With its core emphasis on making things right, RESTORATIVE JUSTICE has particular potential for dealing with the complexities of sexual offences, particularly when they take place within families.
Particular attention needs to be paid when the victim is a child, due to the increased vulnerability of the child as well as the obvious power imbalance that exists between a child victim and an adult offender, which would be further heightened if the adult was an authority figure to the child, such as a parent, teacher or religious leader. A power imbalance could have the effect in a direct encounter that the victim/child is directly or indirectly dominated by the offender, that this prevents or limits the extent to which he/she is able to express his/herself, and that the harm he/she has suffered is not appropriately acknowledged. These factors do not mean that no form of encounter should take place, but they do emphasise the need for particular safeguards, support and protection for children. Special care must be taken to attend to the various issues at stake. The victim should never be coerced in any way to participate in an encounter process; what transpires during such processes should be directly relevant to the needs of the victim, and it should be kept distinct from the decisions that are taken regarding sentences and parole.
At the same time, the limitations of punishment, and the enormous individual, family and social destruction that imprisonment typically wreaks must not be overlooked. By their very nature, sexual offences frequently take place within a relational context, which indicates the necessity of considering this dimension of justice. The law and punishment remain blunt instruments to use in response.
What is needed is a nuanced and individually appropriate response that does not regard all sexual offences as the same and that recognises the relevance of the specific context. For example, a situation in which a man in his early twenties has engaged in a fully consensual sexual relationship with a 15-year-old girl cannot be viewed and responded to in the same way as a situation of an older man having groomed a girl of the same age or having forced himself on her violently.
In a challenging, moving TEDx talk (https://www.ted.com/talks/gretchen_casey_restoring_justice_repairing_the_harm_after_sexual_assault), speaking as both a rape survivor and the director of an organisation that advocates for the use of restorative justice services, Gretchen Casey highlights four issues around which a restorative justice meeting revolves: a description of the incident, listening to and acknowledging the impact of the harmful behaviour, discussing how to address the harm, and exploring how to prevent this from recurring.
Restorative justice invites people to examine the requisite behaviour for addressing guilt and the support required if harm is to be dealt with. Crucially, someone who has caused harm should be invited to increase their capacity to express regret, to extend empathy and repair harm; to face the trauma, the violation and the loss of safety and trust that they have caused for the person they have harmed.
For Casey, the need for restorative justice for victims and survivors of sexual assault is obvious. In the US context, as in South Africa, the number of women who experience sexual and other violence is enormous – research indicates that between 25% and 40% of South African women have experienced sexual and/or physical intimate- partner violence in their lifetime. The overwhelming majority of these women know their perpetrators. However, reporting rates remain low, with convictions in both the US and SA not rising above 10%. In view of this, she asks, how much is the criminal justice system contributing to safety and to holding perpetrators accountable? None of this is to suggest that we should not continue working to make the criminal justice system more effective. However, Casey’s point is that, in the face of this reality, we should not overlook, and be prepared to explore, other options. ‘Imagine’, she challenges, ‘we can help build empathy and accountability in many offenders by inviting them to alleviate harm’. If we don’t, we are responsible for denying them the opportunity to grow as human beings.
The RJC is currently looking for support for a partnership with the counsellors at a large tertiary education institution in Pretoria. They estimate that 80% of their clients are victims of childhood abuse. They will be equipped to offer this option to their clients. If the clients agree, the matter will be referred to the RJC to make contact with the alleged perpetrator and explore the appropriateness of arranging a meeting. Research will also be conducted with this group of clients. The existing counsellors will continue to support the victims. Arrangements will be made to refer perpetrators for individual and group counselling.