Recalibrating victimhood in the European Union and Canada

Directive 2012/29/EU of the European Parliament and Council, which came into force in 2015, establishes minimum standards on the rights, support and protection for victims of crime. How precisely such standards might be braced in specific contexts raises many theoretical and practical matters for member states and beyond. Conceptually, it also raises vital questions about the possibilities and dangers of developing specifically ‘victim-led’ approaches as alternatives to state criminal justice systems. If restorative justice analysis is to provide viable alternatives to state criminal justice in this context, its conceptions of victimhood become pivotal.

Working off different theoretical trajectories (sociological, socio-legal, discursive, cultural, political, criminological, legal, critical), the varied contributions to this special issue discuss formulations of ‘victims’ suitable for restorative alternatives to criminal justice. Comparisons between Canada and the EU inform bifurcated discussions. On the one hand, several articles discuss the implications of victim-led restorative approaches for policy, indicating ‘bottom-up’, or communally generated, programme development and relationships to criminal justice. On the other hand, critical formulations analyse whether it is possible to offer restorative alternatives while embracing basic criminal justice concepts, including ‘victims’ but also ‘offender’ and even ‘crime’ (as opposed to say ‘harm’). This special issue aims to frame a new series of debates in the context of Canada and the European Union, thereby providing foundations for evaluating the possibilities and prospects of governing through restorative or transformative justice, rather than simply to assent to the hegemony of criminal justice.

The papers in this special issue arise from a symposium, Recalibrating Victimhood: Restorative Justice, Victims’ Rights and Social Transformation in the EU and Canada, held at the University of Alberta in Edmonton, Canada, in February 2016.¹ The symposium examined, first, how well suited the EU legislative framework was for delivering transformative approaches to criminal justice; and, second, reflected on experiences in Europe and North America to draw lessons for the conceptualisation and application of restorative justice. As is evident, the revised and more fully developed papers touch on a wide range of debates; but all attempt to evaluate restorative justice developments driven by ‘directives’ that demand victim-centred approaches to justice, across theoretical perspectives, practical programmes, and geographical contexts. In concert, they offer critical discussion of the conceptual and practice-based background to legislative and policy discussions that affect restorative justice, especially in Europe. Most point to the potential threats posed to restorative justice aspirations that appear when formalised, top-down legal/regulatory structures enable widespread appeals to victim-centred justice (such as the 2012 regulation). Most recognise and analyse the paradoxical elements of legislation driven by victims’ rights movements, and which are centrally required and implemented in still largely offender-centred-focused criminal justice systems.

In the opening paper, Ivo Aertsen provides a comprehensive overview of the diversity in restorative justice practices across European countries and of the European-level drivers of restorative justice policy. He highlights the role that soft law has played in promoting practices, especially in mediation, with actions by the Council of Europe in the 1990s and the EU Council Framework Decision in 2001, before the adoption of more legally binding regulations in 2012. Despite the ‘legalisation’ of restorative justice through binding EU legislation, driven at least in part by influential victims’ rights movements, he notes that, on the ground, diversity in restorative justice practice is still the order of the day, as is the limited take-up of programme offerings (he points us to gatekeeping of referrals). The diversity of restorative justice practice reflects different images of how to conceive of victims—those held by restorative justice practitioners differ significantly from the protective attitudes of victim support workers. He concludes with a call for restorative justice to focus more broadly on justice as it seeks to transcend a current fixation on victim identity, and to consider crime and victimhood as products of broader social formations.

For his part, Theo Gavrielides offers an assessment of the above-noted EU legislation and its implementation. He argues that the intent of these legal frameworks was shaped by the victims’ rights movement lobbies, and by the EU's continuing human rights agenda, and so fall short of the expectations of restorative justice analysts and practitioners. With narrowed understandings of the area, the EU legislation does not make restorative justice mandatory for member states, nor does it seek to promote restorative justice. Instead, it introduces a framework to regulate restorative justice when used by member states, thus inserting a focus on rigid service delivery standards in ways that might challenge more transformative restorative justice initiatives. He views the EU's approach as top-down and legalistic, and so incapable to attending to nuanced ways to approach, define or identify victims. It also leaves unchallenged existing power structures.

Gerry Johnstone considers restorative justice's ‘lofty’ aspirations to provide a clear alternative to ‘crime and punishment’ discourses that focus criminal justice initiatives on offenders. By contrast, as is well known, advocates of restorative justice require that those most affected by events should be directly involved in defining the harms at hand; including, what those who caused the harm should do to repair it, and to identify the needs of those who have experienced harm. External criminal justice attachments to punishment regimes may certainly obstruct restorative aspirations, but so do internal contradictions within the movement. His paper locates an example of this in the contradictory roles that restorative initiatives assign to victims. On the one hand, victims are encouraged to be involved in reforming offenders, but on the other, they are cast as beneficiaries of the ‘healing effects’ of restorative programmes. The resulting role tension structurally limits restorative aspirations to deliver an alternative to criminal justice. A general failure to understand the implications of such contradictions undergirds Johnstone's call for ‘modification and refinement’ of advocates’ discourses.

If Johnstone focuses critical attention on restorative justice's inadequate understandings of assigned victim roles, George Pavlich takes up a related critique that contests its emphasis on victims and their rights (which makes restorative justice an attractive response to the above-noted EU directives). That emphasis, for Pavlich, may overshadow an equivalent need to focus on the rights of those accused of committing criminal harms, and who participate in restorative measures. Without developing restraints on the powers of restorative justice, those accused of wrongdoing could face its agents’ unfettered discretion. However, turning to universal rights for accused subjects, as is common in criminal justice contexts, would likely undermine restorative aspirations to provide a responsive social justice. He thus calls for a new approach to rights for the accused that are conceived more broadly within historically specific power struggles, and which may be serve as fluid restraints upon flexible restorative measures. Such rights are then always part of political struggles, and specifically of attempts to resist the potential for injustice through restorative powers directed at accused subjects.

In a related critique of restorative justice, Amanda Nelund worries about restorative justice's contradictory calls to provide an alternative to the criminal justice system while at the same time using and reinforcing the latter's identities of ‘victim’ and ‘offender’. Drawing on feminist socio-legal critiques (e.g. Walklate, Gotel) and community justice programmes in Manitoba, she shows this practice to be especially problematic for marginalised and criminalised women, but also for those who are subjected to criminal justice processes that compare and judge them against a so-called ideal victim. Not surprisingly, many women refuse the subject identities required by both criminal and restorative justice; Nelund thus urges a complication and troubling of purported distinctions between victims and offenders, showing the value of resisting these to settle on subject identities such as ‘marginalised women’ as a promising way to secure transformative justice.

Along related lines, Joao Salm and Adriane Coelho's paper redresses the relative paucity of critical research in the field of juvenile restorative justice. It does so by exploring the discursive framings of two declarations—the Ibero-American Restorative Juvenile Justice Declaration and the Leuven Declaration of Restorative Approach to Juvenile Crime. They engage critical discourse analysis to provide a close textual review of how these declarations represent juvenile restorative justice and its concepts. The findings indicate that the declarations simultaneously aspire to visions of restorative justice that are distinct from criminal justice, and yet hold to a discourse that reflects more basic allegiances to founding concepts of the latter. Referring to Pavlich's notion of an ‘imitor paradox’ at play here, the authors call upon juvenile restorative justice initiatives to be more consistent and responsive to constituent communities when developing aspirational declarations.

It is easy to lose sight of just how legislation imparts (implicitly or otherwise) visions of justice, subject identities and human needs that it seeks to address. Susan Sharpe's article reflects on the laudable recognition that the EU guidelines accords to those harmed by wrongful behaviours, but given the broader criminal justice of which it is a part, she is less sanguine that such reforms are sufficient to achieve the ‘paradigm shift’ that restorative justice pursues. She argues therefore for changes to justice arenas such that in policy and practice they provide for ways that facilitate people's sense of safety, collective attachments, ‘mutual accountability’ to one another, and enable them to resolve tribulations effectively together. For her, justice systems need to be clear on what kinds of social relations participants experience as just, and to enable processes that nurture these relations.

Ronnie Lippens takes a rather different tack when exploring the EU Directive's implicit assumptions about victims of crime as ‘atomically separate’ beings, who have individual rights, and who can choose whether to participate in restorative justice initiatives. He tracks the foundations of this vision (and indeed the broader restorative justice movement) to what he calls a ‘sovereign victim culture’ that spurred the development of control societies. The auspices of this cultural horizon emerged from post–Second World War conditions that agonised over the authoritarianism and sheer horrors of contemporary events. He shows how the art of Jackson Pollock and Mark Rothko marks out their anguish over authoritarian political auspices. This sort of art helped to generate a ‘sovereign’ victim-centred culture that menaces our ability to imagine transformative justice possibilities. Working through this quandary, Lippens argues for space for restorative justice practices that take cognisance of the cultural conditions and yet nurture transformative communications between people in search of more just lives.

Annalise Acorn served as somewhat of a ‘impromptu rapporteur’ at the symposium, and her paper in this collection reflects on a common understanding in the essays; namely, calling for restorative justice to find ways to better understand and grapple with the social inequity and exclusion that promotes criminal behaviour. But she uses the occasion to question a theme common to the contributions; namely, a general, ‘skepticism about the victim offender dichotomy’ which she tracks against ‘the overriding aspiration to theorise restorative justice so as to make it more effective in perceiving and ameliorating the underlying inequality and marginalisation at the root of crime’. However, arguing in a direction that is both akin to, and critical of, tendencies within the symposium, she argues in favour of maintaining a moral version of the victim. She uses case examples to show how restorative justice that aligns with state justice can provide an effective way to nudge consequential social justice changes. For Acorn, it is most appropriate to pursue a version of restorative justice that encourages state agencies to take proper responsibility for funding and finding effective ways to redress the ‘inequality and marginalisation’ that yields crime—a structural matter that falls squarely within the state's ambit.

In concert, the papers raise several thorny issues facing victim-led visions of justice that tie restorative initiatives to basic precepts of criminal justice. Can restorative justice, for instance, maintain integrity as a viable alternative to criminalising forms of justice when minimum standards for basic rights and protections of victims are framed by governmental forms associated with criminal law? This question certainly harkens back to restorative justice's early aspirations to work through different ‘lenses’, paradigms, and approaches when grappling with conflict and harm (Strang & Braithwaite, 2001; Zehr, 2015; Zehr & Toews, 2004), resisting thereby the bureaucratic, adversarial and offender-guilt focus of criminalising institutions (see Baskin, 1988; Matthews, 1988). A primary restorative aim here was to reinstate damaged social relations to be achieved beyond alienating and hostile courtrooms. The quest was to enable individuals and communities to take responsibility for defining, as well as dealing appropriately with, harms produced in their midst (see Johnstone, 2011). From this vantage, one might question whether the EU's directive on victim-focused criminal justice is a suitable way to achieve such paradigmatic shifts, or to facilitate communally organised justice that would—in effect—limit state criminalisation. Some of the papers below thus question whether directing criminal justice to adopt a victim rights focus is at odds with the localised objectives of restorative justice. That is, if the aim be to support local participants of injurious events to define and work out remedies for perceived harms—through say dynamic, communal, restorative processes—then can one effectively defer to directions framed by omniscient lexicons of state criminalisation? (Christie, 2013).

Addressing different dimensions of this complex issue, the authors explore the stakes of restorative justice as it (contradictorily) champions ways to hear victim voices, infuses the state's criminalising institutions with different notions of justice, and seeks wider social changes. As to the latter, most are not sanguine about the socially transformative prospects of restorative incursions that limit themselves to securing individual victim rights, or that accede to a cornerstone of criminal justice; namely, clear-cut distinctions between guilty offender and victim identities. Several papers suggest that this approach too starkly limits wider transformations by its focus on individualised identities born to problematic social orders—whether images of victimhood be framed by (EU and other) declarations, state criminal law, victim rights groups, contradictory restorative expectations, or the ‘sovereign victim culture’ within control societies. A concern here is that by framing initiatives around individually identified victims of crime, restorative aspirations to reduce harm via wider social transformations are thereby unduly stunted. Pitting rights of ‘victims’ at the expense of accused ‘offenders’ further highlights the need to pay attention to the complex powers that underlie harmful events and responding restorative justice measures.

On this note, the papers, implicitly or explicitly, allude to contemporary power relations. A broader discourse points one to the marginalising inequalities of class, race and gender relations behind destructive social acts; these relations contour, for instance, contemporary patterns of criminalisation (Alexander, 2010), victimisation (Walklate, 2011), overcriminalisation (Husak, 2009), and the mass imprisonment that flows from vast criminalising practices (Simon, 2014; Wacquant, 2009). However, as the following discussions variously intimate, such powers are only partially addressed, and worse eclipsed, by justice initiatives that focus exclusively on individual victim rights. They suggest too that distinctions between victim and offender identities are not always clear-cut when social inequalities and political patterns of marginalisation are added to the mix (Pavlich, 2005).

In the end, though, we are still confronted with the difficult question of how restorative justice might today react to, and proceed politically in, a criminalising ethos promising to hear victim voices. Some will deem it appropriate to make the most of opportunities that present themselves for the expansion of restorative ideas, thereby making restorative inroads into criminal justice hegemonies rather belatedly concerned with victim perspectives. The EU directives might then be considered a potential windfall for restorative initiatives. By contrast, others will worry about a Mephistopheles-like pact that trades the transformative, community-enabling, legacy of restorative justice for expanding its current forms in the service of criminal justice trends. There is more than a grain of truth in both. But we tend not to regard such ‘either/or’ choices as appropriate when confronting the social complexities of expansive criminalisation institutions that have unfolded over centuries. Rather we see the obligation to remain permanently vigilant to the dangers posed by all engagements with fluid power relations directed at bordering societies in the name of justice—especially when that justice promises reduced criminalisation or restorative communality, and yet upholds idioms of criminal offender, victim and punishment. Such vigilance is predicated on an indefatigable scrutiny of context, and we see in the following papers precisely the attentive, if never-finished analyses demanded as we imagine anew the meaning of restorative justice today.

Notes

1 The symposium, organised by the European Union Centre of Excellence at the University of Alberta, was co-funded by of the European Union. The authors are solely responsible for the content of the symposium contributions and the articles in this special issue.