So far we've looked at some of the historical roots of Restorative
Justice (RJ), and at some of the key values: inclusiveness, informality,
looking forwards rather than back, making amends rather than punishment
of wrongdoing. But how does it actually work? What are the distinctive
features of a restorative process?
RJ can take many forms, but we can identify a few key features. (NB: not every RJ initiative
has all these features; some have only one or two.)
Restoration, not punishment
One
of the key features of RJ in most of its forms is that it aims to
'restore' - to put things back to how they were before the crime. It
'restores' the victims of crime, enabling them to get on with their
lives without being traumatised by the crime, haunted by their memories
or obsessed by thoughts of vengeance. It 'restores' the offender,
bringing him or her back into the social consensus about the crime
that's been committed (i.e. encouraging a sense of shame and
disapproval). And it 'restores' the community, reintegrating the
offender and undoing any polarisation that has been created by the
crime. As such it's forward-looking - as distinct from the
backward-looking approach of the criminal justice system - and it's
focused on making things better in future rather than on making the
offender suffer.
Whether this actually means that RJ is
not about punishment is another question. You could argue that
'punishment' refers to all the ways in which offenders are made to
understand how bad their crime was and feel sorry for it; in this case
RJ would not be an alternative to punishment at all, but an effective
form of punishment.
Bringing victim and offender together
Victim-offender
mediation is based on the idea that these two people, who have the
greatest stake in the crime, are also best placed to resolve it. Victims
can also play a key role in group-based forms of RJ. Reintegrative
shaming, which is one of the key mechanisms for 'restoration', is based
on an interaction in which the offender accepts responsibility for the
offence and apologises, and the victim in turn accepts the apology;
instead of being set aside and branded - stigmatised - as a 'criminal',
the offender can then be accepted as a fellow-citizen, based on a shared
denunciation of the crime.
Community problem-solving
One
of the key values of RJ is deprofessionalisation, taking crimes and
other 'conflicts' away from the specialists of the criminal justice
system and enabling the community to resolve them, if necessary by a
free-ranging discussion of what has gone on. (There's a certain amount
of tension between this ideal and the use of RJ as a form of cautioning,
and police-led RJ in general.) This is perhaps one of the areas where
the gap between the ideal and the reality of RJ is largest: the idea of
'community' works much better in some contexts than others, and
contemporary urban societies in the developed world are not the best
context. It can be argued that we are all members of multiple
cross-cutting communities rather than a single geographically-based one -
family, friends, work, study, leisure, online - but this doesn't
necessarily help. The 'community' which is supposed to be mobilised for
RJ is a community which includes both the offender and the victim, which
isn't necessarily going to work for these plural, non-geographical
communities.
Community self-regulation
Another
ideal associated with RJ, and perhaps one which has come closer to
becoming a reality, is that of community self-regulation. The idea here
is that local communities can be empowered to manage problematic
elements within them, in the same way that businesses manage low-level
white-collar crime. In this model, RJ is not a way to initiate a
free-ranging discussion of the rights and wrongs of a particular crime
(as in the previous model), so much as a way to bring moral pressure to
bear on people who are causing disruption. This model fits very well
into some current ways of thinking about neighbourhood disorder and
anti-social behaviour; it's often associated with a 'pyramid' model,
involving a threat of escalation to more coercive measures if the
'restorative' stage does not have the desired result.
So that's how RJ is supposed to work. But how does it actually work? For the rest of the unit we'll be looking at RJ in practice.
Tuesday, 10 March 2015
Wednesday, 4 March 2015
Week 7: Introducing restorative justice
One of the interesting things about restorative justice is the enormous
range it covers. It's been argued that the restorative justice movement
had three separate drivers, all of which point in slightly different
directions - and none of which is necessarily victim-centred.
One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.
Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't.
Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.
This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?
Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.
If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).
One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?
One driver is the idea that criminal justice should be more civil. The civil law is what gets invoked when you take someone to court. A civil court case doesn't end with anyone being found guilty and punished; generally, they end with someone being found to be in the wrong, and ordered to pay back what they owe or to pay the other person compensation ("damages"). Criminal law is backward-looking (you did X, therefore we'll punish you); civil law is forward-looking (you did X, so you need to put it right by doing Y and Z). Most importantly, the civil law doesn't inflict pain and hardship on the people it finds to be in the wrong; it treats them as a responsible individual and asks them to put things right. Restorative justice can work the same way, and reduce the number of offenders who are treated harshly - and, perhaps, reduce the number who reoffend.
Another idea, closely related to the first one, is that criminal justice should be more moral. The argument is that the punishments handed down by criminal law don't work because they're harsh - if anything, they work (when they do work) in spite of their harshness. What works - what makes offenders think twice and decide not to reoffend - is a form of punishment which treats offenders as people who have a conscience and would prefer to do the right thing. Some offenders come to the realisation that they've been doing bad things - and decide not to do them any more - in the course of a prison sentence; some don't. What if the moral message could be communicated without the harsh punishment - perhaps, even, instead of the harsh punishment? Restorative justice can do this, too: the victim can really get through to the offender, in a way that judges and social workers often can't.
Then there's the idea that criminal justice should be more communitarian: instead of handing over crimes to criminal justice professionals, we should find ways to mobilise the community as a whole to deal with the conflict represented by the crime that's been committed. If crime represents a breach in a community, perhaps criminal justice only makes matters worse - it introduces another level of separation, between the community and the convicted criminal (who ceases to be a member of the community and starts to look like an "Ideal Offender"). Restorative justice can work to mobilise communities, enabling them to condemn crimes while treating the offender with forgiveness and reintegration.
This summary raises a couple of questions. Firstly, these are three quite different things: can a single process achieve all three of them? If not, is there a single thing identifiable as 'restorative justice', or are there several different things which have that name?
Secondly, what about the victim? None of these theoretical models really focuses on the victim. However, I argued in the lecture that the victim of crime has become more central to restorative justice. The victim plays a key role in all these models - even if their role is to help the offender or the community - and I think the centrality of the victim has become more obvious since people started putting RJ into practice. The way that people think about RJ is starting to shift as well; we'll have more about that in later lectures.
If you weren't involved in the role-playing exercise we did in seminars, please have a look at the "Restorative Conference Facilitator Script" which is linked on Moodle. Here are some excerpts (there are also set questions for the victim and for anyone who has come along to support them).
Ask the offender:Picture yourself sitting around a table, after a crime has been committed, and answering questions like these - as the victim, as the offender, as an offender's 'supporters' (very often parents). How do you think they would make you feel? Do you think the victim would find the process useful or satisfactory?
• “What happened?”
• “What were you thinking about at the time?”
• “What have you thought about since the incident?”
• “Who do you think has been affected by your actions?”
• “How have they been affected?”
Ask each parent/caregiver: “This has been difficult for you, hasn’t it? Would you like to tell us about it?”
Have each respond to all of the following questions.
• “What did you think when you heard about the incident?”
• “How do you feel about what happened?”
• “What has been the hardest thing for you?”
• “What do you think are the main issues?”
Ask the offender: “Is there anything you want to say at this time?”
One final thought: what would it be like to go into a restorative justice process if you weren't actually guilty but had admitted guilt for tactical reasons, e.g. because you believed you'd be treated more harshly if you went to court? Would your innocence be found out?
Thursday, 26 February 2015
Week 4: Victim Support
We've devoted quite a lot of attention to things that victims need (but
aren't getting) and problems with the criminal justice system. This
week, for a change, we looked at one of the positive features of the
system and described how it actually does give victims something they
need.
Victim Support is a charity, albeit one with fairly reliable funding from local crime budgets; it's probably best considered as a semi-detached part of the criminal justice system. It has a public face which campaigns for a better deal for victims, but it's not primarily a campaigning organisation: the bulk of what it does is simply to provide support to victims. Initially a purely voluntary organisation, Victim Support now has a substantial layer of permanent staff, but the people at the sharp end are still mainly volunteers: the organisation has something like a 1:4 staff:volunteer ratio. This means that Victim Support can offer a level of personal commitment and dedication which you don't always get from a government department: as a rule, people who work for Victim Support are doing it because they really want to.
Victim Support has 'core' Home Office funding, i.e. funding which isn't going to be turned off overnight; this supports its administrative superstructure and makes it possible to train and manage all those volunteers. The Victim Support budget has become more discretionary since the establishment of Police and Crime Commissioners; the budget for Victim Support in each PCC region is controlled by the PCC, and can be directed to whatever area of work the PCC thinks appropriate. Although in theory the PCC could turn off the tap, what this has meant in practice is that more funding can be given to areas of work which are particularly prominent in one area - e.g. support for victims of domestic violence or anti-social behaviour.
Victim Support does some campaigning on behalf of victims, but it campaigns in a very specific way. Unlike some groups which claim to speak on behalf of victims, Victim Support never claims that 'victims' in general want more of a particular kind of sentence (either harsher or more lenient). Victim Support's view, based on years of working with victims, is that 'victims' as a group don't have any particular view on how criminal cases should be resolved: some victims are very vindictive, some are forgiving, some don't care either way and just want to put the crime behind them.
Rights for victims within the criminal justice process are Victim Support's key campaigning priority: instead of outcome-oriented reforms, Victim Support focuses on the process. Victims may not have any views in common, but what they do have in common is the experience of being a victim and being involved in the criminal justice system. Over the years, most of Victim Support's core demands have been met to a greater or lesser degree; the only one which has clearly not been met is the universal right to compensation. The key process-based rights of respect, protection and information (giving and receiving) are now very largely respected, along with the negative right of not having responsibility for the outcome of cases.
So, where next for victims - what needs to victims have which are still not being met?
Victim Support is a charity, albeit one with fairly reliable funding from local crime budgets; it's probably best considered as a semi-detached part of the criminal justice system. It has a public face which campaigns for a better deal for victims, but it's not primarily a campaigning organisation: the bulk of what it does is simply to provide support to victims. Initially a purely voluntary organisation, Victim Support now has a substantial layer of permanent staff, but the people at the sharp end are still mainly volunteers: the organisation has something like a 1:4 staff:volunteer ratio. This means that Victim Support can offer a level of personal commitment and dedication which you don't always get from a government department: as a rule, people who work for Victim Support are doing it because they really want to.
Victim Support has 'core' Home Office funding, i.e. funding which isn't going to be turned off overnight; this supports its administrative superstructure and makes it possible to train and manage all those volunteers. The Victim Support budget has become more discretionary since the establishment of Police and Crime Commissioners; the budget for Victim Support in each PCC region is controlled by the PCC, and can be directed to whatever area of work the PCC thinks appropriate. Although in theory the PCC could turn off the tap, what this has meant in practice is that more funding can be given to areas of work which are particularly prominent in one area - e.g. support for victims of domestic violence or anti-social behaviour.
Victim Support does some campaigning on behalf of victims, but it campaigns in a very specific way. Unlike some groups which claim to speak on behalf of victims, Victim Support never claims that 'victims' in general want more of a particular kind of sentence (either harsher or more lenient). Victim Support's view, based on years of working with victims, is that 'victims' as a group don't have any particular view on how criminal cases should be resolved: some victims are very vindictive, some are forgiving, some don't care either way and just want to put the crime behind them.
Rights for victims within the criminal justice process are Victim Support's key campaigning priority: instead of outcome-oriented reforms, Victim Support focuses on the process. Victims may not have any views in common, but what they do have in common is the experience of being a victim and being involved in the criminal justice system. Over the years, most of Victim Support's core demands have been met to a greater or lesser degree; the only one which has clearly not been met is the universal right to compensation. The key process-based rights of respect, protection and information (giving and receiving) are now very largely respected, along with the negative right of not having responsibility for the outcome of cases.
So, where next for victims - what needs to victims have which are still not being met?
Week 5: Crime by and against business
Corporate crime, white-collar crime, crime by business is a crime of power: a type of offence that takes place against the backdrop of unequal power relations, which
affect both the likelihood of becoming a victim of crime and the
likelihood of gaining recognition as a victim.
Corporate crime takes many different forms. When Ken Lay of Enron, or Robert Maxwell of the Mirror group, destroyed their own businesses from within for their own benefit, that was corporate crime. When banks sold people mortgage policies that were never going to pay out adequately, or insurance policies that they were never going to be able to claim on, that was corporate crime. When a Dutch company sold Romanian horsemeat to British supermarkets and food processors under the guise of beef, that was corporate crime. All these very different examples reflect a difference of power. Businesses large and small have much more power over us than we do over them, and in some cases the power they have is exercised in unlawful ways: overcharging us, selling us sub-standard products, ordering us to work excessive hours.
Even when it takes directly life-threatening forms, corporate crime has a tendency to remain invisible - "man crushed by machinery at workplace" may be an item on the local news but it won't make the national press. Not only that, but it won't get into the crime statistics. Nobody knows how much law-breaking goes on in business. One reason for this is that business regulation - the main approach used to control commercial rule-breaking - has a strong orientation towards gaining compliance rather than prosecuting wrong-doers. Where prosecution is used, it is used as a last resort: inspectors will try to get managers to co-operate, then use the threat of prosecution to try and induce compliance. Actually taking a company to court is an implicit admission that other methods have failed, and is almost a punishment in itself.
There are good reasons for using this 'responsive', compliance-oriented approach: being treated with respect encourages managers and employees to commit themselves to the rules being enforced, rather than just treating them as a box-ticking exercise. The more punitive approach of prosecuting everything that can be prosecuted may lead to staff getting stressed and demotivated, and only caring about sticking to the rules because they're afraid they'll lose their jobs.
But even if it does produce better results, with less disruption, than a more punitive approach, there's a question-mark over the responsive approach when it comes to the victims of corporate crime. Should corporate criminals always be prosecuted for the sake of doing justice to the victims? Alternatively, is it better to implement regulation that leads to better practices being adopted, so that there are fewer victims in future?
Corporate crime takes many different forms. When Ken Lay of Enron, or Robert Maxwell of the Mirror group, destroyed their own businesses from within for their own benefit, that was corporate crime. When banks sold people mortgage policies that were never going to pay out adequately, or insurance policies that they were never going to be able to claim on, that was corporate crime. When a Dutch company sold Romanian horsemeat to British supermarkets and food processors under the guise of beef, that was corporate crime. All these very different examples reflect a difference of power. Businesses large and small have much more power over us than we do over them, and in some cases the power they have is exercised in unlawful ways: overcharging us, selling us sub-standard products, ordering us to work excessive hours.
Even when it takes directly life-threatening forms, corporate crime has a tendency to remain invisible - "man crushed by machinery at workplace" may be an item on the local news but it won't make the national press. Not only that, but it won't get into the crime statistics. Nobody knows how much law-breaking goes on in business. One reason for this is that business regulation - the main approach used to control commercial rule-breaking - has a strong orientation towards gaining compliance rather than prosecuting wrong-doers. Where prosecution is used, it is used as a last resort: inspectors will try to get managers to co-operate, then use the threat of prosecution to try and induce compliance. Actually taking a company to court is an implicit admission that other methods have failed, and is almost a punishment in itself.
There are good reasons for using this 'responsive', compliance-oriented approach: being treated with respect encourages managers and employees to commit themselves to the rules being enforced, rather than just treating them as a box-ticking exercise. The more punitive approach of prosecuting everything that can be prosecuted may lead to staff getting stressed and demotivated, and only caring about sticking to the rules because they're afraid they'll lose their jobs.
But even if it does produce better results, with less disruption, than a more punitive approach, there's a question-mark over the responsive approach when it comes to the victims of corporate crime. Should corporate criminals always be prosecuted for the sake of doing justice to the victims? Alternatively, is it better to implement regulation that leads to better practices being adopted, so that there are fewer victims in future?
Monday, 2 February 2015
Week 3: Compensation for victims
This unit has three main themes running through this unit. The first, encapsulated in the idea of the Ideal Victim,
has to do with how we think about victims. We've seen how entrenched
some assumptions about victims are, and - more importantly - how
unhelpful those assumptions can be. The second has to do with the criminal justice
system, and how difficult it is to fit victims into it: the victim
doesn't belong on either side of the confrontation between the Crown and
the offender, and often ends up, literally, serving as a witness to her
own victimisation. Following on from this, the third them has to do
with restorative justice, and the broader challenge of taking a victim-centred approach
to crime. Actual victims - ordinary people who happen to become victims
of crime - want, and need, many different things: some victims are
vengeful, some are
forgiving; some are knocked flat by the after-effects of the crime, some
shrug it off; some want to take an active part in the prosecution of
the crime, some want to put it all behind them. The only thing all
victims have in common is that they want to be taken seriously, listened
to (if they want to talk), given support (if they need it) - in short,
treated with respect.
Last Friday's lecture involved all those three themes. As we saw, the Criminal Injuries Compensation Scheme is explicitly designed to exclude anyone who doesn't co-operate with the police and anyone with a 'bad character' - which is to say (among other things) anyone who has served a custodial sentence of any length within the last seven years. (Hard luck if you go to prison for non-payment of debts and get beaten up a year later.) Only the innocent and virtuous need apply, in effect.
The other main form of compensation is the Compensation Order, which can be handed down by courts as part of a criminal sentence. This is a vivid illustration of the inadequacy of the criminal justice system to give victims what they need. Remember the dark figure of crime: not all crimes are reported to the police; not all of those are detected, i.e. have an offender identified; not all of those are prosecuted, and (inevitably) not all prosecutions lead to a guilty verdict. But it's only a guilty verdict that can lead to the imposition of a Compensation Order. Even when the option is available - and courts are encouraged to impose it when it is there - in practice most sentences don't include compensation, often because the offender would be unable to pay. Putting it all together, the criminal justice system can only provide compensation, in the form of a Compensation Order, for a tiny, tiny minority of victims.
Coming on to the question of respect and victim-centrality: when compensation is awarded, how much should it be? This is a difficult one. Somebody who has had a leg broken in three places, suffering permanent impairment as a result, isn't going to want to be fobbed off with a ten pound note. But suppose a more satisfactory order was made - £10,000, say. (The maximum compensation payable for this injury under the Criminal Injuries Compensation Scheme is currently set at £4,600, incidentally.) Would accepting this level of compensation mean that you were saying the leg was worth £10,000 (or £4,600)? It's not a calculation anyone would want to make. I think we have an instinctive sense of when monetary compensation is far too low, without having a clear sense of what the right level would be. The reason is the message that it conveys - the point of a very low amount is that it conveys a lack of respect. Similarly, research has shown - perhaps surprisingly - that victims don't object to compensation payments being spread out over a long period, if there is no other way that the offender can pay. What victims do object to is not knowing how long the period will be or what the payments will be: in short, they object to being kept in the dark, treated with disrespect.
But even if the payments are scaled satisfactorily and made on time, both the main compensation schemes are wildly inadequate. Victims need respect, which may mean looking at alternatives to criminal justice; and they need support, in the form of a universal and unconditional service for victims.
And that's where we're going with the next lecture, which will be a guest lecture from Emma Golden of Victim Support. It's a real privilege to hear from somebody who's actually working with VS: be there!
Last Friday's lecture involved all those three themes. As we saw, the Criminal Injuries Compensation Scheme is explicitly designed to exclude anyone who doesn't co-operate with the police and anyone with a 'bad character' - which is to say (among other things) anyone who has served a custodial sentence of any length within the last seven years. (Hard luck if you go to prison for non-payment of debts and get beaten up a year later.) Only the innocent and virtuous need apply, in effect.
The other main form of compensation is the Compensation Order, which can be handed down by courts as part of a criminal sentence. This is a vivid illustration of the inadequacy of the criminal justice system to give victims what they need. Remember the dark figure of crime: not all crimes are reported to the police; not all of those are detected, i.e. have an offender identified; not all of those are prosecuted, and (inevitably) not all prosecutions lead to a guilty verdict. But it's only a guilty verdict that can lead to the imposition of a Compensation Order. Even when the option is available - and courts are encouraged to impose it when it is there - in practice most sentences don't include compensation, often because the offender would be unable to pay. Putting it all together, the criminal justice system can only provide compensation, in the form of a Compensation Order, for a tiny, tiny minority of victims.
Coming on to the question of respect and victim-centrality: when compensation is awarded, how much should it be? This is a difficult one. Somebody who has had a leg broken in three places, suffering permanent impairment as a result, isn't going to want to be fobbed off with a ten pound note. But suppose a more satisfactory order was made - £10,000, say. (The maximum compensation payable for this injury under the Criminal Injuries Compensation Scheme is currently set at £4,600, incidentally.) Would accepting this level of compensation mean that you were saying the leg was worth £10,000 (or £4,600)? It's not a calculation anyone would want to make. I think we have an instinctive sense of when monetary compensation is far too low, without having a clear sense of what the right level would be. The reason is the message that it conveys - the point of a very low amount is that it conveys a lack of respect. Similarly, research has shown - perhaps surprisingly - that victims don't object to compensation payments being spread out over a long period, if there is no other way that the offender can pay. What victims do object to is not knowing how long the period will be or what the payments will be: in short, they object to being kept in the dark, treated with disrespect.
But even if the payments are scaled satisfactorily and made on time, both the main compensation schemes are wildly inadequate. Victims need respect, which may mean looking at alternatives to criminal justice; and they need support, in the form of a universal and unconditional service for victims.
And that's where we're going with the next lecture, which will be a guest lecture from Emma Golden of Victim Support. It's a real privilege to hear from somebody who's actually working with VS: be there!
Wednesday, 28 January 2015
Week 2: Domestic violence
The issue of domestic violence brings together some of the key issues
about victimology that we have looked at so far, as well as connecting
with some of the issues we'll be looking at this term.
Six (sorry!) brief points. First point: you can't talk about victims without talking about the 'dark figure'. If you want to know how many people have been victims of which crimes, nobody would suggest relying on police recorded crime figures: there are all sorts of reasons (good as well as bad) why crimes can be committed and not end up in police statistics. But all the possible alternative sources have their own issues. What the Crime Survey for England and Wales records isn't how many crimes of type X were committed, but how many people answered Yes when they were asked if they'd been a victim of crime X. This doesn't matter very much if crime X is car theft, for example, but it matters a lot in the case of domestic violence: the statement "I have been a victim of domestic violence" can mean very different things depending on who is saying it, and the victims who suffer the most may not be the ones most likely to say Yes when asked (see point 4).
Second, both victimisation and victimhood are related to power. A feminist explanation of domestic violence is that it happens when a sexist man feels his patriarchal dominance being challenged, and uses force to put his partner back in her place. The 'family violence' model of domestic violence, by contrast, relates domestic violence to the powerlessness of poor and socially excluded groups. Other researchers combine the two, arguing that men who feel powerless react violently, taking it out on their partners. The question of how to gain recognition as a victim is also closely related to power in society.
Third, crimes against women are (still) treated differently. Comic artist Alan Moore's comments on the fictional representations of rape and murder are relevant here:
Fourth, and just to complicate things: male victims are hard to deal with. Do male victims of domestic violence exist? Yes. Is domestic violence against men as serious, or as widespread, as against women? Almost certainly not. What do you do if a man makes a complaint of domestic violence (although he's not showing any visible injury) - or if a man who's been accused of beating his partner claims that he was only fighting back (and he has the bruises to prove it)? Do you treat him as a victim?
Two final points, looking ahead to the remainder of the unit. Point five: victims and criminal justice don't mix (at least, not straightforwardly). The criminal justice process struggles to find a role for victims; all too often victims are sidelined, or else exploited to justify harsh sentencing. Calling the police, and setting the criminal justice machinery in motion, may not be the best way to make the victim safe; it almost certainly won't help empower her.
And point five: restorative justice has a lot to offer. Domestic violence, one of the areas where conventional criminal justice has failed badly, is an area where restorative justice has the potential to succeed. Restorative justice puts the victim centre stage and makes it possible to tailor a justice process which meets the needs of that individual victim - and that individual offender.
Six (sorry!) brief points. First point: you can't talk about victims without talking about the 'dark figure'. If you want to know how many people have been victims of which crimes, nobody would suggest relying on police recorded crime figures: there are all sorts of reasons (good as well as bad) why crimes can be committed and not end up in police statistics. But all the possible alternative sources have their own issues. What the Crime Survey for England and Wales records isn't how many crimes of type X were committed, but how many people answered Yes when they were asked if they'd been a victim of crime X. This doesn't matter very much if crime X is car theft, for example, but it matters a lot in the case of domestic violence: the statement "I have been a victim of domestic violence" can mean very different things depending on who is saying it, and the victims who suffer the most may not be the ones most likely to say Yes when asked (see point 4).
Second, both victimisation and victimhood are related to power. A feminist explanation of domestic violence is that it happens when a sexist man feels his patriarchal dominance being challenged, and uses force to put his partner back in her place. The 'family violence' model of domestic violence, by contrast, relates domestic violence to the powerlessness of poor and socially excluded groups. Other researchers combine the two, arguing that men who feel powerless react violently, taking it out on their partners. The question of how to gain recognition as a victim is also closely related to power in society.
Third, crimes against women are (still) treated differently. Comic artist Alan Moore's comments on the fictional representations of rape and murder are relevant here:
From what I understand, last year there were 60,000 rapes in the UK ... I would have to say that I do not recall the sixty thousand homicides that occurred in the UK last year, possibly because – well, they didn’t, did they? Except, of course, in the pages of fiction, where I would imagine that there were considerably more violent deaths than the above-mentioned figure. It would appear that in the real world, which the great majority of people are compelled to live in, there are relatively few murders in relation to the staggering number of rapes and other crimes of sexual or gender-related violence, this being almost a complete reversal of the way that the world is represented in its movies, television shows, literature or comic-book material.Similarly, survey figures from the 1990s suggest that 400,000 women were chronic - repeated, day after day - victims of domestic violence, and that 240,000 had been 'very frightened' by the last incident. These are staggeringly high figures. A large part of the story of contemporary victimology is the story of overlooked female victims.
Fourth, and just to complicate things: male victims are hard to deal with. Do male victims of domestic violence exist? Yes. Is domestic violence against men as serious, or as widespread, as against women? Almost certainly not. What do you do if a man makes a complaint of domestic violence (although he's not showing any visible injury) - or if a man who's been accused of beating his partner claims that he was only fighting back (and he has the bruises to prove it)? Do you treat him as a victim?
Two final points, looking ahead to the remainder of the unit. Point five: victims and criminal justice don't mix (at least, not straightforwardly). The criminal justice process struggles to find a role for victims; all too often victims are sidelined, or else exploited to justify harsh sentencing. Calling the police, and setting the criminal justice machinery in motion, may not be the best way to make the victim safe; it almost certainly won't help empower her.
And point five: restorative justice has a lot to offer. Domestic violence, one of the areas where conventional criminal justice has failed badly, is an area where restorative justice has the potential to succeed. Restorative justice puts the victim centre stage and makes it possible to tailor a justice process which meets the needs of that individual victim - and that individual offender.
Tuesday, 20 January 2015
Term 2, week 1: Rape and rape myths
"a female slave has ... an admitted right, and is considered under a moral obligation, to refuse to her master the last familiarity. Not so the wife: however brutal a tyrant she may unfortunately be chained to - though she may know that he hates her, though it may be his daily pleasure to torture her, and though she may feel it impossible not to loathe him - he can claim from her and enforce the lowest degradation of a human being, that of being made the instrument of an animal function contrary to her inclinations."
- John Stuart Mill (1869), The Subjection of Women
"Women have very little idea of how much men hate them."Rape is a difficult topic to write about. On one hand, many people would agree with Mill that it is "the lowest degradation of a human being" - worse than violent assault or even torture. (You can consent to being assaulted by starting a fight (or a game of rugby); masochists even consent to being tortured. But even a masochist can't consent to rape.) On the other hand, feminists have identified rape as being part of a spectrum of male violence against women and girls - the extreme end, but it still has something in common with other parts of the spectrum, from soft porn and blonde jokes to abuse and domestic violence. (Is a blonde joke violence? We'll come back to that.)
- Germaine Greer (1970), the Female Eunuch
So, from a feminist perspective, rape is at once extreme and typical - a crime which is universally denounced, but one which carries a message (men's hatred and fear of women) that is absolutely normal and everyday.
How does a male-dominated society deal with this contradiction? Essentially (feminists would argue), by denying the reality of rape: setting up a fictional version of rape and obscuring the real one. We looked at some key rape myths in the lecture. Firstly, rape is informally defined along "ideal victim"/"ideal offender" lines. A woman who is raped by a stranger in a dark alley is a real rape victim; a woman raped in her own home by her boyfriend should kick him out and be more careful in future. Secondly, rape is informally defined - and, until quite recently, was legally defined - as something that doesn't happen within a long-term relationship: it was only in 1994 that the law was changed so that a married man could be found guilty of raping his wife. Thirdly, a lot of weight is given to the man's state of mind; the myth here is that a man can only commit rape if he thinks he's committing rape, i.e. if he's certain that the woman hasn't consented. Again, this is an area where the law has changed relatively recently: until the Sexual Offences Act 2003, a man accused of rape could claim that he "honestly believed" the victim had consented, and this would be a defence against the charge. (The defendant now has to show that he had a reasonable belief in consent, which is a lot more demanding.) Lastly, when a rape case comes to court, there is what you could call a professional myth: the myth that rape can be treated in just the same as any other crime, and that justice will be done in the same way. The reality is that women reporting rape, who have had to get through a massive obstacle course in order to get to court, now face the same obstacles all over again in the form of the first three myths - which live on in the minds of the jury (and can be exploited by defence lawyers), even if they aren't supported any more by the letter of the law.
The feminist analysis is powerful. Not everyone agrees with every detail of it - for example describing everyday forms of sexism as male violence - but I think it can tell us a lot about how rape is dealt with in our society. But the feminist analysis leaves us with a question: what is to be done? How can the under-reporting, under-prosecution and under-conviction of rape charges be addressed?
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