RESTORATIVE JUSTICE IN SEXUAL OFFENCES
– Ayushman Gupta183 &
– Yashi Jain184
Since December 2012, thousands of people of all ages, class and caste have protested within India and the world, demanding justice for the 23 year old ‘Nirbhaya’ who lost her life after being brutally assaulted and gang-raped in a running private bus at Delhi. People asked for public hanging and castration for the offenders. In light of this, and other similar rape cases in India, this article questions whether retributive methods, such as death penalty and chemical castration, offers justice to the victim. Exploring the use of restorative justice as an additional remedy to rape victims in India instead of death penalty and castration to stop further victimization of the rape victim and to restore both the criminal and victim, while creating a threat free society without conducting and further violence.
Keywords: Assault, Gang rape and Retributive methods.
“Crime wounds a person, justice must heal!”
Every kind of crime wounds a person, whether it is physically, emotionally or economically. Crime is nothing but causing harm to a person, what ideally should be a system of justice in place is a system that heals this harm. In the present system of India, the retributive model, this scope of “healing” is blatantly ignored and offenders are simply used as instruments for deterrence to others and the feeling that governs our justice system is revenge rather than restructuring.
Instead of focusing on the victim and the loss that has actually been suffered by them and working on to make good the loss to the maximum possible extent, our judicial process stops at the brink of punishing the offender only but whether or not this punishing is providing any substantial relief to the victim or not is not taken into consideration because the crime is considered to be against the state which often ignores the individuality of the offence.
The paper is concerned with exploring an alternative model to retributive justice, with specific focus on offenders of sexual assault and other grievous incidents of sexual violence, such as rape. It is often in these cases that public opinion is inflamed to the point of seeking the most gruesome of retribution (be it the death penalty, castration et cetera) against the offender. While recognizing that such measures are neither in the society’s long term interest nor do they serve as an effective deterrent; and also that any talk about restorative justice may invite a legitimacy crisis for the government and the judiciary, the appropriate model, according to the author, is a mix of restorative and retributive justice.
On the other hand, restorative justice adopts a very practical, yet moral approach, of deliberations giving birth to a value-consensus through which the offenders may have a chance to repent, get sensitized towards the impact their acts have had upon the victims and give themselves a second chance.
To be very pragmatic, in case of rape and extreme acts of sexual offences, forgiveness in the form of a magnanimity, in face of a crime to a victim which might have caused them great misery and trauma, is nearly saintly to expect. The paper focuses on what would be, then, a suitable restorative justice model for dealing with crimes of sexual violence, while balancing the interests of the offender, the victim as well as the long-term goals of the criminal justice system.
RESTORATIVE JUSTICE – PRINCIPLES AND WORKING
The knowledge of the concept, principles and philosophy of restorative justice is important for healing the wounds of the victims. In this chapter, the researcher attempts to review and explore the concept, history, theories and principles of restorative justice from existing literature. The research has done this by discussing the concept of restorative justice.
DEFINING RESTORATIVE JUSTICE
Restorative Justice is a way of dealing with victims and offenders by focusing on settling the conflict arising from crime, resolving the underlying problems that cause it, and thereby healing all those affected.
Three principles of restorative justice –
- Crime is seen as something that causes injuries to victims, offenders and communities. It is in the spirit of humanity that the criminal justice process should seek the healing of breeches, the redressing of imbalances and the restoration of broken relationships.Not only government, but victims, offenders and their communities should be actively involved in the criminal justice process at the earliest point and to the maximum extent possible.
- Not only government, but victims, offenders and their communities should be actively involved in the criminal justice process at the earliest point and to the maximum extent possible.In promoting justice, the government is responsible for preserving order and the community is responsible for establishing peace.185
- In promoting justice, the government is responsible for preserving order and the community is responsible for establishing peace.185
Rev Don Misener has conceptualised “five Rs” that are central to restorative justice which, when considered together, connect the offender with those who have been offended and make the healing of the broken relationships possible to the degree that victims are prepare to forgive . These constitute the cost of restoration to an offender. The five Rs are:
- Facing reality: this is the first step on the road to freedom, and is where the cost of restoration begins.Accepting responsibility: while facing reality acknowledges the truth of a situation; accepting responsibility goes a step further in recognising that a personal response is required.
- Accepting responsibility: while facing reality acknowledges the truth of a situation; accepting responsibility goes a step further in recognising that a personal response is required.Expressing repentance: accepting personal responsibility for the consequences of one’s actions leads to an expression of repentance. This constituted sorrow and sincere regrets for the actions – a realisation that the actions were wrongful and should not have occurred. The usual way in which this is done is by making an apology to the person who has been wronged, and by asking forgiveness from the supernatural being that the offender relates to.
- Expressing repentance: accepting personal responsibility for the consequences of one’s actions leads to an expression of repentance. This constituted sorrow and sincere regrets for the actions – a realisation that the actions were wrongful and should not have occurred. The usual way in which this is done is by making an apology to the person who has been wronged, and by asking forgiveness from the supernatural being that the offender relates to.Knowing reconciliation: are being willing to face the full force of wrongfulness, and refusing to take refuge in excuses or rationalisations make it possible to know reconciliation with the person who has been wronged. While there is no guarantee that the person who has been
- Knowing reconciliation: are being willing to face the full force of wrongfulness, and refusing to take refuge in excuses or rationalisations make it possible to know reconciliation with the person who has been wronged. While there is no guarantee that the person who has been wronged will be willing or able to offer reconciliation, full reconciliation is not possible if the wrongfulness has not been faced186.Making restitution: this is a practical way of facing the consequences of behaviour. It is a way of demonstrating the credibility of the words that were expressed when making an apology and of expressing thankfulness for reconciliation.
- Making restitution: this is a practical way of facing the consequences of behaviour. It is a way of demonstrating the credibility of the words that were expressed when making an apology and of expressing thankfulness for reconciliation.
Restorative justice is a way of dealing with victims and offenders by focusing on the settlements of conflicts arising from crime and resolving the underlying problems that cause it. It is also more widely a way of dealing with crime generally in a rational problem solving way. Central to restorative justice is the recognition of the community, rather than criminal justice agencies, as the prime site of crime control.187
This framework indicates four programming priorities:
- Restoration, with a focus on services to victims whether or not there is an arrest in a particular incident;
- Accountability and creating awareness among offenders of the harmful consequences of their actions for victims and the community;
- Community protection through community-based sanctions and monitoring compliance;
- Competency development, encouraging skills development and positive interaction with others in society188.
The understanding of restorative justice outlined above rests on a number of philosophical principles, the most important of which are:
- Crime is fundamentally about disrespect. Conversely, justice is about respect – respect for the life, property and feelings of others. In experiencing justice, all participants should have a sense of having been shown unconditional acceptance and compassion, and of having had their innate human dignity affirmed189.
Social justice, a state of ‘all rightness’, fairness and equitability in society, cannot be separated from our application of criminal or procedural justice. Substantive justice cannot be presumed to exist simply because procedural justice has been done190.
CONFLICTING VIEWS ON RESTORATIVE JUSTICE
Legal practitioners often perceive restorative justice as not taking seriously the fundamental concerns of a criminal justice system. While restorative justice certainly is a very different lens to the one that is usually used in western criminal courts, it does in fact take the traditional concerns of criminal justice seriously and in fact responds more adequately to them than the traditional theories. Conrad Brunk, for example, lists the following as the fundamental concerns that a system of criminal justice should accomplish:
- It should protect innocent, law abiding citizens by encouraging them to obey the law or deterring them from breaking it, and in so doing maintain a morally acceptable community191.Offenders should receive their just desert. Punishment that is inflicted should fit the crime, and be either more or less than the offenders deserve192.
- Offenders should receive their just desert. Punishment that is inflicted should fit the crime, and be either more or less than the offenders deserve192.It should redress the injustice done by the criminal. Justice requires that a wrong be made right, and it is the wrongdoer who should do this. Punishment should not make the offender a worse person; ideally it should make him/her a better one. This concern has had far less influence in policy and debate than the previous three193.
- It should redress the injustice done by the criminal. Justice requires that a wrong be made right, and it is the wrongdoer who should do this. Punishment should not make the offender a worse person; ideally it should make him/her a better one. This concern has had far less influence in policy and debate than the previous three193.
‘Restorative justice is a soft option that ignores the need for punishment’194
In a society which associates imprisonment with taking crime seriously, restorative justice is likely to be used for less serious crimes than for crimes which normally involve a prison sentence. However, as has been shown above, restorative justice has multiple faces, which can serve most of the traditional goals of punishment, including deterrence and crime reduction, rehabilitation and incapacitation.
When a person is wronged, the anger level is such that they are not ready for restorative justice processes – they want quick relief.
Restorative justice processes also provide a safe place in which to express anger in a constructive way, which the formal justice process generally does not do. This is valuable in itself. Treating victims with dignity and respect is central to restorative justice195.
Restorative justice creates opportunity for the participation of victims and for addressing their needs in ways that would never happen in the usual justice process196. People may also have needs that they are not aware of: participating in a process that restores dignity and respect and gives a sense of ownership are needs that many people may not be able to conceptualise but may feel good about after having experienced them197. This, however, does not mean that some victims may not demand retribution and punishment.
‘Restorative justice is not appropriate for dealing with more serious cases such as rape, murder and domestic violence’
Some feminists are against restorative justice in domestic violence situations in which a serious power imbalance exists between the genders. The argument is that it cannot be presumed that reconciliation with the offender who committed the violence is desirable. Some feminists propose that restorative justice be ‘victim centred’ and allow women to confront the offender in her own words with all the hurt she has suffered198.
Applying restorative justice principles and processes in rape and murder cases does not imply minimising the seriousness and tragedy of such incidents, nor does it suggest that perpetrators should be let off the hook simply because they have apologised. Serious cases present excellent opportunities for victims to feel that they have been heard, and for perpetrators to be confronted with the real consequences of their actions199. Specific steps can also be taken to ensure that victims are not dealt with insensitively, as restorative justice seeks to promote the respect and dignity of all concerned, especially those who have been hurt.
‘Restorative justice overlooks and minimises the seriousness of crime’
The sting in the memory that threatens to poison our entire existence involves trying to understand perpetrators and so have empathy, to try to stand in their shoes, and to appreciate the sort of pressures and influences that might have brought them to do what they did200.
NECESSITY OF VICTIMS’ PARTICIPATION IN THE CRIMINAL JUSTICE PROCESS
According to the wisdom of conventional criminal justice, the just and fair (or the most appropriate) response to a criminal act is best determined by criminal justice professionals (the police, judiciary and prisons)201. According to Barton (2003:48) the main deficiencies of this wisdom are that, no matter how competent the criminal justice professionals might be in their respective professions, they typically do not possess the detailed knowledge and appreciation required for addressing successfully the specific justice and welfare needs of the principal parties (especially the victims) involved in the criminal justice conflict202. This is principally due to the fact that criminal justice professionals and judicial policy makers inevitably operate with bureaucratic and procedural priorities that usually fail to reflect the justice needs of the primary parties involved.
As a result, most often, outcomes and decisions reached by criminal justice agents tend to prove unhelpful, or even counterproductive, for the people who are already in considerable or serious trouble and distress, and who have the most to lose again by the criminal justice response203. In this approach, the parties (victims and offenders) feel no ownership over responses and outcomes that are decided, and are sometimes forced on them by the judicial process. Consequently, even wise and competent decisions by the criminal justice professionals sometimes tend to result in less satisfaction for the parties than the parties would have expected if they were arrived at freely by the parties themselves in negotiation with one another.
So the process of our criminal justice system today disempowers both parties in the conflict and creates a sense of isolation and unnecessary enmity between them, thus exacerbating feelings of helplessness, anger, hatred and fear, which in turn worsen the plight of everyone involved (victims and offenders alike)204.
Recognising this fact earlier in the 60s, Stephen Schafer (1968:31)205 wrote that: „the violator of public order is also an offender against an individual victim. There has been renewed recognition during the past few decades that crime gives rise to legal, moral, ethical and psychic nexus not only between the violator and society, but also between the violator and his victim .
In the same vein, the United Nations General Assembly (1985) in its “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” (Resolution 40/34 of 29th November, 1985)206 calls for the treatment of victims of crime in the criminal justice system, which includes information, restitution, support as well as opportunity to express their views at appropriate stages of the criminal justice process.
So, advocates of restorative justice such as Van Ness and Strong (2002), and Zehr (1990) argue that while in the criminal justice process, the offender is seen as having committed an offence against the state, victims have very limited opportunity to say how they have been affected by crime and the system keeps victims and offenders apart while others speak for them, whereas restorative justice sees the harm done by crime as an offence against the person or organisation, allows victims the opportunity to participate, brings victims and offenders together with an impartial mediator/facilitator to consider from all points of view what has happened and find out what can be done to help put it right207.
It is in view of this argument that Zehr (1990) argues that victims of crime should be given options to determine whether their victimizer should go to prison or not because, according to him, in our current criminal justice system all powers are given over to the state agents:-the police, judges and prison officers. The victims and offenders are left powerless; victims because they are shut out of the justice process right from the beginning, and offenders because they are not offered the opportunity to take the real responsibility for their behaviour and actions208.
Instead, Consedine (1999) claims that the orientation is merely to punish and the twin notions of taking responsibility and making things right are ignored. According to Consedine, the aim of any good law is to build a strong, safe, healthy and just society. Hence, Consedine (1999:11) suggests that „society needs to discover the philosophy that moves from punishment to reconciliation, from vengeance against offenders to healing for victims, from alienation and stigmatisation of offenders to restoration and reformation, from negativity and destructiveness to healing of wounds209.
In support of this argument, Van Ness and Strong (2002) agree that something is wrong with our ideas about criminal justice. They argue that, for one brief moment the victim and the offender confront each other; a situation of which crime is established and one wounds another210. But society seldom deals with the wound. The criminal justice system tries offenders when it catches them, and it sometimes sends them to prison, not for the injury done to the victims, but because they broke the law. So, now we have two wounds, and no healing. The wounds multiply friends and neighbours of the victim, concerned for their own safety; start taking greater precautions is also a wound.
Van Ness and Strong (2002) note that the families of prisoners, unable to deal with the separation and stigma, begin to draw apart. Another wound the victims who are recovering and the prisoners who are being released discover that the community cannot accept them as victims or ex-prisoners, and they conceal that part of themselves more wounds. Van Ness and Strong (2002) argue that we must hold offenders accountable because they have broken the law, but suggest that the offenders can be held responsible in many ways. It is in our best interest to find those ways that heal wounds, not create new ones211.
RESTORATIVE JUSTICE IN SEXUAL OFFENCES
The case for restorative justice as applied to sexual offences is often based on a twin premise – the failings of current punitive responses and the prospect of offering a more viable solution to victims, families and communities affected by sexual offending (Finstad, 1990; Braithwaite & Daly, 1994; Hudson, 2002). 212
Marshall (1995) defines restorative justice as: “…a way of dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems which cause it. It is also, more widely, a way of dealing with crime generally in a rational problem solving way. Central to restorative justice is recognition of the community, rather than criminal justice agencies, as the prime site of crime control…” (1994)213.
Restorative justice seeks to redefine crime, interpreting it not so much as breaking the law, or offending against the state, but as an injury or wrong done to another person or persons. It encourages the victim and the offender to be directly involved in resolving any conflict through dialogue and negotiation.
For many victims, seeing the perpetrator punished for their crime helps to bring closure, enabling them to get on with their lives. For others, the judicial process is not enough. Rather than relief, victims may feel frustrated that they were not able to describe the hurt, stress and anxiety caused by the crime to the one individual who needed to hear it most; the offender. Restorative justice can help in this respect.
It can take the form of a face to face meeting between the victim and the offender, or a group conference involving members of the community, who have been affected by a particular crime. Many victims would prefer not to have to go through the court process and or would like for the offender to be accountable in some way, but not necessarily to be convicted of an offence or imprisoned.214There is both national and international evidence to indicate that restorative justice outcomes are more satisfying for victims than the trial process215,
In restorative justice models, the victim has a voice and participates fully. The criminal process is concerned with addressing harm. This is the primary basis upon which offences are criminalised and action is taken by the criminal law. The authors of the 1983 New Zealand Rape Study216concluded that: Rape is an experience which shakes the foundations of the lives of the victims. For many its effect is a long term one, impairing their capacity for personal relationships, altering their behaviour and values and generating fear.
In terms of harm theory, the interests threatened and which must be addressed revolve around sexual autonomy and sexual choice. Beyond the mechanisms of privacy and personal autonomy lies the fact that sexuality is part of one’s personality. The mode and type of expression of sexuality has, at its core, the need that it should be voluntarily expressed.217 Sexual offending is harmful because it involves what is deeply personal, taking without consent what an individual should be able to choose to share consensually218.
The law has traditionally been poor at recognising the harms associated with humiliation and exploitation, but it can be argued that there is a special wrong involved in sexual offences: a violation that is different from the violation of physical autonomy219.
Restorative process require the victim and offender to meet and reach an agreement, feminists have expressed concern that this is problematic for women who have been the victims of domestic violence or sexual offending – often discussed together and referred to as “gendered harms”.
The primary reason for this concern stems from the view that these are crimes that result from the power imbalance between men (usually the offenders) and women (usually the victims) 220 . Critics are concerned, as they are with the use of mediation for sexual harassment,221 or domestic violence claims,222 that women will not receive a just result when the power dynamic that has lead to the harm is replicated in the restorative justice or conference process223. There are also concerns that harm may result from the less public forum typical of restorative processes, feeling that the private nature of the processes may diminish public perceptions of the seriousness of the offending involved224.
In the view of the said conflicts, it is necessary to understand that more than being a sexual act, rape is a tool for domination and crippling the voice of women, an experience of rape makes the dignity, honour, self respect and the feeling of control leave a woman. In such a situation restorative justice considers that it may be an effective option in cases of rape225, but it is just as important, some would say more so, to attend to concerns about the possibility of coercion and disempowerment in situations in which the victim and offender know each other and may need to have an ongoing relationship.
It is also important to bear in mind that the category of “acquaintance rape” contains a large variety of offending – from rape within a marriage or a long-term relationship, to rape which occurs on a first date, or as part of workplace victimisation. Not all of these rapes may properly be dealt with outside the traditional criminal justice process.
There is the potential for the victim in a sexual assault case to suffer further damage if she is not adequately supported and protected through a restorative justice process and if the convenor or facilitator is not aware of the power dynamics and inequalities that often occur in such cases (particularly where the offender is known to the victim)226. This requires specialist knowledge of the issues that are likely to occur.
If restorative justice is to be offered in cases of sexual offending, there needs to be a commitment to funding and supporting expert providers to ensure that the process does not harm victims by exposing them to well-meaning, but unsafe, practices 227 . Where participants take on responsibility and control for the outcome of a restorative process, the State clearly no longer has a monopoly over decision making, but is potentially confined to providing information and resources.
Given this power shift, concern has been expressed as to who decides whether a case is suitable for restorative justice – some argue that the decision should be “left to victims and offenders by making restorative justice available in any case where they both wish to follow that course”228.
However, where the gravity of crime is extraordinary and the offender is deemed to be dangerous to the community, the wishes of the victim may be over-ridden in view of wider population interest. Ultimately, the interest of the state and the community will override the victim’s needs.
Nevertheless, supporters of death penalty for rape cases may argue on the point of its symbolic value to communicate collective condemn by the society. The problem is that, in a country like India, this form of retribution might result in further and graver crimes towards victim and witness intimidation, therefore further worsening the situation. This problem is accentuated by the fact that, according to the National Crime Record Bureau (2011), nearly 95% of offenders are known to the victim229.
If the death penalty is mandated in ‘standard’ cases, it will become even more unlikely that these women will even be allowed to register their cases against neighbours, relatives, friends, and men who wield immense local power. As such, while bringing in the death penalty might aim to strengthen women’s rights, it might unintentionally result in further violations of these rights.
Moreover, there is no evidence to suggest that the death penalty actually acts as an effective deterrent to rape. Shaming often results in the offender being marginalised by his community and this often leads to further offending. Thus, restorative justice shames the offence, rather than the offender, focusing on reintegration as a way to reduce the likelihood of reoffending.230
It relies on the offender acknowledging responsibility for the crime so the victim and offender roles are clearly established. In a country like India, in many cases, a victim of rape is often found believing herself to be the offender and the blame of the offence if put on the raped girl rather than the rapist, in such a scenario restorative form of justice can play a substantial role. Contrary to civil mediation which is about fact-finding and compromise, in a restorative justice meeting, the victim and the offender meet face to face with a trained facilitator and often other supporters or criminal justice personnel.
Restorative justice can be part of the formal criminal justice process, for example criminal justice process, for example as part of sentencing or punishment. It can take place after conviction, for example while an offender is in prison. Empirical research illustrated high rates of victim satisfaction with restorative justice, showing that the process is considered fair and ‘procedurally just’ by most participants and also that it can reduce reoffending. In a country like India, where more than often, a girl is blamed for being raped and the onus of becoming a victim is put on the victim rather than the offender.
In a society, where being raped is considered to be the end of life for a girl and a hopeless future. In a society where sexual urge or primal desires are not the reason for rape but the ever so instilled system of patriarchy and women exploitation is the reason, there is clearly no way to reduce rapes and change the mentality of the people instead of listening to the victim themselves. The victim should be given a chance to express her helplessness and the victimization, so that the girl in the short skirt can tell the offender and the society that she did not ask for it. Punishment is necessary but what is more necessary is to make the offender realize the gravity of his act, the wrongfulness of his act because as it is rightly said, guilt is the worst punishment one can ever have.