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10 October 2002 Restorative justice: Emerging viewsStrang, H. and Braithwaite, J. (eds). Restorative Justice and Family Violence Melbourne, Cambridge University Press, 2002 (300 pp). ISBN 0-52152-165-3 (paperback) RRP $39.95. Prevailing views on law and order emphasise longer and longer prison sentences in the belief that more and ‘tougher’ punishment will deter crime. Restorative justice begins from a different premise: the need to make an offender accountable for their actions through confronting the harm they have caused the victim, and by providing the offender with an opportunity to offer recompense for that harm. Restorative justice represents a broad social movement of reformers arguing for change in the way the criminal justice system operates. This movement has expanded greatly over the last decade and claims to be able to provide resolution and remedy to conflicts and injustices in realms as diverse as child abuse, school bullying, workplace negotiations, adult criminal behaviour, the gross violation of human rights, and international conflict.
In reality, many restorative justice programs actually in operation have been introduced in response to young people’s criminal behaviour, and usually in response to more minor offences. In the vast majority of cases, restorative justice is translated into a system of ‘conferencing’, where the offender and the victim meet before a convenor and with other support persons in attendance. An ‘outcome’ is reached that is acceptable to the offender and the victim. The conference replaces the normal court appearance and sentencing process. All states and territories in Australia now have some type of conferencing in place for juveniles, although the criteria and extent of its use varies considerably between jurisdictions. Many supporters of restorative justice see it as a more effective way of dealing with criminal behaviour than the traditional court system. Restorative justice can allow the victim to contribute directly to the process of seeking remedy and justice. The offender is both directly confronted with the effect of his or her crime, and can accept responsibility and offer a resolution to the harm caused by the offence. Restorative justice proponents also argue that the system is at least as effective as current court processes in preventing re-offending, and that it provides a serious alternative to the current sentencing regimes of ‘just deserts’ and deterrence that are trapped in ever escalating cycles of punitiveness. This collection, edited by two active and well-known academic proponents of restorative justice, explores perhaps one of the most contentious areas within the restorative justice movement: the application of restorative justice practices to crimes of family violence. The language used in this discussion is not neutral. Strang and Braithwaite have chosen the term ‘family violence’, which is the way of describing interpersonal violence preferred by Indigenous commentators. Violence within families is not a singular phenomenon. The Indigenous concept has developed as a way of capturing the nature of violence beyond instances of spousal assault (usually called ‘domestic violence’) to include violence between members of extended families. Irrespective of which term is used, the profoundly gendered nature of this violence is widely acknowledged by all concerned in the debate over whether restorative justice is an appropriate response.
Developed from papers presented at a conference convened in 2000 at the Centre for Restorative Justice at the Australian National University, the book provides a good cross section of the diverse political, theoretical, and policy positions in the debate about the applicability of restorative justice to crimes of family violence. Broadly speaking there are those who see restorative justice as an effective way of dealing with family violence, those who are much more cautious about any move away from criminalisation of violent behaviour as unacceptable, to those who discuss the specific needs of Indigenous women who suffer violence at a much higher level than non-Indigenous women. Rather than summarise the work, I prefer to address three questions: Does it work? Why are feminists concerned? And, how will it affect Indigenous women? Does Restorative Justice Work?There have been numerous evaluations of restorative justice programs in New Zealand, Australia, the United Kingdom, Europe, and North America (see Strang 2001, Luke & Lind 2002). The Re-Integrative Shaming Experiments (RISE) evaluation in Canberra found that offenders reported greater procedural justice (defined as being treated fairly and with respect) in conferences than in court; offenders reported higher levels of restorative justice (defined as the opportunity to repair the harm they had caused) in conferences than in court; and offenders’ respect for the police and law was higher in conferences than in court. Victims’ sense of restorative justice was also higher for those who went to conferences rather than to court (Daley & Hayes 2001, p. 5). South Australian research found that conferences received ‘high marks’ by police, coordinators, victims, and offenders on measures of procedural justice, including being treated fairly and with respect, and having a voice in the process. However, there appeared to be limits on offenders’ interests in repairing the harm and on victims’ capacities to see offenders in a positive light (Daley & Hayes 2001, p. 5). Results of evaluations of the effect of restorative justice on recidivism are mixed, although on balance evaluations tend to show either no difference or one favourably inclined towards restorative justice programs. Luke and Lind (2002, pp. 2–3) have summarised the research as follows. In Victoria there was no significant difference in re-offending when compared with a matched probation group. In South Australia and New Zealand both evaluations found lower rates of recidivism when the young person showed remorse and agreed with the conference outcome. The RISE evaluation in Canberra found a range of results for different types of offenders—very little difference for young property offenders, a six per cent increase in recidivism for drink driving adults, and a 38 per cent decrease for young violent offenders. Luke and Lind’s (2002) research in New South Wales found that the young people appearing before youth justice conferences for property and violent crime had a lower re-offending rate than similar young people appearing before the courts. The difference was between 24 and 28 per cent.
In North America results have been mixed, although there are more positive results with violent offenders. Meta-analyses in both Canada and the United States support some reduction in recidivism for restorative justice participants compared to those appearing in conventional courts. European studies tend to a consensus that offending rates are no worse for restorative justice compared to court and there is some evidence of lower re-offending rates for restorative justice participants (Luke & Lind 2002). It seems, then, that evaluation results are generally positive towards restorative justice programs. However, this research has not been specifically concerned with the application of restorative justice to family violence situations. Most evaluations have centred on juvenile offending. Why Are Feminists Concerned?Feminist critiques of restorative justice emphasise a lack of understanding of power relations and of the nature of crimes against women. Feminist arguments have been particularly important for exploring the problems of applying restorative justice practices to domestic violence. This critique starts by asserting that domestic violence is a particular type of crime and that the fundamental priority of any type of intervention must be to ensure the physical protection for victims (usually women and children). In her contribution to this collection, Stubbs argues that an important part of the question of applying restorative justice practices to domestic violence is that the nature of domestic violence is specific. The violence is not a discrete act between two individuals unknown to each other. Rather, the violence may be one of a number of gendered strategies of control including various forms of behaviour and coercive tactics. The violence itself may be part of a patterned cycle of behaviour that includes contrition. Further, social and cultural dimensions give meaning and authorisation to the violence and constrain women’s options in response (p. 45). Responding appropriately to domestic violence is made more complex by women’s relationship with their children, and the fact that women may seek assistance from the criminal justice system, including police, only after a long process of violence. The issue of how gendered power imbalances can be addressed in restorative justice practices is of fundamental concern to feminists. We cannot assume that actors marshalled together for a restorative justice conference will be capable of offering the support victims who are structurally disadvantaged need. Indeed, Stubbs argues that the basic premise of restorative justice—that the harm between victim and offender is to be repaired—may not work for women seeking intervention, support, and protection against violence (p. 51). How Will Restorative Justice Affect Indigenous Women?Chapters by Blagg, Behrendt, and Kelly deal explicitly with the relationship between Indigenous women and restorative justice. A central component of the Indigenous critique of restorative justice has been that Indigenous rights have been ignored, in particular the right to self-determination. The United Nations Draft Declaration on the Rights of Indigenous Peoples affirms the right of Indigenous people to control matters affecting them. Behrendt argues that this is the best place to begin to understand the emerging human rights norms which reflect the aspirations of Indigenous peoples. The Declaration provides the basis for Indigenous people to maintain cultural integrity and exercise jurisdiction over various justice matters, if they so choose.
While Indigenous women have been highly critical of the impact of colonial criminal justice systems on Indigenous communities, the question of whether the vision of justice for restorative advocates and Indigenous women is the same is rarely asked. Kelly argues that discussion of the similarities and differences between restorative and Indigenous justice is underdeveloped, and that there is often either an explicit or implicit assumption that they are one and the same, falling under the umbrella concept of restorative justice. Accounts of restorative justice often observe in passing that some restorative initiatives, such as family group conferencing in New Zealand and circle sentencing in Canada, were derived from Indigenous practices of resolving conflict. Little critical discussion about the nature of the contemporary relationship between the process and Indigenous political aspirations for self-determination, however, typically follows such observations. Nor has there been adequate discussion about how Indigenous women might see community-based responses to family violence fitting within a restorative justice framework. Contributions by Blagg, Behrendt, and Kelly go some way to meeting this challenge. Behrendt and Blagg argue that lack of recognition of cultural difference—specifically, the assumption that Indigenous and restorative justice processes for resolving conflicts are homologous—reflects a failure to understand complexity in Indigenous dispute resolution. Many restorative approaches focus on bringing the parties together to confront and resolve the problem through the use of a neutral mediator. However, as a colleague and I have argued elsewhere, Indigenous peoples use a variety of sanctions, including temporary or permanent exile, withdrawal and separation within the community, and restitution by kin (Zellerer & Cunneen 2001, p. 250). A further assumption is that Indigenous women will experience the restorative process in a similar way to non-Indigenous women. There is ample evidence of the difficulties and disadvantages Indigenous people face in the formal legal process (Cunneen 1997), deriving at least partly from cultural and communicative (verbal and non-verbal) differences. The difficulties faced in the formal legal system may also be experienced in restorative programs, particularly where the dominant players in the process are traditional figures of non-Indigenous authority (such as police, welfare, juvenile justice, etc). Blagg notes that ideas about individual identity and their relationship to concepts such as ‘victim’ and ‘offender’ are profoundly Eurocentric. How one ‘experiences’ these processes and one’s ability to escape from or change these dynamics are circumscribed by a range of cultural, economic, and historical factors. This collection of papers provides an excellent discussion of this range of issues. It is clear that Strang and Braithwaite are strong proponents of restorative justice in a range of contexts, including matters of violence against women. At least, however, the collection provides the space for differing viewpoints to emerge. As such we can see the points of divergence and possible consequences of using restorative justice programs within the specific context of family violence. Despite the arguments over whether restorative justice is appropriate for dealing with matters of family violence, there are also other more fundamental political constraints on the further introduction of restorative justice programs. The most significant of these is the current dominant view among major Australian political parties that a ‘tough’ stand on law and order is electorally popular. The idea of alternatives to traditional forms of punishment (particularly the use of the prison) is widely out of favour. At present the major political parties compete with each other as to who can introduce the longest gaol terms and build the most prisons, rather than engage in debates as to which alternatives to prison may be equally effective and more socially constructive. ReferencesCunneen, C. 1997, ‘Community Conferencing and the Fiction of Indigenous Control’, Australia and New Zealand Journal of Criminology, Vol. 30, No. 3, pp. 292–311. Daly, K., & Hayes, H. 2001, ‘Restorative Justice and Conferencing in Australia’, Trends and Issues, No. 186, Australian Institute of Criminology, Canberra. Luke, G. & Lind, B. 2002, ‘Reducing Juvenile Crime: Conferencing versus Court’, Crime and Justice Bulletin, No. 69, New South Wales Bureau of Crime Statistics and Research. Strang, H. 2001, Restorative Justice Programs in Australia, Report to the Criminology Research Council, Australian Institute of Criminology, Canberra. Zellerer, E. & Cunneen, C. 2001, ‘Restorative Justice, Indigenous Justice and Human Rights’, Bazemore, G. & Schiff, M., eds., Restorative Community Justice: Repairing Harm and Transforming Communities, Anderson Press, Cincinnati. Chris Cunneen is Associate Professor in the Faculty of Law at the University of Sydney, and Director of the Institute of Criminology. |
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