Why is the system steering clear of restorative justice for rape victims?
The court was advised that restorative justice is ‘not feasible’ because Christopher O'Grady, aged 34, and formerly of Muirhevnamor, Dundalk, Co Louth, does not accept full responsibility for his offending, according to his position during an interview with a Probation Officer.
During a recent rape trial in the Central Criminal Court, a female Spanish student asked to meet her attacker in a safe space and look him in the eyes. She had questions she wanted to put directly to him.
This is part of a process known as restorative justice. Following brief consultations with their legal teams, the convicted perpetrator agreed to engage in restorative justice and the victim/survivor reaffirmed her request. Both prosecution counsel and the trial judge appeared unsure if such a case would be suitable for restorative justice, but prosecution counsel agreed to investigate. As it transpires the case was handed over to the Probation Service.
Based on a wealth of Irish and international research, cases of sexual assault and rape can indeed be suitable for restorative justice, once consent is freely given by all parties and the perpetrator accepts causing harm.
The job of the professional is to make the process as safe as humanly possible. This is done by ensuring there is full and free consent to participation, engaging in significant preparation for as long as it takes, managing expectations, addressing and mitigating the power differentials that arise in such cases, and, most importantly co-designing the process with the victim/survivor.
Indirect restorative justice processes are perfectly possible in such cases, involving shuttle or video-recorded ‘meetings’, if preferred by the victim/survivor and the offender is willing. It is not the role of professionals in the Probation Service or anywhere else to take the decision regarding restorative justice away from victim/survivors, in what amounts, albeit inadvertently, to undermining the victim’s power (as sexual violence does already) and taking away the victim/survivor’s right to know what is good for him/her in life.
The court was advised that restorative justice is ‘not feasible’ because Christopher O'Grady, aged 34, and formerly of Muirhevnamor, Dundalk, Co Louth, does not accept full responsibility for his offending, according to his position during an interview with a Probation Officer. Accepting this perspective, the trial judge noted the 'door is closed' to restorative justice at this time. Effectively the victim is now to wait — holding up her life further — until the professionals decide whether it is ever feasible for restorative justice in her case.
Defence counsel says the perpetrator accepts the verdict of the court that there was ‘some wrongdoing on his behalf’ in his interactions with the woman. This is a good start. Outright denial is a prohibitor for restorative justice but partial responsibility-taking is not. He had also apologised for his behaviour.
One wonders what the perpetrator will have to say to persuade the Probation Officer that he accepts ‘full’ responsibility for the offence before the victim/survivor’s request can be honoured? Accepting full responsibility for one’s offending can be a lifelong process and enhanced by engagement with those directly harmed. I wonder if the Probation Service met the Spanish student to hear her views on his partial responsibility-taking — an essential part of restorative justice processes? She wanted to put her questions and is now denied that right.
When Ailbhe Griffith and I first approached the Probation Service in 2014 for restorative justice in Ailbhe’s case we were told of the need to protect the community, the importance of the offender’s rehabilitation. Ailbhe was even thanked for supporting the offender’s rehabilitation by coming forward with her request. Notably, she was also informed the perpetrator was not willing to apologise for his actions although he had pleaded guilty to the crime.
Given an apology was not what Ailbhe wanted, she asked to proceed with the process, the outcome of which she describes as life-altering. An ‘unideal’ candidate for restorative justice, such as one that is not contrite or accepting ‘full’ responsibility, does not mean a successful outcome cannot be achieved for a victim/survivor, depending upon what he/she wants from the process.
Inadequate knowledge of the philosophy, values, and methodologies involved in restorative justice in sexual violence and complex cases was evident in Ailbhe’s case, as was a disposition towards institutional protection. One could be forgiven for thinking this continues to be the case today.
While the Probation Service does a great job in many spheres of criminal justice, unfortunately its mission to protect the community — and the agency — and reduce offending leaves victim/survivors marginal to its core mission, and its work on restorative justice in complex cases underdeveloped, despite the work of the Victims Unit in trying to advance this work and include victim voices.
Research has demonstrated that the greater the impact of the crime the greater the outcome of restorative justice for victim/survivors. Case studies demonstrate the life-changing benefits of restorative justice for victims, perpetrators, and families involved in sexual violence cases. Why therefore is there such reluctance in Ireland to give victims and offenders of sexual violence this opportunity, especially when victims expressly request it?
The response to the Spanish student’s request raises a number of issues. At the very least it is time for the judiciary and legal professionals to increase their knowledge of restorative justice in sexual violence and other serious cases.
It is also time for an additional restorative justice service to be established in the state outside of the Probation Service, whose primary mission is to protect the community, and reduce offending. This would give victims and legal professional choice as to where to access restorative justice services. Victim voices must be at the heart of restorative justice in sexual violence cases, not that of criminal justice or other professionals. This is one of the main differences between criminal justice and restorative justice.
One cannot but feel there was a huge sigh of relief when the Probation Service said restorative justice in this case was not feasible right now. Again, we do not have to address the issue that I and others have been advocating for since 2014, the right of victim/survivors of sexual violence to restorative justice service that prioritises their needs. Meanwhile, victim/survivors are left disempowered and waiting while professionals continue to tell them they know better than they do themselves what is good for them.
Professor Marie Keenan is a lecturer at the School of Social Policy, Social Work and Social Justice at UCD. She has published extensively on restorative justice
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