Can a restorative approach help survivors of sexual violence get justice?

Last Wednesday featured a public dialogue on restorative justice (RJ) and sexual violence at the University of Strathclyde, the second of four dialogues on restorative justice – funded by the Scottish Universities Insight Institute and organised by a revitalised RJ Forum for Scotland. RJ is a concept many will associate with youth offending and property crimes rather than grave offences like homicide and rape.

Indeed, many of those involved in supporting victims of sexual violence bristle at the very mention of restorative justice in such a context, so it is testament to the organisers, speakers and audience that Wednesday’s event was both thought-provoking and respectful. You know an event discussing sexual violence has been very thoughtfully planned when it begins with an assurance that a rape counsellor is standing by to offer support to anyone who might need it.

“What is justice?” was perhaps the question at the heart of the discussion, which began with a presentation by Professor Clare McGlynn of Durham University.

Prof McGlynn told the story of “Lucy”, an adult survivor of child rape and sexual abuse who felt disgusted and “completely discounted” when her abuser received only a caution for his crimes. Seeking justice in another form, Lucy sought to confront him face-to-face. At the restorative justice conference that was subsequently arranged – after much careful preparation – he apologised to her.

Up until this point, the story perhaps corresponded with what many imagine restorative justice might involve: participants talking things through, seeing each other’s perspective, reaching some sort of understanding. But that’s not quite how the story ended. “I had the last word,” Lucy said, “and said that I didn’t accept his apology.”

One might argue that Lucy was denied “justice” because she was failed by the criminal justice system. But Prof McGlynn argued that even if that system was the very best it could be, there would still be a potential role for restorative justice because not every victim-survivor of sexual violence has the same perspective. Justice for one woman might be a lengthy prison sentence for her attacker. For another, it may be acknowledgement of the harm caused. For another, it may be having the chance to put questions to an abusive relative, or to replace a traumatic memory with an empowering one thus ‘changing the memory card’, as Dr Marie Keenan , one of two respondents, put it.

All three speakers agreed that reform of the criminal justice system was required and the first respondent, Katy Mathieson of Rape Crisis Scotland, raised important reservations about a restorative justice approach. She argued that an RJ process should be kept entirely separate from a criminal justice response – then queried whether any perpetrator who had not been convicted would agree to participate if this was the case. She shared perspectives of people abused as children in care who spoke of disastrous attempts at restorative justice, which were run by inexperienced facilitators and had a very negative impact on participants who felt the crimes against them had been “downgraded”.

Dr Marie Keenan, a psychotherapist and academic at the University College Dublin, briefly summarised her decades of work with both sexual violence perpetrators and victim-survivors. She argued that even in cases where there have been criminal justices responses such as imprisonment of a perpetrator, there remain “healing gaps” as well as “justice gaps” and restorative justice could have a role in filling these. “Even when there has been a conviction,” she said, “there are unmet needs”.

Like Prof McGlynn, she cautioned against viewing victim-survivors as a homogeneous group, emphasising that “justice” for one person may be different to “justice” for another. She spoke of the potential value of victim-survivors taking ownership and control of decision-making, and the danger of replicating the power dynamics of abuse by telling them what is and isn’t good for them. She shared an experience of a survivor who wanted to proceed with a meeting with her abuser despite knowing he would not apologise.

Finally, Dr Keenan addressed the question “justice for whom?”, noting the challenges of serving both the public interest (through a criminal justice system in which the evidentiary burden often works against conviction), and the private, particular interests of victim-survivors.

The concept of “justice for rape victims” has been shaped by the hard-fought battle to have violence against women treated with the seriousness it deserves in the criminal justice system, and Prof McGlynn recognises the fears that the use of restorative justice could serve to “re-privatise” sexual violence. However, all of the speakers agreed that the criminal justice system is failing to deliver justice for the vast majority of victim-survivors, and indeed is serving to re-victimise them.

The point of debate, therefore, is whether all resources should be directed to improving that system, or whether other approaches should be explored in parallel with victim-survivors for whom “justice” means not just the punishment of a perpetrator by the state, but something far more personal.

By Shona Craven, Communications and Knowledge Exchange Assistant for the SCCJR.

The next dialogue event in the series, ‘How can restorative justice contribute to desistance from crime?’ will take place in Edinburgh on April 20 – see Eventbrite for more details and to register. A final dialogue event will take place in May or June, followed by two day conferences in the early autumn.