Reflections on restorative justice in cases of sexual violence (at work)
by Dr Dieneke T. de Vos
From 5-8 July 2022, the 4th edition of the International Criminal Justice Summer Course, organised by CJPE partnership, took place in Barcelona, Spain. This year’s summer course focused on responses to sexual violence, with three workshops dedicated to probation, prison, and restorative justice, respectively. The workshop on restorative justice, which was facilitated by Kristel Buntinx and Vince Mercer, looked specifically at how to include victims and use restorative justice approaches to respond to sexual violence. These are the reflections of one of the participants, Dr Dieneke T. de Vos.
I will admit that when I started the summer course, I had mixed feelings about restorative justice in cases of sexual violence. As such, on the first day, when our facilitators drew the ‘restorative justice line’ across the room and asked us to reflect in various scenarios where we stood in terms of the application of restorative justice, I stood solidly at the 40-50% mark, heading towards no.
This was probably partly explained by the context in which I work. Having worked on (the prevention of) employee misconduct in a range of settings and organisations, both internationally and in the Netherlands, my encounters with mediation have primarily been in a workplace context. Further, while I have previously worked on sexual violence crimes within (international) criminal justice, in my current role as ethics adviser, I now primarily deal with behaviours that are most often not (or at least not firmly) in the criminal conduct category. And what I was often seeing and hearing in the context of workplace (mis)conduct, was that mediation, often presented as a conflict resolution tool, was either: (1) mandatory; or (2) an alternative to dealing with a formal complaint.
In the US, for instance, many employers include mandatory arbitration or class action waiver clauses in employment contracts. These mandatory arbitration clauses effectively bar employees from taking any formal action through the court system to deal with workplace grievances. Such provisions instead force people to go through (often secret) arbitration procedures to seek some form of recognition for their victimisation. As a result, these provisions have presented a significant barrier to seeking justice and have effectively silenced victims. Further, being forced to go through mandatory arbitration often compounds the trauma of having experienced sexual harassment or assault. Research has also shown that forced arbitration clauses disproportionately impact people who are already marginalised, including women and people of colour.
Until recently, these mandatory arbitration clauses also covered cases of sexual harassment or sexual abuse. However, in March 2022, US President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. While employers may continue to include mandatory arbitration clauses in contracts, the new law means victims of sexual harassment and sexual abuse are no longer prohibited from taking their cases to court despite such provisions. The law was widely welcomed as an important step towards greater access to justice for victims of sexual abuse and harassment.
In addition to the ‘mandatory’ perspective, I have also seen mediation being presented as an alternative to dealing with a formal complaint in the workplace. For instance, in situations where the individuals concerned still need to continue working together or when the behaviour is not considered a ‘fireable’ offence, some would argue that disciplinary complaint procedures are needlessly divisive and that attempting to address conflict through more informal means, such as a mediated conversation, is preferable. For this reason, many workplace grievance policies often ‘strongly encourage’ employees to (only) pursue informal action or specifically require them to first go through informal steps before being allowed to submit a formal complaint.
However, (only) pursuing informal action in cases of sexual harassment may (unintentionally) be perceived as minimising the conduct and the harm that results from the behaviour, would allow offenders to escape more formalised measures of accountability, thus perpetuating the impunity gap for gender-based violence, and risks allowing power imbalances to remain unchallenged. Additionally, like mandatory arbitration clauses, by disregarding victims’ choice about how they wish to pursue a matter or by not providing safe and appropriate options of seeking formal disciplinary action, these approaches can also compound existing trauma.
Finally, most workplace mediation practices focus on the ‘resolution of conflict’ and, in doing so, seek to come to a ‘negotiated agreement’ between parties, whereby often both parties are expected to ‘compromise’ on the terms of this agreement. In my opinion, this is by nature a harmful perspective for cases of sexual harassment. Most importantly, when considering the ordinary understanding of a workplace conflict – i.e., a (strong) disagreement between individuals that occurs in the workplace, in relation to work or between an employer and (an) employee(s) – there is something quite perverse about classifying sexual harassment or abuse as a mere disagreement. It minimises the harm that has occurred and completely disregards the power imbalances and gendered inequalities that underpin the behaviour. Further, classifying sexual harassment as a disagreement, the solution to which is a negotiated compromise between parties, risks assigning (part of) the blame for the existence of this so-called ‘disagreement’ to victims. In this way, there is a real risk that traditional workplace mediation approaches by their nature or set up contribute to secondary victimisation, which we know can be equally or more damaging than the incident itself.
In other words, my hesitation about the use of restorative justice in cases of sexual violence stemmed from the risks I saw that the workplace mediation practices I am familiar with, with their emphasis on the resolution of conflict through finding middle ground, and as a mandatory or alternative option, can be potentially harmful to victims/survivors of sexual harassment and abuse.
The importance of language and terminology
Therefore, one thing I am taking away from this summer course is to be equipped with the right knowledge, language, and terminology to be able to explain why these ‘mandatory’ or ‘alternative’ perspectives on restorative justice can indeed be quite harmful. And, importantly, how and in what way restorative justice can, in fact, provide a meaningful complementary perspective (at least for some victims) including in cases of serious crimes such as sexual assault or rape.
And this is the key word for me: complementary. A restorative process is, as we discussed in our workshop, most often not an alternative to criminal or punitive justice but can be a meaningful addition, especially for victims who may be left with questions that will not otherwise be answered. During the workshops, our facilitators therefore took us on a journey to show us how various restorative practices have been quite successfully employed as a complement to the formal criminal justice process in both the United Kingdom and Belgium in cases of child and adult sexual abuse.
We started our workshops by talking about the importance of getting the language right. In this post, I have so far – quite deliberately – been using the ‘wrong’ terms: our facilitators argued that from a restorative perspective, it is best to talk about ‘harmful sexual behaviour’ rather than ‘sexual violence’. Because this term starts with harm, it essentially means that you already start the restorative conversation simply by using this terminology. And the same goes for using terms such as offender or harmer, rather than perpetrator or abuser.
During our workshops, we talked a lot about risk factors and systemic definers for sexual victimisation, and about how to embed risk and safety assessments within restorative practices. We talked about how restorative processes can create space for an expression of identity; for the creation of narratives; for the articulation of shame and denial; for bringing in not just the behaviour of the individual offender but possibly a larger group such as a family or community who are also affected by the behaviour or may have had a role in (secondary) victimisation. And we talked about humanising the participants in a restorative process and about how to create a safe space for everyone to allow the restorative conversation to happen. In this sense, the restorative practitioner essentially asks not “is it possible” but rather “what do I need to do to make it possible?” It became clear that it is not so much about whether restorative justice can ever work in cases of harmful sexual behaviour, but rather that the point must be that we should consider what would need to be put in place in order to do restorative justice in such cases safely and appropriately.
This meant we inevitably also talked about the difficulties and challenges. As became clear, restorative justice in cases of harmful sexual behaviour (as with other crimes) is never simple and never straightforward. Further, recognising that the criminal justice system itself can be traumatic and can retraumatise victims through its practices, some of these same risks also apply to restorative practices. Therefore, a great part of our workshop dealt with the importance of adopting trauma-aware practices through restorative justice. Meaning that the methods you use and the way in which you approach the work, is done by being aware of the various ways in which people who are traumatised have their life trajectories shaped by the experience and its effects. This is important not only for victims/survivors, but equally for offenders and others who may be involved in a restorative process.
What really strengthened my perspective this week was to see just how much restorative justice practices centre the needs of individuals, including by seeking to give victims a voice about what happens within the restorative process, how it happens and when. As I have written elsewhere, this is particularly important in cases of sexual harassment in the workplace because of what this might mean for a restoration of the power imbalances inherent in such behaviour: “If as a survivor/victim, you are meaningfully engaged in how your case is addressed, including giving you a choice about if and, importantly, how you are engaged in a process, then this can give you a greater sense of autonomy and control. In some ways, it allows you to regain agency and control over a situation in which that control had been taken away from you.” Nonetheless, sufficient attention must still be paid to how the same gender norms and power imbalances that underpin most forms of harmful sexual behaviour can also negatively affect the implementation and outcomes of a restorative process.
As such, during the restorative justice workshop, we talked a lot about voice and validation, and about how the specific methods and practices used can give some victims/survivors that sense of voice and empowerment back. It was also very useful to hear from victims themselves, through a number of videos, about how these restorative and survivor-centred practices helped them on their road to recovery.
Finally, it was empowering to see how much the concept of harm was centred in our discussions during the summer course. Rather than centring the idea of conflict, restorative practices typically centre the harm that was done, what effect this harm has had on people, and what would be needed to repair this harm. By thus centring harm rather than conflict, restorative practices are fundamentally different from typical workplace mediation practices.
Yet, as much as this summer course has giving me new knowledge and new perspectives to take with me in my work, it has also left with me questions.
If we think about the sheer number of people who will suffer some form of harmful sexual behaviour in their lifetime, many of whom will never feel safe enough to disclose this, what about them? What about the people who try to disclose, yet are met with victim blaming in their family, community or from support professionals and decide never to go to the police? What about situations like those I often deal with in my work, where the behaviour is not considered criminal conduct? Or, as Angela Marinari outlines in her work, what about the harm done by ‘enablers’: persons around the victim/survivor who create the social conditions within which sexual violence is allowed to happen, who fail to believe survivors and, in doing so, “increase the victimisation, the isolation and the harm caused to the survivor”?
The possibility of restorative justice in the way it is approached in Belgium and the UK and as was shared with us in our workshop means that it is, in principle, only an option after someone has reported what has happened to them to the police. Yet we know that for many victims/survivors, going to the police is never a realistic or safe option. So what about them?
This summer course has ultimately made me wonder to what extent restorative justice can, perhaps in a different way, contribute to creating greater understanding for victims’ stories in general, can help redress secondary victimisation, and can start to lower the threshold to provide greater safety for people to disclose what has happened to them. In other words, it made me wonder whether restorative justice can contribute to the culture change that is so desperately needed to transition to a culture in which there is acceptance and understanding for victims rather than blame and shame. In this sense, what resonates with me is Angela Marinari’s perspective that perhaps “the true power of restorative justice processes may be in their ability to recognise and redress harm which has been caused but which can never be addressed by the criminal justice system”.
So, while I may have started out this week with mixed feelings and I am leaving it with these new questions, the summer course has strengthened my perspective that the conversation about restorative justice as an additional tool to address and respond to, and ultimately prevent, harmful sexual behaviour, including in the world of work, is only just beginning. And I, for one, am curious to see where this conversation will take us.
Dr Dieneke T. de Vos is an international legal practitioner, adviser and researcher specialised in issues around accountability for sexual and gender-based violence, including sexual harassment in the workplace. She holds a PhD in international criminal law and gender and, before taking up her current role as ethics adviser within the Dutch civil service, she worked for more than 10 years in international contexts in international criminal justice, in academia, and with humanitarian and human rights NGOs. Note: this post was written in a personal capacity.