DESCRIPTION: AN ARTICLE ABOUT THE BASICS OF VICTIM-CENTRED JUSTICE AND RESTORATIVE CONFERENCING

There are two common beliefs I encounter about restorative justice:

1. It is an alternative to criminal justice.
2. You have to forgive the people who harmed you.

The first is partially true but warrants further explanation. The second, in any trauma-informed practice, is false. So where did these beliefs come from and why do they prevail? In this explainer, I trace the perspectives that shape restorative practices, advocating for a survivor-victim-centric, trauma-informed approach.

What is Restorative Justice?

Like criminal justice, restorative justice is a means of dealing with wrongdoing. It occurs in the aftermath of harm. So what’s the difference between the two?

The basis of criminal justice is legal; if you break a law, you breach a social contract with the state (that is, the country you reside in or are a national of). Some crimes have victims (say, acts of violence) while some are considered ‘victimless’ (for instance, piracy). Some crimes can even create victims (such as the criminalisation of the LGBTQ community or laws against abortion).

Regardless of the crime’s relationship (or lack thereof) with a ‘victim,’ the criminal justice system is not about survivor-victims–it is largely about the defendant’s relationship with the state. (I say largely because human rights law can be an exception.)

Two Paths to Restorative Justice

People who advocate for restorative justice as an alternative to criminal justice generally arrive at this using one of two distinct paths:

1. The perpetrator-centric approach

This is often based on the following arguments:

• • Prisons often violate human rights.
  • There is little to no evidence to show that the criminal justice system leads to individual or community reform.
  • The criminal justice system is a tool to protect the powerful. It reinforces power imbalances in society. Marginalised groups are disproportionately targeted.
  • Prison systems perpetuate reoffending.

This is a valid perspective. Organisations such as RESTORE by the University of Arizona have been able to track reoffending and perpetrator perspectives; there is evidence that restorative justice mitigates these problems and can promote rehabilitation and accountability measures.

2. The survivor-victim-centric approach

This is often based on the following arguments:

• • The criminal justice system contributes to re-victimisation.
  • Survivor-victims’ physical, emotional, and financial wellbeing and safety is compromised.
  • Legal processes are not trauma-informed. A system that demands ‘perfect victims,’ airtight testimonies, and the burden of proof is inherently inconsiderate of the impact of trauma on memory, narration, and emotion.
  • Survivor-victims, particularly those from marginalised communities, rarely get justice.

While the agency of a survivor-victim is paramount, the needs of individual survivor-victims may vary. Therefore, what is important is to make space for every individual to identify and express their needs.

Why Prioritise a Survivor-victim-centric Approach?

Because a restorative justice model that utilises rehabilitation and reparation processes instead of courtrooms and prison sentences is already largely addressing the concerns surrounding perpetrator wellbeing. The same is not true for survivor-victims.

Any approach that is not trauma-informed or does not take into account the specific needs of the individual can be re-victimising. This is especially true for gendered, racial, or caste-based violence because such violence perpetuates power imbalances.

To put it simply, any justice system that tells survivor-victims what they need or deprives them of their agency can cause harm. Any justice system that puts the moral, ethical, legal, or financial burden on survivor-victims to ensure that perpetrators are identified, rehabilitated, or forgiven, causes harm.

And that is why, the answer is no, you don’t have to forgive those who harmed you. Forgiveness is a personal choice. The perpetrator’s rehabilitation, not the survivor-victim’s enforced forgiveness, is the foundation for restoration.

Addressing Power Imbalances: Mediation versus Conferencing

Why do people believe that restorative justice is about perpetrators and survivor-victims reaching a compromise? Because they’re thinking about restorative mediation, not restorative conferencing.

Mediation is when parties to a conflict meet directly and come to an agreement to cease hostilities, find grounds for restitution, and compromise. It can be undertaken only when all parties are at an equal footing.

But when two parties are at an unequal footing, mediations may reiterate power imbalances. Expecting both survivor-victims and perpetrators to work towards the goal of restitution is unfair. Unfortunately, this is often the case in justice processes: when perpetrators of gendered, racial, or caste-based violence are mandated to apologise, survivor-victims are mandated to accept the apology. It is as if the violence was caused by both to begin with.

A system that does not acknowledge power imbalances cannot provide justice. Part of acknowledging power balances is knowing when mediation is not an appropriate tool. Here, restorative conferencing comes into the picture.

Restorative conferencing can be thought of as a controlled confrontation. The intention is to create a space where survivor-victims can give voice to their harm, receive answers to questions about the violence they faced, influence how their case is conducted, and determine reparations and measures for accountability.

Restorative conferencing is not a tool to establish wrongdoing. It can only be enacted once the perpetrator has admitted to causing harm and has expressed a desire to take accountability for their actions. However, when it is survivor-victim-centric and trauma-informed, it can be a powerful tool for justice.

References

Koss, Mary P. “The RESTORE program of restorative justice for sex crimes: Vision, process, and outcomes.” Journal of Interpersonal Violence 29, no. 9 (2014): 1623-1660.

Wachtel, Ted. “Defining Restorative.” International Institute for Restorative Practices. 2013.

Wenzel, Michael, Tyler G. Okimoto, Norman T. Feather, and Michael J. Platow. “Retributive and Restorative Justice.” Law and human behaviour 32, no. 5 (2008).