Table of Contents
In this paper I will be looking at conferencing as a form of restorative justice for victims of rape of which I will use a case to demonstrate how restorative justice through conferencing is carried out, under the same case I will look at the benefits and limitations. I will also look into what should be retained within the retributive justice system.
Despite decades of legal reform, the police and courts continue to fail victims. To be sure, some cases proceed to court, pleas are entered, and defendants are convicted at trial; but scholars and advocates agree that existing law and procedure, coupled with social attitudes about gender and sexual violence, thwart just outcomes for victims. As we have known for years most sexual assault victims do not report the offense to the police and for the victims who do report, the likelihood of their case reaching the prosecutor’s desk is low (Curtis-Fawley, 2004). Koss (2003) argues that restorative justice is a philosophy that places emphasis on repairing harm by empowering the victim-driven process. It emphasizes offender reparation through reparations and rehabilitation rather than punishment and aims to transform the community’s role in addressing crime. Recent literature reveals numerous and escalating calls for restorative justice to crime against women.
Conferencing
According to Koss (2003) conferencing which can also be referred to as community conferencing, this is basically bringing the victim , offender and supporters to a face to face meeting in the presence of a facilitator where they encouraged to discuss the effects of the incident on them and to make a plan to repair the damages done and to minimize the likelihood of further harm.
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In February 2010 a restorative conference took place in the north of England. It involved a woman called `Lucy’, who is an adult survivor of child rape and other sexual abuse (Clare McGlynn, 2012). The rape and other sexual abuse took place over a period of five years, several decades ago, and the perpetrator was a male family member who was also a young person at the time (Clare McGlynn, 2012).
Lucy is an adult survivor of child rape and other sexual abuse (Clare McGlynn, 2012). While the abuse took place decades ago, she had only recently made a police report, being prompted by a desire to protect other children in the family with whom the offender had been in contact (having previously told Lucy that he had avoided any contact with children) (Clare McGlynn, 2012). In addition, she was at a stage where she felt ready to talk about and report the abuse (Clare McGlynn, 2012).Lucy made an official report to her local police of which she wasn’t satisfied with the way the justice system handled her case of which was dismissed on grounds of it being historical and including an offender who was a juvenile at the time (Clare McGlynn, 2012). It was during sessions with a rape crisis counsellor that the possibility of a restorative process of some nature was first raised. Her counsellor through the help of the local police, was able to find her a good restorative justice facilitator (Clare McGlynn, 2012).
The facilitator made contact with the offender and spoke to him approximately four times prior to the conference (Clare McGlynn, 2012). The offender was reluctant to participate at first (Clare McGlynn, 2012). The facilitator speculates that a possible reason why he agreed to participate was that he was `looking for some sort of excuse for his behavior’ and thought that the conference might help in this way, particularly in terms of re-establishing some sort of contact with family members (Clare McGlynn, 2012). However, since we were not able to interview the offender, we cannot know his actual reasons for participation (Clare McGlynn, 2012). Lucy is clear about why she wanted a restorative conference to take place: `I just wanted him to hear me, without him twisting it really’ Clare McGlynn (2012).
- Preparation
A key feature of this preparation was working through the restorative justice `script’ to be used in the conference which set out the order in which participants speak and the issues to be addressed (Clare McGlynn, 2012). The advantage of this established format became clear during the preparation when Lucy and her counsellor were able to understand well in advance how the conference was to proceed, what questions were to be asked, and what opportunities each participant would have to speak (Clare McGlynn, 2012). Lucy found these very important and prepared written notes: `Another really positive thing about (the conference) was the sheer structure it enabled me to plan and prepare and make sure that I said everything I wanted to say (Clare McGlynn, 2012).’ Lucy and the counsellor then rehearsed how the conference might go, with the counsellor giving responses that might be given and might prove distressing for Lucy (Clare McGlynn, 2012). They agreed that if Lucy did not feel able to speak or get her points across during the conference, that her counsellor would be empowered to do this for her Clare McGlynn (2012).
- The restorative conference: having the “last word”
The conference took place in a location that was familiar to Lucy which was a deliberate decision to ensure she felt comfortable; it was also a safe environment (Clare McGlynn, 2012). Detailed arrangements were made relating to everyone’s arrival and entrance to the conference room, to ensure that Lucy and the offender did not come into contact, other than during the conference. Lucy and her counsellor arrived first and were settled in the room (Clare McGlynn, 2012). The facilitator met with them to ensure that Lucy wished to proceed and understood the conference process (Clare McGlynn, 2012). The facilitator met with the offender and ensured that he too understood the process and then brought him into the conference room (Clare McGlynn, 2012). The conference, which lasted just under an hour, followed the restorative script, meaning that the focus was first on the offender to explain his actions (Clare McGlynn, 2012).
This is a fundamental stage in the restorative process as being where the offender acknowledges responsibility for the acts and is asked to explain his actions (Clare McGlynn, 2012). The counsellor recalls how during this first part of the conference the offender was `very, you know, careful how he answered, minimizing his behaviors, also being very defensive’ (Clare McGlynn, 2012). In addition, the offender at this stage was refusing to look at and address Lucy with his comments (Clare McGlynn, 2012). The counsellor recalls how the facilitator told the offender that he needed to look at Lucy (Clare McGlynn, 2012). The counsellor also, at one stage, intervened and said: `I notice that you’re saying you feel shame but you’re not saying that to (Lucy) (Clare McGlynn, 2012).’ The facilitator similarly intervened when, having accepted responsibility, the offender sought to blame his actions on his difficult experiences as a child (Clare McGlynn, 2012).
The facilitator challenged him and explained that if he was not going to accept responsibility then the conference would need to end, after which the offender did acknowledge his responsibility (Clare McGlynn, 2012). Lucy explains that, at first, it was difficult to understand why the offender was asked to speak first: `At the time I thought why you are letting him talk so much?’ However, on reflection she states that: `I realized later how important that bit was, because it was the first time, he admitted that he had deliberately created harm and that he knew that having sexual intercourse with me would be harmful (Clare McGlynn, 2012).’ Once the offender had admitted the offences and provided an explanation as to why he did what he did, Lucy had the opportunity to explain how the abuse had affected her. She explained that this: abuse affects people (Clare McGlynn, 2012). As well as aiming to convey to the offender how abuse affects people in general, this strategy was devised so that Lucy would be in control of how much information she wanted to give out about herself personally because although she wanted to get across to him how much damage he’d done to her life, she didn’t want him to see her as a very vulnerable, kind of, you know, weak person (Clare McGlynn, 2012). In a sense, she wanted to be able to come out of there with her head held high and meet him on an equal level Clare McGlynn (2012).
The benefits of this conference more especially for Lucy as the victim were:
Her voice was heard; she was able to voice how she felt of the whole incident fully in detail, even though she did not accept his apology she had the last say.
Offender taking responsibility; hearing the victim take full responsibility for the crime helped her not to blame herself for what happened and to be able to move on. This allows the victim to see him as an offender and acknowledge that she is only a victim, which in turn helps the victim to resolve unresolved issues with themselves.
Other general benefits of restorative justice are:
Communicative and flexible environment
The process can be tailored to child and adolescent victims’ needs and capacities. Because it is flexible and less formal, it may be less threatening, and better able to respond to the individual needs of victims Curtis-Fawley, 2004).This gives the victim the chance to ask questions that they wouldn’t be able to ask in the court and sometimes more than the offender being sentenced the victim just wants closure.
Relationship repair (if this is a goal)
The process can address violence between those who want to continue the relationship. It can create opportunities for relationships to be repaired, if that is what is desired by the victim CITATION Kat04 l 1033 (Curtis-Fawley, 2004). The offender could be a relative or someone the victim had a relationship with and understanding why they did what they did and hearing them apologizing could help the victim to forgive and trying to re-build the relationship
- Even though the restorative justice conferencing was beneficial and highlighted a lot of important aspects that are missed by the courts it does have its limitations;
- Restorative justice may not be appropriate for everyone as some of the offenders are so abusive that there is nothing that is going to come out of it
- Some victims may have not fully recovered from the abuse to face the offender again
Other general limitations of restorative justice are:
Mixed loyalties
Curtis-Fawley (2004) argues that friends and family may support victims but may also have divided loyalties and collude with the violence, especially in intra-familial cases of abuse. In some instances, family members may be led to believe that the victim had a role to play in their own victimization of which could lead them to believing that the offender is not only to blame but both the victim and offender are to blame.
Cheap justice
According to Curtis-Fawley (2004) offenders may view restorative justice processes as a “soft option,” reinforcing their belief that their behavior is not wrong or can be justified. Penalties may be too lenient to respond to serious crimes like sexual assault. It in a way reinforces the behavior of the offender as they get away with no criminal record, no real punishment and only an idea of the effect the act had on the victim of which doesn’t really discourage them from ever committing the act again.
Retributive Justice
Within the retributive justice system one thing that should be retained is the charging and sentencing of offenders. The Penal Code (Amendment) Act of 1998, introduces stiffer penalties against rape offenders. According code law no.2 of 1964-WPO chapter 08:01,person charged with rape is not entitled to bail, and on conviction shall be sentenced to a minimum term of ten years imprisonment. Where the rape is accompanied by violence resulting in injury to the victim, the minimum sentence is fifteen years. As much as the restorative justice system gives the victim a voice and closure to know that they shouldn’t blame themselves for what happened, it fails to fully serve justice for the victim.
Conclusion
Restorative justice system could be a step further in handling cases of rape in Botswana. Instead of only focusing on the offender alone and neglecting the victim both could be given a chance to voice how they feel about the incident. The victim would be given an equal opportunity to voice how this has affected them, which would help them to be able to move on with their lives rather than to see the offender be sent away without them knowing the effects of their actions on the victim. The court proceedings have a way of making the victim feel like they are at fault for their own victimization of which now has resulted in people being quick to scrutinize the victim of what they were wearing , how much alcohol they had , why were they walking alone at night or why they were in a particular place in the first place. Its almost like the sole intention of the court is to prove that if the victim had not done certain things they wouldn’t have been victimized.
References
- Clare McGlynn, N. W. (2012). journal of law and society. `I Just Wanted Him to Hear Me’: Sexual Violence and the Possibilities of Restorative Justice, 213-240.
- Curtis-Fawley, K. D. (2004). Justice for victims of sexual assault: court or conference? .
- Daly, K. (2001). Sexual Assault and Restorative Justice .
- KATHLEEN DALY, J. S. (2006). Theoretical Criminology . Feminist engagement with restorative justice, 1362-4806.
- Kuulman, M. (2019). Botswana aiding and abetting rape , assault . Gaborone : sunday standard .
- Mary P. Koss, K. J. (2003). restorative justice for sexual violence victims . reparing victims, building community , and holding offencers accountable , 384-396.
