Functional Apologies in Law

Abstract

Apology has recently emerged from being a relatively obscure construct in law to one that is prominent in various areas of law through actual or proposed law reforms. Whilst law reform is welcome, it is important that changes should be grounded in scientifically accepted theories and supported by research data and, furthermore, that the effectiveness of such endeavours should be evaluated before they are further expanded. This cannot be said of the growth of the use of apology in law. In this article I use a model of apology developed by Slocum, Allan and Allan (2006) to examine why apologies may be functional in law. I also examine what form an apology may have to take to be functional in criminal, civil, and constitutional law respectively.

Key words:

• apology
• remorse

Acknowledgements

I thank Maria Allan, Robyn Carroll, and Dianne McKillop for their valuable comments on earlier drafts of this article and Mary Edwards for her editorial assistance.

Notes

1. The process that victims engage in when the cause is not seen as an act of people is important for therapy and theology, but not law, and is therefore beyond the scope of this paper.

2. There is evidence that apologies enhance forgiving which in turn can improve the mental and physical health of victims (for a discussion see Allan, 2007).

3. I appreciate that focusing on collectives requires transporting constructs as apology, forgiving, and reconciliation from interpersonal relationships to groups (Olson, 2000). This is a limitation of this review as most, if not all, of the psychological research I refer to was undertaken with individuals rather than groups.

4. There is evidence from the restorative justice area that wrongdoers who apologise are less likely to reoffend (Haley, 1986; Morris and Maxwell, 1997).

5. There is a debate in the literature regarding the use of court-ordered apologies as punishment (Bibas and Bierschbach, 2004) and whether an apology is sufficient to replace punishment. It is possible that for minor crimes society members may consider the shaming associated with an apology as sufficient punishment to constitute the action component, but in cases where the harm was serious society may require more (Garvey, 2003; Robinson, 2003). In serious cases it is possible that society will expect the action component to include punishment in the form of a prison sentence or a fine; or alternatively compensation in some form.

6. Schmitt, Gollwitzer, Förster, and Montada (2004) found that when wrongdoers offer restitution victims may interpret this as encompassing an admission of liability and an expression of regret (see also Witvliet, Worthington, & Wade, 2002). However, Robbennolt's (2003) finding that partial apologies, which in effect were an expression of regret coupled with an offer of restitution had a neutral effect on settlement behaviour, seems to contradict this.

7. Mediation is used in various other areas of law, particularly in civil law, see for instance Carroll (2005), but to keep this discussion contained I will focus on mediation in family law in this article.