Victims of Crime Research Digest No. 10
Judging Victims: Restorative choices for victims of sexual violence
By Jo-Anne Wemmers, Ph.D.
Jo-Anne Wemmers is a Full Professor at the School of Criminology, University of Montreal and Researcher at the International Centre for Comparative Criminology. Her research focuses on victims and criminal justice in the broadest possible sense. Central themes include victims’ justice judgements and therapeutic jurisprudence.
Victims of crime often have to deal not only with victimization, but also with the insensitive reactions of others. Known as secondary victimization, insensitive, unsupportive and judgemental reactions can augment the victim’s suffering. When victims react to their victimization in ways that do not meet society’s expectations, they risk disapproval. This includes when victims of sexual violence choose restorative justice (RJ) rather than conventional criminal justice. This article examines the importance of choice for victims of sexual violence.
The so-called ideal victim
The word victim, like any term, is founded on a number of common assumptions. To better understand these assumptions, it is helpful to trace the origins of the word. Victim comes from the Latin word victima, which referred to a living creature sacrificed to a deity as part of a religious rite. The first recorded use of victim in English occurred in 1497;Footnote 9 by 1781, the word had begun to refer to “one who suffers some injury, hardship, or loss, is badly treated or taken advantage of” (Oxford Dictionary 1989). According to Van Dijk (2009), the ancient connotation of scapegoat – someone sacrificed for the greater good of the group – underlies our treatment of victims today.
A woman who labels herself as a victim of sexual violence faces social costs (Ullman 2010). Society tends to devalue someone identified as a victim because of the associated negative connotations of suffering and sacrifice. Some people, especially victims of sexual assault, prefer instead the term survivor, which is widely considered to be a more positive label (Dunn 2010). To become a survivor, however, one must first suffer victimization (Wemmers 2017). As soon as an individual defines the event as a crime, she or he seeks recognition and validation from others, and this becomes an important part of the recovery process (Ruback and Thompson 2001; Hill 2009; Strobl 2010). Being a victim is not a permanent state, however, and it is only after recognition of the victimization that recovery begins.
The meaning of an object, such as a victim, is not inherent in the object itself; it is something that others confer on the object based on their interpretation of it (Holstein and Miller 1990; Wemmers 2017). Recognizing someone as a victim is a subjective interpretation and is founded on a number of assumptions (Holstein and Miller 1990). The process of labelling a person as a victim and assigning him or her the role of victim can be described as a communication process between the victim and representatives of society (Strobl 2004). It is also important to appreciate that interpreting an experience as victimization is subjective (Fattah 2010). According to Christie (1986), victims and victimizations exhibiting specific characteristics are considered ideal by society at large and are more readily granted the full and legitimate status of being a victim (1986, 18). Sexual assault is particularly associated with numerous myths and stereotypes, such as real or legitimate rape versus less legitimate or - worse - invited rape (Ullman 2010).
Society tends to think of victims as weak, vulnerable and helpless individuals (Christie 1986; Dunn 2010). Research shows that persons who give the impression of being shy, weak and vulnerable are more likely to be considered victims than persons who seem aggressive, strong or powerful. Someone who does not exhibit the behaviour expected of a victim – such as advocating loudly for change – is not readily accepted as a victim (Doe 2003; Strobl 2004). When this happens, society’s response often changes from sympathy to antipathy, and the person’s status as a victim may be rejected (Holstein and Miller 1990; Shichor 2007; Van Dijk 2009).
Underlying the word victim is the assumption that another person is responsible for what happened. Another common assumption is that the perpetrator is bigger and stronger than the victim and a stranger to the victim (Christie 1986; Holstein and Miller 1990). It is easier to accept that the victim did not consent to the abuse if the offender was a stranger rather than someone the victim knew well, such as a friend or intimate partner (Doe 2003). Statistics show that females experience more sexual victimization than males, that most offenders are male, and that most victims of sexual assault know their attackers (Perreault 2015). Findings from the General Social Survey (GSS) on Victimization show that in the majority of cases, the offender was not a stranger but a friend or acquaintance (Brennan and Taylor-Butts 2008; Perreault 2015). As Shichor (2007) points out, the greater the amount of responsibility attributed to victims for their victimization, the less sympathy society accords them. Persons who are in a marginal social position are at a high risk of both being victimized and not being recognized by society as victims (Fattah 2003; Ullman 2010; Wemmers 2017).
Reacting to sexual violence
The word victim also assumes that specific responses are appropriate by both the criminal and civil justice systems; offenders must be punished and victims must be provided some form of reparation. The ideal victim is expected to deal with the offence by pressing charges and supporting the prosecution of the alleged offender. The ideal victim is expected to accept the costs (i.e. time) and trouble (embarrassing questioning) associated with meeting police and justice-system requirements, and to set aside their own interests (Strobl 2004). As with the original meaning of the word, society expects victims to sacrifice themselves for the greater good. Most victims, however, choose not to deal with the offence through the criminal justice system; this is particularly true among victims of sexual assault. While one in three (31%) victimizations is reported to police, only one in 20 (5%) of all sexual assaults in Canada is reported to police (Perreault 2015). In other words, the vast majority of sexual assaults remain hidden from the authorities. This low rate of reporting hinders social change and enables stereotypes about sexual violence to persist.
Yet, while only 5% of sexual-assault victims in Canada report their victimization to police, as many as one in four victims of sexual assault is interested in restorative justice (RJ) (Tufts 2000; Perrault 2015). The 1999 GSS on victimization included a module on attitudes towards alternatives to criminal justice. After presenting victims with a definition of victim-offender mediation as an alternative to criminal justice, researchers asked victims to think about the criminal incident they had just reported and to indicate how interested they would have been in participating in a mediation program. Although 59% of victims of sexual assault said that they would not have been interested in RJ, 17% said that they would have been somewhat interested and 9% said that they would have been very interested (Tufts 2000). RJ is clearly not for everyone; some victims, however, are interested in it.
One U.S. study found that a majority of victims of sexual assault were interested in RJ. Unlike the above Canadian study, which examined victimization in the previous 12 months, the U.S. study looked at lifetime victimization. In the U.S. study, 56% of victims indicated that they would like the opportunity for RJ in addition to the conventional criminal justice system and 30% said that they would like the opportunity for RJ as an alternative to court. The study also found that victims who had chosen to not report the assault to police were most likely to favour RJ as an alternative to court (Marsh and Wager 2015).
The New Zealand Law Commission examined the issue of low rates of reporting sexual violence and concluded that there is a need for alternative responses in cases of sexual violence. The 2015 report, The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes, recommended that the victim decide on an appropriate response, whether it involves meeting with the perpetrator and seeking redress, or reconciliation with family and community (see Law Commission 2015, Chapter 9). New Zealand has implemented sweeping reforms in the criminal justice system and every offence is now considered for RJ processes.Footnote 10 While it is still too early to evaluate the full impact of these legislative changes, it will be important to watch how the changes are implemented.
Benefits for victims
Studies suggest that victim participation in RJ may be beneficial for victims’ psychological wellbeing, by reducing symptoms of Post-Traumatic Stress Disorder (PTSD) and stress (Gustafson 2005; Wager 2013; Koss 2014). RESTORE, a pilot program that ran from 2003 to 2007 in Arizona, is perhaps one of the best-known RJ programs explicitly targeting victims of sexual violence. Taking a victim-centred approach to RJ, RESTORE offered victims the opportunity to participate in a dialogue with the offenders who attacked them as an alternative to criminal prosecution. This was not a one-off intervention: cases were carefully screened and victims were supported prior to, during and after the dialogues to ensure their safety and well being. An evaluation of the RESTORE program found that victims showed a decrease in PTSD from intake (82%) to post-conference (66%). Victims who participated in the program not only experienced a reduction in stress, but also felt empowered. All of the victims who participated in the RESTORE program strongly agreed with the statement that “taking back their power” was a major reason to select RESTORE over other justice options (Koss 2014). In 2005, New Zealand launched a similar program, known as Project Restore.
Making choices is integral to victims’ healing process (Muscat 2010). Based on a scoping study of 58 publications on sexual violence and RJ, which included 10 victims’ accounts, Wager (2013) found that victims tended to consider the conferencing experience as empowering, rather than traumatizing. Conferencing involves a dialogue between a victim and offender in the presence of support persons. When victim and offender have a pre-existing relationship, RJ can help to redefine the relationship and diminish fear of retaliation for reporting (Mercer and Sten-Madsen 2015). Victims become empowered by gaining acknowledgement of the harm done, which enables them to reclaim their lives and transforms them from victims to survivors (Wager 2013; Mercer and Sten-Madsen 2015).
Judging victims’ choices
Perhaps one of the biggest challenges facing RJ in the context of sexual violence is the negative attitude of others (i.e. non-victims). The Dalhousie University Facebook incident illustrates this problem. In December 2014, Dalhousie University in Halifax made national headlines. Some male students of the dentistry program had created a private Facebook group, ironically called the “Class of DDS 2015 Gentlemen,” and posted inappropriate comments about female students in the program. The group posted a poll asking members which classmates they would have “hate sex” with. When the female students targeted by these comments learned about them, they were shocked. However, their response was to turn the incident into an opportunity for education rather than for punishment. The University enlisted the help of Jennifer Llewellyn, an expert in restorative justice and professor at Dalhousie’s Schulich School of Law.
The decision to use a form of restorative justice was widely criticized. Across Canada, women’s groups spoke out against RJ and insisted that the male students be expelled (Llewllyn, Demsey and Smith 2015). Critics argued that the victims were being forced to participate in the restorative process and expressed concern about the wellbeing of the victims (Brownlee 2015). The female students were shocked by these negative and unsupportive reactions. They felt that the University had empowered them to choose, and they chose to let the men continue their studies and encouraged them to learn from their misbehaviour (Llewllyn, Demsey and Smith 2015).
The women involved in the Dalhousie Facebook incident said that they wanted to prevent this kind of sexist behaviour from carrying over into a professional setting, where these men would eventually work with – and perhaps even supervise – women who might not feel able to stand up to them. The restorative process not only confronted the male students with the consequences of their behaviour, but also uncovered the culture of misogyny and sexism at the University that enabled the creation of the Facebook group (Llwewllyn, Demsey and Smith 2015). Thanks to the courage of these women, all parties – the University, the victims and the offenders – were able to transform a painful situation into an opportunity for learning and healing.
The public outcry was not intended to re-victimize the women, but to protect them. Many victim advocates have voiced sincere concerns about the safety of victims of gender-based violence in RJ programs (Wemmers and Cyr 2002; Nelund 2015; McGlynn et al. 2012; Koss 2014). Many criminal-justice professionals act out of compassion and concern about the impacts of trauma on individuals when they make a decision not to provide information on RJ. Comparing the views of the public and victims of sexual violence, Marsh and Wager (2015) found that victims were less likely than non-victims to see conferencing as dangerous for victims. While one must always be vigilant of power imbalances, it is also important to avoid disempowering victims by making choices for them or by not giving them a choice at all (Wemmers and Cousineau 2005; Wemmers and Cyr 2016).
Information to empower choice
The vulnerability of victims of sexual violence raises concerns about if, when and how to approach the topic of RJ with victims. While some might say that the risk of secondary victimization is too high (Wemmers & Cousineau 2005; Koss 2014), failing to discuss RJ risks depriving victims of an opportunity to heal (McGlynn et al. 2012).
While some victims are interested in RJ, victims in Canada and elsewhere are often not informed that RJ is an option (Wemmers and Van Camp 2011). For example, Marsh and Wager (2015) conducted a web-based survey with 121 residents of the United Kingdom; 40 identified themselves as survivors of sexual violence. The authors found that most of the 40 had never heard of RJ before taking part in the study.
Victims want to be informed so that they can know their choices and decide which justice option they want to pursue. Based on qualitative interviews with 34 victims of serious violent crimes, including eight cases of sexual violence, Van Camp and Wemmers (2016; Wemmers and Van Camp 2011) examined victims’ experiences with restorative justice in Canada and Belgium. Focusing on how the victims learned about RJ options, the authors identified two main approaches: one protective and the other proactive. In the protective approach, victims were told about RJ only if they asked about it explicitly. In the proactive approach, victims were informed about RJ. This enabled them to make up their own minds about whether or not to pursue the option. They could even come back to it at a later time if they were not immediately interested in it. Van Camp and Wemmers found that victims preferred a proactive approach to a protective one. Making choices is essential for victims’ healing process and victims want to decide for themselves what they want to do (Morissette and Wemmers 2016). This requires, however, that they be informed of all possible options, including RJ. As survivors remind us, we must not underestimate their strength (McGlynn et al. 2012).
In Canada, at the federal level, the Criminal Code and the Youth Criminal Justice Act authorize RJ processes. For example, section 717 of the Criminal Code provides that alternative measures may be used if the offender accepts responsibility for the offence. Section 19 of the Youth Criminal Justice Act describes how and when conferences, including restorative conferences, may be convened. The right to request and receive information about RJ is also included in both the Canadian Victims Bill of Rights Act and the Corrections and Conditional Release Act. In 2015, Manitoba became the first province to introduce legislation, the Restorative Justice Act, aimed to increase the use of RJ and promote public safety by providing resolution that affords healing, reparation and re-integration.
Marsh and Wager (2015) report that while survivors of sexual violence have mixed views about when authorities should offer victims the option of RJ, the best time may be upon initial contact. It is important that RJ options remain flexible and accessible at any stage of the criminal justice process (Tinsely and McDonald 2011; Van Camp 2014; Wemmers 2017). Considering the impact of trauma on learning and memory, it may be best to provide information multiple times, at various stages in the process (see McDonald 2016).
Judging by the reporting rates for sexual violence, victims may be more interested in RJ than in conventional criminal justice. The findings of prior studies highlight the importance of further research and, in particular, public education about the needs and rights of victims. The negative reactions of others, including the general public, constitute a source of secondary victimization. The women’s movement has played an important role in encouraging women to speak out about sexual assault to everyone – not just to police – to effect social change and draw attention to the needs of victims (Ullman 2010). To achieve this goal, we must ensure that victims can access a safe environment where they can speak out and refrain from judging the choices they make.
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