Restorative justice and domestic violence – getting it right

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Author: 
Jon Collins
Date: 
28 February 2017

Last week, Sam Gyimah – a minister at the Ministry of Justice – confirmed, in an answer to a parliamentary question tabled by Labour MP Christina Rees, that the government believes that ‘there can be a place for restorative justice in domestic abuse cases alongside prosecution’.

This is a restatement of the Ministry of Justice’s existing position. In their response to the Justice Select Committee’s inquiry into restorative justice, for example, they said that perpetrators of domestic violence should be prosecuted but that ‘alongside that, victims have a right to access restorative justice services to help them address their needs’. The latest iteration of the Code of Practice for Victims of Crime is also clear that victims of all types of crime should be able to access restorative justice.

It is, however, controversial. Today’s Daily Mail, for example, ran the headline ‘Thousands of thugs avoid prosecution for domestic abuse by simply saying sorry’. The article that followed, while not necessarily clarifying some important distinctions in the different applications of restorative justice, pointed out the very real dangers of using it informally in cases of domestic violence. On this, the Daily Mail, the government and the RJC agree - ‘street restorative justice’, a process conducted informally by the police, should not be used in cases of intimate partner violence. There are just too many risks involved in cases that are handled informally by the police in this way to be confident that restorative justice can be delivered safely and consistently. Unless and until these concerns can be addressed, it just should not be done.

In September last year, the RJC issued a joint statement with Women’s Aid making the same point. The statement, however, went on to say ‘Women’s Aid and the Restorative Justice Council are clear that restorative justice can, in certain circumstances, be useful in domestic abuse cases – but only if the survivor’s safety remains paramount.’ How, then, do we achieve that?

Domestic abuse is a broad term – it includes, for example, violence by children on their parents (there is a powerful example of the use of restorative justice in one such case in the latest edition of Resolution). But much of the concern is around the use of restorative justice in cases of what is known as intimate partner violence - violence by an individual against their current or former partner. This was the focus of the Daily Mail article today.

There are real and valid concerns about the use of restorative justice in these cases. Among them are:

  1. Concern that victim-survivors will be pressurised into taking part when they don’t want to (this should never be the case).
  2. Worry about the safety of the victim-survivor and the risk that further harm will be caused.
  3. Concern that the restorative justice process will provide the perpetrator with further opportunities to exert control over the victim-survivor.
  4. Apprehension that participating in restorative justice will enable perpetrators to ‘get off’ or get a lighter sentence.
  5. A belief that Ministry of Justice support for the use of restorative justice in intimate partner violence cases is really about diverting cases out of the justice system in order to save money.
  6. A perception that the use of restorative justice will see responses to intimate partner violence returned to those involved to deal with, when they should be the responsibility of the state.

While we know that restorative justice can have real benefits for victims of all types of crime, including intimate partner violence, these concerns merit discussion and consideration.

The first three are primarily concerns with the quality of the process and can therefore be addressed by ensuring that the preparation and the process itself, whether it’s face to face or indirect, are conducted to the highest standards. As Sam Gyimah went on to say, any restorative justice process in a case involving domestic violence must always be ‘carried out with effective and ongoing risk assessment and safeguarding in place and led by experienced and skilled practitioners’. This will ensure that the process is conducted safely and the victim-survivor is supported appropriately.

In addition, all restorative justice practitioners need specific training, either as part of or a supplement to their basic training. It should be focused primarily on enabling them to recognise where incidents that they are dealing with involve intimate partner violence, which can be an element in a wide range of offences, from criminal damage to serious assault.

To complement this, selected practitioners should receive specialist, in-depth training in how to manage cases involving intimate partner violence, and in particular around how to recognise and deal with coercive control. The RJC is currently looking to develop this training with partners in the violence against women and girls field and, once available, at least one practitioner from every service should complete it. They would then be able to take on cases of intimate partner violence as well as support and advise colleagues on these issues.

Restorative justice services should also develop links with local specialist organisations providing support to victim-survivors of intimate partner violence. This would enable shared learning, ensure that where a restorative justice service is working with a victim-survivor of intimate partner violence they are aware of locally-available support and, once trust has developed, potentially enable these services to refer suitable cases for participation in restorative justice. But the restorative justice field cannot expect support and advice from these services for free. They are underfunded and badly stretched and if restorative justice services need their help, it will have to be paid for.

For the fourth concern highlighted above – that participating in restorative justice will enable perpetrators to get a lighter sentence – we, as the restorative justice field, need to acknowledge that there is an element of truth to this. Where restorative justice takes place pre-sentence it can (although does not necessarily) affect the sentence, although there is no assumption that it will lead to a reduction in sentence or that it will automatically be considered as mitigation. There is also little pre-sentence restorative justice taking place at the moment in most areas. In addition, if restorative justice takes place while an offender is in custody it is possible, though again not necessarily the case, that it could be taken into consideration at a parole hearing. In reality, the impact is likely to be minimal. But what is most important is that this is acknowledged and that the victim-survivor is fully aware of it, so if they choose to take part then it is with a proper understanding of the potential implications.

The fifth issue raised, that restorative justice is really about saving money, is, I believe, a misconception. While the Ministry of Justice does support the use of restorative justice in some cases of intimate partner violence, their goal is to see it used as a victim service alongside a prosecution rather than as a part of an alternative to it. On this Sam Gyimah is clear, saying ‘adult perpetrators of domestic abuse should, wherever possible be prosecuted’. I wholeheartedly endorse this and believe that restorative justice can most effectively be used alongside a prosecution in cases of intimate partner violence. This is an additional expense, then, rather than a saving, but one that I think is worth incurring if the victim-survivor benefits.

Finally, it is sometimes suggested that using restorative justice in these cases will reverse the hard won gains of recent years in getting the justice system (and particularly the police) to take intimate partner violence seriously. It can, critics argue, give the victim-survivor responsibility for dealing with the perpetrator, when that should be the responsibility of the justice system. Again, I think this is a misconception. Prosecution, and a formal criminal justice response, should be the expectation in cases of intimate partner violence. Moreover restorative justice does not make the victim-survivor responsible for dealing with the perpetrator. The facilitator manages the process and supports the participants.

The validity in this claim is in the way that restorative justice can put victim-survivors back in control. Experiencing intimate partner violence, particularly where there is an element of coercive control, can result in victim-survivors having control over their own lives taken from them. The justice process often does little to address this, with victims of all crime types feeling it does not meet their needs or give them a voice. Many victims want to show the perpetrator that their behaviour hasn’t ruined their life. That they’re recovering and they’re moving on. Restorative justice can be a chance to do that.

There is a great deal of scepticism about the use of restorative justice in cases of intimate partner violence. When I joined the RJC I shared it, to a degree. But the stories of people like Emma (quoted today in the Daily Mail article) have convinced me that done well it can make a real difference for those victim-survivors who want to take part. Theresa May recently announced a major programme of work to improve responses to domestic violence, asking experts to ‘contribute ideas and proposals for improving the way the system works’. We’ll be arguing that restorative justice has a major role to play in making that happen.