Typically, feminists are resistant to the idea of responding to rape – or sexual violence more generally – through restorative justice. After decades of campaigning to get the harms women suffer recognised in politics and law, their concerns that such a move will trivialise rape and provide only ‘cheap justice’ are fair. So too are the criticisms that restorative justice cannot address or appropriately account for the gendered power imbalances between the victim and offender, and that, as a result, it may cause further harm to the victim and fail to protect her and others from future violence. While this means I’m wary of restorative justice as a response to rape, I do think there is value in exploring this idea. Likewise, in a 2010 report Jennifer Brown et al. mention restorative justice as an ‘expanded justice alternative’ that could be considered – although they are similarly careful to set the sceptical feminist scene.
But there are good reasons for turning to alternative or additional legal responses to rape. In spite of significant legislative changes and political goodwill, the criminal justice system continues to fail victims of rape. As a result, 2009 saw an investigation into public authorities’ responses to rape in the Stern Review, which made a number of generally welcomed recommendations and took Sara Payne’s view that justice needs to be ‘redefined’ to include the needs of victims. However, the fundamental question remains as to whether or not this is possible for the criminal justice system to achieve: paradigmatically it is a dualistic structure consisting of the state’s action against the perpetrator and is unable to fully accommodate the ‘private’ individual victim’s interests. It can also be argued that rape laws (for example, with their focus on penile penetration) and the criminal justice system (for example, which reinforces rape complainants’ victim status) reflect and reproduce the gendered foundations of rape myths and stereotypes, which may be prohibiting progress. By further exploring restorative justice as either an alternative or addition to the criminal justice system, it could – at least in some cases – provide justice for rape victims; or at the least it might shed light on ways in which to improve the criminal justice response to rape.
One of the most significant advantages of restorative justice– which is often emphasised – is its capacity to give victims a voice: it allows them to tell their story and explain the ways in which the crime has hurt them and affected their and others’ lives. Feminists have long encouraged the telling and hearing of women’s stories (in law) as a means to express alternative viewpoints and to disrupt the monotony of the dominant discourse. But the framework within which they are told and heard limits the expression and understandings of these stories, and so the structures they are told within must be challenged and rearranged. For instance, the criminal justice system restricts the victim’s explanation of events at trial by the nature of the questions she is asked, and in rape laws the categories and language cannot capture the hurt, pain, shame and objectification of sexual assault that survivors have expressed in empirical research. Restorative justice does not have the same restrictions. As Barbara Hudson explains:
In restorative justice proceedings the abuser cannot ignore [the victim] as is possible in a conventional court; her story will not be refracted through legal language but will be told in her own words … She will be the centre of her own story: her evidence will not be confined to dwelling on aspects of the incident that relate to him.
Seen in this way, it is important to emphasise that restorative justice provides a different space – rather than just more space – in which victims can tell their stories of rape. Of course, it is possible, as critics have argued, that restorative conferences, and other forums in which the rape victim-survivor is face-to-face with the offender, might replicate and reinforce the gendered power dynamics, with the offender restricting what the victim-survivor feels she can say. Even so, by placing the crime of rape within a different framework and paradigm it provides a different perspective from which to interrogate the harm of rape, and from here to inform and improve the legal response. Having seemed to have reached an impasse in the criminal law, restorative justice could provide a means by which to explore more radical options and provoke ideas for future direction.