Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters
Chapter 3: Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault (cont'd)
It is no exaggeration to say that restorative justice represents the single largest innovation to the criminal justice system in the last century. It has been characterized as the latest "wave" of reform in the movement to broaden access to justice, covering "a full panoply of institutions, devices, personnel and procedures … in order to encourage experimentation with a wide range of reforms." In contrast to the justice system’s traditional fixation with the offending behaviour as a crime against the state:
Restorative justice is fundamentally concerned with restoring social relationships, with establishing or re-establishing social equality in relationships – that is, relationships in which each person’s rights to equal dignity, concern and respect are satisfied. As it is concerned with social equality, restorative justice inherently demands one attends to the nature of relationships between individuals, groups and communities."
Restorative justice is marked by a number of inclusive characteristics: an emphasis on the harm done to community relationships; an acknowledgement of the greater role for victims in the process; and a desire to hold the offender accountable, but also to attend to underlying needs of the offender that are seen to be linked to the offending behaviour.
Another feature of the restorative justice process is its re-centring of the conflict resolution process – both literally and philosophically. Hence restorative justice processes typically unfold not in the unfamiliar and majestic surroundings of a courtroom, but in a more familiar setting within the community. Restorative justice is seen to return responsibility for dealing with the crime back to the community, and, by doing this, to give the crime a chance to be seen within a broader communal context.
The impact of colonization on Aboriginal people and the mistreatment of Aboriginal men and women within the Canadian justice system have resulted in a disproportionate incarceration of Aboriginal men and women in federal and provincial penal institutions. Many have spoken out against incarceration as an effective response to social disorder and crime. In this way, restorative justice is attractive for its goal of:
… facilitat[ing] reconciliation and peace rather than retribution and deterrence … The pursuit is for social rather than for strictly legal justice; the focus is on empowerment of those marginalized by the mainstream legal systems; the objective is to contextualize justice; the goal is to return the conflict to its rightful owners.
Moreover, the Canadian justice system has been widely seen as failing the challenge of reflecting important cultural dimensions within its own system. As Robert Fulford has written:
Law expresses culture. A society slowly develops an idea of itself through culture and eventually writes it down as law. If society’s authority reaches across many cultures, it brings all of them under the same legal net. … Ten years ago, complaints (from rights-seeking groups) were usually discussed on their separate merits, but now it’s obvious they are part of a broad pattern.
Four major types of programs are identified with the restorative justice movement: victim-offender reconciliation programs (VORP); community, neighbourhood or youth justice panels; sentencing circles; and family group conferencing or community accountability conferencing.
To date, the literature promoting restorative justice initiatives has not taken gender and diversity into account. As has been pointed out:
Restorative justice is not discussed in the literature within a contextual analysis that recognizes the systemic violence and abuse that women and children live with in this society; nor is there any analysis of the particular dynamics of violence and abuse in relations to other minority and marginalized members of society.
Nor has the evaluation of restorative justice initiatives taken place from a perspective that takes account of women’s entitlements to life, liberty and security expressed in Section 7 of the Charteror of their equality entitlements guaranteed in Section 15.
Within the context of male violence against women in intimate relationships, the success of restorative justice processes must be closely examined. For instance, restorative solutions may fall short of a satisfying resolution for Aboriginal women. It cannot be assumed, for example, that experiences of culture, colonization and violence are homogeneous, just as it cannot be assumed that Aboriginal women who are survivors of intimate violence will define culturally appropriate solutions in the same manner as Aboriginal men or their political leaders.
A number of concerns have surfaced regarding the use of restorative justice initiatives for crimes of violence against women and children. Among them, three stand out as having significant implications for women’s needs for legal information: advice, representation, and non-legal support.
When restorative justice initiatives refer to community, there is an implicit suggestion that there is one big community where people are able and willing to participate in restorative justice processes; that geographic proximity determines the community; and that the smaller the community the more cohesive it will be, and the greater the likelihood it will be able to take on the responsibility for the resolution process.
Upon closer examination, however, it becomes less than clear who the community is. Regardless of their size, communities are far from homogeneous. Community members have different values and patterns of behaviour that are bound up with their social position. The point is that an individual’s experiences, based on religion, race, sex and class, contribute to a particular set of values, and can lead to different expectations of what constitutes a just result.
It cannot be assumed that any community universally condemns male violence against women. Indeed, there is abundant evidence that, in some communities, in ways that are implicit as well as explicit, it is condoned. Without a community acknowledgment – not only of the relational imbalance between a particular abusive man and an abused woman, but also of the systemic factors that permit the continuing acts of male violence against women – a clear expression of denunciation of the abuse of women will not issue from a community-based justice initiative. The structure of restorative processes over-individualizes the conflict between a particular man and woman, and has the effect of obscuring the greater systemic factors at play.
Moreover, it has been observed, for example, that in Aboriginal communities many people are related. Family and kinship impact in a significant way upon a victim if her abusing partner is related to a powerful family or leader. Women and children may, therefore, be silenced, or not be believed when they speak about their abuse. If they do speak out, they are often blamed. As it has been pointed out:
Diverting those who have violated intimate relations of trust raises a number of problems. A wrongful act committed by one in a situation of trust invites greater, not a lesser, penalty than a similar act committed against a stranger. The voice of the victim may be more obscure than it is in the existing system, as there is not a prosecutor to represent her interests, however inadequately.
While there is no legal requirement to participate in a restorative justice process, the potential for a victim to feel pressured to participate can be great. In fact, the dynamics of an abusive relationship can make the victim’s willingness to participate impossible to discern:
… The power imbalances and dynamics of control, which characterize many domestic violence relationships, suggest that, in most instances, the victims of violence do not have the capacity to negotiate freely and fairly with their abusers.
It has also been noted that when communities – particularly those communities that have been so badly served by the Canadian justice system – are given the choice between the existing system and "their own," the pressure to choose the latter will be hard to resist. Those choosing the existing system may be criticized for not supporting "their own," and acting in ways that are not in the best interests of the community.
In most reserve communities, no steps are taken to protect against the possibility that an offender with influence in the community will manipulate the process.
It is not without irony that the proliferation of restorative justice initiatives in the country coincides with increasing efforts on the part of equality-seeking women’s organizations to hold judicial decisionmakers accountable for their discriminatory views. In 1990, Madame Justice Bertha Wilson stated:
The studies show overwhelming evidence that gender-based myths, biases, and stereotypes are deeply embedded in the attitude of many male judges, as well as in the law itself.
The documented cases of gender bias evidenced by the judiciary are too numerous to review within this report. The point is that only the presence of a record has made it possible to hold members of the legal system accountable for expressing inappropriate and discriminatory attitudes towards women. Despite the use of a recording device in some "court" circles, there is no requirement to do so in every case. Many circles make no record of the comments of participants. As such, inappropriate utterances that may indicate a bias against an abused woman, or an equivocal attitude in respect of male violence against women in intimate relationships, cannot easily be challenged beyond the circle. In fact, in some sentencing circles, members are required to sign a confidentiality agreement at the outset of the process, and are therefore precluded from bringing troubling commentaries to the wider community.
It should be noted that none of these critiques is unique to restorative processes. Research into the impact of mediation processes on abused women in Nova Scotia concluded that abused women in mediation and conciliation frequently felt intimidated by their abusive ex-partners. Women reported that their interests were compromised during the process by mediators who demonstrated an inability to detect or handle abuse issues, and by a lack of legal representation. In this latter regard, women reported that mediators sometimes presented confusing or incorrect information to the parties about the law and their legal rights. Notwithstanding that the mediation process was meant to be voluntary, women experienced coercive pressure to participate. In particular, women agreed to mediation because they were told that not to do so would make them appear unco-operative to the judge who would ultimately decide the matter in question. Because of language obstacles and because of a lack of knowledge of Canadian law and rights, immigrant women perceived that they were at a great disadvantage trying to negotiate in the context of conciliation and mediation. As a result, the Nova Scotia researchers recommended that women have access to legal advice before and during any court-connected ADR process, and that culturally appropriate support should be available to all women.
The federal move to promote restorative justice is motivated, in part, by a desire to curb the growth of the correctional population. An equality analysis of the impact on women and children has not, to date, formed part of the analysis.
This motivation to save money through less incarceration will not lead to effective restorative justice initiatives. Money diverted from the prison system should be transferred into the community in order to provide sufficient program support for restorative initiatives. Diversion from the criminal justice system must guard against manipulation by the offender, reflect the seriousness of the offence, hold offenders accountable, keep victims safe, offer and enforce treatment, and monitor compliance.
The informality of the restorative justice process, the lack of a record, the absence of clear representation in the decisionmaking process for those who can speak to systemic issues, the lack of cohesion within the community and the questionable voluntariness for the victim – all these have continually surfaced as concerns in the literature. These concerns challenge expectations that women who are victims of domestic violence or sexual assault are fully accorded the liberty and equality entitlements that are their due under the Charter; that the decisionmakers clearly denounce the behaviour of the abuser and hold him accountable for his behaviour; and that women's physical security is assured.
For these reasons, there has been sustained resistance to the use of restorative justice measures in cases of male violence against women, including domestic violence as well as sexual assault. As researchers interviewing Aboriginal women about the use of alternative processes in cases of intimate violence concluded:
Jail means punishment, and punishment means the possibility that the offender – and the community – will recognize the wrongfulness of the act. The symbolic function of jail as punishment or payback, as public denunciation of the conduct and as a lesson taught to the offender was important to the respondents. … But incarceration means more than punishment. It also provides a period of absolute safety for victims and gives them "time out" to heal.
In a sense, these critiques can be viewed as consequence of the "de-centring" of the criminal justice system without the attendant protections and safeguards recommended by Martin and Mosher. The absence of these safeguards is not surprising.
Need for Legal Representation and Legal Advice
However, restorative justice initiatives continue to proliferate in hundreds of communities across the country. Women who are survivors of abuse and who participate in such processes – sentencing circles, community justice committees, and victim-offender reconciliation processes – require legal advice and, if necessary, legal representation within the circle. This is needed to ensure the victim's participation is voluntary; to ensure the circle is representative of a broad diversity of interests; to protect her rights to privacy; and to ensure that the terms and conditions of any aspect of the process or an agreement that is reached do not violate her rights to liberty, physical security and equality under the Charter. On a basic level, the interests of the victim cannot be assumed to be the same as anyone else sitting within the circle, and her right to independent legal advice must be assured.
Need for Legal Support
Additionally, a range of social and legal supports is required to assist women who have experienced violence. Notably, it is the absence of these supports that has caused even the most ardent supporters of restorative justice to hesitate about recommending its use in cases of intimate violence. These requisite resources and services include:
… the development and operation of adequate public legal education on alternatives; paid administration to operate the alternative approach; support and advocacy workers for women and children who are victims of violence; male batterer counselling programs; in addition to the social worker and addictions counsellors that may already be located in the communities.
It has been noted that one must define or accept a definition of oneself as "battered" or "beaten" or "abused" before one can initiate or effectively participate in a healing or restorative process. Finally, cautions have been raised that volunteers might not possess the appropriate background and training to facilitate these processes. The use of volunteers, and not paid professionals, removes the responsibility of supporting these processes from the government and moves it into the community.
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