Restorative Justice and Sexual Assault in Nova Scotia: Why Is the Door Ajar?
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RESTORATIVE JUSTICE AND SEXUAL ASSAULT IN NOVA SCOTIA: WHY IS THE DOOR AJAR? by Lisa Dawn MacDougall Thesis submitted in partial fulfillment of the requirements for the Degree of Master of Arts (Sociology) Acadia University Fall Convocation 2009 © by Lisa Dawn MacDougall, 2009 ii 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). iii 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 iv 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 vii 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. viii 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