“And focused upon victims’ needs”: towards an assessment of the victim-friendly principles of restorative justice practice

Abstract

Scholars and policy-makers typically laud restorative justice as being ‘victim-friendly’ in its rules and practices. High levels of victim satisfaction with its outcomes are put forward to substantiate this claim. However, there has been little research that engages with the constitutive role of restorative justice in shaping conceptions of identities, practices and needs. To address this gap, this article develops an analytic framework through which to assess the victim-friendly approach of restorative justice processes across social and legal contexts. In so doing, it engages with three key elements of restorative justice processes: firstly, how this justice approach conceives victims; secondly, how it shapes its practices (and not just outcomes) to address their concerns; and thirdly, how it responds to individual needs. The paper argues that engagement with the constitutive processes can bring a fresh perspective to the relationship between victims and restorative justice.

Keywords:

• Restorative justice
• victims
• constitution of identities
• rights
• needs

Notes

1. ICC, ‘Victims and Witnesses’, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/victims%20and%20witnesses.aspx.

2. While restorative justice works in many forms, this framework focuses upon processes that work through, or in tandem with, legal processes rather than those ‘outside’ of the law. See Johnstone (2011) for identification of the many areas into which restorative justice has been expanded, including schools, workplaces and residential care.

3. For an overview of debates as to whether criminal justice and restorative justice are competing or reconcilable paradigms see the edited collection by Von Hirsch, Roberts, Bottoms, Roach, and Schiff (2003).

4. The key principles of restorative justice are the subject of debate, both in scholarship and the differential conceptions used by domestic and international justice systems. For a historical overview of the development of restorative justice see Braithwaite (2002).

5. As it is beyond the scope of this paper, this analysis does not engage with the relationship between restorative justice and community participation, ownership or transition. For such debates in relation to the case of Northern Ireland see McEvoy and Eriksson (2008).

6. It should be noted that direct dialogue between victims and offenders is not an aspect of restorative justice as it is practiced at the ICC.

7. This study involved the observation of 89 conferences that were held during a 12-week period in the metropolitan Adelaide area and in two country towns. Interviews were conducted with victims and young people/ offenders in 1998 to assess whether elements of procedural justice and restorativeness were present in the conference, and then again in 1999 to examine how the passage of time has affected opinions and judgements of the process and its impact (Daly, 2003, p. 24–25).

8. For an exception to this see Strang (2012). In her analysis of four experiments that had been undertaken in Australia (the Reintegrative Shaming Experiments) and a further seven in the United Kingdom, Strang interviewed victims both a few weeks after their experience of the justice system (either restorative justice or court justice) and then, randomly, again after 10 years. In the follow-up interviews, it was found that 63 per cent of victims who had been assigned to a restorative justice conference (and 74 per cent among those victims who had actually attended a conference) were pleased that their case had been dealt with the way that it had (Strang, 2012, p. 93). This was compared to 37 per cent of court-assigned victims (Strang, 2012, p. 93).

9. For some scholars, any suggestion that restorative justice can lead to crime prevention is risky. As Hudson argues, for example, such an outcome ‘is not the ground on which restorative justice should be selling itself, because it is a ‘competition’ which restorative justice is bound to lose, and because it is likely to lead to restorative justice becoming complicit in ‘penal inflation’, having to up the amount of incapacitative measures included in agreements’ (2003, p. 190).

10. Zernova’s study involved a family group conferencing project in England. It involved in-depth qualitative interviews with 47 participants and 6 professionals. These included offenders, victims, offender supporters, victim supporters, a manager of a Youth Offending Team, a case worker from a Youth Offending Team, two family group conference facilitators and two Victim Support representatives (2007, p. 60).

11. ICC, ‘Victims and Witnesses’, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/victims%20and%20witnesses.aspx.

12. Van Camp and Wemmers interviewed 34 victims who had taken part in restorative justice practices in Belgium and Canada (2013).

13. ICC, ‘Victims and Witnesses’, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/victims/Pages/victims%20and%20witnesses.aspx.

14. Emphasis added.