SA proposes new rape laws- Sydney Morning Herald artical
October 25, 2007 – 4:32PM
Society must change how it defines rape and sexual assault, South Australian Attorney-General Michael Atkinson says.
Announcing proposed changes to the state’s rape laws, Mr Atkinson said less than 20 per cent of rape and assault cases that reached the courts resulted in a conviction.
“So there may be something wrong with how we define what is a rape or a sexual assault,” he said.
“That’s unacceptable so we are changing it.”
The government’s proposed reforms would require a person’s agreement to sexual activity to be free and voluntary.
In a key change, a rape also would be committed in a situation where a person withdrew their consent after initially agreeing to sexual intercourse and the other party continued regardless.
Until now there has been a degree of ambiguity in how the courts viewed such circumstances.
The new laws also would regard sexual activity as non-consensual if obtained by force or threats, while the victim was asleep or unconscious, while the victim was too intoxicated to agree and if the victim was unable to understand the nature of the sexual activity.
They also would take in situations where the victim was mistaken about the identity of the person they were having sex with or if they were being unlawfully detained.
Judges would be required to explain to juries that consent to sexual activity should not be assumed just because the victim did not say anything, did not protest or resist or had previous consensual sexual encounters with the alleged offender.
In addition, the proposed changes would require courts to give priority to cases that involved sexual offences against young children.
SA Minister for the Status of Women Jennifer Rankine said the new laws would ensure the criminal justice system was more sensitive to the needs of victims of rape and sexual assault.
“I hope they’ll assist women who are victims of such callous crimes and will also offer further support and protection when giving evidence before a court, which can be a terrifying and harrowing experience,” she said.
Sydney Actions
A group had a meeting in Sydney on the 24th october to disscus plans for the day of action in Syney.
We thought of some really great ideas of what we are going to do on and surrounding 30th Novebever (day of action). like;
- Event- for the 1st December.An afternoon of discussions. 1)planing a safer spaces policy, 2) supporting survivors, 3)consent. Then at night have performances/spoken word, an art exhibition, stalls with info zines and other resources.
- Poster Project-to design and print a series of posters to put in communities, cafe’s, activist spaces, work places, everywhere. Topics will include survivor support, using child sexual assault in the NT as a Trojan horse for the racist land grab, myths surrounding sexual assault. Make the posters available on the internet so people can download them and stick them around their area’s!
- Radio Interviews- try and talk about why the day of action was called, what is going on around the globe on that day, and how different communities that are choosing to deal with sexual assault issues outside of the legal system, and why.
- Press Release- send out to all media. Informing people about the Day Of Action.articles about the invasion on the military in the NT. Maybe an interview with people who are using ‘community response’ as a way to try and combat sexual assault in their communities.
- Resource Packages- send packages with zines(concerning sexual assault, consent, support, where resources are available), letters and posters to youth community centers in rural areas.
If you want to get involved with these action, email ida_2007@graffiti.net
debate
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John said,
As a keen researcher on Aboriginal activities for some years now, I believe that the Howard Government’s intervention into the Northern Territory is entirely appropriate. For one to claim otherwise simply justifies the child abuse, sexism, and gross misconduct which occurs in these communities.
To blame the legal system or the police for the lack of successful sexual assault abuse convictions is senseless and mere folly. This site seems to advocate some form of mob/ socialist ruling party which will play judge, jury and executioner.
Furthermore, the example of Iraq is completely ridiculous. Firstly, the Coalition of the Willing is attempting to SAVE Iraqi women from the abuse of the past Iraqi fascist regimes, which by the way are under the laws of militant Islam.
The Howard Government, NSW Police and Australian Army are doing their best to stop sexual assault and abuse. It is sites like these which devalue the great work of our community leaders and put obstacles in the way of their noble efforts.
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anita said,
well, firstly this site is advocating an autonomous, community based response to sexual assault. this is because responding to sexual assault needs to be based on the individual needs of survivors of sexual assault, needs to empower them as part of their healing process, needs to take into account their needs and desires, and what they want. in allowing survivors to determine the way that perpetrators are confronted, and in prioritising their support, responding to sexaul assault can be a way of giving them back some of the power that was taken away during assault.
it might be that survivors of sexual assault want to go to the police, want to use the legal system to deal with perpetrators. but this site acknowledges that the legal system’s way of responding is very often traumatising, invalidating, and in no way supportive or empowering, and also that it is ineffective in challenging the root causes of assault, encouraging behaviour and belief change, and in fact itself displays and perpetuates a lot of myths about sexual assault that are part of a rape culture. it is one thing to assist survivors to use the legal system if they so desire, and quite another to provide a very inadequate system as a person’s only choice. community response, mediation, autonomous restorative justice type approaches, non-government, etc are an alternative that some people might feel is a better option. this kind of response has nothing to do with the legal system. there is no judge, jury, and no execution. it is about belief, support, validation, and then, if the survivor so desires, a response that gives a perpetrator a chance to change, acknowledges that sexual assault is a behaviour that is fostered by the culture in which we live, separates the person from their behaviour, and gives them an opportunity to take responsibility for their actions and to change, rather than locking them in a cell and hoping when they get out something will be different.
secondly, i completely disagree with what you said about the northern territory intervention. the racist legislation that the howard government justifies on the basis of “saving children from sexual abuse” does not even mention the word ‘child’ once. it has nothing to do with support, nothing to do with sexual abuse, and is directed entirely at denying aboriginal communities autonomy.
it is a legislation that applies the same to 73 very unique communities, regardless of the circumstances or context of any community. some things that are included in the legislation are:
sending in “business managers” to communities. these are white, government paid bureacrats (again, where all aboriginal funding goes – to white people that are working to “save” or “help”, never to aboriginal people themselves) who live on communities, can determine who lives in a community, and are very similar to mission managers of the White Australia past. a story i heard recently involves one community that has been requesting housing for thirty years. in this time, one house has been built – the new business manager’s house, which was built when an old home was demolished to make room, and surrounded with barbed wire fence – to protect him from sexual abuse, perhaps? they dont even live there full time.
the permit system for Aboriginal land that was put in place with the NT Land rights act has been removed. permits meant that non-residents had to apply to land councils for permission to enter communities, and helped prevent entry of illegal grog runners, and so on. even the NT police say this is a bad idea, and doesnt even fit with the government’s rhetoric about preventing paedophiles from roaming the streets in aboriginal communities. government says it is to allow government officials to enter communtieis and build houses and the like. this is a lie – government officials have actually never been subject to the act. all the removal of the permit system has done is remove hard won aboriginal rights to land.
publicly funded computers will be monitored. we’ve discovered this includes computers people buy with their welfare money. everything a person looks at on their computer will be recorded and stored, supposedly to monitor pornography consumption. there are no provisions for what will happen with the recorded information.
the legislation provided for military health checks. thats right, not conducted by doctors or sexual health experts, but by military health officials. this began, but no evidence of child abuse was found, and it has been temporarily suspended because noone knows what should be done after health checks have been conducted.
CDEP program has been removed. this is a program which is generally used as a top up for the dole in communities where there are no jobs. it allows aboriginal people to effectively be paid for roles they determine for themselves – funds programs like aboriginal land ranger and conservation, aboriginal art and music initiatives, etc. 8000 people were on CDEP. removing this means that people will no longer be able to participate in these roles, and may have to move to cities like alice springs and darwin for work in order to survive. the goverment has said it will create 2000 new jobs. no mention is made of the 6000 people who wont be able to access those after having their CDEP removed.
welfare reforms mean that all aboriginal people living on communities, regardless of their familiy situations and etc, or even of whether they are parents, will have 50% of their Centrelink payments withheld, and turned into vouchers and coupons to be spent on government determined items at places that the government says they can use the coupons. this is justified with rhetoric about ‘neglected children’. but it applies to all centrelink payments – student payments, unemployment payments, old age nd disability pensions… it also ignores the fact that within centrelink there are already programs for people to quarantine part of their payment voluntarily, and 900 families are already doing this to assist with managing their funds. again, this compulsory racist program reminds us of food rations at the old missions. the only determinant is ‘aborignal’ in a ‘prescribed area’ – the only determinant is race. this legislation also wipes out already existing autonomous aboriginal programs such as free breakfast programs for school age children at schools, which aboriginal women ran by putting aside their own money, pooling it and using it to provide free breakfasts. now, these women ahve been kicked out of schools, and parents’ money is quarantined and they are forced to spend part of it on that food that was previously free. these reforms are costing $88 million to implement. imagine if aboriginal communities had access to this kind of money.
centrelink were training aboriginal people in communities to administer welfare programs before this legislation, providing jobs for people in communities, so money could be retained in the community. this legislation removes this, and instead provides for 300 white people from canberra to be paid to administer welfare.
this is the third time in history that the Racial Discrimination Act has been suspended. every time it has been in relation to Indigenous peoples. first, for the native title act, then to override wishes of traditional owners in Hindmarsh island, and now this.
this legislation effectively clears the way for mining, nuclear waste dumps; and attempts to make communities unsustainable so aboriginal people have to again move off their land into cities. it is yet another act of dispossession.
when you talk about our great community leaders, it seems you mean white people, not the great aboriginal community leaders who are resisting, refusing new mission managers, and defending community autonomy. you must be talking about the 750 white people that have now been given new, very highly paid ($100,000 +) jobs in these communtiies where aboriginal people themselves cant get jobs.
some new housing is being provided on the edge of alice springs. the old transportables from woomera detention centre.
this is apartheid. this is racism. this is paternalism, and this is government controlling the lives of indigenous people. initial white research teams went in with the military.
it has nothing to do with sexual abuse. people on town camps and in communities have not even really been told of the existence of this legislation. there has been no attempt to translate and communicate the requirements of the legislation to aboriginal people. young people have faced ridiculous fines which they cant afford to pay because they dont even know that they cant buy prescribed amounts of alcohol.
melbourne meeting
last week we had the first meeting to organise what is going on in melbourne.
these are the things we all wrote about what the day meant to us:
because we never talk about sexual assault, and when we do we blame the survivor/victim and we dont talk about how this entire society is structured to discredit, shut up, re-traumatise her/him. especially the police/legal system. in spite of all the failings of society for victims/survivors we refuse to respond to it as a society and as communities. by “we” i mean we as a society. BUT ALSO BECAUSE IT DOESN”T HAVE TO BE THIS WAY.
stopping sexual assault/harrasment by raising awareness of the effects of our actions on other people, the many different actions which can scar people, what consent means, etc. questioning society’s assumptions of what it means to be safe.
hearing voices that are not heard, that are constantly silenced by lack of support, by law, by lack of community. empowering those survivors and survivor supporters that there are other people who give a shit and actually want to create communities with no sexual assault and awesome supporters!
visibility of survivors, healing and empowerment, opening discussions about this stuff which is never talked about, community response is usually invisible so getting it talked about, thought about, starting discussions, starting action. sharing resources, information, learning, about sexual assault, consent, support, perpetrator response…. this is direct action
bring everyone with us who can’t won’t wouldn’t, skillshare and heal, be able to say that they were assault, safer spaces so people can recognise and participate, less assault and more autonomy
——
we are going to have a speak out in melbourne. an open stage. for sharing stories, for sharing whatever. and a picnic afterwards. for talking, and healing. we are going to do a newspaper, with contributions from whoever. about assault, support, community response, myths, consent. we want to go on the radio. try to be in magazines. we want to be seen.
the meeting was exciting. but it was small. competing with other skillshares/meetings, about other things. that somehow always seem to be more important. only one male came. disappointing, but unsuprising? but no matter how small, no matter who comes. this is exciting, and amazing. stand up and be heard, be seen. take notice.
xx
Sydney Action Meeting, Wed 24th October
Come and talk about what your commumnity is planning or see what other kids are doing for the International Day of Action. Wed,
24th October, 6pm at UTS. Directions to the room will be posted around front entrance!
see you all there!
Women for Wik Discussion 14th October
Are you concerned about what is happening to Indigenous communities in the NT and would like to hear the views of women working there?
Come and meet three women at the heart of the NT intervention and hear what is really happening and what is needed. Meet Olga Havnen, national Indigenous leader from the newly formed Combined Aboriginal Organisations, Eileen Cummings, former advisor to the Chief Minister of NT on Aboriginal and Women’s Affairs and her daughter Raylene Rosas. The event will be chaired by Dr Anita Heiss, novelist and social commentator, Vice-Chair of the Australian Society of Authors.
The justification for the Federal intervention is to protect the Indigenous children in the NT so we need to make sure that this is what happens. Can the present and proposed approaches adequately serve the needs of the women and children in the NT who need help? Or are there serious flaws in the approach?
Women for Wik has been re-established to provide support for the women in the NT who have been working on these issues for some time and to assist them in monitoring what is happening.
We therefore invite you to join us for a meeting
between 2- 4 pm on Sunday 14th of October
at the Australian Hall
150-152 Elizabeth Street, Sydney.
This venue has been selected because is symbolic as well as convenient. It was the venue for the first national Aboriginal civil rights gathering
the Day of Mourning and Protest Conference
on the 26 January 1938.
Mediation
Mediation
Some things I looked at when I was writing this are: Peter Coleman, ‘Power and Conflict’, Simon Young, ‘Cross-Cultural Negotiation in Australia: Power, Perspectives and Comparative Lessons’
What is it?
Mediation is basically facilitated discussion and negotiation between two or more people. It might be necessary because people want to talk about conflicts that are happening between them in order to resolve them, and think that maybe they can be resolved, but maybe without a mediator it could just become an argument, they might not be able to communicate properly together, their emotions are really intense and it is difficult for them to move forwards in discussions, they disagree about the most important issues, they think that their interests are incompatible, there might be significant differences between the people, and so on. A mediation involves a third person, not to make decisions on behalf of the people involved, but to help to structure and order communication and dialogue so that they can reach an agreement themselves.
The role of the person mediating should be determined by the people who want to have a mediated discussion. While usually their role will be neutral, sometimes you might want someone to offer advice, to help people to reach a solution, to give their opinion, or so on. It really depends on the specific situation and issues with communication and so on. Sometimes it might be someone not directly involved in the conflict, or someone known equally by both parties, or not really close to either party, but other times it may be a friend who is closer to one of the parties, or someone who is really familiar with the conflict that has been going on, or etc. This has to be up to the particular people involved and what they want. No matter what the role of the mediator is, it is important that the people between whom the conflict is retain ownership of the process – it has to be their process.
Part of the idea around mediation is that, rather than seeing a conflict as two opposing sides, conflict can be seen as a mutual problem for everyone involved to solve together. Power relations can be converted into a ‘power with’ relation – people working together to solve issues. Part of the role of the mediator would be to help all those involved to identify the common problems that they need solving. From here, you can try to work together around how to solve it. This involves identifying similarities, and underlying interests of the people, which are more complex and usually easier to reconcile than the positions of each person – for example, a position might be that I don’t want to do the dishes every day. But my underlying interest might be that I do want the house to be clean but I don’t want to spend all my time doing the cleaning because I’m really busy and have heaps of other stuff going on. If I just say I don’t want to do the dishes every day, but my housemate says that he wants me to do the dishes every day, we have a conflict that is hard to resolve because we have opposing interests. But if we look at our underlying interests – we probably both want the house clean, but also probably don’t want to spend all our time doing it. There are more similarities, and we might be able to work out a solution that is good for both of us. Obviously that’s a really easy and simplistic example, but the basic idea is the same: trying to turn a conflict into a mutual problem you can solve together.
This means changing the ways we look at conflicts, and turning them into cooperative situations where people want others to perform effectively and use their resources and ideas together for similar purposes. This needs constructive communication. Sometimes its easier to see conflicts differently if you have someone – a mediator – helping you to do so.
Mediation is a strong element in Indigenous dispute resolution processes, usually managed by elders. There may be a strong focus on expressing emotion in a controlled environment, drawing out the deep-rooted causes for problems and issues that come out in anger, violence and so on. The mediator might contribute towards the healing process by teaching, offering advice and guidance, helping individuals find and think about solutions. In many descriptions of the Aboriginal dispute resolution process, the ultimate goal is transformation and healing.
Power relations
Power dynamics and inequalities or imbalances can be really present in mediation. Part of the role of the mediator is to try to counter these power imbalances so that it is a more equal conversation, without manipulation or pressure. (Sometimes, depending on the situation, it might be important to the process that the mediation is a part of that one party has more power – maybe a survivor in a mediation needs to have more power, and so the mediator’s role would partly be making sure this was maintained)
Various things contribute to power imbalances in mediations. It can be because of the situation – survivor-perpetrator power dynamics, for example; because of race, gender, age, social standing/popularity, religious beliefs and cultural backgrounds, family dynamics, mental health, sexuality, and so on. One person may have more power in a mediation and be more dominating, pushing the other person into particular agreements and outcomes. These various dimensions of power and privilege can also create norms, roles, cultures and so on that drive people to stick to limited ideas of what solutions could be, what can be done about situations, and so on. It can be important to think about the reason why particular ideas or solutions seem appealing, or seem to be the only options.
Things that can play out in mediations according to unequal power relations include: one person not really paying attention to the other, talking not to the person directly but only to the mediator, interrupting and talking over the other person, being dismissive or condescending of or about things the other person says, making threats or being manipulative, trying to discredit the other person to the mediator, revealing information in the mediation the other person wouldn’t be comfortable with having revealed, using pressure tactics, not compromising or moving away from the position they want to be the outcome…what other things?
All these things obviously mean that the outcome is more likely to be good for the person with more power in the situation, and potentially bad for the other person – this is not a step towards dealing with the issue, but more like a perpetuation of the conflict. The mediation process and the role of the mediator needs to try to minimise the impact of power imbalances on the mediation and its outcome. This might mean increasing the power of the person who has less, or decreasing the power of the more powerful person, setting boundaries for behaviours, making the power dynamic visible and talking with parties about how to minimise it or with the more powerful party, or sometimes maybe being quite directive in making sure people have equal space to speak and things like that…what else?
Sometimes cultural or language differences, and so on, mean that a mediator might also have to facilitate communication in a way that involves some element of interpretation – making sure all people understand what is going on and what is being said. If there are cultural differences, it is important to try to work out how these will impact on the entire process. Some people might be used to certain forms of dispute resolution, and it could be important to use some parts of that process.
Confidentiality
Confidentiality is really important. It might be a condition of people participating in the mediation that what is said in the mediation stays in the mediation. This might help people to be more honest, more open, and so on. However, it might be an outcome of the mediation that the participants want a record or description of the mediation and the outcomes made public, for whatever reason. Confidentiality should be talked about with the parties before the mediation starts.
How does it work?
There are different models of mediation and different roles of the mediator in each. The following information is not from any one particular model of mediation but just some ideas and strategies and etc that I thought were interesting or useful to think about.
Mediation is often between only two people, but might be between many more people, depending on the issue, what stage of the resolution process mediation is occurring at, what the purpose of the mediation is, and all that stuff. It is important that people involved make the process their own – determine how they want the mediation to go, what processes they want to follow, what they want a mediator to do, and so on. It should reflect the issue, the people, and what they want to get out of it.
There also might be many issues in a particular conflict. The people involved might want to cover all the issues in the mediation, or just some. Part of the mediation is working out which issues people think are the most important, and which order to do them in. There might be conflicts around this.
Some models of mediation focus on separating the people from the problem (the problem is not an unresolvable difference between people), focusing on interests and not positions (see above), thinking of lots of possibilities before deciding what to do. Some focus on having an objective standard to measure the result against, but I would disagree – I think that results of mediation can only be measured by the personal satisfaction of the people involved, and whether their needs and etc are met. To me also, separating the person from the problem doesn’t mean speaking calmly and leaving your emotions out of the mediation. I think expressing emotions is really important. And sometimes this can include anger, and anger is expressed against people. But sometimes this can mean that mediation is not going to work at all. It might also depend on who is expressing the anger towards the other, and how they are doing this – in a survivor-perpetrator type dynamic, anger might be really positive for a survivor to express, but completely fucked if it is a perpetrator expressing anger and attacking the survivor. I guess mediation is about, in part, channelling these emotions – not a lot, not so as to not allow space for emotions – but to try to make sure the mediation doesn’t collapse or something, and I guess also in relation to power dynamics and protecting people.
Some pre-conditions and things to think or ask about before a mediation:
· venue and physical arrangement – is there a particular place where people might feel most comfortable? safety? no interruptions? how will the thing be set up – sometimes, having two people sit opposite each other with the mediator in the middle might be too much like a fight or argument. other times it might be necessary. will you need to have food and drink if it will take a long time? is it going to be warm, and lit well? etc
· things not to be talked about – are there some things that people/person in the mediation definitely do not want to be mentioned by you or the other person? or some things might only be able to be talked about in a certain way – so other people remain anonymous, particular details are left out, or etc.
· language – will there be difficulties in communication due to language barriers?
· how do people like to tell their stories? question and answer, or in a more straightforward story telling way?
· and so on
· this kind of thing means that a mediator should meet with all people who will be in the mediation and talk with them before hand. What about might depend on the role of the mediator in the mediation – a neutral mediator might not want to know the details of the conflict and people’s opinions before hand. However, it could be useful sometimes to find out what the conflict is, people’s positions, and try to work out their underlying interests, if the mediator is going to help identify those interests or offer some suggestions. Other things to talk about would be physical and venue-related needs during the mediation, confidentiality, people’s triggers and how to deal with them, sometimes a safe word that means the mediation needs to stop or that it should move to the next issue, or a time out word meaning that a person needs to pause the mediation and talk confidentially with the mediator.
The actual mediation process…some ideas or things to think about:
· clear explanation of what the process of the mediation will be, that people can stop at any time, confidentiality, and so on.
· setting down of some basic rules for the mediation – no interruptions, respect for the other person, not to attack the person but their behaviour (with qualifications maybe…), etc. Talking about this might not necessarily stop it from happening, but it does give you something to refer to when this behaviour happens – you can say, remember when we said this at the start….
· the rest of the process will depend on the process worked out before hand, but the following points are just some ideas:
· having time for either one or both/all of the peopl to tell their entire story, uninterrupted. Through this, getting people to try to work out why they did or felt certain things.
· having people each identify what they think the main issues are
· then trying to talk about which is the most important, what order they should be gone through in – that is, if they can separated. Basically trying to structure the way the rest of the discussion will go.
· Once issues are identified, you can start talking about possible outcomes. There are different ways of doing this – maybe getting each person to talk about what they want out of the mediation in turn, perhaps having the mediator suggest some outcomes. Here it would be good to focus not on particular solutions – as in, not on how the conflict can be practically resolved in terms of what each person would do, but what kinds of things each person cares about in terms of resolving or dealing with the conflict. This means their underlying interests – their desires, their fears, their needs, what they definitely don’t want to happen.
· Throughout these processes, a good way of trying to re-frame the conflict into a mutual situation that needs to be dealt with is by re-framing things the people say. So if one person says I need… and another says I need…, trying to identify similarities and saying things like, well from this I get that you (meaning both/all) want or need something that…. and turning it into a common thing that all those involved might want. This might not always be possible, but trying to do it as much as possible, even having what one person wants as a qualification on what the other needs/wants, can be useful. Re-framing can also be useful in trying to make things people say specific to a person’s behaviour, not the person – saying, so, you felt xxxx when xxxx did or said xxxx, as opposed to the person saying, xxxxx is xxxxxx.
· If you can identify common interests, you can then talk about practical ways of satisfying those interests. This could be done in different ways – getting each person to write a list of things they want from the other person and things they are willing to do themselves, then seeing if anything crosses over and talking about it; having a mediator suggest something and then people talk about it; having the mediator only read what the people wrote then identifying similarities and talking about what they are; having people individually talk to the mediator in private about things they want/need, ideas they have and so on, and then the mediator to relay that to the other party in a different room, and going back and forth; or having private meetings then coming back together with discussion led and defined by the mediator; or a combination of any or all of these methods…there are heaps of ways. This applies not just to this part of the mediation but to any kind of identifying issues or wants/interests, or etc. Sometimes people might not want to come face-to-face at all in mediation. There could be two separate rooms with a mediator going back and forth between. It could occur over a long period of time. And so on.
· Some other things that could be useful in a mediation, for identifying similarities and re-framing stuff, as well as having a structure to go through, is writing things that come up and are agreed on down on a big piece of paper as you go, writing the main issues up in a way that makes them a common problem in the order you want to talk about them in (could be good to have a whiteboard or something sometimes), etc. But remember that these kinds of things can be more formal – make sure that the techniques you use and things you do and say, including the kind of language you use (formal, informal, intimate or kind of back from the people, etc) is suited to what kind of mediation and process the people involved wanted, and what they want out of it.
· I guess that there are heaps of ways a mediation could go, heaps of other things you could include, and etc. And also heaps of different ways you might want it to end. It might be that the discussion is the important part, rather than getting something out of it. It might be a small step towards other things. There might be a series of mediations, or just one. It might want to finish with each party having a list of things to go away and do, each with a support person to help them to actually stick to it. There might be follow up mediations. There might be something written down, or not at all…
Restorative Justice
Restorative Justice
Some of this information is adapted from: Jennifer Llewellyn, ‘Dealing With the Legacy of Native Residential School Abuse in Canada’. However, I’ve also changed and added parts of it, and it is still open to adaptation, because I think these ideas are never fixed and always changing as we learn more and try more, succeed sometimes and fail more times.
Restorative justice is an idea about justice and a model for working through conflicts. It is only one model or idea about justice and conflict resolution – there are heaps of others. But there are at least interesting things you can take out of it and use, and it can be adapted or at least used to guide responses to a various range of different issues.
What is it?
Restorative justice is about restoration of relationships. About restoring mutual concern, respect and dignity between the parties. But, this may not always be entirely possible or desirable. Restorative justice is an idea about creating a process that can comprehend and address the true nature of harm suffered, acknowledging that harm and hurt is experienced as internal pain and suffering of those directly involved in the conflict, but also affects that person’s relationships with others, and even affects the relationships between and among people in a wider community. Restoring relationships doesn’t mean restoring personal or intimate relationships, it means restoring social relationships of equality.
Restorative justice and processes of conflict resolution should be survivor-centric. This means that the needs and desires of the person who has suffered the harm or hurt should be first and foremost. While sometimes restoring personal relationships may be one of these needs or desires, but lots of the time they won’t be. More often, the goal will probably be more along the lines of enabling all people involved to coexist with security and respect within the same community. Restorative justice doesn’t mean restoring the relationship between survivor and perpetrator to what it was before the situation occurred, because often what has happened is the result of existing inequality – restorative justice goes towards addressing that inequality.
There may be numerous things that are needed to make this possible, and lots of different people that may need to be involved in the conflict resolution process. Healing and support for the person who has been hurt or harmed, so they can continue to live their life within a community, so they feel supported and respected within a community, and safe within that community. For the person or people who caused that harm or hurt to take responsibility for their behaviour, and then to confront it with the aim of changing that behaviour. Restorative justice may involve the wider community – for people to recognise something as an issue, to learn how to support, to learn what is necessary to address the situation. To allow someone the space to heal, to help them to create and hold that space. To confront a person on their behaviour, to assist them through a process of change. To educate each other and learn, to try to find ways to prevent a similar situation from happening in the future – to address the individual situation, but also its relevant contexts and causes…. What else?
How can it work?
A conflict goes wider and deeper than a ‘dispute’ or particular individual situation. Usually a conflict has lots of different dimensions and levels of hurt, harm and tension. It is important to recognise that different things, acts, feelings, are usually connected. That past experiences and other relationships the person has or has had will change the way current experiences are felt, the effect acts have on people, and so on. The harm that may be felt stems beyond the particular response and reaction to an incident – it is usually ongoing, and spreads into different parts of a person’s life.
There is not really such thing as a specific model of restorative justice. Different processes can be totally different but still be restorative. There are a few things that I guess form the basis of restorative processes, including integration rather than isolation (though often isolation might be an important part of a process leading to integration – and sometimes, if the isolated person does not take the steps required of them, they may be unable to be integrated back into the community), a common commitment to restoring social equality in relationships, and understanding community as an integral part in the creation and solution of social conflict, that the conflict goes beyond the individuals involved, that dealing with a situation requires looking at the specific situation but also its wider contexts and causes, looking at the outcomes or implications of a conflict and its resolution for the future for everyone involved, and bringing together everyone that has an interest in that future to deal with a situation in some way.
The first step is figuring out what all the different people who are involved in the conflict want from a conflict resolution process. This means examining peoples needs; working out what the heart of the conflict is, what kind of conflict it is. You need to help people to identify the harm or hurt that has been caused – there may be many different harms that have been caused. This might actually be part of dealing with the issue, and also might lead to people being able to identify what they need and want out of conflict resolution. The needs of the person who has suffered the hurt or harm must be the biggest priority. But others may have things they want to get out of the process too, hurts or harms they may have suffered in the situation – the person who has caused the hurt or harm, the communities of support for both, the broader community. I think its important that various people can actively participate in the process, at various levels. This doesn’t mean that everyone has to know what is going on, identities, be involved in the specific situation. But if we acknowledge that conflicts have wider contexts and causes, then we can all actively engage in trying to challenge and change those.
For restorative justice to really work, it has to be voluntary. The people who are involved – and particularly the person who has caused the hurt or harm – must want to address it. If they don’t, restorative justice processes aren’t really going to achieve much.
After working out what people want from a conflict resolution process, you can start to work out the best way to achieve those goals – what procedure or steps will be the best way to try to satisfy what everyone wants.
Truth-telling should be a central part of the process. Conflict resolution may involve creating space for people to tell their stories, to talk about their hurts and harms to whoever they want to or need to. Truth-telling also needs to be in the form of an admission of responsibility by the person who has caused the harm. This is a pre-condition for a restorative process. A restorative justice process should also involve an honest relating of stories and experiences by other people who may be involved in the situation and process. Face to face meetings and sharing of stories and experiences between the survivor and the person who has caused harm, and the community is a key part of restorative processes. However, protection of the survivor, and also the perpetrator, has to be the predominant concern. A face to face meeting with both at once might not be possible – the survivor may not want to be in the same space as the perpetrator, and so on. So there may need to be other ways such a process can work. There also needs to be ways to prevent power imbalances from affecting the process.
Some ways to get around this might be: having a facilitator who mediates the conflict, and kind of structures the process and makes sure that things are moving along; or potentially having different facilitated sessions, one with the survivor and one with the perpetrator, and having someone else read out something that the other has written at each one. One idea is also to have shuttled sessions – there would be a main meeting, with everyone present, and someone who would speak for either the survivor or the person who has caused the hurt or harm. This would be the main session. In another room, the person not at the main meeting could wait, and the person speaking to them would maintain communication with them after stages of the process, get them to write responses, and things like that. Who is not present would depend on the wishes of the survivor. One thing that should be remembered here though is that the face to face meeting is an important way that the people who have caused harm or hurt can participate in restitution for the survivor, a means through which to personally take responsibility for the harm caused and repair or at least acknowledge the harm caused. Without face to face contact, you will need to think of other ways together that this can happen.
A restorative justice process should develop a plan for the future, aiming at the re-integration of survivor and perpetrator into the community. It should be the product of the communication and agreements that happen as part of the process.
Any model for a restorative justice process should be restorative in its nature and reflect the underlying aims and ideas of restorative justice – the development of the process should happen with input and communication between the different people that are involved. The survivor and other people involved in the conflict should develop the process that is used to deal with the conflict – this might also be an important way for the survivor to regain control over their life and feel empowered. People involved in the process should also become familiar with and understand the aims of restorative justice.
It is important to remember that a restorative justice process might lead to various different things – outcomes of the process may include someone going to professional counselling, making a public account of their experiences, writing zines about stuff, making personal commitments about how they will behave in public spaces and which public spaces they will enter, taking part in an ongoing communication process with certain people about the extent to which they are holding to the agreed outcomes, and so on. It is an ongoing and long lasting thing – conflicts are never just ‘resolved’. The outcome usually involves an ongoing healing process and an ongoing commitment to change behaviour and to instigate change in the wider community. This doesn’t stop – it is a constant, and should always be happening.
