- Legislature should change its focus to the potential offered by restorative practices to address the traumatic impact of sexual harm.
- Victims of sexual violence experience disempowerment and loss of autonomy and restorative justice can honour them back with power and self- dominance.
- Restorative justice is not a panacea and a “one size fits all” solution and this holds particularly true for sexual offences.
Despite significant legal and procedural reforms, the criminal justice system continues to fail to address the needs of victims of sexual violence. The following article, which does not intend to be an exhaustive literature review, explores the characteristics of sexual offences and debates the applicability of Restorative Justice as an alternative avenue to provide justice, recognising both challenges and benefits.
There is a range of crimes that constitute a sexual offence, including rape or sexual assault, crimes against children including child sexual abuse or grooming, and crimes that exploit others for a sexual purpose, whether in person or online. All those crimes cause distress and harm to those victimised, some of which can be lifelong (Jones and Cook, 2008). Those crimes can occur between strangers, acquaintances, current or ex-partners, friends or family members. Anyone — both female and male — can be a victim of a sex crime.
What distinguishes sexual violence from other offending behaviours and highlights its complexity is the intimate nature of the act; it often occurs between people who are acquainted and reinforces socially constructed gendered dynamics. It is widely recognised that the potential for harm exists in relationships where there is an imbalance of power. Sexual harm is no different, potentially resulting in serious psychological and physical trauma and changes in lifestyle and behaviour, while victims report that their lives are distinctively divided into ‘before’ and ‘after’ periods, which indicates how deeply harmful and stigmatising these incidents might become (McGlynn et al., 2020).
A vast majority of sexual crimes indicate women as the primary victims and emphasise the gendered nature of this phenomenon, acknowledging the presence of major gender stereotypes in society, which place women in a discriminatory position (Marganski, 2020). According to McGlynn and Rackley (2017), this occurs due to the different standards society imposes on both genders. Males are often addressed dissimilarly from females regarding sexual violence: the latter are the ones who suffer from stigma, shame, and emotional distress, while the former tend to receive acceptance for their actions and lenient sentences.
A crucial finding suggests that victims struggle with reporting incidents like these, due to fear of further harm and exposure and therefore do not seek legal advice or law enforcement interference (Scurich, 2020). Only a small percentage of sexual offences are reported to the police and only a very low percentage of cases of sexual violence eventually reach the criminal justice system (for example, in cases of intrafamilial violence victims prefer to keep private about the situation). In addition, there are ongoing and persistent concerns about the responses from the criminal justice system regarding sexual offences and, in particular, about the conviction rates (Cook, 2011). Bringing the data together helps us to provide a more coherent picture of sexual harm, demonstrating the demand for services.
The continued failure of the conventional criminal justice system to address the needs of victims who have been sexually harmed poses an extra risk of secondary victimisation. Victims might be remotely harmed by ineffective or non-existing responses, which contribute to the accumulation of harm, making an already traumatic experience further harmful (Scurich, 2020) There is a clear need to identify a different way to undo the injustice and repair the harm. The psychological harms and the invasion of privacy that victims experience cannot be adequately addressed by incarcerating or fining the perpetrators. Furthermore, there is a need for support for victims to help them recover from and overcome potential trauma as a result of a sexual offence.
Thus, instead of separating the parties, keeping them as far away as possible, and removing the possibility of ongoing contact, especially when the perpetrator is known to the victim, the legislature should change its focus to the potential offered by restorative practices to address the traumatic impact of sexual harm, to engage with the relational context in which this harm is placed and eventually to provide ‘emotional restoration’ for crime victims (Strang, 2002).
In this direction, the Victims’ Rights Directive (European Parliament and Council, 2012) establishes minimum standards on the rights, support, and protection of victims of crime. The Directive also recognises violence in close relationships as:
a serious and often hidden social problem which could cause systematic psychological and physical trauma with severe consequences because the offender is a person whom the victim should be able to trust. Victims of violence in close relationships may therefore be in need of special protection measures. Women are affected disproportionately by this type of violence and the situation can be worse if the woman is dependent on the offender economically, socially, or as regards her right to residence (European Parliament and Council, 2012, recital 18).
It also requires that EU countries ensure specialist support services based on an integrated and targeted approach, taking into account the specific needs of victims, the severity of the harm, as well as the relationship between the people involved and their wider social environment. Restorative justice has been acknowledged in the Victims’ Directive as an important way to take into account the interests and needs of the victim and to repair the harm done to the victim as well as to avoid further harm (Lauwaert, 2013).
As stated above, on many occasions, going through the conventional criminal justice system proves to be a form of secondary victimisation, creating additional barriers for victims and a long journey to vindication and validation, if any. The problem of secondary victimisation has been officially identified and acknowledged by the European Union (European Parliament and Council, 2012, recital 53), which has strived through most of its initiatives to secure proceedings ‘in a coordinated and respectful manner’ and pushed towards alternatives. Nonetheless, despite certain progress, victims are still beyond full enjoyment of their rights, with restricted information and minimal support for their inherent needs (European Commission, 2020a, pp. 2--3).
Towards this direction, the Directive and the 2020–2025 EU Strategy on victims’ rights (European Commission, 2020a, p. 3) bring to the table the concept of restorative justice and refute current controversies on it, explicitly recognising its benefits particularly on ‘victim empowerment,’ something that is called into question particularly by incidents of sexual assault. The whole second prong of the strategy has evolved around ‘empowering victims of crime’ and giving them back the chance to regain lost power, using also the paradigm of restorative justice (European Commission, 2020b). Additionally, it is worth mentioning in advance that both the EU Strategy and the Directive do not exclude any type of crime or category of victim from restorative justice practices but rather adopt a crime and victim symmetric approach.
Despite the textual efforts of EU for a more inclusive and generic approach to restorative justice, as in most criminological areas, this systemic approach particularly to sexual offences has justifiably found opponents. Amongst the many obstacles, privatisation of the crime, minimisation of seriousness, fear of re-victimisation and power imbalances dominate denial of the restorative justice approach. Accordingly, restorative justice is perceived as the ‘easy way forward’ for offenders. (Wager, 2013, p. 16; Marsh and Wager, 2015, p. 5.
However, it has been proven that most of these arguments remain unfounded and arise from theoretical scepticism, while they have been amplified through an ‘empirical vacuum’ and without listening to the views of survivors (McGlynn et al., 2012; Wager, 2013, pp. 13--14). Ironically, evidence from Australia, New Zealand and the UK (McGlynn et al., 2012, pp. 5--6; Knowles, 2013, pp. 44--45; Chan et al., 2015, p. 234) proves its positive impact in serious cases and refutes this inexplicable discrimination against sexual violence victims, who stand ineligible to claim the proved benefits of restorative justice (Biffi, 2016, pp. 40--41; Zinsstag, 2017, p. 30). Additionally, we notice that the aforementioned contentions do not differ in substance from the real problems that can emerge through the unsuccessful delivery of the conventional criminal justice system for sexual violence victims. It was in response to these problems that the restorative justice movement, based on victimological research, initially arose for serious crimes like sexual violence, domestic abuse, terrorism and juvenile cases (Biffi, 2016, pp. 23--24).
To this end, restorative justice has unfoundedly been displaced to the ‘shallow end of criminal justice’, offered mostly in less severe crimes (Wood and Suzuki, 2016, p. 166). What adds up to this debate is also the misuse of the Council of Europe Convention (2011) on preventing and combating violence against women and domestic violence (the Istanbul Convention) to keep cases of violence against women away from restorative justice services (Article 48), which is intertwined with the blurred belief of feminist activists that restorative justice moves violence into the private realm and further victimises women (Pali and Madsen, 2011, p. 49). We must admit that the same feeling implicitly derives also from the Directive, which presents restorative justice as a model from which we should be carefully ‘protected and safeguarded.’ While this is of course correct and much needed, it leaves the impression of something ‘weak,’ which is not the case. Contrariwise, the Directive should have been structured around ways for stakeholders to become more ‘empowered’ with restorative justice (Biffi, 2016, p. 14).
While there is a dire need to achieve higher report levels for victims of sexual violence, this is not enough if it comes along with victims remaining powerless, perpetuating a stereotypical idea of weakness. Instead, we should focus on securing a real sense of justice, empowerment and healing for victims, things likely to be elusive in forthcoming from the conventional arena. Based on empirical evidence and victim stories, restorative justice is a more efficient avenue for victims’ justice and healing needs (Keenan and Zinsstag, 2014, p. 94). Many academics have formed solid sets of ‘justice needs’ for victims (Chan et al., 2015, p. 232; Wager, 2013, p. 21). However, our intention is neither to compromise them nor exhaustively scrutinise them but rather briefly overview those needs met for victims of sexual violence through restorative practices.
First of all, victims of sexual violence experience a profound and tragic sense of disempowerment and loss of autonomy and restorative justice can honour them back with power and self-dominance.
First of all, victims of sexual violence experience a profound and tragic sense of disempowerment and loss of autonomy and restorative justice can honour them back with power and self-dominance (Keenan and Zinsstag, 2014, p. 96; Burns and Sinko, 2021, p. 340). We must bear in mind that sexual violence victims might have different needs that go far beyond mere conviction but focus on desires for recognition, vindication and transformation from the status of a victim to that of a survivor (Burns and Sinko, 2021, p. 341; McGlynn and Westmarland, 2019; Keenan and Zinsstag, 2014, p. 100). Restorative justice can be quite successful in this, given the active role of the victim and the chance to raise their voices, to conquer and address all needed points telling the story as it stands for them (Hudson, 2002). A much-needed form of validation comes through the story-telling, while victims have the opportunity simply to take it off their chests and gain answers that might help them to move forward, fill in gaps, feel safer or even get rid of self-blame (Achilles and Zehr, 2000, pp. 89, 91; Wager, 2013, p. 23). Also, the exposure of the offender is accompanied by accountability, which adds up to re-establishing a sense of safety. Most importantly though, restorative justice can facilitate the healing process of the victim, by storytelling, by getting some answers, by receiving support in getting rid of self-blame concerns and most importantly by having a word on what happened (Achilles and Zehr, 2000, p. 92).
Nevertheless, restorative justice is not a panacea and a ‘one size fits all’ solution and this holds particularly true for sexual offences. As described above, sexual violence can take different forms and shapes and it has a whole range of psychological effects. Therefore, it could be meaningful to distinguish between different types of sexual offences being eligible for a restorative justice journey. Furthermore, regardless the type of offence, it is always worth focusing on the individual characteristics of the victims and their coping mechanisms and taking into account which is the right moment after this specific crime has occurred to offer this potential solution. In short, it is indispensable to offer a case-by-case analysis.
No matter what, and as Koss (2010) teases out, ‘restorative practices must be approached cautiously in cases of sexual violence’ and all the more important, those delivering it should stick closely to its principles and values. To safeguard it from multiple pitfalls and especially re-victimisation dangers, the necessary risk assessment stage before any restorative justice meeting or conference must serve as a starting point. We should all secure that only cases which can benefit will take the restorative justice avenue, and this might depend on safety levels, existing power imbalances, admission of facts and potential for accountability. Additionally, of utmost importance is the rigorous preparation of the victim and offender and the particular attention to subtle dynamics of power based on gender, race, social status, etc. Undoubtedly, this is intertwined with the facilitator’s skills and competencies; he/she should be able to evaluate everything in advance, acknowledge and handle the particularities of each crime and prepare the appropriate setting for each case (Keenan and Zinsstag, 2014, p. 97; Zinsstag, 2017, p. 31; Burns and Sinko, 2021, p. 346).
In a nutshell, the evidence supports the role of restorative justice for cases of sexual violence, and definitely more and more empirical studies should uncover the benefits for victims but also offenders. Joanne Nodding is one of the first sexual violence survivors in the UK who decided to confront the man who had raped her. In her case, what really contributed to this meeting was the judge’s comment in court that the offender had ‘ruined this woman’s life’ (Williams, 2011). However, this statement perpetuated the feeling of ‘powerless’ and ‘lost autonomy’ in Joanne’s life. And this was overturned only after the restorative justice meeting.
Sofia Sideridou is a Project Officer, Restorative Justice for All International Institute Youth Ambassador for the Right to Peace for Greece
Sofia Vasileiadou is the Head of the Crime Lab, a privately operated criminal investigation laboratory in Athens
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