In this guest blog post the Centre for Innovative Justice (Victoria, Australia) explores the potential of therapeutic jurisprudence and restorative justice approaches to provide innovative justice responses to sexual offending…
Despite the concerted efforts of advocates and reformers, our conventional justice system struggles to engage with the reality of sexual offending and its aftermath. Estimates suggest that less than one per cent of all incidents of sexual assault result in a successful prosecution in Victoria, Australia. Harsher punitive measures, including sex offender registers, are contributing to more individuals accused of sexual assault contesting the allegations. This imposes an additional challenge when prosecutions are already hard to bring, the vast majority of sexual offences involving no corroborating evidence, or committed long before complaints are brought. Meanwhile, accounts unfolding at the Royal Commission into Institutional Responses to Child Abuse reveal the limitations of seeking redress through the adversarial civil justice system.
Upon its establishment the Centre for Innovative Justice (CIJ) was urged by stakeholders across the justice system to explore options for improving the law’s response to sexual assault. Victim advocates, prosecutors, defence lawyers and judges expressed concern about the attrition rate for sexual assault prosecutions, the impact of discontinuation and acquittal on victims and their families, and the system’s failure to promote accountability and rehabilitation, instead entrenching offenders’ patterns of denial and minimisation.
Our challenge was to look beyond reforms to the substantive law, to identify new options and pathways that may have greater potential to meet the diverse needs of victims, to promote accountability on the part of offenders, and to prevent future abuse. Firmly believing that the public interest in prosecuting and convicting offenders must be preserved, our objective was not to devise options that would dispense with the conventional justice system, but instead to identify a suite of responses that could exist alongside it.
The primary focus of our report, Innovative justice responses to sexual offending – pathways to better outcomes for victims, offenders and the community is restorative justice conferencing, where the victim and offender come together in a structured, mediated encounter to repair, to the extent possible, the harm caused by the offending.
The application of restorative justice conferencing to sexual crimes remains controversial, primarily out of concern not to see victims re-traumatised and sexual assault re-privatised. However, emerging programs, such as New Zealand’s Project Restore, and the Defence Abuse Response Taskforce’s Restorative Engagement Program, demonstrate that there is a demand from victims for interventions of this nature.
Clearly, restorative justice conferencing will not be appropriate in every case. Many victims will not want to confront their offender or may consider prosecution to be their primary need. However, it is precisely the personal nature of a restorative justice encounter that can offer the redress that other victims seek.
Answers to specific questions, an apology, an agreement about future contact or disclosure to family – outcomes such as this are often intensely personal, with restorative conferencing far more likely to deliver them. It is also a process that can provide the necessary groundwork to encourage an offender to commit to treatment and rehabilitation.
Our aim was to develop a restorative justice conferencing model that would provide a roadmap for others to use. That meant developing a clear process that was easy to follow. It also meant weighing up difficult issues, taking a victim-centred approach while balancing the community’s expectations of public denunciation; as well as the imperative to protect the rights of the accused. Too often, of course, people assume that the interests of victims and offenders are polar opposites – that we must be as adversarial in our approach to reform as the system we are trying to change. The CIJ believes, however, that it is possible to do both – that giving victims additional options can actually bolster the effectiveness of the underlying system.
Ultimately, the model that we recommended is flexible, but retains significant checks and balances.
It can be used as an alternative or addition to prosecution and can apply at any stage in the criminal justice process. This includes at the post-charge stage, but only when prosecution is not deemed viable.
It is also not confined to any category of victim, offender or offence, as we considered that this would limit the options for victims. Equally, we did not want to limit incentives for offenders to participate, recommending that admissions should be immune from use outside a conference, except where it becomes apparent that a person is at immediate risk.
Jurisdictions should give further consideration to whether an offender’s participation should be recorded for the purposes of public safety schemes.
Basic eligibility and suitability criteria are suggested to assess whether a victim is adequately prepared and an offender’s participation genuine.
Legislative support and structural oversight are recommended, as is engagement of specialist personnel and an expert Assessment Panel.
Pathways into and out of conferencing are laid out and gatekeepers, such as judges, nominated to ensure that a conference is not pursued when prosecution would be more appropriate, or when a case is simply deemed too difficult.
Links to appropriate sexual offender treatment programs are also addressed, as is the need for a coordinated, properly resourced system.
Phased implementation is recommended so that jurisdictions can develop the required understanding and expertise.
In addition to recommending a restorative justice framework for sexual assault matters, the report also proposes greater use of therapeutic justice initiatives such as specialist sex offender courts, post-sentence, problem-solving courts and pre-release courts, and circles of support and accountability. Beyond this, the report explores the potential for greater integration of therapeutic and restorative practices in sexual assault matters in the civil and crimes compensation jurisdictions.
Of course the implementation of any of these proposals remains a matter for individual jurisdictions. As long as we are genuinely dedicated to improving outcomes for victims, however – and to tackling the scourge of sexual violence – the momentum will be there for proposals of this nature to be taken up, either on a formal legislated basis, or through increasing examples of innovative practice.
The Centre for Innovative Justice (CIJ) was established by RMIT University in 2012. The mission of the CIJ is to research, develop, teach and promote innovative approaches to challenges in our justice system. The Director of the CIJ is Rob Hulls, the former Attorney-General and Deputy Premier of Victoria.
What do you think of this topic? Leave a comment…