The diversity of legislation on gender and sexual diversity throughout the European Union is currently one of the most debated differences among political stances. Despite the advocacy of the EU for LGBT rights, the 27 Member States display a striking variety of legislative advances and developments. At the same time, the LGBT survey conducted by the European Union Agency for Fundamental Rights (2020) reveals that
- members of the LGBT community across Europe are victimised more often than members of the general population;
- under-reporting of hate crimes is widespread; and
- hate crimes cause more harm to the victim than similar, non-bias, crimes.
Hate crimes do not only undermine the individual victim’s dignity and impact negatively but also send a message to those belonging to the wider group: that LGBT persons do not deserve recognition, respect or equality (Godzisz and Viggiani, 2018).
The action-research project LetsGoByTalking explored knowledge and beliefs in relation to restorative justice and hate crimes and, using a victim-centred approach, strategies and experiences of restorative justice in relation to hate crimes.
… LetsGoByTalking aims to enhance the rights of victims of anti-LGBT hate crimes through making restorative measures more frequently acknowledged, known, and implemented.
Restorative processes constitute a range of methodologies, whose characteristics could make them a priority for anti-LGBT hate crimes. However, these measures are seldom recognised as a way of addressing the harm done to the victims of hate crimes, despite the inclusion of the right to access to restorative justice in the Directive 2012/29/EU, the so called ‘Victims’ Rights Directive’ (European Parliament and Council, 2012), which has been transposed into national legislations to varying extents (Jubany et al., 2019).
To respond to the call for the right to restorative justice, LetsGoByTalking: Innovative paths through restorative justice for victims of anti-LGBT hate crimes, funded by the European Commission’s Justice Programme (2014–2020), aims to explore restorative justice strategies for anti-LGBT hate crimes.
Drawing upon their heterogeneous expertise and experiences, a group of universities (University of Barcelona and University of Girona in Spain, University of Brescia in Italy, Avans University in the Netherlands and University of Wroclaw in Poland), LGBT NGOs (Bilitis in Bulgaria and Çavaria in Belgium) and the European Forum of Restorative Justice joined forces to implement this action-research project, coordinated by the University of Barcelona. Through research as well as subsequent workshops and training actions in Belgium, Bulgaria, Italy, the Netherlands, Poland and Spain, LetsGoByTalking aims to enhance the rights of victims of anti-LGBT hate crimes through making restorative measures more frequently acknowledged, known and implemented.
In the present article, we will focus on the initial findings based on the interviews with professionals from restorative justice services and LGBT NGOs in relation to the application of restorative justice to hate crimes, with a particular focus on anti-LGBT hate crimes.
The intersection of restorative justice and hate crimes is an understudied topic, particularly in Europe. To fill that gap and produce evidence on which to build the subsequent actions, the project has conducted a mixed-methods research study across the six countries, including an analysis of the legal framework in relation to LGBT people, hate crimes and restorative justice. A survey collecting the knowledge and experiences of 239 LGBT and civil rights organisations in relation to restorative justice has been conducted, as well as in-depth interviews with 104 professionals from restorative justice services, procedural justice services, public administrations and NGOs. The project’s initial plan also involved interviews with victims of LGBT hate crimes and discrimination. However, due to the COVID-19 pandemic and the difficulty in ensuring safe conditions for online interviews with victims, these interviews have been postponed to 2021. Nevertheless, the victims’ perspective is present in the findings thanks to the participation in the research of NGOs focused on LGBT rights and victim support.
A common pattern is the gap in knowledge and experience between LGBT NGOs and restorative justice practitioners, …
The research has unveiled that, despite the diversity among the participant countries in specific legislation for restorative justice, hate crimes and LGBT rights, there are many commonalities. A common pattern is the gap in knowledge and experience between LGBT NGOs and restorative justice practitioners, which translates into different attitudes towards applying restorative justice within hate crimes.
A lack of knowledge of restorative justice among LGBT NGOs, as important gatekeepers, was revealed as one of the most relevant barriers to the promotion of restorative justice practices for anti-LGBT hate crimes. This oft found ambivalence of LGBT NGOs to using restorative justice for hate crimes can be interpreted as an effect of a common misconception of restorative justice as neutral mediation among equals. One of the objectives of the latter phases of the project will be precisely to address this misconception and showcase the broad range of restorative strategies available, sensitive to the specific vulnerabilities and needs of the victims of hate crimes.
In this regard, the reduction of the offender’s recidivism was highlighted as a key effect of restorative justice, as compared to punitive justice measures.
Restorative justice practitioners, on the other hand, highlighted how restorative processes can give the agency back to victims, who in traditional proceedings tend to have a limited and unsatisfactory role. Instead, through the use of restorative measures, victims may feel heard and understood. In addition to the benefits for the victim, restorative justice practitioners underlined further advantages of using restorative justice, related both to the offender and society as a whole. In this regard, the reduction of the offender’s recidivism was highlighted as a key effect of restorative justice, as compared to punitive justice measures. Another crucial aspect mentioned was the role of community involvement in restorative justice processes as a way to provide a more satisfactory and effective justice, which was also linked to social change. This could be of particular importance in relation to hate crimes.
… there was disagreement among the professionals interviewed on whether restorative justice should be applied to hate crime cases that involve physical attacks.
Nevertheless, there was disagreement among the professionals interviewed on whether restorative justice should be applied to hate crime cases that involve physical attacks. Representatives from LGBT NGOs were apprehensive about the application of restorative justice in these cases, partly based on their aim of protecting the victim, but also based on a common conception that ‘real’ justice can only be achieved through court procedures. Restorative justice practitioners, on the other hand, highlighted that restorative justice measures may be applied in parallel with procedural justice and that the application of restorative justice always needs to be done with a victim-centred approach. In this regard, some practitioners argued that victims of physical hate crimes might be particularly helped by restorative measures.
In countries without sexual orientation, gender identity and expression and sex characteristics (SOGIESC) criteria explicitly mentioned in their legislation, the lack of specific protection means that hate crimes are registered under common categories and as such not visible.
During the interviews across the six countries, no specific restorative justice programmes or protocols were highlighted for anti-LGBT hate crimes. In most countries this absence was extended to hate crimes in general. Nevertheless, general restorative justice programmes still handle hate crimes without the existence of specific protocols or programmes. It should be noted however, in fact, that not all hate crime cases are referred to the services as hate crimes. In countries without sexual orientation, gender identity and expression and sex characteristics (SOGIESC) criteria explicitly mentioned in their legislation, the lack of specific protection means that hate crimes are registered under common categories and as such not visible. But also in countries with SOGIESC criteria, hate crimes are often still not recognised as hate crimes in the justice system. For example, a restorative justice practitioner from Spain explained that cases might be referred to the service as threats or brawls, and only after starting the restorative justice process is the anti-LGBT motivation detected.
This victim-centred approach makes many practitioners feel positive about applying restorative justice to hate crimes.
The inclusion of hate crime cases in general restorative justice programmes is then based on a case-by-case approach used by many services. This approach means that different strategies and methodologies are used for each case based primarily on the needs of the victim. In this regard, one practitioner described their restorative justice processes as ‘handcrafted,’ as a way of expressing how the process needs to be fully adapted to the specificities of each case and particularly to the needs of the victim. This victim-centred approach makes many practitioners feel positive about applying restorative justice to hate crimes. Nevertheless, some necessary requirements when including hate crime victims in restorative justice processes were highlighted, such as the victim’s willingness and preparedness, informed consent, a safe environment, constant supervision and care and detailed attention to the best timing of the intervention. Another important need put forward by some LGBT NGOs was for the restorative justice professionals involved to be trained on LGBT issues.
Regarding methodologies used, the direct encounter, or victim-offender mediation, is still the most frequent technique practised by the professionals interviewed. However, also other methodologies, possibly more suitable for hate crime cases, were highlighted: for instance, restorative justice circles, which include victims, offenders, other interested parties and members of the community (Zehr, 2002). Here different parties with differing roles share a space, with an important collective element, in an atmosphere of safety and support, which might be especially suitable for victims of hate crimes. In this context some practitioners suggested that LGBT NGOs could play an important role in representing the community within the circle.
… a group of youngsters, who had harassed a gay man and painted anti-LGBT hate speech on the building where he lived, removed the paintings as a restorative measure based on the needs of the victim.
In terms of experiences and examples of concrete strategies used for hate crimes cases, the initial research has brought forward some examples of restorative justice practices applied with hate crimes. For example, Polish practitioners described specific cases with tailored measures adapted to the circumstances of the case: for instance, a sentence for an anti-Semitic hate crime included the mandatory viewing of a specific film for a group of football hooligans, whereas an anti-discrimination organisation oversaw the collective cleaning of hate speech and racist symbols graffitied on the walls of a Nigerian restaurant in Warsaw. Similarly, in a case within the juvenile justice system of Catalonia, Spain, a group of youngsters, who had harassed a gay man and painted anti-LGBT hate speech on the building where he lived, removed the paintings as a restorative measure based on the needs of the victim. Another experience highlighted in Spain included a restorative circle with representatives from an association of Roma women victims of hate speech in the comments section of a digital newspaper, as well as two of the offenders who had written the comments. As we have seen, these examples concern mainly non-physical attacks. The next phase of the project, which involves a mapping of specific restorative justice programmes for hate crimes within and beyond the EU, will hopefully reveal further strategies used for the broad spectrum of hate crimes.
… LGBT NGO professionals tend to lack practical experiences and technical knowledge of restorative measures, whilst restorative justice practitioners need more training on the specific needs of victims of anti-LGBT hate crimes.
The LetsGoByTalking consortium has recently concluded the initial research. The data produced with professionals has provided key insights that will be employed to further promote the bridging between professional fields that are particularly distanced as per experiences, knowledge and expectations. Currently, the consortium is conducting a mapping and analysis of restorative justice programmes applied to hate crimes, which will bring forward further examples of good restorative justice strategies in relation to these crimes. Both this phase and the subsequent training phase respond to the different needs of the diverse professionals involved, as the research highlighted that LGBT NGO professionals tend to lack practical experiences and technical knowledge of restorative measures, whilst restorative justice practitioners need more training on the specific needs of victims of anti-LGBT hate crimes.
For further information, please follow the project development on the LetsGoByTalking webpage, where you will also find links to its social media channels for continuous updates.
Malin Roiha and Ignacio Elpidio Domínguez
Researchers, LetsGoByTalking project, Department of Social Anthropology, University of Barcelona
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Godzisz, P. and Viggiani, G. (eds.) (2018). Running through hurdles: obstacles in the access to justice for victims of anti-LGBTI hate crimes. Warsaw: Lambda Warsaw Association.
Jubany, O., Mas, J. and Roiha, M. (2019). From universal rights to individual protection: the application of the Victims’ Directive across Europe. Barcelona: SupportVoC.
Zehr, H. (2002). The little book of restorative justice. New York: Skyhorse Publishing.