Keenan, M. (2018). Notes from the field: training and restorative justice work in cases of sexual violence. The International Journal of Restorative Justice, 1(2), 292-303.
Koss, M.P. (2014). The RESTORE program of restorative justice for sex crimes: vision, process, and outcomes. Journal of Interpersonal Violence, 29(9), 1623-1660.
Koss, M.P., Bachar, K.J., Hopkins, C.Q. & Carlson, C. (2004). Expanding a community’s justice response to sex crimes through advocacy, prosecutorial, and public health collaboration: introducing the RESTORE program. Journal of Interpersonal Violence, 19(12), 1435-1463.
Koss, M.P., White, J.W. & Lopez, E.C. (2017). Victim voice in reenvisioning responses to sexual and physical violence nationally and internationally. American Psychologist, 72(9), 1019-1030.
Lopez, E.C. & Koss, M.P. (2017). The RESTORE program for sex crimes: differentiating therapeutic jurisprudence from restorative justice with therapeutic components. In E. Zinsstag & M. Keenan (eds.), Restorative responses to sexual violence: legal, social and therapeutic dimensions (pp. 212-228). Abington: Routledge.
Ward, T. (2017). Restorative justice and the dual role problem confronting practitioners. In E. Zinsstag & M. Keenan (eds.), Restorative responses to sexual violence: legal, social and therapeutic dimensions (pp. 92-107). Abingdon: Routledge.
Wexler, D.B. (1995). Reflections on the scope of therapeutic jurisprudence. Psychology, Public Policy, and Law, 1(1), 220.
Winick, B.J. & Wexler, D.B. (eds.) (2003). Judging in a therapeutic key: therapeutic jurisprudence and the courts. Durham: Carolina Academic Press.
-
1 Unfortunately, RESTORE is no longer operational in the United States and thus no longer has a dedicated website. However, there is Project RESTORE NZ which is a New Zealand programme based on the US RESTORE model. More information can be found at https://projectrestore.nz/. Publications on the RESTORE US programme can be found on Mary Koss’ biographical page at https://publichealth.arizona.edu/directory/mary-koss.
In Training for restorative justice work in cases of sexual violence, Keenan argues that additional specialised instruction beyond foundational restorative justice training is warranted for facilitators who will be using restorative justice for sexual harm cases (Keenan, 2018). Overall, Keenan concludes that facilitators need training beyond basic restorative justice competencies to minimise risks of re-traumatisation and re-victimisation, including reinforcing during restorative justice processes the power imbalances inherent in sexual harm incidents. We agree that it would be less than ideal for facilitators without comprehensive knowledge of sexual assault to conduct conferences for these cases.
In this response note, we expand on Keenan’s discussion on the therapeutic, ethical and legal dimensions of concern for training facilitators to use restorative justice conferences in sexual harm cases. As Keenan notes, the facilitators of conferences for sexual harm cases are often specialists in restorative justice but do not necessarily have a background in sexual harm. Our commentary here is based on a reverse experience: our backgrounds as sexual assault specialists who came to restorative justice practices after years of working with victims in traditional clinical, research, community-based, and court system settings.
RESTORE, a research-demonstration project for prosecutor-referred misdemeanour and felony sex crime cases, ran from 2002 to 2007 in Tucson, Arizona, USA.1x Unfortunately, RESTORE is no longer operational in the United States and thus no longer has a dedicated website. However, there is Project RESTORE NZ which is a New Zealand programme based on the US RESTORE model. More information can be found at https://projectrestore.nz/. Publications on the RESTORE US programme can be found on Mary Koss’ biographical page at https://publichealth.arizona.edu/directory/mary-koss. RESTORE conference facilitators were programme staff and screened volunteers. All facilitators attended a multi-day training conducted by a nationally recognised (US) restorative justice organisation. The RESTORE Principal Investigator (Koss) trained facilitators regarding sexual harm. All facilitators led multiple practice conferences, and were coached after each session. Programme manuals were developed for every RESTORE programme role (e.g. case managers, conference facilitators, survivor victims, responsible persons) to ensure that all individuals had comprehensive information about the programme structure and goals. Facilitators were regularly observed and provided with ongoing feedback. Case managers and the RESTORE Principal Investigator attended conferences as observers. This provided a level of informal training for staff not facilitating conferences on the nuanced impacts of restorative justice for sexual harm cases that could not have been achieved through didactic training alone. This practice also created a feedback loop to improve other stages of the programme such as pre-conference preparation and post-conference redress monitoring.
The RESTORE study culminated in the first peer-reviewed, published evaluation of an restorative justice conferencing programme for adult sex crimes (Koss, 2014). RESTORE showed positive results in process (e.g. referral and enrolment rates, observational ratings of conferences, safety monitoring) and outcomes (e.g. programme and justice satisfaction, completion rates). Sexual assault cases were diverted to RESTORE pre-charge, and thus, our remarks here will be in the context of restorative justice conferencing models used in lieu of conventional justice with victims (in RESTORE, ‘survivor victims’) and offenders who acknowledged that the sex act occurred (‘responsible persons’).
Keenan argues that additional training is needed because the facilitators of restorative justice for sexual harm cases should be ‘well placed to respond to … safety, psychological and emotional needs’ (Keenan, 2018). We agree with this statement because facilitators do need to be keenly aware of the ways in which system responses to sexual violence can cause additional harm, and should consciously strive to prevent these incidents. However, we caution against using clinical terminology, such as ‘healing’ or ‘therapeutic’ to describe restorative justice. The tagline for RESTORE was ‘Justice that heals’. In retrospect, it appears to be over-claiming what justice can accomplish. There was an envisioned expectation during programme development that the process would provide some reduction in the secondary abuse that many victims experience from conventional justice measures. However, ‘healing’ did not describe their experience with the conferencing model itself. It is more appropriate to highlight outcomes that can be more legitimately attributed to an restorative justice process including feelings of safety and satisfaction with the conference. In the context of restorative justice, we would argue that safety is not a measure of therapeutic effect, but a measure of anti-harm. For example, self-blame is the strongest predictor of the severity and duration of post-traumatic stress disorder (PTSD) in sexual abuse victims. Restorative justice is not designed to treat victim PTSD, but it can be implemented such that it does not exacerbate or prolong symptoms. Restorative responses may mobilise therapeutic interventions and family support, but the healing comes from these connections to other services. The restorative justice process may even synergise the effectiveness of family support and therapy because it starts with the acceptance of responsibility by the responsible person, thereby providing upfront survivor victims validation and reducing survivor victims self-blame as a result. In RESTORE, survivor victims had access to counselling through a local victim services centre, and responsible persons attended mandatory offender treatment. As programme developers create protocols, we recommend that they consider how to bolster restorative responses with linkages to therapeutic services designed to meet clinical needs. For facilitator training, we recommend discussion of the scope of practice of restorative justice conferencing so that it does not veer from justice goals into clinical territory.
In addition to specialised facilitator training, restorative justice centres and programmes should consider procedural and structural adjustments in protocols to facilitate safe conferencing experiences. RESTORE required a number of adaptations to a typical conference format. These included having specially trained facilitators; using a conference table rather than an open circle; mandatory psychosexual assessment of all responsible persons by a clinician certified for forensic assessment in state and federal courts; a preparation period with case management and determination of readiness of all parties before conferencing; culturally- and gender-matched individuals to serve as victim representatives in place of sexual violences who did not want to meet with the responsible person, but desired that a restorative process be implemented; holding conferences in a police station; and mandatory case management including appearances before a Community Accountability and Reintegration Board and sex offender treatment for responsible persons during a (minimum) 12-month redress period (Koss, Bachar, Hopkins & Carlson, 2004). More than 90 per cent of all RESTORE participants (e.g. survivor victims, survivor victims representatives, responsible persons, family and friends) strongly agreed or agreed that during the conference they felt safe, listened to, supported and not made to do more than they felt like they should (Koss, 2014). These modifications may not all be necessary to create safe conferencing experiences in sexual harm cases, but failure to adapt the typical restorative justice conference process for use in these types of cases would be short-sighted. Cases appear in the literature where survivor victims and responsible persons were put together with no preparation, where conferences proceeded without the victim’s consent or the attendance of someone representing the impact of the harm, and with insistence on immediate apology, the expectation of forgiveness, requirements that the responsible person accept crime labels such as ‘rape’ and ‘rapist’ and the imposition of activities with intent to intensify shame. In our opinion, these features are ill-advised in sexual harm cases.
Keenan cautions against over-professionalisation and prescriptiveness in training standards for restorative justice facilitators, but we believe that this sentiment can also be transposed into the overall arc of the justice process. In victim services, over-professionalisation has led to a disconnect between victims’ desires and the menu of options available to them to meet both their needs (Koss, White & Lopez, 2017). We advocate for reconnecting with direct victim input about what they want from justice. Currently, many victim service providers subtly or covertly pressure for participation in the criminal justice system because that is valued by them from their predominately white, educated, elite social perspective. We must guard against doing the same with restorative justice. Victims should be free to choose among justice options, to arrange their own resolutions (although these instances concern us from a safety perspective) or to reject justice interventions in the interest of meeting other more pressing needs. Minimising professionalisation also offers another advantage. It is the swiftest route to diversifying the work force. Restorative justice places high value on attention to cultural beliefs about preferred approaches to rehabilitation and reparation and the providers and locus of service where participants are comfortable.
Keenan’s triple-role problem (which expanded from Ward’s (2017: 93) dual role problem) is that restorative justice facilitators have responsibilities toward justice for victims, consideration for offender well-being, and community protection. We agree with Keenan that additional training on sexual harm for restorative justice facilitators should include reflection and skill building on balancing competing interests in these cases. The tension between the three ethical interests can become imbalanced, for example, if restorative justice facilitators have implicit biases toward survivor victims (e.g. there are always two sides to a story) or responsible persons (e.g. those who sexually harm do so based on gendered-entitlement). One of the strengths of restorative justice is that it allows for individualised justice, which begins with the ability to perceive survivor victims and responsible persons as individuals.
Keenan’s discussion on the triple-role problem reminds us of a similar issue that has cropped up in another area of criminology, that of therapeutic jurisprudence (TJ). The TJ branch of criminological inquiry grew out of a concern for balancing the rights and assistance for mentally ill defendants, and ultimately led to the development of specialty courts for issues such as domestic violence and substance abuse. The triple-role problem summarises a question that has been longstanding in TJ scholarship: therapeutic for whom? Or, in the case of restorative justice, justice for whom? Although early definitions of TJ focused generally on understanding the therapeutic or anti-therapeutic effects of the court system on people in general, the fundamental processes that were ultimately developed for these courts focused primarily on aiding in offender welfare and compliance (see Wexler, 1995: 224; Winick & Wexler, 2003). Over time, and as specialty courts began to include crime victim services, significant tension developed in the literature regarding whether specialty courts based in TJ principles could balance offender accountability with victim recovery (for a review, see Lopez & Koss, 2017: 216-220). TJ court models and pre-charge restorative justice conferencing models differ in that TJ takes place within the conventional justice system that involves fact-finding, the determination of guilt and the assignment of punitive sanctions. Thus, even TJ courts that include victim services will always be concerned with promoting offender compliance as their main area of focus. Overall, however, the fundamental question of how to deal with the tension of competing interests within a justice process appears to be one that is of interest in multiple sectors of crime response. Restorative justice facilitators are not exempt from having to consider the legitimate interests of survivor victims, responsible persons, secondary victims (e.g. family and friends of survivor victims and responsible persons) and the larger community. Holding space during training on sexual harm to discuss the specific tension between these interests and how to ethically balance them would be beneficial to facilitators.