Restorative Justice or Criminal Justice - Essay Example

Is restorative justice or a criminal justice response more appropriate in cases of gender­-based violence? Introduction Gender-based violence (GBV hereafter) is violence committed against another by reason of the latter’s sex (EIGE 2015). It is often used to refer to violence against women because most cases of GBV involved women as victims. Examples of GBV are rape, domestic violence, women trafficking, sexual harassment, forced abortion and forced sterilisation, to name a few (EIGE 2015). GBV is a global problem and is considered one of the most persistent forms of human rights violation. In Australia, one in every three women above 15 years of age has gone through physical or sexual violence and one woman a week falls victim to homicide perpetrated by a partner or ex-partner (Askola 2014). GBV could be perpetrated by individuals, such as family members, by inflicting physical, sexual and psychological abuses, through harmful customary practices, such as honour killings or sati - the burning of widows - or by the state (Askola 2014). GBV occurs because of the interplay of factors that may involve not only the parties, but also the community and society as well leading to the gendering of roles and powers. Victims of GBV often suffer from deep psychological and emotional trauma that leads to mental disorder. The traditional criminal justice approach and restorative justice approach have been both found to be inadequate in dealing with the issue of GBV as they are both flawed. The punishment-centric traditional justice approach has been found to be insufficient in dealing with GBV as evidenced from the high number of reported sexual offences compared to the number of persons actually convicted and sentenced (Stubbs 2003). On the other hand, the restorative approach, although more victim-centric, presents an uncertain alternative because it is dependent on extraneous factors and conditions. This paper argues that the neither the use of any of these approaches in GBV guarantees absolute success, but their application to GBV should be determined by the circumstances surrounding a particular case. Restorative Justice and Traditional Criminal Justice: A Distinction The traditional criminal justice approach is the prevailing system used in the civilised world and in Australia today to respond to GBV. In the traditional criminal justice approach, the state prosecutes the offender as if it were the victim. This is because any act that breaches the peace threatens the state, whose responsibility is to ensure peace and order. The chief goal of the traditional criminal justice approach is to establish the guilt of the accused and punished him or her, if found guilty. The trial is the highlight of this type of approach and the court represents the ultimate settler of the criminal issue. On the other hand, the restorative justice approach, which is a new innovation within the criminal justice system, is underpinned by the purpose of making the offender understands the nature and consequences of his actions and acknowledges them as his acts. In this way, it potentially gives the victim more satisfaction knowing that the perpetrator has acknowledged his crime and is truly remorseful of his actions (Alarid et al 2007). Restorative justice is defined as “a process whereby parties with a stake in a specific offense collectively resolve how to deal with the aftermath of the offence and its implications for the future” (cited Shapland et al 2006). Restorative justice is a broad concept that includes the processes of mediation, conferencing, sentencing circles and community panels. This approach entails the meeting of parties face-to-face so that the offender is given the opportunity to acknowledge his crime, personally apologise to the victim and take responsibility for his actions. The main goal of the approach is to repair the damage occasioned by the offence. Unlike the traditional criminal justice approach, restorative justice gives less emphasis on procedures and formalities, but more on the ultimate and resultant emotional and psychological conditions of the parties. Restorative justice, thus, gives emphasis on the penal process, as opposed to stressing trial or the determination of guilt, which primarily characterises the criminal justice approach (Shapland et al 2006). Restorative justice differs from traditional criminal justice on four points: it stresses reparation rather than punishment, advantaging the victim more than the state; the offender is given the opportunity to apologise to the victim; the opportunity of reconciling the victim and offender is opened, and; the offender is brought closer to the community through community programmes (Roberts 2005). Australia chiefly abides by the traditional criminal justice system, where substantial and procedural laws are fixed and established. Since 2001, however, it has started employing restorative justice practices, but only in so far as juvenile justice is concerned. Today, restorative justice is gradually made available through adult conferencing in NSW and South Australia, circle sentencing in NSW and Western Australia, and victim-offender mediation (Larsen 2014). Nonetheless, the use of restorative justice approach to family violence, sexual offences and some violent offences are often excluded in most jurisdictions in Australia. This is illustrated in the NSW’s Young Offenders Act 1997, which specifically excludes family violence (ALRC 2010). Family violence embraces violence against women and their children, which is a subset of GBV. Time for Action, which is an action plan for the reduction of violence against women and their children developed by the National Council, likewise stated that the use of restorative justice in GBV is not known because of its exclusion from restorative justice process in Australia. Furthermore, the Council has cautioned against its use without first undertaking more trials and research on the issue (ALRC 2010). The Use of Traditional Criminal Justice and Restorative Justice Approaches in GBV In 2001, there were 9,000 incidents of sexual offences reported in NSW. However, only 206 persons were convicted of the offence that year (Stubbs 2003). The implication of this serious discrepancy in report and convictions implies that either the traditional criminal justice is incapable of processing sexual offences or most of the reports were fabricated, which is unlikely. Furthermore, the employment of traditional criminal justice approach in GBV cases is inadequate to completely repair the damage done to the victim. Traditional criminal justice pursues its case against the offender regardless of the victim and their needs and preferences are not central or important to the process, which is anchored on established and fixed procedural law. Material or financial reparation may be possible in this type of approach, but it cannot mend the emotional and psychological damage done to the victims (Strang & Sherman 2003). GBV is a very intrusive crime because it infringes not only the physical make-up, but also on the emotional, mental and psychological security of a person. Traditional criminal justice skims only the harms done to victims and focuses only on material reparation because of the limitations placed by established procedural law. Despite this, Stubbs (2003) acknowledged the significance of the traditional criminal justice system in minimising GBV, but this discrepancy highlights the fact that this approach alone cannot solve or diminish the GBV problem in Australia. On the other hand, the use of the restorative justice approach in responding to GBV looks promising because it is more victim-centric (Roberts 2005). In the traditional criminal justice approach, the process revolves around the state, which dictates the punishment for the offence. The victim often takes the sidelines and simply watches as the state exacts what it perceives is a just measure of punishment for the crime it deems is committed against it. In a process that highlights the adversarial positions of the prosecution and defence dictated by lawyers and refereed by a judge, the victim often feels abandoned. In restorative justice, on the other hand, the victim is the centrepiece of the entire process with the entire process revolving around her or him. Research shows that “victims say that they get far more ‘justice’ in their own terms, from restorative alternatives to court processes than they do from a court” (Strang & Sherman 2003). Such a result could be dependent, however, on the ability of the victim to assert and express her feelings and on the ability of the process to eliminate the dominance of the offender. In a scenario where the offender continues to be the dominant figure even during the course of the process, the goal of the approach becomes useless. One of the advantages of the restorative justice approach is that it gives the parties, especially the victims, the opportunity to air and express their concerns and innermost feelings. This includes the community. In Canada, the use of community mediation in restorative justice programmes underscores the possibility of a totality approach to offending. The Kitcherner VORP developed by Mark Yantzi in Canada allowed a community representative to be involved in the conferencing of the victims and the offenders. The community’s participation is important because the community is also harmed by the commission of offences within its jurisdiction because of their impact on the community, especially on the children (Howard 1997). Yet, the community and society are also seen as being contributors to the prevalence of GBV because their norms and traditions could have encouraged both the victims and perpetrators to act the way they did. In cases where the participation of an uninformed community is sought in a restorative justice process, the danger that it may assert its erroneous norms as to the gender-based power distribution may pose a further risk to the victim and to the goals of the entire process. Researchers suggest that GBV is a product not only of the offender’s violent actions, but by a combination of factors that embrace a wide network of social institutions. Heise (1998) developed an ecological framework to explain GBV. The framework is constituted by four risk factors as shown in Fig. 1, namely individual, relationship, community and society. Each of these factors, which apply to both victim and perpetrator, may increase or decrease the likelihood of GBV, according to Heise. The individual factor refers to personal and biological history, such as education, age, early marriage and economic status, exposure to sexual abuse and intra-parental violence and attitude towards violence. The relationship-level factor, on the other hand, becomes a risk in GBV when the quality of the relationship with peers, intimate partners and family members is characterised by lack of harmony, such as when there is disparity in education or intelligence. Community-level factor can either prevent or encourage GBV. Communities that overtly disapprove of violence and provide support to women-victims have low rates of GBV. Finally, society-level risk refers to the norms followed by society in perceiving the roles and power balance between men and women. In societies where men are the dominant figures and have the power to make decisions, especially in economic matters, intimate partner violence is prevalent (UNFPA-WAVE 2014). Heise’s ecological framework of GBV suggests that a restorative approach may be an effective approach to GBV, but at the same time it also suggests that such an approach can undermine the victim of a GBV, especially in the areas of partner, sexual and family violence (Daily and Stubbs 2006). Like any other discursive process, biases, norms and underlying gender power struggle may still play a large role and as a result, ultimately disadvantaged parties who are not able to assert and express their innermost thoughts and thereby, find themselves overwhelmed by the other parties or by the process itself. If all the elements in Heise’s ecological framework Fig. 1 Heise’s ecological framework of GBV cooperate to make the process work, the likelihood of success is high. However, these relationships can also cause the process to fail. For example, a more assertive offender may be able to manipulate and exploit the process to his advantage leaving the victim at a loss. Even the participation of the community can be a source of impediment to the cause of the victim, especially in communities that do not fully comprehend the underlying causes of GBV. Furthermore, the participation of the parties, especially the offender, may just be for show only to simply get over with the process (Daily and Stubbs 2006). The success of RJ presupposes the sincerity of the parties because of its discursive nature. Without sincerity, the entire process will defeat its purpose. Conclusion GBV is a global problem in the same way that it is a pressing issue in the domestic front. WHO associated it with health epidemics when it announced that GBV is a “global public health of epidemic proportions, requiring urgent actions” (cited Phillips and Vandenbroek 2014). This international scenario is reflected domestically by statistics (Askola 2014). In domestic violence alone, more than 15% of Australian have been found to have experienced it in their lifetime, according to the Personal Safety Survey 2005 (McFerran 2011). The GBV problem, however, is not only confined to the criminal justice system or health problems, but impacts economics as well. In 2009, a study commissioned by the Commonwealth revealed that domestic violence and sexual assault committed against women cost Australia $3.6 billion annually and this figure is expected to balloon to $15.6 billion by 2021 (The Council of Australian Governments 2009). As previously discussed, both the traditional justice approach and the restorative justice approach may both prove to be inadequate in responding to GBV. Each has strengths, but each has weaknesses, too. Although the restorative justice approach seems more promising because of its comprehensive and victim-centric approach, it may not work under certain circumstances, particularly when sincerity, willingness and confidence in the system is lacking. In addition, the system may prove to be useless when the underlying gender-based power struggle is not solved or eliminated. On the other hand, the impact of the traditional justice approach is limited by procedural limitations and the inability of the victim to fully participate in the process. However, where a GBV case is not suited to the restorative approach, it should be handled by the traditional process. In short, the traditional justice approach may suit some cases, but may be inadequate in some whilst the restorative approach may be the best recourse in some cases, but not in all cases. References Alarid, L, Cromwell, P and del Carmen, R 2007, Community-Based Corrections, 7th ed., Cengage Learning ALRC 2010, Family violence – improving legal framework, viewed 9 April 2015, http://www.alrc.gov.au/publications/11-alternative-processes/restorative-justice Askola, H 2014, The 2014 Castan Human Rights Report, Castan Centre for Human Rights Law, viewed 12 April 2015, http://www.law.monash.edu.au/castancentre/policywork/hr-reports/2014/gender.html. Cusack, S 2009, Issues in good practice: Advancing women’s rights through human rights law: possibilities and practical action, Australian Domestic & Family Violence Clearinghouse, viewed 12 April 2015, http://www.adfvc.unsw.edu.au/PDF%20files/goodpracticesupportchild.pdf. Daly and Stubbs 2006, Feminist engagement with restorative justice, Theoretical Criminology, Vol. 10(1): 9–28 EIGE 2015, What is gender-based violence? European Institute for Gender Equality, viewed 12 April 2015, http://eige.europa.eu/content/what-is-gender-based-violence Fileborn, B 2012, Sexual violence and gay, lesbian, bisexual, trans, intersex, and queer communities, Australian Institute of Family Studies. Larsen, J 2014, Restorative justice in the Australian criminal justice system, Australian Institute of Criminology. McFerran, L 2011, Domestic violence workplace rights and entitlements project: Safe at home, safe at work? Australian Domestic and Family Violence Clearinghouse, viewed 8 April 2015, http://www.adfvc.unsw.edu.au/PDF%20files/Domestic_violence_and_work_survey_repo rt_2011.pdf Phillips, J and Vandenbroek, P 2014, Domestic, family and sexual violence in Australia: an overview of the issues, Parliamentary Library Research Paper, Department of Parliamentary Services, viewed 11 April 2015, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Li brary/pubs/rp/rp1415/ViolenceAust The Council of Australian Governments 2011, National plan to reduce violence against women and their children, 2010-2022, viewed 12 April 2015, https://www.dss.gov.au/our-responsibilities/women/programs-services/reducing-violence/the-national-plan-to-reduce-violence-against-women-and-their-children-2010-2022 Shapland, J, Atkinson, A, Atkinson, H, Colledge, E, Dignan, J, Howes, M, Johnstone, J, Robinson, G and Sorsby, A 2006, Situating restorative justice within criminal justice, Theoretical Criminology, vol.10, no. 4, pp. 505-532. Rees, S, Silove, D, Chey, T, Ivancic, L, Steel, Z, Creamer, M, Teeson, M, Brynat, R, McFarlane, A, Mills, K, Slade, T, Carragher, N, O’Donnel M and Forbes, D 2011, Lifetime prevalence of gender-based violence in women and the relationship with mental disorders and psychosocial function, The Journal of the American Medical Association, vol. 306, no. 5, pp. 513-521. Roberts, J 2006, Understanding Public Attitudes to Criminal Justice, UK: McGraw-Hill Education. Strang, H & Sherman, L 2003, Repairing the harm: Victims and restorative justice, Utah Law Review, no. 1, pp. 15-42 Stubbs, J 2003, Sexual assault, criminal justice and law and order, Women Against Violence: Issue Fourteen, pp. 14-26. Walsh, K, Keyes, K, Koenen, K and Hasin, D 2015, Lifetime prevalence of gender-based violence in US women: Associations with mood/anxiety and substance use disorders, Journal of Psychiatric Research, vol. 62, pp. 7-13. WAVE-UNFPA 2014, Strengthening Health System Responses to Gender-based Violence in Eastern Europe and Central Asia, viewed 16 April 2015, http://www.health- genderviolence.org/guidance-for-health-care-professionals-in-strengthening-health- system-responses-to-gender-based-vi-0 Read More