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Abstract
Family group conferences place great emphasis on the restorative potential of the offender's apology. Apology, conceptualized as a prelude to healing, forms a sort of unspoken touchstone of restorative justice. And yet, once examined, apology emerges as a remarkably complex, variable, and fragile gesture. Even the most heartfelt apology can easily misfire. This article examines why, and does so in the context of selected Australian juvenile conferencing schemes. It commences by offering a definition of apology tailored to the contours of criminal justice. Then, by setting that definition against the empirical reality of conferencing practice, it uncovers a range of reasons for what Daly has termed the “gap” between conferencing theory and practice. There are, ultimately, limits to humans' capacities to meaningfully apologize and authentically forgive. These limitations need not be jumped upon by policymakers as” problems to fix,” but should simply be taken as delineating a boundary line of restorative justice.
Notes
1. Revised version of LLB Honours thesis submitted 18 August 2008 in partial fulfilment of the requirements for the degree of Bachelor of Laws in Monash University. The original thesis was awarded the 2008 Victorian Supreme Court Prize for Best Honours Thesis. Paper presented at Bringing Communities Together Conference, RMIT (May 2008), Towards Restorative Justice Conference, Sydney University (December 2009), Non-Adversarial Justice: Implications for the Legal System and Society Conference (May 2010), and Restorative Justice: Moving Forward Seminar (May 2010).
2. Comment transcribed from a New Zealand FGC (Braithwaite & Mugford, Citation1994, p. 146).
3. Young Offenders Act s 10(1)(c).
4. Young Offenders Act 1993 (SA) s 10(1).
5. Statement by Kathleen Daly (Personal email correspondence 1 August 2008).
6. Email from Kathleen Daly to Natalia Blecher, 1 August 2008.
7. Young Offenders Act 1993 (SA) ss4, 7. The offence must be “minor”: Young Offenders Act 1993 (SA) s 7(1)(b). Section 4 of the Act lists the following factors to be taken into account in assessing whether an offence is minor: the extent of the harm caused by the offence, the young person's character and antecedents, the young person's likelihood of reoffending, and the attitudes of the young person's parents or guardians (if relevant). This definition of “minor” is supplemented by an administrative order issued by the South Australian Police Department. The order defines FGC-eligible offences as those in relation to which the offender has already been formally cautioned, that are considered suitable for the victim's participation, and that have caused material loss of between A$5,000 and A$25,000 (South Australian Police, Citation1998 NV; Daly et al., Citation1998, p. 5).
8. Statement by Brigitte Bouhours (Personal email correspondence, 6 August 2008). Note that FGCs are sometimes run with multiple offenders or victims.
9. The first-year interviews focussed on the subjective perceptions of victims and offenders, while the second-year interviews sought to determine how these initial perceptions were shaped by the passage of time and changes in participants' lives (Strang et al., Citation1999, p. 99).
10. No confirmatory data are available in respect of RISE.
11. Too intimidated: 31% JPPE, 19% YVE. Pushed around: 26% JPPE, 35% YVE. Coerced into signing: 21% JPPE, 23% YVE. Disadvantaged: 8% JPPE, 19% YVE (Strang, Barnes, Braithwaite, & Sherman, Citation1999).
12. In SAJJ, 30% of offenders were observed to be defiant (Daly, Citation2002b, p. 35). In RISE, offenders were observed being defiant at rates of 1.9 and 2.6 out of 8 (for the JPPE and YVE respectively) and were observed being ‘sullen and unresponsive’ at rates of 2.8 and 3.0 respectively (Daly, Citation2002b, pp. 66–67).
13. More emotionally settled: 38% JPPE, 44% YVE. Less anxious: 40% after versus 31% before.
14. Criminal: JPPE 42%, YVE 35%. Bad person: JPPE 33%, YVE 31%. Someone who would reoffend: JPPE 25%, YVE 39%.
