Exploring the Use of Restorative Justice in Domestic Violence Cases

1. Exploring the Use ofRestorative Justice in Domestic Violence Cases Nina Balsam, J.D., M.S. Univ of Missouri Extension BalsamN@missouri.edu

2. What is Restorative Justice Set of principles that guides the justice process. Howard Zehr, one of founders of modern Restorative Justice movement defines it as “…a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible.”

3. Restorative Justice • Focuses on the harm to the victim and healing that harm • Holds the offender accountable by having him take responsibility and make amends • Uses a collaborative process, when possible • Involves the community in supporting the victim and holding the offender accountable

4. Goals of Restorative Justice Susan Sharpe in Restorative Justice: A Vision for Healing and Change, defines the goals as: • Putting key decisions in the hands of those most affected by the crime, • Making justice more healing and more transformative • Reducing the likelihood of future offenses

5. Achieving Goals Achieving goals requires that: • Victims are voluntarily involved in the process and come out of it satisfied • Offenders understand how their actions affect other people and take responsibility for those actions • Outcomes help to repair the harms done and can address the causes of the offense • Ideally, victim and offender both gain a sense of closure and are reintegrated into the community

6. Principles Put into Practice Models of Restorative Justice • Victim/Offender Dialogue • Family Group Conferencing • Circle Sentencing • Community Boards • Victim Impact Panels

7. When and How Put Into Practice • A Restorative Justice Practice is often done in conjunction with the Criminal Justice System • Can be done as a • diversion from prosecution, • in the sentencing phase • in the probationary phase, • when an offender is in prison, • at the parole stage

8. Principles as Applied to Victims • Any process is voluntary on the part of the victim • The focus of the process is healing the harm to the victim in that she has a major role in structuring the result so that she gets what she needs to help make her whole • Offenders only participate if they are willing to accept responsibility and are held accountable during and after the process • The community participants support the victim and hold the offender accountable.

9. Why Might Victims Want to Engage in Restorative Justice Process • Victims are dissatisfied with the CJS response • Victims experience greater healing and empowerment; and think the process is fairer • Get questions answered • Can voice the harm they experienced • Can have the harm acknowledged and addressed • Have voice in how harm is addressed • Offenders come to understand the impact of the crime on the victim, are more likely to comply with restitution, and less likely to re-offend; • Community involvement can provide support and validation to victim

10. Caveats • Not all victims want to participate or are ready to participate in a Restorative Justice process • Not all offenders are ready or able to participate in a Restorative Justice process • And there are special considerations in domestic violence cases

11. Considerations in DV Cases • Safety • Inequality of power • History of violence • Intimate relationship • Family dynamics and lack of support • Societal prejudices and lack of support • CJS prejudices, coercion, exacerbation • Possibility of use by offender to further victimize • Concern that offender will get off easier using RJ

12. Despite or Because of Considerations… Survivor may want to participate and participation may benefit them. And,there are programs that are using RJ in DV cases. So How can we construct process that responds to the considerations and is most potentially beneficial to the survivor?

13. Responding to Considerations • Develop program with domestic violence survivors/advocates • Base program on foundational principles that prioritize victim safety, do not blame victims, and focus on offender accountability, • Construct program consistently with cultural values/practices • Consider the stage at which the process occurs • Consider the circumstances under which the process occurs • Consider the preparation for the process • Consider the training and skill of the facilitator • Consider the support for the survivor before, during and after the process • Consider the support for the offender to transform

14. Four Models that Are Working • Sentencing Circles (MN) • Surrogate Dialogues (MN & OR) • Family Group Decision Making/Child and Family Team Meetings (Canada & US-NC) • Victim Impact Panels/Indirect Dialogue on Domestic Violence (MO/TX)

15. Sentencing Circles • Occurs in criminal cases with survivors who want to participate and offenders who admit guilt and articulate a desire to change • Includes the survivor and offender, their family members and supporters, and a prosecutor • Group determines consensually the sentence the offender should receive and what the offender needs to do to repair the harm, and judge approves • Follow-up meetings to oversee compliance and healing circles to support the survivor • Twenty-five DV cases have been handled since the program’s inception and 95% of the offenders have not re-offended Caveat: Sentencing Circles may not be working as well for Canadian Aboriginal Women due to colonialism changing the culture, see “No Women in the Center: The Use of the Canadian Sentencing Circle in Domestic Violence Cases”, Rashi Goel, Wisconsin Women’s Law Journal, Vol. 15, 2000

16. DV Surrogate DialogueHillsboro, OR • Process occurs after offender is convicted and is in prison • Survivors request to participate through referral from shelter • Survivors do not meet with their offender • Survivors and offenders are thoroughly screened • Survivors and offenders are thoroughly prepared • Offender only participates if he takes responsibility • Facilitator is knowledgeable about DV • Anecdotal outcomes • Survivors find more peace, understanding that it was not their fault • Offenders become more aware of the impact of abuse

17. DV Surrogate Dialogues (Duluth, MN) • Involves survivors who are current or past shelter residents and offenders who are in BIPs (participants do not know each other) • Survivors request referral from the shelter and are screened and prepared to assure their readiness to participate • Offenders are carefully screened and only accepted if they are ready to take responsibility; they are prepared through pre-dialogue sessions • Survivors and perpetrators are paired to match their demographics • Co-facilitated by shelter support group facilitator and BIP facilitator • Anecdotal outcomes of a small sample show • Survivors who are happy they participated and felt heard, more healed and empowered by the process • Offenders who were enlightened about the harm they had caused and remorseful

18. Family Group Decision Making (Canada)Child & Family Team Meetings (NC) • Initiated in co-occurrence (child maltreatment/DV) context • Involves group meetings with victim, offender, family members and supporters, and institutional players • Safety assessment (all cases) determine if safe to proceed • Large amount of time spent on safety planning and preparation to develop support for the adult victim in caring for the child and ending the abuse against her and the child • Plan is developed by the family and institutional players approve the plan • Measurable outcomes with FGDM show substantially less child and adult abuse, and less controlling behaviors, emotional abuse and patriarchal belief. • Anecdotal outcomes with CFTM show high family satisfaction and less removal of children.

19. DV Victim Impact Panels (MO)/Indirect Dialogues (Austin, TX) • Survivors and offenders volunteer, are screened carefully and prepared well • Offenders and survivors do not know each other • Survivors have some distance from the relationship • Indirect Dialogues consist of survivors presenting to offenders, offenders can submit questions, but no direct interaction • VIPs consist of survivors, recovering men, and community members presenting to offenders, generally no questions are allowed unless at survivors so request • Support provided to survivors and offenders afterward • Qualitative outcomes for VIPs • Survivors are happy they presented and it helped with empowerment and healing • Offenders understand the impact of the crime, are remorseful and are not re-offending • Anecdotal outcome for Indirect Dialogues • Survivors experience faster healing and empowerment • Offenders understand the impact of the crime, are remorseful

20. Model that May Not Work Intimate Partner Healing Circles • Used when no involvement from CJS • Based on the assumption that DV is bi-directional and holds both offender and victim accountable for the violence in the relationship due to provocation • Develops social compact about how each will change and requires the care community (support people) to support those changes • Safety person appointed to help monitor, but can intervene and call police • Uses couple’s counseling, and other referrals to support change • Potentially endangers victims

21. Model that May Not Work (cont.) Intimate Partner Peacemaking Circles • Used for arrested offenders in Criminal Court after restraining order, guilty pleas or child welfare adjudication issued • Offers a forum for monitoring underlying relationship issues and destructive behavior to prevent future abuse • Based on assumption that DV is bi-directional and often provoked by victim; both must address personal responsibility in promoting violence • Social compact is used to enforce changes in both parties • Safety person appointed who can intervene or call police • Onus on victim to refer case back to court process • Potentially dangerous to victims

22. Promising Practices • Feminist-Restorative Justice Hybrid Projects (Safety Conferencing) • Culturally-Based, Solution-Focused Processes (Hawaii and South Africa) • Community Initiatives to Stop Violence Against Women

23. Safety Conferencing Next Step in Joan Pennell’s work • Conferences for survivors and their supporters (including DV advocates), place survivor and supporters in the center, develop a safety plan and create a support system, prioritize safety and attentive to cultural context (seen as extending elements of coordinated community response) • Could include offender, she can confront him, have him take responsibility & make amends, develop plan for accountability • Survivor is the decision-maker, whether and when conference should be held, who should attend, what she needs to be safe (e.g. protection order/police), what should be done to repair the harm, etc. • Program developed in conjunction with the North Carolina Coalition against Domestic Violence, DV survivors and advocates, etc.

24. Culturally-Based Initiatives • Pono Kaulike in Hawaii • Restorative justice processes, (based on solution-focused therapy) used in conjunction with CJS after plea and with voluntary participation by both parties • Uses conferencing with all present, or dialogue between parties, or separate sessions for survivors and offenders (with supporters) • Experimental study showed long term satisfaction and half the recidivism rate of the control group (57% vs. 29%) • Victim Offender Conferencing in South Africa • Designed to be community based and applicable within a South African context for one time offense crimes between strangers, but being used most for DV cases (60%) • Diversion of cases with parties’ consent (meet separately with victim to determine) • Conferences (parties and supports) facilitated by community members with training in mediation, RJ, & DV, resulting in agreement that is monitored for compliance • Survey by phone of 21 survivors at 6 & 18 months, survivors reported they were given safe space to speak about the impact of the crime and for those who remained together, there was no further abuse, even verbal abuse

25. Community Initiatives to Stop Violence • Communities organizing to support survivors, hold offender accountable, and promote transformation (rejecting the CJS as a viable way to deal with DV/SA in communities of multiple oppressions) • Known broadly as Accountable Communities seeking Transformative Justice: • Chrysalis Collective created Survivor Support Team, Accountability Team and a Transformative Plan for holding offender (rapist) accountable • Challenge of Male Supremacy Project convened Accountability Circle in response to sexual assaults by male member of community, included individuals offender respected, one survivor attended and another’s voice was present by proxy • Community-Based Interventions Project, a demonstration project that represents an alternative community-based approach to violence interventions*

26. Resources • “Exploring the Use of Restorative Justice in Domestic Violence Cases”, Judge Bennett Burkemper and Nina Balsam, St. Louis University Public Law Review, 27, no.1 (2007) • “Restorative Justice and Intimate Partner Violence”, James Ptacek and Loretta Frederick, VAWnet Applied Research Forum (January 2008) • Domestic Violence and the Justice System: A Troubled Marriage, Leigh Goodmark, (New York University Press, 2012) • “Restorative Justice and Family Violence: From Court to the Community” by Judy Brown • “HE WAS TRULY LISTENING TO WHAT I WAS SAYING”: An In-Depth Look at Domestic Violence Surrogate Dialogues, Julie A. Peter, Thesis Project at University of Minnesota for Dr. Emily Gaarder, (November 2010) • “Applying Restorative Justice to Ongoing Intimate Violence: Problems and Possibilities” by C. Quince Hopkins, Mary P. Koss, and Karen J. Bachar, St. Louis University Public Law Review 23, no.1 (2004)

27. Resources (cont.) • “Survivors Telling It like It is to Batterers: Indirect Dialogue on Domestic Violence” Tony Switzer, NCADV, The Voice: The Journal of the Battered Women’s Movement, (2011) • “Safety Conferencing: Toward a Coordinated and Inclusive Response to Safeguard Women and Children”, Joan Pennell & Stephanie Francis, Violence Against Women 11: 666 (2006) • “Pono Kaulike: Reducing Violence with Restorative Justice and Solution-focused Approaches,”, Lorenn Walker & Leslie Hayashi’, Federal Probation Journal, 73, no. 1, (June 2009) • Restorative Justice and Violence Against Women, Ed. James Ptacek, (Oxford Univ Press 2010) • The Revolution Starts at Home, Eds. Chen, Dulan, Piepzna-Samrasinha, (South End Press, 2011)