The Myths and Misconceptions of Restorative Justice

By Ailbhe Griffiths

Restorative justice does not require forgiveness on the part of the victim, nor an apology from an offender for successful outcomes.

This is one of the most frequent misperceptions the general public have about restorative justice. Restorative justice can relatively frequently, result in spontaneous forgiveness and apology between the parties, but it is absolutely not a prerequisite. The overall objective of the restorative process is to heal the harm caused to the victim in serious crime cases, and that can actually be achieved in a number of ways. By the victim making statements to the perpetrator, by the victim asking questions of the perpetrator, such as why did you do it? Or simply by the victim sitting in the same room as the perpetrator, or a combination of all these options.

The process would be guided primarily by what the victim feels he or she needs out of the process. Whilst obviously taking everyone else's needs into account at the same time. For some victims, such as myself, forgiveness was important to help me free myself from the negative impacts of the crime. But because we are all individuals, this is not something that everyone would need, and that is okay.

One of the major benefits of restorative justice is that unlike with the criminal justice system, the focus is on the victim and her or his needs, and the entire process is guided by exactly that. They are no longer on the periphery of the process, but rather central to it entirely.

One of the most common misperceptions about restorative justice that I have found throughout my advocacy work is that it is an easy way out for the perpetrator.

I believe this possibly stems from a public perception that it will immediately result in a reduction of a sentence if criminal proceedings are in progress at the same time, or that it adds no value if criminal proceedings have never taken place. Restorative justice is often used by countries as a way of diverting young offenders away from crime, and it is in this context that a sentence can be impacted. However, to distinguish this entirely in serious crime cases, restorative justice often takes place when an offender is already in prison and even, as happened for me, when he or she is on probation. It isn't to be used as an alternative to criminal justice, but as an additional mechanism of justice for the victim.

There is no easy way out for the perpetrator during the restorative justice process. He or she must acknowledge the harm they have caused the victim and they must face up to the truth and impact of their actions. From my own experience, I know that it was only hearing the impact of his actions from my own mouth that he ever fully understood the harm that he had caused, and I don't believe there was anything easy in hearing that.

Restorative justice does not only involve a face-to-face meeting with the perpetrator or in other words, a victim offender dialogue remediation. Because restorative justice is a process and not just a meeting which involves a lot of preparation work. It can and does happen that the communication between victim and perpetrator ends up happening in other ways. Such as via letter, video conferencing or via shuttle mediation through audio recordings or video recordings. Restorative justice focuses on maximising healing for the victim and should always be structured around what would make the victim most comfortable and what is possible.

Either the victim or the perpetrator may choose not to have a face-to-face dialogue for a variety of reasons, but it is important to understand that this is not the only way restorative justice can take place. There are less direct ways of conducting the restorative process. All of this can be discussed around the time of the preparation meetings.

Restorative justice in serious crimes should be used as an additional mechanism of justice for the victim and not be used as an alternative to criminal justice.

In my view, they should work in conjunction with each other, but should absolutely not be impacted by each other. Restorative justice in some jurisdictions can also be used in cases of crimes that were never reported to the police or in instances where criminal proceedings were brought that didn't dent the conviction. But simply on the basis that restorative justice has the power to bring closure or healing to victims of crime, it should be available for all victims. With restorative justice, the focus here shifts entirely from the punishment of a perpetrator down to criminal justice to closure or healing for a victim.

A fundamental requirement for a restorative process is that the perpetrator must acknowledge they have caused harm to the victim.

This is a critical aspect to ensure that there can possibly be a successful outcome. Many perpetrators may also admit criminal guilt, and this may often take place in instances where the perpetrator is already in prison or on probation. However, considering what the overall objective of a restorative process is, it is the admission that harm was caused by the offender to the victim that's important. This presents the victim with an opportunity to make statements to the offender about the impact of the crime or to ask questions of him, or simply sit in the same room with him, for example, to remove their own fear.

This is often more than sufficient for a really successful outcome.

Restorative justice is an entirely voluntary process, and because it is a process, that means that at any stage either the victim or the perpetrator can decide to end it.

Neither party can nor should be forced to take part. In cases involving serious crimes, the process should typically be victim initiated, but it is optional for the offender as to whether he wishes to engage. Even in instances where a process is initiated by the victim, she or he is free to terminate the process if they choose to.

Another common misunderstanding about restorative justice in these cases is that it doesn't involve a large amount of preparation in advance.

In actuality, the largest amount of work goes into the preparation meetings with the facilitators of a restorative justice process and their respective meetings with each party involved. This can and frequently does take several months of work and I've heard of instances that it extended beyond a year. The length of time of course it takes will be largely subjective to the circumstances of the parties involved in the process. The objective of the preparation meetings is to coordinate and plan to the maximum extent possible, what will ensue during the meeting.

For example, in terms of what statements the victim survivor may want to make, what questions she may want to ask and what she may expect or anticipate from the perpetrator in response. It is also a way of minimising the possibility of re-victimisation or traumatisation of the victim because she should be prepared in advance for what she will encounter in the room.

There is a common misperception in the general public that restorative justice is used as a method of rehabilitating the perpetrator.

For less serious crime or youth offending, restorative justice may often be used to divert the perpetrators away from crime by holding them directly to account in the presence of the victim of their crime. However, we must distinguish this from how restorative processes operate in serious crime cases. Firstly, they are very frequently victim initiated, meaning the victim has requested it. Additionally, the primary focus of the process is to present the victim survivor with an opportunity to see closure or healing from the after effects of a seriously traumatic event or a series of events in their lives.

The process offers them a unique opportunity to make statements to the very person who caused their trauma or to ask questions of him, questions that nobody else on the earth can answer above him, or finally, the opportunity to sit and face them and feel their fear diminish. Studies undertaken on the impact of restorative meetings indicate that posttraumatic stress is reduced in the victim and also victims report high satisfaction rates. For me, I have and continue to say that it was a lifechanging experience.

A direct consequence of a restorative meeting may be that it helps rehabilitate a perpetrator. You know, in my own case it was only after a meeting with me that I believed there was a true recognition on the part of the perpetrator for the harm he had caused me. However, rehabilitation of offender in these cases is not the main objective of the process.

One myth I have encountered is that restorative justice isn't suitable or appropriate in cases involving serious violence, sexual violence or homicide.

Although this narrative is gradually changing, it is still a common misperception that displays in my view, a fundamental misunderstanding about one of the core benefits of restorative justice. It also suggests a misunderstanding about who should be the primary focus of the restorative justice process in serious violence cases. Now, I've heard from restorative justice experts that the greater the impact of a crime to the victim, the greater the need for restorative justice, and I agree.

So why is that the case? Well, when we listen to what victim survivors say about their experiences following the crime, they often have a feeling of being disempowered. They feel disempowered by the crime and then often feel on the periphery of a criminal case which reinforces their sense of feeling disempowered. Many feel unheard without full and truthful accountability from the offender. Even in criminal cases which end in conviction, they find it hard to truly and unequivocally move on with their lives.

Restorative justice offers one way for them to do this, and I have personally encountered many people during my advocacy work who have experienced just that. As the past victim of a serious sexual and physical assault, the crime left me feeling disempowered in a way I could never have envisaged before. But it was only by virtue of my restorative meeting that I felt I had reclaimed my power. Restorative justice for young offenders or less serious crimes is important, but it is critical, in my view, to understand that the focus of restorative in serious cases is back on the victim survivor, presenting them with an opportunity to find healing or closure, and in that way, it is highly suitable and highly appropriate.

Another extremely common fear the public has about restorative justice in serious crime cases is that it will retraumatize the victim.

However, it is important to understand that restorative justice is a process. This process must happen to ensure that the risk of re-traumatisation of the victim is minimised as much as possible. The process of restorative justice involves meeting with the facilitators, typically multiple times in advance of any meeting taking place between the victim and perpetrator. The objective of these meetings is to discuss what the victim wants to achieve with the meeting and how they can make that happen in the safest possible way.

It is the job of the facilitators to prepare the victim for what he or she may face when entering the room. To the maximum extent humanly possible, the meeting is pre planned from beginning to end and the victim should walk into the room with their eyes wide open, knowing what they will face. At any stage during the preparation meetings or during the meeting itself, should a victim feel threatened, concerned or intimidated, the process can be immediately terminated. The facilitators, led by the victim's request, prepare very practically for the meeting to ensure maximum safety by defining things like Who sits where in the room? Who arrives first or leaves first following the meeting?

You know, it's worth saying at this point that this fear I know stems from a good place in that the public clearly wish to protect the victims from further victimisation. But there is a danger here that the fear controls who has access to Restorative Justice and I believe no one, no one at all but the victim should decide who has access to Restorative Justice.

It's the job of those around the process to make sure it happens in the safest possible way.