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Article Excerpt
Because of an increasing awareness of inadequacies in the criminal justice system in meeting the needs of victims of crime, there is a growing movement to use alternative, more informal forms of instituting justice for victims, offenders, and communities (see, for example, Belknap, 2007; Bui, 2007; Chesney-Lind, 2002; van Wormer & Roberts, 2009). The strategies, known collectively as restorative justice, involve a conferencing process guided by a trained facilitator. The purpose of the restorative form of justice is reconciliation rather than punishment, healing rather than retribution. To date, restorative processes have been used primarily to deal with cases of property crime and juvenile offenders. "No one foresaw," as researchers Umbreit, Vos, Coates, and Brown (2003) informed us, "that such processes might be appropriate in cases of severe violence such as felony assaults, vehicular homicide or murder" (p. 13).
Restorative justice is rarely explored from a perspective that is attentive to gendered crime, such as domestic violence (Stubbs, 2007). Some experts in the field have ruled out the suitability of restorative techniques in cases of domestic violence because of power imbalances in the relationship and the fact that the relationship between offender and victim is often ongoing (see Busch, 2002; Strang & Braithwake, 2002; Stubbs, 2007). Others have advocated for restorative strategies for the same reason--because the relationships are ongoing (Grauwiler & Mills, 2004; Presser & Gaarder, 2004).
The overall purpose of this article is to explore the possibility of adapting restorative processes to the needs of female victims of gendered crime. A related challenge is to examine the principles of restorative justice for compatibility with the teachings and values of standpoint feminist theory. But first let us review the conventional legal process that commonly takes place from the time that a battered woman calls on law enforcement for help through her movement through the system of prosecution and sentencing. The policies of mandatory arrests and prosecution are viewed from a feminist perspective, as are the principles and practices of restorative justice.
From the many varieties of feminism, the teachings of one school of feminism--standpoint feminism--is chosen as the guiding framework for this discussion. This branch of feminist theory was selected because of the clear formulation of its precepts and because of its emphasis on "giving voice" and listening to women's voices (Bui, 2007; Collins, 1990, 1998; Swigonski, 1994). The central focus of this article is on the basic tenets of restorative justice and consideration of its relevance to the gendered crimes of intimate partner violence and sexual assault. Restorative justice processes, as will be seen, may or may not be advisable for these gendered crimes.
STANDARD HANDLING OF DOMESTIC VIOLENCE CASES
Standard court processes and plea bargaining behind closed doors often fail to meet the needs of the victims and members of the community (Van Ness & Strong, 2002). The results of victim satisfaction surveys show that even when the prosecution of a perpetrator of domestic crime has been successful, the results may not meet the needs of the victim--survivor (see Rozee & Koss, 2001; van Wormer & Bartollas, 2007; Zehr, 1990).
Erez and Belknap (1998) and Grauwiler and Mills (2004) found, in their studies of battered women, that many of them had a negative view of the criminal justice system. Most of these women expressed a desire to make the decision whether or not to have the person arrested and whether or not to withdraw the charges at some later point. Furthermore, they expressed a desire to be treated as individuals by law enforcement officers and prosecutors.
To get at the roots of the problem, Hotaling and Buzawa (2003) interviewed victims of intimate partner violence whose cases had been handled in a model court setting in Massachusetts. They found that almost half of the hundreds of victim-survivors interviewed were dissatisfied with all aspects of the criminal justice process and that another 27 percent were dissatisfied with prosecution of the cases in court. Lack of control over the process, mandatory arrest and prosecution policies, continuing to live with the abuser, and identity as African American were key determinants of dissatisfaction.
The criminalization of domestic violence following the Duluth model (the domestic abuse intervention program developed in Duluth, Minnesota) represented the most progressive thinking of the 1970s through the 1990s (Bui, 2007; Chesney-Lind, 2002; Presser & Gaarder, 2004). Arrest of batterers was mandatory; often, jail terms were mandatory too; and victims who filed charges were not allowed to later drop them. So today if the case comes to trial and the victim is forced to testify, what she says against her partner may compromise her safety later. Moreover, child protective services may investigate a mother for her failure to protect her children even if the children only witnessed the violence (Cheon & Regehr, 2006). Perhaps for these reasons, only one-quarter of all physical assaults are reported to the police (Tjaden & Thoennes, 2000). Among the unintended consequences are the disproportionate arrests of African American men and increasing numbers of arrests of women in the dual arrest policies that evolved (Chesney-Lind, 2002).
Critics also point to the disempowerment felt by the victims of family violence once they turn the case over to law enforcement and the courts (Belknap, 2007; Burford & Adams, 2004). By disempowerment, these researchers are referring to the relegation of the victims to a passive role in the prosecution of the case. Their lack of control over the process once the wheels of justice start rolling is in clear violation of the standpoint feminist emphasis on self-determination (Bui, 2007).
Current mandatory arrest and prosecution policies that proliferate across the states often fail to address the reality of women's lives and their ethnic backgrounds. In her interviews with 23 Vietnamese immigrant women who had been beaten, Bui (2007) learned of numerous instances in which the criminal justice system's arrest and prosecution practices had created problematic relationships between these women and members of the extended family, including in-laws.
Today, globally, and most notably in Britain, Canada, Northern Ireland, Australia, and South Africa, as well as the United States,...
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