In 2006 the United Nations Office on Drugs and Crime (UNODC) released a report that conceptualised restorative justice as “…a way of responding to criminal behaviour by balancing the needs of the community, the victims and the offenders,” (United Nations Office on Drugs and Crime, 2006). The report goes on to further underscore the importance of exercising this form of justice as opposed to the traditional retributive justice. In light of this recommendation by the international body this paper seeks to not only compound this stance but to go further and make a case for the desertion of the current criminal justice process, either wholly or partially. This paper shall make the aforementioned cases exclusively victims of rape, a deviation from the generous approach adopted by the UNODC report. The paper shall highlight the positives that could result from the adoption of restorative justice when dealing with rape victims as well as the possible shortcomings of this justice model when used on rape victims.
The criminal justice system as currently is in Botswana views all criminal activity as crimes against the state. This is evidenced by the fact that the State in Botswana is party to all criminal matters, either as applicants in courts of first instance or as respondents or appellants in appellate courts. All criminal cases before our courts are either State v X or X v State, where X denotes the accused. The involvement of the state on all criminal prosecutions, with the state assuming the position of the victim is an indication of a retributive type of justice (Maiese, 2003). Under the current form of justice employed within our borders, the victim’s views are not considered. It has been held by our honourable court that the pardon prescribed by section 150(e) does not include a pardon from the actual victim of the actual crime (Mogofu v The State, 2002). A pardon under the stated section precludes an individual charged with a crime from entering a plea of guilt and ultimately precludes them from being tried for such an offence. The power to pardon, Walia AJ as he was then known noted, is an exclusive prerogative of the head of state as conferred by section 53 of this republic’s constitution. This is an indication of how much the victim and their views are disregarded by our justice system. It is thus trite our justice system, much like justice system the world over is in dire need of reformation to be more victim inclusive (Bazemore & Griffiths, 2010). Restorative justice, this paper will aver is the much needed reformation as it places some emphasis on victim involvement.
The restorative justice model acknowledges that rape victimhood, much like any other forms of victimhood, is not limited only to the people whose bodies are physically violated. People who suffer along their loved ones who have been violated are also victims, so too are community members who have an apprehension of fear resulting from the victimisation of one of their own. This model further recognises the offenders as well as his or her family and friends as victims for all the shame and guilt they feel as a result of their association with a rapist (Koss & Achilles, 2008). This mode of justice takes cognisance of the fact that crime’s effect and consequences are not borne solely by the primary victim as there is a plethora of secondary victims that also suffers. In light of this restorative justice seeks to repair the harm, have a restorative effect, be a driver for reconciliation and facilitate re-integration (Walker, 2012). The model further advances the notion that the suffering of all should be accounted for when justice is meted out. It first off recognises the primary victim instead of transferring victimhood to the state in the manner that our current system does as illustrated above. It preaches that the justice system must not solely focus its attention to the perpetrator as is currently practice.
Central to the restorative justice model is dialogue. One of the most common forms of dialogue employed by this model is a practice termed the circle process (Umbreit, Vos, Coates, & Lightfoot, 2005). The circle process, as the name suggests, sits all who are affected by a crime so as to talk about the crime and how much it affected them. For purposes of this discussion rape victims, both primary and secondary, and rape perpetrators, both primary and secondary, and the community at large are seated in a circle with the intention of securing some understanding between all involved. This process is thus a more social and communal process often employed in the wake of a social scourge. The circle process, as all subtypes of restorative justice, seeks to repair, heal, and build relationships and a sense of community all of which have been largely torn to shreds by the rape incident (Karp, Shackford-Bradley, Wilson, & Williamsen, 2016). It is for that reason that the parties in the circle are encouraged talk about their experiences and their perspectives freely. Some of the underlying values of the circle process are a shared responsibility, accountability, an acknowledgement of our interconnectedness and a mutually shared social concern (Greenwood, 2005). It thus comes naturally that in these circles, all participants are treated as equals.
Away from the circle process, restorative justice has a process called restorative conferencing (Suzuki & Wood, 2017). Conferencing is a process geared specifically towards sexual violence victims and is thus aimed at rape victims. It is this paper’s averment that the conferencing practice be adopted by our justice system. Restorative conferences are neither counselling sessions nor mediating efforts (O’Connell, Wachtel, & Wachtel, 1998). They are a consensual and voluntary meeting between all the people considered victims under restorative justice. At such meetings the aftermath, implications and consequences of the victimisation are discussed with the goal of repairing the harm done as well as mapping a way forward for all parties involved, all of whom are victimized somehow by the crime or wrongdoing committed. The primary victims and the secondary victims are given an opportunity to confront the individual who victimised them. They are given the opportunity to express their feelings and have a say on the final outcome. Because of the plurality of the people involved, the best way forward can be mapped (Wachtel, 2013). Restorative conferencing is a better alternative to the other practices of restorative justice like the aforementioned circle process. It is also better than victim-offender mediation because of the more people involved all of whom are directly involved in or affected by the crime in question. Restorative conferencing has been found to be satisfactory by both victims and perpetrators and enjoys approval by both parties. It is for this reason that it has been recommended that, “The government should use conferences as an alternative to court more often” (Strang, 2000). It is primarily for this reason that it is here averred that this system be introduced to our criminal justice system.
Restorative justice practices though thoroughly advantageous have their own pitfalls. The most problem that is encountered by rape victims who look to adopt this model is that it comes with some degree of re-victimisation (Wemmers, 2018). There is a heightened risk of re-victimization for victims of rape, many of whom are women. This is because as previously stated above, dialogue is a cornerstone of restorative justice. All involved are expected to speak on their feelings and at times must recount their experiences. This often proves too traumatic for the victims as they are compelled by the process to speak about an issue they are trying to move past. The argument that restorative justice is harmful has however be negated in some quarters. It has instead been averred that talking about the experience is an integral part of the healing process (Weitekamp & Parmentier, 2016). Restorative justice affords the victims, both primary and secondary and indeed the offenders, a chance to receive information about events surrounding the victimisation. The restorative counselling method for one is not facilitated by trained and qualified professionals with knowledge on how to navigate the emotions of the victims (Umbreit, Coates, & Vos, 2002). This could prove detrimental and give the first of the aforementioned and contrary positions credence. Under the guise of restorative conferencing and justice, the victims may use the opportunity to shame and berate the offender, all of which go against the most rudimentary aim of the process. The offender can thus also be harmed (Daly, 2006).
Restorative type of justice draws its strength and supremacy over other modes of justice, our present one inclusive, form its staunch advocacy for victim involvement. Victim involvement is advantageous in this case because when properly done, it results in healing and closure for the victim (Weitekamp & Parmentier, 2016). A great deal of rape incidents in Botswana go, for one reason or another, unreported (Gender Links, 2012). The reluctance to report that is rampant amongst rape victims in Botswana can be attributed to the distrust of the court process or they believe that taking the perpetrator through the court process will not yield any relief for the victim. Victims thus often do not report because they neither their reporting nor the subsequent incarceration of the perpetrators if at all any results does nothing to help their situation (Allen, 2007). A switch to the restorative justice model that actually strives to help the victim therefore would help these rape victims and empower them to come forth and out of the shadows with their truth and into a practice that cares for them. Rape victims often feel humiliated when they are forced to recount their rape ordeal in open court (McGlynn, 2017). Restorative justice processes are kept behind closed doors and only people affected are involved. This serves to protect the victim from undue and further embarrassment, humiliation and ridicule. The same protections are guaranteed for the offender.
In their book tittle The Little Book of Restorative Justice, Howard Zehr and Ali Gohar (2003), state that contrary to popular belief, restorative justice is not intended to be replacement for the traditional criminal justice system that encompasses the prison system. The authors contend that optimum justice is achieved when restorative justice is practiced in unison with the traditional system. The prison system therefore should be kept in place and offenders should be sent there. Imprisonment is a form of incapacitation. The restorative form of justice does not advocate for rapists or indeed any other criminals to roam the streets as they were before their crime. Restorative justice does not advocate for a return to what was before the offending. It instead propagates for a search for the best way to move forward after a crime. Restorative justice answers the question, “how do we move forward now that we find ourselves in this position?”. It does not answer the question, “now that we are here how do we move back?” Imprisonment therefore being a means of protecting the society should be kept open.
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