Restorative Justice and Sexual Assault in Nova Scotia: Why Is the Door Ajar?

RESTORATIVE JUSTICE AND SEXUAL ASSAULT IN NOVA SCOTIA: WHY IS THE DOOR AJAR?

Lisa Dawn MacDougall

Thesis submitted in partial fulfillment of the requirements for the Degree of Master of Arts (Sociology)

Acadia University Fall Convocation 2009

This thesis by Lisa Dawn MacDougall was defended successfully in an oral examination on September 3, 2009.

The examining committee for the thesis was:

______Dr. Harish Kapoor, Chair

______Dr. Diane Crocker, External Reader

______Dr. Ann Marie Powers, Internal Reader

______Dr. Anthony Thomson, Supervisor

______Dr. James R. Sacouman, Head

This thesis is accepted in its present form by the Division of Research and Graduate Studies as satisfying the thesis requirements for the degree Master of Arts (Sociology).

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I, Lisa Dawn MacDougall, grant permission to the University Librarian at Acadia University to reproduce, loan or distribute copies of my thesis in microform, paper or electronic formats on a non-profit basis. I, however, retain the copyright in my thesis.

______Author

______Supervisor

______Date

TABLE OF CONTENTS

Approval of Thesis ii Permission Head Librarian iii Table of Contents iv Abstract vii Acknowledgements viii

CHAPTER ONE: INTRODUCTION 1

CHAPTER TWO: RESTORATIVE JUSTICE 6 Definition 6 Three Core Models 7 VORP/VOM 8 Conferencing 10 Circles 13 Three Main Stakeholders 15 Serious and Violent Crimes 18 Diversion 18 Face-to-Face 19 Voluntary Participation 19 Restoration 20 The Nova Scotia Restorative Justice Program 21 Goals and Objectives 24 Four Referral Points 27 NSRJ/CURA 30

CHAPTER THREE: SEXUAL ASSAULT 32 A Major Social Problem 33 Sexual Assault and the Criminal Justice System 34 Reporting Rates 35 Laying of Charge Rates 37 Conviction and Acquittal Rates 37 Incarceration 38 Changes in Canadian Legislation 39 The Doctrine of Recent Complaint 43 The Corroboration Rule 44 The Rape Shield Law 44 What Changes Have Accomplished 46

CHAPTER FOUR: FEMINIST THEORY AND RJ 50 Liberal 52 Equal vs. Unequal 54 Social Construction 56 Radical 61 Feminist Theory and Restorative Justice 64 v

A Feminist Approach to Youth Sexual Offending 67 Cultural Feminism 68 Theory and Restorative Justice 71 Multicultural/Multiracial Feminism 73

CHAPTER FIVE: LITERATURE REVIEW 78 Potential Harms and Benefits 79 Victim Offender Mediation Program 88 Collaborative Justice Project 89 Mediated Dialogue and Homicide 91 Restorative Justice and Sexual Violence 92 Domestic/Intimate Violence 95 Family Group Decision Making 97 Child Sexual Abuse 100 Adult Victims of Child Abuse 102 Date/Acquaintance Rape 104 Hollow Water 111 Youth 112 Youth, Restorative Justice and Sexual Offending 118 Youth Criminal Justice Act 122 Sexual Offender Reintegration Post-Incarceration 127

CHAPTER SIX: METHODS 129 My Interest in Restorative Justice 129 Description of the Study 130

CHAPTER SEVEN: FINDINGS 134 Background Information 135 Failure of Criminal Justice System 139 A Social Problem 140 Diversion From Court/Less Serious Crimes 141 Restoration 142 Religion/Apology/Forgiveness/Healing 142 Benefits of a Restorative Justice Approach 143 Victims of Sexual Assault 145 NSRJ and Sexual Assault 146 Main Concerns 146 Restorative Justice and Early Intervention 150 The Moratorium 151 The Way Forward 152 Victim Veto 153 Longer Preparation 153 Opportunity to Return Referrals to Source 154 Changes to Model/Risk Assessment 154 Restorative Justice/Level of Sexual Assault 154 vi

CHAPTER EIGHT: DISSCUSSION & CONCLUSION 156 Merit 157 Inadequacy of Conventional Response 160 Multidimensional Approach/Societal Change 162 Restorative Justice Process and Core Concepts 164 Diversion From Court 164 Safety 167 Victim-Centered vs. Offender Centered 168 Volunteers 170 Religion/Apology/Forgiveness/Restoration/Healing 171 The Role of Women‟s/Victim‟s Advocates 173 Youth and Early Intervention 174 Post-Incarceration Reintegration 175 Education 176 Victim‟s Wishes 176 Lack of Resources 178 Conclusion 179 Linking Theory and Practice 183

REFERENCES 189

APPENDICES: Appendix A: Letter of Invitation 202 Appendix B: Informed Consent Form 203 Appendix C: Interview Guide 206

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ABSTRACT

Restorative justice has gained wide appeal as an alternative form of justice that offers youth the opportunity to take responsibility for wrongdoing and make amends to victims. As the popularity of this approach increases, new and controversial applications have spawned a significant body of literature. Among the contested applications is the use of restorative justice for sexual assault and partner violence. Sexual violence against women is of particular concern as the conventional criminal justice system may be viewed as a patriarchal institution that only perpetuates the myths and stereotypes surrounding these crimes. Published literature on the use of restorative justice for sexual offences/partner violence is mostly theoretical and refrains from drawing any firm conclusions; however, the door is consistently left ajar for further discussion and research. In Nova Scotia, as in many other jurisdictions worldwide, a moratorium prevents the Nova Scotia Restorative Justice program from handling such cases. This thesis examines the potential harms and benefits of extending restorative justice to sexual assault/partner violence. Open-ended interviews were conducted with eight respondents, three from positions within the Nova Scotia Restorative Justice program, three from the criminal justice system, and two respondents who were women‟s or victim‟s advocates.

This thesis comes to the conclusion that the door must remain open for further discussion about the role of restorative justice in cases of sexual assault and the generation of research must proceed, albeit with caution and input from feminist organizations and women‟s advocates.

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I would like to thank the Acadia University Department of Sociology for their kindness and support during the past year. In particular, I owe a great deal of gratitude to Dr. Zelda Abramson, Dr. Heather Kitchin, and Dr. James Sacouman for their guidance. I would especially like to thank Dr. Anthony Thomson for his patience and unwavering support. This thesis would not have been possible without his knowledge and understanding. Finally, I would like to thank my family - Mom, Dad, Dave, Jodi, and Erik - for seeing me through the past year. 1

CHAPTER ONE: INTRODUCTION

Restorative justice has seen a significant increase in interest in recent years

(Cormier 2002: 1). Most widely accepted as diversion from court for youth involved in less serious crimes, such as shoplifting and vandalism (Hudson 2002: 618), some jurisdictions have moved to incorporate adult offenders and serious and violent crimes under the rubric of restorative justice, including such offences as homicide, assault causing bodily harm, and sexual offences. (Burford & Pennell 1995; Roberts 1995; Flaten

1996; Nuffield 1997; Umbreit, Bradshaw & Coates 1999; Umbreit & Vos 2000; Hopkins

& Koss 2005; Rugge, Bonta & Wallace-Capretta 2005; Cameron 2006; Daly 2006).

Often billed as an “alternative paradigm of justice” (Zehr 1990), when applied to serious and violent crimes, restorative justice is, perhaps, best considered an adjunct to the conventional criminal justice system (Hudson 2002; Archibald & Llwellyn 2007; Stubbs

2007). The Nova Scotia Restorative Justice (NSRJ) program posits itself in the latter category, as a “partnership between the state and various communities” (Archibald &

Llewellyn 2007: 303). The extension of restorative justice to these serious and violent crimes sparks grave concerns and heated debate regarding the very nature of the restorative justice process and its core principles. The purpose of this thesis is twofold: first, to examine some of the potential harms and benefits of a restorative justice approach to cases of sexual assault and, second, to assess through the distinct perspective of the NSRJ program, whether there is any merit in continuing discussion regarding the use of restorative justice for sexual assault.

Sexual assault is a major social problem affecting predominantly women (Clark &

Lewis 1977; Allison & Wrightsman 1993; McFadyen 2005). Despite Canadian legislative 2 changes in 1983 intended to alleviate criticism directed at the conventional criminal justice system, high rates of under-reporting, low numbers of cases resulting in the laying of a charge, low conviction rates, and high acquittal rates point to inadequacies in the present system (Clark & Lewis 1977; Hinch 1985; Allison & Wrightsman 1993;

Braithwaite & Daly 1994; MacIvor 1996; Tang 1998; McFadyen 2005). According to proponents, restorative justice may improve on the conventional criminal justice system by offering a more victim-centered response to crime that allows the victim an opportunity to heal (Curtis-Fawley & Daly 2005). A growing body of literature on the use of restorative justice for sexual offences sidesteps a firm position on its potential to improve on conventional criminal justice system responses to crimes of sexual assault.

Much of the literature consists of lengthy discussion as to the potential harms and benefits of applying restorative justice processes to such crimes, leaving the door open for further discussion.

The NSRJ program was implemented with the intention of gradually extending the program to all ages of offenders and all offences, including sexual assault (NS Dept. of

Justice 1998: 16; Clairmont 2005a: 245). In 2000, a moratorium on the use of restorative justice for sexual assault and partner violence was instigated because of concerns arising from women‟s and victim‟s advocates (Archibald & Llewellyn 2007: 215). At present, this moratorium is still in place, though according to Clairmont (2005b: para 7) discussions are “ongoing” regarding ways to incorporate sexual assault and partner violence under the rubric of restorative justice practice in Nova Scotia. My goal here is merely to illuminate the potential for the NSRJ program to improve on the conventional 3 criminal justice system response to sexual offences, in particular sexual offences perpetrated by youth.

This thesis is exploratory in nature. Much of what is written about the use of restorative justice for sexual assault is theoretical, and empirical data on the use of restorative justice for sexual assault is scarce. To the best of my knowledge, Daly‟s

(2006) Sexual Assault Archival Study (SAAS) of 400 cases of youth sexual assault is currently the only empirical data available on youth sexual offending dealt with by restorative justice processes. My chief aim of assessing the possibility of extending restorative justice processes to youth is based on the assumption that, should the moratorium in Nova Scotia ever be lifted, the logical progression would be to begin with youth. Taking into consideration the lack of data generated specifically for sexual offences, I draw heavily on studies relating to the main goals of the NSRJ program, as well as studies involving restorative justice for serious and violent crimes, in order to draw some analogies. I do not intend to come to a firm conclusion regarding the use of restorative justice for sexual assault; however, I expect my research to clarify how those who work with victims of sexual assault view restorative justice and the way restorative processes would, at least theoretically, change in order to incorporate sexual offences in

Nova Scotia. Finally, I feel it important to note that, while I have chosen to address issues most pertinent to female victims of sexual assault, I do not in any way mean to negate the experiences of male victims of sexual assault or of same-sex persons. In the final analysis, I expect any perceived benefits and harms may apply to all.

A key inadequacy I have found in the published literature is that critics of restorative justice processes for cases of sexual assault fear victims will be re-victimized 4 in a restorative setting; yet, this same criticism has been levelled against the conventional criminal justice system for decades (Clark & Lewis 1977; Hinch 1985; Allison &

Wrightsman 1993; Hooper & Busch 1996; Tang 1998; Goel 2000; Busch 2002; Curtis-

Fawley & Daly 2005; Hargovan 2005; Herman 2005; Cameron 2006). My research will hinge on the idea that the door has been left ajar in the hopes of achieving a better way of doing justice for victims of sexual assault while acknowledging the very real concerns of those who are opposed. While the debate over the use of restorative justice as a viable alternative to conventional responses to sexual assault is muddied by problems of definition, as well as theoretical and practical application, it is clear that victims of sexual assault have little recourse to any real form of justice and that the roots of sexual assault extend deeply into the fabric of society. At best, we can hope for further discussion of necessary changes to criminal justice system responses to sexual assault, whether or not, in the end, such change involves a restorative-based approach.

This thesis is divided into eight chapters. Chapter One is the introduction. Chapter

Two offers an in-depth look at restorative justice, with emphasis on the NSRJ program.

Chapter Three situates sexual assault as a major social problem and, through a critique of pre- and post-1983 legislation, determines to what degree legislation has achieved positive change. Chapter Four uses feminist analysis to uncover the historical roots of sexual violence against women and also suggests ways in which restorative justice might help rather than hinder the feminist cause. Chapter Five is a review of the published literature addressing the use of restorative justice for serious/violent crimes, including sexual offences. Emphasis is on youth sexual offending. Chapter Six explains my 5 methodology. In Chapter Seven, I present the findings of my primary data. Chapter Eight is the discussion and conclusion of my findings.

Chapter Two begins with a brief look at the history of restorative justice. I will discuss the problems that arise because of lack of a universal definition and will forge a working definition tailored to my purposes. I will explain the three core models of restorative justice: victim-offender mediation, conferencing, and circles. I will then briefly explore contemporary restorative justice practice addressing the viability of using a restorative-based approach to address more serious and violent crimes. Finally, I offer a detailed look at the Nova Scotia Restorative Justice (NSRJ) program, as this is the lens through which I will view my research.

CHAPTER TWO: RESTORATIVE JUSTICE

Restorative-based justice practices have been noted throughout much of history and in virtually all cultures (Braithwaite 1996; Braithwaite 1998; Weitekamp 1999). Early acephalous societies depended on restitution to resolve conflict without resorting to blood feuds (Weitekamp 1999: 78-79). Restorative traditions can be found in ancient Arab,

Greek, Roman, Indian, Hindu, Buddhist, Taoist and Confucian civilizations (Braithwaite

1998: 323). Umbreit (2002: 1334) states that restorative practices were common in

England prior to the eleventh century, after which Henry I caused a major paradigm shift by deeming certain offences, including robbery, arson, murder, and theft, to be crimes against the king/state (Umbreit 2002). Zehr (1990) believes the recent interest in restorative justice indicates a paradigm shift back toward an understanding of crime as conflict between the victim and the offender rather than the state.

Definition

As restorative justice has expanded, the term has come to encompass a wide variety of processes and practices ranging from diversionary tactics to post-incarceration attempts at reintegrating offenders back into their communities – a fact which has caused some concern (Rudin 2003; Sharpe 2004). While there is no universally agreed upon definition of restorative justice, processes generally adhere to common core tenets, including repairing the harm caused by crime, allowing the victim a voice, voluntary participation by the victim, acceptance of responsibility by the offender, the involvement of volunteers, the goal of deterrence, and an attempt to reintegrate the offender back into the community (NS Dept. of Justice 1998; Latimer, Dowden & Muise 2001; Daly 2006;

Archibald & Llewellyn 2007). In order to guide discussion of what restorative justice is, I 7 begin with a simple working definition. Boyack, Bowen and Marshall (2004: 268) define restorative justice as “a process whereby those affected by an incident of wrongdoing come together, in a safe and controlled environment, to share their feelings and opinions truthfully and resolve together how best to deal with its aftermath”. This definition is based on a notion of “restorative” as the restoration “insofar as is possible” of the dignity and well-being of those harmed by the crime (Boyack et al. 2004: 268).

Modern restorative justice practice has emerged from both faith-based and

Aboriginal models of justice and returns to the idea that crime is a harm against victims, offenders, and communities, rather than against the abstract notion of a state (Braithwaite

1996; NS Dept. of Justice 1998; Cormier 2002; Dickson-Gilmore & LaPrairie 2005;

McCaslin 2005). There are three core-models of restorative justice, which can be loosely categorized as: 1) victim-offender mediation, 2) conferencing, and 3) circles (McCold

2006). These three models generally provide the basis for a broad range of evolving restorative justice programs. A brief discussion of each core model is necessary in order to understand the diversity and complexity of the process.

Three Core Models

Each of the three core models of restorative justice - victim-offender mediation, conferencing, and circles - is based on similar core values, but each has a distinct approach. At one time, mediation and restorative justice were considered one and the same process (McCold 2006: 24). The similarities are obvious. Mediation consisted of a neutral facilitator mediating a dialogue between victim and offender with the goal of forging a restitution agreement agreeable to both parties (McCold 2006: 24). Early mediation programs focused on diversion from the criminal justice system and evolved 8 into three basic models: 1) legal-based community mediation, 2) faith-based victim offender reconciliation programs (VORP), and 3) a secularized version of VORP, the social-work-based victim-offender mediation (VOM). Community mediation began in the United States in 1969 with the opening of the Institute for Mediation and Conflict

Resolution, which created standards for mediation practice “well before” the concept of restorative justice was theorized (McCold 2006: 24). Community mediation as such continues to thrive as a diversionary program that is tightly linked to the legal community and is widely available throughout the United States (McCold 2006: 25). In the early

1980‟s, community mediation spread internationally with programs initiated in Australia, the UK, Norway, Germany, Finland, Austria, Scotland and France (McCold 2006: 26).

The idea of a victim-offender dialogue was adopted by faith-based organizations in the

1970‟s in an effort to develop an “alternative paradigm of justice” (McCold 2006: 26).

Victim Offender Reconciliation Program (VORP) and Victim Offender Mediation

(VOM). Victim-Offender Reconciliation Programs (VORP), have deep roots in

Mennonite communities in North America (Braithwaite 1996; Cormier 2002; Johnstone

2002). In fact, it is widely understood that VORP programs were initially instigated in

Kitchener, Ontario, in 1974 when Probation Officer, Mark Yantzi, became “frustrated with the usual process for dealing with offenders” (Johnstone 2002: 2; McCold 2006: 26;

Raye & Roberts 2007: 212). Known as the “Kitchener Experiment” or the “Elmira Case”, this experiment highlights what restorative justice has become best known for: holding youth accountable for their actions. The case involved two teen-aged boys who had vandalized several properties in the area. Yantzi took a chance and asked the judge overseeing the case for permission to try something different. What occurred was a series 9 of meetings between the two offenders and each of the victims, following which restitution was made by the youths (Johnstone 2002: 2; McCold 2006: 26). The

Mennonite Central Committee was instrumental in setting up the first VORP program in

1975 (McCold 2006: 26). In 1978, the Mennonite community in Indiana set up a second

VORP program and others soon followed in Manitoba and Langley, BC (McCold 2006:

27). In 1990, an early Mennonite proponent of restorative justice, Howard Zehr, wrote what is considered the “seminal” text on restorative justice (McCold 2006: 27). Changing

Lenses: A New Focus for Crime and Justice “clearly articulated” the core values and goals of restorative justice practice (Umbreit 2002: 1335). The VORP process consists of a face-to-face encounter between the victim and offender of a crime through the aid of a trained, neutral facilitator, who allows the parties the opportunity to talk about the impact the crime had on their lives and reach an agreement as to how restitution can be made

(Johnstone 2002: 3).

Feeling that the faith-based model was too constraining and based too heavily on religious affiliations, a secularized model known as Victim-Offender Mediation (VOM) developed (Johnstone 2002: 3; McCold 2006: 27). VOM, in contrast to settlement-driven community mediation models, is a dialogue-driven process that combines community mediation and VORP sessions (McCold 2006: 27). Emphasis is placed on allowing the victim to heal, restoring what was lost, and holding the offender accountable (McCold

2006: 27). VOM‟s are based on a humanistic model of mediation that is concerned primarily with healing and peace-making and requires the mediator to meet with both parties separately before the actual VOM session in order to prepare them for the session

(Umbreit et al. 1999: 327). It is considered imperative that there be a minimum of 10 intervention on the part of the mediator and that both victim and offender be held in

“unconditional positive regard” (Umbreit et al. 1999: 327). Umbreit, Bradshaw and

Coates (1999: 328) believe strongly in using a restorative process based on a humanistic model of mediation when handling cases involving violent crimes as the main issues are more likely to be related to healing and peacemaking than restitution. It has been noted that VOM is the “oldest, most widely disseminated and documented” restorative justice practice in the world, a fact that allows this particular model the distinction of being credited with the most empirical data of all restorative justice models (Umbreit et al.

1999: 322). It is estimated that VOM programs are in existence in over 1200 communities (Umbreit, Coates & Roberts 2000: 215).

Conferencing. The conferencing model originated in New Zealand as a response to

Maori calls for a better forum for justice involving indigenous Maori youth (Bazemore

1997; Hakiaha 2004). The family group conferencing (FGC) model aims to address issues involving both youth justice and child protection (McCold 2006: 31). In New

Zealand, the resulting 1989 legislation, the Children, Young Persons and Their Families

Act, now requires both youth who are enmeshed in “serious cases of care-and-protection” and young offenders who have been charged with indictable offences to attend family group conferencing (Boyack et al. 2004: 265-266; McCold 2006: 31). This new Act also allowed for the creation of a youth court in New Zealand to handle all youth offences via

FGC, with the exception of murder (McCold 2006: 31). There are various other conferencing models, including family group decision making (FGDM), family unity meeting (FUM), police conferencing, and community conferencing, with differences centering around the ways in which the victim and both victim and offender supporters 11 are involved, who facilitates, and who approves the final agreement (McCold 2006: 30-

33). Similar to the FGC, the family unity meeting (FUM) is a US model of conferencing that unites professional social workers and family members to “plan for the care and protection of family members” (McCold 2006: 32). The FUM model allows parents to

“veto which family members are invited” (McCold 2006: 32). The main difference between mediation and conferencing models is the extension of the conferencing process beyond victim and offender to family and community members (Raye & Roberts 2007:

214). Restorative justice conferencing aims to repair the harm of crime through the direct involvement of all key stakeholders (McCold 2006: 30).

Conferencing emerged as a social work-based attempt to address issues in two key arenas: child welfare and youth justice (McCold 2006: 30). Conferences that deal with child welfare are not necessarily „restorative‟, focusing more specifically on the creation of a plan for the future rather than addressing past harms (McCold 2006: 30). The youth justice conferencing model, while more obviously „restorative‟, has been “widely” extended to adults (McCold 2006: 30). Family group decision-making (FGDM) “set a new standard for empowering, restorative social work” (McCold 2006: 31). In 1993,

FGDM was utilized in Newfoundland and Labrador as a means of addressing issues of family violence “more broadly than the care and protection of a child” (Burford &

Pennell 1995: 3; McCold 2006: 31). FGDM took the New Zealand child welfare model and added aspects of Aboriginal responses to family violence, feminist caring labor theory, and Braithwaite‟s reintegrative shaming theory (McCold 2006: 32). Reintegrative shaming theory distinguishes between shaming that stigmatizes the offender, thus serving to provoke further criminal behaviour, and shaming that openly disapproves of wrongful 12 behaviour while allowing the offender an opportunity to be reintegrated into society

(McAlinden 2005: 376). Though terminated in 1995 because of lack of funding, the

Newfoundland/Labrador FGDM program was considered “exceptional” (Stubbs 2002:

55). I examine this program more closely in Chapter Five.

In 1991, conferencing was co-opted as a community policing technique in Wagga

Wagga, Australia (McCold 2006: 32). Based on the FGC, police conferencing was a

“natural extension” to police cautions, combining the “tenets of problem-oriented policing” with reintegrative shaming (McCold 2006: 33). By 1995, the Royal Canadian

Mounted Police (RCMP) had developed Community Justice Forums “designed to divert cases of less serious crime where the offender admits responsibility” (Cormier 2002: 4).

In keeping with VOM, the RCMP model of conferencing is facilitated either by a community coordinator or a police officer, encourages offenders to accept responsibility for their actions, and creates an agreement aimed at repairing the damage done to the victim and the community (Bazemore 1997: 193). Family members are encouraged to attend (Cormier 2002: 4). As community conferencing (also known as Real Justice conferencing, accountability conferencing, and restorative conferencing) the process has been applied in various new and innovative ways as “forums for dealing with wrongdoing throughout society”, including peacemaking processes used in schools, workplaces, communities, youth organizations, college campuses, and other settings

(McCold 2006: 33). These processes blend restorative justice principles with reintegration theory and Tomkin‟s affect theory to address everyday conflict in everyday interaction (McCold 2006: 34). 13

Circles. The final core model to be discussed is circles. Most often attributed to

North American Aboriginal justice, there are, once again, distinct differences between and among the various processes. The three main models are: 1) peacemaking circles, 2) healing circles, and 3) sentencing circles. Despite the fact that circles are primarily attributed to Aboriginal justice processes, it is vitally important to remember that the two are not synonymous (Crnkovich 1995; Cormier 2002; Dickson-Gilmore & LaPrairie

2005). While circles are based on traditional Aboriginal justice principles, they are not, themselves, a traditional form of Aboriginal justice, but have been created, in good measure, by the conventional criminal justice system (Crnkovich 1995: 101). This fact forewarns of serious implications when applying restorative justice to Aboriginal populations and, while it is beyond the scope of this thesis, this issue requires careful consideration (Crnkovich 1995; Cormier 2002; Dickson-Gilmore & LaPrairie 2005).

Circles are adapted primarily from North American Aboriginal practices and herald a healing philosophy built upon the belief that responsibility for crime rests not only with the offender and his/her family, but also with the greater community (Bell 1999: 296).

Differences between the models include the purpose of the circle, who participates, and the role the participants play (McCold 2006: 28). Peacemaking circles are based on traditional Navajo conflict resolution. In fact, the Navajo Nation is considered to be the

“largest restorative jurisdiction in the United States” (McCold 2006: 29). Healing circles, also known as talking circles, are used in large part as a preventative measure (Bell 1999:

296). Healing circles aim to “focus on a particular concern common to all parties” or to help someone along on a healing journey (McCold 2006: 28). In general, healing circles 14 rarely engage justice professionals, though they may include professional counsellors

(McCold 2006: 28).

Sentencing circles are community-directed processes that work in tandem with the conventional criminal justice system to gain consensus on suggested sentencing plans

(McCold 2006: 29). Sentencing circles can be categorized into two types: 1) those that are presided over by a judge and are convened in a courtroom after guilt has been determined and 2) those that are a form of diversion from court (Cameron 2006: 51).

Sentencing circles began in the Yukon in 1991 and were the brainchild of Judge Barry

Stuart (McCold 2006: 29). As with other restorative justice processes, there is no single model and each varies according to the particular circumstances of the community they are tailored to fit (Stuart 1996: 92). In fact, one of the key values of sentencing circles is that they remain flexible and adaptable as “(t)he success of a Circle lies in the spirituality flowing from everyone sitting as equals, sharing the pain of conflict, sharing the struggle to find answers to difficult, emotionally volatile issues, and building connections to each other and to their community” (Stuart 1996: 92). Sentencing circles are often held in a courtroom and invite a variety of people, including the victim, the offender, their support persons, community members, the Judge, the prosecutor, defence counsel, police, and other criminal justice system actors in a search for understanding, healing, and prevention of future crimes (McCold 2006: 29). It is too early to foretell whether sentencing circles will ever extend past the Aboriginal communities they currently serve (McCold 2006:

30). As circles involve a more “extensive intervention” than either mediations or conferences, they do not appear to be cost-effective unless compared to saving the costs of a prison sentence (McCold 2006: 30). Again, sentencing circles are not to be assumed 15 synonymous with traditional Aboriginal justice practice and questions are slowly emerging as to the benefit of such practices for Aboriginal populations (Cameron 2006;

Crnkovich 1995).

Over time, these three core models have changed in form and practice in order to accommodate various populations and levels of offences. By no means do these three models cover the breadth of restorative processes used worldwide. In this thesis, I will refer to restorative justice processes or practices as all-encompassing terms taking into account basic commonalities of purpose. When I wish to denote a specific type of restorative justice process, I will specify it as such.

Three Main Stakeholders

It is commonly understood that the three main stakeholders in restorative justice are the victim, the offender, and the community. Generally speaking, the aim is to repair the harm caused by any given crime to all stakeholders. The victim is restored materially and/or psychologically, the offender is restored by encouraging him or her to adhere to a

“law-abiding lifestyle”, and the community is restored, materially and/or psychologically, by addressing the harms it has incurred and through involvement in the reintegration of the offender (Gromet & Darley 2006: 396). One of the key complaints voiced in regard to the conventional criminal justice system, and this is particularly true of victims of sexual assault, is that the needs of the victim are largely ignored (Johnstone 2002: 62). To the contrary, restorative justice aims to enhance the role of the victim by allowing him/ her a central place in deciding the amends an offender must make in order to address wrongdoing, thereby allowing greater opportunity for closure (Bradshaw & Umbreit

1998: 18; Latimer et al. 2001; Johnstone 2002: 23; Rugge et al. 2005). 16

The question of community often arises in the restorative justice literature.

Weisberg (2003: 343) claims that, for restorative justice, community “is the bedrock on which justice stands or the latent source of moral energy on which justice draws”.

Communities with a high level of crime suffer negative consequences, including

“deterioration of community institutions and social integration leading to further erosion of neighbourhood safety” (Guarino-Ghezzi & Klein 1999: 195). Guarino-Ghezzi and

Klein (1999:195) argue that the conventional criminal justice system fails the community through its disregard for intervention models that “encourage” its members to participate in the justice process. Lack of participation can then lead to the “long-term resentment” of justice system actors and alienation from the justice process (Guarino-Ghezzi & Klein

1999: 95). This thinking echoes that of Nils Christie, whose work is often considered to have laid the foundation for restorative justice practice. In an article entitled “Conflicts as

Property” published in The British Journal of Criminology in 1977, Christie (1977) argues that criminal justice system actors have wrested control of conflicts from those most intimately involved, and the result is a society that has virtually lost the ability to deal with its own conflicts. Thus, alternative justice practices that involve the community may be seen as enabling members to handle conflict.

The idea of community often brings to mind the notion of belonging. According to

Schiff and Bazemore (2001: 311) it is difficult, if not impossible, to define community.

Community can be defined as a specific geographical space, such as a city or town

(Cooley 1999: 42). It can also be defined in terms of common interests, values or goals

(Pavlich 2004: 173). A community can even be formed out of a specific event, such as a crime (Schiff & Bazemore 2001: 311). The conventional criminal justice system 17 relegates community to being represented by the abstract notion of a state; however, in restorative justice, the community, however defined, is encouraged to take a more active role (Daly 2000: 36). This involvement has generated much discussion as to what community is and what values can be considered common.

When restorative justice emerged in the 1970‟s as an alternative justice practice that involved a dialogue between victim and offender, the mediators were considered representative of the general interests of society; however, as the practice expanded to include family and community members, the notion of community came to be defined in terms of the main stakeholders in any given crime (McCold 2004: 155). Community then came under scrutiny because of the very real implications that a diverse group of people could be involved in a crime who did not share the same geographic space let alone the same values. Community has the potential to become “exclusionary” and its most vulnerable members are often subject to the wishes of those with power and influence

(McCold 2004: 156; Weisberg 2003: 361). With regard to restorative justice practice that includes the wider community, “(c)are must be taken to ensure that family and kinship networks and the community power hierarchy do not compromise the administration of justice” (Weisberg 2003: 361). Restorative justice programs often refer to the notion of building community in their stated goals (NS Dept. of Justice 1998; Guarino-Ghezzi &

Klein 1999: 199). Guarino-Ghezzi and Klein (1999: 199-202) argue in favour of public safety models that support community interests and believe a restorative justice model focused on all three stakeholders (victim, offender, and community) might well serve longer-term safety goals by encouraging “understanding and interaction” thereby dispelling fear and leading to “community cohesion”. This means that dialogue generated 18 in restorative justice sessions may lead to the victim gaining an understanding as to why the offender committed a crime against them and the offender may gain an understanding of the impact the crime has had on the victim. In some cases, the offender‟s behaviour may be indicative of deeper societal problems and the community may be encouraged to address deeper issues once they have been exposed.

Serious and Violent Crimes

As previously noted, restorative justice is most widely accepted as diversion in cases of youth crime; however, despite controversy, some jurisdictions have extended the practice to adults and to serious and violent crimes, including family and intimate violence, sexual assault, aggravated sexual assault, armed robbery, dangerous driving or impaired driving causing bodily harm or death, and even homicide (Roberts 1995; Purdy

& Bouwman 1997; Burford & Pennell 1995; Maxwell & Morris 2001; Koss, Bachar, &

Hopkins 2003; Gustafson 2005; Hopkins & Koss 2005; Rugge et al. 2005; Cameron

2006; Daly 2006). As restorative justice reaches into this domain of serious and violent crimes, both the basic process and expected outcomes necessarily undergo changes.

While these changes may generate even more confusion as to what restorative justice is, the reader should view them as positive adaptations that may allow restorative justice to more adequately deal with a wider variety of crime. In particular, questions arise relating to the concepts of diversion, the necessity of a face-to-face meeting, voluntary participation, and restoration.

Diversion. Restorative justice is most commonly used to divert offenders from court; however, it can also be a process that works at other stages of the criminal justice system, from pre-sentence to post-incarceration. As restorative justice moves to 19 incorporate a wider range of crimes, some researchers believe it then becomes increasingly necessary to merge restorative justice more formally with the conventional criminal justice system (Braithwaite & Mugford 1994; Hudson 2002; Daly 2006; Gromet

& Darley 2006). Dignan (2002: 180) believes that if restorative justice is to be effectively extended to serious crimes there will need to be a “reconceptualization” of restorative justice as more than merely an “informal consensual decision-making process” that requires all stakeholders be present. Instead, restorative justice should be seen as an alternative or adjunct that is able to “operate as a systemic and fully integrated part of the „regular‟ criminal justice system” (Dignan 2002: 180). If applied to sexual assault, restorative justice would not necessarily be an informal process diverting the case from court, but might add to rather than detract from the victim‟s experience in the formal court setting.

Face-to-face. Dignan (2002) foreshadows the next point I wish to make regarding the necessity of a face-to-face meeting between victim and offender. As previously noted, early models of victim-offender mediation were conceived as strictly face-to-face meetings between a victim and an offender. As restorative practices move to include serious and violent crimes, questions have arisen as to whether the process must, necessarily, be a face-to-face meeting and a variety of indirect options have been suggested. Options include videos, letters, representation of the victim by proxy, and shuttle processes where the facilitator ferries messages between the two parties (Raye &

Roberts 2007: 216).

Voluntary participation. Restorative justice is considered a voluntary process for the victim, though it should be noted that concerns have been voiced regarding the 20 possibility that victims could be coerced or manipulated into participating (Curtis Fawley

& Daly 2005). This raises the question of what should happen if the police or Crown

Attorney decides to send a youth to restorative justice and the victim does not wish to participate? Should the offender then be sent through court and the opportunity to right a wrong through a restorative practice rescinded? Maxwell, Morris and Hayes (2006: 96-

97) question whether or not the presence or absence of the victim matters and believe that the victim‟s wishes and needs can be competently expressed by proxy through the police, the facilitator, and/or other aforementioned indirect means. The offender‟s willingness to admit responsibility for their actions and ensuing remorse generally play a major role when deciding whether or not to allow the opportunity for the wrongdoing to be dealt with through restorative justice. As restorative justice moves to incorporate more serious and violent crimes, the question of voluntary participation, becomes even less clear. Is the victim‟s participation truly voluntary or has it been coerced, whether through subtle or overt means? Should an offender be required to meet with a victim against their wishes and what would that really accomplish? These questions become especially important for future consideration of extending restorative justice to violent crimes.

Restoration. My final point involves the question of restoration. Though monetary restitution is a common form of restoration arising from restorative justice agreements, when applied to violent crimes, restoration becomes less a question of dollars and cents and more a question of psychological restoration focusing on “symbolic and practical amends” (Nuffield (1997: 46; Gustafson 2005: 194). Achilles and Stutzman-Amstutz

(2006: 217) claim restorative justice theory “parallels the standard crisis and trauma intervention techniques for victims” by elevating the victim‟s status, recognizing the 21 harm done as against the victim rather than as a violation of law, allowing the victim to participate in the justice process and voice their needs, and offering the victim some control over the process. As applied to sexual assault, restorative justice would not assume that a monetary value could be placed on the crime, but rather would seek to afford the victim of sexual assault a greater opportunity to heal from the effects of the crime, in part, by allowing the opportunity for the victim to tell his or her story and be involved in outcomes. While not every victim would wish to do so, there are victims for whom the opportunity offers a potential benefit (Achilles 2004: 66). It is impossible, without further research, to assess the number of victims who would consider such processes beneficial to their healing. Diversion, face-to-face sessions, the voluntariness of the process, and notions of restoration are only four of the possible changes restorative justice programs would need to consider when extending restorative justice to more serious crimes and serve merely to suggest what might be possible.

The Nova Scotia Restorative Justice Program

The Nova Scotia Restorative Justice (NSRJ) program has been deemed one of the longest-running restorative justice programs in Canada and aims to offer a

“comprehensive alternative” to the conventional criminal justice system (Archibald &

Llewellyn 2007: 298-299). The NSRJ program offers greater potential than is typically understood by restorative justice and should not be viewed as solely diversion (Clairmont

2005: 246a; Archibald & Llewellyn 2007: 303). Archibald and Llewellyn (2007: 305) state that the province based its notion of restorative justice on the idea of creating equality in relationships through a process based on mutual concern, respect, and dignity, not on the utopian version of reconciling personal relationships and restoring them to a 22 previous state of well-being. The program reportedly originated out of a “frustration” felt by criminal justice system stakeholders that the conventional system was not adequately addressing either crime or the needs of those most intimately involved in crime – the victims, offenders, and community (Archibald & Llewellyn 2007: 300). A conversation between the Minister of Justice at the time, Danny Graham, and a “prominent criminal defence counsel” on a return trip from a restorative justice congress held in Vancouver sparked interest and a committee was subsequently organized to look into implementing a restorative justice program in Nova Scotia (Archibald & Llewellyn 2007: 301-302). A

Steering Committee comprised of select stakeholders within the existing criminal justice system and community organizations met in the summer of 1997, heralding the start of a year-long process of consultations and drafting of guidelines involving four sub- committees that mirrored what would become the four referral points to the program: police, Crown prosecutors, Judges, and corrections (Archibald 1999: 521; Archibald &

Llewellyn 2007: 302). The committees were rounded out with defence counsel, academics, and representatives from victim‟s services and community organizations

(Archibald 1999: 522; Archibald & Llewellyn 2007: 302). In November 1999 the Nova

Scotia Restorative Justice (NSRJ) program was officially implemented in four pilot areas with the understanding that it would gradually phase in to encompass all ages of offenders and all types of offences, including sexual assault (Clairmont 2005a: 245;

Archibald & Llewellyn 2007: 302).

The NSRJ agencies are community-based, independent organizations run by a combination of full- and part-time staff, with Boards of Directors comprised of community members, and a robust complement of volunteers (Archibald & Llewellyn 23

2007: 310). These agencies enter into contract with the Nova Scotia Department of

Justice to run restorative justice programs that are to some degree standardized but retain the ability to tailor their agendas to the immediate needs of specific communities

(Archibald & Llewellyn 2007: 311). The NSRJ program has the capacity to utilize any of the three core models of restorative justice practice – VOM, FGC, and sentencing circles.

(NS Dept. of Justice 1998: 12). At present the program handles only cases involving youth between the ages of 12 and 17, who have come into conflict with the law

(Archibald & Llewellyn 2007: 299). Four key entry points, which will be discussed in greater detail below, allow the NSRJ program to potentially receive referrals for all crimes listed in the Criminal Code of Canada, with one notable exception (NS Dept. of

Justice 1998). In 2000, a policy moratorium restricting the use of restorative justice for cases involving sexual assault/partner violence was put in place because of concerns raised by victim‟s and women‟s advocacy groups (Clairmont 2005a: 251). While this moratorium remains in effect today, Clairmont (2005b: para 7) confirms that the NSRJ program continues to engage in discussions with women‟s groups towards the creation of a model of restorative justice capable of handling sexual assault and partner violence. In her report on the use of restorative justice for sexual offences, Rubin (2003) concludes that the NSRJ program as it currently exists is not an acceptable forum in which to deal with these offences and that, while some basic principles of restorative justice should not be completely dismissed, they should be considered in terms of a more female-oriented model of justice. It is by exploring the use of restorative justice for sexual offences through the unique lens of the NSRJ program that I hope to determine whether there is any reason to continue such discussions. 24

The NSRJ program is uniquely situated within the conventional criminal justice system, simultaneously embracing the core concepts of restorative justice and stretching the boundaries of practice. The NSRJ program is “thoroughly institutionalized” and is funded by the Nova Scotia Department of Justice (Clairmont 2005a: 256). The original vision of NSRJ avoids problems with definition by claiming to be “a philosophical framework” rather than a specific model of law (NS Department of Justice 1998: 8), though in recent years has been touted as most closely adhering to a relational model of justice (Archibald & Llewellyn 2007: 305). From the beginning its goal has been to act as a complement to the conventional criminal justice system rather than an alternative paradigm of justice that seeks to “supplant” the mainstream system (Archibald 1999:

523). The NSRJ program forms a partnership between the state and the communities it serves, essentially extending the commonly understood notion of three key stakeholders, in some cases, to include a fourth: the state (Archibald & Llewllyn 2007: 303).

Goals and objectives. The NSRJ program has four goals: 1) to reduce recidivism,

2) to increase victim satisfaction, 3) to strengthen communities, and 4) to increase public confidence in the justice system (NS Department of Justice 1998: 5). These goals are tied to four objectives: “1) to provide a voice and an opportunity for victims and communities to participate; 2) to repair harms caused by offences; 3) to reintegrate offenders; and 4) to hold offenders accountable in meaningful ways” (Archibald & Llewellyn 2007: 304).

While Clairmont (2005a: 246) notes that the program has been “quite successful” to date,

I believe it is important to examine these goals individually and within the larger context of restorative justice practice. 25

The first goal is to reduce recidivism. Research has pointed out that so-called „get tough‟ approaches to crime do not effectively reduce recidivism (Bonta, Jesseman, Rugge

& Cormier 2006: 108-109). Restorative justice is often considered to be a „soft option‟ to crime, but studies have revealed that face-to-face dialogue between victims and offenders can positively impact the offenders future behaviour and may reduce recidivism and/or reduce the seriousness of subsequent offences (Nugent & Paddock 1995: 365; Latimer et al. 2001: 14; Bonta et al. 2006: 114; Bradshaw, Roseborough & Umbreit 2006: 87).

While these studies show promise it must be noted that because of the diverse nature of restorative justice processes, it is very difficult to generalize their findings to other programs. Archibald and Llewellyn (2007: 307) note that recidivism rates are difficult to determine accurately and may be influenced by other factors such as gender, race/ethnicity, and the urban/rural divide; however, it appears certain that recidivism rates are higher for those who go through court than those who engage in a restorative justice process. I would note that several other factors compound the difficulty in assessing recidivism rates, including the type of restorative justice process used, the level of seriousness of the crime, the impact on the victim, the remorsefulness of the offender, and the offender‟s risk assessment. Future research that compares the nuances and characteristics of various programs might help to determine the models/aspects that work most effectively for particular offences and offenders.

The second goal of the NSRJ program is to increase victim satisfaction. This goal directly relates to concerns that the victim‟s voice is rarely heard in the criminal justice system and to data that suggest victims who are given the opportunity to meet the offender and express the effect the crime has had on their lives are, generally, more 26 satisfied with the justice process (Bradshaw & Umbreit 1998; Archibald 1999: 524;

Umbreit et al. 2000; Umbreit, Coates & Vos 2002; Rugge et al. 2005; Archibald &

Llewellyn 2007: 307). Increased satisfaction is often equated with victim healing and a lessening of the fear involved (Gustafson 2005: Rugge et al. 2005). In a restorative justice session, the victim can expect the opportunity to voice his or her feelings, concerns, and experience while also being kept up-to-date concerning the outcome of the agreement made in the session (Archibald & Llewellyn 2007: 308). Archibald &

Llewellyn (2007: 308) claim “empirical data strongly supports the proposition that NSRJ is actually achieving considerable victim satisfaction”. Clairmont (2005a: 254) claims data derived immediately after sessions in 2001 “reveal a strong, pervasive positive consensus about the experience among all types of participants and over the different types of sessions and offences”. A “modest drop-off” in victim satisfaction occurred during the period of approximately six months after the session among those participants who agreed to be contacted post-session; however, victims still felt, in general, that the restorative justice process was preferable to court (Archibald & Llewellyn 2007: 309).

The third and fourth goals of the NSRJ program, to strengthen communities and to increase public confidence in the justice system, are complementary and will be discussed together (NS Dept. of Justice 1998: 5). The NSRJ program aims to strengthen communities by empowering them through the development and delivery of restorative justice programs suited to individual needs, thereby addressing concerns regarding the

“professionalization” of the conventional justice system and the ensuing sense of public alienation (NS Dept. of Justice 1998: 6; Archibald & Llewellyn 2007: 309). It is commonly understood that, as crime prevention and control have been subsumed by the 27 conventional criminal justice systems, communities have been relegated to the sidelines, thereby becoming distanced from any involvement (Archibald & Llewellyn 2007: 309).

The NSRJ program attempts to support those organizations and groups interested in justice by encouraging participation in community justice initiatives that offer greater opportunity for participation by all involved – victim, offender, interested family members, and the members of the wider community (Archibald 1999: 524). Because of difficulties involved in measuring the final two goals of the NSRJ program, evaluation has, to date, relied on victim/participant satisfaction to indicate potential for restorative justice to increase public confidence in the criminal justice system as a whole (Archibald

& Llewellyn 2007: 312). Umbreit et al. (2000: 220) claim that, when offered the opportunity to participate in alternative programs, people are generally more satisfied with the criminal justice system as a whole. From this, we can deduce that it is, perhaps, the very notion of having a choice that most appeals to those who come into contact with the criminal justice system. Future research should aim to assess the degree to which choice is an important factor.

Four referral points. The NSRJ program is uniquely situated with four key referral points into the program. Cases may be referred to the NSRJ program from: 1) the police,

2) the Crown attorney, 3) the courts/Judges, or 4) corrections at a post-sentence level (NS

Department of Justice 1998: 8). These four entry points expose the comprehensive nature of the NSRJ program, allowing Clairmont (2005a: 246) to claim that the Nova Scotia program has the potential to become a “world leader in the restorative justice movement.” Offenders can be referred to the NSRJ program at virtually any point in the criminal justice system – from pre-charge to post-sentence (NS Dept. of Justice 1998: 8), 28 a fact which clearly shows that Nova Scotia intended the NSRJ program to offer far more than mere diversion.

All offences, with the exception of sexual assault/partner violence (as a result of the moratorium) can be referred to NSRJ. Not all offences, however, may be referred at any point. Four levels of offences correlate with the four entry points. Level 1 offences, including Provincial Statue offences, minor property offences, disorderly conduct (ie. loitering and vagrancy), assault not causing bodily harm, and mischief, are the only offences which can be dealt with by formal caution (NS Dept. of Justice 1998: 16).

Level 2 offences include all Criminal Code offences not listed as Level 3 or 4 and can be referred to NSRJ at any of the four entry points. Level 3 offences can be referred to NSRJ only by the court at the post-conviction/pre-sentence stage and by corrections at the post- sentence stage and include fraud and theft over $20 000.00, robbery, aggravated assault, kidnapping, abduction, and confinement, criminal negligence/dangerous driving causing death, manslaughter, and impaired driving and related offences. At present, murder is the sole Level 4 offence (due to the policy moratorium) and can be referred only at the post- sentence stage from the corrections entry point (NS Dept. of Justice 1998: 16). Because this thesis looks at the use of restorative justice for sexual assault, it is important to note where sexual offences were intended to fit. Sexual offences proceeded with as summary offences and spousal/partner violence were intended to be handled as Level 3 offences referred only at the court or corrections entry points. This means they would be handled in tandem with the conventional criminal justice system. Sexual offences that went forward as indictments would be handled, along with murder, as Level 4 offences at the post-sentence/corrections entry point (NS Dept. of Justice 1998: 16). 29

Clairmont (2005a) has noted two “walls” which serve to limit the NSRJ program.

The first relates to the “uncertain engagement” of the higher level referral points, Crown attorneys, Judges, and corrections; the second barrier refers to the “hesitant support and participation” of both victims and their advocates (Clairmont 2005a: 245). These walls can be seen as hindering achievement of the goals of the NSRJ program by limiting the capacity for the community to become involved. As with any new program, the passing of time reveals benefits and flaws. Due to the common understanding that restorative justice is an alternative process aimed at diversion, it does not seem unusual that the majority of referrals would come, at least in the beginning, from police for crimes considered less serious. This has, in fact, been the case. In the early years, the NSRJ program was fed mainly through police and Crown referrals of primarily low-end offences; however, there appears to be a move towards increasing referrals from higher up entry points (Clairmont 2005a: 246). Evaluation of the NSRJ program has shown promise and, when combined with the ongoing efforts on the part of NSRJ to educate conventional criminal justice system actors and community organizations as to its potential, it appears that justice actors at the higher referral points are giving greater consideration to referring cases (Clairmont 2005a: 250). Archibald & Llewellyn (2007:

311) refer to initial attempts at keeping the NSRJ program low-profile because of concerns over a possible “public relations disaster”; however, while this may have been a prudent tactic early on, in the long-run it may be seen to perpetuate misunderstandings about the unique nature of the NSRJ program.

New interest in restorative justice at the correctional level heralds three areas for growth: 1) new protocol allows restorative justice personnel access to probation files in 30 order to assess those cases for which a restorative option could be of benefit; 2) development of the potential for restorative justice to offer offenders leaving an institution the opportunity to reintegrate more effectively into the community and, likewise, the opportunity for the community to voice concerns and fears; and 3) the opportunity for restorative justice to intervene in pre-probation breaches as an option to laying charges (Clairmont 2005a: 250). These areas offer a glimpse of the potential for

NSRJ to expand and benefit victims, offenders, and communities.

NSRJ-CURA. The NSRJ program is currently involved in a five year research program, the Nova Scotia Restorative Justice-Community University Research Alliance

(NSRJ-CURA), headed by Jennifer Llewellyn, a professor of law at the Dalhousie

University Law School. This research project partners the academic community with community representatives actively involved in restorative justice practices (Crosby

2006). Dalhousie University, Saint Mary‟s University, Acadia University, and the

University of Western Ontario have partnered with the Nova Scotia Department of

Justice and eighteen community representatives in order to address a variety of questions pertinent to developing restorative justice in Nova Scotia (Crosby 2006). Five main themes will address key issues: “(i) translation of principles into practice; (ii) community;

(iii) diversity and equity; (iv) gender; and (v) conceptualizing and measuring success”

(Archibald & Llewellyn 2007: 342). Recommendations and results of this project are eagerly awaited. The move to increase referrals from higher end referral points combined with the interest that has precipitated the NSRJ-CURA project brings out the fundamental issue I aim to address. Should the moratorium preventing the NSRJ program from handling sexual offences be modified or even lifted? In order to answer this question, I 31 first engage the reader in a brief history of sexual assault and the legislation that governs sexual offences in Canada.

CHAPTER THREE: SEXUAL ASSAULT

I begin Chapter Three with a discussion of the terminology I will use. Next, I engage in a discussion of sexual assault as a major social problem that affects predominantly women. I will then move to the inadequacy of conventional criminal justice system responses to sexual assault. Finally, I review pre- and post-1983 legislation in Canada covering sexual assault and will note positive and negative aspects.

Before I begin, it is necessary to discuss terminology. Use of the term “rape” in this thesis refers to pre-1983 legislation in Canada and to current legislation in the United

States. Prior to 1983, Canadian rape law was predicated on penetration, making the offence a specifically gender-based crime. After 1983, new legislation refers to three levels of “sexual assault” encompassing a much broader range of behaviours. The legal definition of sexual assault now acknowledges that either men or women may be victims or offenders; however, sexual assault comes under the rubric of “gender-based” violence, defined by Lakeman (2003: 80) as “violence that is directed against a woman because she is a woman or that affects women disproportionately...[including] acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty” (Lakeman 2003: 80). Statistics adequately show that women comprise the vast majority of victims of sexual assault. Violence against women is defined in this thesis as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering of women, including threats such as acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life” (Lakeman 2003: 81). I use the term „sexual violence‟ to indicate violence against women that has a sexual aspect. 33

A Major Social Problem

Sexual violence against women is not a phenomenon that occurs in a particular region or country; it is a prevalent and pervasive aspect of society worldwide. Sexual violence affects significantly more women than men and the statistics are truly frightening. Levit and Verchick (2006: 179) claim one out of every three females have been beaten or sexually abused. Status of Women Canada (2000: 4) concludes that half of all Canadian women have been subjected to at least one physical or sexual act of violence from the age of 16 and that females represent 85% of all sexual assault victims and 75% of all other sexual offenses, including sexual touching, invitation to sexual touching, sexual exploitation, incest, sodomy, and beastiality.

McFadyen (2005: 1) finds that Nova Scotia has the highest sexual assault rate of all

Canadian provinces with data showing that the sexual assault rate in 2004 was 40 per

1000 population of females 15 years of age or over, nearly twice the national rate. In the

Nova Scotia study, McFadyen (2005: 4) finds that 91% of the perpetrators of sexual assault incidents were male, corresponding closely with Matthews (1997), who states that males represent 90% of all reported sex offenders in Canada, both adult and adolescent.

Health Canada (2006) reports that health costs related to acts of violence against women in Canada exceed 1.5 billion dollars a year and include short-term medical and dental treatment for injuries sustained during acts of violence, long-term physical and psychological treatment, lost work time, and time spent in transition houses and crisis centers. These statistics appear to be only a partial picture of the effects of violence against women. In 1999, only 164 police departments from 7 provinces in Canada took part in the Incident–based Uniform Crime (UCR2) Survey (Status of Women Canada 34

2000: 4). This means the statistics show less than half of the total national volume of crimes reported in Canada, with approximately 54% of crimes unaccounted for (Status of

Women Canada 2000: 5). Lauer, Lauer, Abramson and Auger (2006: 3) define a social problem as “a condition or pattern of behaviour that contradicts some other condition or pattern of behaviour; is...incompatible with the desired quality of life; is caused, facilitated, or prolonged by social factors; involves intergroup conflict; and requires social action for resolution”. That sexual assault is a major social problem cannot be denied.

Sexual Assault and the Criminal Justice System

The conventional criminal justice system has often been harshly criticized for its failure to address adequately crimes of sexual violence against women (Clark & Lewis

1977; Allison & Wrightsman 1993; Braithwaite & Daly 1994; Hopkins & Koss 2005).

Clark and Lewis (1977: 57) correctly propose that statistics “do not support the claim that rape is treated as a serious crime in our society.” Conventional criminal justice system responses to cases of sexual assault are disheartening and this is evident when examining the number of cases deemed “founded”, the number of cases resulting in the laying of a charge, and the number of cases acquitted. It should be noted that “founded” and

“unfounded” cases are based, not on whether or not a crime has actually occurred, but rather on the amount of evidence considered available to make a viable case in court

(Dept. of Justice Canada 1990: 2). Founded refers to cases that the police are prepared to investigate, and which they will put forward to the courts if the investigation yields enough evidence to make an arrest; consequently, unfounded cases are those the police 35 deem to have “no rational or factual basis” on which to consider them founded (Clark &

Lewis, 1977, 35).

Reporting Rates

Studies suggest that the majority of incidents of sexual assault are not reported to police by the victims (Clark & Lewis 1977; Allison & Wrightsman 1993; Hopkins &

Koss 2005). Tang (1998: 260) reports that the Federal Bureau of Investigation lists rape as “the most underreported violent crime” with estimates that only one out of four rape cases is reported. McFadyen (2005: 1) claims only about 8% of Canadians surveyed, who indicated they had been sexually assaulted, reported the assault to police. In Nova Scotia, rates of sexual assault and subsequent reporting of such assaults varies according to the specific area examined (McFadyen 2005: 9-10). McFadyen (2005: 5) finds that, in 2004, sexual offences made up 8% of all violent offences reported to police. The “vast majority” of sexual offences reported (91%) were level 1 sexual assaults, with under 2% considered level 2 or 3 offences (McFadyen 2005: 5). The remaining 7.4% of offences fell into the “other sexual offences” category (McFadyen 2005: 5). The 2004 data shows that Nova Scotia‟s reporting rate was 88 per 100,000 population, a little above the national average of 74 per 100,000 population (McFadyen 2005: 6).

A major factor in deciding whether or not to report the incident appears to be the response by conventional criminal justice system actors. Roberts and Grossman (1994:

60) maintain that victims choose not to report such crimes, primarily because they feel the incident too minor to report, but also because of the “perceived ineffectiveness” of police. The Department of Justice Canada (1990: 2) cites a 1985 study that estimates 44% of victims of sexual assault who chose not to report the incident “were concerned about 36 the reaction and attitudes of the police and courts towards this type of incident”. Enough evidence has been presented to show that factors taken into consideration when considering cases unfounded or founded tend to reinforce traditional stereotypes of the victim of sexual assault. Clark and Lewis (1977: 57) identify a “filtering process,” which begins with police when incidents of sexual assault are reported. Police classify sexual assault crimes against a variety of criteria, most of which can be seen as severely disadvantaging to the few women who report. Women who report crimes of sexual assault are more likely to have their case considered “founded” if the incident took place in a victim‟s home, if she was sober at the time of the incident, if the victim has been physically injured, or if „other‟ sexual acts considered deviant by the mainstream population were involved (Clark & Lewis 1977). Other variables leading to „founded‟ designations include whether or not the victim was dressed provocatively, her age, her marital status, her occupation, her mental state, and whether or not she reports the offence immediately (Clark & Lewis 1977). Gunn and Linden (1997: 156) state that women who engage in behaviours, such as drinking, hitchhiking, and sex are more likely to be considered deserving of whatever fate befalls them.

It appears that strong biases exist within the very system ostensibly geared to protect victims. These biases perpetuate the idea that some women contribute to the likelihood that they will be sexually assaulted and may serve as one of the multi-faceted reasons women choose not to report sexual assault. Women report feeling blamed for instigating their own sexual assault and concealment of the fact is a way of avoiding further trauma – the result of which benefits the perpetrator and contributes to a veritable 37

“conspiracy of silence” (Clark & Lewis 1977: 26-7). Somehow, this silence must be broken and women must be encouraged to report crimes of sexual violence.

Laying Of Charge Rate

Compared to the number of cases of sexual violence reported, few cases result in the laying of charges (Clark & Lewis 1977; Tang 1998; McFadyen 2005). Levit and

Verchick (2006: 179) refer to “(t)he extraordinary disjunction between the statistics on the frequency of violence against women...and the absence of criminal penalties.” Nova

Scotia is second only to Prince Edward Island with regard to the proportion of sexual assault cases that result in the laying of a charge (McFadyen 2005: 2). From 1993 to 2004 the number of reported sexual assaults resulting in a charge in Nova Scotia fell from 56% to 31% (McFadyen 2005: 8). In 2004, of 820 reported sexual assaults, charges were laid in only 250 cases (31%) while 89 cases (11%) were cleared otherwise - meaning the accused was identified but not charged (McFadyen 2005: 7 & 23). The failure to charge the offender results from such diverse reasons as the complainant chose not to lay charges, the accused died, the accused had diplomatic immunity, the accused was referred to a diversion program, the police exercised their discretion, and reasons beyond the control of the police (McFadyen 2005: 23). A total of 481 cases (59%) were not cleared (McFadyen 2005: 7). In Nova Scotia, the clearance rate in 2004 was 41%, though regional differences exist (McFadyen 2005: 9-10).

Conviction and Acquittal Rates

Equally defeating are the statistics pointing to low conviction rates and high acquittal rates (Clark & Lewis 1977: Allison & Wrightsman 1993; Hopkins & Koss

2005). In the United States, Levit and Verchick (2006: 179) report that over half of all 38 rape prosecutions are dismissed before they get to trial or result in acquittal. Being acquitted means that the accused has been found not guilty of the charges (McFadyen

2005: 24). Further, approximately one quarter of convicted rapists in the United States are not sent to prison and only about half of those incarcerated serve only one year or less

(Levit & Verchick 2006: 179). In Nova Scotia, conviction and acquittal rates are 22% and 23% respectively (McFadyen 2005: 11). Allison & Wrightsman (1993: 171) claim that, for the few sexual assault cases that make it to trial, the victim may “become suspect” and be further scrutinized and traumatized by legal actors. In fact, these authors claim that “(t)he truthfulness of a person who reports being sexually assaulted is more likely to be questioned, doubted, and challenged than are the statements of victims of other crimes” (Allison & Wrightsman 1993: 172). This, then, becomes the basis for what has become known as a “second victimization” by the courts (Allison & Wrightsman

1993; Brownmiller 1975). Taken together, this information paints a bleak picture of what victims of sexual assault can expect should they find the courage to report the incident to the police.

Incarceration

One final point deserves mention. Incarceration is being used less frequently as a means of punishing sexual offending. McFadyen (2005: 13) notes that during the period

1994-95 to 2003-04 the proportion of prison sentences given to adult perpetrators of sexual assault in Nova Scotia dropped from 60% to 36%. In Nova Scotia, probation and conditional sentences appear to be the favoured methods of dealing with adult perpetrators of sexual assault, while youth who commit sexual assaults tend to be sentenced to secure custody arrangements (McFadyen 2005: 13-14). Youth who commit 39 a variety of “other” sexual offenses are generally placed on probation (McFadyen 2005:

14). Taken together, these statistics highlight the complex nature of sexual assault and the ensuing lack of trust in a justice system that allows victims to be put on trial and perpetrators, too often, to go free.

Changes in Canadian Legislation

Prior to 1983, Canada was governed by laws that distinguished between rape and attempted rape, indecent assault against a female, and indecent assault against a male

(Mohr & Roberts 1994: 6). According to Clark and Lewis (1977: 32), Canada‟s rape law under Section 143/144 of the Criminal Code of Canada defined “rape” as follows:

143. A Male person commits rape when he has sexual intercourse with a female person who is not his wife, (a) without her consent, or (b) with her consent if the consent (i) is extorted by threats of fear of bodily harm, (ii) is obtained by personating her husband, or (iii) is obtained by false and fraudulent representations as to the nature and quality of the act. 144. Everyone who commits rape is guilty of an indictable offence and is liable to imprisonment for life.

According to Tang (1998: 259), what had previously been known as „rape law‟ was permeated with “deep-seated sexism.” The crime of rape had been defined by vaginal penetration, such that the only possible perpetrator of such a crime could be male (Dept. of Justice Canada 1990: 3). Rape law had also accounted only for acts occurring “outside the bounds of marriage” – a fact which only perpetuated acts of patriarchal violence by leaving wives, whose husbands considered their consent optional, open to acts of sexual violence without recourse (Dept. of Justice Canada 1990: 3). Furthermore, by creating such narrow confines under rape law, a whole continuum of „other‟ acts of sexual violence not predicated on penetration was ignored (Dept. of Justice Canada 1990: 3-4). 40

After a period of debate, it was decided that sexual violations must be re-defined and could not be based solely on the idea of sexual intercourse (Ƚoś 1994: 29). The term

„sexual assault‟ was suggested by both women‟s groups and the Law Reform

Commission and was intended to allow for “a multi-tiered offence to account for different degrees of severity” (Ƚoś 1994: 29).

On January 4, 1983, Bill C-127 was passed and came into force, replacing what had formerly been the crimes of rape and indecent assault with legislation governing three levels of „sexual assault‟ (Mohr & Roberts 1994: 7). The three levels covered in the 1983 legislation are as follows:

Sexual Assault (Level I) 271. (1) Every one who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years; or (b) an offence punishable on summary conviction. Sexual Assault with a weapon, threats to a third party or causing bodily harm (Level II) 272. Every one who, in committing a sexual assault, (a) carries, uses or threatens to use a weapon or an imitation thereof, (b) threatens to cause bodily harm to a person other than the complainant, (c) causes bodily harm to the complainant, or (d) is a party to the offence with any other person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. Aggravated Sexual Assault (Level III) 273.1 (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures, or endangers the life of the complainant. (2) Every one who commits an aggravated sexual assault is guilty of an indictable offence and is liable to imprisonment for life. (Roberts, Dept. Of Justice Canada 1990a: 2-3).

Feminists and women‟s organizations had long campaigned for change to Canada‟s rape laws; however, resulting changes in legislation appear to be due more to the 1982 enactment of the Canadian Charter of Rights and Freedoms than to women‟s lobbying efforts to that point (Clark & Lewis 1977; Dept. of Justice Canada 1990: 1; Ƚoś 1994: 26- 41

27; Tang 1998: 258). The Charter created conditions that were ripe for change and gave the movement in favour of change to Canada‟s rape laws considerable strength (Ƚoś

1994: 27). Whether or not the new sexual assault legislation has been a step forward is the subject of much debate.

Gunn and Linden (1997: 156) claim that critics of the old rape law worried that the criminal justice system placed more emphasis on the complainant‟s credibility than on the innocence or guilt of the accused and served to reinforce stereotypes of victims of sexual assault that precluded a sense of justice. While Hinch (1985: 33) claims that the revisions make “some concessions” to which critics of the old „rape law‟ would be amenable, he also argues that some of the changes give a mere “appearance” of change and do little, ultimately, to affect real change. The new sexual assault legislation is considered by most to be a step in the right direction (Tang 1998: 262; Gunn & Linden

1997: 170); however, some researchers are quick to point out that the new sexual assault legislation, with its gender-neutral terminology, has not resulted in a change in attitudes towards victims of sexual assault (Mohr & Roberts 1994: 4; Gunn & Linden 1997: 170).

In fact, Gunn & Linden (1997: 170) assert that legislation alone cannot eradicate the deep-seated biases in the administration of justice let alone the problem of violence against women.

Three of the most notable changes in favour of the new sexual assault law are: 1) that it abolishes the main criteria of „penetration‟ allowing for a continuum of behaviours to emerge for consideration as „sexual assault‟; 2) that it allows for the prosecution of spouses who commit sexual assault against their wives, which appears, at least theoretically, to be progressive, although jurisdictions already allowing spouses this right 42 see little real change and 3) that the gender neutral change to „sexual assault‟ means that all persons who commit the variety of sexual offences against another person, male or female, are open to recourse (Hinch 1985: 34-38; Tang 1998: 262). Mohr and Roberts

(1994: 4) claim the change to gender-neutral language does not necessarily change the attitudes of lawmakers; however, Gunn and Linden (1997: 170) assert that the new legislation “did have a positive impact on attitudes and practices toward sexual assault victims” and reveal that interviews with criminal justice system personnel, victims of sexual assault, and sexual assault counsellors show they agree that the new legislation was an improvement and that victims are treated more fairly in a general sense by the system. With a broader base of chargeable offences and a wider range of potential victims, in these instances, the intention of the new legislation was a move in the right direction (Tang 1998: 262).

Despite seemingly positive advancements, a body of research points out that the new sexual assault legislation is worthy of some scepticism. Prior to 1983, it is well- known that common law rules of evidence and procedure contributed to the “harassment of complainants, rendering the trial process an ordeal for victims and negatively prejudicing their testimony” (Dept. of Justice Canada 1990: 6). The three rules in question were: 1) the doctrine of recent complaint, 2) the corroboration rule, and 3) the admissibility of evidence relating to the reputation and sexual history of the complainant

(Dept. of Justice Canada 1990: 6). Under the new legislation, the recent complaint rule was abrogated, the rule of corroboration was repealed, and evidence relating to the complainant`s sexual history with others was restricted (Tang 1998: 260). These three 43 rules deserve a brief explanation because they have become the basis for further discussion and, in some cases, limitation.

The doctrine of recent complaint. The doctrine of recent complaint arose out of an early common law requiring a victim of rape to report the crime at the first opportunity and was based, in part, on the idea that a “virtuous” woman would not wait to report a rape (Dept. of Justice Canada 1990: 6). This doctrine failed, from all accounts, to take into consideration that rape victims may be traumatized and may seek out a trusted friend or family member before considering reporting the incident to the first passer-by or the police (Dept. of Justice Canada 1992: 40). Prior to 1983, to wait rather than report the incident immediately, had the effect of potentially allowing the complainant to be dismissed (Dept. of Justice 1992: 40).

After the enactment of the 1983 sexual assault legislation abrogating the rule of recent complaint, three options became available: 1) the presence or absence of a recent complaint is deemed irrelevant and neither Crown nor defence counsel should be allowed to refer to this issue; 2) the Crown should be allowed to introduce proof of recent complaint with no adverse effects because of the absence of recent complaint; and 3) general principles of evidence should apply to sexual assault cases as well (Dept. of

Justice Canada 1992: 40). The third option refers to an “evidentiary anomaly” that pertained only to rape cases (Dept. of Justice Canada 1992: 31). Prior to 1983, the ability to produce evidence in the form of statements made by a witness outside of the court in order to support witness testimony was allowed only in rape cases (Dept. of Justice 1990:

6). For all other offences, witnesses were routinely believed; however, women who were victims of rape had to prove they reported the crime as soon as possible and their 44 statement at the time of the incident had to be consistent with what was said at trial or they risked being presumed to be lying (Dept. of Justice Canada 1992: 30).

The corroboration rule. In general, the testimony of a witness is all that is needed to establish the facts of an incident, provided the testimony is considered believable

(Dept. of Justice Canada 1990: 6). It has been considered necessary to have the witness‟s testimony corroborated in only a few cases, namely, where the witness is an accomplice to a crime, where the witness is a child, and where the witness is the complainant of rape or another sexual offence (Dept. of Justice Canada 1990: 6). This rule, enacted in 1892, did not at that time relate to rape cases, but evolved through case law requiring a judge to caution the jury at a rape trial that “it was dangerous to convict the accused on the testimony of the victim alone” (Dept. of Justice Canada 1990: 6 & 1992: 31). Previous attempts to abolish the old law in 1976 merely resulted in giving the judge discretionary power to caution or not to caution the jury (Hinch 1985: 35). The 1983 legislation completely removed the discretionary powers of the judge stating that “no corroboration is required for a sexual assault conviction and...the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration” (Dept. of Justice

Canada 1992: 32).

The rape shield law. Pre-1983 rape law considered a woman‟s past sexual history relevant to her testimony at a rape trial and gave defence counsel the opportunity to question her at length about her past sexual history in an attempt to portray her as immoral and unchaste, therefore, capable of lying about being raped (Dept. of Justice

Canada 1992: 32). The 1983 sexual assault legislation attempted to limit the ability for the complainant‟s past sexual history to be introduced as evidence at a rape trial (Dept. of 45

Justice Canada 1992: 46). Only in three instances would an accused be allowed to refer to the complainant‟s sexual history as per Section 276 of the Criminal Code of Canada: 1) defence counsel would be allowed to rebut evidence of sexual activity, or lack thereof, if raised by the prosecution; 2) if such evidence would identify the person with whom the sexual contact occurred as set out in the charge; and 3) if the sexual activity in question took place on the same occasion as the activity laid out on the charge and if the evidence relates to the victim‟s consent (Dept. of Justice Canada 1992: 46). In R. v. Seaboyer and

R. v. Gayme, this section of the new law was struck down as violating the Canadian

Charter of Rights and Freedoms (Dept. of Justice Canada 1992: 46). Seaboyer and

Gayme successfully argued that this rule “violated their rights, as accused persons, to a fair trial” (Mohr & Roberts 1994: 7). The Supreme Court of Canada later ruled that “a blanket prohibition on the use of evidence of a complainant‟s prior sexual history was too restrictive and jeopardized an accused person‟s right to a fair trial” (Tang 1998: 265).

Public outcries ensued, with women‟s groups worried that victims would not report sexual assaults because of the fear that their past sexual history would once again be subject to unrelentingly questioning (Mohr & Roberts 1994: 10; Tang 1998: 265-66). At this point, the decision to allow evidence of past sexual history rested largely on the discretion of individual trial judges (Mohr & Roberts 1994: 10). In August 1992, within a year of the Seaboyer/Gayme decision, then Minister of Justice, Kim Campbell, brought legislation forward which offered guidelines for the admissibility of a sexual assault victim‟s past sexual history (Mohr & Roberts 1994: 10; Tang 1998: 266). Bill C-49 requires written notice for an in-camera hearing in order to determine the allowance of such evidence (Dept. of Justice Canada 1990: 14; Tang 1998: 266). The new Section 46

276(1) is not an “absolute shield” but gives judges discretionary powers if evidence of past sexual history relates to a specific instance of sexual activity, is relevant to the trial or has “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (Tang 1998: 266).

What changes have accomplished. Prior to the enactment of Bill C-49, a definition of consent had been lacking. Bill C-49 finally offered a definition of „consent‟, which has had the corresponding effect of restricting the defence of a mistaken belief in consent

(Mohr & Roberts 1994: 10-11). Consent is now defined in Section 273.1 as requiring

“the voluntary agreement of the complainant to engage in the sexual activity in question”

(Bowland 1994: 258, italics in original). Section 273.2 of the Criminal Code of Canada states that the accused must take “reasonable steps” to ascertain consent and, further, must show he took these “reasonable steps” by basing such consent on her behaviour at the time (Bowland 1994: 258). It is hoped that this provision, in combination with the definition of consent, will serve to “remove, or...considerably reduce” the use of the defence of belief in consent based on the accused‟s understanding of the victim‟s past sexual history (Bowland 1994: 259).

The new legislation was intended to redefine sexual assault as a violent crime, reduce secondary victimization in the criminal justice system, encourage higher rates of reporting, ensure victim‟s receive fair treatment, encourage greater rates of conviction, and encourage deterrence (Gunn & Linden 1997: 156). While, to a degree, many of these goals are theoretically possible, research points to little actual change. Eradicating the term „rape‟ in favour of „sexual assault‟ was intended, in part, to make it easier for female victims of sexual assault to report by removing the stigma attached to rape; however, 47 many argue that, by removing the word „rape‟, the offence has been “trivialized” (Cohen

& Blackhouse in Hinch 1988: 283). Ƚoś (1994: 34) points out that eliminating rape from our vocabulary “negates an argument that many women feel comfortable with, namely that rape is a very unique crime in that it involves predominately victimization of members of one gender group by members of the other”. Tang (1998: 264) alludes to the idea that the gender-neutrality of the term sexual assault lessens the “collective impact” of sexual violence. The new gender-neutral terminology also serves to disregard the difference between the ways men and women understand both force and consent (Ƚoś

1994: 37). Majury (1994: 271) states that the gender-neutral terminology is “misleading” and only serves to depoliticize and de-gender the crime, “thereby masking the reality of the offence”.

While it has been noted that the change in legislation resulted, at first, in a fairly significant increase in reporting rates, this increase may have been due to a greater number of incidents reported at the least serious level because there appears to have been a corresponding decrease in the severity of the offences reported and little change in viewing penetration as the defining factor (Gunn & Linden 1997: 157; Tang 1998: 262).

Despite the preclusion of penetration as a basis for determining a sexual assault, Hinch

(1988: 286) believes that the police still tend to “distinguish between complaints involving penetration and those which [do] not”. This highlights the problem of definition as to what constitutes a sexual assault. The rise in reporting rates immediately following enactment of the new legislation may also be reflected in the fact that the

Criminal Code fails to define „sexual assault‟, leaving it up to the courts to decide (Dept. of Justice Canada 1990: 13; Mohr & Roberts 1994: 5; Tang 1998: 263). For example, in 48 the case of R. v. Chase, grabbing a woman‟s breasts was deemed not a sexual act at first.

This ruling was eventually overturned by the Supreme Court of Canada, where it was decided that any act that affects the sexual integrity of a woman, such as non-consensual grabbing of a woman‟s breasts must, indeed, be viewed as a form of sexual assault (Mohr

& Roberts 1994: 5).

Gunn and Linden (1997: 157 & 169) report that, despite a 127% increase in reporting rates in the six years following implementation of the new legislation, there was no corresponding increase in the proportion of cases classified as founded or in conviction rates, leading them to conclude that the overall impact of the new sexual assault legislation was “modest”. McFadyen‟s (2005) data upholds the national statistics.

In the early 1980‟s, McFadyen (2005: 6) notes a rise in the rate of sexual assaults reported in Nova Scotia with a subsequent decline to a low of 88 per 100,000 in 2004.

Further, she notes that the vast majority of sexual offences reported in 2004 were Level 1 offences, with less than 2% falling into Level 2 or Level 3 categories.

Hinch (1985: 37) fears that the abrogation of the corroboration rule and elimination of the doctrine of recent complaint may serve only to put more pressure on the victim by making the victim‟s testimony and character more important than ever before. While the victim may be protected from “character assassinations”, Hinch (1985: 37) believes being a credible witness involves more complex issues than evidence of past sexual history, such as evaluations of character, personality, and appearance when the victim is on the stand, creating even greater distress for the complainant. Despite overall positive changes, much of the new sexual assault legislation appears to be a case of one step forward, two steps back. 49

Furthermore, the seemingly positive move to allow women to charge their husbands with sexual assault has also been brought under fire. Jurisdictions in which women have already been given the right to charge their husbands have seen little change. In some such jurisdictions, the rates of acquittal are still high, suggesting it is pointless to report such incidents, and there remains a corresponding lack of support systems to aid women who do report (Hinch 1985: 38). Inherent in this analysis is the idea that the patriarchal structure of society is so deeply ingrained as to be virtually impossible to eliminate through mere legislation. Hinch (1985: 38) asserts that the new legislation has done little to affect the number of cases considered „founded‟. The notion that the victim may have done something to provoke the attack, or not done something to prevent it, is a myth that is all too prevalent in society (Hinch 1985: 38). What emerges is the sense that the crime of sexual assault goes far beyond the capacity of legislation to affect. What seems to be needed is a deeper, more far-reaching way of altering the very structure of society, including our legal system, in order to invoke real, meaningful change for victims of sexual assault/rape. In the next chapter, I explore historical reasons for the failure of the conventional criminal justice system to effectively handle cases of sexual violence against women.

CHAPTER FOUR: FEMINIST THEORY AND RESTORATIVE JUSTICE

I approach this section with some degree of trepidation, and rightly so. Sexual offences, whether isolated incidents of stranger rape or patterns of behaviour involving ongoing child sexual abuse or domestic violence, are some of the most insidious crimes and are often committed against the most vulnerable members of society. They also are woven deeply into the social fabric and are infused with historical relations of power. The inadequacies of the conventional criminal justice system response to these crimes have been duly noted to the point where Hudson (2002: 622) states “(v)ery few feminists indeed would argue for leaving things as they are”. It is the cry for change, and ensuing inability to find a solution, that is most heart-wrenching.

Reform typically arises from the perceived failings of the current system, in this case the criminal justice system (Hudson 2002: 623). To argue for change necessarily involves, as a first step, the creation of a theoretical argument as to the potential for that alternative to affect positive change (Hudson 2002: 623). Some fear that the potential benefits of restorative justice “may exist only in theory but not in practice” (Coker 1999 cited in Hopkins & Koss 2005: 708). Nevertheless, after examining in detail the arguments for and against the use of a restorative-based approach to these crimes, together with an understanding of the potential of the NSRJ program, I, too, find the potential impossible to completely dismiss. Far from advocating that the door be flung wide open, my aim here is merely to explore the possibilities in the hope that my analysis provides food-for-thought to both restorative justice practitioners and those who advocate for women who are victims of sexual assault. It does not escape my notice that the lives of women and children are at stake; therefore, caution is of the utmost concern. 51

Dissatisfaction with the conventional response to sexual violence is pervasive

(Clark & Lewis 1977; Allison & Wrightsman 1993; Braithwaite & Daly 1994; Hudson

2002; Hopkins & Koss 2005). Hudson (2002: 623) believes the conventional criminal justice system has “had its chance” since, despite numerous reform attempts, its effectiveness remains in question. Feminists have fought long and hard for laws that acknowledge sexual violence against women, and these efforts must not be taken lightly

(Gaarder & Presser 2006: 484); however, “(a) growing number of feminist scholars and activists now recognize that increasing the penalties for crime and jailing more violent men may not create safer societies” (Daly 2002: 63) and have begun looking outside the conventional criminal justice system for “the way forward” (Curtis-Fawley & Daly 2005:

604). This begs the question: what are the alternatives? The criminal justice system cannot, on its own, eradicate sexual violence (Gunn & Linden 1997:170), due in great part to the fact that the legal system deals with events after-the-fact. What is needed is a way to address the root causes of sexual violence. My purpose is to explore the ways in which restorative justice might be applied to create a response to sexual violence that offers greater opportunity to affect the deeper societal roots of the problem, thereby more competently aiding victims, offenders, and the greater society.

When considering the use of restorative justice for crimes of sexual assault, particularly those perpetrated by men against women, feminist theory is an obvious choice for a theoretical discussion. Feminist theory is first and foremost concerned with

“the ways in which sex/gender structures social institutions, social life, groups, the self and the body” (Daly & Stubbs 2007: 149). First, I will show the inadequacies of a liberal feminist agenda that assumes an equality-based approach to law, arguing that sexual 52 violence against women is inherently unequal. Second, I will show how gender is socially constructed and how the traditionally understood characteristics and behaviours of men and women frame our understanding of sexual violence. Social construction feminism will also elucidate the way the crime of sexual assault and preferred method of punishment have been socially constructed in a way that disadvantages female victims of sexual assault. Third, I argue through a radical feminist approach that sexual violence restricts the freedom of all women, not just individual victims, and is entrenched in the legal system. Fourth, I extend my analysis to the practical use of restorative justice for sexual violence against women, claiming a restorative approach might, in fact, be able to meet wider feminist justice goals and affect the root causes. To do this, I employ cultural feminism (also known as difference theory) to argue that sexual violence against women is an unequal crime that deserves unequal treatment in order to do justice. Finally, I turn to multicultural/multiracial feminist theory to highlight differences between women based on a number of statuses, with an emphasis on the use of restorative justice for

Aboriginal women through a post-colonial/globalization theory lens.

Liberal

Liberal feminists have made significant inroads in the search for equality for women by achieving the right to vote, own property, inherit, keep money earned, attend college, choose a career, argue cases in court, do jury duty, be more equal in marriage, and be discriminated against less (Jagger 1983: 35; Lorber 2005: 1). Believing that men and women are equally capable of rational thought and action, liberal feminists claim

“status-based discrimination premised on the assumption that women are less capable or rational than men is irrational and unfairly discriminatory” (Davies 2007: 653). In the 53 legal arena, this translates to efforts aimed at exposing existing discriminatory laws

(Jaggar 1983: 35-36). In terms of sexual violence, reform has centered on adopting laws and practices that respond to sexual violence against women in the same way as those that respond to stranger violence against men (Hopkins & Koss 2005: 699). Prior to the implementation of the new sexual assault legislation in Canada, rape law was undoubtedly discriminatory.

Liberal feminists advocate in favour of gender-neutral categories by focusing on the similarities between men and women (Hopkins & Koss 2005: 699). With the advent of the 1983 reforms, the new gender-neutral terminology conforms to the liberal feminist view that a “common humanity” means women and men should not be treated differently under the law (Lorber 2005: 27). If, as suggested by Daly and Stubbs (2007: 150), the main justice concern of liberal feminists is whether men and women have equal rights, opportunities, and treatment under the law, then it can be successfully argued that the

1983 reforms, with an emphasis on gender-neutral terminology and redefining sexual assault as a violent act the same as any violent act perpetrated by a man against another man, have achieved liberal feminist aims.

Deeper analysis questions to what degree positive change has been made.

Certainly, the post-1983 terminology allows for a greater continuum of offences to be subsumed under the aegis of sexual assault legislation. Thus, as Daly (2002: 63) points out, “from a symbolic point of view alone, feminists cannot cede the ground that has been won in demonstrating that the harm of rape is far wider than the law‟s „real rape‟ scenario”. What this means is that rape/sexual assault has now been recognized as far more than penetration of a vagina by a penis through the use of obvious physical force in 54 cases where the couple are heterosexual and unmarried (Roberts & Mohr 1994: 29), as was previously the case. The 1983 reforms were instrumental in achieving this extended view of sexual assault; however, what the women‟s movement intended and what occurred may be seen as two sides of the same coin. The women‟s movement wanted “an end to sex acts forced by conditions of unequal power on the basis of sex”; what was achieved was gender-neutral terminology that may, in fact, downplay the distinctly sexual nature of the crime (MacKinnon 2005: 119). The gender-neutral terminology can be seen to negate the fact that sexual assault may be viewed as a gendered crime that disadvantages women. Hinch (1988: 283) believes the new legislation serves only to trivialize more serious attacks and that a distinct category for sexual assaults involving penetration should have been retained.

Equal vs. Unequal

Despite feminist calls for equality, the crime of sexual violence against women is blatantly unequal. It is fact that victims of sexual assault are primarily female and perpetrators of sexual assault are predominantly male (Clark & Lewis 1977; Allison &

Wrightsman 1993; McFadyen 2005; Levit & Verchick 2006). It is a fact that sexual assault is unequal in terms of the sheer physical strength imbalance of victim and offender. Women, on average, have about 52% of the upper body strength and 66% of the lower body strength of men (Miller, MacDougall, Tarnopolsky & Sale 1993). It is a fact that a patriarchally-based power imbalance creates inequality, such that proving sexual assault is often predicated on determining consent, despite the fact that sex can be forced upon an unwilling victim by the fact of such patriarchally-based inequality

(MacKinnon 2005: 243). It is a fact that low reporting rates, low laying of charge rates, 55 low conviction rates, and high acquittal rates point out the inequality of criminal justice system responses to victims (Clark & Lewis 1977; Allison & Wrightsman 1993;

McFadyen 2005; Levit & Verchick 2006). It is a fact that sexual assault is unequal in terms of the assumed innocence and guilt in that “the typical rape trial is conducted on the basis of apportioning blame and it is the character and behaviour of the woman that is placed under the severest scrutiny” (Gregory & Lees 1994: 81), despite studies that estimate the false report rate for sexual assault is only about 2% (Allison & Wrightsman

1993: 11). Taken together, these inequalities combine to create a unique situation in which female victims of sexual assault are inherently unequal, both in terms of power and in terms of achieving justice. To this point, Daly (2002: 63) cites Dianne Martin (1998) as suggesting that sexual assault legislation reforms should not be viewed as a major victory for feminists as “(t)here is no victory...in „measur[ing] the judicial “recognition of harm” against the length of the prison sentence imposed‟”, especially in light of the fact that incarceration appears to do little to affect the wider social problem of sexual violence against women.

While the law “tacitly assumes” equality between the parties (MacKinnon 2005:

246), I have shown, with regard to sexual violence against women, equality clearly does not exist. According to Lorber (2005: 41), liberal feminists have never “overcome the prevailing belief that women and men are intrinsically different”. Ƚoś (1994: 45) has noted that feminists have long struggled with whether “to stress equal or different in the fight against institutional patriarchy” and feels „(w)hat should perhaps be strived for is a world that accommodates equally the obvious physical and physiological differences and reassures that they do not become a basis for discrimination and the ascription of 56 inferiority”. MacKinnon (2005: 119) claims “(i)nequality is treating someone differently if one is the same, the same if one is different”, leaving little room for consideration of how the differences have been socially constructed. Analysis must extend beyond a liberal feminist approach, as legislative reform alone has done little to affect the root causes of sexual violence against women.

Social Construction

Crime as a whole is socially constructed and sexual assault is no exception (Roberts

& Mohr 1994: 20). Stereotypes of rape have been historically constructed and have helped shape public perception and legal responses to the crime. Sexual violence against women “has been assigned different definitions across time, space and diverse cultures, and it is being constructed daily through multiple interpretations by the victims, police, lawyers, juries, judges, the mass media, and many other actors and agencies” (Roberts &

Mohr 1994: 20). Yet, despite the fact that social construction is an ongoing process, ancient stereotypes continue to shape the discourse around sexual assault. LaFree (1989:

65) notes that the feminist movement has, especially in more recent decades, sought to eradicate and/or change the stereotypes surrounding the crime of sexual assault. Despite these efforts, ingrained notions persist regarding sexual assault, the stereotypical victim, the perpetrator, and the traditional criminal justice system response. I look first at how the social construction of gender relates to sexual assault.

Sexual violence against women viewed through the lens of social construction feminism means looking at the ways gender is socially constructed in terms of stereotypical characteristics and behaviour. Lorber (2005: 28) claims that gender inequality is innately part of our socialization process in that we encourage boys to be 57 aggressive and girls to be feminine. The link between gender and male violence is highlighted by the fact that the United States has the highest rate of forcible rape in industrialized countries (Allison & Wrightsman 1993: 9). Some believe one of the main reasons rape is so prevalent in the US is the concept of “hypermasculinity” or the “macho man” image (Allison & Wrightsman 1993: 12). This image is constantly reinforced through the media. According to Allison and Wrightsman (1993: 12), traits associated with hypermasculinity include “calloused sexual attitudes toward women”, the mistaken belief that violence is “manly and desirable”, and that danger is “exciting”. No less damaging is the media‟s portrayal of women as sex objects. From pornography to advertising, a woman‟s value is consistently linked to her sexuality (Lorber: 2005: 119).

These images serve only to perpetuate common myths and stereotypes that contribute to sexual violence against women.

Amidst the mundane characteristics and behaviours of males and females, lies the basis for the social construction of rape/sexual assault. According to Roberts & Mohr

(1994: 22), the social construction of rape mirrors the “fundamental gender dichotomy on which the whole modern patriarchal culture rests”. Brownmiller (1975) does an admirable job of tracing the evolution of rape/sexual assault as a property crime arising out of the ancient tradition of bride capture and ensuing notion of woman as property.

Much has changed in the legal discourse since Brownmiller‟s (1975) analysis; however, many of the fundamentals remain the same. Operating from this distinctly male perspective that has upheld standards of sexual access on demand, male dominance has allowed rape/sexual assault to acquire greater significance as a property crime directed against male owners than one based on a woman‟s consent or refusal (Brownmiller 1975: 58

8). For Brownmiller (1975: 8), the rise of patriarchy and its ensuing entrenchment in society‟s most long-lasting institutions is grounded in this ancient struggle for ownership.

Brownmiller (1975) shows how possessiveness and an aggressive response to violations of property rights are grounded in instinctual drives and desires. Such essentialist arguments have the unfortunate consequence of normalizing sexually assaultive behaviour. The evolutionary theory of rape holds the view that there is a biological basis for rape. Proponents of this perspective believe that rape is one way in which males respond to extreme pressures to reproduce (Allison & Wrightsman 1993:

17-18). MacKinnon (2005: 240) refutes the idea that rape is biologically-based, claiming that sexual aggression is deeply ingrained through social attitudes, ideologies, roles, and identities so as to be considered socially constructed rather than a natural instinct. The fact that women commit sexual offences, combined with the fact that female victims of sexual assault include young children, post-menopausal women, and same-sex partners negates the biologically-based evolutionary theory in favour of a socially constructed approach (MacKinnon 2005: 241).

Feminist theories of rape adhere to the belief that rape/sexual assault is based on deeply rooted, patriarchal social traditions of dominance and control (Allison &

Wrightsman 1993: 16). It can be argued that the social construction of gender builds dominance and subordination into gendered relationships (Lorber 2005: 242). According to MacKinnon (2005: 240), the “gendered inferiority attributed to sexual victims, and used to target them, and the gendered superiority attached to sexual prowess, along with the eroticization of subordination and domination, are socially imbricated with established and inculcated notions and roles of masculinity and femininity respectively”. 59

Thus, despite feminist advances, many men hold to the belief that women belong to them in some way and that belonging carries with it the inherent right to sexual access (Kelly

1988: 29).

Social construction feminists consider gender to be a social institution in and of itself, one which constructs an unequal distribution of power, privilege, and economic resources such that men are privileged over women in virtually all societies (Lorber

2005: 242). This male power and privilege extends deeply into all of society‟s social institutions, including the law where deeply rooted notions of male superiority guide the conventional justice system response to sexual assault. It is a widely recognized fact that law has historically been created by men (Boyle 1984: 4; Roberts & Mohr 1994: 21;

Hudson 2002: 623; MacKinnon 2005). History has a way of carrying traditional social thought forward into the future and it takes centuries to affect even a modicum of change in some attitudes. Roberts and Mohr (1994: 21) note that “the process of the legal construction of the crime of rape has been shaped by ideological and cultural perceptions and assumptions that are shared by men rather than by both men and women.” Obvious demarcations point to age-old ideas carried into the present, which severely disadvantage female victims of sexual assault.

It follows that the conventional criminal justice system is susceptible to common stereotypes and myths. Police are the first responders on the scene and have the power to determine whether or not criminal charges will be laid (MacIvor 1996: 159). The case is then passed to the Crown attorney who builds a case against the alleged perpetrator

(MacIvor 1996: 159). The attitudes of these key justice actors can have a “powerful impact” on the case (MacIvor 1996: 159). Gaarder and Presser (2006: 484) have noted 60 that conventional law “reduces power relations to those between victim and offender at the moment of the offense...[and] has no ready terminology for a harmful agency that is bound by oppression”. Thus, restorative justice may not be any more or less susceptible to creating a power imbalance than the conventional criminal justice, unless the program is integrated within the conventional criminal justice system, is informed by women‟s advocates, and is facilitated by well-trained caseworkers.

Rape law was created “almost exclusively” by men, at least until the 1983 reforms in which women achieved some degree of input (Boyle 1984: 4). It logically follows that early law-makers created rape laws from their own distinct standpoints, with a heavy emphasis on the rights and needs of the accused and little concern for the actual victims

(Boyle 1984: 5-6). Contemporary victims of sexual assault often feel they are being put on trial rather than the perpetrator of these offences (Clark & Lewis 1977: 55). From the moment a woman reports sexual assault, she is judged on her appearance and adherence to hegemonic values at the time of the assault (Clark & Lewis 1977; Allison &

Wrightsman 1993). As well, rape law/sexual assault legislation is ripe with mechanisms to blame and shame the victim, including the doctrine of recent complaint, use of past sexual history, and definitions of consent and force. Despite the suggested low incidence of false reports (Allison & Wrightsman 1993: 11), the law appears to offer a disproportionate amount of protection to men who might be falsely accused versus women who are victims of male sexual abuse. Boyle (1984) draws attention to a conflict of values inherent in the fact that sexual assault legislation allows for harsh penalties, yet also allows ample protection for men to refute such charges. These designations serve only to further disadvantage women, creating a veritable hierarchy of victims such that 61 women who are sexually assaulted are subjected to a system of unspoken laws relating to the social construction of their gender as well as the social construction of their stance as victim.

If rape/sexual assault is socially constructed, it follows that an appropriate social response is to reconstruct gender assumptions and relations, conventional criminal justice system responses, and even the method of punishment. Since the rise of the penitentiary, the approach to affecting the problem of sexual assault in society has been based in large part on incarceration, which, according to many reports, does not affect change in either the individual attitudes of men and their actions or wider social attitudes and actions

(Clark & Lewis 1977: 57; Walgrave 2004: 49; MacKinnon 2005: 248). In fact,

MacKinnon (2005: 248) clearly states that incarceration does not change perpetrators behaviour but often “entrenche[s] and escalate[s] it”. This is not to say that the perpetrators of such crimes do not deserve incarceration (MacKinnon 2005: 248), merely that incarceration serves to perpetuate the public perception of safety to a greater degree than the reality of imprisonment affects the problem of sexual violence against women.

Traditional responses to sexual violence against women are not adequate. The solution to the eradication of sexual violence against women lies well beyond legislation.

Radical

Male power and privilege extend deeply into all of society‟s social institutions, including the law where notions of male superiority guide the conventional criminal justice system response to sexual assault. A radical approach extends feminist insight to the structural level, allowing socially constructed stereotypes to be seen as pervasive and extensive. Radical feminism highlights the ways in which “distinctions of gender in 62 contemporary society structure the whole of life” not only socially differentiating women from men, but also keeping women in a position of subordination (Jaggar 1983: 85).

Building on liberal feminist analysis, radical feminists view women‟s oppression as “not merely unfair discrimination practices by some individuals against other individuals, but rather as institutional and systemic” (Davies 2007: 654). Early radical feminists were committed to “uncovering and eradicating the systematic or root causes of women‟s oppression” (Jaggar 1983: 84); therefore, it is no surprise that the efforts of radical feminists have centered on rape, sexual abuse of children, battering, sexual harassment, and worldwide trafficking of women for the purposes of prostitution (Lorber 2005: 134-

135).

More recently, radical feminism has expanded the definition of patriarchy to encompass a “worldwide system of subordination of women by men through violence and sexual and emotional exploitation” believing that society‟s encouragement of male aggression and female sexuality creates a dichotomy of the male as prone to violence against women and the female as the potential victim (Lorber 2005: 118). Radical feminist theory situates the crime of sexual assault against women as “a conscious process of intimidation by which all men keep all women in a state of fear” (Brownmiller

1975: 5, italics in original). In Chapter Three, I alluded to sexual assault as a „major social problem‟. It can be argued that sexual assault works to oppress women as a collective by the very fact that sexual offences perpetrated by men against women serve to “reinforce women‟s fear of crime and restrict spatial and social freedom” (Hopkins &

Koss 2005: 694). Lorber (2005: 119) is correct, then, when she claims that “the constant threat of rape, battering and murder is a powerful means of keeping women “in their 63 place”. Radical feminism places sexual violence directed against women on a continuum from sexual harassment to sexual murder and rape (Lorber 2005: 119). The goal of radical feminists is to challenge subordination, “a task which involves not merely identifying inequality and discrimination, but understanding and critiquing the fundamental structures, values, and mechanisms of exclusion which support it” (Davies

2007: 654). In this light, in which patriarchy is the underlying reality, all social institutions are implicated in gender oppression. Rather than offering a solution to gender-based oppression, the criminal justice system perpetuates it.

The question arises whether feminist theory can help in the understanding of alternative means through which the immediate effects of gender oppression, especially on victims, can be minimized and longer-term solutions can be found. The critique of patriarchy implies that female-centered institutions would be better, not just for women, but for all. Feminist institutions would entail cooperation, peace-making, reconciliation, and community. This argument, which derives from cultural feminism, will be elaborated below. These goals connect visions of female-centered authority with Aboriginal justice and, arguably, with some of the most important tenets of restorative justice. Gaarder and

Presser (2006: 492) believe restorative justice can go beyond the potential to heal individual victims and offenders, and “should concern itself with an agenda for structural change as well as individual change” (Gaarder & Presser 2006: 492). If restorative justice keeps in mind the ultimate goals of social justice, Gaarder & Presser (2006: 492) believe that restorative justice is “compatible” with feminist aims.

Feminist Theory and Restorative Justice

Feminist research has directed its attention most notably to issues regarding the appropriateness of restorative justice for cases of partner, sexual, and family violence

(Daly and Stubbs 2007: 149). In most jurisdictions, the use of restorative justice for cases involving sexual violence against women has been restricted. One key reason for restricting restorative justice practice is that “academic feminists and victims advocates have made compelling arguments against it” (Curtis-Fawley and Daly 2005: 607). These arguments hinge on several common misconceptions. Two of the most common misconceptions are: 1) that mediation and restorative justice are synonymous, and 2) that restorative justice seeks restoration at the expense of retribution. Neither is, necessarily, true.

Restorative justice and mediation are not synonymous (Daly & Stubbs 2007: 154).

As noted in Chapter Two, mediation was a precursor of restorative justice. Mediation has extended into a number of realms involving civil justice, including civil suits and labour management disputes. In these circumstances, mediation involves a resolution of a dispute between parties that are more or less equal and have, in some measure, a legitimate right on their side. In the case of criminal behaviour, mediating between victim and offender is different because the two parties enter the process unequally. The terminology „victim‟ and „offender‟ entails an imbalance and a wrong that must be righted. The “implicit assumption” of early forms of alternative dispute resolution is that victim and offender can reach a “common understanding” or an agreed upon perspective

(Hudson 1998: 248). Mediation has been criticized for its tendency to label sexual violence against women as a “dispute”, for insisting on reconciliation, for “erasing 65 victimization”, and for “limiting [formal] justice options” (Daly & Stubbs 2006: 11), none of which may apply to restorative justice practice. VOM retained the use of the word „mediation‟, which is often understood as merely mediating facts between victim and offender (Curtis-Fawley & Daly 2005: 607). Daly (2006: 337) claims the fear that restorative justice will exacerbate problems of victim safety stems from studies of mediation in cases of partner violence.

Braithwaite & Daly (1994: 192) note that some feminists, “disillusioned” with attempts at changing legislation, are now concentrating their efforts on affecting patriarchal structures. Restorative justice processes, they argue, offer greater potential for reintegrative shaming that may, in turn, affect these deeper structures (Braithwaite &

Daly 1994: 193). Braithwaite & Daly (1994: 194) argue that Maori understandings of power “bear some resemblance to a Western feminist analysis” with an emphasis on denying the male abuser certain privileges and allowing extended families to play a larger role in the intervention and surveillance of intimate family violence. Conferencing arising from the Maori approach does not rely on “fixed assumptions” of community, such as the geographic community or immediate family members, but finds caring supporters

“wherever they are” (Braithwaite & Daly 1994: 195). If feminists want “processes that are effective in the symbolic sense of denouncing the behaviour, demonstrating that it is disapproved by society...[and]...by friends and supporters of the victim” (Hudson 2002:

628), then restorative justice offers hope. Restorative justice is not concerned with mediating disputes which, in effect, could be seen as “erasing victimization” (Daly &

Stubbs 2006: 11). Restorative approaches attempt to acknowledge victimization by 66 allowing the victim an opportunity to have a voice in the justice process, one that reaches far deeper than a victim impact statement read in court.

Restorative justice does not necessarily limit formal justice options. Some restorative programs are merely diversion from court, and the assumption that diverting sexual offences is counter-productive underlies much of the feminist criticism. From this point of view, restorative justice takes intimate and sexual violence out of the formal court process and relegates it to a more informal type of justice, apparently erasing the hard work of a generation of liberal and radical activists. This argument assumes that the criminal justice system is the best method we have of responding to sexual offences and that all less formal processes are essentially the same; however, as previously noted, when applied to serious/violent crimes, restorative justice can be integrated into the conventional criminal justice system as a complementary process. Feminists call for a

“multi-dimensional” approach in order to effectively work to eradicate sexual assault

(Allison & Wrightsman 1993: 33). Restorative justice may, in fact, offer more, rather than fewer, justice options.

There is a common misunderstanding with regard to what restorative justice seeks to restore. Curtis-Fawley & Daly (2005: 605) point out that it is easy to assume “too literal” an understanding of the word “restore” and argue that restorative justice should, perhaps, be seen as “a nominal concept that stands for a set of activities rather than as literally and narrowly about so-called restoring”. Restorative justice is not always based on a literal reconciliation and does not necessarily expect offenders to offer an apology or victims to forgive, and this is especially so when applied to serious/violence crimes (Daly

2002: 83). What should be viewed as most important, perhaps, is that restorative justice 67 can simultaneously be more victim-centered than the conventional court system, offering an opportunity for victims who wish to talk about their experience, retributive, and rehabilitative, setting in motion a plan to deal with an offenders behaviour (Daly 2002:

83). While there is great debate over the extent to which restorative justice can or should link itself to various theories of punishment, Daly (2002: 69) points out that restorative processes have the potential to run the gamut from retribution, to restoration/reparation, to rehabilitation. Perhaps, as suggested by Curtis-Fawley and Daly (2005: 605), restorative justice should be re-defined as victim-centered reparative justice. By combining the best the conventional system has to offer with a restorative approach, the response to sexual violence might be able to meet feminist goals and affect radical change.

A Feminist Approach to Youth Sexual Offending

If feminists are concerned with eradicating sexual violence against women, it stands to reason that identifying and treating youth before their behaviour escalates into an adult sexual offending career, would be beneficial. A combination of lack of research and understanding and a societal attitude that accepts, and thereby condones, a „boys will be boys‟ attitude means youth have historically not been held accountable for sexually aggressive behaviour (Brayton 1996: 220). In fact, youth often begin with non-physical, less serious behaviours, such as obscene phone calls (Gibson 2007: 61). If not treated, for some, these behaviours will increase in severity and lead to an adult career in sex offending (Brayton 1991: 223). Many of these youth are victims, themselves, of some form of abuse (Gibson 2007: 64). Thus, it can be deduced that early intervention may benefit society in the long run. If restorative justice were able to combine a feminist 68 caring approach with an emphasis on holding offenders accountable and getting treatment, it may be possible to affect the underlying causes of sexual violence. Rather than allowing sexually aggressive youth go through life without consequences for his/her actions, it can only be beneficial to show that society will not tolerate such behaviour. As an approach integrated within the criminal justice system, whereby there is room for more traditional punishment if the initial attempt fails, restorative justice might be able to effect change.

Cultural Feminism

Cultural feminism provides an avenue for discussing the idea of difference. Daly &

Stubbs (2007: 155) cite Hudson (2003) as stating that criminal justice should in fact be

“predicated on difference rather than identity” and that equality should be used primarily to denote equal respect. Cultural feminism/difference theory is basically radical feminism with a focus on social and institutional power as the source of gender difference (Davies

2007: 655). Whereas “radical feminism emphasizes subordination and the means of challenging it[,]...difference feminism examines alternative non-gendered or more usually distinctly female or feminine normative values” (Davies 2007: 655). Cultural feminism is primarily concerned with the “limits of an „equality with men‟ agenda”, focusing on women‟s specific social, sexual, and reproductive experiences (Daly &

Stubbs 2007: 150).

Gilligan‟s (1982) work on gender differences has been instrumental in pointing out innate differences between men and women. Her work suggests that women are more concerned with human relationships and place greater value on their ability to care than men (Gilligan 1982: 17). Daly & Stubbs (2006: 10) note that Gilligan‟s (1982) work 69 shows that girl‟s moral reasoning is not inferior but is “guided by an ethic of care centered on moral concepts of responsibility and relationship”. The justice question most pertinent to cultural feminists is how to bring women‟s knowledge and voice into the justice arena (Daly & Stubbs 2006: 10)? Recent literature shows that restorative justice may, in fact, be able to accommodate feminist aims (Hopkins & Koss 2005: 700; Gaarder

& Presser 2006: 492; Pranis 2007: 59). Restorative justice viewed as a “victim-centered” process emphasizing the damage sexual violence does to relationships and

“incorporat[ing] a survivor‟s full experience satisfies cultural feminism‟s call that the justice system take account of women‟s voices” (Hopkins & Koss 2005: 700).

Curtis-Fawley and Daly (2005: 609) believe the strength of restorative justice to affect change lies in the power of dialogue that allows victims the opportunity to tell their story, thereby validating their experience. By giving victims a voice, a say in what happens to the offender, and what will repair the harm done to them, restorative justice aims to keep the victim of crime “central to the process of defining the harm and how it might be repaired” (NS Dept. of Justice 1998: 2). Archibald & Llewellyn (2007: 305) state that restorative justice in Nova Scotia is “grounded in a relational conception of justice” that seeks to create social equality in relationships, based on mutual concern, respect, and dignity rather than on a utopian notion of reconciling personal relationships through apology and forgiveness. Restorative justice can be empowering if the victim is front and center, allowing him/her a voice in the justice process rather than be relegated to the sidelines. I draw here on Sawin & Zehr (2007: 48) who define empowerment as

“not only the power to participate but also the ability to draw upon needed resources to make a decision and to follow through on that decision”; therefore, empowerment is 70 based on the ability to access resources. A lack of resources, then, can be “disastrous”

(Gaarder & Presser 2006: 488). Gaarder & Presser (2006: 488) have noted that restorative conferences can be instrumental in “mobilizing” resources. Thus, a restorative approach that allows the victims voice to be heard and which offers access to resources is imperative.

According to Gilligan (1982: xvi), while it is important to have a voice, the key is to have that voice be heard in order to effect change. “As we have listened for centuries to the voices of men and the theories of development that their experience informs, so we have come more recently to notice not only the silence of women but the difficulty in hearing what they say when they speak” (Gilligan 1982: 173). Restorative justice offers female victims of sexual assault an opportunity to effect change by adding their unique perspectives to the male voices so often heard in the conventional justice system. It is entirely possible that restorative justice could allow previously silenced voices to emerge, thus combating the common myths and stereotypes and shifting the base of power.

Gilligan‟s (1982) work raises a second point that must be carefully considered when exploring the use of restorative justice for sexual assault. If it is true, as Gilligan

(1982: 8) suggests, that girls have an innate sense of empathy that boys simply do not, there are dangers in considering the use of restorative justice for sexual violence. Since the majority of victims of sexual assault are female, this is a major area of concern.

Women are already disadvantaged in the criminal justice system. If restorative-based processes allow female victims of sexual assault to empathize more with the perpetrator of the violence directed against them than the other way around, she stands to lose.

Operating from a perspective that acknowledges a historical basis for male domination 71 and female subordination, combined with a natural inclination for women to be more empathetic and caring, restorative justice could conceivably contribute to historical power imbalances. For those who view women‟s oppression as the cause of such differences, an ethic of care seems “decidedly unhealthy” (Gaarder & Presser 2006: 491).

This may be balanced in favour of women if, aside from the actual victims of sexual violence, facilitators, support persons, community members, advocates, and justice system personnel who are female use this innate sense of empathy to aid both victim and offender. In this way, if restorative justice allows women a voice, there may be potential for increasing report rates and community awareness and for reducing incidents of sexual violence against women (Hopkins & Koss 2005: 715).

Theory and Restorative Justice

The NSRJ program has, since its inception, intended to be more than a mere

“process alternative” (Archibald & Llewellyn 2007: 305). Archibald and Llewellyn

(2008: 305) believe restorative justice is a fully articulated theory of justice with an emphasis on mutual concern, respect, and dignity, aiming to restore relationships to a condition of social equality. In fact, the NSRJ program, with its four comprehensive referral points, allows for a continuum of options through which to address sexual offences. In many ways, restorative justice appears to take into consideration feminist aims.

Restorative justice may be regarded as “a more caring response to crime” (Daly and

Stubbs 2006: 11). Gaarder and Presser (2006: 491) cite Harris (1991) as having called restorative justice a “feminist vision of justice” relying on feminist values such as caring, sharing, nurturing, and loving, a vision that is in sharp contrast to the male dominated 72 justice system that values power and control. To this end, restorative justice may have greater potential in some areas of sexual violence than others, in particular as a means of addressing intra-familial sexual violence. Intra-familial violence may take several forms with the offending behaviour directed against any of a number of combinations of family members. The different forms may assert themselves in different ways and the nature of each specific case should, ideally, be addressed. My purpose here is merely to point out the way restorative justice might aid in cases where the relationship between victim and perpetrator will continue.

Published literature on the use of restorative justice for sexual violence in the context of a family often hinges on a public/private debate (Curtis-Fawley & Daly 2005;

Cameron 2006). Feminists argue that taking sexual violence out of the courtroom and into a restorative justice setting decriminalizes and re-privatizes intimate violence, thereby undoing decades of work to ensure sexual violence against women is taken seriously in a court of law (Curtis-Fawley & Daly 2005; Cameron 2006). However, some see intimate/intra-familial violence, especially in cases where the victim and offender wish to continue a relationship, as needing an alternative to conventional court proceedings that do little to help the family in need (Curtis-Fawley & Daly 2005;

McAlinden 2005; Daly 2006). Curtis-Fawley and Daly (2005: 626) note that in cases of intra-familial violence, victims often do not report the crime for the very reason that it would be made public. Curtis-Fawley and Daly (2005: 621) argue that restorative justice allows “the potential...to give victims a chance to speak and to be heard in a way that the criminal court does not allow”. By addressing intra-familial sexual violence through restorative justice, the crime is made public to a degree in that it is brought to light, but 73 what is most important is that the offender is held to account and has the opportunity to get some help. In fact, some believe that if sexually violent men are able to avoid the stigmatization of a criminal record, they may be more likely to accept responsibility and treatment (Curtis-Fawley & Daly 2005: 623; McAlinden 2005: 384; Daly 2006: 352).

Snider (1998: 2) claims there is no evidence to suggest the conventional criminal justice system keeps women safer or makes male offenders less violent. If this is, indeed, true, why do we rely so heavily on the conventional system (Curtis-Fawley & Daly 2005:

616)?

Multicultural/Multiracial Feminism

I have noted in Chapter Three that sexual violence against women occurs worldwide. While it is true that it is a universal phenomenon, Roberts & Mohr (1994:

11-12) note that “the reality of how that violence is lived is greatly affected by other factors, including a woman‟s skin color, economic status, sexual orientation, and physical and mental ability”. Multicultural/multiracial feminist theory draws on social construction theory to show the link between race and the social construction of gender and the ways in which race “both shapes and is shaped by a variety of other social relations” (Hopkins & Koss 2005: 702-703). Lorber (2005: 200) notes that multicultural/multiracial feminism “argues that you cannot look at one of these social statuses alone...[because] their interaction is synergistic”. Intersectionality is used to refer to the way race, ethnicity, class, gender, sexuality, religion, nationality, age and other social statuses combine to form a matrix of domination that discriminates against such statuses (Lorber 2005; Collins 1998). 74

Literature on restorative justice for sexual violence against women is clouded by debate. One such debate involves the applicability of restorative justice to Aboriginal women. Academic feminists have illuminated the need for restorative justice to take on a more „nuanced, intersectional approach” (Cameron 2006: 50). Restorative justice, while drawing on some tenets of traditional Aboriginal justice, is not, itself, a traditional practice of the indigenous populations it serves (Crnkovich 1995; Cormier 2002;

Dickson-Gilmore & LaPrairie 2005). I must note that the term „traditional‟ can be problematic. Bowker (2008: 257) claims resistance to the term has arisen due to the implication that „traditional‟ knowledge is “lodged in an eternal past”. Cameron (2006:

53) notes that the term „traditional‟ can be insulting to indigenous populations when used to refer to “a backwards-looking or „frozen in time‟ formulation of Aboriginal laws and legal practices”. I use the term here in a more classic sense, to infer only that „traditional‟

Aboriginal practices are those based on Aboriginal justice practices which have been passed along through the generations (MacDougall 2009: 2). Aboriginal justice is based on restoring peace and equilibrium to the community affected by crime and encouraging reconciliation of the accused with both their own conscience and the victim and adheres to key values including respect, consensus, solidarity, mutuality, interdependence, reciprocity and love (Cormier 2002: 3; Gray & Lauderdale 2007: 217). These values are, for the most part, consistent with restorative justice.

When relating restorative justice to post-colonialism and globalization theory, it appears necessary to exercise great caution. It is widely understood that Aboriginal people are over-represented in the conventional criminal justice system (Sinclair 1994:

173). If, as Brennan (2008: 39) suggests, globalization theory leads to the idea that “the 75 world is being reconstituted as a single social space” (italics in original) and justice moves to incorporate all women under one rubric, then minority women, including

Aboriginal women, are further disadvantaged. Sexual violence is most often viewed as the result of a patriarchal past; however, Aboriginal women suffer doubly from their status both as women and as Aboriginal women affected by the double legacy of colonialism and patriarchy (Goel 2000: 294).

Restorative justice has been heralded as a flexible approach that easily adapts to diverse populations. Curtis-Fawley and Daly (2005: 608-609) note that “a growing number of academic feminists suggest that restorative justice practices may be more effective for diverse groups of victims compared to established criminal justice and formal legality”. It is vitally important when creating restorative justice programs to heed the advice of those most familiar with the specific needs of women who are also minorities. Critics of restorative justice fear that a justice system heavily laden with patriarchal power plus the intersection of various aspects of a woman‟s identity will serve only to re-victimize women and these innate power imbalances will skew any attempt to restore or repair the harm of violent crimes (Cameron 2006: 54). As restorative justice moves to incorporate violent crime, it is expected that it will merge more formally with the conventional criminal justice system. Gray and Lauderdale (2007: 215-216) fear such integration might subject Aboriginal women to even greater compromise and interference by conventional justice system actors. This may be true, depending on the type of process, as some models of restorative justice “do not equate with the laws, values, and justice practices of Aboriginal communities” (Cameron 2006: 54). Any initiatives created for use with Aboriginal women should advance rather than detract from Aboriginal goals 76 of independence and self-sufficiency (Cameron 2006: 51). Restorative justice that is well-informed by those who understand the specific needs of minority women and who take these into account when creating programs might be able to override such concerns.

It is clear that the conventional criminal justice system response to sexual assault is lacking and, I believe, this is one reason the door is ajar. Society needs a better way of dealing with sexual violence against women – one that addresses the inequality of the crime, the socially constructed stereotypes, and the root causes. Whether restorative justice can affect any or all of these issues is an “open question” (Hudson 2002: 622); however, what appears to be certain is that the conventional criminal justice system is inadequate and legislation originally aimed at protecting property cannot solve the problem of sexual violence against women (Gunn & Linden 1997: 161 & 170). Reform must do more than take sexual assault seriously on paper; it must include a more woman- centered type of justice (Rubin 2003). Reform must also include a new way of thinking about sexual violence against women, one that assumes equality but recognizes difference. Is restorative justice the answer or part of the answer? With relatively few programs on which to base research into restorative justice as a way of determining whether or not restorative justice is a viable option, it is difficult to say. With little empirical evidence, much of the literature argues over potential rather than actuality

(Hudson 2002: 623). Cameron (2006: 59) argues for a moratorium on all new restorative justice programs, claiming there is enough data available to re-analyze without putting more women‟s lives at stake. The argument I make is that with such diversity in programs, models, types of abuse, and even women involved in such abuse, it is vitally important that theory be put into practice in order to begin to assess the ability of specific 77 restorative justice programs. In Chapter Five, I examine the published literature on the use of restorative justice for sexual offences/partner violence, taking particular note of programs where theory has been put into practice.

CHAPTER FIVE: LITERATURE REVIEW

Restorative justice is considered to be a viable alternative/adjunct to the conventional criminal justice system by some and a disastrous reduction by others.

Literature on the use of restorative justice for sexual offences is plentiful; however, a firm decision as to the potential for restorative processes to improve on the conventional criminal justice system response to sexual offences is not clear. As sexual offences have been excluded from restorative justice practice in most jurisdictions, much of the literature is purely theoretical in nature and consists of lengthy discussion as to the potential harms and benefits, leaving the door ajar for further discussion and research

(Hudson 1998; Curtis-Fawley & Daly 2005; Hopkins & Koss 2005; McAlinden 2005;

Cameron 2006; Daly 2006; Daly & Stubbs 2006; McAlinden 2006). Some of the published literature calls attention to the need for restorative justice to be integrated into the conventional criminal justice system in order to handle serious/violence crimes more effectively and/or the need to alter the restorative justice process and its basic premises when dealing with serious/violent crimes (Gregory & Lees 1994; Hudson 1998; Daly

2002; Hudson 2002; Stubbs 2002; Hargovan 2005). Others believe that, despite serious concerns, restorative justice holds potential for positive change for victims of sexual offences (Curtis-Fawley & Daly 2005; McAlinden 2005; Gaarder & Presser 2006;

McAlinden 2006). A few come close to closing the door entirely (Hooper & Busch 1996;

Goel 2000). What is missing is a definitive move toward or away from using restorative justice for crimes of sexual violence. This indecision must not be dismissed lightly.

Writing on the use of restorative justice for domestic violence, Busch (2002: 223) asks 79

“(w)ho pays if we get it wrong?” The answer, of course, is that it will be the victims and their surviving family members who will bear the costs.

Potential Harms and Benefits

Published literature on restorative justice for sexual violence suggests a broad range of potential harms and benefits (Braithwaite & Daly 1994; Hooper & Busch 1996;

Hudson 1998; Goel 2000; Daly 2002; Hudson 2002; Stubbs 2002; Curtis-Fawley & Daly

2005; Hargovan 2005; McAlinden 2005; Cameron 2006; Daly 2006; Gaarder & Presser

2006; McAlinden 2006; Daly & Stubbs 2007). Potential harms tend to include the following:

 concern regarding the safety of the victim

 concern that the restorative justice process will re-victimize the victim

 concern regarding a potential power imbalance, which is heightened

with respect to crimes of sexual violence

 concern that the accused will manipulate the victim and/or the process

 concern that too much pressure will be placed on victims to take part

and that it will not be „voluntary‟

 concern that the role of the community is not well defined and that

certain communities may, in fact, uphold violence against

women/male dominance

 concern that divided loyalties of family members will create problems

(most likely in cases of ongoing domestic violence)

 concern there will be little impact on the offender or motivation to

change 80

 concerns regarding symbolic implications such as re-privatizing

violence against women by using an „informal‟ approach

 concerns that the process is not formal enough

 concerns that facilitators lack the specific skills needed to deal with

victims and perpetrators of sexual violence

 concern that restorative justice is merely a “soft” or “cheap” option to

justice

 concern over the, often too literal, definition of „restore‟

 concerns that sexual violence will merely be diverted from court

 concerns over theoretical weaknesses.

Potential benefits tend to include:

 that the victim will be allowed a voice

 that the power of narrative can be used as a healing tool

 that the victim will be validated and the offender will be held

responsible

 that the process is flexible and communicative

 that the process is less formal, therefore less threatening

 that the process allows for relationship repair, which may be what the

victim wants in some cases

 that the process can offer a continuum of choice, from diversion to

adjunct to the conventional system 81

 that restorative justice may be better able to serve the needs of diverse

populations

 that by utilizing a less formal process, the offender will be encouraged

to admit responsibility and/or attend treatment

 that restorative justice might avoid the re-victimization and public

humiliation of the conventional system

 that the restorative approach can be empowering.

A deeper understanding of the implications of using restorative justice for sexual violence is impeded by the lack of empirical evidence. Restorative justice is “regularly” used for sexual offences committed by youth in only two jurisdictions – New Zealand and South Australia (Daly 2006: 334). Conferencing is used in New Zealand for both diversion and pre-sentencing advice and in South Australia it is used primarily as court diversion (Daly & Curtis-Fawley 2006: 1). Daly and Curtis-Fawley (2006:1) report “(n)o jurisdiction currently uses [restorative justice] routinely for cases of adult sexual assault”.

The key word here is routinely. A few studies on the use of restorative justice for serious/violent crimes involving adult offenders indicate sexual offences were included in the studies (Roberts 1995; Rugge et al. 2005) and Cameron (2006: 49) claims that restorative justice is used in Canada “with some frequency” to deal with cases of

“intimate violence”. Despite concerns, tentative steps toward building empirical evidence are, nonetheless, proceeding.

McAlinden (2006: 307) believes there is “nothing in principal” to suggest restorative justice must be relegated to cases involving less serious offending. Curtis-

Fawley and Daly (2005; 605) claim a key problem in getting past theoretical discussions 82 is that critics “often fail to address whether there are standards/safeguards” which could make a restorative approach satisfactory, while advocates fail to address questions of

“procedural safeguards/just outcomes” for offenders - hence, the call for more research and discussion. Further discussion and research that moves past the theoretical stage is difficult as it is compounded by a general reluctance to extend the use of restorative justice to sexual offences. This is not without good reason, as some believe to do so is only “gambling with the lives and safety” of women” (Cameron 2006: 59). Adding to the confusion is the fact that restorative justice consists of a plethora of processes and practices aimed at various stages of the justice process, not to mention the profound differences between types of sexual violence. Hudson (2002: 616) claims that unresolved issues regarding the use of restorative justice for sexual offences center on the type of cases that would be most appropriate and the question of the relationship between restorative justice and the conventional criminal justice system.

Sexual violence directed against women is a complex and thought-provoking crime with deeply rooted historical considerations regarding power and subordination.

Literature on conventional criminal justice system responses to sexual offences consistently points to inadequacies (Clark & Lewis 1977; Boyle 1984; Hinch 1985 &

1988; Braithwaite & Daly 1994; Tang 1998; Cameron 2006; McAlinden 2006) and the need for a “multi-dimensional” approach to deal more effectively with sexual violence against women (Allison & Wrightsman 1993: 33; Gregory & Lees 1994: 80). The majority of men who perpetrate crimes of sexual violence against women are not held accountable for their behaviour (Braithwaite & Daly 1994: 191); therefore, McAlinden

(2005: 388) suggests, because of the obvious absence of effective alternatives through 83 which to address the problem of sexual violence against women, restorative justice is

“worth careful experiment”.

It has been suggested that, despite having the “toughest tools” at its disposal, the conventional criminal justice system only “make[s] matters worse” and leaves the needs of victims unmet (Gaarder & Presser 2006: 484). This is not surprising given the nature of the conventional system. Law considers only pertinent facts, making it ill-equipped to take into account the emotional consequences of sexual violence (Gaarder and Presser

2006: 485). The question that begs to be asked, then, is: what do victims want from the justice system? Strang (2004: 96) states that victims, in general, want a process that is less formal, that takes their views into consideration, where they can participate, where they will be given access to information regarding their case, where they are treated fairly and respectfully, where they have the opportunity to gain material restoration (where applicable), and, most importantly, where they will be given “emotional restoration”, including a sincere apology.

There is a great deal of debate over the role of apology in restorative justice practice. Stubbs (2007: 176) draws attention to a “substantial” body of literature that examines the relationship between apology and forgiveness both in restorative justice practice and law. The general consensus appears to be that apology is beneficial when given with genuine remorse; however, from what is known of sexual offenders, there is a good degree of doubt that a genuine apology can be hoped for. Scully & Marolla (1984:

531 -533) have noted that 83% of convicted rapists in their study did not consider themselves to be „rapists‟, but were prone to a great degree of denial and justification for their behaviour. In domestic violence cases, apology is often used as a method of control 84 and is a contributing factor in the „cycle of violence‟, making it a particularly questionable outcome in such cases (Stubbs 2007: 176-177). There are also gendered differences involved in the use of apology. Women are more apt to apologize in light of their more caring nature while men are more apt to use apology to take control of a situation (Stubbs 2007: 176). Further, victims, in general, tend to accept apologies, making the use of apology suspect and contributing to the notion of restorative justice as

“cheap” justice (Stubbs 2007: 176-77). If apology is considered a necessary outcome of restorative justice practice, it may be poorly suited to sexual offenders.

Victims often express a need to tell their story (Achilles 2004; Gustafson 2004;

Rugge et al. 2005; Umbreit 2006). Gustafson (2004: 305) claims the majority of victims of “severe trauma” (82%) he surveyed indicate they needed to meet and dialogue with the offender(s) who had perpetrated crimes against them. Achilles (2004: 66) reports that in her work with crime victims she was “shocked” when a victim of a serious assault asked to meet with the offender. Umbreit and Vos (2000) found reasons to engage in a dialogue with the offender, as stated by surviving family members of homicide victims, included that they had specific questions they wished the offender to answer and that they wanted to tell the offender how greatly the crime had affected them. Curtis-Fawley and Daly

(2005: 616) believe that restorative justice holds the potential to allow the victim‟s needs to be heard while holding perpetrators to account for their behaviour. Understandably, there is no way to generalize these findings to women who have been sexually assaulted and their needs may be as individual as each case.

Restorative justice allows victims an opportunity to tell their story and relate the emotional aspects of crime. In fact, Kay (2006: 231) considers narrative to be “the heart 85 and soul” of restorative justice. Often noted for its healing potential, it has been suggested that restorative justice, “parallels standard crisis and trauma intervention techniques for victims” (Achilles & Stutzman-Amstutz 2006: 217). If, as Gregory and

Lees (1994: 80) have noted, there is ample space for a multitude of approaches to reform, what is to stop the conventional justice system and restorative justice from working in tandem to produce an approach that blends the best of both worlds? This is a pertinent question since many believe that, as restorative justice extends to encompass more serious/violent crimes, it must also merge more closely with the conventional criminal justice system (Hudson 1998; Daly 2002; Hudson 2002). If restorative justice is to extend to more serious/violent crimes, it stands to reason that the process and its “underlying philosophical premises” may undergo changes (Daly 2002: 84). Sullivan and Tifft (2004:

391-392) suggest restorative justice should be thought of as “a process that is concerned about meeting human needs”. Johnstone (2004: 6) adds that it should center on creating

“patterns of social interaction that foster human dignity, mutual respect, and equal well- being”. Could restorative justice as an integrated part of the conventional criminal justice system offer victims of sexual violence the forum they need in which to have their needs met while maintaining dignity, respect, and equality?

Restorative justice might be able to increase victim satisfaction and improve on the conventional criminal justice system response is by alleviating some of the inherent critogenic harms the conventional system imposes. Critogenisis may be defined as “the intrinsic and often inescapable harms caused by the litigation process itself, even when the process is working exactly as it should” (Gutheil, Bursztajn, Brodsky, and Strasburger

2000: 6). Gutheil et al. (2000) claim that the conventional criminal justice system often 86 causes further distress to anyone who engages in the process by creating a variety of symptoms adding to their stress levels. These symptoms include “sleeplessness, anger, frustration, headaches, inability to concentrate, humiliation, anxiety, loss of self- confidence, isolation, helplessness,” and they contribute to “resource burnout” whereby otherwise supportive persons may find they suffer “burnout” and are unable to offer aid or support (Gutheil et al. 2000: 11). Conversely, critogenic benefits include empowerment via the opportunity to be heard and the opportunity to make the offender aware of the harm he or she has caused (Gutheil et al. 2000: 6).

Feminist concerns over the use of restorative justice for sexual offences have centered on the belief that to take sexual violence out of the court-room is akin to losing decades of struggle in order to achieve recognition that sexual violence waged against women is, indeed, a crime; however, in some cases of sexual violence, most notably those involving intra-familial sexual violence, victims may not report for the very fact that they feel it is a private matter (Curtis-Fawley & Daly 2005: 626). Curtis-Fawley and

Daly (2005: 616) argue that restorative justice holds potential for victims to have their suffering publicly acknowledged. Arguably, having the case dealt with via restorative justice makes the matter public, albeit in a less traditional way than a criminal justice trial that makes headline news. Sexual violence, once reported, is public knowledge to those who most need to know – the family and support systems of those intimately involved. If restorative justice effectively incorporates the wider community, dialogue generated in restorative sessions may work to aid public acknowledgement and disapproval (Gaarder

& Presser 2006: 487). 87

The conventional justice system does not validate victims of sexual violence, nor does it acknowledge that they are not to blame (Curtis-Fawley & Daly 2005: 616). What is needed is a more victim-centered form of justice that allows the victim full participatory rights. Daly (2002: 77) has referred to a gap between what victim‟s advocates understand restorative justice to be and what it really entails. Restorative justice has been most widely accepted as a diversionary process separate from the conventional criminal justice system and tailored to youth crime, a fact, which may explain why many consider restorative justice to be offender-oriented. Boyack, Bowen and Marshall (2004: 266) readily admit that the Family Group Conferencing model originally developed in New Zealand to deal with youth was essentially offender- oriented. This may be viewed as a somewhat natural inclination, as the process generally aims to deter youth from a life of crime by diverting them from court and encouraging reintegration into the community; however, in New Zealand where restorative justice practice has tentatively extended to adults, differences in the process have emerged

(Boyack et al. 2004: 266). Boyack, Bowen and Marshall (2004: 266) claim the primary difference is that adult conferences have become more victim-centered with a secondary difference being that the process has become voluntary for both victim and offender as compared to restorative approaches with youth where youth are required by law to attend.

Some jurisdictions have extended the use of restorative justice to serious and violent crimes. Due to the lack of studies devoted specifically to sexual offences, I offer, first, a brief overview of innovative ways in which restorative justice processes have been adapted to work with the most insidious of crimes. It is important to remember that these programs are few and I in no way intend to generalize them towards the aim of this 88 thesis; however, I do feel it is important to include examples of the diverse nature of restorative justice processes, if only to illuminate the possibilities. In the following section, I briefly examine Roberts (1995) evaluation of the Victim Offender Mediation

Program (VOMP) in Langley, British Columbia and Rugge, Bonta and Wallace-

Capretta‟s (2005) evaluation of the Collaborative Justice Project in the Ottawa area, both of which included sexual offences. I also offer a brief overview of Umbreit, Vos, Coates and Armour‟s (2006) research, the first multi-side study in the U.S, involving VOM offered to surviving victims of homicide.

Victim Offender Mediation Program

Roberts (1995: i) evaluation of the Victim Offender Mediation Program (VOMP) offered by the Fraser Region Community Justice Initiatives Association (FRCJIA) in

Langley, British Columbia shows this program applies VOM to very serious crimes, including armed robbery, aggravated sexual assault, serial rape, and murder . The VOMP program aims to empower those affected by serious crime and reduce levels of fear and anxiety through addressing issues around the crime, including the offender‟s eventual release into the community (Roberts 1995: iii). The meeting is not necessarily face-to- face and both offenders and victims are screened prior to meeting in order to determine suitability (Roberts 1995: iii). The accepted cases for this study were comprised as follows: 46% sexual assault, 18% murder, 23% armed robbery, 13% criminal negligence causing death/robbery-related offences (Roberts 1995: iv). In 56% of the cases, the victim initiated contact and in 44% contact was instigated by the offender (Roberts 1995: iv). It is important to note that in 56% of the cases there had been a prior relationship between the victim and the offender (Roberts 1995: iv). Roberts (1995: v) notes that there 89 was “unanimous support” for the program from victims and offenders – “support” indicating they “found considerable specific and overall value in the program, felt it was ethically run, and would not hesitate to recommend it to others”.

Collaborative Justice Project

The Collaborative Justice Project (CJP), a demonstration project in the Ottawa area, used a restorative-based approach as a “parallel” to the conventional system at the pre- sentence stage for cases involving “serious crime”, defined as those in which the offender was facing a significant term of imprisonment (Rugge et al. 2005: 1, 4 & 15). Included offences were: offences against the person (70.8%), property crimes (20%), and Criminal

Code traffic-based offences (9.2%) (Rugge et al. 2005: 15). The most serious of the included index offences were robbery (26.2%), assault or assault causing bodily harm

(26.2%), dangerous driving or impaired driving causing bodily harm or death (21.5%) and sexual offences (3.1%) (Rugge et al. 2005: 15). Funded by Public Safety and

Emergency Preparedness Canada, Justice Canada, Correctional Services Canada, the

National Crime Prevention Centre, and the Trillium Foundation, the criteria for acceptance into this program are as follows: 1) the crime was serious in nature, 2) at least one victim desired assistance, and 3) the accused had taken responsibility by entering a guilty plea and indicating his/her intention to make amends (Rugge et al. 2005: 1-4).

Cases were referred to the program by Judges, Crown‟s, defence counsel, probation, and/or the offender him/herself (Rugge et al. 2005: 4). If accepted for the CJP program, the court adjourned the case while the CJP process was undertaken (Rugge et al. 2005:

4). Afterwards, a report submitted to the court showed either a reparation plan in place or that the process had concluded (Rugge et al. 2005: 4). In essence, the case was “removed 90 temporarily” from the court system and placed on a “parallel restorative track” and then returned to the conventional system for sentencing with any reparative outcomes to be taken into consideration (Rugge et al. 2005: 4).

Victims in the CJP study indicated the needs they wanted addressed were as follows: to obtain information (43.2%), to address the offenders needs/rehabilitation

(31.1%), to tell the offender how the crime had affected them (23.0%), to get an apology and/or have the offender make reparation (20.3%), to be actively involved (16.2%), to determine the degree of offender‟s remorse/truthfulness for themselves (12.2%), financial compensation (8.1%), emotional support (6.8%), and closure (4.1%), with many victims stating more than one need (Rugge et al. 2005: 17). Post-program interviews suggest

91.1% of victims needs were met through the CJP process with 24.6% claiming they had gained a sense of healing or closure, 22.8% had been allowed to tell their story, 15.8% had “viewed offender accountability”, 14.0% had received support, 8.8% were pleased to have been involved in the offender‟s outcome, and 5.3% “mentioned the apology they received from the offender” (Rugge et al. 2005: 17). Twelve victims, who reported not having their needs met, cited the need for facilitators to receive additional training and the desire for a psychologist to be present in the session (Rugge et al. 2005: 17). Three victim-participants, who indicated their needs had been met, felt there should have been additional support available to them, while a further three felt the process was “hindered” by scheduling problems (Rugge et al. 2005: 17). The results of this study show that the goal of applying a restorative-based approach to serious crimes at the pre-sentence stage is “attainable” with support from conventional criminal justice system players, Crown‟s, defence counsel, and Judges (Rugge et al. 2005: 42). 91

Mediated Dialogue and Homicide

Umbreit, Vos, Coates, and Armour (2006: 27) report on a 5-year long study of mediated dialogue involving victims of “severe violence including homicide”, which they claim was difficult to envision during the early years of VOM. “(I)t was thought that victims of such great injury, or survivors of victims who had been killed, would not wish to have face-to-face meetings with the perpetrators of such serious harm” (Umbreit et al.

2006: 30). Victim‟s wishes served as the impetus for restorative justice to extend to such serious crimes and, in the process, VOM adapted to accommodate their needs (Umbreit et al. 2006: 30). In the cases described in their study, Umbreit et al. (2006: 30) found that changes were necessary in order to adapt VOM to these serious cases, including allowing more time between the criminal event and the meeting, which, in turn, allowed for intense preparation of both victim and offender (from months to over a year) and more advanced training for facilitators. Requests were initiated by victims; however, offender participation was strictly voluntary (Umbreit et al. 2006: 32). In the majority of cases in this study, the offender had been convicted and sentenced; therefore, the dialogues most often took place in the institutions in which the offenders were incarcerated (Umbreit et al. 2006: 30). Umbreit et al. (2006: 45) conclude that victims, while realizing this service is not something all victims would want, believe it should be “easily accessible” at relatively little cost for those victims who do wish to meet with an offender and, while most agreed the offenders participation should be voluntary, a minority of victims felt the offender should be required to meet if the victim so desired. Most victims appreciated the length of time spent in preparation and its contribution to their healing (Umbreit et al.

2006: 45). 92

Restorative Justice and Sexual Violence

A note regarding terminology is necessary before I move into an in-depth discussion. While this thesis aims to focus on the use for restorative justice for sexual assault, various classifications demand attention. Sexual assault can be classified as

“stranger rape”, “date/acquaintance rape” or “spousal rape” (Allison & Wrightsman

1993). “Stranger rape” indicates the offender was completely unknown to the victim or was someone she had met immediately prior to the incident (Clark & Lewis 1977: 72).

Stranger rape can be committed by a single perpetrator or a group of perpetrators (Allison

& Wrightsman 1993: 46). Date and/or acquaintance rape indicates the victim did not know the perpetrator very well, but had met or had knowledge of him prior to the time of the incident (Clark & Lewis 1977: 72). Clark & Lewis (1977: 72) also use the category

“known” to indicate the victim knew the offender well prior to the incident, thereby encompassing a wide variety of possibilities, including intra-familial sexual violence.

Spousal rape, as the name indicates, refers to a distinct relationship between the perpetrator and the victim, which until rather recently had been exempt from classification as rape (Allison & Wrightsman 1993: 85). The marital rape exemption has been abolished in Canada (Allison & Wrightsman 1993: 89-90).

These classifications are important because the literature on the use of restorative justice for sexual offences distinguishes between certain types of sexual violence and the type of rape/sexual assault often denotes the type and degree of violence involved.

Allison & Wrightsman (1993: 58) state that stranger rapes are characterized by a greater degree of violence and aggression, often involving threats, hitting, slapping, and/or a weapon. In these cases, the victim is more likely to place responsibility on the perpetrator 93 and/or scream for help (Allison & Wrightsman 1993: 58). The nature of sexual violence differs in cases where the victim and offender are acquainted, employing a very different form of power and control. Allison & Wrightsman (1993: 65) claim acquaintance rapes are more likely to involve “subtle” methods of coercion, including verbal manipulation where the perpetrator might coerce the victim by threatening to end the relationship if she does not engage in sexual relations with him. Further, Allison & Wrightsman (1993: 61) note that the vast majority of victims of sexual assault know the perpetrator. Status of

Women Canada (2000) reports that, in 33% of cases involving female victims over the age of 18, the perpetrator was a friend or casual acquaintance; in 25%, the perpetrator was a family member (including spouse); and in only 26% the perpetrator was a complete stranger. In cases of sexual assault perpetrated on girls under 12, the statistics are even more alarming, with the perpetrator being a family member in 44% of cases and a casual acquaintance in 35% of cases (Status of Women Canada 2000).

This information becomes increasingly important to a discussion of where and when restorative justice might be applied. Hopkins and Koss (2005) believe restorative justice might be best and most safely applied in cases of date/acquaintance rape and non- penetration offences. Others believe restorative justice may be especially well-suited to deal with intra-familial sexual violence, especially in cases where the victim and offender wish to continue a relationship (Daly 2002: 79; McAlinden 2005: 388). Other factors that potentially affect the viability of restorative justice to handle sexual offences include the risk assessment and age of the perpetrator. McAlinden (2005: 388) suggests restorative justice might not be appropriate for all sex offenders, especially those in the high-risk category, but that low- to medium- risk offenders, especially in cases of intra-familial 94 sexual abuse, might benefit from a restorative approach. Daly (2002: 83) suggests the age of the offender might be a more pertinent factor as a youth‟s behaviour is not as

“entrenched”, allowing for early intervention with the possibility of deterrence. These scenarios will be discussed in greater detail below.

Existing literature on the use of restorative justice for sexual violence can thus be divided into two distinct categories: 1) those cases involving isolated incidents of sexual violence where the perpetrator and victim are complete strangers, and 2) ongoing, intimate violence, most often understood as domestic violence but also encompassing intra-familial sexual offending often characterized by repeated offending. As this thesis attempts to look in particular at youth sexual offending, I offer youth who commit sexual offences as a third category through which to explore the use of restorative justice.

Finally, I include an example of a post-incarceration restorative approach to reintegrating sexual offenders into the community. It must be noted that some of the literature conflates the categories by using all-encompassing terms such as gendered violence, intimate violence, sexual violence, sexualized violence, or gendered harms. To avoid confusion, I use the terms sexual offences/offending and sexual violence to indicate the wide range of possible sexual offences. When necessary, I will specify whether the literature is referring to one particular type of sexual offending. As a side note, it is important to keep in mind that the moratorium in Nova Scotia is inclusive of all types of sexual and/or partner violence.

In the published literature specifically relating to the use of restorative justice for sexual offences, there is a great deal of debate and discussion over the types of cases in which a restorative approach is most likely to be beneficial (Hudson 2002: 616). Curtis- 95

Fawley & Daly (2005: 616) note that the conventional criminal justice system is

“unlikely to be an effective forum for addressing violence between intimates who will be in continuing relationships”. The relationships in question include those between husband and wife, parent and child, and a myriad of other partner/ partner or child/ adult situations. Daly (2002: 79) cites Wallace & Doig (1999) as claiming that restorative processes might be best applied in cases where there has been a past relationship between victim and offender and/or where there is the possibility that the relationship will extend into the future. I begin by exploring the use of restorative justice for ongoing sexual violence in domestic violence situations between adults and then in cases involving child sexual abuse.

Domestic/Intimate Violence

The use of restorative justice for domestic violence receives, perhaps, the most severe criticism. There are “significant differences” in the type, severity, and frequency of violence used in domestic violence cases (Busch 2002: 230), such that some domestic violence situations might or might not include sexual violence. These differences compound issues such as safety and power imbalance in a restorative-type setting (Busch

2002; 231). According to Busch (2002: 228-230), there are “grave risks” associated with generalizing too broadly the potential for restorative justice to handle relationship conflicts, thus it must not be automatically assumed that all are fodder for restorative justice practice or that none are appropriate. Hargovan (2005: 55) argues for a case-by- case assessment whereby the focus is on the “suitability of the participants” rather than a specific type of crime. Published literature in this area comes closest to closing the door altogether (Hooper & Busch 1996; Goel 2000; Cameron 2006). It is in this domain that 96 issues of safety and autonomy are most prevalent (Martin 1996; Busch 2002; Stubbs

2002; Cameron 2006).

In the case of domestic violence, women tend to report the violence “as a last resort” when the violence has progressed and become so severe that their lives or their children‟s lives are in danger (Stubbs 2002: 50-51). Stubbs (2002: 51) claims punishment is less a concern at this point than safety. Abusers in domestic violence situations intimidate/control their victims in subtle ways that are invisible to others; therefore, the need is critical for facilitators of restorative-based approaches to be exceptionally skilled at recognizing the dynamics in abuse relationship (Busch 2002: 229; Curtis-Fawley &

Daly 2005: 624). Busch (2002: 229) suggests that anyone facilitating restorative sessions involving domestic violence should be “highly skilled” in the dynamics of domestic violence, in lethality risk assessment, and in screening techniques that allow them to recognize warning signs of future violence, with initial training to be followed by yearly

“up-skilling requirements”. Stubbs (2002: 57) believes that for domestic violence situations to be handled via restorative justice, a face-to-face meeting must not be a requirement. Yet, Hooper & Busch (1996: 4) have noted that research shows indirect methods, such as shuttle mediation, can be time-consuming and less effective than a face- to-face meeting of victim and offender. Some feel that, in cases involving domestic violence, there should never be an option of dropping charges or orders of protection in exchange for an admission of guilt and participation (Stubbs 2002: 57). The necessity of having restorative justice integrated within the conventional system for some types of crimes becomes obvious. 97

Women who are victims of intimate violence suffer consequences whether or not they report the problem to authorities. Aside from the damaging effects of the actual physical, psychological, sexual and/or emotional violence, possible consequences of reporting their husbands/partners include: reduction/loss of income, loss of custody of children, stigmatization, and retaliation by family/friends of the abuser (Gaarder &

Presser 2006: 484). There are some who believe intimate violence, especially when the victim and offender wish to continue a relationship, is an appropriate and beneficial place to employ restorative justice (Daly 2002 citing Wallace & Doig 1999; McAlinden 2005:

388). Yet, Cameron (2006: 59) calls for a moratorium on all “new” restorative programs for intimate violence as she believes that in the absence of evidence of safety and effectiveness, we are “gambling with the lives of Canadian women”. Still, Cameron

(2006: 59) does not close the door, stating that established programs offer enough data to re-analyze so that research can continue without endangering the lives of more women.

One noteworthy example of a restorative process aimed at family violence is the

Pennell/Burford model of Family Group Decision Making.

Family Group Decision Making

Family Group Decision Making (FGDM), is an initiative begun by Joan Pennell and Gale Burford in Newfoundland/Labrador, which has since ceased due to lack of funding. The Pennell/Burford model is considered exemplary (Braithwaite & Strang

2002; Busch 2002; Stubbs 2002; Daly & Stubbs 2006). Based on the idea that “people seek nourishment, security, and a sense of belonging within their families”, the

Pennell/Burford model of FGDM aimed to include all family members in an attempt to make decisions while simultaneously providing support and protection (Pennell & 98

Burford 1994: 1-2). This project was originally intended to address issues of child welfare, but was extended to families with a history of intimate violence (Burford,

Pennell & MacLeod 1999: 278; Cameron 2006: 59).

Daly & Stubbs (2006: 19) claim the FGDM model was geared towards the specific dynamics of family violence in ways that the standard restorative process/program is not.

Pennell & Burford (1994: 2) based their model, in part, on the New Zealand conferencing model along with Canadian Aboriginal approaches to family violence and key concepts such as reintegrative shaming, family preservation strategies, and community policing.

The project was piloted in three areas: Nain, an Inuit community; Port au Port Peninsula, a rural community; and St. John‟s, the capital city and, therefore, an urban setting

(Pennell & Burford 1994: 2). Funding was provided under the federal Family Violence

Initiative with input from the Department of Health, the Department of Justice, the

Solicitor General, and Memorial University (Pennell & Burford 1994: 2). The project began in September 1993 and continued until 1995 when funding stopped (Pennell &

Burford 1994: 3).

The FGDM project was not mediation or diversion from court (Pennell & Burford

1994: 2; Cameron 2006: 59). In fact, criminal charges could be laid even while the conference addressed the deeper issues involved (Cameron 2006: 59). The project brought together an impressive group of professionals to deal with cases of child and intimate abuse/neglect including: women‟s organizations, child and youth advocates, offender programs, government departments, academic researchers, cultural organizations, police, and correctional services (Pennell & Burford 1994: 2; Burford et al.

1999: 278). Safety was provided through the expertise of site coordinators who had 99 worked extensively in the community to end violence and through training provided to coordinators, community participants, and government representatives (Burford et al.

1999: 279). A provincial committee was put in place along with local advisory committees and either a community panel to advise the coordinator or a professional consultant (Burford et al. 1999: 278-279).

A total of 37 conferences aided 32 families (some sessions re-convened) making the total number of participants 472 (Burford et al. 1999: 278). Resources were considered the key to helping families and providing emotional support and protection throughout the process (Burford et al. 1999: 279). The conference process was used to mobilize resources and a strong commitment to investing resources from the beginning, along with careful planning, consultation, and selection of participants, contributed to its success (Stubbs 2002: 55). The results were overwhelmingly positive and included an increase in survivor empowerment and a reduction in recidivism (Cameron 2006: 59).

The Pennell/Burford model found a “marked” reduction in the abuse/neglect of children and the abuse of mothers/partners after the intervention (Braithwaite & Strang 2002: 3).

In the year following the study, incidents of abuse were cut in half when compared to the year before (Braithwaite & Strang 2002: 3).

The Pennell/Burford model was based on a woman-centered feminist praxis, was well-funded, well-resourced, and mandated incarceration for offenders who violated safety conditions (Cameron 2006: 59). Burford et al. (1999: 282) claim the strengths of the model include: that abuse is revealed, the abuser is shamed in such a way that safeguards are put in place, the family is empowered, relationships between the family members and professionals who can offer help are formed, and access to resources is put 100 in place. Limitations were also noted. The Pennell/Burford model of conferencing requires a “substantial commitment to community development”, facilitators who are well-versed in communication skills, and a great deal of “interdisciplinary collaboration” that will most likely challenge the way in which professional agencies and administrators of service delivery systems work (Burford et al. 1999: 283). Nevertheless, Busch (2002:

224) claims the work of Pennell/Burford, if utilized in tandem with conventional justice system safeguards, makes it possible to “envision a hybrid system appropriately incorporating restorative justice processes as a final step in a limited number of domestic violence cases”. The FGDM study is considered “statistically persuasive” offering empirical evidence that points to the possibility that restorative justice may have merit in cases of family violence (Braithwaite & Strang 2002: 4). As Daly (2002: 77) notes, it is

“crucial” to remember that gendered harms are diverse in nature and some may be more appropriate for a restorative-based approach than others. Busch (2002: 246-247) considers it unfortunate that the FGDM was halted, due to lack of funding, as this program showed that there may be some domestic violence cases for which restorative processes are beneficial, especially in later stages when safety issues have been resolved and when there are other measures in place to ensure safety and autonomy of the victim.

This program highlights the need for government and community to work together to provide an integrated option for victims of violence (Busch 2002: 247).

Child Sexual Abuse

The use of restorative justice for cases of child sexual abuse raises further questions. Curtis-Fawley and Daly (2005: 616) claim the conventional criminal justice system is inept at meeting the specific needs and capacities of children. McAlinden 101

(2006) believes restorative justice can be extended to child sexual abuse in some cases and offers much to think about. Taking into account that child victims of sexual abuse are most often abused by someone known to them (between 80 and 98 percent) and that the conventional system is “limited” in its ability to handle these cases, McAlinden (2006:

300) argues restorative justice may offer potential “in carefully managed contexts” as a

“more holistic ... more meaningful, progressive, and ultimately more effective response” to the problem of child sexual abuse. McAlinden (2006: 303-306) defends her position by stating that restorative justice does not, in fact, minimize, trivialize, or decriminalize sexual offences but taps into more “potent agents” to denounce such behaviour – the abuser‟s family, friends, and community. She believes restorative justice holds the potential to “engage the wider community and challenge community norms and values about what is acceptable behavior and to make sure that deviant behavior is something which is strongly disapproved of” (McAlinden 2006: 303). Further, McAlinden (2006:

30-304) states that restorative and reintegrative programs can “help break cycles of abuse” by encouraging the reporting and treatment of sexual offending behaviour if parents and other relatives who abuse children are able to avoid the stigmatization of a criminal record.

McAlinden (2006: 304) argues that power imbalances are inherent in any type of crime where there is a victim and an offender and that conventional criminal justice with its focus on punishment actually “reproduce[s]” the power relations, whereas restorative justice remedies this imbalance by “focusing on the empowerment of victims”. It is important to remember that the definition I use of empowerment is one that encourages access to resources (Sawin & Zehr 2007: 48). McAlinden (2006: 305) believes victims 102 stand to gain from restorative processes that offer “constructive rather than penal solutions”. Implicit in conventional criminal justice system responses to such crimes is that the relationship has broken down and no further contact is desired; however, in some cases of domestic violence or sexual abuse of children, the victim may wish to continue a relationship. In such cases, McAlinden (2006: 305) argues that friends and family of offenders may be “equally well if not better placed than professionals to prevent the recurrence of abuse and to play a role in monitoring the offender‟s behaviour and the victim‟s safety”.

Finally, McAlinden (2006 305-306) believes the conventional criminal justice system could “stand behind restorative justice procedures as a guarantor of rights” that would prevent vigilantism and act as a system of checks and balances to ensure the rights of both victim and offender are upheld. McAlinden (2006: 306-307) qualifies her argument by stating restorative justice and the conventional justice system should work

“in tandem” offering an option of diversion from criminal prosecution if the offender agrees to undergo treatment and/or as a post-incarceration process (which I discuss in greater detail below) in cases where participation of both victim and offender are voluntary. In this way, McAlinden (2006: 306) sees restorative justice linked closely to retribution. While she does not argue that restorative justice is equally suitable for all sexual offenders, she believes they “may provide an effective alternative for low-to- middle risk offenders when operated on a voluntary basis” (McAlinden 2005: 388).

Adult Victims of Child Abuse

Debate over the use of restorative justice for sexual offences is not limited to Nova

Scotia. While New Zealand and South Australia use restorative justice on a regular basis 103 for youth, extending the process to adults has been “cautious” and sexual offences are

“generally excluded” (Jülich 2006: 125). Nevertheless, a study by Jülich (2006: 127) aims to “move the debate beyond speculation” by reporting results of her study of adult survivors of sexual abuse. All participants in this study had been abused as children by someone known to them, from family to close friends and/or neighbours and, with the exception of one, the abuse continued over a period of time (Jülich 2006: 127). All participants had reported the incident prior to participation in the study and all were undergoing counselling (Jülich 2006: 128). Jülich (2006: 129) reports that the “common theme” of all participants is the need to “tell their story in a safe forum” and that those who had actually reported the abuse to police were under the impression reporting would give them this opportunity. The reality was that some cases never did proceed to trial and victims were not given the opportunity they desired (Jülich 2006: 129).

Gustafson (2005) reveals the experience of one man, Anthony, who was sexually abused as a child and whose story mirrors those related in Jülich‟s (2006) study. As an adult, Anthony summoned the strength to lay charges and the perpetrator was sentenced to prison. Anthony continued to see a psychologist, who suggested he consider a victim- offender mediation through the Fraser Region Community Justice Initiatives Association

(FRCJIA) in Langley, British Columbia, a program “designed for use in crimes of severe violence” (Gustafson 2005: 193). Post traumatic stress disorder (PTSD) assessments done prior to the VOM and afterward show a remarkable change. Other participants in the same program, and their therapists, have noted that the change is “profound with respect to their experiences with the number, frequency and intensity of the symptoms”

(Gustafson 2005: 213). 104

Prevalent in Jülich‟s (2006) study were ideas of accountability and validation extending to bystanders, defined as family members or close friends who may have known about the abuse but for some reason chose not to intervene (Jülich 2006 128). In many cases, victims wanted the bystanders of the abuse to “witness an offender assuming responsibility and accountability for his or her actions” (Jülich 2006: 129). This is an understandable need as, from what is known about sexual offenders, there is a tendency to minimize and deny their behaviour (Scully & Marolla 1984). Jülich (2006: 131) reports participants related the need for justice, involving needing to have their story heard and acknowledgement of right and wrong. High on the list of priorities for participants was the need for relationships to be transformed in order that they could

“coexist with offenders and bystanders in their shared community” (Jülich 2006: 131).

Participants concerns indicated that some were “sceptical” of apology while others did not see restorative justice as victim-centered (Jülich 2006: 130 & 134).

Date/Acquaintance Rape

Among those who debate the appropriate use of restorative justice for cases involving sexual offences, the Responsibility and Equity for Sexual Transgressions

Offering a Restorative Experience (RESTORE) program operating out of Pima County,

Arizona, is a demonstration/evaluation pilot program implemented by the Southern

Arizona Center Against Sexual Assault, Pima County Attorney‟s Office, University of

Arizona College of Public Health, and the Washington and Lee School of Law and funded jointly by the U.S. Centers for Disease Control and Prevention and the Tucson

Police Department (Koss et al. 2003: 325; University of Arizona 2009). This program is an innovative and, from all appearances, a well-thought out attempt at incorporating 105 restorative-based approaches in cases of date and acquaintance rape “where force did not exceed that necessary to compel unwanted sex” and non-penetration sexual offences, such as peeping and indecent exposure (Hopkins & Koss 2005: 697). The program bases its decision to limit itself to date/acquaintance rape and non-penetration offences on the assumption that these offences pose the fewest “theoretical risks”, as enumerated in the scholarly literature, but “the greatest likelihood of success” (Hopkins & Koss 2005: 715-

716).

Hopkins and Koss (2005: 695) argue that conventional criminal rape trials hinge on notions of consent that lead to heated debate over who is telling the truth, the victim or the offender. While rapists report that they have engaged in multiple acts of sexual deviance prior to being reported, including non-penetration sexual acts, such non- penetration offences under Arizona law are subject to the “lowest level of criminal culpability” and are often settled without a fine or mandated treatment and generally the offender is put on a one-year supervised probation (Koss et al. 2003: 322). Hopkins and

Koss (2005: 696) believe restorative justice would increase the number of offenders held accountable, promote victim recovery and community involvement in controlling crime, while also offering a better way of reintegrating offenders into the community. If restorative justice creates consequences for such types of sexual offences, where there are presently few, Hopkins and Koss (2005: 714-715) argue that this is at the least an improvement, one that may lead to deeper societal change if looked at as a “unique” crime that deserves different treatment. While it is too early to draw from this project any empirical evidence (Julich 2006: 126), Hopkins and Koss (2005: 717) believe their demonstration/evaluation program “offers the opportunity to assess whether restorative 106 justice is a safe and effective method of dealing with individual cases of violence against women”.

The argument for extending restorative justice to these specific cases hinges on ways in which date/acquaintance rape and non-penetration cases differ from ongoing domestic/intimate violence and on the need to address the less serious offences in order to encourage reporting and treatment of offenders in the hope that an increase in early detection will result in an overall decrease in incidents of sexual violence and act as an effective preventative measure. Hopkins and Koss (2005: 709-710) state that date/acquaintance rape is more likely to signal the end of a relationship, as opposed to domestic violence where continuation of the relationship may be a desired outcome; therefore, date/acquaintance rape usually means there is a much lower risk of a repeated incidents and concerns of safety are most likely to be less than domestic violence.

Further, in “established relationships” other forms of abuse, psychological and emotional, are likely to be used and for a greater length of time, further complicating the issue, whereas date/acquaintance rape is more often an isolated event (Hopkins & Koss (2005:

709-710). While there is the possibility the date/acquaintance rapist will use some version of psychological or emotional manipulation, it appears more likely that date/acquaintance rapists deny their involvement in a rape and blame the victim; however, due to the paucity of research on post-rape behaviours of date/acquaintance rapists, the RESTORE program monitors the potential for manipulation carefully (Hopkins & Koss 2005: 710).

The RESTORE program recognizes the need to assess each case on an individual basis and to screen for any ongoing emotional and physical violence (Hopkins & Koss 2005:

711). Also, the power imbalance, so often a concern of critics of restorative justice, is 107

“less entrenched” in date/acquaintance rape cases involving an isolated incident; therefore, it is more likely the outcome will more closely resemble the victim‟s actual wants and needs (Hopkins & Koss 2005: 712-713). Finally, relating to Stubbs (2002: 45) concerns that women‟s autonomy and attempts to deal with domestic violence will be

“constrained” by the existence of children fathered by the abuser, due to the nature of date/acquaintance rape where any relationship has most likely been short-term, there is significantly less chance that the union is likely to involve children of a victim/offender union; therefore, the victim is more likely to concentrate on his/her own needs (Hopkins

& Koss 2005: 713).

Cases handled by the RESTORE program are referred at the post-arrest/pre- conviction stage (Hopkins & Koss 2005: 697). Several criteria guide the process. The process is victim-driven and the survivor must be willing to participate (Hopkins & Koss

2005: 697; University of Arizona 2009). Criteria involved in determining the perpetrators acceptance into the program include: this must be a first offence using minimal force, the perpetrator must have no prior arrests and no record of domestic violence, and the perpetrator must admit to the violating act and take responsibility (Koss et al. 2003: 325;

University of Arizona 2009). The RESTORE program was developed as a collaborative effort between feminist organizations, conventional criminal justice system officials, and community leaders, who remain important players in the program, and it operates in conjunction with the local sexual assault center allowing feminist advocates “ongoing oversight and input” (Hopkins & Koss 2005: 697). Once accepted into the program, offenders undergo a psychosexual evaluation that results in a treatment plan, which includes regular monitoring of the offender for a period of 12 months (Hopkins & Koss 108

2005: 697). “Extensive” preparation is involved leading up to the actual face-to-face meeting of the survivor and his/her support persons, and the offender and his/her support persons (Hopkins & Koss 2005: 697). The meeting is facilitated by professionals and the victim is “given a full opportunity to describe what the [offender] did and the resultant harm to her and her relationships with others” (Hopkins & Koss 2005:697). The offender then “acknowledges the wrong committed and the harm done” (Hopkins & Koss 2005:

697). Following this, the support persons for the survivor and the offender are given an opportunity to tell how the incident has affected their lives (Hopkins & Koss 2005: 697).

A “redress agreement” is developed that outlines the steps the offender will take to right the wrong done to the survivor, the community support network, and the wider community (Hopkins & Koss 2005: 697). Compliance with the agreement is overseen by the Community Accountability and Reintegration Board made up of a variety of members of institutions and groups within the community (Hopkins & Koss 2005: 697).

If the offender successfully completes the terms of the agreement, charges are dismissed; if he/she fails to complete the terms of the agreement, the case is sent back to the prosecutor (Hopkins & Koss 2005: 697). A key challenge to the program involves maintaining the legal rights of all involved while avoiding further victimization/traumatization of the survivor (Hopkins & Koss 2005: 698). For some critics, such as Stubbs 2002: 57, dismissing charges in a case of domestic violence is

“unthinkable”.

The four main goals of the RESTORE program are listed on the University of

Arizona (2009) website as follows: 1) “To hold the Responsible Party (the person responsible for an act of sexual violence) accountable for the harm he/she has done to the 109

Survivor of his/her actions and to the communities they are a part of”; 2) “To provide an avenue for reintegration of a Responsible Person into their community”; 3) “To treat survivors of sexual violence with respect, validate them, and give them a safe process for face-to-face justice, empowering them to shape the resolution”; 4) To increase public safety by engaging the Survivor‟s and Responsible Person‟s social support networks to reduce recidivism” (University of Arizona 2009). Safety is ensured through several means. First, before they are accepted into the RESTORE program, offenders are informed of the rules, which preclude any contact with the survivor prior to or following the conference. No contact means the offender must not engage in walking by, driving by, telephoning, writing, or sending email either directly or through a third party to the survivor. If the survivor reports any violations to this rule, acceptance into the program will be terminated. In the actual conference, safety continues to be high priority. The conference is overseen by a trained facilitator and the case manager is also in attendance.

The actual meeting is held in a secure environment, such as a police station. Arrival times are pre-arranged with the offender and his/her support persons arriving first and the survivor and his/her support persons arriving later. Following the conference, the survivor and supports leave first, minimizing the chance of a meeting.

Literature on the use of restorative justice inevitably refers to issues regarding apology, a key tenet of restorative justice practice that seems to stem most often from the faith-based versions and may be thought of as less important where restorative justice is applied to serious and violent crimes. The RESTORE/University of Arizona (2009) website acknowledges the suggested problems of having the offender offer an apology to survivors of sexual violence and notes that this concern is most applicable to cases 110 involving domestic violence where apology can be a ploy the offending party has used to regain the trust of an abused person. It is well-documented fact that, particularly in cases of ongoing domestic violence, apology is a “tool” used to entice the victim back into the relationship and serving only to perpetuate the violence (Hopkins & Koss 2005: 711).

Hopkins and Koss (2005: 711) believe date/acquaintance rape offers much less opportunity for the abuser to engage in “external control” of the victim, due in part to the less established nature of the relationship, thus attention to conference preparation and strictly enforced rules serve to decrease the potential for harm. The RESTORE program claims victims of crimes of sexual violence, other than domestic violence, often report that what they want most from the justice process is acknowledgment of the wrong done to them. The RESTORE program does not “encourage” apology, but if either party wants to engage in apology, RESTORE asks that the offender not apologize at the conference, but that he/she wait until after completing the program, when reparations and therapeutic requirements have been fulfilled, in order to increase the chance for “genuine remorse and since apology”.

The RESTORE program certainly seems to adhere to theoretical arguments calling for certain protocol. Gaarder and Presser (2006: 486) state that in order to be acceptable, restorative justice geared towards sexual offences must allow for “careful preparation before conference” and the victim must be allowed to fully express his/her story without cross-examining her sexual history. In many instances, there has been a loud call for restorative justice and the conventional criminal justice system to work together with regard to sexual violence against women (Hudson 2002; abstract; Curtis-Fawley & Daly

2005: 619; Stubbs 2007: abstract). The RESTORE program adheres to this concept, with 111 mechanisms for returning the case to the conventional system should the offender fail to complete his/her agreement. Safety has been a key issue, especially in cases involving ongoing, intimate violence (Martin 1996: 63; Busch 2002: 224). Jülich (2006: 135) reports that New Zealand is moving forward by incorporating its own version of the

RESTORE program. It is intended to be a “carefully designed programme that will be developed through cross-collaboration of groups, supporting both victims and offenders of sexual abuse” (Jülich 2006: 135). Early efforts are aimed at sexual assault with the intention to continue discussion and collaboration in conjunction with those knowledgeable about domestic violence (Jülich 2006: 135).

Hollow Water

The Hollow Water First Nation Community Holistic Circle Healing (CHCH) began as a means of responding to incest and sexual violence, seeking to “heal intimate connections while also addressing the deeper societal issues that encourage violence as a way of life (McCold 2006: 29). CHCH attempts to remedy resulting problems in the

Aboriginal community caused by a history of cultural confrontation and colonization

(Couture et al. 2001: 10). Between 1984 and 1986, alcohol abuse and violence were prevalent and 75% of the community, including males and females, had been sexually abused; by 2000, obvious positive changes had taken place (Couture et al. 2001: 51).

Couture et al. (2001: 57-60) indicate that the community has been empowered, children are able to disclose abuse, women have become empowered, the CHCH program has contributed to an increase in resources, and traditional practices, such as sweats, fasting and Sundance, are being renewed. 112

The CHCH program is considered the “most mature healing process in Canada”

(Couture, Parker, Couture & Laboucane 2001: 1). Though sexual offences remain the primary focus of CHCH, offences that have been handled by the program include everything from break and enter to second degree murder (Couture et al. 2001: iv).

McCold (2006: 29) claims data confirms that this approach is also “a highly cost- effective response to sexual offending”. Yet, not all are convinced of its merit. Critics of this program claim it is offender-oriented, that victims are coerced into participating, and that so-called „traditional‟ values are not shared by all members of the community

(Couture et al. 2001: 1). CHCH is decidedly “spiritual” and is based on the Seven Sacred

Teachings of the Anishnabe people: courage, knowledge, respect, honesty, humility, love, and truth (Couture et al. 2001: ii & 28). Hollow Water appears to have been a success for the particular population it serves. Despite this success, I am reluctant to advise generalizing this program on a broader scope. This program was developed with the specific needs of a community ravaged by its colonial past; therefore, the process might be best noted for Aboriginal populations and each community‟s specific beliefs and needs.

Youth

It is necessary to examine more closely the specific nature of sexual offences perpetrated by youth because this domain encompasses a relatively new body of research.

The NSRJ program handles only cases involving young people between the ages of 12 and 17 who come into conflict with the law with the exception of all cases involving sexual assault/partner violence perpetrated by youth, all of which are excluded from the

NSRJ program. Should the moratorium on the use of restorative justice for these offences 113 be lifted or modified, I assume that the most likely starting point for using restorative justice for cases involving sexual assaults would entail youth. For the purpose of this thesis, “youth” will indicate those between the ages of 12 and 17, as this age group correlates with the NSRJ program and also with Matthews (1997) definition of adolescent sexual offenders as being in the 12 to 17 year old age group.

Research into the specific nature of youth sexual offending is a relatively recent area of interest. In the past, it has been commonly assumed that youth who engage in sexually deviant behaviours were not “serious offenders” but were guilty of little more than curiosity and sexual experimentation (Brayton 1996: 220). Ryan (1991: 17) notes that this denial and minimization of youth sexual offending has served to enable this group of offenders. Societal attitudes towards sexual behaviour have resulted in the punishment of children for early “genital exploration or sexual interest”, relatively little availability of reliable information on sexual practice, and an ensuing guilt relating to sexual interest – all of which have contributed to problems of sexual offending (Ryan

1991: 17). Youth have not traditionally been legally held to account for deviant sexual behaviour and, therefore, intervention and management of youth sexual offending behaviour has been impeded (Brayton 1996: 220). What has come to the fore in rather recent years is greater understanding of this situation and a realization that early non- physical sexually deviant practices, such as making obscene phone calls, voyeurism, exhibitionism, and public masturbation (Gibson 2007: 61), if not properly treated through legal and clinical intervention, are likely to increase in severity and possibly lead to an adult career in sex offending (Brayton 1996: 223; Matthews 1997; Koss et al. 2003: 321- 114

22). In fact, Gibson (2007: 63) notes that about half of adult sexual offenders began sexually offending behaviours in their youth.

Who is the youth who commits sexually deviant behaviour? As with adult perpetrators of sexual offences, the juvenile sex offender has been the subject of a great deal of stereotyping. First, it should be noted that, according to Matthews (1997), 15 to

33 % of all perpetrators of sexual offences in Canada are under 21 years of age and a survey of sexual assault centers has shown that as high as 56% of perpetrators are under

18 (Brayton 1996: 223). Further, a study of 561 male sexual offenders found that 53.6% had engaged in at least one instance of deviant sexual behaviour before the age of 18

(Brayton 1996: 223). This information highlights the need to be more aware of juvenile sexual behaviour because deviance is often indicative of juvenile sexual offending

(Gibson 2007: 63).

Ryan (1991: 5) reports that the average age the juvenile begins sexually offending is 14. Brayton (1996: 223) found the average age of the onset of deviant sexual interest was 12.6 years of age, with 3% of offenders beginning as early as 8 and 25.7% beginning at 14. Kong, Johnson, Beattie and Cardillo (2003: 1-7) support these findings, noting that the rates of sexual offending are highest among male teens with a distinct spike in offending behaviour occurring between the ages of thirteen and sixteen. Research involving identified juvenile male sexual offenders shows the youth in question is most likely a white male who lives with two parents at the time of the offense (Ryan 1991: 5).

In about one third of cases, the young perpetrator has been previously convicted of

“nonsexual delinquent behaviour” and, while it is unlikely he has been previously charged with a sexual offence, it is quite likely he has committed a sexual offence prior to 115 his first conviction (Ryan 1991: 5). The majority of young sexual offenders attend school but they typically obtain less than average marks, have learning disabilities or special needs, and are known for truancy and/or behaviour problems (Ryan 1991: 6). They may also have attachment difficulties, low self-esteem, be socially incompetent, have little understanding of sexual behaviour, have cognitive distortion problems, and/or lack empathy (Gibson 2007: 64). It is very likely that young sexual offenders have, themselves, been the victims of some form of abuse – emotional, physical or sexual

(Brayton 1996: 220) but it is not always the case (Ryan 1991: 5). Juveniles who commit sexual offences come from all racial/ethnic, religious, and geographical groups and are represented in virtually every school-based peer group – from the social outcast to the honour role student to the star athlete (Ryan 1991: 6). A high number (about 65%) of juveniles who commit sexual offences manifest paraphilia with no other observable personality or behaviour traits (Ryan 1991: 6; Gibson 2007: 61). Paraphilia is defined as

“a deviation associated with particular sexual arousal patterns or acts...[characterized by] recurrent intense sexual urges and sexually arousing fantasies generally involving either: nonhuman objects, the suffering or humiliation of oneself or one‟s partner, or children or other non-consenting persons” (Brayton 1996: 225). Paraphilia is a diagnosis that is most often reserved for adults (Gibson 2007: 62). Less than 5% suffer a mental illness or psychosis; however, the juvenile sexual offender may be prone to a variety of emotional- behavioural disorders and attention-deficit disorders (Ryan 1991: 6). What seems of great importance here is that, despite a wide range of exhibited behaviours, the juvenile sexual offender usually engages in non-physical offences before graduating to more serious and 116 physical forms of offending (Ryan 1991: 7; Gibson 2007: 61). If caught early, perhaps more serious physical offences can be prevented.

It is commonly believed that the juvenile sexual offender chooses victims who are vulnerable and over whom he has some sort of power or control (Gibson 2007: 62-65).

Lane (1991: 109) claims that being in control is a compensatory behaviour that decreases the offenders anxiety and often arises out of feelings of helplessness and lack of control over an event that has occurred prior to committing the offence, including abandonment, physical or sexual abuse, rejection, humiliation, loss, alienation, or betrayal. The victim of the juvenile sexual offender is most often a younger female who is not related by either blood or marriage (Ryan 1991: 5; Gibson 2007: 65). In almost 75% of cases, the perpetrator of the offence is a neighbour or friend of the victim (Gibson 2007: 63).

Gibson (2007: 63) notes that in 40% of sexual assaults perpetrated against children younger than 6 and 39% of those directed against children between 6 and 11, the perpetrator is a juvenile. The offence typically occurs in the home of either the victim or the offender, but can also take place at some other location in the neighbourhood, on a date, or, less often, the juvenile sexual offender might stalk his victim (Ryan: 1991: 6).

The offence usually involves genital touching with penetration occurring in over 60% of cases (Ryan 1991: 5). The juvenile sexual offender uses a combination of coercion and/or force “sufficient enough to overcome the victim‟s resistance” (Ryan 1991: 5). In many cases, the perpetrator repeatedly abuses the same victim over a period of months or even years before he is caught (Ryan 1991: 7). Juvenile perpetrators of sexual offences report on average having committed 7 sexual offences prior to being caught (Ryan 1991: 7;

Brayton 1996: 223). Juvenile sexual offending is vastly under-reported – especially when 117 the victim and perpetrator are family members or friends – and the younger the offender, the less likely the offence will be reported, in part because of the belief that it was not indicative of serious problems (Gibson 2007:63). Brayton (1996: 220) points out that, without intervention, juvenile perpetrators of sexual assault become “trapped” in a cycle of sexual offending.

The question then becomes what form should this intervention take? According to some, it is imperative that youth who commit sexual offences be held to account for their behaviour through judicial intervention aimed at mandating treatment (Heinz, Ryan &

Bengis 1991: 192; Brayton 1996: 220; Gibson 2007: 72); however, Brayton (1996: 221 ) notes that legal intervention is not always the best intervention. Gibson (2007: 72) believes what is needed is a “multisystemic treatment program” which integrates key players in the offenders life, including his family, social services, school staff, therapists, and juvenile justice personnel, into a collaborative unit, and stresses that juvenile sexual offenders are unlikely to comply with treatment if significant consequences for failure to attend are not present. Heinz, Ryan, and Bengis (1991: 191) claim there is “virtual unanimity” among experts in the area of sexual offending that juveniles who commit sexual offences need specialized evaluation and treatment. The chief goal should be to prevent further harm to victims and the “treatment of choice” is therapy designed for use with groups of juvenile sexual offenders (Heinz et al. 1991: 192). If offenders are caught early enough, especially before their behaviour has escalated to include the use of violence, an outpatient setting may be preferable, with success more likely if the family of the offender also engages in treatment (Heinz et al., 1991: 192). This makes a great deal of sense because juvenile sexual offenders often come from families that are 118 dysfunctional, that are devoid of parental sensitivity, where there has been some form of abuse, where the mother is known for substance abuse, where there has been early exposure to hard-core pornography, or where there is a great deal of deception within the family, such as secrets, lying, and myths (Gibson 2007: 64). For juveniles with a “lengthy offending history” involving violent sexual assault, a more secure setting, such as community-based residential programs or secure sites appears necessary (Heinz et al.,

1991: 192).

Youth, Restorative Justice, and Sexual Offending

As noted, restorative justice is most commonly accepted as a diversionary tactic in cases involving youth who have committed crimes, mostly in connection with less serious offending. Despite this common acceptance, a few programs have encompassed sexual offences committed by youth. The Sparwood Youth Assistance Program in British

Columbia, Canada began in January of 1995 and handles “minor” sexual assault (Purdy and Bouwman 1997: 267). Criteria for acceptance into the Sparwood program include: that the youth resides in Sparwood or the surrounding area, he/she must admit responsibility, there must not be concerns regarding public protection, and the offence must not be of such a serious nature that diversion would “bring the administration of justice into disrepute” (Purdy & Bouwman 1997: 267). Unfortunately, I have been unable to find empirical evidence as to the success of this particular program.

Daly (2002: 85) states that she can “neither fully endorse nor disparage restorative justice processes in responding to sexualized violence or other gendered harms” and advises against too quick a judgement. Her continued work on the use of restorative justice for sexual offences merits considerable attention. Daly‟s (2006) study is the only 119 empirical study that examines the use of restorative justice for youth involved in sexual offences. Daly (2006) aims to offer empirical evidence to critics of restorative justice who maintain that court is the best environment in which to deal with youth who commit sexual assault. It must be duly noted that this study takes into account one particular offence, sexual assault, one specific group of offenders, youth, and one type of restorative justice process, conferencing, (Daly 2006: 334); therefore, while it offers the first empirical data of its kind, it must not be generalized too broadly. Daly‟s (2006) study does, however, correlate quite nicely with the NSRJ program in several ways. First, her study shows that restorative justice is more than merely diversion and can occur at one of several points in the criminal justice system – from diversion to post-incarceration (Daly

2006: 335). Second, the NSRJ program allows for the use of the particular process studied in Daly (2006), conferencing (NS Dept. of Justice 1998). Third, the core elements of restorative justice practice listed by Daly (2006: 335) are virtually identical to the

NSRJ program, where the offender must have admitted responsibility for the offence, the session typically involved a face-to-face meeting between victim (or a representative of the victim), offender, support persons, and relevant community members, though it should be noted that variations to the face-to-face meeting are being posited (Raye &

Roberts 2007). Fourth, as per the NSRJ program, Daly‟s (2006) study claims the aim of the restorative process is to hold offenders accountable and make up for their wrongdoing, to deter them from future offending behaviour, and to reintegrate the young person back into the community. For the victim, the goal is to allow them a voice and an opportunity to participate in a process that includes their needs and allows ample room for questions or comments they have to offer (Daly 2006: 336). Daly (2006: 336) notes 120 that reconciliation and recovery, while essential in the eyes of some restorative justice advocates, are not always a goal. These are entirely consistent with both the aims of the

NSRJ program and the YCJA governing youth crime.

The SAAS study compares court and restorative conference handling of cases of youth sexual assault (Daly 2006: 339). Dalys‟ (2006) sampling frame consists of all youth cases between January 1995 and July 2001 in South Australia having at least one sexual offence at the beginning of the criminal proceedings, which were finalized by formal police caution, youth court, or conference (Daly 2006: 339). In total, her work covers 365 youth connected to 385 cases, of which 59% (226) were sent to court, 31%

(118) went to conference, and 10% (41) were dealt with by formal caution (Daly 2006:

339). This research is limited to the information available in legal documents and does not include interviews or actual accounts (Daly 2006: 340). Interestingly, Daly (2006:

342) found that intra-familial sexual abuse was most often sent to conference (40%) rather than court (18%) or dealt with via formal caution (5%). Of the 118 conference cases, 94% were finalized by an admission of guilt, while only 51% of 226 court cases were finalized with any sexual offence proven (Daly 2006: 342). In addition, the court cases had a higher rate of attrition, took longer to finalize, and were subject to shifting jurisdiction more often (Daly 2006: 342). Interestingly enough, the court cases often started out as “more serious” than the conference cases; however, after being finalized, they were of comparable seriousness (Daly 2006: 343). Daly (2006: 344) notes that there is evidence to suggest that attrition rates for youth who are charged with sexual assault are even greater than attrition rates in adult court; however, in this particular jurisdiction, 121 the attrition rates were similar for both court and conference cases, indicating that restorative conferencing in this jurisdiction is not a “sideline practice”.

When comparing the conventional court process and restorative justice conferencing, Daly (2006: 334) finds the conference process “may be less victimizing than the court process and its penalty regime may produce more effective outcomes”.

Daly (2006: 335) claims her research offers a challenge to “victim advocates who assume that the court is a place where “strong messages are sent” about the wrong of sexual violence and shows the court‟s “limits in vindicating victims”. Again, it is impossible to generalize from one study; however, Daly‟s (2006) groundbreaking work highlights the need for further research. In particular, future research must address what Daly (2006:

336) terms a “clear mismatch” between what critics of restorative justice are concerned with and what there is evidence to support.

Undoubtedly, Daly‟s (2006) study has been the subject of questions and concerns

(See Cossins 2008). The heart of the debate over the use of restorative justice for a wide variety of sexual offences seems at odds with the intentions of those debating it. In the words of Cameron (2006: 58), the conventional criminal justice system is a “colossal failure” when dealing with crimes of sexual violence. Daly (2008: 561) defends her earlier position by clarifying that, far from pushing restorative justice as the solution to dealing with sexual violence, she believes there is “value to thinking more innovatively about responses to crime and victimization”. This reasoning is upheld by others.

McAlinden (2005: 388) claims that in the absence of other viable alternatives, we need to extend the use of restorative processes to “the most difficult of societal problems”.

Curtis-Fawley & Daly (2005: 632-633) claim we “cannot afford to take [restorative 122 justice] off the agenda” when searching for alternatives that will address the so-called failures of the conventional criminal justice system if there is a chance to hold violent men responsible. Daly (2008: 560) advocates for a “significant change agenda” composed of three key elements: “increase admissions to offending (ideally, early admission), reduce the need for fact finding (trials), and minimize the hyper stigmatization of sex offending and offenders” (italics in original). Daly (2008: 560) questions the effectiveness of the conventional criminal justice system in dealing with sexual violence and wonders if restorative justice might play a role in encouraging early admissions through diversionary conferences, where appropriate, by utilizing the authority of the conventional system as a parallel process where necessary, and/or facilitating the rehabilitation/reintegration of offenders. In turn, she suggests victims may benefit from a reduced need for trials, vindication of the incident, and an opportunity to minimize justifications and denials (Daly 2008: 564). Therefore, Daly (2008: 557) recommends that alternative justice processes be “pursued, researched and evaluated” in order to work toward a better response to crime.

The Youth Criminal Justice Act

In Canada, the Youth Criminal Justice Act (YCJA) governs youth crime. While the

1983 sexual assault legislation is geared toward adult offenders, the list of offences applies to youth who commit sexual offences (Brayton 1996: 221). The YCJA is predicated on prevention, rehabilitation and meaningful consequences for young people in conflict with the law (Doob & Cesaroni 2004: 26). The YCJA aims to “prevent crime by addressing the circumstances underlying a youth‟s offending, focusing on rehabilitating offenders, and ensuring that a young person is subject to meaningful 123 consequences for his or her offence” (Doob & Cesaroni 2004: 26). The Preamble to the

YCJA, makes it clear that the youth justice system seeks to limit the most serious interventions to the most serious crimes by using restraint in sentencing, in determining whether or not to use the formal court process in favour of diversion, and in reserving custody for only the most serious of offences and offenders (Barnhorst 2004: 233). That restraint is being used is evidenced in McFadyen (2005: 12) as she notes that conviction rates for the broad spectrum of violent crimes committed by young people has decreased in the past decade, with conviction rates for juvenile sexual offenders lower than for other types of violent crimes.

The focus of the YCJA is on holding young people accountable for their actions, based on a belief that meaningful consequences will promote rehabilitation and reintegration, thereby contributing to the long-term protection of society (Barnhorst 2004:

234; Doob and Cesaroni 2004: 26). The imposed consequences must be “proportionate to the seriousness of the offence and the degree of responsibility of the youth” indicating the appropriate degree of intervention necessary to hold the youth to account for his or her actions (Barnhorst 2004: 234). To this purpose, the YCJA allows for a variety of extrajudicial measures in order to divert the young person from court, including police warnings and cautions and restorative justice programs (Bala & Anand 2004: 253).

Sentencing under the YCJA must be the “least restrictive” sentence available in order to achieve the goal of holding the youth accountable and must be the most likely method of rehabilitating and reintegrating the offender back into society (Doob & Cesaroni 2004:

27). The YCJA includes three new sanctions which the judge can use at sentencing: attendance orders, deferred custody and supervision orders, and custody and supervision 124 orders. Attendance orders allow the judge the option of requiring the young person to attend a non-residential program; deferred custody and supervision orders allow the judge to order the youth to serve 6 months in the community if he or she follows the imposed rules of the order; custody and supervision orders under the YCJA require young people to serve two-thirds of their sentence in custody and the remaining one-third in the community (Doob & Cesaroni 2004: 28). These three options give the judge ample opportunity to deal appropriately with the juvenile sexual offender as determined by the degree to which their behaviour has escalated upon coming to the attention of the justice system.

Brayton (1996: 220) states that “(u)nderstanding the nature of sexually offending behaviour from a legal, psychological, and sociological perspective enables us to realistically examine the role of the justice system in facilitating interventions designed to help the offender alter such behaviour”. While legislation aimed at dealing with sexual offenders “comforts the public”, it does little to allow interventions that will actually work to solve the problem of sexual assault (Brayton 1996: 221). It has already been noted that acquittal rates for sexual assaults are high (Clark & Lewis 1977; Allison &

Wrightsman 1993; Hopkins & Koss 2005; McFadyen 2005). Further, for those few perpetrators of sexual assault who are actually convicted, incarceration appears to do little to affect either the individual, in terms of rehabilitation, or the deeper roots of sexual assault as a social problem (Hopkins & Koss 2005). Hopkins and Koss (2005: 694) point out that the combination of low reporting rates, low prosecution rates, and low incarceration rates, means “most offenders exit the system with no preventive measures in place”. Their research also advances the notion that criminal justice sanctions are only 125

“modestly effective” and that there is no basis on which to assume that sex offender registries and notification of community works (Hopkins & Koss, 2005: 695). Further,

Hopkins and Koss (2005: 695) claim sex offender treatment programs, moderately successful at best, deliver better results if offered in the community rather than in prison

(Hopkins and Koss 2005: 695). As early as the 1970‟s, Clarke and Lewis (1977: 197) proposed long-term group therapy as a possibly more effective measure than incarceration.

While the goals of the YCJA appear to be in line with the specific needs of youth who commit sexual offences, there are those who would warn of potential problem areas.

One key area involves risk assessment. Risk-need assessments were originally developed by criminologists and psychologists for use with adult offenders in order to aid decisions regarding the level of security needed and the intensity of treatment for a given offender

(Vandergoot 2006: 126). They have since been applied to youth. Vandergoot (2006: 140) reports that risk-need assessments of youth under the YCJA focus solely on the current offence for which the youth is being held accountable with the goal of creating a proportional sentence and no consideration of possible future offending behaviour; therefore, the designations of high-, medium-, and low-risk are based on a specific offense and may carry little real meaning in terms of a judgement of character. As pertains to youth, risk-assessment that labels youth could potentially result in more harsher punishment than the crime demands; therefore, the YCJA does not allow risk assessment, as such, to be included in pre-sentence reports (Vandergoot 2006: 140). The information in the report is left to the discretion of the person writing it and includes what information is considered relevant (Vandergoot 2006: 140). It is unlikely a youth sent to 126 restorative justice as a diversion from court would ever undergo such assessment; however, in terms of sexual offending in Nova Scotia, the case would be sent to restorative justice from one of the higher entry levels, and it is conceivable an assessment of some sort could be done. It would be imperative, at that point, that the assessment be done by someone with expertise in the area of sexual assault and that the potential for future sexual offending be noted, especially as there seems to be some discrepancies in understanding juvenile sex offenders recidivism patterns. While it has already been noted that adult sex offenders have often started their sex offending careers early in life, Gibson

(2007: 62) claims that it is a myth that most sexual offenders recidivate and do so on an escalating scale. In fact, Gibson (2007: 62) points out that studies have shown that only

5% of those who commit rape/sexual assault recidivate, with male juveniles recidivating at a slightly higher rate of between 8% and 14%. In terms of the seriousness of recidvating behaviour, Gibson (2007: 62) notes that the majority of sex offenders stick to a particular behaviour, one that they are “comfortable” with.

Gunn and Linden (1997: 170) do not believe that legislation alone can eradicate violence against women. In fact, Allison and Wrightsman (1993: 33) point out that there is a “loud call” for a multidimensional approach for dealing with sexual offenders. A very good argument can be made in favour of a multidimensional approach that specifically targets youth sexual offending in an attempt at early intervention, prevention, deterrence and reintegration. The goals of the YCJA appear able to offer ample opportunity for youth to be held accountable and to get the treatment they need in order to be integrated into society in a way that prevents further harm to society and, indeed, protects society from harm in the long-term. 127

Sex Offender Reintegration Post-Incarceration

An innovative application of a restorative-based approach to reintegrating sexual offenders deserves mention. McAlinden (2005: 373) notes that traditional forms of controlling sexual offenders do not seem to be effective. Sex offender registry and community notification, combined with the onslaught of media attention, serve only to stigmatize sex offenders and contribute to recidivism; therefore, it has been argued that a program adhering to the restorative justice notion of reintegrative shaming might do more to protect society in the long run (Cesaroni 2001; Petrunik 2002; Wilson, Huculak &

McWhinnie 2002; McAlinden 2005; Wilson, McWhinnie, Picheca, Prinzo & Cortoni

2007). Koss, Bachar and Hopkins (2003: 323) report that a study of sex offenders showed that more than 90% said notification schemes “severely limited” their attempts at re- entering the community and further evidence suggests re-arrest rates are higher in the group of offenders required to notify the community.

Circles of Support and Accountability is a restorative-based program created by the

Mennonite Central Committee in Ontario, which aids the reintegration of high-risk sex offenders into their communities after a period of incarceration (Cesaroni 2001: 85). The goal is to create a safe community by balancing the needs of the community and the needs of the released offender through regular meetings aimed at helping with daily life skills, alleviating stress, and monitoring for signs of re-offending behaviour (Cesaroni

2001; Wilson et al. 2002: 375). This program “does not seek to mediate between actual victims and offenders” (Cesaroni 2001: 87). The selection criteria for this program require the sex offender be leaving a Federal institution on warrant expiry, is assessed as high-risk to re-offend, is under intense media scrutiny, and has “little or no” support 128

(Cesaroni 2001: 88). In Canada, most offenders are given a statutory release from prison, meaning they are released into their community under “strict supervision” after serving two-thirds of their sentence; however, the Corrections and Conditional Release Act was amended in the 1990‟s to allow for consideration of holding the offender until their warrant expiry date (WED) (Wilson et al. 2007: 2). What this means is offenders held until the WED are often those who are “most in need of a gradual, supervised re-entry to the community” (Wilson et al. 2007: 2). Ensuing legislative changes have attempted to remedy the obvious problems with holding offenders until the WED, including peace bonds, long-term supervision orders, and sexual offender registries (Wilson et al. 2007:

3-4). Cesaroni (2001: 96) believes such measures, while important, might actually increase the need for programs such as the aforementioned Circle program.

This is by no means an all-inclusive list of innovative restorative justice programs; however, these examples dispel some common myths by highlighting their diversity.

These programs are by no means mainstream, but do offer food-for-thought in terms of the ways in which achieving justice and dealing with offenders has traditionally been understood. These examples also serve show that restorative justice is not merely a diversionary tactic or strictly a face-to-face meeting and that more than material restitution can be gained through the process. In order to examine attitudes of significant stakeholders about the ability of the NSRJ program to handle cases of sexual assault/partner violence, I conducted my own research. The next chapter covers the methodology I employed. 129

CHAPTER SIX: METHODS

My Interest In Restorative Justice

My interest in restorative justice began about seven years ago when an acquaintance and long-time volunteer with a restorative justice agency, suggested it might be something I would like. At that time, I had no idea what restorative justice was.

I did become a trained volunteer and have spent the past seven years as a co-facilitator in restorative justice sessions. During this time, I also returned to university. In my final undergraduate year, I was faced with making a decision on a topic for my honours thesis.

I chose restorative justice. Little did I know that my experience as a volunteer was a very small part of a worldwide movement endorsing a very different idea of justice. As my knowledge of restorative justice broadens, I am faced with diverse opinions and possibilities that I must sift carefully through. I have come to believe that there may be considerable merit in extending the use of restorative justice to a wider range of criminal activity, though to what degree I am still uncertain.

I began reading about the possibility of extending restorative justice to sexual assault/partner violence about two years ago. I realize that this is a very challenging area in which to broach alternative solutions, and also a provocative and timely discussion to have in my home province. I have wondered endlessly how I would react to the option of restorative justice if I were the victim of a violent crime. Would I wish to meet the person who had harmed me or a loved one? What would I hope to gain from such a meeting? It is impossible to say for sure without being faced with the reality of such a situation, but my initial reaction has always been, perhaps the most traditional, lock up the offender 130 and throw away the key. I now question to what degree I have been socialized to believe incarceration is always the most effective solution.

Published literature points out that, despite the so-called harsh punishment of incarceration, women are not being optimally protected from sexual violence. This is evidenced in the statistical probability of sexually abusive behaviour and the apparent inability of the criminal justice system alone to affect the root causes. The literature on the use of restorative justice processes used to reintegrate sex offenders back into the community makes a certain degree of sense to me. I believe there is a need to actively take part in reintegrating offenders, if only for the purpose of working to protect future victims. I hope never to find out what I, personally, would do; however, the statistics show there is a good chance that sexual violence will touch my life and will leave its victim empty-handed and disheartened by the conventional criminal justice system response. I am not proposing to do away with incarceration. I believe there will always be a need for incarceration to deal with the most despicable of offenders for whom there is no hope of reintegration at any level. I am in favour of finding a better way of handling sexual offences and offenders – one that does more than put a band-aid on a life- threatening wound.

Description of the Study

The NSRJ program is innovative and unique. Published literature exposes potential harms and benefits of a restorative response to sexual assault/partner violence; however, theorization of these perceived harms and benefits does little to situate them in reality. I feel the NSRJ program offers an important perspective from which to assess the reality.

Initially, I intended to assess whether or not restorative justice, as a means of responding 131 to sexual assault, could affect the two primary goals of the NSRJ program: reduce recidivism and increase victim satisfaction (NS Dept. of Justice 1998: 5). I found this a difficult task as there is little evidence on which to base these assumptions. Due to this paucity of fact-based evidence and the uniqueness of the NSRJ program, I felt it imperative to conduct my own research to verify or deny the potential for restorative justice to affect such change.

This study is qualitative and is based on a series of eight semi-structured, in-depth interviews with professionals working within the conventional criminal justice system, in restorative justice agencies, and with victims of sexual offences. Of the eight interviewees, three were males and five were females. All eight respondents possessed a wealth of knowledge and spoke candidly and with great interest. Our conversations were informative and brought to light numerous points important to a discussion of the use of restorative justice for sexual assault. Three of the interviewees work with the NSRJ program. All have extensive experience working with youth both within a restorative justice setting and prior to their work with restorative justice. The total number of years experience these three people have working with youth exceeds 45 years. All have participated in facilitating restorative justice sessions. Two have worked with the NSRJ program in at least two different capacities. Respondents in the second group of interviewees work in the conventional criminal justice system. The first is an experienced

Crown attorney. This respondent is also very supportive of restorative justice programs for youth that offer meaningful consequences for wrongdoing. The second, a police officer, has extensive experience in the conventional criminal justice system as well as with restorative justice. This respondent has been actively been involved in restorative 132 justice cases involving sexual assault. The third works with institutionalized youth. This respondent has a fair amount of knowledge of restorative justice, as well as the particular nature of youth sexual offending. The final two respondents work for women‟s/victim‟s organizations. One has a background in research and is well-informed on the academic literature on restorative justice. The other is well-educated, extremely well-placed to answer questions regarding the needs of victims of sexual assault, and also possesses a fair degree of knowledge about restorative justice. Seven of the eight respondents work in

Nova Scotia.

In order to gain perspective on the perceived harms and benefits of extending the

NSRJ program to sexual assault/partner violence, I devised a list of questions tailored to the likely degree of knowledge of the range of potential interviewees. I allowed a great deal of flexibility during the actual interviews in order to find out what, for them, were the key issues. I offered each the opportunity at the end of the interview to add any information they felt especially pertinent and which I might not have adequately addressed. The response, in several cases, was thoughtful and provocative. The interviews took place between November 2008 and April 2009. On average, they lasted one-and-a-half hours. One interview was significantly shorter (45 minutes) and two nearly reached the two-hour mark. Seven of the interviews were conducted in the respondent‟s professional offices. Of those seven, six were taped and one respondent preferred that I took notes. The eighth respondent lives a great distance away; therefore, a face-to-face interview was not possible. In the interest of time, this respondent was kind enough to provide written answers to my questions. As this respondent has worked with youth in a restorative justice setting where sexual offences were handled, I was keen on 133 gaining this perspective. The taped interviews were transcribed carefully. All interviews, written submissions, and notes were then coded to allow major themes to emerge. I address the respondents as R1 through R8 to protect their identities. All have allowed me the opportunity to check with them if I am uncertain of what they meant. I have taken the utmost care to preserve their intended meaning.

As I am a volunteer with a restorative justice agency, I examined my concerns and beliefs early on in order to assess my personal bias. Having witnessed many restorative justice sessions over the years, I have seen the positive effects the process can have on both victims and offenders; however, the moratorium has been in place since I began volunteering and, therefore, I have never witnessed a session involving a sexual offence.

I have asked myself time and time again how I would feel about using restorative justice for sexual offences and I honestly do not know, though I do believe it would be a very individual decision. I believe the unique and comprehensive nature of the NSRJ program make it a particularly good lens through which to assess the potential harms and benefits of a restorative approach to sexual offences. Common understanding tends to label restorative justice as diversion, a “soft” or “cheap” justice option that lets offenders off with no real consequences. The NSRJ program is implemented such that it is integrated into the conventional criminal justice system – a key consideration for those advocates who propose the use of restorative justice for serious/violent crimes. The results of my research offer a thought-provoking look at what restorative justice is, what victims of sexual offences need and want from the justice system, and how restorative justice might be used to aid victims of sexual offences and society in general. In the following chapter,

I introduce the findings of my research. 134

CHAPTER SEVEN: FINDINGS

During the course of my interviews, respondents offered a nuanced view of the program and its history. I feel this information is important to the following discussion; therefore, I have chosen to include some of the relevant facts as background information.

I would like to note that, while cumbersome at times, the term „youth in conflict with the law‟ is considered appropriate language and is used here to avoid past problems with labelling youth as „juvenile delinquents‟ or „young offenders‟.

For the purposes of this section, I have divided my respondents into three basic categories: 1) those who work within the conventional criminal justice system, 2) those who work with the NSRJ program, and 3) those who work primarily with victims of sexual assault/women‟s organizations. In my sample, there is a good deal of overlap in their knowledge. The group working within the conventional criminal justice system have a good deal of experience with youth in conflict with the law, the conventional justice system response to sexual assault, and restorative justice. Those working within the NSRJ program have varying degrees of knowledge regarding sexual offences, depending on their position within the organization. All three have extensive experience with restorative justice and with youth. The two respondents who work with women‟s organizations and/ or victims of sexual assault, have a solid understanding of restorative justice, both in terms of what is going on in other jurisdictions and with the NSRJ program. One of the respondents in this group also has extensive experience regarding the conventional criminal justice system response to sexual assault. For the most part, those within particular groups are unanimous; therefore, for the most part I will refer to 135 the basic groups. Where their input is unique or particularly poignant, I will refer to the specific respondent as R1 through R8.

Background Information

Respondents within the NSRJ program explained that the program began with youth in four pilot areas then moved to youth across the province. The intention was then to extend to adults in the four pilot areas and, finally, adults across the province. At present, the program handles youth between the ages of 12 and 17 who have come into conflict with the law for virtually any offence in the Criminal Code of Canada. The only crimes not eligible for referral to NSRJ are sexual assault and partner violence, which have been under policy moratorium since 2000. One respondent notes that some may view the fact that the program has not yet extended to adults as a failure; however this is far from the case. Discussions are ongoing regarding the extension of NSRJ to adults.

The NSRJ program is more than what is typically considered „restorative justice‟, offering opportunities for diversion through to post-incarceration reintegration. The general understanding is that when a youth perpetrates a crime in Nova Scotia, they will first be considered for referral to the NSRJ program. To this end, police and Crown attorneys consult a checklist of requirements the youth must meet in order to be given a referral to NSRJ. According to respondents within the criminal justice system, a key consideration is whether or not the youth is willing to take responsibility and make amends for the wrongdoing.

Women‟s and victim‟s advocates explained that the moratorium on sexual assault/partner violence was initiated as soon as the program began by women‟s organizations and victim‟s advocates who had serious concerns about the implications of 136 using a restorative approach for sexual assault/partner violence. Women‟s and victim‟s advocates felt left out of the planning process, stating that they were unaware of the

NSRJ program until it was announced despite indications that women‟s and victim‟s organizations had been consulted during the early planning stages of the NSRJ program.

One women‟s advocate claims that discussion of the NSRJ program with women‟s organizations consisted of a single hallway discussion with one such organization. These groups were shocked to learn that the NSRJ program intended to use a restorative approach for handling sexual assault/partner violence and that they would be asked to develop training programs for staff and volunteers of restorative justice agencies. Their concerns were tabled in a position paper sent to the Nova Scotia Department of Justice, which they felt was rather hastily dismissed. They then turned to Members of Parliament and the media for help in getting their point across. They also engaged in their own research, in conjunction with a number of equality-seeking women‟s organizations. The result was Pamela Rubin‟s 2003 Report, in which she concludes that the NSRJ program is not appropriate for cases involving sexual assault/partner violence. Further discussions resulted in a number of recommendations. These recommendations, one of which was a moratorium on the use of restorative justice for sexual assault/partner violence, were then presented to justice officials. Victim‟s/women‟s advocates care deeply about the work they do and consider their position one of preventing further harm to victims of sexual assault.

Respondents within the NSRJ program have also been looking closely at the issues involved in extending restorative justice to sexual assault/partner violence in preparation for a time when the moratorium might be lifted. After the moratorium was imposed and 137 the women‟s and victim‟s advocates had completed their research, the NSRJ program created a working group in which women‟s advocates took part. They spent 18 months looking at the main issues and discussing ways in which NSRJ might move toward incorporating sexual assault/partner violence into restorative justice practice. The result, entitled Pathways, was completed in 2005 and was endorsed by women‟s advocates. This report is considered a working document at present. In 2000, the Deputy Minister requested a review of the NSRJ program. The program was reviewed through the spring and summer of 2008. To date, the results have been shared with a select group of stakeholders, including women‟s advocates; however, while the draft has been submitted to the Deputy Minister, the final recommendations have not yet been made public. More recently, the Minister of Justice has struck a Minister‟s Leadership Committee to look into the issues of sexual and partner violence. NSRJ sees the next step as involving discussion around how and under what circumstances restorative justice might fit into the broader strategy created around sexual and domestic violence.

The NSRJ program is seen by respondents both within the program and the conventional criminal justice system as a very effective method of dealing with youth who come into conflict with the law for a wide variety of crimes. The NSRJ program is thought to be well-situated, providing a necessary service to Nova Scotia‟s communities.

Most respondents, including victim‟s advocates, see merit in the NSRJ program as it applies to youth and a wide variety of offences, though there are unanswered questions as to the role restorative justice might play in responding to sexual assault/partner violence.

Respondents within the conventional criminal justice system are strong supporters of restorative justice for youth and believe that youth should be given the opportunity to 138 make amends for the mistakes they have made and potentially learn from their mistakes, provided they accept responsibility and are willing to take the consequences.

In the early years, there was some degree of unease within the NSRJ agencies over plans to extend restorative justice to handle very serious crimes, including sexual assault/partner violence. Several years of experience have lessened those fears somewhat.

NSRJ agencies have a far better understanding of the restorative justice process and what it is capable of. Caseworkers are more experienced at making assessments as to the needs of victims, offenders, and community. They have had a certain amount of experience screening for sexual assault/partner violence because the moratorium requires they must refuse any case where there is any aspect of sexual offending/partner violence. There is no question that to extend the NSRJ program to cases of sexual assault/partner violence would mean caseworkers would need specialized training. One respondent within NSRJ feels the Nova Scotia Department of Justice should be responsible to provide the funding for training should the moratorium ever be lifted.

In terms of extending restorative justice to adults, respondents in the conventional criminal justice system and the NSRJ program note that the adult diversion program already offers an alternative to adults. While one respondent in the conventional system sees adult diversion and restorative justice as similar, another respondent within the

NSRJ program notes that adult diversion does not allow adults access to the specific elements of restorative justice. In light of the similarities, both wonder where, in reality, restorative justice would fit as a method of dealing with adult offending. Interestingly, adult diversion does not handle cases involving any form of sexual assault/partner violence and I understand that this is not due to the moratorium but to rules and 139 regulations governing the adult diversion program; therefore, I am left with the impression that adult diversion will never handle such cases leaving the door wide open for restorative justice should future research determine suitability. There continues to be ongoing discussion and research in Nova Scotia involving the extension of restorative justice to both adults and to sexual assault/partner violence. These discussions appear to involve the NSRJ program, the Department of Justice, women‟s and victim‟s advocates, as well as key players in the conventional criminal justice system. From all reports, both the NSRJ program and women‟s and victim‟s advocates have spent a great deal of time and effort since the policy moratorium was put in place researching the potential harms and benefits of a restorative approach to sexual assault/partner violence, whether victim‟s would want to engage in a restorative approach, and where restorative justice might fit into the broader response to sexual assault/partner violence.

Failure of criminal justice system. My literature review reveals that the conventional criminal justice system is not adept at handling cases of sexual assault. All respondents with sufficient knowledge of the conventional criminal justice system response to sexual assault, which included respondents from all three groups, wholeheartedly agree with the findings of my literature review, indicating that the conventional criminal justice system is not doing a good job of responding to cases of sexual assault. Criminal trials, based as they are on fact-finding, are considered particularly ill-suited to meeting the needs of victims of sexual assault. Foremost were concerns that the criminal justice system process re-victimizes victims of sexual assault.

Respondents in the conventional criminal justice system point out that the trial process can be long and arduous. R3, a Crown attorney, claims overloaded dockets create long 140 wait times and often victims must make return trips to court. Respondents in all groups noted that defence lawyers relentlessly question victims, contributing in great part to their feelings of blame and shame. Women‟s and victim‟s advocates point out the need to educate criminal justice system players as their lack of knowledge regarding the particular nature of sexual offences/offenders severely disadvantages victims. They also note that the myths and stereotypes surrounding the crime of sexual assault, so prevalent in our society, are also held by criminal justice system actors; therefore, the conventional justice system may in fact perpetuate these myths and stereotypes. R6, a victim‟s advocate and critic of restorative justice, believes that the conventional system has had some success, pointing out that the conventional system deals with sexual offences better than it did 20-25 years ago. R8, who advocates for victims of sexual assault does not see that the criminal justice system, as of yet, sends a strong enough message to deter offenders from committing sexual offences.

A social problem. R8, a victim‟s advocate, points out that the prevalent societal attitude regarding sexual offences is one of don‟t get raped versus don‟t rape. R8 believes the larger issues surrounding the popular myths and stereotypes of the rapist and the victim of sexual assault must be dealt with before the system, whether that be the conventional criminal justice system or restorative justice, can effectively deal with such cases. In fact, R8 believes that current legislation is in place to deal more effectively with sexual assault, but that it is not being optimally utilized. One respondent, a women‟s advocate and critic of restorative justice, fears that because the NSRJ program relies on referrals from conventional justice system professionals, that restorative justice will not necessarily avoid the myths and stereotypes so prevalent in society. 141

Women‟s and victim‟s advocates state that Nova Scotia has no provincial strategy to address sexual violence. R8 believes that a multi-disciplinary approach with heavy emphasis on public awareness and education is absolutely necessary. The analogy R8 makes is that not so long ago drinking and driving and smoking were acceptable behaviours. After investing a great deal of effort in public education and awareness, these behaviours are no longer accepted. By putting money into creating public awareness around sexual offending, just as was done with smoking and drinking and driving, positive change in behaviours and attitudes might occur.

Diversion from court/less serious crimes. One of the fears suggested by women‟s and victim‟s advocates is that restorative justice will further minimize or trivialize the response to sexual offending by diverting what some call „less serious‟ cases to the NSRJ program. Respondents within the NSRJ program note that sexual offences were never intended to be diverted from the conventional system. Sexual offences would be referred to restorative justice only by the higher-end referral points, at a post-conviction stage.

Women‟s and victim‟s advocates question what the term „less serious‟ means and who would define which offences are considered of a „less serious‟ nature. R8, a victim‟s advocate, believes individual experiences of sexual offences are very subjective. What is

„less serious‟ to one person may have a severe effect on another person. Those within the

NSRJ program are aware that the area of sexual offending is a very specialized area and that the cases might require assessment on a case-by-case basis. R7, a respondent from the NSRJ program, points out that if the moratorium were ever lifted, the offender would have to take responsibility for their offending behaviour or the case would be returned to the referral point for further criminal action. 142

Restoration. As per the literature, women‟s and victim‟s advocates questioned the degree to which harm could be „restored‟ with regard to sexual offences. It has been noted in the published literature that the word „restore‟ might be somewhat of a misnomer. R1, a respondent from within the NSRJ program, notes that there are some things you can literally „repair‟ and that, for some types of crimes, material compensation helps the victims feel better. An example might be a victim who receives an amount of money to fix a broken window. R1 notes that in lieu of actual material restoration, having the offender attend counselling or do research to expand their understanding of what sexual assault is might, in some cases, be a step in the right direction. This respondent is speaking strictly in terms of youth and what are often referred to as „less serious‟ sexual offences. R1 believes there are some crimes restorative justice might never be appropriate for and is keenly aware of the possibility that sexual assault cases might need an individual assessment. R1 states that it would be important to find out what the victim needs, not necessarily to „restore‟ them to some previous state but rather to create consequences for the offender to show he/she understands the severity of his/her actions and/or a treatment plan that the victim sees as appropriate.

Religion/Apology/Forgiveness/Healing. Several respondents, in both the women‟s and victim‟s advocates group and the NSRJ program group, spoke about the religious roots of restorative justice and how apology, forgiveness, and healing do not necessarily equate with the crime of sexual violence. Respondents in these groups noted that the often religious/evangelical flavour of restorative justice quite literally turns people away.

All respondents agree that apology given without sincere remorse means little. One respondent within the NSRJ program claims only genuine apology can achieve the aims 143 of restorative justice; however, not all victims desire an apology, sincere or forced. Case workers in the NSRJ program meet prior to the restorative justice session with both victims and offender. This screening takes note of whether apology is something the victim wishes to gain from the session or whether the victim has other concerns.

One women‟s advocate states that to ask a victim of sexual assault to forgive the perpetrator of the assault would feel like a dismissal to victims.

Respondents in both groups question how restorative justice can contribute to victim healing in the case of sexual assault/partner violence. One women‟s advocate claims healing is a long process and questions to what degree restorative justice can positively affect this healing process. While some respondents within the NSRJ program spoke of the healing aspect of restorative justice, others claim learning, accountability, voice, and reparation may be more important than healing. Some believe the merit of restorative justice lies in teaching people to talk to each other rather than embarking on a healing journey.

Benefits of a restorative justice approach. Women‟s and victim‟s advocates view the NSRJ program, along with other restorative programs, as offender-centered feeling restorative justice is geared primarily to address issues of offender treatment and rehabilitation rather than victim‟s/women‟s needs. Respondents in both the conventional criminal justice system and NSRJ program groups speak of a host of general benefits for all three stakeholders - offender, victim, and community.

R3, a Crown attorney, believes that youth in the conventional system whose defence lawyers are able to get them off on technicalities are doing the youth and the greater society a disservice by allowing them to escape the consequences of their actions, 144 thereby teaching youth that it is okay to deny involvement and not accept responsibility.

Respondents within the criminal justice system and NSRJ program groups believe the main benefit for youth is the opportunity to learn from his/her their mistakes by doing something to make up for their wrongdoing. A second benefit is that the youth may be positively affected by hearing the victim‟s account. One respondent within the NSRJ program noted that the privacy of a restorative setting may, in fact, be considered a benefit for youth in conflict with the law.

Respondents in both the criminal justice system and NSRJ program see a number of benefits restorative justice offers the victim. The chief benefits appear to be: 1) that victims have the opportunity to tell their story and be involved in the process that holds the offender accountable, 2) that they are often able to receive restitution for material damage, and 3) that their fears of re-victimization are reduced. Respondents within the

NSRJ program note that, while outcomes vary, in some cases victims are content to tell their story without need for any further action or even compensation. Some victims feel a sense of relief after meeting the youth and having the opportunity to understand the issues in their life that may have led to the offending behaviour. Often, victims gain a sense of satisfaction from seeing that the youth is taking responsibility for his/her actions.

In many cases, this understanding leads to reducing the victim‟s fears of re-victimization.

Respondents in both the conventional justice system and the NSRJ program believe the benefits extend to the greater community. The main benefits appear to be that restorative justice builds and strengthens community by teaching those who live in close proximity to resolve their differences and by helping youth in conflict with the law and their families access community resources. It is generally understood by respondents 145 within the NSRJ program that community can include any support persons from any groups or organizations offering support to victims and/or youth in conflict with the law.

R5, who works with incarcerated youth, sees a great deal of benefit to the community when restorative justice is used as a reintegration process for youth returning to their communities. This respondent notes that the NSRJ program offers restorative justice to incarcerated youth on a regular basis; however, reintegration sessions are a relatively rare occurrence with only two or three occurring each year. One of the reasons may be that, at this stage, there is little incentive for the youth in terms of a reduced sentence, so there is little motivation to take part other than an honest desire to move on with their lives. NSRJ program respondents feel this is an area that holds much potential for growth.

Victims of sexual assault. When asked what victims of sexual violence need, women‟s and victim‟s advocates offered much insight. Victims of sexual violence, above all, need to feel safe. They need to be supported and believed. They need justice professionals to be better educated with regard to the experience of sexual assault and the nature of sexual offenders so that the victim does not feel she/he is on trial or is being blamed. They need the right to self-determination. They need the sense of authority the conventional justice system allows. R6, a women‟s advocate and critic of restorative justice, states women do not wish to be responsible for suggesting a sentence or deciding whether or not the perpetrator is prosecuted, for very good reason. There is the possibility that the offender will retaliate by telling any children involved that it is the mother‟s fault that he was sent to jail. R8 believes that every case is subjective and that there may be some women who feel a need to confront the perpetrator while others would not want to have anything to do with the perpetrator. The vast majority of respondents across the 146 board noted that victims of sexual assault need more resources available to them.

Women‟s and victim‟s advocates note that Nova Scotia has only two sexual assault centers. One (Truro) has only a part-time staff member. The other (Halifax) has 9 staff members, including two full-time counsellors and one part-time intake worker.

NSRJ and sexual assault. When discussing extending restorative justice to sexual assault/partner violence, there is a great deal of caution and uncertainty among all respondents. The general consensus of women‟s and victim‟s advocates is that the model of restorative justice currently employed by the NSRJ program is not adequate to deal with sexual offences. One victim‟s advocate, who is not against restorative justice in general, believes the NSRJ program has only the best of intentions. This person‟s concern is with the current model as applied to sexual offences. These concerns are echoed by those within the NSRJ program. One respondent within the NSRJ program, who has many years of experience in various capacities, notes that the NSRJ program was aware from its inception that the current model does not include enough safety measures to handle a wide range of sexual offences. Those in the NSRJ program also relate that there were serious concerns on their part when the program first came out aimed at handling sexual offences and they are glad for the opportunity to have gained experience with the restorative justice program and to discuss issues involved in extending restorative justice further.

Main concerns. Specific concerns regarding the NSRJ program extending to sexual offences are very similar to those expounded in the published literature. These include: safety, re-victimization, lack of resources, power imbalance, manipulation, pressure on victim, NSRJ downloads on the community, community is not defined, process lacks 147 authority, and facilitators/volunteers lack skills. Overwhelmingly, the three main concerns are safety, lack of resources, and the lack of trained facilitators/volunteers.

Safety is, without a doubt, the main concern voiced by respondents. Women‟s and victim‟s advocates, note that women‟s safety and the safety of their children and loved ones is a primary concern for victims of sexual assault and is often a factor determining whether or not they come forward and report these crimes in the first place. R6, victim‟s advocate and critic of restorative justice, is concerned that alternative solutions, like restorative justice, are often proposed under the guise that the criminal justice system is not doing a good job and, therefore, no greater harm can be done. Respondents within the

NSRJ program seemed aware of safety concerns and spoke of the potential for offenders to manipulate the victim and concerns over a potential power imbalance. The safety concerns of those in the conventional criminal justice system were very different. R3, a

Crown attorney, had concerns over re-offending. If a youth were sent to restorative justice for a sexual offence, how would that record translate if he re-offended? Would it be considered a first offence or would the restorative justice offence be taken into account? R5, who has had experience dealing with youth sexual offending, wonders if the lack of insight sex offenders often show might cause further distress to the victim. R4, a police officer who also has had extensive experience with restorative justice programs that have encompassed youth sexual offending feels that the concerns most often tabled against the use of restorative justice for sexual offences serve only to divert funding to other initiatives. This person believes that adequately funded and properly run restorative programs would garner support from many women‟s and victim‟s advocates. 148

Resources were a major consideration for respondents from all groups. The general consensus is that there are not currently enough resources in Nova Scotia for victims of sexual assault/partner violence. One respondent in the women‟s advocate group claims

Nova Scotia also lacks sufficient resources for sexually aggressive youth. The job of sexual assault centers is to support victims in whatever decision they make regarding how to deal with their particular circumstances. While R8, a victim‟s advocate, believes there may be some victims who feel the need to confront their offender face-to-face, those who advocate for victims of sexual offences worry that should restorative justice encompass sexual offences, victims would need pre-and post-session counselling. With only 2.5 counsellors at the present time the resources are simply not adequate. The NSRJ program appears cognizant of the lack of resources and notes that women‟s and victim‟s advocates and services such as the sexual assault centers are important resources, but that they are, at present, limited. Respondents within the NSRJ program note the importance of sexual assault centers and the valuable input they could offer if sufficiently resourced.

There is some indication that the ability to access certain resources differs depending on the area in which the restorative justice agency operates. Respondents in the NSRJ program group report having a good rapport with resources in the community.

The staff members work hard to maintain these resources by attending community meetings and actively seeking support. Restorative justice agencies often run programs within their agencies that are tailored to the needs of the community. These programs are services provided not only to youth on their agency caseload, but also to youth identified by schools and community as needing assistance and sometimes youth on probation.

Some of the most popular programs include: Anger Management, Self-Esteem for Girls, 149 and Stoplifting. One respondent in the NSRJ group states that these programs are frequently requested and that they aim to prevent and deter future offending. The limited ability to access those resources specifically aimed at sexual assault is duly noted.

The area in which there seems to be the greatest misunderstanding is over the use of volunteer facilitators within the NSRJ program. The NSRJ agencies rely on a volunteer base to aid in facilitating sessions and doing follow-up to ensure youth meet the terms of their agreement. Understandably, women‟s and victim‟s advocates express a great deal of concern over the use of facilitators who are not specially trained in the area of sexual assault/partner violence. Perpetrators of such offences can employ subtle means of manipulating their victims and it is feared that restorative justice facilitators might unknowingly and despite their best intentions cause more harm to the victim and possibly harm to themselves and others involved in the session.

Respondents within the NSRJ program state that they do employ volunteers.

Potential volunteers must first submit to a Criminal Record and Child Abuse Registry check. These records are updated regularly. Accepted volunteers are then given approximately 30 hours of classroom training on the restorative justice process, the criminal justice system, and the particular nature of youth offending. Volunteers then observe several sessions. Each volunteer brings a specific skill set to the session. NSRJ respondents note that the agencies tend to draw on the specific skills of each volunteer as per the need for each individual case. It is not unusual to find that volunteers are often very well-educated. In the NSRJ program, there appears to be a tendency for volunteers to have skills geared toward youth, understandable as this is the clientele served.

Respondents from the NSRJ program note that they currently have volunteers with 150 experience as social workers and counsellors. Other volunteers have experience as teachers, school principals, and police officers.

With regard to extending the use of restorative justice to sexual offences, respondents in the NSRJ program do not believe there would be a significant role for volunteers, unless a particular volunteer had a background in the area of sexual assault/partner violence. Respondents within the NSRJ program suggest that facilitators of such cases would most certainly be limited to trained caseworkers or, perhaps, even professionals hired to facilitate sessions. Women‟s and victim‟s advocates do not feel it is possible to adequately train volunteers for these cases. Further, they worry about having the resources to create and deliver training, whether for volunteers or caseworkers. One respondent whose experience covers many capacities within the NSRJ program believes discussions might lead to the creation of a specialty model geared towards sexual assault/partner violence to be employed not by the community agencies, but in a more controlled setting. This respondent then points out that the question then becomes would this still be restorative justice?

Restorative justice and early intervention. I now address the most unexpected responses to my questions. Initially, I wondered if there might be potential for restorative justice to identify sexual offenders early and to offer treatment that might deter future offending behaviour. Respondents with knowledge of sexual offenders came from all three groups. They realize that sexual offending starts early and that non-physical sexual offending can often indicate a future problem. All respondents believe it is imperative to address these early behaviours through treatment. Whether or not restorative justice might provide a tool through which to intervene is a good question. Respondents within 151 the NSRJ program suggest there is a possibility restorative justice might be used as a form of early intervention and that some degree of future offending might be prevented if youth received the treatment they need early enough. Restorative justice can refer youth to counselling and other resources. R3, a Crown attorney, believes early intervention regarding all aspects of youth crime is necessary. This respondent notes that the NSRJ program has the same potential as the conventional justice system to refer youth to counselling and other services. Generally speaking, while early intervention is considered beneficial, there are huge questions regarding whether or not restorative justice is the appropriate tool through which to achieve this. One respondent within the NSRJ program suggests restorative dialogue may offer potential as one component of assisting in early intervention, but warns of the dangers of viewing restorative justice as a solution in and of itself.

The moratorium. The moratorium appears to have created some degree of confusion. Respondents from the NSRJ program state that the moratorium affects all four referral points to the NSRJ program. The NSRJ program must refuse any case that has any aspect of sexual assault/partner violence. Respondents within the women‟s and victim‟s advocate group were not all aware of this fact. One respondent in this group was under the impression that the moratorium in Nova Scotia affected the post- conviction/pre-sentence stage and was not certain at the time of our interview whether the moratorium affected NSRJ‟s ability to use restorative justice, for example, as a process aimed at reintegrating offenders back into the community after a period of incarceration.

The moratorium also appears to limit the opportunity for the NSRJ agencies to offer an educational service regarding sexual assault/partner violence. One respondent within the 152

NSRJ program feels this is one negative consequence of the moratorium and that the agencies might in fact be able to offer an educational benefit to youth.

Respondents within the NSRJ program are very careful to comply with the moratorium. The agencies sometimes get referrals from police and Crown attorneys that, at first, appear to be common assault. During pre-meetings with victims and offenders, the NSRJ caseworkers sometimes find that the assault involved a boyfriend/girlfriend relationship or that the assault contained some aspect of a sexual nature than had not been divulged to police. Respondents in this group state there have even been cases where victims, or victim‟s parents, have called the restorative justice agencies requesting a particular case be handled via restorative justice. Due to the moratorium, the agencies must refuse these cases. In these rare instances, those working in the NSRJ agencies feel there might have been a missed opportunity. It is not clear what happens to these cases.

Are they sent through court? Is the victim traumatized to a greater degree than is necessary? Does the victim, or her/his parents, drop the charges, leaving the youth who perpetrated the sexual assault without consequences or treatment? One respondent within the NSRJ program believes the Crown attorneys might feel some frustration at not being able to send some of the lower-end sexual assault cases to the NSRJ program. R3, a

Crown attorney, has noted that it is important to consider whether a sexual offence handled by restorative justice would be omitted from the record or allowed as evidence of previous sexual offending should that youth re-offend.

The way forward. Overall, I was impressed by the candid responses of the respondents and felt there was a good degree of desire to work together to figure out how restorative justice might incorporate enough safety measures to accommodate sexual 153 offences. Despite a rocky beginning where women‟s and victim‟s advocates felt left out, discussion continues and the key players appear to be making some headway, at least in terms of addressing issues and concerns and allowing input from women‟s and victim‟s organizations. Respondents noted a few potential changes to the NSRJ program if extended to cases of sexual assault/partner violence.

Victim veto. Respondents in both the women‟s and victim‟s advocates group and some within the NSRJ program believe that, if the NSRJ program should extend to sexual assault/partner violence, it will be necessary to have a victim veto. There is, at present, no victim veto in place in Nova Scotia. Victims do not have to consent in order for a youth to be sent to restorative justice. In terms of the particular nature of sexual assault/partner violence, some feel it would be appropriate to extend such a veto to victims in these cases. R3, a Crown attorney, warns of the need for a mechanism to ensure that offenders are not wrongfully accused. One women‟s advocate and critic of restorative justice claims women do not want to be put in a position of deciding what happens to an offender. If they have a role in deciding sentencing or deciding to send a case to court, the offender might then resort to vengeful acts against them. If they are a couple who have children together, the offender might tell the children that it was their mother who sent him to jail or otherwise decided the case.

Longer preparation. As noted, the NSRJ agencies meet with both victim and offender prior to the actual restorative justice setting. One respondent within the NSRJ program states that this can be an intense and challenging meeting for all involved.

Another respondent in this group believes there is a possibility that, should restorative justice extend to sexual offences, these meetings might occur on more than one occasion. 154

Opportunity to return referrals to source. Most NSRJ program respondents feel that if the agencies are asked to handle cases involving sexual offences it would be imperative that the restorative justice agencies be given the opportunity to send the case back to the referral point if they feel any sense of discomfort or unease.

Changes to the model/risk assessment. One respondent within the NSRJ program, with many years experience in different capacities, notes that the model that the NSRJ program currently uses is process-driven and would need to change. This respondent relates that a collaborative model is necessary, but wonders whether or not it would be cost-effective to implement. As well, this respondent believes a risk assessment administered by those making the referrals to NSRJ and by women‟s and/or victim‟s advocates might be appropriate.

Restorative justice/level of sexual assault. When asked if respondents felt that restorative justice might best be applied to a particular level of sexual assault or particular type of sexual offence, most were undecided. Restorative justice is not used for sexual assault/partner violence in Nova Scotia and this may be a major factor in the difficulty answering this question. The most likely area would be „less serious‟ offences involving youth, though I have already noted that women‟s and victim‟s advocates point out that the experience of sexual assault is subjective and they have major questions regarding what is defined as „less serious‟. Certainly, across the board, respondents feel early intervention for youth who sexually offend would be beneficial; however, whether restorative justice is the tool to accomplish this or not remains unanswered. The one respondent who has had experience with youth who sexually offend in a restorative justice setting was very much in favour of using restorative justice for a wide range of 155 sexual offences. This respondent perceived benefits for all involved and feels more victims would come forward if given a restorative option, though the benefits would depend on having a well-run, well-funded program.

My findings illuminate many potential avenues for discussion. In the next chapter, I discuss my findings in relation to the published literature on the use of restorative justice for sexual assault/partner violence. I continue to emphasize the NSRJ program and its potential to address sexual assault/partner violence.

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CHAPTER EIGHT: DISCUSSION AND CONCLUSION

Restorative justice is generally considered most beneficial when applied in relation to youth who have come into conflict with the law (Hudson 2002: 618). My findings indicate this notion is upheld in Nova Scotia and is entirely understandable given the goals of the YCJA and the fact that restorative justice in Nova Scotia is, at present, available only to youth in conflict with the law. This focus, however, creates some misunderstanding as to what restorative justice is, what the core tenets are, and where it best fits in the broader justice system. Literature on the use of restorative justice for more serious and violent crimes, such as sexual assault, points out that the process might incorporate changes to both goals and outcomes when applied to these types of crimes

(Umbreit 1999; Raye & Roberts 2007). My task here is to determine what merit, if any, respondents in my study see in extending the NSRJ program to sexual offences and illuminate potential changes that would need to occur in order to do so.

When beginning this research project, I assumed I would find significant differences in the views of the three groups of respondents; however, this was not entirely so. Published literature often positions women‟s and victim‟s advocates views on issues of intimate violence as polar opposite to those of proponents of restorative justice.

Women‟s and victims advocates often appear in the literature to be completely against the idea of restorative justice, while restorative justice proponents are often portrayed as believing restorative justice to be a panacea, an alternative method of justice that is potentially able to remedy all the ills of the conventional criminal justice system. The reality is far more complex. My findings indicate that all groups have reservations about extending restorative justice to sexual assault/partner violence, are aware of major issues 157 involved, and are increasingly willing to work together to create a better overall response to sexual assault/partner violence. It is unclear at this point whether restorative justice is the answer, or even part of the answer.

Merit

My findings indicate that, in general terms, the majority of respondents believe restorative justice offers benefits to both victims of crime and young people in conflict with the law. Perceived benefits include: giving victim‟s a voice, using narrative as a means of healing, validating the victim, and holding the offender responsible.

Respondents in the conventional criminal justice system and the NSRJ program were most enthusiastic. This is understandable as they see the benefits of the program on a daily basis.

With regard to extending restorative justice to sexual offences/partner violence, there were reservations on the part of all groups. Perceived benefits and harms were similar to those in the published literature. The potential benefits respondents suggested included the idea that a restorative approach would encourage victims to come forward, would be less formal/more private, would offer the opportunity for relationship repair, would offer a continuum of choice, and would avoid public humiliation. Potential harms to which respondents referred included questions of safety, revictimization, power imbalance, pressure on victim‟s to participate, manipulation, community, divided loyalties, not formal enough/lacks authority, facilitators lack skills, fears regarding unskilled volunteers. Women‟s and victim‟s advocates point out that they see no merit in using the current model employed by the NSRJ program for sexual assault/partner violence. Curtis-Fawley and Daly (2005: 618) claim most victim‟s advocates find some 158 positive elements in the use of restorative justice for gendered harms. In Nova Scotia, women‟s and victim‟s advocates are undoubtedly dubious. Their willingness to continue discussion could indicate that they feel there might be some potential worth exploring; however, my findings veer more toward their desire to ensure they are able to offer input as to the best possible safety mechanisms should the moratorium ever be lifted.

All respondents within the NSRJ program see potential merit, but nobody suggests opening the door wide to encompass the whole continuum of sexual assault/partner violence. Generally speaking, the merit is considered most often in cases involving youth and low-end sexual offences. One respondent within the NSRJ program stated that NSRJ has always been aware that the current model is not designed to encompass safely a broad range of sexual offences and that changes in the delivery of the program would be necessary in order to do so. Another respondent within the NSRJ program feels there are some cases for which restorative justice would never be appropriate and suggests there are major differences between considering restorative justice for youth who commit the lower end sexual offences and adults. Some NSRJ respondents feel that it is unfortunate that victims who want their case to go through restorative justice do not have the opportunity.

Criminal justice system respondents are somewhat more divided. One respondent, a

Crown attorney, is cautious, suggesting there may be some low-end sexual offences committed by youth for which restorative justice might play a role; however, this respondent also alludes to concerns related to putting mechanisms in place to prevent people from being wrongly accused. Since youth who agree to restorative justice have to accept responsibility, they effectively plead guilty to the offence without the benefit of a 159 potential criminal trial. The issue of potentially false accusations commonly arises in the minds of criminal justice officials in cases of sexual assault. Another concern this respondent has is whether or not sexual offences handled under restorative justice would mean subsequent offences would be considered a first offence. This respondent‟s concern centers on the ability to obtain a Sex Offender Information Registry Act (SOIRA) order.

According to the Crown Attorney Manual, which aims to aid prosecutors in making discretionary calls, the Sex Offender Information Registration Act came into force on

December 15, 2004 (Nova Scotia Public Prosecution Services 2008). The Registry includes addresses, descriptions, and other vital information on sex offenders. The Crown attorney applies to the Courts for a SOIRA order as soon as a sex offender is convicted and failure to comply with the SOIRA can mean the offender will be charged with a new offence. The SOIRA does not apply to young people unless they have been tried in

“ordinary” court (under the YOA) or are given an adult sentence (under the YCJA). R3 has not encountered this situation, but suggests looking into whether sexual offences handled by restorative justice would allow those records to be taken into account in the event that the perpetrator re-offends, because this respondent believes that to get a

SOIRA order the perpetrator has to have committed a second offense.

R4, a police officer with experience in a restorative setting for youth who commit sexual offences, was enthusiastic about a restorative approach to all levels of sexual offending. Two of the main criteria for referral to the program to which this respondent refers are: 1) admission of responsibility by the accused and 2) having ties to the community in which the program is run. R4 points out that this program has a high level of both public and police support. This respondent indicated knowledge of positive 160 outcomes in other programs involving sexual offences, from pre-charge to post- incarceration.

In this chapter, I base my discussion on four themes common to both published literature and my own findings: 1) the inadequacy of the conventional criminal justice system response to victims of sexual assault, 2) the need for a multi-dimensional approach to eradicating sexual assault, 3) confusion over the term restorative justice and its core concepts, and 4) youth sexual offending. My discussion revolves around an examination of the situation in Nova Scotia to determine why women‟s and victim‟s advocates and the Department of Justice are still talking about extending the NSRJ program to include sexual assault/partner violence and whether there is any real merit in continuing this discussion.

Inadequacy of Conventional Response

What appears to be the only finding that is crystal clear echoes published literature that views the conventional justice system as inadequate (Clark & Lewis 1977; Hinch

1985; Hinch 1988; Allison & Wrightsman 1993; Gunn & Linden 1997; Tang 1998).

Respondents from all three groups in this study with knowledge of the conventional justice response to sexual assault claim the conventional criminal justice system is not adept at handling sexual assault cases, meeting the needs of victims, or affecting the deeper roots of the problem of sexual violence against women. R6, a victim‟s advocate and critic of restorative justice, states that the conventional response is decidedly more effective than it was two decades ago, echoing published literature indicating that the

1983 legislative changes were, in some ways, a step forward (Gunn & Linden 1997; Tang

1998). Despite the fact that the Nova Scotia Crown Attorney Manual encourages Crown 161

Attorneys to be sensitive to the needs of victims of sexual offences, to minimize the number of times the victim must recount the details of her/his experience, and to handle the matter “expeditiously” (NS Public Prosecution Services 2008), respondents within the conventional criminal justice system agree that the conventional response to sexual assault and potentially lengthy trial period can be revictimizing for the victim. Women‟s and victim‟s advocates add that victims of sexual assault often feel they are on trial and that the onus is on them to prove they did nothing to provoke the assault. The message society appears to send is to tell women not to get raped rather than to provide consequences such that men will be deterred from sexually assaultive behaviour.

All systems have limits and it seems inherently unfair to blame the justice system alone for not affecting sexual violence against women. Respondent R3, a Crown attorney, believes the justice system encounters offenders after their behaviour has led to victimization and suggests society needs to find a way to deal with potential problem behaviour earlier, before it escalates into a legal harm. This advice is pertinent to the crime of sexual assault; however, the reality of preventing sexually assaultive behaviour is illusive. The YCJA aims to prevent youth crime by addressing the “underlying causes” and encourages the use of alternatives to court, such as restorative justice (Department of

Justice Canada 2009); however, one respondent within the NSRJ program warns of the dangers of viewing restorative justice as a remedy in and of itself, but feels that restorative justice might offer merit as one component of a more comprehensive strategy around sexual offences. The lack of resources in Nova Scotia poses a major problem as published literature claims adequate resources are key to the success of restorative justice programs that handle sexual offences/partner violence (Burford et al. 1999: 279). What 162 could restorative justice hope to achieve if the resources are not in place to aid victims and treat offenders after the session is over?

Published literature on the use of restorative justice for sexual assault suggests that offering a restorative option with the opportunity to avoid a criminal record will encourage more men to admit responsibility (Curtis-Fawley & Daly 2005: 609). Yet,

Scully and Marolla (1984) have noted that sex offenders tend to justify, deny, and minimize their behaviour. This raises questions as to the ability for restorative justice to encourage sexually abusive men to come forward, or, if they do, to accept responsibility in a meaningful, rather than manipulative, way. Some feminists have concluded that the answer lies outside of the conventional justice system (Daly 2002: 63; Gaarder & Presser

2006; 484). The NSRJ program holds potential, if suitably modified, for a broad range of interventions at various stages of criminal justice proceedings; therefore, offering the option of restorative justice may, in fact, give victims a viable alternative to the conventional justice system. The option of choice is viewed by some as “justice”

(Gaarder & Presser 2006: 489).

Multi-Dimensional Approach/Societal Change

Published literature calls for a multi-dimensional approach to dealing with sexual violence against women (Allison & Wrightsman 1993; Gregory & Lees 1994; Gunn &

Linden 1997). Many believe that the conventional criminal justice system is the best place for handling sexual offences (Curtis-Fawley & Daly 2005); yet, low reporting rates, low laying of charge rates, and high acquittal rates point to just the opposite. In fact,

Daly‟s (2006) study reveals that court does not send a strong message to youth who 163 sexually offend and that conferencing, with its emphasis on admitting responsibility, may do more to ensure youth take responsibility.

Women‟s and victim‟s advocates believe that popularized myths and stereotypes regarding the crime of sexual assault are at the core of the problem and that criminal justice system players are not exempt from accepting these myths and stereotypes. If criminal justice system actors are not educated with regard to the needs of both victims and offenders of sexual assault/partner violence, these myths and stereotypes are only perpetuated within the very system designed to help. Women‟s and victims advocates believe it is imperative that those within the criminal justice system become educated with regard to sexual offending because, even if restorative justice were to be extended to sexual assault/partner violence, lack of education for those criminal justice system players who act as referrals to the restorative justice program might, in fact, continue to perpetuate the myths and stereotypes, despite changes to the system. To what degree would restorative justice improve on the conventional criminal justice system response to sexual assault if the same players are prone to accepting the same misguided notions regarding sexual offending?

One victim‟s advocate believes the responsibility for dealing with the problem of sexual violence crosses several governmental departments, including justice, health, and community services, highlighting the need for a multi-disciplinary approach. Yet, women‟s and victim‟s advocates claim much educative work needs to be done in order to change societal perceptions of sexual assault/partner violence, including those of the professionals who work in these departments. Published literature on juvenile sexual offending reports the traditional response to juvenile sexual offending was to brush it off 164 as mere curiosity or experimentation – a response that has served to deny and minimize such behaviour (Ryan 1991: 17; Brayton 1996: 220). R6, a women‟s advocate, believes society accepts too readily the notion that boys will be boys, serving only to enable boys who sexually offend to grow up to be men who sexually offend. The underlying problem is cultural and has to be fought at that level. The immediate problem appears to be how to encourage women to report sexual offences and offenders to admit responsibility.

Restorative Justice Process and Core Concepts

As noted in my literature review, there is a great deal of confusion over what restorative justice is and how its core concepts relate to sexual offences. In this section, I examine: 1) the question of diversion, 2) explore safety issues, 3) consider restorative justice as a victim-centered process, and 4) look at the use of volunteers when handling cases of sexual assault/partner violence. Then, I explore how the core concepts of apology, forgiveness, restoration, and healing relate to more serious and violent crimes.

Diversion from court. One of the criticisms often levelled against the use of restorative justice for sexual assault is that it diverts cases from court, thereby minimizing the seriousness of such crimes. Feminist concerns tend to be based on the fear that taking intimate abuse out of conventional courtrooms will reprivatize the violence, thereby undoing years of effort aimed at exposing the problem (Cameron 2006: 57). Published literature on the use of restorative justice for serious and violent crimes, such as sexual assault, often suggests restorative justice programs handling this broader range of crimes must be integrated into the existing formal criminal justice system (Hudson 1998; Daly

2002; Hudson 2002; Stubbs 2002). The NSRJ program is far more than diversion. The four referral points allowing entry into the NSRJ program are broad enough to allow 165 restorative justice to be utilized as an adjunct to the conventional justice system at virtually any stage of criminal proceedings – from diversion to post-incarceration reintegration (NS Dept. of Justice 1998; Clairmont 2005a; Archibald & Llewellyn 2007).

Respondents within the NSRJ program state that sexual offences were never intended to be diverted from the formal justice system but were intended to be referred to the NSRJ program only at the post-conviction/pre-sentence stage (sexual offences as summary offence) or post-sentence (sexual offences as indictment).

Women‟s and victim‟s advocates were taken by surprise when the NSRJ program was announced because they were not consulted about the possible consequences of a change in the way gendered violence might be handled. In June, 1998, the Nova Scotia

Department of Justice published a booklet explaining the program, which R8, a victim‟s advocate, alluded to in our interview. In fairness to this group of respondents, I took the time to re-read this booklet after gaining insight into their perspective. The Nova Scotia

Department of Justice (1998: 15) makes reference to the ongoing debate over the use of restorative justice for sexual offences/partner violence stating:

“Restorative justice will not be made available for all offences at all of the four entry points. A debate about whether restorative justice is appropriate for spousal/partner violence offences and sexual offences is ongoing in many parts of Canada. The main concern of those who oppose the inclusion of these offences relates to a possible power imbalance between the victim and offender in a restorative forum. Until the Province takes a formal position regarding the possible benefit of restorative justice in spousal/partner violence situations, offences of this nature will only be considered at the court (post-conviction/pre-sentence) and corrections (post-sentence) entry points” (italics added).

This appears to indicate that the officials who created the Nova Scotia program believed that spousal/partner violence might, at some point, be considered at lower entry points.

Published literature on the use of restorative justice for partner violence indicates that the 166 most opportune intervention might be in cases where the couple intend to continue a relationship (Daly 2002; McAlinden 2005). In these particular circumstances, there might be some merit in avoiding a criminal record that could potentially disadvantage those couples from working toward a common future.

Women‟s and victim‟s advocates note that victims of sexual assault/partner violence need to feel safe and autonomous in the process. The authority of the conventional system is traditionally viewed as the best way to ensure safety; however, the

NSRJ program is touted as being more “comprehensive” than many other such programs

(Archibald & Llewellyn 2007: 298). What this means is that it offers many opportunities to incorporate the conventional system. While the possibility of diversion was implicit, at least, in the 1998 booklet, arguably restorative justice under the NSRJ program should not divert sexual offences, but might offer a greater range of choices within the criminal justice system. The police could, for example, lay a charge and have it answered in public court, but the court might be able to offer, in circumstances that warrant it and with appropriate safeguards in place, an alternative resolution mechanism with the potential at any time, if necessary, of returning the case back to a public hearing. This possibility, however, would not satisfy those few situations in which the interest of the parties in maintaining an existing relationship would be jeopardized by public exposure. It should be noted that by making charges public, the criminal justice system routinely places the public need to know about offences ahead of the private interests of those accused. The protection of the public is usually weighted more heavily than the potential damage of false accusations. The prohibition on naming youth is the prominent exception. 167

Safety. Safety is the main concern of all three groups of respondents. How will the

NSRJ program ensure safety for participants if the moratorium is lifted extending restorative justice to sexual assault/partner violence? Victim‟s advocates know that offenders of sexual assault/partner violence engage in subtle and often manipulative behaviour and worry that unskilled facilitators/volunteers might inadvertently, unknowingly, and despite the best of intentions, further endanger victims, others involved in the session, and even themselves. Manipulation includes pressure on vulnerable female victims to do what is in the interests of the male offenders, including keeping him out of jail avoiding a criminal record, and maintaining a relationship of dependency.

Respondents within the NSRJ program are aware of potential dangers, such as manipulation and the need for facilitators to be skilled. Both women‟s and victim‟s advocates and those within the NSRJ program suggest that each case of sexual assault/partner violence would need to be assessed carefully on an individual basis to determine suitability. My literature review reveals this is common practice in the few restorative justice programs that handle these offences. The RESTORE program assesses each case individually and screens carefully for ongoing emotional or physical violence

(Hopkins & Koss 2005: 711). This program also ensures safety by collaborating with feminist organizations and sexual assault centers, using trained facilitators, offering

“extensive” preparation to those involved, creating clear rules of conduct (including a no contact rule) with consequences for violation, holding sessions in secure environments, and scheduling arrival and departure times to minimize the opportunity for victims and offenders to meet (Hopkins & Koss 2005; University of Arizona 2009). Many of these precautions are already possible in Nova Scotia; however, any move to accept some 168 sexual/partner violence cases would require that procedures be systematized and professional facilitators be well-trained in the complex dynamics of sessions involving intimate violence.

Victim-centered vs. offender-centered. Women‟s and victim‟s advocates feel the

NSRJ program is offender-centered and question the degree to which victims of sexual assault/partner violence would benefit. A rehabilitative approach that aims to thwart early criminal behaviour is often taken with regard to youth, and underlies the aims of the

YCJA. Restorative justice in Nova Scotia under the direction of the YCJA generally espouses to hold offenders responsible for their actions, offer meaningful consequences, and reintegrate them back into society. Respondents within the conventional criminal justice system and NSRJ program spoke of benefits to youth in conflict with the law, including gaining an understanding of the impact of their actions on the victim, the opportunity to make amends for wrongful behaviour, the opportunity to access resources that might affect the underlying causes of such behaviour, and avoiding a criminal record that might impede future opportunities.

Yet, respondents also spoke at great length about benefits for the victim. In a restorative justice process, the victims are allowed to take part in a dialogue session that allows them to tell the offender the impact the crime had on them. They also take part in ascertaining what action the offender must take in order to make amends. Respondents within the NSRJ program state that, in the case of a broken window or damage to property, monetary restitution is sometimes what the victim wants. In many cases, victims are more concerned that the youth be given access to services that will help them with whatever underlying problems caused the criminal behaviour in the first place. 169

Hearing about events leading up to the crime often helps lessen a victim‟s fear of re- victimization. For victims who believe a crime was directed against them, it is a relief to find out that the offender was randomly passing by and threw a rock or lashed out, perhaps due to a recent argument with a parent or girlfriend. In cases of more serious and violent crimes, a similar effect has been noted. Umbreit, Bradshaw and Coates (1999) have claimed that, for surviving family members of homicide, the opportunity to ask questions of the offender and reconstruct the events of the crime can be beneficial.

Published literature claims that while offender-centered programs are the norm with youth, when restorative justice extends to adults, the process becomes decidedly more victim-centered (Boyack et al. 2004: 266). Daly (2002: 84) has suggested that for youth a focus on rehabilitation may be seen as most appropriate, but that restorative justice for sexual offences must concern itself primarily with vindicating victims. One respondent within the women‟s and victim‟s advocates group claims there is no doubt that some victims wish to confront their offender while others have no interest in having any further contact. This leads to the assumption that making restorative justice available to victims wishing to meet the offender, for whatever reason, might be beneficial, providing key issues, such as safety, have been satisfactorily remedied. Respondents within the conventional criminal justice system and the NSRJ program pointed out that adult diversion does not handle sexual offences/partner violence. One respondent within the

NSRJ program believes it is not the moratorium that precludes these offences, but that the exclusion is written into the protocol of the adult diversion program. If indeed this is the case, the NSRJ program is potentially the only opportunity for adult victims of sexual assault/partner violence who wish to address these issues in an alternative forum. 170

Volunteers. Restorative justice often employs volunteers to aid in facilitating sessions. Two main areas of concern are: 1) safety/lack of specialized knowledge and 2) the lack of resources to train volunteers and/or facilitators. Serious questions arise from women‟s and victim‟s advocates regarding the use of volunteers in restorative justice sessions involving sexual assault/partner violence. This is an area of contention of which the NSRJ program is keenly aware. Respondents in this group are aware of many of the dangers in addressing sexual assault/partner violence. The NSRJ program has no intention of using volunteers in sessions involving sexual assault/partner violence. The only exception might be if a volunteer already had significant experience and training in this area.

Studies show that volunteers with restorative justice agencies tend to be well- educated and have diverse skills (Souza & Dhami 2008). Respondents from the NSRJ program state that the volunteer bank from which the NSRJ program draws its strength comprises a wide range of professionals with diverse skills, including teachers, university professors, police officers, counsellors, and school principals. It is not much of a surprise to note that many of the current volunteers are knowledgeable in the area of youth, as this is the clientele that the NSRJ currently serves. Respondents within the NSRJ program state that the various agencies take note of the particular skills of each volunteer and make informed decisions regarding who to ask to facilitate any given session.

Respondents within the NSRJ program widely agree that only trained facilitators would lead sessions involving sexual assault/partner violence. There is no question that training would be required for those currently employed as caseworkers. One respondent feels it would be the responsibility of the Department of Justice to provide funding for training 171 should the need arise. Another respondent made mention of the possibility of involving professionals in cases involving sexual assault/partner violence. As was noted above, it would likely prove helpful if women‟s or victim‟s advocates were integrated into any alternative dispute process that entailed gendered violence. Furthermore, research in

Nova Scotia might need to look at the status of the volunteers within the NSRJ program and availability of resources, which may differ significantly in urban and rural areas.

Religion, apology, forgiveness, restoration, and healing. In the early days, restorative justice programs were often instigated by avowedly religious groups. McCold

(2006) has noted that this religious flavour was not well-received by some. Respondents in both the NSRJ program and women‟s and victim‟s advocates groups spoke of the general dislike of restorative justice processes espousing religious aims. Despite the creation of a secularized version of restorative justice (McCold 2006), published literature has noted that there is a general unease regarding restorative processes that emphasize apology, forgiveness, healing, and restoration, especially when extended to more serious and violent crimes.

The NSRJ program appears to side-step some of these problems. As a process embedded within the conventional justice system and one which is funded by the

Department of Justice, it is highly unlikely that the NSRJ program would veer toward a strictly religious nature. In some cases, apology is a desired outcome; however, the NSRJ program does not mandate apology as a goal of the process. My literature review reveals that the RESTORE program does not encourage apology in cases of date/acquaintance rape and non-penetration offences, but suggests perpetrators refrain from making a decision to apologize until treatment has been completed in order to increase the 172 likelihood of genuine remorse (University of Arizona 2009). In light of the role apology plays in the cycle of violence, apology must never be a forced component of restorative justice practice (Stubbs 2007). One respondent within the NSRJ program noted the benefit of a sincere apology; however, respondents indicate that apology does not play a role in every restorative justice sessions. Similarly, victim‟s must not be expected to forgive perpetrators.

Also coming under fire are ideas of restoration and healing. Respondents in the women‟s and victim‟s advocates group question the degree to which restorative justice can restore or heal a victim of sexual assault/partner violence. In this context, the use of the term “restorative” becomes problematic. There are diverse ideas within the published literature on restorative justice as to what is meant by restoration and healing, especially in relation to serious and violent crimes. This diversity is mirrored by respondents in my study. Even within the NSRJ program, perceptions vary regarding the role of healing in restorative processes. One respondent downplays the concept of healing in favour of social learning, accountability, voice and reparation. The notion of healing, in some cases, seems only to indicate that amends will be made and that the victim is accepting of the terms under which the amends are to be undertaken. This notion of harm in some sense implies the potential for “healing”. Johnstone and Van Ness (2007: 633) define healing as restoring people who have been harmed “to a better condition than they are in”. From this perspective, if a victim wishes to meet with an offender and gains some sense of satisfaction or closure, then it could be argued that some degree of healing and/or restoration has been achieved. 173

With regard to sexual assault, questions remain as to whether restorative dialogue might help the main stakeholders toward healing, at least in the minimal sense of feeling better following the process. Achilles and Stutzman-Amstutz (2006) believe that restorative justice processes mirror standard crisis intervention, while Gromet and Darley

(2006) suggest that, in cases of serious and violent crime, restoration is considered to be psychological rather than material. Kay (2006) claims the opportunity for murder victim‟s families to tell their story appears to be psychologically healing. One respondent within the criminal justice system made note of the positive impact a victim‟s story has on offenders; however, another respondent in the same group thought that, in the specific case of sex offenders, the impact may be limited.

The NSRJ program meets with both victim and offender prior to an actual session.

This creates an opportunity to understand both victims and offenders needs, assess the role apology, forgiveness, restoration, and healing may play in each unique situation, and screen for potential disaster. Restorative justice in Nova Scotia offers an opportunity to help the involved parties heal, at least minimally, especially in cases where the victim wishes to confront the offender to gain closure. There are limitations, however, to what can be accomplished in a session, even one that is emotionally cathartic, and potential benefits appear dependent on the availability of resources to help the parties after the restorative dialogue has indicated the needs of those involved. Respondents from all groups have made it clear that there is a lack of resources available.

The Role of Women’s and Victim’s Advocates

Women‟s and victim‟s advocates feel they have worked hard on behalf of their clients and have made significant gains in terms of being included in discussions 174 regarding the extension of the NSRJ program to sexual assault/partner violence. They also believe that their expertise is absolutely necessary when creating a restorative justice process that affects the lives of Nova Scotia‟s women and children. They now appear to be well represented at discussions aimed at assessing the potential of extending restorative justice to sexual assault/partner violence. According to the published literature, the input of women‟s and victim‟s advocates, sexual assault centers, and feminist organizations is absolutely necessary in order to create a restorative justice program that meets the needs of women who are victims of sexual assault/partner violence (Burford et al. 1999; Hopkins & Koss 2005; University of Arizona 2009). One of the key features of the few programs that the published literature indicates may potentially offer merit through which to address these particular crimes includes a great deal of input from women‟s/victim‟s groups and organizations. Respondents in the NSRJ program understand the need for input from such groups and seem aware that these organizations will need to play a continuing role in the implementation of a restorative justice approach to sexual assault/partner violence.

Youth and Early Intervention

Initially, I hypothesized that the NSRJ program might potentially offer benefit as a means of early intervention with youth who commit sexual offences. Youth sexual offending appears to, very often, be indicative of a wide range of on-going personal and/or family problems that may even indicate the perpetrator has him/herself been a victim of some form of abuse (Matthews 1997). Sexual offending appears to start early and there is good reason to suggest society look at ways in which to catch early pre- offending behaviour, thereby affecting the problem closer to its roots. One respondent, a 175

Crown attorney, notes that the conventional criminal justice system deals with offenders after-the-fact and believes problems contributing to offending behaviour must be addressed at an earlier stage of life. The moratorium, as it stands, restricts all four entry points from making referrals to the NSRJ program. While there is general agreement, even within the NSRJ program, that discussion needs to continue in order to create a restorative response to sexual offences that encompasses a greater degree of safety, there are three areas where the moratorium appears too restrictive: 1) as a means of reintegrating offenders back into the community, 2) as an educational tool, and 3) where victims request restorative justice.

Post-Incarceration/Reintegration

One area several respondents indicated has potential for growth is offering restorative justice as a means of reintegrating youth back into their communities after spending time in a youth facility. R6, a woman‟s advocate and critic of restorative justice, noted that the main concern at the time of instigating the moratorium, was to affect the post-conviction/pre-sentence entry points. This person was not clear as to whether the moratorium currently precludes reintegrative (post-sentence) sessions, but believes that this referral point was not a main focus at the time. Regardless of initial intentions, respondents within the NSRJ program state that the moratorium does restrict the NSRJ program from offering any service, including post-incarceration, to youth, victims, and communities. One respondent who works with incarcerated youth and one NSRJ respondent indicated that, although reintegrative sessions for youth involved in other crimes are rare, occurring on average only two to three times a year, they are overwhelmingly successful. Within the restorative justice model opportunities exist for 176 sessions with offenders seeking reintegration that could involve community members and surrogate victims, potentially minimizing further harm.

Education

Respondents within the NSRJ program believe restorative justice might be able to offer an educational service to youth. NSRJ agencies create programs tailored to the specific needs of the communities they serve. Some of the most popular programs include: Options to Anger, Stoplifting, and Self-Esteem for Girls. Respondents in the

NSRJ program state that these programs are being requested more and more often. They are available not only for youth on the NSRJ agency caseload, but also for youth identified by schools or communities as needing a certain service and also, in some cases, youth who are on probation. There appears to be an opportunity to affect the root causes of sexual assault by offering youth educational programs that help young women understand what is and is not acceptable behaviour from their male counterparts and encourage them to report infringements. Young men would potentially benefit from a discussion of appropriate behaviour and a better understanding of consent and force. In this way, the NSRJ program might help affect the underlying causes of sexual offending.

Victim’s Wishes

With the moratorium in place, the NSRJ program must refuse all cases in which there is any element of sexual assault/partner violence. Respondents in the NSRJ program relate that they are very careful to comply; however, there is a sense of missed opportunity in rare cases where the victim wishes the matter to be handled through restorative justice. Restorative justice caseworkers have become somewhat experienced at assessing cases of sexual assault – if only because they must send these cases back to 177 the referral source. There have been instances where police or Crown Attorney‟s refer cases that appear, at first sight, to be common assault. Further investigation by restorative justice caseworkers reveals the assault occurred in the context of a boyfriend/girlfriend relationship or included a sexual aspect that was not divulged to police at the time. These are returned to the referral source for further consideration. There have been some low- end offences the restorative justice agencies feel would have been well-suited to a restorative approach. In particular, there have been cases where victim‟s (or parents of victim‟s) have called NSRJ agencies asking that a certain case be handled by restorative justice. Respondents state that requests have come from victims who either want the case handled privately, as in cases of intrafamilial sexual offending, or who want the offender to encounter some consequences for his/her actions, but do not necessarily wish the accused to be given a criminal record.

I was not able to determine exactly what happens to the cases restorative justice refuses. There is a possibility that some cases are dropped with no consequences for the accused and no treatment. Other cases might proceed to court, but high attrition rates suggest few offenders, especially involving low-end offences, actually receive treatment or consequences severe enough to deter future offending behaviour. Also in question is the victim‟s experience of the court proceedings or feelings regarding the offender not being held to account for his/her behaviour. Daly‟s (2006) study “challenges” those who believe that court sends a stronger message to youth who commit sexual assault than a restorative conferencing process does. Daly (2006: 342) states that 94% of cases of youth sexual offending sent to restorative conferencing were finalized with an admission to a sex offence. Of 226 cases sent through court, 51% were finalized as a sex offence and 4% 178 as a non-sexual offence while the rest were dismissed or withdrawn (Daly 2006: 342).

Of the 8% of cases (18) that went to trial, 4 accused plead guilty and 14 entered either a plea of not guilty or entered no plea (Daly 2006: 342). Of these 18 cases, 8 were dismissed, 3 were found not guilty, and only 3 cases were proven at trial (Daly 2006:

342). Providing innocent youth are not persuaded to admit responsibility for fear of an impending criminal trial, it appears restorative justice might, in fact, offer consequences in areas where the criminal justice system is lacking. The NSRJ program is, in theory, well-situated to catch youth sexual offending and is capable of referring them to treatment. The main question future research should address is whether or not restorative justice can achieve more than existing court processes can in relation to youth sexual offending.

Lack of Resources

The potential for the NSRJ program to intervene early, or otherwise aid victims and offenders of sexual assault/partner violence, is dependent on the availability of resources for both victims and offenders. Gaarder and Presser (2006: 488) claim that restorative justice programs must be able to offer sufficient resources because, without resources to support them, results could be “disastrous”. Respondents in the women‟s and victims‟ group indicate that Nova Scotia has pitifully few resources, both for victims of sexual assault and for sexually aggressive youth. R8, a victim‟s advocate, has noted there are only 2.5 specialized sexual assault counsellors in all of Nova Scotia. Certainly this would have to change if restorative justice were expected to handle sexual assault/partner violence and offer resources to support such intervention. 179

Respondents within the conventional justice system and women‟s and victim‟s advocates feel resources available to victims of sexual assault are taxed to the limit. I have noted in the section on the NSRJ program that there was, in the early years, a hesitancy on the part of the higher-end entry points to make referrals to restorative justice

(Clairmont 2005a: 245). I suspect, should the moratorium ever be lifted, that this would again be the case. One respondent, a Crown attorney, has indicated that there might be a willingness to refer some cases of sexual assault/partner violence involving youth, particularly those on the low-end of the scale, only if the perpetrator was willing to take responsibility for his/her actions and only if the prospect was highly likely that he/she would be deterred from future offending. It appears that the number of sexual assault/partner violence cases referred to the NSRJ program would be few, at any of the referral points, at least at first. It would be on the basis of these early cases that an assessment might be made on continuing, expanding, or restricting referrals.

Conclusion

There are many theoretical assumptions regarding the potential harms and benefits of a restorative approach to sexual assault/partner violence. With few empirical studies in which to test these assumptions, published literature on the use of restorative justice for such offences leaves the door ajar in the hope that a better alternative to the conventional criminal justice system response will be found. The one certainty appears to be that the conventional response to sexual assault is problematic.

In Nova Scotia, as in many other jurisdictions, a moratorium is in place restricting the NSRJ program from handling cases of sexual assault/partner violence. After being left out of early planning stages, women‟s and victim‟s advocates have instituted the 180 moratorium in order to gain time for further discussion of key issues involved in the future inclusion of cases of sexual assault/partner violence. My research shows that the concept of keeping the door partially open for further discussion pertains to Nova Scotia.

Most respondents appear to feel there is some degree of merit in continuing discussion of extending restorative justice to some selective cases of sexual assault/partner violence; however, many key issues have yet to be resolved. Respondents in the women‟s and victim‟s advocates group feel they must continue advocating for women who are victims of sexual violence, for to refuse to participate might mean the moratorium will be lifted without their input. They do not feel that the current model of restorative justice employed by the NSRJ is worthy of consideration but some are willing to work toward establishing a model that better meets victim‟s needs. They hold out hope that the

Government of Nova Scotia will heed their expertise. Respondents in the NSRJ program do not feel the current model is conducive to a wide range of sexual offences, though two of the three respondents in this group believe there are some low end cases of sexual assault/partner violence involving youth that they could handle effectively, especially those cases in which it is the victim‟s desire to have their case go through restorative justice. They, too, are willing to engage in discussion with women‟s groups and feminist organizations in order to create a model of restorative justice that is prepared to handle sexual assault/partner violence should the moratorium be lifted. Respondents within the conventional criminal justice system are divided. One respondent is very cautious and takes into account offender‟s rights. Another respondent in this group is enthusiastic, having personally witnessed the satisfactory resolution of sexual assault cases involving youth. 181

Ongoing discussion involving the NSRJ program staff, the Department of Justice, women‟s and victim‟s advocates, and sexual assault centers attempts to ascertain what the NSRJ program should do to ensure that no further harm will come to victims of sexual assault/partner violence. I see no indication from any of the partners to this discussion that the moratorium should be completely lifted. The response to my study does, however, indicate there is a possibility that a blanket moratorium is too restrictive.

The moratorium currently restricts the NSRJ program from handling sexual assault/partner violence cases at any of the four entry points. There is some indication of benefits in allowing the NSRJ program to offer restorative justice to cases where the victim requests it, where the youth is reintegrating into his/her community after a custodial sentence, and as an educational tool aimed at preventing/deterring youth sexual offending.

The NSRJ program has the potential to overcome many of the issues put forth in the published literature. First, it is integrated into the conventional system offering four entry points that allow for a wide range of justice options. Second, it does not mandate apology and forgiveness. Third, when applied to sexual assault/partner violence, the

NSRJ program would forego the use of volunteers in favour of trained caseworkers or professionals. Fourth, restorative justice may encourage reporting and treatment as it allows a more private method of handling intrafamilial offences without losing the authority of the conventional system. Finally, if the program is eventually extended to adults, it will offer the only alternative for dealing with sexual assault/partner violence, as it appears the adult diversion program will never offer this opportunity. 182

Despite some potential, there are several key areas of contention that need to be addressed. Safety is by far the primary concern. Any program that attempts to address sexual assault/partner violence must not create opportunity for further harm to the victim.

Revictimization can never be entirely precluded and, indeed, also occurs in the conventional system. The important point is to structure the process such that it minimizes the risk of harm and maximizes the potential benefits. Second, Nova Scotia has few resources specialized to deal with sexual assault/partner violence, yet effective programs are dependent on having adequate resources to support them. Finally, the implementation of restorative programs aimed at handling sexual assault/partner violence must be a collaborative effort involving the criminal justice system players, restorative justice advocates, women‟s groups, and feminist organizations. It appears that collaboration is in the works; however, it also appears that there is still some degree of positioning that impedes progress. I was impressed by the candid discussion all interviewees offered and believe that they are all working toward the same goal – that of creating a better response to sexual assault/partner violence than the conventional system is presently able to offer.

While it is not clear that extending the NSRJ program to sexual assault/partner violence would be the most cost-effective method of responding to these crimes, suggestions were posited as to how the NSRJ process could accommodate sexual assault/partner violence. One respondent in the NSRJ program sees potential for a specialized intervention model that offers the opportunity for women‟s and victim‟s advocates to be more involved in deciding which cases are appropriate for a restorative approach. Until such a time as the Province decides to once and for all exclude sexual 183 assault/partner violence from the restorative agenda, all parties are determined to continue discussion so that, in the event the moratorium is lifted, they are well-prepared and able to ensure the safety of participants.

Linking Theory and Practice

In Chapter Five, I introduced Daly‟s (2008: 560) “significant change agenda”, which suggests increasing admissions through early intervention, reducing the necessity for fact-finding (trials), and reducing the hyper-stigmatization of sexual offenders.

Arguably, these changes hold the potential to reduce incidents of sexual assault by identifying and treating the problem in its early stages and by changing societal attitudes toward victims, perpetrators, and also the accepted method of punishment. My Nova

Scotia data indicates that most respondents feel there is considerable merit in early intervention, though whether restorative justice is the best tool through which to achieve it is debatable.

Braithwaite and Strang (2000: 203) claim the philosophy of restorative justice is

“lagging” behind the practice and, it could be argued, it is this lack of philosophical thought informing practice that has feminists worried. Daly (2002: 63) notes that some feminist scholars have come to the realization that incarceration is not making society safer, while Gregory and Lees (1994: 82) point out that life imprisonment is rarely meted out to sexual offenders, serving only to offer the public the “illusion” that justice is being served. If the conventional system is limited in its response to the crime of sexual assault, how can society forge a better way of doing justice?

Feminist justice goals appear consistent with a restorative approach, yet there is significant resistance to restorative justice in the feminist arena. Feminism is a broad 184 perspective that includes significant internal differences, as the review of feminist theory in Chapter Four indicates. Liberal feminists generally endorse equity between men and women within the overall framework of existing social institutions. Legal reform of sexual assault legislation was partly the work of liberal feminists, who wanted sexual assault to be treated as seriously as any other crime of violence by the police and the courts and who feared that restorative justice might mean a return to secrecy, informality, and lenience. Radical feminists were instrumental in bringing the scope of sexual violence to light and exposing the failures of the justice system in which victims of sexual violence were systematically revictimized. However, it is likely that many radical feminists see restorative justice as too closely connected with the conventional system, regarding it as an offshoot of the existing justice system rather than a genuine alternative.

In theory, they would likely support a restorative-like approach to sexual violence in some specific cases, but only in the context of an explicitly feminist praxis, guided by feminist theory, and delivered by committed feminists.

Through the qualitative interviews, I expected a relatively close link between the role the subject played in the justice or victim‟s advocacy system, the theory they would espouse, and their attitude toward restorative justice. My most surprising finding was the diversity of views I found among the stakeholders. The formal agents of the criminal justice system endorsed many of the critiques of the system and could see a role for an alternative, restorative approach in many cases of sexual violence. The victim‟s advocates were not as much theoretically opposed to the use of restorative justice-type approaches for some cases as they were opposed to the way the current programme was implemented in the absence of input from women‟s advocacy groups and advocated clear 185 and concrete changes in the delivery of the NSRJ program, such as the use of trained facilitators, sensitivity to the needs and wishes of victims, and enhanced protection for victims. While these respondents had experience with the NSRJ program, they still tended to respond to the program as if it were concerned with „diversion‟, „healing‟, and

„restoration‟ of the victim to a prior, pre-crime state of mental health. Presented with a more well-rounded and accurate image of the goals of restorative justice, victim‟s advocates might be more open to the possibility of the use of alternative justice practices in some specific cases, which would be contrary to the existing moratorium. From the point of view of women‟s and victim‟s advocates, any changes require not just consultation, but some degree of control over the planning for and practice of alternative handling of justice concerns involving intimate violence.

Walgrave (2004: 47-54) views the conventional justice system as “socially destructive”, arguing that restorative justice can be considered “socially constructive” through ridding itself of “top-down rules” that the formal system enforces through threat, coercion, and fear, in favour of “bottom-up motivation” based on trust, participation, and support. Evidence suggests that restorative justice can deal with societal injustice without relying so heavily on the conventional system, reserving incarceration for the few offenders for whom there is no viable alternative in order to ensure the long-term protection of society (Dignan 2002; Braithwaite 2003). From this perspective,

Braithwaite (2003: 1) views the conventional justice system as a “disabler” of social justice, while he calls restorative justice an “enabler” of social justice. Some believe these wider aims can be achieved through restorative justice if it expands to include an agenda for structural change (Gaarder & Presser 2006: 492). 186

How can restorative justice potentially offer a better solution? Clark and Lewis

(1977: 26) claim there has historically been a “conspiracy of silence” engulfing the crime of sexual violence. Restorative justice, with emphasis on allowing those affected by crime a voice, may be able to eradicate this „conspiracy of silence‟ by encouraging discussion. Such discussion has the potential to recognize difference, encourage mutual respect, offer more options, encourage acceptance of responsibility and treatment, affect the root causes through early intervention, change the way we view punishment, affect the institutional/systemic roots of the problem, create a more “nuanced, intersectional approach” (Cameron 2006: 50), ensure non-domination through inclusion of women‟s and victim‟s advocates, and encourage taking active responsibility for wrongdoing

(Braithwaite & Strang 2000; Curtis-Fawley & Daly 2005; Daly 2006; Gaarder & Presser

2006; McAlinden 2006; Daly & Stubbs 2007).

Restorative justice has been called a “feminist vision of justice” by some (Gaarder

& Presser 2006: 491). If feminist models of justice, particularly cultural feminist models, are based on loving, nurturing, caring, cooperation, peace-making, community, and women are more concerned with an “ethic of care” (Gilligan 1982), then the NSRJ program, based as it is on relationships and stressing mutual concern, respect, and dignity

(Archibald & Llewellyn 2007: 305), may offer the potential to deconstruct the current

„get tough‟ approach to crime in favour of a more humane version of punishment that incorporates what Braithwaite and Strang (2000: 210) refer to as a “responsive theory of regulation” based on more cooperative strategies of regulation. Hudson (2002: 621) has stated that we should think of justice, not so much in binary terms of “soft” and “tough” but, rather, in terms of what works. 187

The NSRJ program is entirely in keeping with the YCJA, which espouses a multi- disciplinary approach that prevents youth crime by aiming to affect the “underlying causes” of crime (Dept. of Justice Canada 2009). Thus, a solid argument can be made that the NSRJ program is a viable means through which to address sexual violence, in part as early admission/early intervention that targets underlying causes and encourages active responsibility, thereby reducing trials. As a post-incarceration program, which several respondents noted might be an area for growth, Braithwaites‟ reintegrative shaming theory, noted in Chapter 2 (McCold 2006: 32), is plausible. The NSRJ can, effectively, put Dalys‟ (2008: 560) “significant change agenda” into practice (provided future discussion works out issues surrounding safety and resources) and may greatly contribute to the long-term protection of society. Cameron (2006) advocates for keeping the use of restorative justice for sexual assault/partner violence under moratorium until such a time as data can be re-analyzed to afford a clearer picture of the benefits and harms in order to protect victims and prevent revictimization, at least in that forum.

Enough data is emerging such that it is possible to determine the specific cases for which restorative justice might, ultimately, be most beneficial. My finding suggest many women‟s and victim‟s advocates are willing to continue dialogue with restorative justice practitioners to seek, for some select cases, an alternative to the conventional criminal justice system, and that significant changes to the delivery of the NSRJ program are conceivable. In this light the moratorium in Nova Scotia should continue to be a matter of negotiation and discussion, and it might be the case that an appropriately modified NSRJ program can be a useful model with which to assess the effectiveness of restorative justice in some cases of youth sexual offending. 188

The findings of my research lead me to conclude that the door must be left open for further discussion and research, as per much of the published literature. A better, more victim-centered response to sexual assault is desperately needed. Whether restorative justice comprises part of the answer or not is highly debateable; however, it appears that the NSRJ program, in particular, is well-poised to offer a new and insightful advantage.

Cameron (2006) calls for a moratorium on all new restorative programs for intimate violence until data from existing studies has been re-analyzed to provide some answers to the long list of theoretical harms and benefits. The problem in relying on such findings, as I see it, is that the diversity of programs, processes, understandings, and experiences might further complicate rather than clarify matters. If Nova Scotia is to truly understand the potential for the NSRJ program to respond to sexual assault/partner violence, discussion among women‟s and victim‟s advocates, NSRJ program staff, and the Nova

Scotia Department of Justice must continue and must probe the aforementioned aspects of the process to determine whether or not there is a way forward.

189

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Appendix A: Letter of Invitation

March 19, 2009

Dear Participant:

I would like to take this opportunity to invite you to participate in a study that explores the feasibility of using restorative justice in cases of sexual assault. As a Master of Arts candidate at Acadia University, I will conduct several in-depth interviews in order to assess whether restorative justice poses any benefits to the processing of sexual assault cases. I will interview a cross-section of professionals who work in the legal system, including restorative justice agencies. I will also interview professionals who work with victims of sexual assault. As an interviewee, your input allows me to gain a clearer understanding of the potential harms and benefits of a restorative-based approach to sexual assault. I hope, in particular, to determine the ways in which restorative justice might be applied to cases of sexual assault involving youth in Nova Scotia. If you have any questions regarding this study or your role as a participant, please do not hesitate to contact me, Lisa MacDougall, or my supervisor, Dr. Anthony Thomson, using the following contact information: Lisa MacDougall: Phone: (902) 825-6414 Email: [email protected]

Anthony Thomson: Phone: (902) 585-1210 Email: [email protected]

Thank you for your consideration. Sincerely;

Lisa D. MacDougall MA Candidate, Acadia University

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Appendix B: Informed Consent Form

Acadia University Research Consent Form

Title of Research Project: You are being invited to take part in a research project entitled “Restorative Justice and Sexual Assault: Why Is The Door Ajar?” (Working Title)

Graduate Student: Lisa Dawn MacDougall Department of Sociology Acadia University [email protected] Telephone: 902-825-6414 Research Supervisor: Dr. Anthony Thomson Department of Sociology Acadia University Wolfville, NS Email: [email protected] Telephone: 902-585-1296 Fax: 902-585-176 Purpose of Research: This thesis will examine some of the main concerns posed when considering the use of restorative justice for sexual assault and will then explore whether or not respondents believe restorative justice can potentially reduce recidivism and increase victim satisfaction in relation to sexual assault. Description of Research: This research will examine literature on the use of restorative justice for sexual assault and will explore key concerns through interviews. Your participation in the interview phase of this research will serve to highlight opinions as to the merit of extending restorative justice to cases of sexual assault. I will ask questions regarding your knowledge of restorative justice and/or of the concerns of victims of sexual assault. I will also ask your opinion as to whether or not restorative justice holds the potential to improve the treatment of both victims and offenders of sexual assault. I expect the interview to take one hour to one-hour-and-a-half. With your permission, this interview will be taped and notes will be taken. If not taped, I will take notes throughout the interview. I will then analyze my findings and attempt to discern why literature on the use of restorative justice leaves the door ajar for further discussion and whether or not there is any place for restorative programs when dealing with cases of sexual assault. 204

Potential Harms: There are no known harms or anticipated risks associated with this research. Potential Benefits: There are no known benefits to you associated with your participation in this research, though your participation in this research will aid in the creation of new knowledge around the issue of restorative justice and sexual assault. Alternatives: As a research participant you will not be disadvantaged in any way if you choose not to participate in this study. Confidentiality: Confidentiality will be respected. No information that discloses your identity will be released or published without your specific consent to the disclosure. Only myself, Lisa D. MacDougall, and Research Supervisor, Dr. Anthony Thomson, will have access to any identifying information provided for the purposes of this study. All research notes, transcripts, audio tapes/records will be kept in a locked cabinet in the Department of Sociology at Acadia University. All data will be destroyed after two years. Publication: Results of this research will be presented in an oral defence required for the degree of Master of Arts in Sociology at Acadia University, to be held in August 2009. Upon request, results will also be provided to you. Your identity will not be revealed at any level of the research, including the oral defence. Reimbursement: There is no reimbursement for participation in this research. Participation: Participation in research must be voluntary. You have the right to refuse to participate in this research. A decision to participate in this research is not binding. You have the right to withdraw at any time without negative consequences. At various points in the interview, the researcher will ask whether or not you wish to continue to participate; however, withdrawal of your participation does not necessarily include withdrawal of any data compiled up to that point. Commercialization and Conflict of Interest: The researcher will not profit financially from this research. The goal of this study is to enhance knowledge that can then be shared with other interested parties. I, Lisa D. MacDougall, am a volunteer with Valley Restorative Justice operating out of Kentville, Nova Scotia; however, there is no known conflict of interest between myself and any third party affiliation. While employees of Valley Restorative Justice may be interviewed, they will not play a role in the final analysis or the results of this research. Consent: The intention of this research project is to highlight concerns around the use of restorative justice for cases of sexual assault and to find out whether or not there is any merit in considering restorative justice processes for cases of sexual assault. The potential harms, benefits and alternatives have been stated above. You may, at any time, ask questions regarding the research. Your signature below indicates that you have entered into the research voluntarily and that you have read and/or understand the relevant information provided in this consent form. You also understand that you may ask questions in the future. Your signature on the Research Consent Form indicates free consent to research participation. As a matter of standard practice, an unsigned copy of 205 this form will be provided to you; however, upon request, a signed copy will also be provided. By signing below, you agree to participate in this research.

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Name of research participant (PLEASE PRINT)

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Signature of research participant Date

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Signature of researcher or research supervisor Date

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Appendix C: Interview Guide

General Questions

1. What is your understanding of restorative justice as it would apply to sexual assault? 2. Given your present understanding of restorative justice, are there any instances in which you feel restorative justice merits consideration when dealing with sexual assault? Youth? Adults? Level 1? Level 2? Level 3? Low-risk? Medium-risk? High-risk? Pre-sentence? Post-incarceration? 3. Have you read any literature specifically on the use of restorative justice for crimes of sexual violence, such as sexual assault and domestic violence? 4. Do you have any knowledge of restorative justice programs which presently deal with sexual assault cases? Canada? Elsewhere? 5. Do you think that restorative justice can be used effectively to deal with cases involving sexual assault? Why or why not? 6. Do you have any concerns regarding the use of restorative justice for cases involving sexual assault? If so, what are your concerns? Safety? Power imbalance? 7. What do you see as the main concerns when considering the use of restorative justice for cases of sexual assault? Safety? Power imbalance? 8. Do you view the conventional criminal justice system as currently meeting the needs of victims of sexual assault? Of offenders? 9. Assuming for a moment that you could create a „best practice‟ scenario for cases of sexual assault within a restorative justice model, what would it look like?

For Those Familiar With RJ

1. At present, restorative justice in Nova Scotia is primarily used for youth ages 12 - 17 who have committed relatively minor crimes. What do you see as the main benefits of restorative justice for this group of offenders and their victims? 2. Do you feel that restorative justice can be used for a wider range of offenders and offences, if used in conjunction with conventional criminal justice system processes? 3. Are you in favour of extending the use of restorative justice to cases involving sexual assault? For youth? For adults? Pre-sentence? Post-sentence? Post- incarceration? For low-, medium-, or high-risk offenders? Level 1, 2 or 3 sexual assault? 4. Do you agree with the moratorium on the use of restorative justice for sexual assault/partner violence? Why or why not? 5. What do you feel would be the best way to deal with sexual assault victims within a restorative justice model? Offenders? 207

6. Do you see restorative justice being extended to more serious crimes in the future?

For Those Who Deal With Victims of Sexual Assault

1. What is your understanding of restorative justice? 2. Do you believe that the conventional criminal justice system adequately responds to cases of sexual assault? 3. In your opinion, what do victims of sexual assault need most to begin the healing process? 4. What do you feel could be done to improve the response to crimes of sexual assault? 5. Are you in favor of extending the use of restorative justice to cases of sexual assault? For youth? For adults? Pre-sentence? Post-sentence? Post- incarceration? For low-, medium-, or high-risk offenders? Level 1, 2 or 3 sexual assault?

Those With Knowledge of Restorative Justice Programs Dealing With Sexual Assault

1. When was the ------started? 2. Is the ------still in operation? 3. Why did the program cease operation? (If Applicable) 4. Can you relate the full range of crimes handled by the ------? 5. The ------handled cases involving youth involved in sexual assault cases. Is this correct? 6. What Level of sexual assault cases was this program used for? 7. What federal legislation governed youth crime in Canada when the ------was started? 8. How did the change to the Youth Criminal Justice Act affect the program? 9. What do you feel are/were the main benefits of the program for victims? Offenders? 10. In your opinion, was the ------effective when dealing with crimes of sexual assault? 11. Do you have any knowledge of restorative justice programs that deal with serious/violent crimes? With adults?