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

5. Conclusions and Recommendations

5. Conclusions and Recommendations

5.1 Conclusions

5.1.1 Victims’ Perceptions

Victims generally are in favour of restorative justice practices provided participation is fully voluntary. Victims like the fact that restorative justice programs recognize their interest in the case. Restorative justice programs provide victims with notification of the developments in their case and an opportunity to ask for restitution. While the traditional criminal justice system should offer victims these same services, it is often only within the context of restorative justice programs that these services are regularly offered (Hoegen and Brienen, 2000; Sherman et al., 1998). Victims also like the idea that offenders are held accountable for their actions.

Victims, however, do not feel that they should have to be concerned about reaching a settlement with their offender or about punishment. Victims are quite content to hand over certain responsibilities, such as punishing offenders, to criminal justice authorities (Kilchling, 1995; Marshal and Merry, 1988). Nevertheless, there is a group of victims, between 40% and 50% of all victims, who are interested in meeting their offenders. This percentage varies depending on the type of victimization – generally, it is lower among victims of violent crimes and higher among victims of property crimes. In addition, there is a group of victims who are willing to participate in mediation programs

5.1.2 Victims’ Expectations

The available research is relatively consistent regarding victims’ expectations. Victims participate in restorative justice programs to seek reparation, help the offender, confront the offender with the consequences of the crime, and to ask questions such as why the offence was committed. Interestingly, regardless of the seriousness of the offence, the reasons given by victims for their participation in restorative justice programs remains quite consistent.

Victims decline the offer to participate in restorative justice programs because they do not think it is worth the effort (loss too small or too trivial), because they fear the offender, they are too angry with the offender or disbelieve his or her sincerity.

Victims’ expectations are an important determinant of victim satisfaction: victims are satisfied when their expectations are met or exceeded and tend to be dissatisfied when their experience falls short of expectations.

5.1.3 Victims’ Experiences

The results of studies reveal that most victims who have participated in restorative justice programs are satisfied with the experience. However, when compared to offenders, victims tend to be less satisfied. Moreover, when compared to victims whose cases were handled in the traditional criminal justice system, there is no clear evidence to conclude that victims in restorative programs are any more or less satisfied. Clearly, restorative justice programs are not a panacea for victims. Nevertheless, given the interest in such programs, it is important to understand the sources of victim satisfaction and dissatisfaction.

Victims are satisfied when they feel the offender has accepted responsibility for his or her actions. This can be expressed through the payment of restitution and offering an apology to the victim. Conversely, victims are dissatisfied when the offender fails to follow through with his or her promises to pay restitution or when the apology is felt to be insincere. This finding emphasizes the importance of voluntary participation both for victims and offenders. If offenders are pressured or coaxed into participating in these programs with promises of lesser sentences, they may not accept full responsibility for their actions, and this can have negative consequences for the victims who find themselves sitting across from an unrepentant offender.

Victim satisfaction is also related to the quality and clarity of information provided by project workers. When victims are given clear information about the program, what it offers and what they can expect, they tend to be more satisfied than victims who feel they have been given unrealistic expectations or who find themselves quite unprepared for the meeting with the offender.

Overall, most victims who participate in restorative programs feel they benefit from them. Benefits for victims can involve the payment of restitution as well as psychological benefits. The research shows that the psychological benefits, such as less anger or fear, are particularly important for victims of violent crimes.

Unfortunately, most of the research does not isolate the impact of mediation on coping. The one exception is the study by Strang (2000). She found that after participating in conferencing, victims of violent crimes are significantly less vindictive and angry toward their offender than victims of comparable cases that were dealt with in the traditional criminal justice system. For victims of property offences, conferencing does not have the same effect; victims of property crimes rarely foster feelings of vindictiveness toward the offender and whether they participated in conferencing or their cases were dealt with in the traditional criminal justice system did not change that. Hence, the psychological benefits of restorative justice programs are particularly important for victims of violent crimes.

Despite the potential benefits of restorative justice programs for victims, a small but important group of victims felt revictimized by the experience. This occurs because they felt pressured to participate or the meeting with the offender stirred up old, unresolved feelings such as fear and depression. Other factors mentioned include a lack of remorse on the part of the offender as well as the failure by the offender to follow through with the agreement. Regarding this group, Morris et al. (1993) concluded that, in general, victims who felt greatly influenced by the offences were most likely to feel worse if they attended the conference. Clearly, there is greater risk of secondary victimization through the exposure of victims in face-to-face meetings with offenders. However, given the potential benefits of restorative justice programs for victims, it would be a mistake to simply deny victims this service. Instead, programs must focus on victims’ needs.

Finally, the above conclusions are based on victims who were offered the opportunity to participate in restorative justice programs. While such programs aim to bring parties together, often the victims themselves are not invited to participate. For example, Morris et al. (1993) reported that in less than 50% of the cases, victims were invited to attend conferencing. This practice clearly shows a lack of interest in the victim. As Marshall and Merry (1990) pointed out, the selection of cases in most programs focuses on offender and offence characteristics. Programs that fail to respect the position of victims of crime are in conflict with victim policy, as reflected in the Statement of Basic Principles of Justice for Victims of Crime (Federal-Provincial-Territorial Working Group on Victims of Crime, 1988). Programs must be sensitive to victims’ needs.

5.2 Recommendations

5.2.1 Future Research

The available research on victims’ experiences has focused primarily on victims’ reasons for participating in restorative justice programs. In contrast, there has been no systematic study of victims’ needs and how restorative justice programs can best meet those needs.

Despite the interest in victim participation, the available research tells us very little about the experiences of victims who refuse to participate in restorative justice programs. Among these victims are those who are not yet ready to meet the offender as well as victims who simply are not interested in meeting the offender, and probably never will be. If and how victims are influenced by the offer to participate in the program remains unclear. It is conceivable that for some victims the program opens up old wounds, which may augment the victim’s suffering. However, at present the research tells us nothing about this group. It is also unclear if and how many victims are bothered by the offer to participate in restorative justice programs. Moreover, we know little about the factors that might alleviate victim anxiety and that could help to avoid further suffering. Clearly, future research should focus on the experiences of these victims.

In addition, the available program evaluations tend to follow a post-test only design. This does not allow the researchers to isolate the impact of the program. The present review of the literature revealed only one study that was rigorous enough to allow the researcher to draw causal inferences. If future research is to add to the existing knowledge base, more attention must be given to the design of the studies. This will inevitably cost more than simple, post-test only studies; however, investing in post-test only studies in order to understand the impact of restorative justice programs on victims is a waste of time and money as they reveal nothing about the effects of the program.

Besides a general lack of information regarding the impact of restorative justice programs on victims, it is presently impossible to compare and contrast programs. Some programs may be better for victims than others, but the present state of the research does not allow for clear comparisons between programs. In particular, little is known about procedural and organizational aspects of the different programs and how these affect victims. More research is needed that compares and contrasts the impact of different restorative justice programs on victims.

5.2.2 Policy Recommendations

While the available research has its limitations, it is clear that there is a demand for restorative justice programs among victims. The question is therefore not whether restorative justice programs should be offered to victims but, rather, how they should be offered. Clearly, restorative justice programs must attend to victims’ needs as different victims will have differing needs. Rather than trying to impose a single ideology of what victim-offender mediation should be like, programs should strive for flexibility in response to victims’ wishes. This may mean offering victims both direct and indirect mediation. Indirect mediation is common in Europe; however, North American programs generally do not offer victims this option. While a face-to-face meeting between victims and offenders can be beneficial, it is not a necessary precondition for conflict resolution and reparation. Research shows that many victims are interested in restorative justice programs but do not wish to meet the offender. By offering indirect mediation, programs are responding to the needs of victims of crime.

In addition, where indirect mediation is not possible because the offender does not want to participate, victim support should be provided. The Dutch example of a so-called “positive experience” is an example of how project workers can respond to the needs of victims while maintaining the policy of voluntary participation. Another possibility is victim-offender conciliation where victims meet a group of unassociated offenders. While further research on these programs is needed, they may be useful for victims who are unwilling or unable to meet “their” offenders.

An important concern is the exclusion, or minimization, of the role of crime victims. For example, Morris et al. (1993) reported that victims are not always invited to attend family group conferences. This shows how some programs place victims’ needs far behind other priorities such as diversion, or prevention. Victims’ needs must always be given priority, regardless of the aim of the program.

An important aspect of program organization is when to offer mediation. Clearly, there is no one time that will be good for all victims. Research shows that victims have to be “ready.” This makes program organization particularly challenging, as the organizer cannot know when each victim is ready. Only victims know when they are ready. If victims are provided with information regarding the availability of restorative justice programs in their area, they can contact programs when they are ready. This passive approach may be most suitable for victims of serious crimes. For victims of less serious crimes, a more active approach may be suitable. If, for example, the police include in their report whether or not the victim wants notification and restitution, later, when the case is solved, a mediator could use this information in his or her decision to offer a victim the opportunity to participate in a restorative justice program.

Inherent in this approach is a distinction between serious crimes and less serious crimes. Victims view restorative justice programs as appropriate for property offences. For these crimes, victims generally have no objections to the use of restorative justice programs in lieu of traditional sanctions. For the more serious offences, a different approach is justified. While there is an interest in restorative justice programs among victims of serious offences, they are not viewed as an alternative to the traditional criminal justice process. For these serious crimes, restorative justice programs should not be offered until after sentencing. Restorative justice programs offer the victims of serious crimes the opportunity to come to terms with their victimization. The benefits are largely psychological. As such, participation for both victims and offenders must be completely voluntary. This means that participation should not affect sentencing. Otherwise, this opens the door to the calculating offender who will participate in the program in order to reduce his or her sentence rather than out of a sense of responsibility. Research shows that victims are sensitive to offenders’ sincerity and that a perceived lack of sincerity on the part of the offender can have a negative impact on victims.

The mediator plays a key role in restorative justice programs, regardless of whether mediation is direct or indirect. It is important to victims that the mediator is perceived as neutral. The experiences of victims in restorative justice programs reveal that when the mediator comes across as supportive of the offender, the victim may feel vulnerable, insecure and revictimized. Mediators must receive proper training. They must be made aware of the impact their behaviour can have on victims and how they can avoid revictimizing victims.

Mediators must not think that their job is over after a meeting has taken place between the victim and offender. They have a responsibility to monitor the compliance by offenders. Failure by offenders to meet their end of an agreement is frustrating for victims who feel revictimized. Moreover, there must be some kind of leverage or incentive to prompt offenders to keep their word. In addition to monitoring compliance, mediators should provide follow-up counselling to victims. The experiences of victims in restorative justice programs reveal that meetings can stir up many different emotions in victims such as fear, anger and depression. Mediators have a responsibility to victims to help them cope with these emotions.

Victims are not looking to usurp the power of the courts. While victims want to be included in the traditional criminal justice system, they do not want the burden of having to sanction the offender. Many victims enter mediation programs in an effort to secure restitution. However, if there is any disagreement about the amount of the damages, victims would rather leave it to the courts (Wemmers, 2000; Marshall and Merry, 1990). It is important that victims not be forced to take on responsibilities that they do not want. One way to avoid pressuring victims into participating in restorative justice programs is by offering them choices, including the choice to request restitution and notification within the criminal justice system.

Restorative justice programs cannot replace the traditional criminal justice system. There will always be victims and offenders who choose to have their cases remain in the traditional criminal justice system. While the criminal justice system should offer victims many of the services that are offered in restorative justice programs, such as notification and restitution, it is often only within the context of restorative justice programs that these services are provided (Sherman et al., 1998). The implementation of services for victims in the traditional criminal justice system is problematic in most western countries (Hoegen and Brienen, 2000). In Canada, for example, victims of crime can request restitution within the traditional criminal justice system; however, judges rarely order offenders to pay restitution (Sullivan, 1998). In order to obtain a better understanding of this situation, it appears further research is warranted. Restorative justice programs cannot replace the responsibility of criminal justice authorities to carry out victim policy, as reflected in the Statement of Basic Principles of Justice for Victims of Crime (Federal-Provincial-Territorial Working Group on Victims of Crime, 1988), and to treat victims in the system with dignity and respect.

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