Victim participation in a restorative justice process : the Canberra Reintegrative Shaming Experiments

Abstract

This thesis addresses the role of victims in our criminal justice system and the shortcomings they perceive in the way they are treated. It examines whether restorative justice can offer then more justice that they receive from the formal court-based system. Before the rise of the modern state, restorative justice was the dominant model of resolution for disputes and criminal actions. However, the victim’s role in Western criminal justice declined over time, until only a vestigial and debased part as a witness for the prosecution remained. Research into the shortcomings of the court-based system has identified a number of issues that victims want to address. In brief, they are found to want a less formal process where their views count, more information about both the processing and the outcome of their case is dealt with, fairer and more respectful treatment, and emotional as well as material restoration as an outcome. Over the three decades, the victim movement worldwide has agitated for an enhanced role of victims in criminal justice. Despite some successes, it appears that structural as well as political factors may mean that victims have won as much as they are likely to gain form formal justice. The Reintegrative Shaming Experiments (RISE) in Canberra provide an opportunity to compare the impact on victims of court-based justice with a restorative justice program known as conferencing. This randomised controlled trial assigned middle-range property and violent offences committed by young offenders either to court (as they would normally have been treated) or to a conference. The study achieved a love level of treatment crossover (three percent) and a high victim interview response (85 percent). With material restoration, while few in either treatment group received money, conference victims were more often offered non-financial restitution. With emotional restoration, conference victims tended to express higher levels of satisfaction than court victims. Their feelings of anger fear and anxiety towards their offender fell markedly after their conference while feelings of security for themselves and sympathy for their offender increased. The conference usually had a beneficial effect on victims’ feelings of dignity, self respect and self-confidence and led to reduced levels of embarrassment and shame about the offence. Overall, victims most often said their conference had been a helpful experience in allowing them to feel more settled about the offence, to feel forgiving towards their offender and to experience a sense of closure. Court victims, especially those who had experienced violent crimes, felt much more afraid of revictimisation than their conference counterparts, and also more vengeful towards their offenders. Almost all victims in both treatment groups said that they wanted an apology from their offenders, but an apology was six times more likely to be offered to conference victims than court victims. Conference victims also expressed high levels of satisfaction about the way they were kept informed about their case, the extent of their participation and the fair and respectful way in which they were treated. No gender bias was evident in how victims felt about the way their conference was conducted and males and females indicated equally strong perceptions of procedural justice. A significant minority of victims were dissatisfied with their conference experience, though this was expresses most often in terms of process failures rather than principled objections to restorative justice. These failures included inadequate police investigations of the offence, inadequate facilitator training, inadequate prior explanation to victims of their role in the conference and what they may legitimately expect from the process, and poor conference organisation. The restorative alternative appears to present an opportunity for victims to gain much more than they can from the court, but there is sometimes greater risk of secondary victimisation through their exposure in conferences. Finally the thesis tests the assertions made by both victim advocates and offender advocates that in criminal justice gains for one party can only be made at the expense of the other party, that is, the process is a zero-sum (win/lose) game. The analysis shows that the victim and offender pairs both tended to see conferences as superior to court on measures of emotional restoration, participation in the process, perceptions of procedural justice and the legitimacy of the criminal justice system. In sum, win/win outcome was much more common in conferences than in court across the concerns the research showed to be central to victims. Lose/lose outcomes were more common in court than in conferences. In the area of emotional restoration, conference-assigned victims and offenders appeared to influence each other so that both parties were more likely to ‘win’. In the area of emotional harm, court assigned participants appeared to influence each other so that both parties more often tended to ‘lose’. The analysis showed no support for the zero-sum hypothesis – ‘win’ for the victim did not increase the chances of a ‘loss’ for the offender, nor vice versa. The empirical evidence of RISE suggests that the restorative justice alternative of conferencing more often than court gives victims what they say they want. The court system continues to fail victims in terms of providing adequate information about the processing and outcome of their case, while the formality of traditional practice renders unachievable meaningful victim participation and restoration, especially emotional restoration. More rigorous research is required to discover whether victims of other crimes in other locations also can look to restorative justice to give them the justice they seek and deserve. Research is also needed to reform restorative practices to better serve those victims who were found to be worse of in the restorative process than in court. Show more