A 2018 report showed that around 99% of sexual violence cases go unreported, and that in most such cases the perpetrator is the husband. Based on data released by the National Crime Records Bureau, a Reuters report concluded that in about 90% of rape cases in India in 2014, the victim knew the perpetrator. In cases where gender-based violence (GBV) perpetrated by someone known to the survivor, they often have two choices—to either report the crime, which will end in imprisonment or acquittal, or to not report the crime altogether. Often non-reporting is used to doubt the narrative of the survivor and may even be used to construe consent on the part of the survivor. However, the question to be asked is: even after facing some form of GBV, why did a survivor choose to stay quiet rather than seek justice?
‘Justice’ is defined as the “fair treatment of people.” Often our understanding of justice ends at ensuring the wrongdoer is punished. However, this is a rather linear and myopic view of looking at ‘fairness’. A crime is seen as upsetting the ‘balance’ in society, and a part of how we view justice must account for restoring that balance. This requires going beyond the act of the crime itself and addressing the needs of the person wronged, the harm caused, and then reaching an answer for what justice could look like in that particular case.
What is Restorative Justice?
Restorative justice is a different way of looking at crime and our response to it as a society. Several judgements point towards the hostility embedded within the criminal justice system. The needs of survivors of GBV are often not accounted for within this system, which is adversarial in nature; designed to challenge the survivor’s narrative, and gives little control to the survivor. Add to this apathetic law enforcement officials along with the stigma attached with survivors of GBV, and the criminal justice system can become a site of re-traumatisation and re-victimisation for the survivor who may thereafter be discouraged from accessing formal legal processes.
To say that the traditional criminal justice system is the only route to justice for a survivor of GBV is neither reflective of the needs and requirements of the survivor, nor the shortcomings of the existing system in addressing crimes of GBV. In contrast to this, restorative justice is focused on the needs of the survivor. Restorative justice systems can function as an addition to, or as effective alternatives to the traditional criminal justice system.
The core of restorative justice is the recognition that the impact of harm on each individual is different. It also goes a step further and recognises how a particular act can affect persons other than the survivor and holds space for each of them to voice their grievances. The focus here is less to punish the perpetrator but more to safeguard the interests of the survivor—something that is often missing in formal justice systems. In other words, while the formal justice system focuses on who caused the harm, how to punish the harmdoer, and what harm is caused, restorative justice systems shift the focus to who was harmed, how the harm impacted the victims in question and how it can be rectified.
Another thing which sets the restorative justice system apart from the formal legal process is the survivor’s autonomy to decide how reparations to the harm caused can be made. While the formal justice system has a set of premeditated reparations that can be made often in the form of imprisonment and/or fine, restorative justice recognises the flaw in equating justice with punishment.
By allowing the survivor to find recourse in alternative, sometimes additional avenues, restorative justice recognises different conceptions of justice—justice as an apology, as an acknowledgement of harm done, as a voice and sometimes, of course, even as consequences. Often, these are conceptions of justice that are overlooked in the formal justice system which is concerned with establishing the truth rather than doing right by the survivor, often relegating the survivor to serve as a mere witness alone.
Restorative Justice in Practice
In practice, restorative justice can take up different forms such as Victim-Offender Conferencing, Family Group Conferencing, Peacemaking circles, and Restorative circles. Although largely flexible, these processes are led by trained restorative justice practitioners who play an important role in consulting with survivors, offenders, and everybody involved to assess the suitability of the program. Where it seems possible that offenders are manipulative or that survivors are very vulnerable, for instance, they discourage such a process.
Restorative justice focuses on inclusion of all parties in finding what justice would look like in that particular case. It has at its foundation the understanding that the most effective way to reach a resolution is also to have the affected parties decide together. Generally, the main sessions may be preceded by individual sessions between the restorative justice practitioner and each relevant party including but not limited to the survivor, offender, respective families, and community members as well. This helps them understand their expectations, needs, and concerns in relation to the process.
Often these separate meetings will also involve preparing the parties by setting expectations, discussing possible outcomes and logistics such as where the meetings will be held and who all will be present. These decisions are arrived at by mutual agreement ensuring that they are all prepared and not taken by surprise. In some sessions, these meetings can also involve families or communities of the survivor and/or perpetrator participating in the form of family or community group conferencing. Face-to-face sessions with the entire circle may help in meeting some of the survivor’s self-identified needs. Support of the family or community can help the perpetrator in doing right by those harmed.
Peacemaking or sentencing circles is also another mode by which restorative justice may be practised. Here, all stakeholders come together with the intention to reach a consensus as to a sentencing plan, if any, to repair the harm that has been caused to all concerned. It ensures that all concerned have a shared responsibility to reach a constructive solution, which accounts for the needs of the survivor and works towards repairing the harm.
Unlike the traditional criminal justice system where the survivor and the perpetrator do not have much role to play beyond providing testimony, the restorative justice process actually allows them to have a voice. It is a survivor-driven process and provides a survivor with validation and acknowledgement for the harm, and a safe space where they can process that harm and move towards a resolution suited to their needs and experience.
Experiences of Survivors and Practitioners with Restorative Justice
While there is not much data around experiences of survivors who have been through the restorative process, there have been cases where survivors have opted for restorative justice processes. In a particular case, even after the offender had been sentenced, the survivor decided to meet and forgive the offender after receiving an apology. Often, even if survivors do not walk away with complete closure from the restorative process, it does initiate positive change which might help survivors move towards a sense of closure.
An empirical study of the Restorative Justice Project in Arizona, where restorative justice conferencing was offered to survivors as an alternative in some cases of sexual crimes, concluded that 83% of the participants felt a sense of justice through their participation in the process. Reports from USA also suggest that in cases involving varying cases including those of sexual violence, 91% of the victims who participated stated they would participate in another conference. A study done to evaluate the effectiveness of Restorative Justice Conferencing concluded that in cases where victims and offenders were willing to meet, victim satisfaction with handling of cases is consistently higher compared to victims whose cases went through the normal criminal justice process.
A practitioner who left the practice of law to become a restorative justice practitioner defines the practice as follows:
“Restorative justice brings those who have harmed, their victims, and affected families and communities into processes that repair the harm and rebuild relationships… The process invites truth-telling on all sides by replacing punitive approaches to wrongdoing in favor of collective healing and solutions. 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?”
The Way Forward on Integrating Restorative Justice Pathways
For restorative justice to be truly successful some safeguards have to be put in place. It needs to be ensured that a restorative justice process is only set into motion after free and fair consent of the survivor is taken. It will also require availability of sufficiently trained restorative justice professionals. The process should also only begin after a perpetrator acknowledges the harm and is willing to take responsibility for it by participating in the process to find a resolution.
Moreover, the process should stop immediately if a survivor wishes to withdraw consent at any time during the process, or if the restorative justice professional opines that continuing the process would be harmful for the survivor. Safeguards such as these would ensure that the restorative justice process is not misused by perpetrators to coerce survivors into ‘settling’ the matter and avoiding imprisonment. Safeguards are also required to ensure that well-being and safety of the survivor remain paramount considerations both for initiating and continuing the restorative justice process.
While the traditional criminal justice system forms an integral part of the justice delivery system and we must continue working towards improving its response to GBV cases; it would be incorrect to say that all survivors of GBV look at justice exactly the way the system delivers it. Restorative justice is neither a replacement for the existing criminal justice system, nor an all-encompassing solution required to effectively deal with violence. It however puts in place a mechanism which respects the autonomy of survivors and gives them a choice. It at least provides for a space where, in comparison to the existing criminal justice system, more of the survivor’s needs and expectations can find a voice.
Since, the justice system is set in motion because of the crime that a survivor of GBV has suffered, it is only ‘fair’ that the system at least gives them the option to opt for restorative justice if it suits their needs. Giving an alternative system where survivors can voice their needs will at least ensure they are not forced to keep quiet because the existing sole route to justice is laden with too many obstacles.
This article is written by Ashita Alag, Senior Program Officer, Knowledge and Advocacy at One Future Collective.