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Abstract

Justice for rape victims has become synonymous with punitive state punishment. Taking rape seriously is equated with increasing convictions and prison sentences and consequently most feminist activism has been focused on reforming the conventional criminal justice system to secure these aims. While important reforms have been made, justice continues to elude many victims. Many feel re-victimized by a system which marginalizes their interests and denies them a voice. Restorative justice offers the potential to secure justice for rape victims, but feminist resistance has resulted in few programmes tackling such crimes. In After the Crime, Susan Miller evidences the positive outcomes of a restorative justice programme tackling serious offences including rape and recommends their development. However, her vision is ultimately limited by her recommendation of only post-conviction restorative processes and the implicit endorsement of the conventional criminal justice system. I argue that feminist strategy and activism must rethink its approach to what constitutes justice for rape victims, going beyond punitive state outcomes to encompass broader notions of justice, including an expansive approach to restorative justice.
Oxford Journal of Legal Studies, (2011), pp. 1–18
doi:10.1093/ojls/gqr025
Feminism, Rape and the Search for
Justice
CLARE McGLYNN*
Abstract—Justice for rape victims has become synonymous with punitive state
punishment. Taking rape seriously is equated with increasing convictions and
prison sentences and consequently most feminist activism has been focused on
reforming the conventional criminal justice system to secure these aims. While
important reforms have been made, justice continues to elude many victims. Many
feel re-victimized by a system which marginalizes their interests and denies them a
voice. Restorative justice offers the potential to secure justice for rape victims, but
feminist resistance has resulted in few programmes tackling such crimes. In After
the Crime, Susan Miller evidences the positive outcomes of a restorative justice
programme tackling serious offences including rape and recommends their
development. However, her vision is ultimately limited by her recommendation
of only post-conviction restorative processes and the implicit endorsement of the
conventional criminal justice system. I argue that feminist strategy and activism
must rethink its approach to what constitutes justice for rape victims, going beyond
punitive state outcomes to encompass broader notions of justice, including an
expansive approach to restorative justice.
Keywords: feminism, justice, rape, sexual violence, restorative justice, punishment
1. Introduction
What constitutes justice for rape victims? Is it seeing the perpetrator convicted
and imprisoned for a significant period of time? Is it being believed and treated
with respect by prosecuting authorities? Is it receiving compensation, from the
offender or the state? Is it having the opportunity to tell one’s story in a
meaningful way, perhaps directly to the offender? The answer, of course, is that
justice for rape victims can take any or all of these forms, as well as many more
possibilities. The problem is that it has come to be so closely associated with
A review of Susan Miller, After the Crime: the Power of Restorative Justice Dialogues Between Victims and Violent
Offenders (New York University Press 2011).
* Professor of Law, Durham Law School, Durham University. Email: clare.mcglynn@durham.ac.uk. I would
like to thank Vanessa Munro, Erika Rackley and Ian Ward for their helpful comments on an earlier draft of this
article.
ß The Author 2011. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
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punitive, carceral punishment that other means of securing justice have been
almost completely obscured. As conviction rates for rape and other sexual
offences are so low, the end result of such a fundamentally limited approach is
that justice eludes most victims of rape and other sexual offences.
In After the Crime, Susan Miller offers another possibility, that of restorative
justice. After providing rich, in-depth narratives which tell the positive stories
of victims and offenders engaging in dialogue, Miller suggests that the potential
for the use of restorative justice in cases of ‘gendered violence’ is ‘vast’.
1
Nonetheless, she continues that it is only post-conviction restorative justice
programmes which can guard against the ‘host of legitimate concerns’ over the
use of restorative justice in such cases.
2
Thus, while Miller provides a necessary anti-dote to the long-held feminist
resistance to the use of restorative justice for gendered violence, in view of the
low conviction rates for such offences, a focus on post-conviction restorative
justice offers a constrained vision of justice benefiting only a small number of
victims. Furthermore, in her endorsement of post-conviction restorative justice
only, Miller enhances the status of the conventional criminal justice system.
This is problematic in light of its current punitive and retributive orientation
and its systemic marginalization of the interests of victims of gendered violence.
In this article, after examining and welcoming Miller’s defence of some forms
of restorative justice, and focussing on rape and other forms of sexual
violence,
3
I will suggest that feminist strategy and activism must rethink its
approach to what constitutes justice for rape victims. It must move beyond a
predominant focus on punitive state outcomes, with its emphasis on convic-
tions and high prison sentences, to encompass broader notions of justice,
including an expansive approach to restorative justice.
2. Victims’ Voices Heard: The Power of Restorative Justice
After the Crime is a powerful defence of post-conviction restorative justice
programmes dealing with serious crimes, including rape and child sexual
abuse. The case is made by means of nine vivid narratives which detail the lives
and experiences of victims and offenders who engaged in dialogue through the
programme ‘Victims’ Voices Heard’ (VVH). VVH is a ‘victim-centred’
programme in the United States which brings victims into face-to-face contact,
post-conviction, with their respective offenders to ‘receive information, to tell
offenders about the consequences of their violence, and to help them regain
control over their lives that was taken from them first by the offender and then
1
Susan Miller, After the Crime: The Power of Restorative Justice Dialogues Between Victims and Violent Offenders
(New York University Press 2011) 198.
2
Miller (n 1) 213.
3
For reasons set out further below, while the literature on restorative justice discusses ‘gendered violence’
generally, I argue that it is more appropriate to focus on its efficacy for specific forms of such violence. My focus
is on rape and other forms of sexual violence.
2 Oxford Journal of Legal Studies
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by the criminal justice system’.
4
It is an intensive programme which has no
impact on criminal justice outcomes, such as prison release, and dialogues are
preceded by months of preparation. As most restorative projects specifically
exclude sexual offences, that VVH includes offences of rape and sexual abuse
within its remit marks it out as distinctive.
5
Of the nine cases examined in After
the Crime, four deal with sexual violence (two stranger rapes and two cases of
child sexual abuse by older family members), one involves domestic violence
(including marital rape and attempted murder), with the remainder being
homicides.
Each of Miller’s accounts is based variously on interviews with the offenders,
victims, family members and facilitators, together with official and personal
documents relating to each case. The stories presented are a skilful blend of
easily accessible narratives, with the complex social and political reality of
victimhood and offending carefully interwoven. These extremely powerful
accounts detail the lives, background, hopes and fears of offenders and victims,
offering a multifaceted picture of crime and its effects. In doing so, Miller
reaches beyond simplistic accounts of victim ‘satisfaction’ with restorative
programmes, towards a deep understanding of the workings (or failings) of the
criminal justice system and the complex, often contradictory, needs and desires
of victims.
Having a voice and being heard were key motivations behind victims’
decisions to engage with the programme, even for those who had been given
the opportunity to participate in their criminal cases.
6
Miller states that
participation in VVH gave victims ‘the very thing that had eluded them in the
criminal justice system: a voice’.
7
Furthermore, victims wanted offenders,
‘visibly and publicly’, to ‘acknowledge the consequences of their actions’, as
well as wishing to ‘give the offenders the emotional baggage they had been
carrying all these years’.
8
Miller reports that the ‘restorative success for victims is crystal clear’ and the
benefits were long-lasting.
9
The whole process, including the many meetings
with the facilitator, letter exchanges and the face to face dialogue, was
‘transformative, empowering and cathartic and brought [the victims] a sense of
peace’.
10
It did not necessarily bring ‘closure’, but ‘facilitated forward
movement’.
11
Victims felt ‘empowerment’ and a restored ‘sense of self-control
4
Miller (n 1) 6.
5
Many such exclusions are the result of feminist resistance to restorative justice. For a discussion of
feminism and restorative justice see: James Ptacek (ed), Restorative Justice and Violence Against Women (OUP
2010) and John Braithwaite and Heather Strang (eds), Restorative Justice and Family Violence (CUP 2002).
6
Miller (n 1) 163, 175.
7
ibid 175.
8
ibid 178–79.
9
ibid 187–88.
10
ibid 164.
11
ibid.
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and autonomy’.
12
Furthermore, Miller suggests that the dialogues gave victims
back their power: the ‘asymmetry of power that was present during the crime
and the case processing was reconfigured’.
13
This was particularly important in
the cases of gendered violence where victims ‘sought empowerment over people
and situations over which they had previously had no power’.
14
Nonetheless,
where the victims and offenders were strangers prior to the offence, the
outcomes ‘were more positive’.
15
In these cases, the victims were also most
likely to receive unconditional support from families and friends. Offenders
who knew their victims did accept responsibility, but ‘their contrition rang a
little hollow’.
16
The victims still emerged from the programme ‘empowered’,
Miller notes, but these sexual offenders continued to minimize and rationalize
their offending.
17
The overall impact on offenders is more difficult to assess, especially as most
remained in prison. Miller reports that offenders felt satisfied that they were
able to make some amends for their crimes and express their remorse. Many
planned to reform when released from prison and some proposed community
action to help others move away from a life of crime. As Miller states, it is only
after prison release that we will know whether offenders’ resolve to reform will
manifest itself, although even a few years after the dialogues, the desire for
change remained strong.
18
To give just one example of the power of the dialogues: Donna survived
being raped in her home by an intruder, Jamal. The impact of this offence on
Donna was long-lasting, including deep feelings of distrust, self-blame and
loathing and a fear of others which effectively made her a prisoner in her own
home. Around 10 years after Jamal was imprisoned, Donna started the VVH
programme and found it transformative. After the process, she concluded that:
‘He no longer controls my life.
19
Furthermore, she felt able to move on,
commenting that: ‘I will not let the rape steal my happiness’.
20
Indeed, from
having been terrified of her attacker, following the dialogue process Donna
reported that she ‘wouldn’t stop him from getting released’.
21
Jamal expressed
his remorse over his offence, apologized, answered Donna’s questions and
12
ibid 166.
13
ibid 178.
14
ibid 179.
15
ibid 167.
16
ibid 171.
17
ibid. While restorative justice is often criticized for minimizing the harm of an offence, it must be
remembered that the traditional criminal justice system is expert at this, via an adversarial process encouraging an
offender to refuse to admit guilt and to diminish any harm. As Kathleen Daly and Sarah Curtis-Fawley point out,
in the restorative process such behaviors are at least aired and challenged in a way that does not happen in the
court room: ‘Restorative Justice for Victims of Sexual Assault’, in Karin Heimer and Candace Kruttschnitt (eds),
Gender and Crime: Patterns of Victimization and Offending (New York University Press 2005) 255.
18
Miller (n 1) 188.
19
ibid 46.
20
ibid 55.
21
ibid 44.
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articulated a clear desire to reform and move away from his previous life and
behaviours when released.
22
Overall, therefore, After the Crime provides four compelling stories detailing
the positive impact of restorative justice dialogues on victims of sexual violence
and one relating to domestic abuse. Miller’s multifaceted methodology and
long-term investment in the research pays dividends and her writing style
creates narratives which are moving and inspiring. Furthermore, not only does
she convey the experiences and expectations of the victims, but she also
manages to open a window into the feelings and perspectives of the offenders,
respecting their humanity, but without ever condoning their actions.
3. Restorative Justice and Sexual Violence: Constraints
and Opportunities
Miller rightly suggests that After the Crime will ‘shed important light’ on
debates over the appropriateness of using restorative justice in cases of
gendered violence.
23
This highly ‘controversial’
24
debate has largely been the
domain of feminist communities where discussion of the possibilities of
restorative justice has been met with ‘deep skepticism’.
25
Critics have
characterized it as a ‘soft option’,
26
warning of the dangers of re-victimization,
of risks to women’s safety and the concern that a turn to restorative justice will
effectively re-privatize sexual violence, thereby reversing the progressive law
and policy reforms of recent decades. These are valid concerns though they are
sometimes based on myths and generalizations about restorative justice and
‘gendered violence’. To be more specific, some feminist resistance appears to
be rooted in assumptions about the comparability of restorative justice with
forms of civil mediation which feminists have rightly critiqued for their
presumption of equality between participants and lack of understanding of the
dynamics of domestic abuse.
27
However, restorative justice significantly differs
from mediation principally due to the fundamental prerequisite of restorative
practices that an offender acknowledges responsibility for the offence.
28
Such
an admission clearly establishes the roles of offender and victim: there is no
fact-finding. Furthermore, many critiques tend to equate restorative justice
with straightforward diversion from the criminal justice system. Over recent
22
ibid 54–55.
23
ibid 179.
24
Julie Stubbs, ‘Restorative Justice, Gendered Violence and Indigenous Women’, in Ptacek (n 5) 105.
25
James Ptacek, ‘Resisting Co-optation Three Feminist Challenges to Antiviolence Work’, in Ptacek
(n 5) 19.
26
As suggested by some victim advocates in Sarah Curtis-Fawley and Kathleen Daly, ‘Gendered Violence and
Restorative Justice The Views of Victim Advocates’ (2005) 11 Violence Against Women 603–38, 624.
27
ibid 607.
28
A commonly cited definition of restorative justice is that given by Tony Marshall: ‘a process whereby all
parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of
the offence and its implications for the future’: Restorative Justice: an Overview (Home Office 1999) 5.
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years, however, practice has demonstrated that there is a vast range and variety
of restorative justice programmes which can operate at any stage of the criminal
justice system, having various impacts on outcomes and punishment, or none
at all; or a process can operate outside of the criminal justice system entirely.
29
It is perhaps revealing that Sarah Curtis-Fawley and Kathleen Daly found in
their interviews with victim advocates that the greatest opposition to restorative
justice was expressed by those who were most unsure of what it was.
30
Nonetheless, notwithstanding myths and misunderstandings, contention
remains due to the lack of empirical evidence clearly establishing the dangers
or value of restorative justice for sexual offending.
31
There are only a handful
of programmes internationally which use restorative techniques in cases of
sexual violence and even fewer evaluations of such projects. After the Crime,
therefore, provides important evidence of the power of restorative justice. It
shows how victims of sexual violence value restorative justice and would
recommend it to others in similar situations.
32
It also responds to concerns
regarding the risks of re-victimization and endangering safety, demonstrating
that restorative justice for sexual violence is viable and can have significant
positive effects. However, while Miller does advocate the use of restorative
justice in cases of serious violence including rape, she only recommends such
schemes post-conviction. This is a considerable limitation on the scope of any
future developments and we need, therefore, to understand in more detail why
she might be making this argument.
Miller distinguishes between what she labels ‘therapeutic’ restorative justice
and ‘diversionary’ programmes.
33
Specifically, VVH is ‘therapeutic’ and
‘designed to help victims with their recovery; it is not designed to affect the
outcome of criminal cases’.
34
Furthermore, therapeutic programmes ‘operate
after offenders have been convicted; their primary goal is to empower and heal
victims’.
35
Miller suggests that it is these specific features which mean that
such schemes can be ‘effective in handling crimes of gendered violence’.
36
In
contrast, diversionary programmes are those in which the restorative element
may determine the outcome of the case, are ‘offender oriented’ and offer an
29
For a discussion, see Mark Umbreit and Marilyn Armour, Restorative Justice Dialogue an Essential Guide
for Research and Practice (Springer 2010).
30
Curtis-Fawley and Daly (n 26) 618. This finding has been confirmed in relation to opinion leaders in New
Zealand: Gitana Proietti-Scifoni and Kathleen Daly, ‘Gendered Violence and Restorative Justice: the Views of
New Zealand Opinion Leaders’ (2011) 14 Contemporary Justice Review 269–90.
31
For an overview of the field, see Mary Koss and Mary Achilles, ‘Restorative Justice Responses to Sexual
Assault’, (2008) VAWnet available at: <http://new.vawnet.org/Assoc_Files_VAWnet/AR_RestorativeJustice.pdf>
accessed 19 September 2011.
32
See also Clare McGlynn, Nicole Westmarland and Nikki Godden, ‘I Just Wanted Him to Hear Me’’:
Sexual Violence and the Possibilities of Restorative Justice’ (2012) 39 Journal of Law and Society forthcoming.
33
Miller (n 1) 12.
34
ibid 6 (original emphasis).
35
ibid 12.
36
ibid 13.
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‘alternative’ outcome in lieu of the conventional criminal justice process.
37
According to Miller, there are a ‘host of legitimate concerns’ with their use for
gendered violence including that they ‘do little to disrupt’ the unequal power
relations between offenders and victims and ‘risk re-victimizing women and
children’.
38
In general, they ‘fail many victims’.
39
Diversionary programmes,
she concludes, are only appropriate for ‘nonviolent property and juvenile
cases’.
40
It can be seen, therefore, that in seeking to defend VVH from the ‘great
controversy’
41
which courts the use of restorative justice for crimes of gendered
violence, Miller emphasizes both the purpose of VVH—recovery and healing—
as well as its stage in the criminal justice system, that is post-conviction.
Specifically, Miller states that the ‘checks and balances’ of VVH, plus the fact
of incarceration, ensure that victims feel safe, empowered, in control and not
vulnerable to re-victimization.
42
It is certainly clear that there is effective
screening and risk assessment in the programme and that preparation is taken
extremely seriously. However, it is not clear why only post-conviction
programmes can deal effectively with these risks. For example, a poorly
managed post-conviction programme, without the ‘checks and balances of
VVH, could run the real risk of re-victimization and endangering safety. And,
on the contrary, a well-managed restorative project operating at different stages
of the criminal justice system could effectively manage and monitor risks. This
would suggest, therefore, that it is not timing—post-conviction—which per se
protects victims, but the exceptional care to risk-assess, prepare and to ensure
that any dangers are minimized.
Indeed, it is just such care that is taken in two projects which use restorative
conferences to tackle sexual crimes at different stages of the criminal justice
system.
43
The Restore programme in the United States, for example, is a
diversionary scheme dealing with acquaintance rape and sexual assault.
44
In
particular, the programme aims to ‘facilitate a victim-centred, community-
driven resolution of selected individual sex crimes that creates and carries out a
37
ibid 198.
38
ibid 213, 13.
39
ibid 198.
40
ibid 161. However, many youth justice programmes do net sexual offences. It is the assumption that youth
processes do not deal with such serious offences which can lead to their under-examination. For an analysis of
this phenomenon in the UK context, see McGlynn and others (n 32).
41
Miller (n 1) 207.
42
ibid 198.
43
There are a wide range of restorative practices, usually involving face to face meetings together with a
facilitator, including victim-offender dialogues, circles of support, sentencing circles and conferencing.
Restorative conferences bring together the victim, offender, their supporters/family members and potentially
other community members or criminal justice personnel. For a discussion of the variety of restorative practices,
see Umbreit and Armour (n 29).
44
See C Quince Hopkins and Mary Koss, ‘Incorporating Feminist Theory and Insights into a Restorative
Justice Response to Sex Offenses’ (2005) 11 Violence Against Women 693–723.
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plan for accountability, healing and public safety’.
45
Being specifically designed
for sexual offences, the programme understands the power dynamics between
victims and offenders and goes to great lengths in its protocols and risk
assessments to protect victim safety and to ensure positive outcomes for all
parties. Mary Koss, who leads the programme, suggests that its operation
demonstrates that ‘carefully reasoned, safe, and respectful alternatives can be
offered for sexual assault if we collaborate, consult and listen to the needs of
our constituencies’.
46
Miller does acknowledge that Restore is ‘victim-centred’
but states simply that it cannot be compared to the post-conviction approach in
VVH, without further explanation.
47
Another similar programme is Project Restore in New Zealand which focuses
on crimes of sexual violence and takes referrals from the court system, as well
as community and self-referrals where there has often been no prior contact
with the investigatory authorities.
48
The Project is a ‘survivor driven organ-
ization’ and aims to provide a ‘sense of justice, support offenders to understand
the impacts of their behaviour and facilitate the development of an action plan
which might include reparation to the victim and therapeutic programmes for
the offender’.
49
A recent evaluation found that the project ‘can provide a sense
of justice in cases of sexual violence’
50
and Shirley Ju
¨
lich, one of the project’s
founders, comments that it offers victims a ‘glimmer of hope’.
51
These projects both show the potential for restorative justice programmes to
meet the needs of many victims: such as control over, and participation in,
their complaint; an early acknowledgment of responsibility; an opportunity to
tell their story and explain the impact of an offence; and the possibility of
vindication. Both are examples of community-driven, victim-led restorative
innovations which offer victims alternatives to the conventional justice system
and, specifically, they tackle only sexual offences. It is this latter feature which
is overlooked by Miller in her advocacy of programmes such as VVH for crimes
of ‘gendered violence’ more generally. In common with much of the sceptical
feminist literature on restorative justice, Miller’s critique largely centres on
circumstances of domestic violence.
52
She rightly highlights many of the
45
Mary Koss, ‘Restorative Justice for Acquaintance Rape and Misdemeanor Sex Crimes’, in Ptacek (n 5)
218–9.
46
ibid 219.
47
Miller (n 1) 209.
48
Shirley Ju
¨
lich and others, Project Restore: An Exploratory Study of Restorative Justice and Sexual Violence
(2010) <http://aut.academia.edu/documents/0121/2233/The_Project_Restore_Report.pdf> accessed 19
September 2011.
49
Ju
¨
lich (n 48) 1. See also Shirley Ju
¨
lich, ‘Restorative Justice and Gendered Violence in New Zealand a
glimmer of hope’, in Ptacek (n 5) 246.
50
Ju
¨
lich (n 48) vi.
51
Ju
¨
lich, in Ptacek (n 5) 251.
52
For a discussion of concerns see Julie Stubbs, ‘Beyond Apology? Domestic Violence and Critical Questions
for Restorative Justice’ (2007) 7 Criminology and Criminal Justice 169–87 and Ruth Busch, ‘Domestic Violence
and Restorative Justice Initiatives: Who Pays if We Get it Wrong?’ in Braithwaite and Strang (n 5). On the
possibilities of restorative justice for domestic violence, see Carolyn Hoyle, ‘Feminism, Victimology and Domestic
Violence’ in Sandra Walklate (ed), Handbook of Victims and Victimology (Willan 2007).
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reservations regarding the use of restorative justice for domestic violence,
principally due to its integration of psychological and physical abuse, the often
lengthy pattern of coercive conduct and the common need for continued
contact. However, too often such fears are assumed to be equally applicable to
other forms of gendered violence.
While women’s experiences of victimization cannot easily be categorized,
there are important variations between domestic violence and many forms of
sexual violence meaning that they can be treated with some degree of
separation.
53
For this reason, the literature is becoming more ‘nuanced’, with
discussion differentiating between different types of gendered violence;
54
an
approach which I endorse. My emphasis, therefore, is on considering the
applicability of restorative justice for specific types of harm, here sexual
violence, whereas Miller stresses the timing of the programme, ie
post-conviction. It is perhaps true that if restorative justice only took place
post-conviction then some of the worries regarding its use in cases of sexual
violence would fall away. However, it is also the case that following such a path
means excluding the vast majority of victims from the potential benefits of
restorative justice. It is well established that very few victims of sexual violence
ever see their attacker convicted of an offence.
55
Therefore, while the
development of post-conviction schemes is to be recommended, we must
look to a more expansive approach to restorative justice if we are to offer justice
to many more victims than is currently the case.
In this light, it is important to examine further Miller’s criticisms of
diversionary restorative justice. As a general comment, Miller appears to
underplay the extensive variety of restorative programmes which is not just
limited to Miller’s dyad of diversionary and therapeutic schemes. There are
many post-conviction restorative schemes which do affect outcomes, such as
sentencing or prison release; and there are programmes which operate entirely
outside of the conventional criminal justice system. Partly due to this sheer
diversity of restorative practices, it is difficult to make definitive claims about
efficacy and victim satisfaction. However, the position does not appear to be as
clear as Miller perhaps suggests. Although Miller cites extensive research by
Umbreit and others as revealing ‘positive outcomes of [restorative justice]
practices across the board’,
56
she concludes that diversionary practices ‘fail
53
This is not to suggest that there is no possibility of restorative justice being used in cases of domestic
violence. Indeed, there are a range of projects nationally and internationally which deploy restorative techniques
and some to apparently good effect: see, for example, Marian Liebmann and Lindy Wootton, Restorative Justice
and Domestic Violence/Abuse (Home Office Crime Reduction Unit for Wales 2010) and Joan Pennell and
Stephanie Francis, ‘Safety Conferencing Toward a Coordinated and Inclusive Response to Safeguarding
Women and Children’ (2005) 11 Violence Against Women 666–92. What I am suggesting is that there are strong
reasons to consider the use of restorative justice separately for domestic violence and sexual violence.
54
As discussed in Stubbs (n 24) 105.
55
Kathleen Daly and Brigitte Bouhours, ‘Rape and Attrition in the Legal Process: A Comparative Analysis
Across Five Countries’ (2010) 39 Crime and Justice 565–650.
56
Miller (n 1) 207.
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many victims’.
57
While it is evident that many victims are not satisfied with
their experiences, Kathleen Daly’s research, to which Miller refers, as well as
finding that victims were indeed those least satisfied with the outcome of family
conferences, went on to report that victims as well as offenders reported high
levels of procedural justice.
58
Daly continued that ‘for victims, meeting
offenders in the conference setting can have beneficial results’ and concluded
that the ‘evidence is mixed’ but that restorative justice is a practice ‘worth
maintaining and perhaps enlarging’.
59
More recent studies have suggested more
widespread victim satisfaction. An evaluation of restorative youth conferencing in
Northern Ireland found high levels of victim satisfaction,
60
as has other UK
research on a range of restorative interventions, including diversion.
61
The picture that emerges, therefore, is complex and variable and one which
has led Lawrence Sherman and Heather Strang to conclude that the ‘evidence
on restorative justice is far more extensive, and positive’ than is the case for
‘many other policies which have been rolled out nationally’.
62
At this juncture,
it may be worth recalling that while we need to learn more about restorative
processes and their impact, we do in fact already know that the conventional
justice system routinely fails victims. The aphorisms ‘second-rape’ and ‘judicial
rape’ were coined exactly to describe the victim trauma and blame-culture
endemic in conventional criminal justice prosecutions of sexual violence.
63
Indeed, it is such a comparison between the conventional system and
restorative processes in relation to sexual offences which Daly examined in later
research from South Australia. The study compared the nature and outcomes
of youth sexual assault cases processed via formal caution, restorative
conference and youth court.
64
It found that although courts can impose
more serious penalties, the findings ‘challenge those who believe that the court
is the place that sends ‘strong messages’ that serious offending is treated
seriously, or that it holds greater potential to vindicate victims than [restorative
justice] conferences’.
65
In particular, while offenders readily deny charges and
attrition rates are extremely high in the conventional system, the restorative
approach ensured a ‘greater degree of disclosure of sex offending and
victimization which can then be addressed in a constructive manner’.
66
57
ibid 198.
58
Kathleen Daly, ‘Restorative Justice the real story’ (2002) 4 Punishment and Society 55–79, 69–71, 69.
59
ibid 71–72.
60
Catriona Campbell and others, Evaluation of the Northern Ireland Youth Conference Service (Northern Ireland
Office 2005).
61
Joanna Shapland and others, Restorative Justice: The Views of Victims and Offenders (Ministry of Justice
Research Series 3/07 2007).
62
Lawrence Sherman and Heather Strang, Restorative Justice: The Evidence (Smith Institute 2007) 4.
63
Lee Madigan and Nancy Gamble, The Second Rape: Society’s Continued Betrayal of the Victim (Macmillan
1991); Sue Lees, ‘Judicial Rape’ (1993) 16 Women’s Studies International Forum 11–36.
64
Kathleen Daly, ‘Restorative Justice and Sexual Assault An Archival Study of Court and Conference
Cases’ (2006) 46 British Journal of Criminology 334–356, 339.
65
ibid 351.
66
Daly (n 64) 352.
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Furthermore, the study showed that the court cases took considerably longer to
finalize, possibly adding to the victim’s ordeal.
67
In essence, Daly suggests that
the results ‘underscore the limits of the formal court process in responding to
sexual violence’ and she suggests that restorative justice critics should take a
‘wider view’ of the potentially adverse impact of formal court processes on
victims.
68
Thus, programmes operating at many stages of the criminal justice
system, including diversion, offer some hope and possibility of meeting victim
needs, and this to a far wider range of victims.
69
This leads to a final point about Miller’s dichotomizing of diversionary and
post-conviction restorative justice, namely the emphasis on the latter being
‘therapeutic’. The concern here is twofold. First, the assumption appears to be
that it is only the post-conviction programmes similar to VVH that contribute
to healing. Yet in all forms of restorative practice, victims express some of the
benefits by using terms such as ‘closure’, or ‘moving forward’, indicating
potential health benefits.
70
Secondly, the emphasis on outcomes being
considered only therapeutic, rather than also as a form of justice, limits both
the conceptualization and ambition of restorative practices.
71
Therapeutic
outcomes and justice are intertwined, with each facilitating the other.
Restorative programmes can contribute to healing and thereby offer a sense
of justice to some victims of sexual violence, regardless of whether the
particular programme operates post-conviction, during the criminal justice
system or outside the system entirely. In those post-conviction cases where
there is no impact on any conventional outcome, such as prison release, it may
be understandable to emphasize victim healing. However, the concern may go
deeper. It may be that what is seen to constitute ‘justice’ is so intimately bound
up with the conventional justice system, and its emphasis on convictions and
punitive punishment, that the assumption is that ‘justice’ is done when the
offender is incarcerated and then only ‘healing’ is left. It is such a
conceptualization of justice, as being rooted in the conventional criminal
justice system, which is considered further below.
67
ibid.
68
ibid 353.
69
There are legitimate concerns regarding the rights of offenders in restorative processes, particularly
questions of compulsion and the validity of outcomes varying depending on victim preferences. For a debate on
these themes, see Chris Cunneen and Carolyn Hoyle, Debating Restorative Justice (Hart 2010). However, from a
victim-perspective restorative justice is generally viewed as ‘offender-friendly’ and it is indeed such concerns
which have fuelled feminist resistance. In moving forward, we must take appropriate account of offenders’ due
process rights, as well as ensuring that our notion of justice also meets the interests of victims.
70
Sherman and Strang (n 62) 8. See also Lawrence Sherman and others, ‘Effects of face-to-face restorative
justice on victims of crime in four randomized controlled trials’ (2005) 1 Journal of Experimental Criminology
367–95 which found positive health benefits in face to face restorative justice processes, which took place at
various stages of the criminal justice system including diversion, for victims.
71
See further the idea of ‘therapeutic jurisprudence’ as discussed in David Wexler, ‘Therapeutic
Jurisprudence and its Application to Criminal Justice Research and Development’ (2010) 7 Irish Probation
Journal 94–107.
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4. Rape Victims and the Search for Justice
The victims who participated in the VVH programme were ‘united in favoring
an initial punitive response, conveying their unqualified support for punish-
ment’.
72
Miller emphasizes that the victims would not have favored a
diversionary program’.
73
Yet, ultimately, these quests for ‘vengeance did not
fulfil them’.
74
Although ‘punishment for the sake of punishment conveyed that
the individual had committed a terrible wrong’, it did not ‘allay victims’
fears’.
75
Miller notes that with the passage of time, the victims punitive
attitudes were tempered; the victims felt ‘hollow’, as though the ‘satisfaction
that they were supposed to feel by participating in the formal criminal justice
system or knowing their defendants were behind bars was not enough’.
76
Healing, she states, eluded the victims whose desires for ‘retribution were
eclipsed, but not completely replaced, by the need to find answers and be
heard’.
77
In this light, Miller supports schemes such as VVH on the basis that
they ‘combine elements of both retributive and restorative justice’.
78
The
retributive element conforms to the idea that ‘most people’ would believe that
‘punishment for offenders of severe violence should communicate ...the
abstract societal message that what they did was wrong’.
79
Healing is achieved
by the VVH programme itself which works ‘in addition to the criminal justice
system rather than in lieu of it’.
80
Miller, and the victims in her study, are not alone in focusing on
state-sanctioned retributive justice as the means by which to gain recognition
of the serious harm of sexual violence. Feminist activism over the past 30 years
has understandably concentrated on securing public acknowledgement that
rape is a serious crime, demanding significant punishment, via the criminal
justice system. This is because, as Barbara Hudson notes, the formal criminal
justice system remains the ‘recognized way of demonstrating that society takes
something seriously.
81
The hope has been that in harnessing the power of the
state to condemn sexual violence, we could work towards its eradication. This
optimism has not, however, borne much fruit. Feminists find ourselves in a
situation in which there has been extensive, often feminist-inspired, law reform,
yet little evidence of any reduction in the prevalence of sexual violence, few
convictions of perpetrators and a system which affords victims little justice.
72
Miller (n 1) 160.
73
ibid (emphasis in original).
74
ibid.
75
ibid.
76
ibid.
77
ibid.
78
ibid.
79
Miller (n 1) 191.
80
ibid 169.
81
Barbara Hudson, ‘Restorative Justice and Gendered Violence Diversion or Effective Justice’ (2002) 42
British Journal of Criminology 616–34, 629.
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Dianne Martin places the blame for this situation on the dominance of
neoliberal punitive attitudes towards crime control over the past two decades.
She suggests that it has been those feminist proposals which strengthen the
criminal justice process that have been adopted by governments desperate to be
seen to be controlling crime and addressing insecurity. In this way, feminist
arguments, and credibility, have been used to bolster state power, not in order
to empower victims, but as a means of exercising control, particularly over
marginalized and vulnerable communities.
82
Kristin Bumiller has vividly
described this development as: ‘how neoliberalism appropriated the feminist
movement against sexual violence’.
83
Bumiller argues that by focussing on the
criminal justice system as the key site for recognizing the harm of sexual
violence, feminists have played into the neoliberal agenda, in particular its
emphasis on individual responsibility and risk-avoidance which reproduces
many myths about rape, such as the prevalence of stranger rape.
84
Sexual
offenders have been stigmatized and characterized as beyond the law-abiding
majority, thereby justifying their punishment but, more significantly, generating
the idea that they are different from ordinary men.
Thus, paradoxically, feminism has helped to shape this ‘politics of penaliza-
tion’, yet there has been little increase in the conviction and incarceration of
sex offenders.
85
In this way, although there have been widespread demands for
improvements in victims’ rights, reforms remain minimal and piecemeal, with
victims’ experiences being ‘displaced by an outcry focused on controlling the
threat of dangerous men’.
86
It has been presumed that punishing offenders is
necessarily beneficial for victims. But this is not necessarily so, particularly in
the case of sexual offences where a much wider challenge to the culture and
attitudes which condone sexual violence is required if victims’ rights and sense
of justice are to be genuinely improved. The end result is a culture where the
‘recognition of harm’ is equated with the ‘length of a prison term’ and
‘criminal justice responses which are not punitive are seen to be unresponsive
to victims’/women’s harms’.
87
It is this culture which produces victims expressed wishes for conventional
punishment, as it is assumed this is the only way to achieve public
condemnation of harm, yet leaves them feeling ‘hollow’. An irony, therefore,
may be that the therapeutic nature of VVH is required because of the failings of
the conventional criminal justice system. Victims’ needs and desires, their
82
Dianne Martin, ‘Retribution Revisited: a Reconsideration of Feminist Criminal Law Reform Strategies’
(1998) 36 Osgoode Hall Law Journal 151–88, 153.
83
Kristin Bumiller, In an Abusive State: How Neoliberalism Appropriated the Feminist Movement Against Sexual
Violence (Duke University Press 2008).
84
Bumiller argues, for example, that provisions such as sex offender notification, reinforce myths about
stranger rape, rather than contribute to safer communities (n 83) 8. See also Emma Bell, Criminal Justice and
Neoliberalism (Palgrave 2011).
85
Bumiller (n 83) 7.
86
ibid 157–58.
87
Martin (n 82) 170.
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varying ideas of justice, have been eclipsed by the seemingly ever-increasing
demands for punitive action. It is when we dig further and ask victims about
their conceptions of justice that we find a more varied and complex picture
which demands a more diverse approach to justice.
In her interviews with victims of domestic and sexual violence, Judith
Herman found that punishment, as traditionally conceived and practised by the
criminal justice system, was not a key priority for victims.
88
The goal most
commonly sought was exposure of the offender as an offender.
89
It was more
important to ‘deprive the perpetrator of undeserved honour and status than to
deprive them of either liberty or fortune’.
90
Furthermore, victims sought
validation from the community, by ‘denunciation of the crime’, which
‘transferred the burden of disgrace to the offender.
91
In this way, while
acknowledgement from the offender was important, validation from ‘bystand-
ers’ was of ‘equal or greater importance’.
92
For these reasons, Herman found
that victims’ needs and wishes are often diametrically opposed to the
requirements of formal legal proceedings.
93
In a similar vein, Ju
¨
lich found that a common theme arising from survivors
of historic child sexual abuse was the desire to tell their story in a way that was
meaningful for them and in a safe environment.
94
They were critical of the
criminal justice system for ‘denying them a voice’ and were pessimistic that
restorative programmes which might be staffed by the same people responsible
for conventional criminal justice provision would engender any significant
change.
95
These findings are echoed in two recent reviews of the experiences of rape
victims in England and Wales. Sara Payne concluded that we need a
‘redefinition’ of what constitutes justice which is ‘not just punishing a
perpetrator and preventing further crimes’.
96
The subsequent Stern Review
concluded that ‘support and care for victims should be a higher priority’ and
that a broader approach to measuring ‘success’ and outcomes than just a focus
on convictions needs to be developed.
97
Furthermore, that while a conviction is
88
Judith Herman, ‘Justice from the Victim’s Perspective’ (2005) 11 Violence Against Women 571–602, 589.
This finding is replicated in other studies, for example: Ruth Lewis and others, ‘Protection, Prevention,
Rehabilitation or Justice? Women’s use of the Law to Challenge Domestic Violence’ (2000) 7 International
Review of Victimology 179; Heather Strang, Repair or Revenge? Victims and Restorative Justice (OUP 2002).
89
Herman (n 88) 593.
90
ibid.
91
ibid 585.
92
ibid.
93
Herman (n 88) 574.
94
Shirley Ju
¨
lich, ‘Views of justice among survivors of historical child sexual abuse implications for
restorative justice in New Zealand’ (2006) 10 Theoretical Criminology 125–38, 131.
95
ibid 131, 134–35.
96
Sara Payne, Redefining Justice: Addressing the Individual Needs of Victims and Witnesses (Ministry of Justice
2009) 11.
97
Baroness Stern, The Stern Review An Independent Review into how Rape Complaints are Handled by Public
Authorities in England and Wales (Home Office 2010) 11.
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a ‘very worthwhile outcome’, victims wanted more, such as to be ‘treated well’
and they ‘wanted to know that their experience had been understood and its
effects acknowledged’.
98
In essence, Stern concluded, what victims want are
processes which ‘honour the experience’.
99
Importantly, honouring the experience does not mean giving up on justice,
or punishment, or vindication.
100
For example, this approach echoes the
findings of Liz Kelly et al who have stressed the importance for victims of
‘procedural justice’, even where substantive justice is not forthcoming.
101
Miller also found that victims value procedural justice with many feeling that
the preparation process of VVH had been beneficial, with one stating that the
dialogue itself was just the ‘icing on the cake’.
102
Therefore, even without a
conviction and conventional punishment, procedural justice can embed a sense
of fairness, of justice. But, in addition, we can find other ways of securing
substantive justice, an outcome which is not necessarily tied to the conven-
tional justice system’s demand for a conviction and punitive punishment.
Restorative justice is one means by which this can be achieved. It requires the
offender to have admitted responsibility, thereby giving some measure of
vindication to the victim. It also offers a form of offender accountability by
demanding they explain their actions and listen to the harm they have caused.
It may be valuable to bear in mind here that restorative justice is an
‘alternative punishment’ not an ‘alternative to punishment’.
103
For these and
many other reasons, Barbara Hudson notes that while feminists both for and
against restorative justice all agree that offences of sexual violence warrant
a significant response, her argument is that restorative justice could carry out
the ‘traditional functions of criminal justice—retribution, rehabilitation/
reintegration, individual and public protection—better than formal justice
does’.
104
In other words, it may offer more effective justice.
105
Restorative
98
Stern (n 97) 46. Further, as Wendy Larcombe contends, a focus on conviction rates can work against
feminist aims of rape law which include more ‘qualitative and victim-centred outcomes: Wendy Larcombe,
‘Falling Rape Conviction Rates: (Some) Feminist Aims and Measures for Rape Law’ (2011) 19 Feminist Legal
Studies 27–45, 29.
99
Stern (n 97) 9, 101–02.
100
Dorothy Vaandering makes the argument that ‘[j]ustice is honouring the worth of the other’: (2011) 14
Contemporary Justice Review 307–28, 324.
101
L Kelly and others, A Gap or a Chasm? Attrition in Reported Rape Cases (Home Office 2005) 87–89.
102
Miller (n 1) 172.
103
Anthony Duff, ‘Alternatives to Punishment and Alternative Punishments’, in W Cragg (ed) Retributivism
and its Critics (Steiner 1992) 44. See also Bronwyn Naylor who proposes an ‘alternative restorative pathway’ for
cases of adult sexual assault, aspiring to ‘symbolic and practical justice’ as well as ensuring censure and
punishment: ‘Effective Justice for Victims of Sexual Assault: Taking up the Debate on Alternative Pathways’
(2010) 33 UNSW Law Journal 662–84.
104
Barbara Hudson ‘Restorative Justice and Gendered Violence Diversion or Effective Justice’ (2002) 42
British Journal of Criminology 616–34, 626.
105
ibid (emphasis in original).
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justice, therefore, offers important possibilities and feminists must help to shape
its further development.
106
There are also a myriad of projects which seek to challenge and reduce
violence against women by means of various community based activities;
determined to resist co-option by the state.
107
These are very clearly
‘alternatives’ to the criminal justice system, many resolutely refusing any
involvement by state bodies or finances.
108
Others similarly recommend a shift
of focus from criminal justice, this time towards civil justice, with Ilene
Seidman and Susan Vickers advocating greater use of the civil law, especially in
meeting the most immediate post-offence needs of victims.
109
Kathleen Daly
and Brigitte Bouhours imagine a ‘changed societal context’ in which ‘sex
offenders’ are less stigmatized and demonized’ and rather than ‘negative and
punitive legal mechanisms’, more ‘socially inclusive and integrative approaches’
would be deployed.
110
Part of this landscape would be ‘mechanisms that
encourage admissions by offenders (only those who are factually guilty, of
course) at a very early stage’, revealing greater levels of sexual offending and
according some vindication to victims.
111
The furore surrounding a recent
policy proposal in England and Wales, which followed Daly and Bouhours’
recommendation to encourage early admissions, demonstrates just how difficult
it is going to be to secure such changes.
An increased sentencing discount was to be offered for an early guilty
plea.
112
To justify the proposal, the Government offered the example of rape
victims as those who may benefit by being saved the trauma of giving evidence
at trial. This suggestion was greeted by one front page headline declaring that
the Government was ‘Soft on Rapists’.
113
Almost the entire debate proceeded
106
Also, greater consideration must be given to the potentially gendered nature of restorative processes more
generally, an area which is largely overlooked. For thoughtful interventions on this theme, see Kimberly Cook,
‘Doing Difference and Accountability in Restorative Justice Conferences’ (2006) 10 Theoretical Criminology
107–24; Fidelma Ashe, ‘From Paramilitaries to Peacemakers: the Gender Dynamics of Community-based
Restorative Justice in Northern Ireland’ (2009) 11 British Journal of Politics and International Relations 298–13;
and Gilly Sharpe and Loraine Gelsthorpe, ‘Engendering the Agenda: Girls, Young Women and Youth Justice’
(2009) 9 Youth Justice: An International Journal 195–208.
107
For a discussion, see Mimi Kim, ‘Alternative Interventions to Intimate Violence: Defining Political and
Pragmatic Challenges’, in Ptacek (n 5) 193–217.
108
As considered in Andrea Smith, ‘Beyond Restorative Justice: Radical Organizing Against Violence’, in
Ptacek (n 5) 255–78.
109
Ilene Seidman and Susan Vickers, ‘The Second Wave: An Agenda for the Next Thirty Years of Rape Law
Reform’ (2005) 18 Suffolk University Law Review 467–91. Similarly, Nikki Godden suggests that greater use
could be made of tort law claims based on rape: Nikki Godden, ‘Claims in Tort for Rape: A Valuable Remedy or
Damaging Strategy?’ (2011) 22 Kings Law Journal 157–82.
110
Daly and Bouhours (n 55) 623. On sexual offenders and the value of restorative justice, see Anne-Marie
McAlinden, The Shaming of Sexual Offenders Risk, Retribution and Reintegration (Hart 2007).
111
Daly and Bouhours (n 55) 623.
112
As reported in: Robert Winnett and Christopher Hope, ‘50pc ‘discount’ in jail term for rapists who enter
early guilty plea’, The Telegraph, 18 May 2011.
113
Daily Mail, 19 May 2011.
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on the basis that lower prison sentences constituted a travesty of justice.
114
But
this was only one approach. The expressed views of many victims, for
acknowledgement of the offending, for vindication, for a voice, were drowned
out. Indeed, while one victim’s objections to the policy were extensively
reported in the media, when she later changed her mind on learning more of
the actual detail of the policy, her views were conspicuously absent in
subsequent reports.
115
In the light of the barrage of public criticism, including
from the opposition Labour party and many feminist organizations, the policy
was dropped.
116
This is just one further example of feminist rhetoric about the
harm of rape being deployed to shore up a punitive approach to punishment
and incarceration. Rape was used as a political football and the expressed
needs of some victims were lost in a storm of punitive-correctness. What this
example also demonstrates is the depth of the challenge to re-orientate and
re-imagine our justice system as one which secures justice for rape victims.
5. Conclusions
Considerable strategic energy has been directed at the conventional criminal
justice system in the hope that it will denounce sexual violence and assist in
fulfilling feminist ambitions to eradicate violence against women. We have
arrived at a situation, however, in which the investment by feminists has not
been repaid. Victims see little justice in the current system which, in its
neoliberal manifestation, may in fact have contributed to the culture in
which sexual violence is endemic. The idea that increased punitiveness and
punishment would secure feminist aims has indeed been the ‘ultimate false
promise’.
117
In After the Crime, Miller is critical of the criminal justice system
and recommends many improvements. However, while reform is essential and
urgent, by advocating only those restorative justice programmes which operate
as an addition to the conventional justice system, she suggests a rather static
conceptualization of the criminal justice system. Restorative justice is to be
practised only when the formal system has run its course; rather than envisaging
restorative justice as being part of a movement to transform the system itself.
It may well be that Miller has taken a strategic decision to advocate
post-conviction restorative justice as a first step towards securing greater justice
for victims, even if a defence of the conventional system is a by-product of that
114
With exceptions: see Editorial, ‘Ken Clark’s Prison Plans are Broadly Right’, The Observer, 22 May 2011;
Clare McGlynn, ‘Ken Clarke was Right to Start a Debate on Sentencing in Rape Cases’ The Guardian, 19 May
2011 <http://www.guardian.co.uk/law/2011/may/19/ken-clarke-debate-sentencing-rape> accessed 19 September
2011.
115
Ben Chu, ‘How the right-wing press lost interest in Gabrielle Brown’, The Independent, 8 June
2011 <http://blogs.independent.co.uk/2011/06/08/how-the-right-wing-press-lost-interest-in-gabrielle-browne/>
accessed 19 September 2011.
116
Patrick Wintour, ‘Kenneth Clarke drops shorter jail terms for rapists after tussle with Cameron’ The
Guardian, 8 June 2011.
117
Martin (n 82) 184.
Feminism, Rape and the Search for Justice 17
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strategic judgement. She may also be cautious of any challenge to the due
process rights of defendants. However, in focussing her recommendations on
only certain restorative practices, and by her implicit endorsement of the
current justice system, Miller’s vision of justice is constrained. There is also a
danger that it largely reinforces, rather than challenges, assumptions about
what constitutes justice and what we expect from our criminal justice system.
In doing so, it offers little to the vast majority of victims of sexual violence.
We must move forward by listening to the diverse voices of rape victims and
recognizing their specific and individual needs. This means ensuring that
victim-led justice is no longer synonymous with increasingly punitive attitudes
or a predominant focus on convictions and imprisonment. Feminist activism
and strategy, therefore, must rethink its approach to what constitutes justice for
rape victims, going beyond punitive state outcomes to encompass broader
notions of justice, including an expansive approach to restorative justice.
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... Globally, while there is research on the failure of the criminal justice system for survivors of sexual violence (see McGlynn, 2011), there is less research that explores failings in due process in institutions such as HEIs, or on why survivors may bypass due process (for an exception, see McCaskill, 2014). Although academia is not intuitively recognized as a site of violence, nor does it recognize itself as an agent of oppression, statistics demonstrate HEIs are key sites of violence (see Krebs et al., 2007). ...
... Within a few days I had to go to a psychiatrist who increased my medication which [has gone] on for months. (Priya, Kolkata) Although some scholars (Chadha, 2017) argue that the ideal way to address sexual harassment is through institutional mechanisms that would guarantee all women equal access, others (McGlynn, 2011;Payne, 2009;Stern, 2010) have noted that formal mechanisms for reporting sexual violence and misconduct are often highly problematic, with high attrition rates, meaning most cases are filtered out of the system, and only a small proportion will result in punitive outcomes such as a criminal conviction (see Haire et al., 2019). As such, there have long been calls for a broader vision of what constitutes 'justice' for sexual violence survivors which take a more encompassing approach such as having agency in sharing experiences as well as having these listened to and believed (see McGlynn, 2011;Payne, 2009;Powell, 2015). ...
... (Priya, Kolkata) Although some scholars (Chadha, 2017) argue that the ideal way to address sexual harassment is through institutional mechanisms that would guarantee all women equal access, others (McGlynn, 2011;Payne, 2009;Stern, 2010) have noted that formal mechanisms for reporting sexual violence and misconduct are often highly problematic, with high attrition rates, meaning most cases are filtered out of the system, and only a small proportion will result in punitive outcomes such as a criminal conviction (see Haire et al., 2019). As such, there have long been calls for a broader vision of what constitutes 'justice' for sexual violence survivors which take a more encompassing approach such as having agency in sharing experiences as well as having these listened to and believed (see McGlynn, 2011;Payne, 2009;Powell, 2015). In this context, although we recognize they are not without their problems, the emergence of online public disclosures are not only unsurprising but we argue, may be welcome (see Chadha, 2017). ...
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In October 2017, Raya Sarkar, a 24-year-old law student from India, posted a crowdsourced list on Facebook of male Indian academics who allegedly harassed women. This led to the start of the #MeToo movement in India, where universities became key spaces of discussion, debate and activism. Due to failures of both the criminal justice system and the described capitalist, patriarchal, casteist structures of Indian academia, hundreds of survivors who had experienced sexual violence at universities came forward online, disclosing their stories of harassment and abuse. Drawing from interviews with seven sexual violence survivors who disclosed their experiences online, this paper provides insight into reasons why survivors choose to bypass formal reporting mechanisms in HEIs, and instead turn to online spaces in their search for justice and healing. We argue that students are wary of university processes and often seek alternative forms of justice beyond the ‘punishment’ that HEIs are often unable or unwilling to provide. As such, this article provides compelling empirical evidence of the urgent need for universities to adopt survivor-centred approaches in their processes and conceptualization of justice, as well as how online spaces enable healing, catharsis and new means of informal justice.
... For example, RJ contrasts strongly with mediation. The latter is a collaborative adjudication process that instead emphasizes neutrality for all parties involved, whereas RJ requires the acknowledgment that the responsible person did indeed cause harm (McGlynn, 2011). Conversely, victimoffender dialogue directly involves the harmed person in facilitated meetings with the responsible person(s), often within the prison setting. ...
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The aim of the present study was to examine barriers to reporting sexual offenses as reflected in texts by victims who participated in the #WhyIDidntReport protest that revolved around the reasons for not reporting sexual offenses. Content analysis was used to analyze 95 public posts of Israeli victims published on social media. The findings revealed two main barrier dimensions—personal and social—each comprising several main themes. The most common barrier in the personal dimension was difficulty naming or labeling the experience as a sexual offense to begin with. The most prominent barriers in the social dimension were the power gap between offender and victim, and concern with others' reactions. We discuss the theoretical and practical implications of our findings from the perspectives of alternative dispute resolution, with focus on restorative justice as an optional platform for victims.
Thesis
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Through the use of 28 in-depth interviews with victims, activists, and criminal justice staff, this research details the emotional, physical, and social impact of image based sexual abuse (IBSA) on women’s everyday lives, and identifies some of the key policing and legislative issues which prevent women from achieving justice within the criminal justice system. In doing so, this study is the first and one of the largest pieces of research to examine IBSA through the use of in-depth interviews with victims in the UK. Therefore, it is able to significantly contribute to our understanding of victims’ experiences. By taking a radical feminist and victimological approach, this research also highlights the gendered nature of IBSA, including the motivations behind perpetration, the normalisation of sexual violence against women in online environments, and the link between IBSA and domestic abuse. Importantly, by examining IBSA as part of a victimisation process rather than as an event, this research identifies IBSA as being interlinked with coercion, control, blackmail, harassment, and verbal and physical abuse. Thus, the research places IBSA on Kelly’s (1988) continuum of violence. The research also identifies continued problematic responses within policing and legislation, demonstrating a failure of the state to account for gendered violence and the silencing of women’s experiences. The findings raise fundamental concerns; they call for greater recognition of IBSA as a serious form of sexual violence against women, and for a radical overhaul of criminal justice responses in order to aid women in their pursuit of justice.
Article
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Rape cases involve various factors and perspectives. This study explored factors in constructing the perspective of justice among advocates of rape victims in Malang, East Java. This study adopted the qualitative phenomenology approach with semi-structured in-depth interview for data collection, and thematic analysis as the data analysis technique. The participants of this study were six advocates from two different women support groups and two experts, one was a Law lecturer and an investigator in the Woman and Children Service Unit (Unit Pelayanan Perempuan dan Anak) (UPPA) at Malang Police Department. The result revealed that justice perspectives of advocates were mainly rooted in the feminist concept at their ideological level; and therefore, the perceived meaning of justice tend to be idealistic and participants were rather dissatisfied with the existing legal system. Participants further expressed their self-interest to advocate based on the shared gender identity as women with the rape victims. As such, findings of this study might inform the evaluation of prevailing procedure and the substances of law enforcement leading to accommodating the needs of rape victims.
Article
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Indonesia has experienced very dynamic advocacy for legal reform on the protection of victim of sexual violence. Sexual violence is as emerged issue as the accidents of sexual violence has increased including during COVID 19. There are different ‘initiatives’ to address sexual violence by various actors; first, the law enforcers through their establishment the policy on alternative mechanism outside criminal justice mechanism; seconds, Criminal Code bill lead by Indonesia government under the Ministry on Law and Human Rights; third, the establishment on the anti-sexual violence bill for victim protection initiated by parliaments supported by women’s movements. All the initiatives have claimed has restorative justice approaches which the impact of COVID 19 become one of the arguments. This paper analyzes whether and how ‘restorative justice’ suitable for victim’s rights on sexual violence. This paper argue restorative justice is one of ambitious purpose which integrating in which criminal justice mechanism through legal reform agenda is very problematic particularly where the indicator of restorative justice is unclear. This paper finds although both Criminal Code Bill, Anti-Sexual Violence Bill in some degrees have integrated restorative justice to criminal justice system, the Anti Sexual Violence Bill has more focused to the rights of the victims of sexual violence. However, before these two laws are enacted, there are policies established by law enforcers called restorative justice for sexual violence which is very dilemmatic since the indicator in restoring the rights of women’s victim of sexual violence does not clear. This policy tends to sacrifice victim for offender’s interest.
Chapter
Violence against women is debilitating and destructive, and is an impediment to the enjoyment of the human rights and fundamental freedoms of survivors. Globally, it is recognised that violence against women is embedded in the entrenched power imbalances between men and women. This chapter argues that violence against women is a product of the institutionalisation of patriarchy in all its forms and its legitimisation by socio-cultural norms. Ghana has promulgated legislation and adopted policies aimed at addressing the phenomenon. However, as well intentioned and informed as these may be, to effectively contend with violence against women, Ghana needs a more holistic and all-inclusive approach which confronts the cultures of violence by re-examining the ways in which violence is condoned and tolerated by contemporary and institutional attitudes, which protect perpetrators and implicitly endorse impunity. This chapter suggests that a more focused and purposeful adaptation of the criminal justice system to guarantee greater access to justice for victims and the conscious provision of more sustainable support systems for victims of sexual violence could contribute significantly to achieving improved outcomes in Ghana.
Article
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In this article I examine from a legal point of view some of the consequences for women, and hence for society in general, of online sexist and misogynist abuse in a Swedish context. I argue that one effect is that women’s living space online is demarcated and ultimately, that it threatens women’s possibilities to participate in public debate online. An everyday life perspective and the continuum of sexual violence, both part of a feminist legal perspective, are used as a theoretical framework to show how online abuse is silencing women. The situation demands action from the state, in order to safeguard freedom of expression and, consequently, democracy. I argue that in this particular situation, two basic aspects of freedom of expression collide: the one most emphasised, the prohibition of censorship, and the less acknowledged aspect, i.e. a diversity of voices. Deficient ways to handle sexist and misogynist online abuse leads to indirect censorship where women’s voices are silenced. Hence, the state must take action not to fail to guarantee justice for all. There are many initiatives addressing problems of online abuse, both internationally and nationally. In this article I seek to capture and examine the Swedish policy and legal regulation (criminal law and freedom of expression) in this area to sketch the legal situation, to highlight ongoing initiatives and pointing out lacunas and obstacles that needs to be dealt with to guarantee a diversity of voices.
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Complaints processes and their governance in UK higher education (HE) have received little critical scrutiny, despite their expanded role under the increasing marketisation of HE. This article draws on interviews with students who attempted to make complaints of staff sexual misconduct to their HE institution. It outlines four groups among the interviewees according to the ‘remedy’ that they obtained, describing how most interviewees could not access the services of the Office of the Independent Adjudicator for Higher Education in England as they could not complete internal institutional complaints processes. The failure of most complainants to obtain remedy, and the difficult experiences of those who did, reveals the inadequacies of using an individualist, consumer-oriented model for addressing discrimination complaints in HE. The article also contributes to discussions of justice for sexual violence survivors, suggesting that community-oriented remedies are needed alongside formal administrative justice processes to address power-based sexual misconduct in institutions.
Book
Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many more are examined in this highly engaging and accessible guide. Punishment is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first comprehensive critical guide to examine all leading contemporary theories of punishments, this book explores – among others – retribution, the communicative theory of punishment, restorative justice and the unified theory of punishment. Thom Brooks applies these theories to several case studies in detail, including capital punishment, juvenile offending and domestic violence. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and ground-breaking. This second edition has extensive revisions and updates to all chapters, including an all-new chapter on the unified theory substantively redrafted and new chapters on cyber-crimes and social media as well as corporate crimes. Punishment is essential reading for undergraduate and graduate students in philosophy, criminal justice, criminology, justice studies, law, political science and sociology.
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The use of restorative justice in cases of sexual violence is highly contentious. Some argue that it may trivialize violence against women, revictimize the vulnerable, and endanger the safety of victim‐survivors. On the other hand, from the perspective of victim‐survivors, it may enable us to hear their stories more holistically, offering greater control and validation, and reduce victim‐blaming. It may also provide an additional opportunity to secure some form of justice. Debate over the validity of these competing claims has largely taken place in an empirical vacuum. This article considers the results of an exploratory study of a restorative justice conference involving an adult survivor of child rape and other sexual abuse. The results, while necessarily tentative, provide good ground to consider afresh the possibilities of restorative justice in cases of sexual violence. We suggest that for those victim‐survivors who wish to pursue this option, restorative justice may offer the potential to secure some measure of justice.
Article
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In the field of restorative justice (RJ) there is regular debate regarding the terms restorative and justice. In spite of efforts to come to a common vision, this ongoing discussion illustrates how theoretical and practical disagreements have resulted in RJ being characterized as ambiguous and inconsistent within the judicial context and beyond. Arising out of research conducted in an educational context, this paper identifies the impact of this ambiguity on educators. More importantly, however, it examines the term justice and discovers that an overemphasis on justice as fairness and individual rights has pulled the field off-course. What is needed is a broader understanding of justice, one in which justice is identified as honoring the inherent worth of all and enacted through relationship. If understood as such, the terms restorative and justice when paired serve as a much-needed compass needle that guides proponents of RJ in the field to their desired destinations.
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Although New Zealand has been a pioneer in the development and expansion of restorative justice in the adult and youth criminal justice systems, it has taken a more cautious approach to using restorative justice in adult cases of gendered violence. We present interviews of 19 New Zealand Opinion Leaders on the appropriateness of restorative justice for partner, family, and sexual violence, and child sexual abuse (CSA). We found that three groups, rather than two, better describe the range of positions: these are the Supporters, Skeptics, and Contingent Thinkers. All viewed child sexual assault as least suitable for restorative justice, with relatively more support in cases of partner, family, and sexual violence. The Opinion Leaders’ positions were shaped by their experiences with restorative justice, professional position, racial and ethnic identities, and views of the criminal justice system. The participants’ views were complex and varied, and not easily contained in a simple ‘for’ or ‘against’ dichotomy.
Article
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The virtues claimed for restorative justice include its emotional engagement with crime and the opportunities afforded to participants by its discursive character. Yet these issues are rarely explored from a perspective that is attentive to gendered or other asymmetrical forms of social relations. This article explores key issues that remain under-developed in the restorative justice literature from a feminist perspective, taking domestic violence as a focus. Central to this analysis are questions of victims' interests and safety, expectations about the victim's role and the appeal to apology and forgiveness in much of the restorative justice literature. It is argued that the challenge of taking gendered harms seriously may require an approach that differs from common restorative justice practices such as the development of hybrid models that draw from both conventional criminal justice and restorative justice.
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This essay, based on the 3rd Annual Martin Tansey Memorial Lecture, delivered May 26, 2010, at the Criminal Courts of Justice in Dublin, and sponsored by the Association of Criminal Justice Research and Development, introduces the perspective of therapeutic jurisprudence (TJ) and applies the perspective to several criminal justice issues, such as sentencing, probation, and parole. It calls for an academic-practitioner interdisciplinary and international partnership to enable the field to grow and flourish.
Book
Despite significant accomplishments over the past 35 years, antiviolence activists know that justice for most abused women remains elusive. Most victims of violence against women do not call the police or seek help from the courts. Are there new ways that survivors might find justice? This book examines new alternative justice practices for victims. These informal, dialogue-based practices, referred to as "restorative justice," seek to decrease the role of the state in responding to crime, and increase the involvement of communities in meeting the needs of victims and offenders. Restorative Justice and Violence Against Women considers both the dangers and potential benefits of using restorative justice in response to these crimes. The contributors include antiviolence activists and scholars from the U.S., Canada, Australia, and New Zealand. A range of perspectives on these alternative justice practices is presented. This book also contains rich descriptions of new programs that combine restorative justice with feminist antiviolence approaches. The hope is that this will inspire survivors, advocates, community activists, and scholars to create new ways for abused women to find justice.
Article
Restorative justice for adults in New Zealand has made a cautious start, although crimes of gendered violence are typically excluded. The findings reported in this article draw on interviews of adult survivors of child sexual abuse (eighteen women and three men), asking them to describe their experiences with the abuse and its impact, and to suggest changes to the criminal justice system, which would provide them with a sense of justice. Although the survivors spoke of justice in ways that reflected the goals of restorative justice, they were reluctant to endorse restorative justice as a paradigm within which they would pursue justice.
Article
This article analyses social dynamics in restorative justice conferences employing two distinct meanings of accountability: one embodied in performing gendered (and other) social relations, and the second, in performing remorse. Engaging feminist theory of 'doing gender' and structured action, offenders' accounts of their behaviour, gendered participation of parents and community representatives are analysed. Specifically examined are three ideals of restorative justice: empowerment, remorse and reintegration, and bridging barriers between participants. The data analysed are from extensive field notes collected during six months of research into restorative justice in Australia and as a practitioner in Maine. Analyses reveal that achieving these ideals is more elusive than anticipated. Rather, accountability dynamics around gender, race and social class reinforce social privileges and disadvantage.
Article
This paper proposes a reconceptualization of the legal response to rape founded in the civil law, and not in the criminal law. Massive reforms of rape laws over the past thirty years have largely failed to change criminal justice outcomes as measured by report, arrest, prosecution and conviction rates for the crime. The authors argue that rape law reforms are needed outside of the criminal justice process, in the civil law, to address the immediate and devastating impact of sexual assault on the lives of victims in the areas of safety, privacy, immigration status, education, housing, employment, and financial and medical benefits. The authors suggest specific reforms in these areas of civil law to address the unmet legal needs of sexual assault victims.