Restorative Justice – Does It Really Work?

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Woman thinking

If you had been physically or sexually assaulted, would you ever consider facing the person who assaulted you to tell them how the incident had impacted upon your life?

Such a situation might seem confronting, but for some it offers a valuable opportunity to gain some recognition from the perpetrator without having to go through the stress of having the matter dealt with in court.

The County Court of Victoria announced last week that it would be piloting a new restorative justice program for adult survivors of sexual abuse. Police, mental health experts and sexual assault services have voiced their support for the new program, but others have raised concerns that the process could further traumatise victims.

What Is Restorative Justice?

Restorative justice is a theory which suggests that some of the harm caused by criminal behaviour can be addressed by bringing together all players to discuss the impact of the conduct. The process aims to eventually reintegrate all persons affected by the offence back into society once the perpetrator accepts responsibility for their actions.

It is an approach which is focussed on redressing injustices, rather than punishing offenders for their actions.

Restorative justice may be used at various stages in the justice system – for instance, it can be used as a means of diverting people, particularly youth, away from courts, as part of a person’s sentence, or after a person is released from prison. Forum sentencing is one restorative justice mechanism that is currently available in New South Wales.

Most restorative justice programs are targeted towards young people. For instance, youth justice conferencing offers the opportunity for young people to meet with those affected by their actions and understand how their behaviour has impacted their victims and the wider community.

These days, more and more Australian jurisdictions are turning to restorative justice as a means of dealing with adult offenders – but the Victorian trial is the first one tailored to sexual assault offences. Previously, Victorian restorative justice guidelines generally excluded sexual offenders.

The Victorian Pilot

The pilot will be facilitated by the South Eastern Centre Against Sexual Assault & Family Violence (SECASA) in partnership with Monash University.

It will offer the opportunity for those affected by sexual assault to meet the perpetrator in a supportive environment to discuss the offence and how it as affected their lives. It is reported that many historical sexual assault victims favour this approach as it is less stressful and confronting than going through the court system. Recent statistics suggest that 8 out of 10 sexual assault victims never report the matter to police, often because they do not want to go through the criminal process.

Restorative justice may help victims to resolve issues with other persons who were not directly connected with the abuse, such as family members who had failed to intervene and stop or report the abuse.

SECASA, which has informally facilitated these types of restorative justice conferences for 20 years, says that its services offer some benefit in 80-90% of cases. Although some victims don’t receive the resolution they are seeking, the Centre says that the program can help them in future treatment or counselling sessions.

Divided Opinions

Despite the Centre’s positive approach, many remain concerned about whether such a programs might do more harm than good.

Some warn that restorative justice programs may end up re-traumatising victims – that facing their perpetrator may overwhelm the victim and result in further psychological harm.

Concerns have also been raised that some facilitators are not properly qualified to deal with situations where a person has been sexually assault. There are further concerns that a power imbalance often exissts between the victim and the perpetrator, which can generate fear and anxiety.

There’s no doubt that these views will be shared by some members of the public, who might believe that perpetrators of sex offences should feel the full force of the law and be locked away for good.

But on the flip side, advocates of the program suggest that they may provide an important alternative to our existing criminal justice system, especially considering that it can be difficult to prove sexual assault cases beyond a reasonable doubt.

There is also evidence to suggest that restorative justice mechanisms can decrease the potential for re-offending by between 15-20% irrespective of gender, age or ethnic background. While these statistics do not explicitly account for sexual offences, they do take into account a broad range of offence categories.

The Victorian program has been allocated funding for a period of two years. It will certainly be interesting to evaluate the impact of the program on perpetrators, victims and others involved in the process.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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