Restorative justice: the way of the future?

[David]

I'm sure we've discussed this before on here, but not sure if we've ever had a dedicated thread.

I just read this story on the ABC and thought it makes a really good case for why restorative justice may be preferable to the criminal justice system in nearly every respect: healing for victims, accountability for perpetrators and a system that potentially works rather than allowing many cases to fall through the cracks thanks to technicalities or the burden of proof: https://www.abc.net.au/news/2024-08-14/ ... /104212862

When a victim-survivor of sexual assault enters the criminal justice system, they expect it to deliver them a sense of justice, an apology or some acknowledgement, says Ms Handsaker, who is also the practice lead at restorative justice service Open Circle, at RMIT's Centre for Innovative Justice.

"Actually, what [the system] does is just pit people against each other and re-traumatise [victim-survivors] and ask them to defend their story over and over again," Ms Handsaker says.

"Your story gets taken from you … You're powerless. You're not in a position of being able to consent to what happens next.

"It replicates the conditions of the original assault."

[...]

In instances of sexual assault, the needs of a victim-survivor might include being able to tell their story in their own words or having their experience validated.

Or the need might relate to accountability; for someone to demonstrate they've understood the impacts of their harm.

Another need regularly expressed by victim-survivors is prevention; they want to ensure that the harm they experienced doesn't happen to anyone else.

Ms Handsaker argues these needs typically "won't be met through a criminal justice response".

[stui magpie]

Interesting theory and probable to deliver better outcomes than the criminal justice system, but it seems to me to have one fatal flaw. The alleged perpetrator has to be willing to participate in the process, and actively participate not just do so through a court order.

The whole criminal justice system is adversarial, but even more so in cases of alleged sexual assault where it is often one persons word against another with no physical evidence to support the allegations. If being raped wasn't bad enough, being basically put on trial to defend your allegations would nearly be worse. No wonder so many cases go un-reported.

Behavioural change pyshological treatment doesn't work on stupid people (most psychology doesn't), nor does it work on people who aren't willing to accept fault and change.

Use the most recent high profile case as an example. Higgins vs Lehrman.

When the allegations were first made, lets say the DPP thought there was a low chance of proving them and offered both parties to go through a resorative justice program, with no criminal consequences at the end.

What if Lehrman said yes, but then clung defiantly to his claim of innocence? Does Higgins feel better?

Maybe it could work if it it happened as a part of or instead of sentancing. If the Perpetrator was found guilty, rather than being sentanced to jail, they could have any sentance suspended for 12 months if they agree to participate in resorative justice sessions. At the conclusion of the program, the counsellor would then make a recommendation to the judge on whether the sentance should be wholly or partly commuted or served in full.

[think positive]

Yeah,not happening! you can never restore a rape victims peace of mind, or the feeling they were violated.

For things like theft, graffiti, yup, make the arewipes pay, and for kids, their parents can.make ems rub the walls!

[David]

Maybe it could work if it it happened as a part of or instead of sentancing. If the Perpetrator was found guilty, rather than being sentanced to jail, they could have any sentance suspended for 12 months if they agree to participate in resorative justice sessions. At the conclusion of the program, the counsellor would then make a recommendation to the judge on whether the sentance should be wholly or partly commuted or served in full.

Sounds like a pretty good idea, though with the caveat that a big part of the idea of restorative justice is to avoid the adversarial quality of the courtroom and its various traumas in the first place. In that sense it's probably more akin to mediation or settlement. But no reason we can't walk and chew gum by offering it at both ends of the process, where applicable.

On Lehrmann vs Higgins, I think defendants do still need to have the ability to fight for a not guilty verdict if they believe themselves to be innocent (obviously most of us are on the same page about that particular case though). Where I think this comes in as an alternative is if, rather than fighting the case, the defendant is willing to own up to their guilt and participate in the process from the beginning. It may also work in cases where there's insufficient evidence to prosecute. So yes, it does require the accused to play ball, but I think there's reason to think that many will choose to rather than deal with a court case. (And no doubt some will look at this cynically as a way to avoid punishment – but punishment is a means, not an end.)

TP, the feeling of having been violated may well be lifelong for most victims, but the point here is healing – you can heal and still have scars. Not sure if you read the full article, but the testimony of some of the survivors quoted in there suggest that this is exactly what has happened for them as a result of this process: healing and, to at least an extent, some peace of mind restored.

[stui magpie]

Where I think this comes in as an alternative is if, rather than fighting the case, the defendant is willing to own up to their guilt and participate in the process from the beginning. It may also work in cases where there's insufficient evidence to prosecute. So yes, it does require the accused to play ball, but I think there's reason to think that many will choose to rather than deal with a court case. (And no doubt some will look at this cynically as a way to avoid punishment – but punishment is a means, not an end.)

I see were you're coming from, I'm just not sure it would work in practice.

Perpetrator is charged with sexual assault and is offered the option of going down the restorative justice path or going to court, with the caveat that if they choose the former they are immune from prosecution. I can see lots of alleged perps choosing that option with zero repentance despite what they may say. Granted some may take it as an opportunity for absolution and actually buy in.

If you suspend court proceedings for 12 months and still have it hanging in the background as an option if the restorative justice process doesn't work, similar to my option about sentencing, it might work but it's a fkn long drawn out process for both parties.

[think positive]

Some things are unforgivable, and only the victims peace of mind is important. You only have to look at the feral youths committing crime after crime, the justice system needs a hammer approach.

Crims can already get a reduced sentence pleading guilty.

At the most trial stui’s suggestion of suspending court proceedings,

And only if the victim agrees, with no coercion