“First, I want to start with some foundational concepts: crime is social, and to address crime we need to address the social roots of crime. We also need to remember the fundamental principles of restorative justice….”
I was sitting in a circle with some of the most important minds in Restorative Justice practice today: Lorraine Stutzman Amstutz, the director of the Mennonite Central Committee program for Restorative Justice. Sujatha Baliga, the former prosecutor and current Director of the Restorative Justice Project, and Associate Director at National Council on Crime and Delinquency(NCCD). Mrs. Baliga most notably negotiated a reduced sentence for murderer, Connor McBride following a restorative dialogue between the offender and the victim’s parents. Another attendee, not on the panel, was Theo Gavrieledes, founder of IARS, the Independent Academic Research Studies. His research group focuses on community-based solutions to crime seeking evidence-based outcomes to improve on traditional court, probation, parole and prison based approaches to crime with a bias toward supporting community led initiatives. The person introducing the topic was,Nuri Nusrat, a program associate at NCCD.
We were there to discuss sexual abuse against children in minority communities, specifically, the community intervention with Hollow Water, a native community in Canada where child sexual abuse was, according to the presentation, ingrained in the community to the extent that nearly all community members were involved as either victims or offenders.
Sujatha raised the question of what would have become of her and her family had she reported the crime. Would her father sit in an American prison while her mother, she and her siblings undergo deportation back to her home country where women have extremely limited means as compared to the west? The conflict and tension in the circumstance was apparent – western culture with its scientific and evidence based models provides benefits, but also risk. Women have won rights because inequity in Western society can be measured in wages, employment rates. Courts, with their opposing sides and arguments against one another, proving and winning positions, defend rights and create opportunity. At the same time, the scientific lens of investigation can tear families apart. The western emphasis on equality of treatment requires that all immigrant families are treated equally.
“Immigrant communities will not report sex abuse,” Sujatha said. She had described her own experience of sex abuse over years at the hands of her father, offenses she says she has forgiven. “Families where incest is discovered and prosecuted face deportation.”
Victims always face “double bind” logic from their abusers, the kind of abuse that says “you can’t talk because you and your mother will be deported. You can’t talk because it will break up the family. You can’t talk because you’ve participated this long and no one will believe you.” Sujatha’s argument is that minority communities face pressure that is far and above worse than other victims. As a white male victim of child sexual abuse I can assure her that the double bind exists in all communities. I was presented with similar double binds after a felon freed through the intervention of restorative justice harmed me. “There’s no place for him to go” my parents repeated after their efforts to report were shut down before the information could reach the judge who presided over my offender.
The presenters suggested that the court based system, with its approach to equal treatment of offenders within established classifications is too cold, unemotional and uncaring of what happens to people who go through the system. Instead of reforming laws about how social services responds to sex abuse in immigrant communities, the presenters proposed something like the restorative community circle, as was used in Hollow Water, Canada. This model, they contend, might support immigrant communities by moving away from the accusatory offender/victim model of the court, toward something that might focus on what harm was done and how it could be repaired.
The Hollow Water case is celebrated by Restorative Justice advocates as a win for collectivist intervention. According to the presentation, nearly the entire community was involved in ongoing child sexual abuse and incest. What would justice look like from a social services approach in such a circumstance? Could the state go in and take all of the children away from a native community in what would be seen as a repeat of historical wrongs against native peoples – the march of tears, broken treaties, children taught by missionaries to reject their language and tradition, native reservations moved and moved again onto less and less desirable land?
Instead of a massive social services intervention, community circles were organized where perpetrators and victims could face one another and talk out the harms and how to resolve the wrongs. It sounds good on paper.
Where the Hollow Water intervention becomes more complicated than was expressed by the panel is in the assessment by critics of restorative justice among indigenous law writers. The panel’s presentation did not take an academic approach to the issue, and Sujatha made only a vague mention of concerns that were raised. Had the presentation been academic it would have addressed the numerous critiques of the Hollow Water case that have been published in the literature. Mary Koss and Mary Achilles write:
“circles are critiqued widely in the indigenous law literature (Rave, 2004). One of the best known programs is the Hollow Water First Nation Community Holistic Circle Healing approach to sexual offenders, their victims, and families (see Umbreit et al., 2006). The identified strengths of this program were having a voice and a stake in justice, the context of mutual respect, and renewed community and cultural pride. However, the model has been the subject of a series of critiques from within and outside the community. Expressed concerns included lack of privacy, embarrassment working with family and close friends, unprofessional conduct, coercion on survivor/victims because they are outnumbered, deferral to professionals by Native people, and class, gender, culture, and race bias (Cuneen, 2004). One legal scholar has suggested that circles do not even qualify as restorative justice (Coker, 2004). To her, circles involve the same criminal justice players as a conventional sentencing and may lack a clear normative judgment about what constitutes illegitimate conduct towards women.” (Koss, Achilles, 2008)
The panel suggested that Hollow Water is a breakthrough example of how to address child sexual abuse and incest in minority and immigrant communities. As an attendee of the session I found it to be poorly organized with an assumption that attendees would naturally accept that a restorative option is the right option.
In light of the bias presented, Sujatha’s bold statement, “If this isn’t working, I won’t do it anymore,” was particularly concerning. In Hollow Water it didn’t work. Victims were bullied and women were treated by the community as though their worth comes from their ability to perform sex acts.
The panel never presented a format they believed would work. The tone hovered between something like massive cultural interventions on groups where child sex abuse rates are high and something like a diversion program where offenders who acknowledge the wrong are shuttled out of penalties such as prison or deportation into caring and sharing circles where harms like fondling or inappropriate exposure of sex organs all the way up to child rape can be patched over for the betterment of us all.
The truth is that criminal wrongs are individual and they are social. Starting with an assumption that wrongs come out of a milieu ignores that individuals from a given social context make different choices. One chooses to touch a child. Another doesn’t. One chooses a lesser, and not illegal, wrong of consensual infidelity with an adult. Another doesn’t. Social norms, like a culture of secrecy and privacy, or, alternately, a culture of permissiveness can create a backdrop to individual wrongdoing, but they don’t create it, and addressing social norms may or may not have an impact on wrongdoing, depending on the drives, internal justifications and behaviors of the offender.
As an audience member/participant I was greatly dissatisfied with the session. I had hoped for a well-researched, academic study, but what I saw was a pep rally. My only question leaving the session was, “How much does it have to not work before we can get back to the real work of justice?”
To me, justice work is complicated and hard. There are no magical, miraculous outcomes. Evidence has to be weighed, and the work must come from an ethical, not moral foundation. Sometimes it needs force. Sometimes it needs investigation. And sometimes it needs conversation and dialogue. But none of those things are better than the others. None is more “right.”
A coerced social pacifism in the face of great wrongdoing is certainly not the right path.
Koss, M. and Achilles, M. (2008, February). Restorative Justice Approaches to Sexual Violence. Harrisburg, PA: VAWnet, a project of the National Resource Center on Domestic Violence/Pennsylvania Coalition Against Domestic Violence. Retrieved August 11, 2013, from: http://www.vawnet.org http://www.vawnet.org/applied-research-papers/print-document.php?doc_id=1231