Teach, Learn, Act, Empower:

Education for Restorative Justice in Sexual Violence Cases

By: Matthew Johnson

Introduction

There is hardly an offense both as pervasive and pernicious as sexual assault. Although it is commonplace in Western[1] society to label rapists and child molesters as criminals who must be held accountable, the criminal justice system rarely produces prosecutions in cases of sexual assault (Naylor, 2010, p. 662) let alone true and enduring satisfaction for the victims and their families — and it often does not consider the circumstances of perpetrators, their families, or the community that produced them to be relevant to the outcome (Hayden, 2012, p. 4). Perhaps most importantly, it has neither stopped sexual violence nor curtailed it in any reassuring way, and by relying on patriarchal hierarchies and authoritarianism in police stations, courts, and prisons, the criminal justice system effectively maintains the culture of violence that gives rise to sexual assault and rape (CARA).

Nevertheless, many survivors of sexual violence and their supporters are recognizing the futility of the status quo and are embracing alternatives, such as a number of processes collectively referred to as restorative justice. While there is far from a consensus that restorative justice is appropriate in cases of sexual violence, there is no question that it can be both effective and desirable (Hayden, 2012). Moreover, restorative justice is only the beginning: There are some grassroots activists who feel that restorative justice, which is often — but not always — performed in cooperation with legal authorities, does not go far enough in breaking from state-based justice and prefer what is referred to as “transformative justice” (generation FIVE).

While this paper, after clarifying its terminology, will focus briefly on the proven and potential effectiveness of restorative and transformative justice, its main concern will be to address how to transfer the knowledge and skills necessary to take this approach — otherwise individuals who lack the time, energy, and access to resources that a devoted scholar possesses will continue to rely on mainstream legal mechanisms or do nothing at all to seek justice for incidents of sexual violence. It is, therefore, essential to educate members of the field[2] about these issues.

Definition of Terms

“Sexual violence,” refers to all cases of unwanted sexual contact. Although the common stereotype is that women are the victims of sexual violence and that men are the perpetrators, the definition includes violence against adult men, people who are transgender or gender-ambiguous, and children of all genders. Just as the definition includes all gender groups as potential victims, it includes all gender groups as potential perpetrators.[3] “Restorative justice” and “transformative justice,” in short, are processes and practices serving as non-violent,[4] non-punitive responses to harm committed within a community (Creative Interventions, 2012, p. 63). The terms are also used to indicate the philosophies and principles justifying those responses.

Restorative justice processes are diffuse in both number and application, but all address through dialogue — to varying degrees — the following three questions: 1) “Who has been hurt?” 2) “What are their needs?” and 3) “Who has the obligation to address the needs, to put right the harms, to restore relationships?” (Zehr, 2009). The most relevant process to address sexual violence, particularly if the offender is not incarcerated, is “restorative conferencing”[5] because it allows for healing for those harmed, reparations from those responsible for the harm, and the participation of any party deemed necessary for safety, satisfaction, and success (Naylor, 2010, p. 665).

Transformative justice is a largely unexamined grassroots phenomenon that could be considered a sub-category of restorative justice or a different approach altogether[6] (Zehr, 2011). It emphasizes not only the offense in question but the underlying societal conditions and layers of oppression that give rise to it; therefore, transformative justice not only seeks to address harm in relationships but also to challenge harmful systems (generation FIVE). Transformative justice is especially relevant to sexual violence due to the pervasive undercurrents of gender, race, class, ability, age, and sexual orientation that accompany it.

Why this approach?

Restorative justice, in particular, has been criticized in its application to sexual violence due to concerns about survivor safety and re-victimization (Hayden, 2012). While many of these criticisms are well founded, measures can be taken to address these criticisms, so they should not discourage practitioners from providing sexual assault survivors and their families an additional resource (Hayden, 2012, p. 7), especially in light of the low rates of reporting and prosecution in rape cases and the potential for re-victimization during cross examination (Naylor, 2010, p. 662). In response to critics who favor the status quo, it is worth noting that restorative justice does not necessarily have to take the place of punitive or legalistic methods but can co-exist with them — and often do (Naylor, 2010, p. 679).

All cooperation aside, restorative justice has numerous benefits unique to its principles. One of the most important and relevant to the context of sexual violence is the measure of “social safety” that dialogue provides beyond the detainment of the offender(s), which can prevent retaliatory violence and strengthen community cohesiveness in the wake of a crime (Hayden, 2012: p. 9). In the context of intimate partner violence, restorative justice allows the relationship to be emphasized over consequences for the perpetrator, and this has the potential to foster safety predicated on changing the relationship rather than forced separation through imprisonment or restraining order, which the survivor[7] does not always desire (Hayden, 2012). The assumption that a survivor would always prefer to punish the offender than attempt to repair the relationship is not grounded in reality (Hayden, 2012). Moreover, unlike the adversarial court system where offenders are advised by their attorneys and supporters to lie or remain silent, restorative processes create the proper space and incentives for offenders to take full responsibility for their actions (Naylor, 2010). And regardless of the outcome, restorative justice is far more efficient and cost-effective than the courts (Sherman & Strang, 2007).

Pedagogical Framework

Perhaps the greatest weakness of restorative justice is that it remains largely unknown to service providers, anti-violence advocates, and survivors alike. The goal of this paper is to change that — if only on the micro level — but not before attempting to place this pedagogical effort in its proper context.

Although a gendered perspective is not the only lens with which to view sexual violence, it is indisputably the most common and arguably the most necessary because it is very difficult to conceive of a sexual assault hotline or resource center that lacks a sophisticated gender analysis and competency. Indeed, if one seeks to curtail or eliminate sexual violence, that person likely seeks to curtail or eliminate patriarchy[8] as well (Jenkins & Reardon, 2007, p. 209). Both goals have been the subject of much attention on the international level in recent decades, culminating in the adoption of the Convention on the Elimination of All Forms of Discrimination against Women by the United Nations and, more recently, the Declaration on the Elimination of All Forms of Violence against Women (Jenkins & Reardon, 2007, p. 211). With the foundation of masculinities studies in the 1990s, more and more linkages to other forms of oppression, such as racism and militarism, were made and are continuing to be made (Jenkins & Reardon, 2007, p. 211).

In the context of training those in the field to provide restorative alternatives to willing survivors and their supporters, peace education pedagogy, described by the preeminent Jenkins & Reardon (2007, p. 216) as “enabl[ing] learners to think in terms of complexities beyond the standard curricula on controversial issues that usually teach students to consider little more than the two major opposing positions involved in the public discourse on the issues in question”[9] is most appropriate. An honest teacher cannot limit the class discussion on sexual violence to the ‘woman’s side’ vs. the ‘man’s side’ — this would be laughable — however, conversations about justice are often limited — even by the brightest and most well intentioned — to the false dichotomy of retribution vs. inaction. The chosen pedagogy must transcend this self-imposed limitation.

This consideration, coupled with the acknowledgement that the debate is still open on the causes and consequences of sexual violence — not to mention the solutions to it — renders the “problem-posing” model of the renowned adult educator Paulo Freire (1990) highly applicable. The struggle against sexual violence falls completely within the Freirean principle of education for liberation from oppression, and there are few, if any, advocates and service providers who claim neutrality in their work against sexual violence. They instead position themselves on the side of the victim, who is oppressed, and many even go so far as to exclude from services those perpetrators — oppressors — who were themselves sexually victimized or otherwise oppressed, which represents the same challenge to the Hegelian dialectic that Freire himself faced in his work[10] (Schugurensky, 1998, p. 23).

As described previously the very nature of restorative justice comprises reflection, dialogue, and social action. It does not lend itself to mainstream top-down education, or what Freire (1990) calls “the banking model,” because there are no pre-packaged solutions to be presented to the participants; the participants suggest, debate, decide, and implement their own solutions. This is fully compatible not only with the Freirean method, but also with the general approach of sexual assault service providers and advocates to their clients. In fact, most organizational policies explicitly forbid them from telling survivors what to think and what to do.[11] Although Freire (1994) was highly educated and privileged compared to the peasant farmers he worked with in his home country of Brazil and other parts of South America, he insisted on placing his students at the center of his pedagogy, allowing them unprecedented control of their own learning and humbling himself to learn from them. This is very similar to the approach of sexual assault service providers toward their clients and could apply to an in-house restorative justice training program, where the service providers’ concerns and suggestions about the new service would, in turn, be given full hearing and consideration by management; all levels of the organization would, in effect, develop the program together.[12]

Project Implementation

Despite its compatibility with pre-existing structures and guidelines, restorative justice in the context of sexual violence is not just another resource to be catalogued in the service providers’ manual. The average person does not know what it is, so it cannot be assumed that a typical service provider or survivor in crisis would know, let alone be ready to perform the necessary functions. The proposed restorative justice training program — to be named whatever is deemed appropriate to the organization that seeks to adopt it — will effectively train the service providers to both inform clients of the new service and to work with them to implement it in their respective cases. Periodic training sessions, promoted throughout the community, can be held at the organization’s offices or at other locations that are suitable and secure. Selected service providers will be asked to serve as facilitators or support people in the aforementioned restorative conferences.

The conditions of the restorative conferences — including the length, setting, and number of participants — are to be carefully discussed and agreed upon by all major stakeholders, with priority given to the survivor(s) needs. The prior mandatory training of service providers in sensitivity and competency when working with survivors of sexual violence will do much to aid them in creating and maintaining safety and equity throughout the process. A relevant model is that of the Centre for Victims of Sexual Assault in Copenhagen, although the terminology used and cultural context is somewhat different (Naylor, 2010, p. 674).

On the subject of culture, to critics who dismiss a restorative approach to sexual violence on grounds that it is incompatible with Western values and traditions, it is worth noting that women who are indigenous to North America tend to view restorative justice in a much more favorable light due traditions pre-dating the arrival of European settlers and the cruel reality of the “White man’s justice” in their communities (Naylor, 2010, p. 677). If a sexual assault resource center’s list of services is to be fully inclusive, it must take into account non-Western traditions and notions of justice.

Conclusion

In light of recent calls for education to prevent sexual violence in response to the Steubenville, Ohio, case (Waldron, 2013) — breaking from typical responses that can be categorized as victim-blaming and/or safety-planning (Goodman, 2013) — this paper presents a relevant and complementary argument that represents but one small part of the solution. Indeed, the proposal is not primarily preventive in nature, for restorative justice is often responsive in its application, yet to apply it fully would be to change society with implications far beyond what is proposed by the brave and insightful Zerlina Maxwell[13] (Goodman, 2013). This far-reaching change will come in time, when the current justice system collapses under the weight of its own contradictions, but for those already inclined — Freirean types whose ideology and chosen profession represents a challenge to the status quo — an alternative is here and cannot be denied. Far from amounting to a retreat in the war against sexual violence, restorative justice is the “third way” between re-victimization and revenge (Wink, 2003).

Appendix: Resource List

Resources relevant for both the pedagogy and implementation of this approach:

Documents and Reports

• Beautiful, difficult, powerful: ending sexual assault through transformative justice

http://www.blackandpink.org/wp-content/upLoads/Beautiful-Difficult-Powerful.pdf

• Toward transformative justice: A liberatory approach to child sexual abuse and other forms of intimate and community violence http://www.generationfive.org/downloads/G5_Toward_Transformative_Justice.pdf
• Restorative justice: the evidence http://www.sas.upenn.edu/jerrylee/RJ_full_report.pdf

Books

• Freire, P. (1990). Pedagogy of the oppressed. New York: Continuum.
• Ptacek, J. (2010). Restorative justice and violence against women. Oxford: Oxford University Press.
• Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.

Websites

• http://www.phillystandsup.com/
• http://www.generationfive.org/index.php
• http://www.incite-national.org
• http://www.svri.org/justice.htm
• http://www.restorativejustice.org
• http://emu.edu/now/restorative-justice

References

(2012). Creative interventions toolkit: a practical guide to stop interpersonal violence. Creative Interventions. Retrieved March 15, 2013, from http://www.creative-interventions.org/tools/toolkit/

CARA / Communities against Rape and Abuse. Making connections: the anti-violence movement actively resisting the prison-industrial complex. Seattle: CARA / Communities against Rape and Abuse, n.d. Incite! Women of Color against Violence. Retrieved March 17, 2013 from http://www.incite-national.org/media/docs/9261_anti-prisonbrochure.pdf

Freire, P. (1990). Pedagogy of the oppressed. New York: Continuum.

Freire, P., & Freire, A. M. (1994). Pedagogy of hope: reliving Pedagogy of the oppressed. New York: Continuum.

Generation FIVE – Home. (n.d.). Transformative Justice. Retrieved March 16, 2013, from http://www.generationfive.org/

Goodman, A. (2013, March 15). DemocracyNow! [Television broadcast]. New York: Pacifica.

Hayden, A. (2012). Safety issues associated with using restorative justice for intimate partner violence. Women’s Studies Journal, 26(2), 4-16. Retrieved November 11, 2012, from the EBSCO database.

Jenkins, T., & Reardon, B. (2007). Gender and peace: towards a gender inclusive, holistic perspective. Handbook of peace and conflict studies (pp. 209-231). London: Routledge.

Naylor, B. (2010). Effective justice for victims of sexual assault: taking up the debate on alternative pathways. UNSW Law Journal, 33(3), 662-684. Retrieved November 11, 2012, from the EBSCO database.

Schugurensky, D. (1998). The legacy of Paulo Freire: A critical review of his contributions.

Convergence 31, (1-2), 17-29.

Sherman, L., & Strang, H. (2007). Restorative justice: the evidence. The Smith Institute, 1. Retrieved March 16, 2013, from http://www.sas.upenn.edu/jerrylee/RJ_full_report.pdf

Waldron, T. (2013, March 11). As Steubenville rape trial begins, petition seeks to educate coaches about sexual assault. ThinkProgress. Retrieved March 17, 2013, from http://thinkprogress.org/alyssa/2013/03/11/1700711/as-steubenville-trial-begins-petition-drive-seeks-to-educate-coaches-about-sexual-assault/?mobile=nc

Wink, W. (2003). Jesus and nonviolence: a third way. Minneapolis, MN: Fortress.

Zehr, H. (2009, May 27). Howard Zehr’s “Restorative justice three’s”. Restorative Justice Online. Retrieved March 16, 2013, from http://www.restorativejustice.org/RJOB/howard-zehrs-restorative-justice-threes

Zehr, H. (2011, March 10). Restorative or transformative justice?. Restorative Justice Blog. Retrieved March 16, 2013, from http://emu.edu/now/restorative-justice/2011/03/10/restorative-or-transformative-justice/