When, 30 or so years ago, I first heard about restorative justice as a possible way to deal with intimate partner violence, I was dubious. Like many of my colleagues, I was fighting for a more vigorous response by the criminal law and this felt like less. Talking circles? Circles of care? Non-carceral consequences? Wouldn’t this show abusers and the public that the criminal law didn’t think IPV was all that serious? How would it keep survivors safe?
However, in the decades since, we’ve have seen, again and again, the many ways the criminal system just doesn’t work as a societal response to IPV. We’ve also seen the utter failure of that system when the people involved (whether victim or perpetrator) are Indigenous, Black, people of colour, poor, newcomers to Canada, already criminalized, mentally unwell, trans or non-binary, disabled. or otherwise marginalized.
Time to learn
I decided I needed to learn more about restorative justice (RJ) and, as I did so, I also learned about transformative justice (TJ).
RJ is a process, most often seen within the mainstream criminal law system, that offers the possibility of restoring conditions that were negatively affected by an act of violence. For example, someone steals money from me to buy food for their children and, rather than being sent to jail, is given the opportunity to pay it back to me.
TJ, which often operates outside the formal legal system, takes it a step farther by creating the opportunity to heal the wounds that caused the harm; to possibly create new conditions in which the violence will not be able to exist. Using the same example, the community would participate to help develop solutions to end the thief’s poverty so they would have no need to steal in the future, and I would have the stolen money returned to me, possibly from a source other than the thief.
The Roadmap for the National Action Plan on Violence Against Women and Gender-Based Violence has this to say about restorative justice:
“[It] is not an approach that asks for less accountability but seeks to find accountability that takes into consideration the myriad intersectional harms that people face in their communities . . . . [It] shifts the focus from an adversarial binary of victim and perpetrator to one that acknowledges the impact of harm on individuals and communities. [It] offers a collective forum elevating the voices of survivors, recognizing the impact of violence on community, and allowing the person who caused harm to understand the impact more fully. Unlike the retributive criminal justice system, the aim is restoration, rehabilitation, and the healthy reintegration of all parties back into the community.”
We have much to learn from Indigenous peoples – in Canada and elsewhere – who have engaged in restorative and transformative justice practices for hundreds of years. As we do so, we need to ensure that we adapt those practices to our cultural realities rather than co-opting and appropriating them without thought for their cultural context. Something that works with people who have a shared history, common belief systems and strong kinship ties cannot just be plopped down in another setting and expected to work. In other words, we have to do our own work to figure this out, taking learnings from those who have been at it for a long time.
Some examples
In Canada, the use of restorative justice, generally for minor offences involving minimal or no physical harm to the victim, began to emerge in the early 1970s. It took a few different forms:
- Community justice forums, where the offender, victim and community gather to talk about what has happened and what needs to happen to restore the situation to the state it was before the harm was done;
- Restitution, in which the offender compensates the victim for the harm done;
- Alternative forms of sentencing, in which the offender does not go to jail but spends the time receiving treatment or otherwise learning new ways of behaving;
- Sentencing circles, which allow the offender, victim and community to gather to decide on appropriate consequences for the offender and create an opportunity for the offender to take responsibility for what they have done and apologize to both the victim and the community
- Circles of care, in which community members work with offenders after they are released from jail, to support them in not reoffending.
Moving towards restorative or transformative justice models is going to take some time. Indeed, RJ or TJ are unlikely to ever replace the current system, as there will always be situations where the threat posed by an offender is so great that sentencing circles or circles of care are just not going to ensure community safety or well-being.
Further, the present criminal system is well entrenched. It is seen as the go-to social response to crime, including gender-based violence; it’s the serious law, the place where appropriate penalties can be meted out to those who are proven, beyond a reasonable doubt, to have done wrong.
As well, although the appropriateness of RJ and TJ in GBV cases is gaining support, there is still some debate within feminist circles about it. The possible criminalization of coercive control, for example, is an issue on which feminists working in the area of intimate partner violence are split. Not all of us think moving away from a carceral approach is the way to go.
Next week: What would work for gender-based violence?