By Sheena Jonker
How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.
And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?
Let’s take a look at Restorative Justice in hate crimes.
‘FIRST THEY CAME FOR THE MUSLIMS
AND I SAID
I’M WITH THEM
EVEN THOUGH I WASN’T A MUSLIM
THEN THEY CAME FOR THE IMMIGRANTS
AND I SAID
I’M WITH THEM
EVEN THOUGH I WASN’T AN IMMIGRANT
THEY CAME FOR THE BLACK LIVES MATTER ACTIVISTS
AND THE LGBTQ FOLK
AND EVEN THOUGH I WAS WHITE
AND STRAIGHT
I SAID
I’M WITH THEM
WHEN THEY CAME FOR THE HUNGRY
AND THOSE WHO HUNGER FOR CHANGE
AND HUNGER FOR RIGHTEOUSNESS
I SAID
I’M WITH THEM
I’M WITH THE THIRSTY
AND THE THIRSTY EARTH GRASPING FOR RAIN
I’M WITH THE STRANGER
THE REFUGEE
ALL THOSE WHO SCALE WALLS FOR FREEDOM
I’M WITH THE NAKED
THOSE STRIPPED OF HUMAN DIGNITY
THOSE WITHOUT DECENT WORK
WITHOUT THE CLOTH OF HUMAN COMPASSION
I’M WITH THE SICK
THE DISABLED
THE ADDICTED
AND ALL THOSE DEPENDENT ON THE KINDNESS OF STRANGERS
I’M WITH THE PRISONERS
THE DETAINED
THE DEPORTED
THE JOURNALISTS
THE DEPLORABLES
WHEN THEY CAME FOR THOSE I SAID
I’M WITH THEM
I AM WITH THEM
I’M WITH US’
(WORDS: ROSE-MARIE BERGER)
Am I with them?
How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.
And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?
Restorative Justice in Hate Crimes.
Let’s take a look at Restorative Justice in hate crimes.
As a trained lawyer with expertise and experience in alternative dispute resolution and restorative justice, my aim is to share with you something of how we can use victim centric restorative justice processes to assist in getting victims of hate crimes first to safety and ultimately to healing and wholeness.
Let’s start with where we are at. I won’t delve too much into the Hate Crimes Bill as I am sure you have spent much of the time doing just that. All I will say is that any new legislation is still largely reliant on criminal justice and civil justice. Both systems are, at their core, adversarial.
Civil justice is adversarial and criminal justice is accusatorial.
This means that both are rooted in a form of competition. Disputing parties are pitted against each other in the civil courts with a judicial officer there to preside over the rules of contest and ultimately, to decide who wins.
In criminal justice, where the State is pitted against the accused the, judicial officer ensures that rules are adhered to and ultimately decides who wins.
In both systems, the “win” is largely dependent on who has the best lawyer. And this is often a product of who can afford the best lawyer. So, as we know, it is possible to win, but you were wrong. It is also possible to lose, but you were right.
The jurisprudential philosophy that all are equal before the law, cannot easily work in a deeply unequal society. The majority, living in poverty, do not have the same access to justice as our privileged minority.
We do the work we do in order to bring about transformation in this.
Criminal Justice and Victims of Hate Crime and other forms of Violence
Let’s look at criminal justice which is relevant particularly to victims of hate crimes and violence.
We know that in certain senses the prosecuting authorities are becoming concerned with, even obsessing about convictions and statistics on conviction.
We should never be about the regulation of violence. We should always be about the elimination of violence. A conviction centric system can become another form of violence detrimentally affecting both victims and accused offenders that come into contact with it and collaterally, those they love and who love them, and by extension entire communities and ultimately our whole country.
Regulation of Violence versus Elimination of Violence
When it comes to violence against women and children and hate crimes committed against those who do not conform to whatever and whomever, I believe we are looking for solutions in a system that without progressive reform, simply cannot deliver what we need.
Violence against women and children and those othered by society: we are looking to a system that cannot provide what we need.
Here is what I mean.
In a criminal matter the onus of proof (who must prove) is on the state (the accuser). The burden of proof (how much must be proved or the weight of evidence needed) is beyond a reasonable doubt.
That means the state or the accuser has a much tougher task than the accused. Is that a good thing? Yes it is. If we want wrongdoers to be punished by the state then it is imperative that the onus is on the state and the burden is high. A punitive system with a different onus and a lower burden would not offer protection to the innocent.
We don’t see a lot of convictions in rape or sexual violence matters. In fact statistics I have come across tend to show that less than one in a hundred result in conviction. That is of reported matters that result in prosecution. I’ve seen statistics that of actual rapes and sexual violence matters (across the spectrum of reported and unreported matters) less than 6 in 1000 matters result in conviction.
This is worldwide where Western Adversarial systems prevail. I have no idea how many convictions, in turn result in prison sentences. Remember that even where there is a conviction, there may be mitigating factors influencing punishment such as use of drugs and alcohol, personal circumstances of the accused and other factors. We know that reporting is low and we know that victims are often deterred from reporting for fear of contact with the system which can result in re-traumatization.
Convictions and punishment do not make our world a safer place
Criminal justice is too focused on conviction and punishment. I have long believed that if it was more focused on restoration and reparation we would start seeing different results. Whilst our law reform projects and various mechanisms in our law support restorative justice, we are not seeing the vast development of progressive sentencing. Progressive sentencing means that we would really entertain alternative sentences and that restoration and reparation for victims of crime may become a bigger feature of criminal justice.
I specialize in and practice restorative justice. Far from being a soft approach it is a much tougher approach and has higher potential for accountability for someone who has committed a violent offence. Does it mean wrongdoers escape prison sentences? Yes, at times it does. But 99 out of 100 are escaping prison sentences anyway and I believe that acquittals and non-prosecution of rapists will embolden them to continue.
Lessons from Restorative Justice in Domestic and Sexual Abuse
In a restorative justice process I am primarily focused on child protection and victim protection. We have access to civil remedies (mostly by agreement) which may result in no contact and protection orders, severing of relationships with abusers (a failed criminal justice process often results in continued exposure of the victim to the abuser especially where the abuser is family or part of the same community) and there are many options that can be considered regarding restoration and reparations.
Restorative justice does not exclude prison sentences. We can work in and around a prosecution, often helping to motivate guilty pleas which shields victims from cross examination which is still often a brutality and it may also open up the accused to better options on alternative sentencing.
We Believe You
But by far the most important aspect of a process like this is that the victim goes through a process where he or she is actually believed. Our processes speak a genuine “we believe you over a victims life”. Criminal Justice starts and endures with the question “why should we believe you?”. I can share absolute horror stories of what is put, on cross examination, to victims of violent crime.
The process commences with an admission of harm done. This is not the same as a confession to all the elements of a crime. But an admission is the starting point. I only proceed if I believe the wrongdoer has sufficient insight into their actions or is capable of sufficient insight with some work.
Punishment of those who harm or healing and restoration for the harmed
Ultimately, and I can’t emphasize this enough, a process like this is for the protection and healing of the victim. Criminal Justice simply can’t offer that. Is it a perfect answer? No. There is no such thing as a perfect answer to the question of violence against women and children and other vulnerable groups. Perfection would require that the violence itself did not exist.
The truth will set you free versus the truth will destroy you
While our systems remain punitive and conviction centric this is what we will grapple with. I write about this because it is society, it is us, that must insist on criminal justice reform. We will never see high numbers of guilty pleas in serious offences whilst the only option is prison. We should demonstrate a better value for truth telling. Right now we are telling wrongdoers we want the truth and then their truth is going to send them to prison. There are many progressive sentencing measures that I believe will help to stop the cycle of violence. The only way to stop the violence is to take it out of circulation and criminal justice, in its current format, is one of the things that contributes to the perpetual cycle of violence.
Justice Created versus Justice Served
So how?
To talk about the how in an hour is an absolute impossibility. But a significant part of the how is addressing the way we think. Restorative justice is a way. It’s a philosophy and reform and practical results will follow when we change the way we think.
So we start with what is it?
It’s justice created rather than justice served.
When justice is served, it is something you are brought to, often unwillingly, and then it is imposed on you. When justice is served, it can be ugly justice.
But when justice is created through engaging experiments with truth, something new, something beautiful is given space to merge out of the brokenness of harm (Justpeace ethics)
Let’s contrast justice served with justice co-created:
| When justice is served… | When justice is co-created… |
| Participants are passive aggressive adversaries | Participants are active collaborative healers and work to redress harm and rebuild relationships |
| Justice is one size fits all handed out by neutral, third party experts | Justice gets created and drawn out by those most involved in the harm, sometimes helped along by a trusted facilitator |
| Justice is a rules based response focused on facts and punishment | Justice is a caring response holding people in respect while supporting them to (re) discover who they are |
| Justice is a narrow approach focusing on dishing out punishment to offenders | Justice is an expansive response that addresses both the specific harms and the root causes that may ripple through generations and whole structures |
| Justice aims to suppress conflict and defend the current system and status quo | The goal is to enter into suffering and conflict and to explore together what needs to change to allow life to flow freely |
| Justice is about appearing strong and knowing the facts beyond a shadow of a doubt | Justice is about being vulnerable and entering into self doubt |
| Justice is about powerful people controlling other people | Justice is about listening and participating together to meet needs |
| Justice is about hating and harming the enemy | Justice is moving toward love in our relationships and our organizing |
| Participants are silent and excluded by rigid process | Participants voices are included and processes remain flexible to allow meaningful embrace of participants identity and needs |
| The guilt and punishment of justice is something to be avoided, and a culture of non-responsibility is perpetuated | Restitution and reintegration of victims and offenders create a new horizon when a culture of taking responsibility is encouraged |
When Justice is created it becomes a creative, almost sacred act of dancing our way back to humanity.
(Source: JustPeace Ethics)
The formal legal system makes it very difficult for offenders to take responsibility. As I said earlier, it creates the traditional approach of avoiding a guilty plea because of fear of the retributive consequences that follow. These often lead to plea bargain, attempts to escape on technicalities and of course high levels of acquittals.
Criminal Justice asks:
- What law was broken?
- Who did it?
- How shall we punish them?
Restorative Justice asks:
- What harm was done?
- How do we make things right again?
We think that not punishing means ignoring harmful behaviour.
But often the punishment perpetuates the cycles of violence.
Studies show that “tough on crime” strategies have spawned more crime.
And “zero tolerance in schools” has lead to worse behaviour.
Healing the whole
Restorative Justice is the hard work of finding non-adversarial ways of getting to truth, accountability and behavioural change.
Some first nation societies believe that people offend for one of two reasons:
- Lack of knowledge or sickness of the soul.
- One needs teaching, the other needs healing
Restorative justice understands violation to be social and relational affecting the very fabric that holds us all. A much more expansive approach is required. Restorative Justice can also be understood as a whole systems approach.
We take a step back, take a look at the whole and then step forward and go about the difficult, but vital (life-giving) work of healing the whole.