Victim-Offender Mediation in Cases of Sexual Violence

This interview was conducted with a mediator in criminal cases from Germany. She has 27 years of professional experience in victim-offender mediation and reflects in this interview on her professional experience with sexual offences. She works in a victim-offender mediation office, where she specialises only in victim-offender mediation cases. 

We respect the interviewee’s wish to remain anonymous in the publication. The editorial team knows her name and has her contact details. The interview was conducted by Kim Magiera.

How often do you deal with cases of sexual violence in your victim-offender mediation practice?

It’s hard to say. In preparation for this interview, I looked at all the files from 2020–2023 that we handled in our victim-offender mediation office and there were 45 cases of sexual violence. Overall, these are rare. However, when I looked through them, I was surprised at how common they were. I would have estimated the number to be significantly lower.

Can you give us some characterisation of the 45 cases? What kinds of cases are they?

Of these cases, very few concern objectively serious cases, if you go by the classification of the Criminal Code, i.e., rape or sexual abuse. Most cases concern objectively lighter offences, although I would like to note that here, too, the subjective consequences can be considerable. What is new and now very common is the dissemination of intimate images of another person via social media.

Can you say something about the gender ratio in these cases?

Actually, they are almost always cases in which the accused are men and the injured parties are women. There are other gender constellations, but they are the absolute exception.

How do these cases get to you and your colleagues in the victim-offender mediation office?

Most of them are assigned by the public prosecutor’s office during the preliminary proceedings or later by the court. There are also cases in which injured parties report themselves, but these are few — although I would like to point out that the percentage of self-reporters seems to be higher in sexual offences, compared to other types of offences.

Can you estimate how many injured parties and accused in cases of sexual violence agree to victim-offender mediation?

No, I can’t give a general answer to that. The case constellations and personalities are very different. Many defendants are not contacted by us at all because the injured parties cannot imagine mediation — in whatever form. Of those who are contacted, a surprisingly large number of the accused are willing to get involved. Often, the threat of criminal proceedings serves as a motivator. In Germany there is the possibility of a reduced sentence or termination of proceedings after participation in victim-offender mediation. These defendants then also rarely have insight into their transgression of boundaries and difficulties in admitting wrongdoing. Of course, it is important to discuss this with the injured party.

Why is it important to discuss that?

I think in cases of sexual violence I approach the work a little more sensitively than usually. In any case, injured parties decide what to do and how quickly. But in cases of sexual violence, it is even more important to me to give the injured parties a sense of control over the mediation process. I also emphasise even more the aspect of voluntariness and that the mediation can be terminated at any time. The injured party should know that they can change their minds.

And transparency is very important to me. The injured parties should be informed about the risks and dangers. That’s what I meant. I report back to them that a conversation with a defendant who is not fully transparent is a threat in that it can hurt again and re-traumatise them. Of course, I assume that the injured parties can make their own decisions, but they should have all the available information to be able to base their decision on it. It is important to me to protect the injured party, but of course this must not be achieved by paternalism.

What options are there for mediation in cases involving a sexual violence?

There is, of course, the possibility of preparing separately for and then conducting a joint dialogue between the injured party and the accused. However, this only takes place in very, very few of these cases. Most of the time, the injured parties want indirect mediation because they cannot imagine being near the accused again. Mostly, we mediators are used by injured parties as a mouthpiece. After one or more detailed conversations with the injured party, we convey their experience, their wishes and what is important to them to the accused. Some injured parties then want us to speak to them about our conversations with the accused; others wish to receive a direct response from the accused in the form of a letter.

We carry out a kind of ‘censorship’ and do not pass on anything that is accusatory or reproachful. If an accused has formulated something like that, we talk to them about it and give them a one-time opportunity to rephrase it. If this is not successful, we cannot pass on the letter to the injured party. But we discuss this openly with them and point out the dangers we see in handing them such letter.

What do injured parties expect from participation in victim-offender mediation?

I think here it is important to distinguish between cases in which the people involved knew each other beforehand and those in which they are strangers. If the people involved don’t know each other, the injured parties are often less affected. The consequences can also be severe, but there is not the same personal dimension. Injured parties can often speak relatively soberly about what has happened and state that the accused has crossed a line. For this, the accused should receive a lesson in the form of financial compensation or a sentence. My experience is quite different in constellations in which the parties involved know each other. In these cases, the feelings of dismay are often much, much greater. Not infrequently, there are distortions in the social environment, certain friends have to be avoided or show themselves to be disloyal. Something breaks down between the people involved, in their social environment, but also within themselves. They lose trust.

What do cases end with?

In the case of strangers, it is often a financial settlement that is intended. In the case of acquaintances, there is often a regulation on how to deal with each other in the future: that the parties involved stay out of each other’s way, that an accused person no longer talks badly about the injured party in the circle of friends or that he sets something right for her rehabilitation. Ultimately, the important thing is that injured parties are satisfied and can come to a conclusion.

What did you notice when you reviewed the 45 cases from the last three years?

I noticed that there is hardly anything typical. The cases are all totally individual due to their constellations and circumstances, as well as the personalities of the involved parties. For example, I remember a case in which a woman was raped by her ex-partner, who was now in a forensic ward. She wanted a letter of admission from him, but it didn’t happen despite preparations and an initial promise. I also remember a case of a young woman who offered her used underwear for sale and was sexually assaulted while handing it over. Here it came to an indirect mediation that helped them both to move on. Another case took place at a concert, in a public space, among strangers. Another case took place on the fringes of a Christmas party at work among colleagues. The cases are really very different. And that’s exactly what the mediation has to be adapted to.

Do you think cases of sexual violence are generally suitable for victim-offender mediation?

That is very difficult to say. I have emphasised how unique the case constellations and personalities of those involved are. The suitability depends on this. I think it’s very important to keep access to victim-offender mediation open. Even if there are only individual conversations between mediators and the injured party, the latter can find this empowering and encouraging because they are listened to empathetically and taken seriously — and because they are allowed to decide. In addition, we can refer them to other agencies, such as victim counselling, even if a mediation does not take place. But I think it is very importa

Kim Magiera is a Mediator in penal matters, a Lecturer at the University of Hamburg and a Researcher at the Ulm University Medical Center. She is the Chair of the EFRJ's Editorial Committee. 
Contact: Kim.Magiera@uniklinik-ulm.de

Published on 14 November 2023.