As Kim Lane Scheppele writes with respect to courts, ‘[t]hose whose stories are believed have the power to create fact’. That statement may be just as apposite in RJ.
While RJ is not a fact finding forum, the capacity to give meaning to the facts presented, and the new story that is constructed may be crucial to shaping safe and effective outcomes. In cases of gendered violence and other contexts where there are significant power differentials, the power to shape fact may play out in undesirable ways.
Yet few studies have paid attention to how meaning is constructed within RJ processes and most empirical research on RJ has adopted a realist epistemology rather than more phenomenological or discursive approaches.
There is reason for concern that in responding to offences like domestic violence or sexual offences, contests around the meaning of the behavior, its legitimacy and the harm caused may be particularly likely to occur since popular discourses continue to trivialise such offences, challenge the credibility of the victim and or construct women as complicit, for instance, by reference to allegedly provocative behaviour.
Most RJ programs require that the offender admits their offence as a condition for participation, but that does not adequately meet such concerns for several reasons. The meaning of an offence cannot be readily assumed from a bald statement of the facts that make up the offence: where the parties have shared an intimate relationship, the meaning of a given event is derived from the context and the history of the relationship, and, while the offender may admit his conduct, those words or behaviours may be minimised, neutralised or their significance may be opaque to others.
Also, as Krista Smith notes, speaking publicly can be empowering but ‘[t]he risks of speaking frankly are great in the restorative justice context. An unwelcome story or a story “wrongly” conveyed runs the risk of rejection, derision or reprimand.’ Yet RJ approaches ‘have not accounted for one of the chief characteristics of most domestic violence cases; the existence of ongoing danger occasioned by the victim’s resistance to the batterer’s authority and control’.
RJ processes require some measure of what communication scholars call communicative competence among RJ participants. Some attention has been paid to the capacity for young offenders to assert their own perspectives or interests in the presence of adults. But are their other preconditions for effective communication that need to recognised?