Restoring Harm

A Psychosocial Approach to Victims and Restorative Justice

Daniela Bolívar

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138819047
• eBook ISBN: 9781317593393
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

To what extent is restorative justice able to 'restore' the harm suffered by victims of crimes of interpersonal violence? Restorative justice is an innovative, participatory and inclusive reaction to crime that permits victims and offenders to engage in a communication process about the consequences of the offence. It looks to the future, actively involving parties to find, agree and implement ways to repair the harm.

Restoring Harm analyses the restoration process from a psychosocial point of view and discusses the role of victim–offender mediation within such a process. It brings together literature from the fields of restorative justice, victimology and psychology, and shares original findings from victims who were interviewed in Belgium and Spain. This book not only offers descriptive findings but also provides a theoretical and comprehensive model that elucidates several possibilities for why victim–offender mediation may or may not play a role in victims' processes of emotional restoration.

Well informed and well documented, this volume brings together evidence from different regions and develops a detailed discussion of the 'effectiveness' of restorative justice with regard to victims. Providing new and solid evidence thanks to a quasi-experimental methodological design, theory and practice come together to offer relevant reflections for researchers and practitioners who are concerned about the victim's position within victim–offender mediation and desire to develop a victim-sensitive restorative justice practice.

Chapter 1

Victims, restoration and restorative justice

Findings, debates and gaps

Introduction

It cannot be denied that in the last three decades research on restorative justice (RJ) has been prolific. Several studies have been carried out all around the globe in order to demonstrate the benefits of RJ practices. Moreover, RJ scholars have broadly justified the development of RJ based on its victim-oriented philosophy and its evident positive outcomes for victims. In this chapter I describe why RJ, indeed, appears to be an interesting prospect for victims of crime when compared with the criminal justice system or other victim-oriented initiatives (first section) to move later to analyse carefully the evidence that suggests positive outcomes for victims of crime (second section). This chapter also dedicates some paragraphs to discussing some unanswered questions that evidence has not fully addressed yet (third section). Finally, the chapter finishes by drawing some conclusions about what seems to hinder a better understanding of victims in the field of RJ and some possible solutions to address these limitations (fourth section).

Restorative justice: a new hope for victims of crime?

By the end of the 1980s victims had ‘re-emerged in force on to the centre of the world stage’ (Mawby & Walkate, 1994, p. 87). These movements were guided by a rights-based agenda in the USA and by a needs-based one in Europe (Goodey, 2000). Internationally, a turning point was the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power by the United Nations (1985). At the European level, two instruments were adopted: the European Convention on the Compensation of Victims of Violent Crimes (Council of Europe, 1983) and the Recommendation of the Position of the Victim in the Framework of Criminal Law and Procedure (Council of Europe, 1985). More regional instruments came later, such as the Framework Decision on the Standings of Victims in Criminal Proceedings (European Union, 2001) and the Recommendation on Assistance to Crime Victims (Council of Europe, 2006). In 2012, the European Parliament approved the Directive 2012/29/EU, which offers guidelines for victim assistance and in particular for victim support as an important means of meeting victims’ rights. Moreover, the Directive provides minimum standards that member states are obliged to fulfil in terms of victims’ services.

Since the first international standards were approved, changes have been implemented at the worldwide level in order to improve the position of the victim within the criminal justice system. Among them, state compensation and Victim Impact Statements are measures frequently mentioned. The first was introduced in both New Zealand and Britain in the 1960s, and refers to the payment of financial compensation by the state. Many western countries have implemented this system, mainly in the 1980s (Wright, 1996). The second, mainly developed in the USA and Canada, refers to a way of increasing victim participation or input at the stage of sentencing. In practice, the Victim Impact Statement is a communication written by the victim that aims to address the judicial authority in order to be considered in the sentencing process. It usually includes information about the physical, emotional and material harm experienced by the victim as well as – sometimes − victims’ opinions about the offender, the offence and the sentence (Erez, 1991).

Despite their good intentions, these initiatives have not been exempt from controversy. On the one hand, state compensation has been associated with the concept of the ‘undeserving victim’ (Wright, 1996) because, more than a right, it has been perceived as an ‘award’ that recognises a minority group of victims. As a consequence, it runs the risk of being a source of secondary victimisation (Mawby & Walkate, 1994). On the other hand, Victim Impact Statements have appeared to offer a limited way of participation. The implementation is not always consistent across the countries that use it (e.g. see Roberts & Manikis, 2011, for its implementation in the UK), victims are not always fully aware of what they are filling out, or some suffer dissatisfaction due to raised expectations about the effect their statements will have on the judicial outcome. In such cases, Victim Impact Statements seem to have ‘little effect on the criminal justice system and on victim’s satisfaction with it’ (Erez, 2000, p. 178). In addition, and perhaps more importantly, criminal justice workers are not fully convinced about the role that victims should be entitled to play in the sentencing process. Even though more experience of practice may promote positive attitudes, courtroom agents may still have ambivalent feelings towards strategies that give victims the opportunity to offer inputs into sentences (Englebrecht, 2011; Roberts & Manikis, 2011). This raises the discussion on the effect that such statements could have (Pemberton & Reynaers, 2011).

Another strategy used to improve the position of the victim comes not from the criminal justice system itself but from the state or the community, through victim support services. Models of victim support vary between community-based organisations (such as in England and Wales) and services offered by non-governmental organisations (NGOs) or the state. In general terms, victim support agencies have usually included, as part of their tasks, assisting victims in their contacts with the criminal justice system. They may also offer to attend certain important moments of the criminal procedure and refer the victim to specialised organisations, if needed. Yet the specific intervention carried out by victim support services may be quite diverse and take different shapes, such as hotlines, shelters or orientation centres.

Over the last years, the implementation of victim support has increased significantly, symbolising an important step in terms of the attention drawn to victims’ needs. In accordance, evidence in terms of effectiveness has been promising. For example, a survey made of around 18,000 victims in 2006 in the UK, a country with the most consolidated victim support services, showed high levels of satisfaction with victim services. The report announced that, despite victims wanting more face-to-face contact and a more proactive attitude from victim support, 91% expressed satisfaction (Dunn, 2007). The European report VICS, developed by the Portuguese Association of Victim Support (Associação Portuguesa de Apoio à Vítima [APAV], 2015) went beyond the measure of satisfaction and assessed the victims’ experiences with victim support services. Their findings, obtained through a survey carried out in Portugal, France, Germany and Scotland, showed that victims had a positive experience with victim services in terms of participation, information and respectful treatment. Besides the personal benefits, research carried out in USA indicates that victim support also helps to increase a more favourable assessment with regard to the criminal justice system, by enhancing public confidence (Bradford, 2011).

However, evidence remains restricted and exploratory. On the one hand, satisfaction as indicator of success has been under discussion. Biffi, Mulder, Pemberton, Santos, Valério, Vanfraechem and Van der Vorm (2016) emphasise that, in addition to the inherent methodological problems related to the evaluation of ‘satisfaction’, there is no evidence that ‘satisfaction’ might be considered a reliable indicator of well-being or benefits of therapeutic interventions (Biffi et al., 2016). On the other hand, research on victims’ needs is still insufficient to determine the way in which victim assistance is working and the extent to which these services are meeting such needs (Biffi et al., 2016).

From a policy-oriented point of view, and despite its important influence, needs- and rights-based agendas have not been able to resolve the unequal response of the state to different types of victimisation. Even countries with national coverage have tended to prioritise certain types of victimisation, neglecting others (Dachy & Bolívar, 2012; Spalek, 2006). This situation corresponds very much to political decisions made under conceptions of victim-hood that are accepted by the politicians and legislators who run the country at a specific historical moment. On the other hand, and mainly from a philosophical point of view, victim assistance has been accused of labelling victims, pathologising normal reactions, forcing victims to follow specific patterns of suffering and denying a victim’s own resources for coping, while granting too much significance to the professional’s role (Dignan, 2005; Fattah, 1999).

In conclusion, efforts to improve the situation of victims of crime have not yet been as successful as expected. Besides, we lack the information of whether efforts made are actually achieving their goals. Finally, victims’ access to these initiatives has been uneven in part due to the lack of information (Herman, 2003). Dignan (2005, p. 85) comments that, despite important progress having been achieved, safeguards and measures to prevent secondary victimisation are limited in scope whereas ‘the information they [victims] receive tends to be incomplete, is often late in arriving, and fails to provide explanations for what has been decided and why’.

The emergence of RJ and its increasingly worldwide implementation have contributed towards raising hopes that the historical marginalisation of victims of crime in criminal procedures has finally found a solution. Moreover, RJ would allow that the ‘second injury’ caused by the criminal procedure – in Symonds’ (1980) terms– could be not just prevented but also transformed into restoration. RJ is expected to offer an experience of justice that is considered to be not just coherent with victims’ needs but also essential for victims’ recovery.

Victims and the criminal justice system

It was only in the 1970s that practitioners, policy makers and the general public, including victims themselves, started to voice their concerns about the position of the victim within criminal procedures. Voices were oriented towards criticising two main aspects: the meagre role as a witness, that is, victims’ limited access to any information about their cases; and the potential negative impact of the criminal procedure on victims of crime. Such an impact would be caused by experiences of negative social reactions and stigmatisation and is related to the concept of secondary victimisation, especially as found in cases of sexual assault victims. In the current review I add a third dimension: the implications of the polarised view of the conflict that lies under the adversarial logic of the criminal justice processes. I deal with these three aspects in the next section.

The impact of the criminal procedure

If one set out intentionally to design a system for provoking symptoms of posttraumatic stress disorder, it might look very much like a court of law.

(Herman, 2003, p. 159)

Lack of information, lack of respect towards victims’ feelings, and undesired meetings with the offender and his or her family in the waiting room at court are just some of the inconveniences that victims usually suffer. ‘Secondary victimisation’, as already mentioned, is perhaps one of the most known concepts used to refer to the effects of the criminal justice system on victims. It has been defined as ‘a second deprivation of a disadvantaged person that is inflicted by other persons or institutions’ (Montada, 1991, p. 18) or as everything that happens to primary victims after the offence that may prolong or be made worse by the reactions of others (Condry, 2010). The Council of Europe Recommendation (2006)8 on assistance to crime victims establishes that ‘Secondary victimisation means the victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim’.

Causes of secondary victimisation are, among others, a lack of recognition by criminal institutions and the lack of involvement in the criminal justice process, such as having no opportunity to express views or to be heard, and the lack of information about the judicial case and the decisions made. The lack of coordination between the criminal justice system and support services has also been considered a source of secondary victimisation (Condry, 2010; Montada, 1991¹).

The criminal justice system contributes to victims’ secondary victimisation in three main ways: (a) offering experiences in which the victim’s status is not recognised; (b) lack of control and involvement; and (c) offering a polarised view of the conflict.

Lack of respectful treatment

Orth (2002) investigated 137 victims of violent crime several years after their involvement in trials in Germany. This author found that victims’ dissatisfaction with the final judicial outcome, as well as victim’s negative appraisals of the procedure, were predictors of secondary victimisation. Orth (2002, p. 322) argues that ‘it should be emphasized that in this study the causes of secondary victimization could not be attributed to the psychological stress by criminal proceedings, but to the victims’ justice appraisals of outcome and procedure’. Research carried out in Canada by Wemmers (2013) also observed that victims who considered they were treated with dignity and respect presented lower scores of post-traumatic symptoms. Over time, post-traumatic stress disorder (PTSD) tended to decrease in all victims. However, those who assessed the police positively in terms of fair treatment were less likely to present PTSD symptoms six months later. In this sample, type of offence, gender and age did not make any relevant difference. The author concluded that the interaction with police seems to be of the great importance for victims in terms of information, support and impact on their wellbeing (Wemmers, 2013). The quality of the interaction with judicial authorities in terms of being treated with respect is, in fact, one aspect that has been considered a central aspect in procedural justice theory (see Blader & Tyler, 2003), determining victims’ perceptions of fairness.

On the other hand, perhaps the most complex manifestations of the lack of respectful treatment are expressions of stigmatisation and blame. Research carried out in Ireland with sexual violence victims showed the importance of being believed on disclosure by the family, friends, legal actors and the wider community. Not being believed is a common fear when the offender is either known to the victim or had a previous or close relationship (Keenan, 2014).

Sometimes victims are ‘believed’ but blamed. An illustrative example that comes to my mind is a story I heard, years ago, when I was working at a victim support service. This was a 17-yea...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright
• Dedication
• Contents
• List of figures
• List of tables
• Foreword
• Acknowledgements
• List of credits
• Prologue: from satisfaction to restoration – a mixed-method and quasi-experimental study
• 1 Victims, restoration and restorative justice: findings, debates and gaps
• 2 Victims’ perspectives on harm and restoration
• 3 The phenomenon of victim participation in restorative justice
• 4 Restoring victims: the role of victim–offender mediation
• 5 Towards a psychosocial model of restorative justice
• Index