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Abstract
In addition to the more conventional approaches of the criminal justice system, this article suggests that there is a need for restorative justice as another method of addressing sexual crime. In support of this view, the present article explores the possibility of a hybrid justice system based on a complementary relationship between restorative justice and the criminal justice system. An analysis of the limits of the criminal justice system and the need for restorative justice in the contentious area of sexual crime will be followed by a detailed examination of key justice considerations when trying to marry both criminal justice and restorative justice perspectives. Such considerations include: the meaning of justice; legislation; sentencing principles; due process; victims’ rights; and the location of restorative justice within/alongside/outside the criminal justice system. The aim of this article is to determine whether it is possible to reconcile two seemingly juxtaposed methods of justice delivery in the context of sexual crime in order to create a hybrid system of justice that best protects and responds to the rights and needs of victims and offenders.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. For our purposes, sexual crime is a broad term that is legally and culturally defined, and encompasses many types of sexual acts including contact and non-contact child sexual abuse, sexual assault, rape, sex trafficking, war-time sexual crimes, and sexual crimes perpetrated through the use of communication technology. We acknowledge that this definition is influenced and constrained by the limits of our cultural and social conditions, time, and place.
2. Restorative justice is an umbrella term for a number of restorative approaches, including (but not limited to) conferencing, victim–offender mediation/dialog and circles. During the restorative conference/meeting/dialog/circle, victims and offenders come together to resolve collectively how to deal with the aftermath of the offense. Restorative justice approaches are based on the premise that the offender owes a specific debt to the victim which can only be repaid by making good the damage caused through some type of restitution. In the instance of sexual crime, restitution can take many forms including an apology, a commitment, or an agreement. A written or verbal agreement may form a key element of a restorative justice process. Some restorative justice programs measure the completion of a restorative case in accordance with the offender’s performance of an agreement drawn up during the restorative justice meeting. The agreement may contain a variety of provisions such as a requirement that the offender must complete a therapeutic program. For a detailed consideration of the key definitions, concepts and approaches of restorative justice, see Keenan and Joyce-Wojtas (Citationin press), ‘Sexual crime: The need for restorative responses’ submitted.
3. Stubbs (Citation2003, p. 23) suggests that while we may attribute ‘symbolic value’ to these legal reforms, they are ‘likely to be limited in effectiveness’ due to the ‘resilience of cultural mythologies about women and about sexuality’. Therefore, we need to first and foremost challenge cultural (mis)understandings of sexual crime.
4. See for example the section 273 of the Criminal Code of Canada, R.S.C. 1985, c.C 46, which since 1992, has defined consent in sexual assault cases as follows: ‘consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.’.
5. Some scholars have looked at the global developments in the area of legal reform of sexual crimes. See for example: Daly & Bouhours (Citation2010), Daly (Citation2011), and Frank, Camp, & Boutcher (Citation2010).
6. In the criminal justice context, ‘attrition’ refers to the number of crimes that are committed which do not result in the perpetrator of the offense being convicted. Therefore, attrition is essentially a gap between the number of crimes committed and the number of convictions. Attrition occurs because there are various stages (such as the police stage, prosecution and trial) in the criminal justice process and many cases are dismissed at one of these stages so that the number of convictions represents only a small proportion of crime that has been committed. In addition many sexual crimes go unreported so that, while many more such crimes have been committed, they remain undetected by the criminal justice system.
7. The Irish study involved a national survey of 100 women who experienced rape in Ireland since 2002. Five hundred and ninety seven files from the office of the Director of Public Prosecutions (DPP) were also reviewed along with 173 Central Criminal Court cases and 25 transcripts of contested trials.
8. The study defines ‘prosecutable cases’ as the total number of cases excluding those cases in which the complainant had withdrawn the complaint. Over one-quarter of rape complainants withdrew their complaints.
9. The case-tracking sample is drawn from across the Republic of Ireland as a whole, which has a population of 4.25 million. Between April and September 2004, 100 cases were selected sequentially from a sample of cases originally reported as rape generated by the police data system, PULSE.
10. As noted by Keenan and Joyce-Wojtas (Citationin press), the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Citation1985) provides that victims of sexual crime are ‘entitled to access to the mechanisms of justice and to prompt redress’, ‘fair restitution from offenders’, and to be treated with compassion and respect for their dignity.
11. ‘Secondary victimization’ means that many victims of crime are victimized a second time through poor treatment at the hands of criminal justice system itself.
12. As a form of secondary legislation, the EU Directive Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime is binding on EU Member States as to the result to be achieved, though it leaves it to the respective national authority to decide how the Community objective set out in the Directive is to be incorporated into the Member State’s domestic legal system before a specified date.
13. Restorative Justice (Reparation of Victims) Bill 2013. Retrieved on September 8, 2014 from http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2013/10513/b10513d.pdf
14. Rehabilitation aims to reduce future crime by changing the behavior, attitudes, or skills of the offender. Based on the assumption that offending has specific causes, the focus of rehabilitation is on identifying and remedying these factors.
15. The objective of deterrence-based sentencing, which may constitute individual or general deterrence, is to influence future levels of offending through instilling fear of future consequences in either the individual offender, society at large, or both.
16. Incapacitation, which is generally achieved through imprisonment or another form of incarceration, aims to protect the public from future offending.
17. The proportionality between the seriousness of the offense and the severity of the punishment currently comprises one of the basic principles of sentencing.
18. In 1996, the sentencing principles in the Canadian Criminal Code were amended to encourage the use of community-based sentencing and focus on restorative elements such as the need to promote a sense of responsibility in offenders, and for them to acknowledge and make reparation for the harm they have done to their victims and to the community. In fact, paragraph 718.2(e) of the Criminal Code states that ‘all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.’.
19. A ‘means-ends relationship’ implies that the action taken must be compatible with the desired objective. In the case of sentencing, the punishment or sanction given must be compatible with the sentencing principle(s) applied to the individual case.
20. Bunreacht na hEireann (The Constitution of Ireland), Article 34.1. Retrieved August 25, 2013, from www.irishstatute.ie.
21. The double jeopardy rule states that where a trial process has concluded, a person should not be put at risk of being punished again for the same offense. The rationale for the rule lies in the public interest in protecting individuals from the trauma of repeated prosecutions and to encourage confidence in the criminal justice system (Law Reform Commission, Citation2006).
22. A hung jury is a jury that is unable to agree on a verdict. The result is a mistrial.