The Rise Up series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work.
Around the globe, efforts by feminists to create shifts within the criminal legal system for better protection against gender-based violence (GBV) has considerably transformed laws and policies in many jurisdictions across the world. Nevertheless, the frequency of gender-based violence cases is not decreasing even when lack of reporting is widespread. It therefore seems to me that the conventional path of justice may not always be the most appropriate response to fight such an issue.
A patriarchal criminal legal system lacking a survivor-centric approach
Going to Court is a demanding, tiring and lengthy process that adds an additional burden to the survivor’s experience of violence. Women often feel disempowered, re-victimised and deprived of the opportunity to ask for answers. Many survivors do not go through the judicial path and remain silent, either by choice or by fear of reprisals. According to the National Family Health Survey conducted in 2016, 99% of the sexual violence incidents in India go unreported. As a result of the patriarchal socio-cultural norms we live within, the majority of gender-based crimes are not addressed, leaving the survivors feeling isolated, dejected and abandoned. In essence, the system fails to give survivors a chance to seek real justice, or at least ensures that the path to justice is filled with roadblocks.
Indeed, the Criminal Justice system is often criticized for being too paternalistic, adversarial and autocratic. In fact, studies show that criminal punishment does not necessarily deter perpetrators from committing the same crime they were penalised for, especially in cases of gender-based crimes.
The legal path offered often does not meet the needs of the survivors and seldom creates a safe place for their experiences within society. As a consequence, alternative methods of dealing with GBV cases are being explored. One such approach is Restorative Justice.
Restorative Justice equips survivors with the power to decide for themselves.
According to the United-Nations, restorative Justice is “a way of responding to criminal behaviour by balancing the needs of the community, the victims and the offenders”. It can take many forms such as family group conferencing, survivor-offender mediation and sentencing circles. They all converge towards the same common core being that “all parties (…) come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”. This approach has already been adopted in some common law jurisdictions and countries such as New-Zealand, UK, and the USA for example, who are in the forefront for putting its principles into practice.
An essential component of restorative Justice is that it is not the only path to seek justice, but aims to complement other justice systems. It should be understood as an alternative to the conventional legal path and its principles must be used in parallel to the criminal system when it is deemed appropriate. The paramount objective of restorative justice is to empower the survivor by giving them the option to initiate the process and decide to use their preferred path and timeline for obtaining justice. The survivor is key in deciding the mode of conflict resolution.
The use of restorative justice for gender-based violence: a contentious debate
The emergence of restorative Justice for gender-based crimes is far from being unanimously accepted amongst activists, legal practitioners and academics. Indeed, there are certain arguments about its risk in perpetuating power imbalances between the survivor and the offender.
In a study, 16% of survivors admitted they had difficulties in opening up at a restorative justice conference whereas none of the offenders reported any such difficulty. Naturally, it is always more traumatic for the survivor to express the ongoing trauma they are experiencing, than it is for the offender. Furthermore, in some cases, this alternative form of justice has led survivors to feel pressurised and coerced by their perpetrators and to enter in unwanted conversations and agreement with them.
The practice of restorative justice has some downsides as well. It may threaten the survivor’s safety while they’re facing their offender. It might reduce their accountability and also minimize the importance of the impact that the inflicted violence has on the survivor’s mental and physical well-being.
However, when adopted well, restorative justice aims enhance the survivor’s security and well-being as they are the key drivers of its processes. To avoid negative consequences, and as a precaution, a risk assessment/analysis of prospective threats should be conducted both with the survivor and the perpetrator to evaluate their physical and mental state before kick starting the procedure. This precautionary measure would reduce the risk of coercion, pressure and manipulation of the survivor by the perpetrator.
While a feminist understanding of justice would promote a survivor-centric approach and therefore be in favour of such alternative forms of justice in appropriate cases, there can be a risk of restorative justice mechanisms dangerously relegating GBV into being considered a private matter only, rather than a crime against society. Indeed, the acceptance that violence against women and non-cisgender persons is in full surety a crime that must be punished by the law is a very recent development. For a long time, GBV was considered as a personal matter, and deemed to be and remain well out of the control of the state. This is the reason why some scholars fear that restorative justice would jeopardize the fight for the rejection of the public/private dichotomy.
However, few of these critiques are supported by tangible evidence in the field. Restorative Justice for GBV is often described as the “most over-evaluated and under-practiced” method in the domain of alternative dispute resolution.
The adequacy of restorative justice to be decided on a case by case basis
Every survivor has their own definition of what justice is. For some it is all about recognition both from the perpetrator and society more broadly of the harm they suffered. It goes beyond “being believed” and encompasses the recognition that the incident(s) of violence did happen through an admission of guilt as well as the acknowledgment of the survivor’s experience. For others, justice is about being given space to speak their voice, as a way to participate actively in the healing process. It might also be justice through “tangible consequences” such as seeing the perpetrator get a prison sentence or receiving public acknowledgement and support declaring that the person is an offender so that any sort of future harm is prevented.
This highlights the fact that there cannot be one single way to seek justice for survivors of GBV. Rather, the system must adapt to the situation as well as the needs, desires and the culture of the survivor, and not the other way around. What is more, there might be cases where it seems evident that restorative justice cannot be adopted. For instance, a case of ongoing violence against children or violence against a relative can rarely be dealt through restorative justice. These kinds of offences intrinsically involve particular power-imbalances that can have a negative impact on the physical and emotional safety of the survivors.
At One Future Collective, we believe that the Justice system must always be survivor-driven, using feminist lawyering principles such as respect, dignity, transparency, empowerment and safeguarding of survivor’s rights.
Through the FemJustice Legal Aid Helpline, we aim at providing a safe place for the survivors through free legal advice and mental health support in order to guide them towards their own definition of justice.
Maelle Noir is Program Officer at the Feminist Justice Legal Center, One Future Collective.
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