Restorative Responses to Sexual Violence

Legal, Social and Therapeutic Dimensions

Estelle Zinsstag, Marie Keenan, Estelle Zinsstag, Marie Keenan

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138641310
• eBook ISBN: 9781317247494
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Sexual violence, in all its forms, is a crime for which anecdotal accounts and scholarly reports suggest victims in their great majority do not receive adequate 'justice' or redress. The theory and practice of restorative justice is rapidly developing and offers some well-argued new avenues for dealings with crime in general. It has the potential to be extended to cases of sexual violence and a number of small scale programmes are already underway across the world.

Restorative Responses to Sexual Violence examines this innovative justice paradigm in more depth in the particular context of sexual trauma and violence in order to establish the empirical realities of restorative justice approaches in cases of sexual violence, and considers how such approaches could be developed adequately in the future. This book is divided into two parts, each representing a key area of research and practice: theoretical and conceptual frameworks, and justice and therapeutic perspectives.

This international collection brings together leading expert scholars and practitioners to offer both theoretical and practical perspectives on restorative justice and sexual violence. This book will be of interest to researchers in the field of law, criminology, psychology, social science, social work and psychotherapy, as well as practitioners in the fields of criminal justice, restorative justice and sex offender and victim trauma therapies.

Part I
Theoretical and conceptual frameworks

1
Repairing the harms of rape of women through restorative justice

Nikki Godden-Rasul

Introduction

In critiques of the use of restorative justice (RJ) to respond to rape, theoretical discussions of the harm of rape are typically absent. This may be somewhat of a surprise considering the extensive debates in feminist and criminal law literature as to the nature, concept and defining characteristics of rape. Is it about sex, violence, or both? How should the relationship between rape and gender relations be understood? Is sexual violence against women and men the same? These debates have informed the criminal law on rape. In England and Wales, rape is the penile penetration of a person’s vagina, anus or mouth without their consent and without reasonable belief in consent (Sexual Offences Act 2003, section 1). While both men and women can therefore be victim-survivors¹ of rape, most commonly it is a crime perpetrated by men against women (Ministry of Justice, Home Office & Office for National Statistics, 2013: 6, 15). The gendered distribution of rape is explained by Western historical and contemporary social contexts in which women are represented and treated as being available for the sexual pleasure of men, which also shapes women’s experiences of rape (Naffine, 1994). For these reasons, the focus in this chapter is on the harms of rape of women and RJ. Given the extent of debates as to how the harm of rape should be conceptualised in the criminal justice context, it is noticeable that these discussions are lacking in the RJ and sexual violence scholarship.

It is important to theorise the harm of rape of women when analysing the use of RJ in rape cases because repairing the harm of crime to the victims and communities is often seen as the principle aim of RJ (Cunneen & Hoyle, 2010: 6; McCold, 2004: 158; Wright, 2002: 659), or at least it is considered a main goal alongside rehabilitating and reintegrating perpetrators in society (Braithwaite, 1999: 6). The aims of RJ are met through both the process and outcomes. In terms of the process, the victim and perpetrator are prepared for and then engage in dialogue centred on understanding the motivations for the crime and the impact it had (Marshall, 1999: 5). The perpetrator accepts responsibility for his actions and their consequences, contributing to repairing psychological and emotional elements of the harm for the victim (Marshall, 1999: 5). In terms of outcomes of the victim–perpetrator dialogue, agreements may include material reparation for particular harms caused to the victim and the community, which demonstrates that the perpetrator is taking responsibility for the harm he caused. Harm, therefore, has a central place in the process and outcomes of RJ. In order to analyse the application of RJ to rape, the harm of rape must be understood.

The harm of rape has not been entirely overlooked in the literature on RJ and sexual violence, and many of the common critiques refer to harm. On the positive side, it is argued that RJ may provide victim-survivors with space to articulate the harms as they experience them, validate the wrong and harms, and offer symbolic and material reparation for the harms caused by the perpetrator (Hudson, 1998; Morris & Gelsthorpe, 2000). On the negative side, RJ may trivialise the harm of rape because it does not involve punishment by imprisonment, thus lacking the symbolic strength of the criminal law in censuring wrongdoing, and engaging the victim-survivor and perpetrator in dialogue may lead to re-victimisation and further harm (Cameron, 2006; Stubbs, 2007). The extent to which RJ may either privilege or marginalise women’s experiences may depend on the underpinning theory of the harm of rape. Different conceptions of the harm relate to different feminist theories of knowledge production, and of the relationship between women’s lived experiences and the social world.² Being more specific about how the harm of rape is conceptualised may therefore affect the evaluation of RJ’s capacity to address victim-survivors’ experiences of rape.

Admittedly, theorising the harms of rape and analysing RJ’s potential to respond to and repair these harms will not provide a complete analysis of the value of RJ for victim-survivors. There are other possible advantages and disadvantages of RJ compared to criminal justice that do not relate to the harm of rape. For example, in contrast to the masculine prison cultures which reinforce misogyny (Sim, 2006), Anne-Marie McAlinden argues that RJ is more effective in censuring and rehabilitating sex offenders, and reducing reoffending rates (McAlinden, 2007). RJ practices are not all the same – there are different models, and RJ can take place outside the criminal justice process or it can be integrated into it at any stage – and some may have more or less potential than others as appropriate and effective responses to rape (for example, Susan Miller (2011) argues post-sentencing RJ is most appropriate). These possibilities and issues regarding the use of RJ in rape cases fall outside the scope of this chapter. The focus here is on theorising the harms of rape and, in light of the theory, analysing the critiques of RJ which relate to repairing or entrenching the harms of rape. Nevertheless, it will provide a platform from which to develop evaluations of RJ in rape cases which answer different questions, such as which model of RJ is most appropriate and effective in this context.

The chapter begins by discussing key debates as to the conceptualisation of rape, and different theories of the harm of rape, arguing that it should be understood as damaging the personhood of the female subject (Cahill, 2001; Brison, 2003). Then the feminist critiques of RJ in light of this particular conception of harm are analysed. It concludes that both the potential and the risks of using RJ to respond to rape are greater than have been presented thus far, but that the risks are no greater than those posed by the criminal justice system. The chapter argues that the primary question arising from this theoretical analysis is whether RJ can better ensure the provision of state-provided or state-funded services for victim-survivors to repair the harms done to them, offering a sense of ‘social’ as well as ‘individual’ justice.

Theories of the harm of rape

Before the twentieth century, rape was treated as a harm to a woman’s family honour, bringing shame and loss to the man to whom she belonged (Bourke, 2007b: 9). From the 1970s, feminists began to draw attention to the prevalence of men’s sexual violence against women, debating how best to conceptualise rape as a harm to women. One approach is to address rape as a product and (re) producer of women’s oppression. In this respect, Susan Brownmiller (1975) argues that rape is not about sex and untrammelled desire or misspent passion, rather it is a political act which keeps all women in fear of male violence. However, she asserts that the possibility of rape is biological – that is, sex differences provide men’s potential to rape women. Although it was a significant intervention at the time of writing, Brownmiller’s theory is discredited for depoliticising biology – for treating sexual differences as ‘natural’ – and representing women as inherently rapeable, with little room for resisting men’s sexual violence (Henderson, 2007: 242–243). Moving away from biology, Catharine MacKinnon (1989) argues that rape is an abuse of men’s power inherent in (hetero)sexuality, in which the dominance of masculinity and the submissiveness of femininity is eroticised. As such, MacKinnon maintains that violence against women is always sexual, contrary to Brownmiller. However, similarly to Brownmiller she sees rape as the degradation of the individual woman and women as a class, reinforcing other methods of social control over women and their marginalisation in social, economic and political life. To best capture the harm and nature of rape, MacKinnon argues that rape should be defined as sex under coercive circumstances (2006: 237–246). Doing so would recognise the contexts which give rise to and meaning to rape.

Focusing on coercive circumstances of sexual relations, however, can dictate when sexual violence has occurred without reference to individual women’s particular choices and experiences. As Vanessa Munro explains, MacKinnon presents women as being unable to make a free choice, failing to respect them as moral agents who have decision-making capabilities, even within constrained contexts (2008: 940–941). And as MacKinnon herself has admitted, the circumstances of women in patriarchal societies can always be deemed coercive, meaning that it may be difficult to draw a line between lawful and unlawful sexual relations (1989: 174). Moreover, if women are considered unable to choose freely how to live their lives, then conceptualising rape in this way offers women no means of resistance against sexual violence. Consequently, both Brownmiller and MacKinnon over-emphasise the structural at the expense of the individual, and do not accommodate for women’s differing experiences of rape.

A second approach is to conceptualise the harm of rape as the violation of sexual autonomy, signified by the victim-survivor’s lack of consent. Advocates of this liberal position, such as Gardner and Shute as well as Munro, argue that it respects individuals’ moral agency and their capacity for sexual self-determination (Gardner & Shute, 2000; Munro, 2008). This does not necessarily mean accepting that women make choices without the influence of social norms, gender relations and particular contextual factors. As Sharon Cowan (2007) argues, consent and autonomy can be interpreted in ways which account for the contexts in which women’s choices are made, determined or denied. In addition, theorists taking this approach emphasise that it is most commonly men who rape women because they take advantage of and reinforce their more powerful positions in society. Recognising that it is typically women’s sexual autonomy which is at stake incorporates a social and gendered dimension to an otherwise individual-centred analysis of rape.

Nevertheless, for some such as MacKinnon, the sexual autonomy approach cannot properly capture and address the gendered harm of rape: focusing on sexual autonomy and on ‘who wanted what, who knew what when … in individual psychic space’ represents men and women as having equal freedoms, concealing hierarchical power relations which underpin rape (2006: 238). Robin West criticises the liberal conceptualisation of rape for a different reason. She argues that it problematically posits the harm of rape as a violation of the atomistic autonomous individual, when women’s lives, values and harms are centred on connections and entanglements with others, not separation (West, 1987). Similarly focusing on the conception of the subject, Nicola Lacey argues that the sexual autonomy approach problematically locates the individual in the rational, unemotional, intellectual realm, who is denied control over her body through rape (1998: 59). Treating the mind and body as separate, she continues, ‘displaces the embodied and affective aspects’ of the harm (1998: 60). As such, underlying liberal theories is a problematic construction of the individual subject, which is amplified because the individual is at the centre of liberal analyses of the harms of rape.

A third approach to the harm of rape conceptualises it as a disruption, destabilising or displacement of a person’s sense of self (Cahill, 2001: 130–133). Underpinning this view of rape’s harm is a relational and embodied conception of selfhood. The subject can only be understood relationally, Ann Cahill explains, because personhood is continually (re)constituted by engagements with others (Cahill, 2001). The self is necessarily embodied because human subjects are (at least at some points in their lives) physically dependent on others, and physical expressions of oneself are moulded by and interpreted in light of particular social, relational and political contexts (Cahill, 2001: 128–129). As the self is relational, Judith Lewis Herman argues that traumatic experiences like rape ‘call into question basic human relationships … They shatter the construction of the self that is formed and sustained in relation to others’ (1997: 51). And as the self is embodied, Cahill explains that ‘to have one’s body violated by another person’s body in a particularly sexual way – can mean the destruction of the person one has become up to that point’ (2001: 131). In the aftermath, Judith Lewis Herman says, rape ‘destroys the belief that one can be oneself in relation to others’ (1997: 53, emphasis in original; see also Brison, 2003). Viewed in this way, rape is formulated as a form of trauma (Herman, 1997) – but not as a disembodied psychological experience as is implied in the liberal approach to rape (Cahill, 2001: 187). Nor are individuals presented primarily as products of gendered ideologies, which is reflected in MacKinnon’s view. Rather, understanding rape as a harm to personhood can account for women’s diverse experiences of sexual violence without leading to radical relativism as individuals are in co-productive relationships with others and social orderings, and ‘individual bodies are marked and constructed by larger discourses’ (Cahill, 2001: 9).

From understanding rape as a harm to personhood arises the question as to how rape is to be resisted. If the subject is (re)constituted through and in relation to social discourses, then conceptualising and treating rape as ‘self-shattering’ may reify victim-survivors’ experiences as necessarily traumatic (Engle, 2005: 813). Indeed, Cahill explains that ‘Rape not only happens to women; it is a fundamental moment in the production of women qua women’ (2001: 126). One possible way to trouble the meanings of rape and to challenge problematic discursive (re)productions of gender and (hetero)sexuality – as suggested by Foucault (1988: 200–202; quoted in Cahill, 2001: 144) – is to eschew the sexual and gendered dimensions of rape. However, so doing would misrepresent and ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of tables
• Notes on contributors
• Acknowledgements
• Dedication
• Restorative responses to sexual violence: an introduction
• PART I Theoretical and conceptual frameworks
• PART II Justice and therapeutic perspectives
• Index