I was very hopeful when I discovered this approach was being proposed for rape cases – a genuine alternative justice system to sort through the conflicting his and hers stories seeking common ground, rather than bludgeoning men into submission. It made sense, particularly with acquaintance/date rape scenarios involving alcohol, consent ambiguities, young people, and low reporting rates. Great for everyday cases where victims/survivors don't want the criminal system, where juries hesitate to convict without clear evidence, and where the adversarial process often fails both parties.
I should have known that there was no way feminists were going to let this happen. Despite Gruber's words of warning, they remain intent on refashioning the criminal justice system to demolish all accused men and refuse to countenance an alternative approach.
Here's feminist family violence researchers Joan Pennell and Gale Burford: "Restorative Justice in sexual violence is a wolf in sheep's clothing-retraumatizing victims through coerced 'conferences' where abusers can twist narratives, blame alcohol or 'misunderstandings,' and escape real punishment. Feminists must fight this tooth and nail; it's a vicious undermining of survivor agency, forcing women into intimate hells with their rapists for the sake of 'restoration' that only restores patriarchal control."
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So, for a while there was a total blanket ban on using RJ for sexual violence cases. But gradually the rules started to bend, allowing conferencing in cases where the alleged perpetrator had admitted responsibility or was already found guilty in court. The new culturally sanctioned version of RJ was proudly survivor-led, complete with victim-offender dialogue aimed at securing the perpetrator's apology, ideally complete with the mandatory line: "I have learned so much from your courage."
Well, actually that's a bit mean. There is evidence that RJ can work well even in these circumstances – and not just for the victim. Restorative justice literature consistently finds that what many women actually want is validation, a genuine apology, assurance it won't happen again, and a voice - not incarceration. And it is certainly a better option for men than prison.
But it's a long way from the open-ended process I had in mind which allows both parties to explore what happened without predetermined guilt. A genuine truth finding mechanism which might identify fault on both sides, especially in alcohol-affected date rape cases.
In March last year a report was tabled by the Australian Law Reform Commission (ALRC) on reforming justice responses to sexual violence. This proposed legislation aims to make RJ a more formal, consistent practice across states and territories-potentially as an alternative or complementary pathway to our current revenge-seeking system. This is the first time restorative justice has been seriously considered as part of any national strategy to address sexual violence.
This is a big deal, particularly as there were submissions to the inquiry which argued for an even broader model, removing the current post conviction/admission requirements. To its credit, the ALRC did recommend this model.
It's a welcome sign that cracks are finally emerging in the long-standing, punitive, feminist-led monopoly over this territory-cracks that open the door to a broader, fairer, more humane approach to real justice. I urge you to contact your local MPs to urge the government to back this proposal – here's a draft letter. You could also send it to your state Attorney-General. I'm really excited about this idea and hope you will help promote it.
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The ALRC's recommendation to expand restorative justice pathways really deserves our full support-not as a retreat from accountability, but as a mature step towards delivering true justice for many more people.
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