How restorative justice can be used as a mechanism to repair harm
Picture credit: @misanharriman
By Sara Chitseko:
What could justice look like outside of policing and the criminal justice system? In light of the Black Lives Matter movement and calls to defund the police, this is a question that many have been contemplating. Restorative justice is a framework for healing harm that does not involve criminalisation. It is used to redress all kinds of harm including those most serious in nature such as sexual violence and murder. Rather than asking, “What law was broken, who broke it, and how should they be punished?” Restorative justice asks, “Who was harmed? What do they need? Whose obligation is it to meet those needs?” In this way, it centres healing rather than punishment.
Restorative justice starts from the premise that truth and reconciliation are central for healing. The apparatus of criminal justice, including courts, tribunals, policing and prisons are not designed to facilitate this. In fact, these institutions deter truth-telling because those who have harmed know that they may be punished if they admit what really happened.
The criminal justice system is also inadequate in addressing the needs of survivors of harm. Survivors often face social stigma for coming forward about their experiences and are frequently forced to undergo interrogative questioning in which they are treated with suspicion and doubt; rather than care and concern. These processes can be re-traumatising for survivors and serve as a deterrence to reporting incidents.
Even when survivors do come forward to report a crime; they rarely get “justice” as a result. In 2018-19, fewer than 8% of offences led to a suspect being charged or ordered to appear in court. Approximately 15% of those that experience sexual violence report it to the police and only 5.7% of reported rape cases end in a conviction. If we believe that the criminal justice system exists to serve “justice,” then it is fundamentally failing - even in a retributive sense.
Restorative justice moves beyond defining people by their behaviours and experiences by using labels such as ‘victim’ and ‘perpetrator.’ Instead, it recognises the ways in which these terms can deny people the space to grow and change. We use terms such as ‘survivor,’ which foregrounds an understanding that an individual is in the process of transcending harm or injustice; and phrases such as ‘the responsible person,’ which brings an awareness that people are more than the harm they have caused.
In practice, restorative justice processes can take different forms including peace-making circles, or family group conferences. The process usually begins with a facilitator asking the survivor what they want from a meeting with the person who harmed them. While answers vary, most seek to have the harm that has been caused acknowledged, for the person who caused the harm to take responsibility and for them to make a commitment to redressing the harm and not doing it again in the future.
Restorative justice processes vary substantially in length. Some take place over a number of days, while others can take much longer for participants to fully benefit from what a healing space can provide. It is also common for family and close friends to be present for the process. This helps with accountability and can be particularly useful when addressing sexual violence, which often continues through shame and secrecy. Given that deeply personal and potentially traumatising details may be shared, survivors always have the final say over who can attend.
It’s important to recognise that restorative justice processes do not always follow the intended trajectory, where an individual recognises harm, takes responsibility for it, and begins to repair it. Sometimes those that are responsible for harm are unwilling to admit wrong-doing, or attempt to minimise the harm they’ve caused. This usually happens as a result of restorative justice processes being used in conjunction with legal and punitive approaches to justice. When punitive consequences hang over a restorative justice process - the stakes are too high; the principle aims of truth and reconciliation simply cannot happen in these circumstances.
Violence must be understood in context, not in a vacuum. Whilst facilitating space for healing, restorative justice also seeks to address root causes of harm. Sujatha Buliga, a restorative justice facilitator who works with men in prisons explains, “Many men I’ve met in restorative justice circles in prisons speak about the sexual abuse they endured as children and how that unresolved trauma gave rise to their offending.” Restorative justice practices make a clear distinction between explanation and excuse, encouraging exploration of structural inequities and experiences of trauma which may impact on someone’s likelihood of enacting harm on others. In this way, it rebalances power, prioritising collective healing and solutions that meet the needs of everyone impacted, beginning with the survivor.