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Restorative justice and coercion

January 4, 2012

As I thought more about the conversation, I began to wonder if the issue could be related to the way restorative justice is understood. Dan Van Ness says there are three ways for understanding restorative justice: reparation (addressing the harm), encounter (meeting between victim and offender), and transformation (holistic treatment of all those affected by crime). Within these three conceptions it’s easy to fall into a programme/process understanding where restorative justice equals going through the programme. 

I assume “making RJ compulsory” comes from a process/programme understanding. It could be that the overall systemic framework remains the same, but recognises the very positive impact that restorative encounters — whether with direct or unrelated victims — have on offenders. The logic of this understanding is that we want to increase the positive impact by exposing as many offenders as possible to a restorative process, thus making restorative justice mandatory. 

I can understand the reluctance of any facilitator to participate in such a scheme. I volunteer in a programme where offenders are court ordered to participate in conferences. I’m actually required to tell them that a refusal to participate is seen as a violation of a court order. As someone who believes in the voluntariness of restorative processes, I find this to be difficult. Yet, I can see both positives and negatives coming out of the situation. 

In terms of negatives, I’ve seen more than one victim question the offender’s motivation. I’ve also had victims tell me that the offender wouldn’t be in a conference if it wasn’t for the court order. Victims have come very close to saying this in conference. They question the sincerity of both the process and the offender. This was the reality in one of the few negative experiences I’ve had in conferencing. Some victims even feel that the programme focuses on using the victim to help or punish the offender. 

Another negative is the antagonism that offenders may exhibit. I’ve had more than one person come in and say they didn’t want to meet with the victim. We tend to delay that decision until we’ve had a chance to talk about the crime and its impact. Sometimes this position is based on fear of what the victim will say. Sometimes it is shame at the behaviour. But, for many offenders, the process at least starts out as another hoop to jump through with the criminal justice system. This leads to apathy and a desire to just get the “class” over with. It also opens the door to hostility as people have genuine and appropriate concerns of how they will be treated in such a mandatory process. 

On the positive side, I’ve seen victims and offenders come together for real communication. For many, the storytelling breaks through the barriers created by the mandatory nature of the process. Open and honest communication means that the participants can say, ask, and hear what they need to. I’ve seen offenders move from denying the harm to understanding and accepting it. I’ve seen victims move from contempt of the offender to identifying with another human being. 

Respectful treatment is key to the positive outcomes. Coercion doesn’t often lend itself to respect so I would prefer a reality where the process was an option. While I don’t know how voluntary a choice is when the options are jail or conference, I do know that an informed, voluntary choice carries more weight with the person making the choice. It also has a great deal of significance for some one who has been harmed by the chooser’s behaviour. 

So, I continue to volunteer in a situation that I see as less than optimal. But, I hope and work for a different future by talking with decision makers and supporting legislative efforts to provide more voluntariness in restorative processes. I look forward to a day when “justice” is understood as “restorative justice” and all those affected by crime are treated with the care and respect needed to work for transformation.


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