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Restorative Justice and Violence Against Women: Comparing Greece and The United Kingdom

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While Western societies are striving to become more honest about gender inequality, terms such as ‘violence against women’ have started to appear in policy debates in Asia and worldwide. The response is largely punitive. The option of restorative justice has been considered, but evidence on actual practice with these cases is scarce. Following international attempts to block restorative justice for violence against women cases, this paper argues that a better understanding needs to be developed before further steps are taken in any direction. The authors examined cases from their respective countries, Greece and the UK, to identify common elements, differences and minimum standards when applying restorative justice in cases of violence against women. An abstract implementation mode for further research is constructed.
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Asian Journal of Criminology
An Interdisciplinary Journal on Crime,
Law and Deviance in Asia
ISSN 1871-0131
Asian Criminology
DOI 10.1007/s11417-011-9123-x
Restorative Justice and Violence Against
Women: Comparing Greece and The
United Kingdom
Theo Gavrielides & Vasso Artinopoulou
1 23
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Restorative Justice and Violence Against Women:
Comparing Greece and The United Kingdom
Theo Gavrielides &Vasso Artinopoulou
Received: 20 December 2010 /Accepted: 12 December 2011
#Springer Science+Business Media B.V. 2012
Abstract While Western societies are striving to become more honest about gender in-
equality, terms such as violence against womenhave started to appear in policy debates in
Asia and worldwide. The response is largely punitive. The option of restorative justice has
been considered, but evidence on actual practice with these cases is scarce. Following
international attempts to block restorative justice for violence against women cases, this
paper argues that a better understanding needs to be developed before further steps are taken
in any direction. The authors examined cases from their respective countries, Greece and the
UK, to identify common elements, differences and minimum standards when applying
restorative justice in cases of violence against women. An abstract implementation mode
for further research is constructed.
Keywords Restorative justice .Gender equality .Violence against women .
Domestic violence
Introduction
Restorative justice (RJ) is currently discussed in various international fora and continues to
attract the interest of many reformers and researchers (e.g. see Braithwaite 2002a; Gavrielides
2007). These debates are complemented by numerous evaluations of restorative practices (e.g.
Asian Criminology
DOI 10.1007/s11417-011-9123-x
T. Gavrielides (*)
Independent Academic Research Studies (IARS), 159 Clapham Road, London SW9 0PU, UK
e-mail: T.Gavrielides@iars.org.uk
T. Gavrielides
Justice Studies Department Mount Royal University, Calgary, Canada
V. Artinopoulou
Psychology Department, Panteion University of Social and Political Sciences,
136 Sygnrou Av, 17671 Athens, Greece
e-mail: vasiliki.artinopoulou@panteion.gr
Author's personal copy
see Umbreit and Greenwood 1997;Miers2001; Miers et al. 2001; Wilcox and Hoyle 2004;
Vanfraechem et al. 2010).
However, the appropriateness of RJ in cases of violence against women (VAW) remains
largely unexplored (Cook et al. 2006; Proietti-Scifoni and Daly 2011). There is general
consensus among feminists and victim advocates that RJ is not appropriate for such cases,
particularly when it comes to intimate partner violence (Stubbs 1997,2002; Acorn 2004;
Hopkins and Koss 2005). Consequently, this area of practice remains under-researched and
in the shadow of the law (Hopkins et al. 2004; Proietti-Scifoni and Daly 2011). Nevertheless,
this does not hinder passionate practitioners from piloting conferences, mediation and other
RJ programmes, most of the time without any government support (e.g. Hudson 1998,2002;
Jülich 2010; Jülich et al. 2010).
Advocates and opponents of RJ have called for further research into this grey area of
limited practice (Yantzi 1998; Coker 1999; Stubbs 2002; Frederick and Lizdas 2004; Penell
and Francis 2005; Gavrielides and Coker 2005; Gavrielides 2007). Based on the premise that
the RJ rhetoric should focus on the development of RJ processes and principles rather than
on the superiority of its paradigm, this paper aims to open up the debate on the appropri-
ateness of RJ in VAW cases. The impetus for this paper came from a recent international
policy development that may hinder the practical and theoretical development of RJ in
VAW c a s e s .
At the time of writing, the United Nations (UN) and the Council of Europe have
issued guidance that prohibits their member states from using mediation in all cases of
VAW, both before and during legal proceedings(United Nations 2009: 42; Council of
Europe 2009). As the evidence is still accumulating, initiatives such as these are informed
by incomplete data, while it is feared that their implementation could potentially result in
the violation of the very principles that their initiating bodies were set up to protect.
Furthermore, without piloting and continuing to evaluate existing ad hoc practices, a
robust body of evidence will never be developed. We hope that, by joining other
initiatives in bringing this debate forth, decision makers take proactive steps to allow
research and learning to develop. The lack of research on actual RJ practices with VAW
cases should not discourage intellectual debate; good practice needs to be grounded on
solid theoretical foundations.
Let us also add that it is only recently that the social problem of VAW attracted the interest
of policymakers worldwide (McGillvray and Comaskey 1999). The limited scope of this
paper does not allow us to explore the movements (e.g. feminist, human rights), historical
events and tragedies (e.g. suffragettes) that led to the increased awareness that now allows us
to finally talk openly about these issues. Despite this progress, there is still a long way to go
in understanding, let alone dealing with, VAW.
Despite the use of some case studies, our paper is not meant to be based on research on
actual practice. As Daly and Nancarrow (2010) argued, there are so few RJ pilots with
cases of VAW that it is practically impossible to conduct research on what is actually
happening. Proietti-Scifoni and Daly said: research on actual practices or outcomes,
victimsexperiences of informal processes, or comparisons of informal and formal pro-
cesses and outcomes is difficult [in this area](2011: 271). It is hard to gain access to
victims and contact them; and, once contacted, they may not wish to participate in
research(Proietti-Scifoni and Daly 2011: 271).
Through a combination of literature review and a small scale qualitative study carried out
in 20092010, this study aimed to achieve two objectives. First, to identify the key
similarities and differences between cases that took place in two different jurisdictions.
Second, to construct an abstract implementation model for further research using the
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common minimum standards that these jurisdictions use when applying RJ for VAW. To
narrow down our findings we focussed on cases that had dealt with reported incidents of
domestic violence.
The selected cases are by no means representative of the number and types of cases dealt
with in the selected jurisdictions. As with any qualitative research, the intention is not to
generalise, but to provide in-depth material for further thinking and analysis. The jurisdic-
tions of Greece and the UK were selected for at least three reasons. First, they represent two
very different methods of introducing and applying RJ. The introduction of RJ in Greece
represents a top downapproach of implementation through legislation
1
and state inter-
vention (Artinopoulou 2009;2010a). In the UK, RJ is very much a community driven/
bottom upinitiative (Dignan 2010), with no legislation behind it other than in the case of
juveniles.
2
This is a key difference that must be explored further, particularly since the extant
literature has argued that the limited RJ practices with VAW exist largely in informal settings
(Proeietti-Scifoni and Daly 2011). Secondly, whereas in Greece RJ is relatively new, in the
UK, it has been implemented since the early 1970s (Gavrielides 2007). This may raise issues
of basic principles. Thirdly, the two jurisdictions were selected due to convenience including
language limitations, sample accessibility and the two authorsrespective locations.
Conceptualising Restorative Justice and Violence Against Women
Restorative Justice
Over the years, international, regional and national bodies have drafted guidance, declara-
tions and statements fleshing out the key principles encompassing RJ. For instance, in 2002,
the UN Council adopted Resolution E/CN.15/2002/L.2/Rev.1 Basic principles on the use of
RJ programmes in criminal matters, encouraging countries to use them in developing RJ
(United Nations 1999). Despite the many definitions that exist in the literature, there is still
ambiguity surrounding RJ (Gavrielides 2008). It is not the intention of this paper to explore
these conceptual battles. However, it is important to acknowledge the complexity of
the issue.
For the purposes of this paper, Restorative Justice is an ethos with practical goals,
among which is to restore harm by including affected parties in a (direct or indirect)
encounter and a process of understanding through voluntary and honest dialogue. Restor-
ative justice adopts a fresh approach to conflicts and their control, retaining at the same time
certain rehabilitative goals" (Gavrielides 2007: 139). For Braithwaite (1999) and McCold
(1999), the principles underlying this ethosare: victim reparation, offender responsibility
and communities of care. McCold argues that if attention is not paid to all three concerns,
then the result will only be partially restorative. In a similar vein, Daly (2006: 7) said that RJ
places “…an emphasis on the role and experience of victims in the criminal process, and
that it involves all relevant parties in a discussion about the offence, its impact and what
should be done to repair it. The decision making, Daly said, has to be carried out by both lay
and legal actors. RJ practices consist of: direct and indirect mediation, family group
conferences, healing/sentencing circles and community restorative boards (Walgrave
and Bazemore 1998; Crawford and Newburn 2003; Gavrielides 2007).
1
Juvenile delinquency Law 3189.2003, domestic violence Law 3500/2006, civil and commercial matters
3898/2010, Article 214A of the Greek Code of Civil Procedure (private disputes).
2
Crime and Disorder Act 1998 and Youth Justice and Criminal Evidence Act 1999.
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Violence Against Women
VAW is not a term without definitional challenges. The UN recommends that the term
includes all the following forms of violence:
&Domestic violence, femicide/ feminicide,
&Sexual violence including sexual assault and sexual harassment,
&Harmful practices including early marriage, forced marriage, female genital mutilation,
female infanticide, prenatal sex selection, virginity testings, HIV/ AIDS cleansing,
honour crimes, acid attacks, crimes committed in relation to bride price and dowry,
maltreatment of widows, forced pregnancy, and trying women for sorcery/ witchcraft,
and
&Trafficking and sexual slavery(United Nations 2009: 24).
The UN also acknowledges that VAW can occur in the following contexts: in the family;
in the community; in conflict situations; condoned by the state including violence in police
custody and violence committed by security forces(United Nations 2009: 25). Finally,
forms and manifestations of VAW vary depending on the specific social, economic, cultural
and political context.
Restorative Justice and Violence Against Women
When looking at RJ and VAWas a topic, the extant literature is scarce. The debate was opened
early in 1995 (Braithwaite and Daly 1995). These latter authors proposed a model based on
communitarian control to empower victims, seen as a pyramid with escalating steps. They
noted: We are suggesting that community conferences open an avenue for addressing the
failures of contemporary justice processes, which leave misogynist masculinities untouched by
shame and victims scared by blame(Braithwaite and Daly 1995:244).)
UK research published in 1995 looked at the use of RJ with spousal abuse (Carbonatto
1995) while Strang and Braithwaite (2002) provided a theoretical analysis of the arguments
for and against RJ in cases of domestic violence. Some of the most thorough evidence so far
has been produced in Austria where Out-of-court-offence-resolution(Außergerichtlicher
Tatausgleich) has been used in cases of partnership violence since the 1990s. In 1999,
qualitative research led to the conclusion that the potential or strength of mediation with
these cases lies in reinforcing processes of empowerment or liberation (Pelikan 2000). The
study was repeated 10 years later focussing on female victims. About 900 questionnaires
were sent out to those who had undergone victim-offender mediation. A total of 33 victim-
offender mediation sessions were observed and 21 qualitative follow up interviews were
carried out; 83% of all domestic violence victims who had undergone direct mediation
reported no further violence. And 80% of those who reported no further violence contended
that this was due to the RJ meeting. They reported that RJ helped to bring about direct or
indirect empowerment.
3
Forty percent of those women who remained in a partnership or
who were still in contact with the offender but had not experienced further violence stated
that their partner changed as a result of mediation.
In South Africa, a large victim-offender conferencing project with female victims of
domestic violence occurring in three districts near Johannesburg reported positive outcomes.
3
Direct empowerment implied the increased capacity to state ones demands and claims for life without
violence, or the increased capacity to handle conflicts through communication. Indirect empowerment is
pointing to mediation as an impetus to seek further support and help (Pelikan 2010, unpublished).
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Twenty-one women who had agreed to take part in a small scale study reported that they felt
that mediation had provided a safe space where their personal safety was not threatened, and
where they could tell their stories, speak their minds and be heard, often for the first time
(Dissel and Ngubeni 2003). According to this research, the RJ dialogue and the intervention
of the mediator helped female victims feel safe again, and able to speak on an equal basis to
their partners. Follow up to assess whether there had been any changes in the victimsviews
and the offendersbehaviour showed that, in all 21 cases, the female victims remained
positive while reporting changes in the behaviour and conduct towards them with no further
assaults or verbal abuse (Dissel and Ngubeni 2003).
Canadian research with First Nations women who had been in violent relationships
favoured diversionary responses (McGillvray and Comaskey 1999), while three New
Zealand studies on RJ with family (Kingi et al. 2008), partner (Tisdall et al. 2007) and
sexual (Julich et al. 2010) violence cases highlighted the victimssatisfaction citing open
dialogue,empowerment,healingand being able to meet the offender. The UK-
based DOVE project working with victims of partner violence reported positive results
(Social Services Research 2003), while the New Zealand-based Project RESTORE dis-
cusses a range of RJ practice matters and benefits in relation to sexual violence cases
(Julich et al. 2010).
Recently, there has been an increased interest in reviewing the scarce extant literature in
the area. We agree with Ptacek (2010), Daly and Nancarrow (2010) and Proietti-Scifoni and
Daly (2011) that all the aforementioned studies are based on small samples and lack the
longevity that would allow us to draw solid conclusions. As Proietti-Scifoni and Daly (2011)
put it Our review of the sparse literature suggests that the sharp-edged nature of the debate
is not recapitulated in the evidence which may show a fuzzier and incomplete picture
(Proietti-Scifoni and Daly 2011: 274).
Comparative Learning: A Case Study Analysis
As already noted, this paper does not aspire to breach the gaps in evaluation of RJ with VAW
cases. The selected cases are intended to contextualise RJ for VAW and illustrate the key
similarities, differences and minimum standards that were used.
Restorative Justice with Violence Against Women in Greece
State surveys carried out in 1999 and 2006 revealed the severity of VAW cases and the level
of concern of Greek society and the Greek government (Giovanoglou 2008). Like most
continental jurisdictions in Europe, Greece enacted legislation providing for restorative
practices, namely victim-offender mediation.
4
Separate juvenile delinquency laws were
enacted, focussing on social support and services rather than punitive treatment of VAW
offenders (Artinopoulou 2009). Based on the European Directive on mediation in criminal
proceedings, Law 3500/2006 on The Confrontation of Intra-Family Violenceprovides
mediation for domestic violence cases. This is provided only for misdemeanours either
before or after prosecution. Three conditions are attached, i.e. that the offender had agreed:
(1) not to commit any further domestic violence, (2) to participate in a special counselling/
therapy programme, and (3) to undertake reparation to the victim, where possible. The
General Prosecutor is responsible for carrying out the mediation process. Artinopoulou
4
The law also provides for victim compensation and community service.
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(2010b) argues that the regulation of penal mediation in the Hellenic legal tradition is seen as
an innovation and a step towards the refutation of the traditional punitive system.
The implementation of RJ is faced with a series of problems and contradictions. These
refer mainly to a lack of a wider public dialogue on mediation and RJ as well as the potential
diffusion of roles between the public prosecutor and the mediator. In an evaluation carried
out in 2008, Giovanoglou indicated that the way in which RJ was introduced for domestic
violence cases was flawed from the start. This was attributed largely to the role of prose-
cutors, who are expected to act as mediators despite lack of training. Particularly in the case
of domestic violence, Giovanoglou (2008) argues that prosecutors lack independence and
flexibility in carrying out their mediating role.
According to Artinopoulou (2010a), there is also a lack of consistent legislative guidance.
Examples of shortcomings in the implementation of RJ relate to the reporting system, the
lack of coordination on the part of social services and the evaluation and follow-up strategies
for assessing progress. The enforcement of penal mediation is also often hampered by
offendersown unwillingness to co-operate.
5
Restorative Justice and Violence Against Women in the UK
In contrast to Greece, the first development of RJ in the UK did not come through legislation
but from the community, without any government support. In 1972, a project set up by the
Bristol Association for the Care and Resettlement of Offenders(BACRO) led to the
development of the Forum for Initiatives in Reparation and Mediation(FIRM) in 1984,
then known as Mediation UK (Gavrielides 2007). Since then, RJ for adults had to find its
way in the shadow of the law. For the youth justice system, the Crime and Disorder Act
1998(CDA), introduced the Youth Offending Teams(YOTs) and the Reparation Order,
which enables courts to order young people to undertake practical reparation activities
directly to either victims or the community. The Youth Justice and Criminal Evidence
Act 1999(YJCEA) introduced the Referral Order. This is a mandatory sentence for young
offenders (aged 1017 years) appearing in court for the first time who have not committed an
offence likely to result in custody. Despite the absence of legislation, community-based
organisations provide RJ services for VAW independently and on some occasions with the
support of agencies such as the police, probation, housing associations and healthcare
services (Gavrielides 2011). Table 1presents some of these projects.
Case Studies
The following seven case studies were selected with the sole purpose of contextualising
RJ with VAW cases in the selected jurisdictions. The cases from Greece were retrieved
from the archives of the Public Prosecutors Office of District Court Judges at Athens.
The 3 cases below are selected from a total of 60 cases forwarded to the special
appointed public prosecutors office for mediation, for a 3-year period (20062009)
from law enactment. The criterion for selecting was the severity of the committed
offence. During an interview we held with the Public Prosecutor appointed for domestic
violence, it was admitted that from the 800 domestic violence cases of 2009, only 20
were preceded by mediation. The cases from the UK were selected from one of the
5
It is worth noting that once the offender agrees to penal mediation, the public prosecutor may lift charges;
when the offender does not honour that agreement, the case is submitted nisi prius to the penal records
(returned to the original court).
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community-based programmes included in Table 1.
6
The cases were also discussed in
an interview with the senior practitioner responsible for the programme. They were
selected on the basis of their severity and depth.
Cases from Greece
Case No. 1 In July 2007, a woman accused her husband of verbal and physical abuse and
testified that he had thrown an iron chair at her in front of their 10-year-old daughter. In her
affidavit, the complainant also stated that the offender had refused to take her to hospital and
left her to bleed. The medical examination verified head injury and suggested fortnightly
hospitalisation. In September, the police submitted an impeachment to the public prosecutor
for cases of domestic violence.
The accused later claimed that it was all a misunderstanding, that he had never abused
his wife, and that he had left the house to avoid disturbing the neighbours and waking up his
sleeping daughter. Finally, he argued that as he was still living in the house, this was a
testament to the validity of his claims. In October, the public prosecutor of the court of first
instance summoned the accused ordering him to appear before the public prosecutor for
cases of domestic violence. The prosecutor engaged the law providing for victim-offender
mediation and asked that in advance of the mediation the accused:
(1) Declares his willingness to avoid any further acts of victimisation,
(2) Attend a counselling programme provided by a public health institution, and
(3) Repair/restore all the harm/damages caused by his actions as well as to compensate the
victim financially (Artinopoulou 2009: 373).
Table 1 Community-based restorative justice (RJ) programmes in cases of violence against women (VAW) in
the UK. NACRO National Association for the Care and Resettlement of Offenders
Project/ organisation Nature of work Year Further information
Plymouth Mediation in
partnership with Plymouth
Probation Service
Mediation for victims and
perpetrators of domestic violence
(approximately 300 referrals
per year)
19942000 Plymouth Mediation
1996
The Daybreak DOVE
Project in partnership with
the Hampton Trust
Family Group Conferences for
domestic violence (approximately
25 referrals per year)
20012008 Taylor and Powney 2005;
Daybreak Dove Project
2008
Victim Liaison Units,
National Probation Service
Mediation with victims and
perpetrators who receive a prison
sentence of 1 year or more for a
sexual or violent crime
N/A Liebmann and
Wooton 2008
UK College of Family
Mediators
Family mediationdomestic abuse
screening policy
1999 UK College of Family
Mediators 1999
Connect in partnership with
NACRO
Mediation and group conference
with complex cases such as
domestic violence. Worked with
adult offenders convicted at
Camberwell and Tower Bridge
Magistrates Courts, and the
victims of their crimes
20012005 Gavrielides 2007
6
The name of the programme cannot be disclosed due to confidentiality.
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The accused formally agreed to the conditions. His wife also accepted his statement of
intent. Soon, however, the accused breached both legislation and his agreement. He never
attended the therapeutic/counselling programme of the National Social Solidarity Centre
(EKKA) and halted the process of mediation. RJ was dismissed as an option, and the victim
was dealt with only as a witness in the formal criminal process.
Case No. 2 In May 2007, the police submitted an impeachment for domestic violence.
The case involved a woman accusing her husband of severe physical battery. The woman
argued that the incident was witnessed by one of the couples children. According to her
testimony, the woman charged her husband for trying to strangle her, calling her a
whore, pulling her hair, kicking her, punching her head and hitting it against the
kitchen bench. The woman also suggested that such violent behaviour against her was
common, but had not previously pressed charges against her husband because of their
children.
Witnesses verified the particulars including the past incidents of domestic violence. All
three testimonies emphasised that the victim had previously filed for a divorcea matter
that she had discussed with her husband at her lawyers office a few hours before the
incident. The medical examiners report suggested a 3-day hospitalisation and referred to
simple physical injuries, a classification defined by Article 308 of the Penal Code. In May,
the court judge signed the victims statutory declaration of her previous testimony and added
that she and her husband were now separated. In June 2008, the accused argued that his wife
was having an extramarital affair with a colleague of theirs. He accused his wife for having
concocted the incident of domestic violence in order to destroy him morally and financially.
He also claimed that he was so embarrassed that he had to quit his job. The accused closed
his statement arguing that he was hoping that justice would be served by revealing the true
causes of his wifes complaint against him.
In November, the accused appeared before the public prosecutor for cases of domestic
violence. The prosecutor initiated mediation and laid the conditions for the accused. Once
again, both parties accepted RJ. The accused also attended EKKA where they defined the
therapeutic/counselling programme. However, RJ was halted after only one session as the
couple decided their definite separation. They did not see any reason for pursuing a dialogue
and mediation. The prosecutor did not see any reason to mediate in the case.
Case No. 3 In September 2008, Athenspublic prosecutors office accused a couple for
domestic violence. The wife was prosecuted for having beaten her husband and having
thrown a wooden toy at her 5-year-old son. The husband was accused for having beaten his
wife. They were both referred to RJ, which they endorsed. In October, both parties acceded
to attending the therapeutic/counselling programme prior to mediation. The public prosecu-
tor signed the relevant reports for the agreement and submitted a brief regarding an ongoing
legal dispute between the couple.
In January 2009, the Director of EKKA informed the public prosecutor that, during their
first meeting, the couple cooperated with the centres psychologists. However, they con-
sumed themselves in a vicious circleof exchanging accusations regarding prior to legal
abeyances. According to the EKKA, the woman wished the cooperation would continue. A
few days later, she called EKKA to tell them that her husband had abandoned her and their
child. The dialogue had intensified the tension between them. Whereas the woman continued
receiving aid from EKKA, the husband ceased communication. Consequently, RJ was
discontinued and the case was referred back to the traditional criminal procedure. No effort
was made by the prosecutor to look into the offenders withdrawal.
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Cases from the UK
Case No. 1 The woman victim had been in a long-term relationship with the offender. He
took to alcohol and drug use and became unstable. He became violent and controlling,
culminating in an attack and scary imprisonment. The victim was an intelligent, profes-
sional woman who was incensed by the way she had been demeaned and ignored by the
criminal justice services. She wanted to make it plain to the offender that the relationship
was over. Her main reason was to assess his mental state and a genuine concern for his
recovery. Faced with disapproval by the probation and police authorities, she was
insistent about the RJ process, which was offered as part of a voluntary organisations
practice.
At the assessment meeting with the offender, he was told that he could not demand
a direct meeting until the victim felt secure. Whereupon he flew into an uncontrolled
rage and made a string of threats against the victim. The victim had doubts. You will
assess this man based upon a 50 minute meeting. I have lived with this man for XX
years; I am professionally more competent at making that assessment than you are,
the victim said to the mediator, who spent a considerable amount and resource
providing further information.
In the end, the parties met and the case was successful. The victim was put in
control of the process. Her questions were answered and the hidden risks were exposed.
The professionals were made aware of the real and continuing problems that needed to
be addressed and hence the risks were lowered and the relationship was ended as safely
as possible. The mediator had worked with domestic violence cases for over 10 years
and was aware of the intense preparatory work that had to take place prior to the
encounter. Although the outcome was not a cosy recovery of the relationship, the victim
reported being satisfied while both parties felt a feeling of restoration and the ability to
move on. Expectations were made clear from the start; these did not include recovery
of the love relationship.
Case No. 2 A couple had been having difficulties for some time and the relationship was
breaking down. They had a joint business, which they kept going despite being separated.
He was becoming threatening, occasionally violent and jealous. In this case, the offender
was heading for a custodial sentence. Sentencing guidelines dictated this outcome. However,
the victim did not want this. Following a referral by the police, direct mediation was
organised by a voluntary organisation. During the meeting, it became clear that the business
would go under if he went to prison. Both parties entered RJ voluntarily but with certain
expectations. The victim wanted her safety guaranteed for a longer period, rather than see
him serve a short custodial sentence. On the other hand, the offender needed stronger long-
term parameters for his behaviour, and the ability to make reparation by winding up the
business successfully. Despite the lack of legislative provision, the RJ intervention led to a
suspended sentence and a long-term protection order by the court. This meant that both
partieswishes were met. This was noted clearly in their written assessment a few months
post mediation.
Case No. 3 The victim wanted to make contact with the offender who was imprisoned due to
assault. The stated aim was to assure themselves of the offenders well being. The case was
referred by social services. When contacted by the mediator, the offender stated that he
wanted to apologise, and did so without reservation. But he did not wish to meet the victim;
he explained that the relationship was destructive and that it was best for both parties to
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move on. He did not believe that a direct meeting would benefit either of them. This decision
was met with unexpected anger by the victim, who actually wanted to re-establish the love
relationship. It became evident that the controlling, dominant partner was the victim of this
particular offence, but not always the weaker party. This showed to the mediator the need for
great care at all stages in these cases. It also highlighted the significance of identifying and
agreeing to expectations before the encounter takes place.
Case No. 4 In this case, the charged offence was rape. The victim was a sex worker, and
controlled and dominated by her partner. She agreed to undergo RJ having been referred to a
voluntary organisation by the police. During the meeting, it became clear that her needs were
so great that, despite genuine remorse by the offender, it was hard to claim any great success
in addressing the harm to her. Despite this, she reported that RJ gave her a chance to speak to
the offender and to access some real help in her life. She said to the mediator: for the first
time in my life, I felt I was in control.
In an interview with us, the mediator of the UK cases said: One of the most important
benefits that I identified from the above case studies was the empowerment that the process
offered to the victim. This benefit should not be underestimated. It is unique in the RJ
process. Empowerment of female victims of violence gains particular significance in a male
dominated system which lacks the support structures and disregards the significance of
equality in helping survivors move on with their lives.
Critical Analysis
From the above analysis, some key facts and issues are identified. These are summarised in
Table 2, and examined in detail below.
A key similarity in all cases is the dependence of their success on the principle of
voluntariness. This seems to be better implemented in a bottom-up structure rather than
within a legislated framework where RJ is offered principally as a rehabilitative/ treatment
strategy for the offender. The skills and motivation of practitioners are also paramount. A
public servant such as a prosecutor naturally focuses on putting things right for the system
rather than the individual; prosecutors are legally trained justice servants with entrenched
criminal justice mindsets.
It is also clear from the cases that removal from the parties of the option to engage
in a restorative dialogue is equally problematic (see intentions by United Nations 2009).
In the UK, many have argued for legal provision that would make this option obligatory
(e.g. see Dignan 2010, Ministry of Justice 2011). However, as evidenced by the Greek
case studies, despite legal provision and a top downapproach to implementation, RJ
for domestic violence cases is still problematic. Alongside victimsfrequent unwilling-
ness to report (Artinopoulou 2009: 378), the interruption of mediation can also be
attributed to the offenders priorities and the prosecutors attitude. With the exception
of the woman in Case No. 3, the men in cases 1 and 2 agreed to penal mediation, but
ultimately retreated and chose a radical break from their families. In the second and
rather more complex case, the couple had agreed to penal mediation, but their final
decision to get a divorce disregarded the agreed procedures. The prosecutor/ mediator
did not see any reason to continue RJ.
A central premise of public law, part of which is criminal law, is the consideration of
public interest in the process of bringing an incident to justice. This is very much reflected in
the prosecutor/ mediators decision to discontinue RJ in the above cases. Evaluation has also
showed that a coerced type of RJ is doomed to fail (Umbreit and Greenwood 1997; Miers et
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al. 2001; Wilcox and Hoyle 2004). Our qualitative analysis of the Greek case studies points
out that to meaningfully engage the benefits of RJ for VAW cases, we need to move beyond
the punitive understanding of coercive participation and identify the trade-offs and a model
that can offer the parties the option should they genuinely want it. Although rehabilitation/
treatment are important for the offender they are not listed amongst RJs key principles
which include healing, empowerment, forgiveness, inclusiveness, fairness and restoration
(Braithwaite 1999; McCold 1999).
To this end, the main task at hand is to initially test the limits of RJ at a micro,
interpersonal level. Since the macro level would require structural changes and a redefinition
of the relationship between individuals and the state; the micro level can gradually offer us
ample examples of how direct relations can alleviate tensions and resolve conflicts that, in
their totality, constitute certain social phenomena, such as gender-, race- and class-based
inequality. In this context, RJ is all the more important for cases of VAW.
Given that mediation cannot become a punitive system as such, it is ultimately up to the
parties to accept that an interpersonal dispute is not merely a family incident, but rather a
social phenomenon that affects all. Even when they appear to stem from individual problems
and choices, the actions of offenders point to structural and institutional shortcomings that
go beyond the Greek legal system and extend to education, gender-based social stratification
and the boundaries and strengths of RJ. These are challenges that should be expected by any
jurisdiction implementing RJ from the top down.
Table 2 Facts and issues relating to the implementation of restorative justice for VAW cases in Greece and
England and Wales
Greece England and Wales
Facts RJ is a relatively new practice RJ has been applied since the 1970s
RJ is provided by Law 3500/2006 RJ is community born
Applied for misdemeanours and before
prosecution or post provided that the
offender has met certain conditions
RJ remains in the shadow of the law (in the
juvenile justice system: Crime and Disorder
Act 1998/ Crime and Disorder Act 1999)
The General Prosecutor is responsible for
initiating mediation
Largely, RJ for VAW cases is initiated by victims
The mediators are independent (rare exceptions
where the Probation Service and the Police
may carry out informal RJ)
Public prosecutors are the mediators Cases are referred principally to voluntary
organisations by public service providers
If unsuccessful, the case is referred back
to the CJS
Both parties enter RJ voluntarily
Issues Top down approach creates a solid structure
that does not accommodate RJs principles
and ethos
RJ remains a voluntary sector initiative
There is role contradiction between mediator
and public prosecutor
Issues of funding and continuity; issues of
evaluation and consistency
Lack of consistent guidance
Shortcomings in implementation (principle
of voluntariness, interruption)
Practice standards are voluntary
RJ is mostly seen as a rehabilitative, soft
measure for the offender; the victim
comes second
No crime of domestic violence per se
Cases are referred to mediation by public
service providers but there is no formal
structure; it is an ad hoc process
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Undoubtedly, there is a need for extensive and in-depth comparative research on the
suitability of the treatment of victims of VAW in the context of traditional judicatory systems
and restorative procedures. In the case of an experiential/subjective approach to victim-
isation, victims should be allowed to choose the processes that they believe would address
their needs. Discussion, therefore, should move beyond alternative analyses and concentrate
on more flexible and realistic approaches to the type of justice and the offences that
appertain to restorative procedures (Curtis-Fawley and Daly 2005: 609). In conclusion,
although RJ may have been provided in the rigid law of the Greek system and became part
of its public law discourse, implementation is often hampered. It becomes clear that law
alone cannot initiate an ethical dialogue among parties and society. There is a developing
body of research on RJ in the Asian continent (e.g. see Lee 2009); policies are being
reviewed and legislation is being considered (e.g. see Ua-amnoey and Kittayarak 2004).
Lessons from abroad must be considered and UN attempts to block this process must be
discouraged.
A Model for Social Change
Based on the qualitative findings of our comparative studies, a universal model of RJ for
VAW is proposed for further research. The model should meet the following minimum
standards identified in all case studies independently of their country of origin and
seriousness.
i. Principles of voluntariness, empowerment and informed choices (Gavrielides 2007),
ii. The Universal Declaration of Human Rights underlying principles of fairness, respect,
equality and dignity,
iii. The principle of confidentiality (Gavrielides 2007; Braithwaite 2002b),
iv. Professional standards, accreditation and professional ethics,
v. Independence of mediators, practice, evaluation and research (Gavrielides 2007),
vi. The process should be victim-led and victim initiated to address issues of power,
vii. The process should be carried out only by senior practitioners who should be expert
enough to act as a cut outsifting appropriate cases,
viii. Appropriate infrastructure needs to be in place in the form of follow up victim support
services (e.g. counselling).
Atop downapproach to implementation is unlikely to guarantee success; rather than
forcing the option of RJ, best practice is better defined through the aforementioned princi-
ples. However, the proposed model is best placed in the criminal process and not outside or
parallel to it. Within the system, the model can be independent,’‘relatively independentor
dependent.Itisindependentwhen the RJ practices divert the criminal case out of the
formal criminal justice process. This can occur at a very early stage of the case, replacing any
penal response to crime. The outcome usually precludes re-entrance of the case in the
criminal justice system. Practices can be relatively independentwhen offered as part of
the regular criminal procedure. This can take place at any stage of the case, which is diverted
and referred to an independent and qualified mediator charged with reaching an agreement
between victim and offender. If this is accomplished successfully, it will have an impact on
the outcome of the criminal proceedings. Its most common effect is to reduce sentencing,
although there may be cases where charges can be dropped altogether. RJ practices can be
dependent, when they are situated adjacent to the conventional system. This model is used
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after the criminal trial has run its course, and is employed mainly in instances of the most
serious crime or in the prison context.
According to our model, once a case of VAW is diverted into the RJ route, there can be
four typical steps to restoration. The first is the referral of the case. As with the UK example,
these referrals are expected to come from people within the justice or social system, such as
police, prosecutors, judges, probation officers, social workers or housing officers. They can
take place at any time from the date of the offence to the period of parole. The emphasis must
be on the free and independent consent of the victim being obtained. There must be no direct
pressure from the perpetrator, from families or from local cultural or religious bodies.
Offendersrehabilitation is welcome but not the primary reason for triggering the RJ
process.
The second step is the preparation of the case. As discussed, VAW cases are complex
cases involving a power relationship and high levels of re-victimisation. The victim and
the offender should be contacted separately by the accredited practitioner who should be
able to gather information about the offence and answer questions from both parties. It
is best that these cases are handled only by senior restorative practitioners who are
aware of the many problems concerning such vulnerable victims and who are capable of
dealing with the power imbalances. They would also be aware that this restorative
approach will not suit all cases and would not enforce its use. The concern would be to
reduce harm, not to prolong or re-engage it. This is where the key process of
empowerment takes place.
The third step is the actual process (direct or indirect) between the victim and the
offenderand in the case of family group conferences and circlesof their families,
friends and relatives. The meeting can start with a statement from the victim, explaining
what it felt like to be harmed and posing their questions to the offender. Some practices,
however, may choose to start with the offenders apology. The offender can be invited to
give their detailed story of what happened. This introduction is expected to be followed by
a constructive and honest dialogue that is facilitated by a neutral practitioner. This should
focus on how the offender may repair the harm done and what can be done to reintegrate
them into the community. The dialogue should be concluded with an agreement between
the victim and the offender that may vary from a written apology to community punish-
ment and compensation, the completion of an education programme, getting a job and
holding it down, or making a commitment to stay out of trouble. Depending on the
programme, agreements and penalties may vary from being strongly retributive to solely
rehabilitative. The fourth step involves preparing the file and returning it to the referral
source. A precondition for any restorative meeting should be that the offender has admitted
the offence and that all discussions remain confidential and unusable in the formal criminal
justice process. The right infrastructure needs to be in place providing counselling and
support services to victims and care and reintegration programmes to offenders.
Concluding Remarks
In its greatest part, the restorative approach emanates from the victims and socially vulner-
able groupsneed to participate actively in the judicature processes through the articulation
of an autonomous position (Braithwaite 1999). This characteristic of the restorative ap-
proach, also defined as its ingenuity, is also considered to be its greatest advantage and by
means of its power/dominance unassailableideals and values (Morris and Gelsthorpe
2000), it is a way to resist the usurpation of authority(Braithwaite 2002a: 546).
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The discussion of RJ in the context of VAW and the consequent implications of the issue
of power has also given rise to questions around gender inequality, womens position within
traditional judicial systems, and whether RJ procedures can practically change the judicial
stereotypical treatment of women. This paper has argued that the law alone cannot guarantee
success for mediation. Empowerment, victim-led processes and a bottom up structure are
key elements for success. Daly has argued that in, the RJ literature, women continue to be
presented in a stereotypical manner that depicts them either as the victim or the supporter of
the process (Daly 2006). Braithwaite has argued that RJ is not a concept relevant only to the
powerless or to suppressed social groups; it is a notion beneficial to all (Braithwaite 1997).
The values and practices of RJ are a new pathfinder for exploration. Our proposed model
is meant to provide a framework for further research and testing. The key principles, process
and stages of this model were outlined. Evidence-based policy must be applied. Further
research needs to be carried out to explore the RJ option of empowerment. This debate is
timely for Asia, as policy makers seek alternative solutions and cost effective practices.
Dismissing RJ for VAW is counter-productive. Research of actual practices and the potential
of empowerment for social transformation must be encouraged.
Acknowledgements We are grateful to Ben Lyon for his help with the UK-based cases, and to Prof. John
Winterdyk for providing feedback on an early draft of this paper.
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Thesis
This qualitative research project endeavoured to open up the conversation around RJ and IPV and highlight gaps in policy in order to give voice to an area in the RJ process that has, up to this point, been virtually silent. There were two overarching aims. The first was to identify the underlying practice assumptions and values evident in the New Zealand Ministry of Justice (MOJ) restorative justice (RJ) standards for family violence (FV) cases (MOJ, 2013). These would be viewed from the perspective of working with intimate partner violence (IPV) cases in particular. The intention was to compare these assumptions and values with RJ and IPV international theory and New Zealand practice. The second aim was to clarify the processes and criteria used to determine/assess IPV offender suitability and readiness for RJ, ascertain the ways in which these practices were theoretically justified, and to compare the implementation of practice to the explicit and implicit guidelines present in New Zealand policy. To these ends, a collection of 30 criminal justice professionals (judges, lawyers, police officers) and restorative justice facilitators involved in the referral and assessment process of IPV offenders participated in interviews in person, over the phone, or via Skype, which were recorded, transcribed verbatim, and then subject to analysis in order to create a conceptual framework. The analysis identified 18 main themes that were grouped into four main categories: RJ IPV conceptualization, effective RJ IPV assessor qualities, IPV offender assessment for RJ suitability/readiness, and RJ IPV practice issues. These results were compared with policy and with the international literature in order to identify consistencies and inconsistencies and to discover where gaps in policy may become clarified. Results showed that a great deal of the policy was supported by the international literature, however there were several gaps and inconsistencies. Several issues were of interest – namely the lack of clarity in the framework of RJ for IPV (i.e. where does it sit in relation to the traditional criminal justice system, intervention vs. pathway vs. overarching framework), the timing of RJ assessment in terms of treatment and interventions, siloing of agencies, and funding/resourcing issues. A final question that arose for me during analysis was regarding the purpose and value of assessment in these cases. Rather than making a decision regarding suitability in order to exclude an IPV case from the RJ process, if the process was truly restorative, perhaps the outcome of an assessment of IPV offender/case suitability should, instead, be to determine what resources are necessary in order to support any IPV case through the RJ process.
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In this Article, Professor Donna Coker employs original empirical research to investigate the use of Navajo Peacemaking in cases involving domestic vio-lence. Her analysis includes an examination of Navajo women's status and the impact of internal colonization. Many advocates for battered women worry that informal adjudication methods such as Peacemaking ignore domestic hierarchies of power and thus facilitate the batterer's ongoing violence against the victim. Those who endorse the use of Navajo Peacemaking and other systems of restora-tive justice believe that such processes are better equipped to cut through the batterer's denial and victim blaming and are more likely to marshal resources for the victim than are formal methods of adjudication. Coker argues that both formal and informal methods of adjudication should be assessed for the likelihood that they will realize change in the material and social conditions that foster battering. Coker's study of Peacemaking finds that it may be autonomy enhancing for some battered women because it effectuates such change. Peacemakers may disrupt Tsosie. I am-grateful to all of those who were willing to share their work and engage with me in dialogue. Peacemaker Liaisons Leo Natani and Anita Roan provided access to their files. Phil Bluehouse took hours away from his work to teach me about Peacemaking and Navajo cosmology. Kip Bobroff provided thoughtful help with resources. I owe a debt of gratitude to the staff of DNA People's Legal Services in Crownpoint, to Gloria Champion in Shiprock, and to Liz Rapaport in Albuquerque for graciously providing me with a place to stay. I am grateful to the University of Miami General Research Fund, which supplemented funding from the University of Miami School of Law and made possible my extended stay in the Navajo Nation. I dedicate this Article to the Navajo Nation's advocates for battered women who have dedicated themselves to saving women's lives and to Navajo peacemakers who struggle to create harmonious relations.
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For informal justice to be restorative justice, it has to be about restoring victims, restoring offenders, and restoring communities as a result of participation of a plurality of stakeholders. This means that victim-offender mediation, healing circles, family group conferences, restorative probation, reparation boards on the Vermont model, whole school antibullying programs, Chinese Bang Jiao programs, and exit conferences following Western business regulatory inspections can at times all be restorative justice. Sets of both optimistic propositions and pessimistic claims can be made about restorative justice by contemplating the global diversity of its practice. Examination of both the optimistic and the pessimistic propositions sheds light on prospects for restorative justice. Regulatory theory (a responsive regulatory pyramid) may be more useful for preventing crime in a normatively acceptable way than existing criminal law jurisprudence and explanatory theory. Evidence-based reform must move toward a more productive checking of restorative justice by liberal legalism, and vice verse.
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Two years ago, Independent Academic Research Studies, a UK based international network, started a research and implementation project to explore the potential of restorative justice to help resolve sexual offending cases involving children and young people. One aspect of this project is the use of restorative justice with sexual offending cases that occurred within the Catholic Church. The purpose of this article is to report on the main findings of the first stage of the project, based on desk research into existing or past international projects dealing with the matter. The aim, however, is not to provide a literature review of the main arguments surrounding the topic, but rather a critical overview of the restorative programs and research projects that have been implemented to test the notion's application in sexual offending cases. The results of these programs will be contrasted with notorious cases that have been processed through the traditional criminal justice system. Therefore, this article is the first in a series on how restorative justice could be applied to help resolve the sexual scandals in the Catholic Church.
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Although the fast-growing literature on restorative justice is extensive, and in some regards repetitive, there is still no consensus as to the nature and extent of applicability of the restorative notion. This article claims that the restorative movement is experiencing a tension between normative abolitionist and pragmatic visions of restorative justice. It proceeds to identify six conceptual fault-lines that characterize this tension. These do not only refer to various definitional positions, but also disagreements that negatively affect both the theoretical and practical development of restorative justice. These tensions also encourage a power-interest battle between different stakeholders within the restorative movement including practitioners, theoreticians, researchers and policy makers. To approach these controversies, there needs to be an acknowledgment of the multidimensional nature of the conceptual problem of restorative justice and the impact it has on its application. The article attempts to get to grips with this problem, and provide a common ground for the future development of restorative justice.
Book
http://johnbraithwaite.com/monographs/
Chapter
This chapter investigates whether restorative justice has the potential to not only provide victims of gendered violence with a sense of justice but also whether it can address violence that is power-based and reflective of entrenched societal attitudes and beliefs. Contextualized in the New Zealand environment, the chapter explores victims' understandings of justice and critiques three fundamental principles of restorative justice: the involvement of victims, the negotiation of a community response, and the transfer of power to the community. Further, it discusses how Project Restore, a restorative justice provider group, uses restorative justice to address gendered violence. The chapter concludes with an analysis of neutrality, impartiality, and confidentiality: practice issues that are particularly relevant when addressing gendered violence.
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 is becoming an increasingly familiar concept in South Africa. With early roots in traditional African forms of conflict resolution, more recent applications relate to dealing with criminal disputes between parties. It has been applied in several community based projects dealing with criminal disputes, and it forms the basis of well established practice in child diversion. The concept is also finding its way into legislation through the Child Justice Bill which is currently before Parliament. One community based project is that of the Restorative Justice Initiative (RJI), 1 an NPO 2 that has been implementing restorative justice in three areas in Gauteng and one in the North West Province for over two years. The project aimed to provide victim offender conferencing in criminal cases referred by the magistrate's courts, as well as by the communities in each area. The Victim Offender Conferencing model sought to be community-based and applicable within a South African context. However, it was still derivative of the models developed in Canada and New Zealand, and mainly premised on the understanding that the crimes referred would relate to one-off incidents of crime, primarily between strangers or people not well known to each other. Instead, the project found that in over 90 percent of cases, the parties were well known to one another, and in over 60 percent of cases the parties were family members or intimate partners. 33 percent of cases referred to the project were between people who were intimate partners, or who were divorced or separated from one another (Dissel, 2000; Dissel, 2003). This raises important questions about the application of restorative justice, and more particularly of Victim Offender Conferencing in the context of domestic violence in South Africa. This paper seeks to look at some of these issues, locating restorative justice within a context of the high prevalence of domestic violence in South Africa. It aims to look at the inter-relationship between VOC and the objectives of the Domestic Violence Act. It also looks at the effectiveness of VOC in cases of domestic violence, particularly in relation to issues of safety, the needs of the victim, and also at the extent to which VOC assists in preventing further violence. Finally, the paper aims to highlight some challenges for future interventions of this kind.