective of restorative justice is not to punish offenders.
The point of restorative justice practices is:
‘Not to punish the offender, but to work towards the goals of repentance, reparation, reconciliation, and rehabilitation. Such goals are not distinct from punishment, rather they are the proper goals of punishment itself, and goals that can be properly achieved only through a punitive, communicative process,’ (Duff, 1996: 82-83).
According to Duff the criminal justice process, by segregating and ostracising offender’s renders them more rather than a less of a threat to communities and increases victimisation. The punitive system also drives offenders into criminal subcultures where they become more and more like alien enemies of the community. This is one of the reasons why conventional justice does fairly poorly in reducing re offending; reconviction rate for those imprisoned is high. When released from prison, these prisoners are likely to have become hardened and embittered and will most likely quickly re-offend. The imprisonment of offenders does little to assist their victims, who, in many (or even most cases), might prefer reassurance, an apology, reparative measures, and compensation, (Braithwaite, 1992: 53-5).On the other hand, there is some encouraging data on the reconviction with respect to restorative justice. With these practices victims are at less risk of being the victim of the offender in the future, the possibility of reconviction is reduced when certain aspects of restorative justice are achieved.
Another important argument in relation to restorative justice practices is that offenders lie at the heart of the processes. It has been argued that restorative justice practices divert attention away from the victim and focus their attention solely on the offender. Offenders are more involved in the process whereas victims are led into playing councillors roles. Offenders explain why they undertook the offence, which ultimately becomes like a counselling session instead. In the end the victim will get stuck in the spider web and will feel sympathetic towards the offender. In such cases theses practices rather than benefiting the victim work favourably towards offenders. However, it can be argued that restorative justice cannot simply cut offenders off and act in a totally hostile manner towards them. These processes try and involve offenders, and hear their views. If this was not the case and instead offenders were segregated and ostracised they would be rendered more rather than a less of a threat to us. They would be driven into criminal subcultures where they become more and more like alien enemies of the community. We lose whatever chance there was of influencing them to behave better and to subject themselves to various forms of supervision and control. Therefore, especially for victims it is wiser to strengthen the relationship with offenders rather than weaken it, (Johnston, 2002:13-15).
In conclusion, campaigners against restorative justice practices argue that restorative justice practices leave victims feeling worse than before and leave untouched a ‘hard core’ of unrepentant offenders. The real issue is that restorative justice offers more potential than conventional justice processes to touch the hearts and minds of offenders and to benefit the victims involved by effecting change. Its emphasis is positive and it provides justification for a consensus in society. The essay demonstrates that victims are more satisfied if they succeed in a constructive interaction with the offender. Unlike the punitive system restorative justice seeks to restore the victims security, self-respect, dignity and most importantly, sense of control. These practices can also be seen as a more effective ways of dealing with criminal behaviour than the court system. The victim is placed at the heart of what happens and, indeed, many victims find the experience positive. Restorative Justice allows the victims to contribute directly to the process of seeking remedy and justice. Finally, Restorative justice practices can make a substantial contribution to victims of crime. It would be a good idea to involve attaching restorative justice practices to existing court procedures, they can both emerge to make the system more effective.
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