Contents

Appendix B
Overseas alternative justice mechanisms

Introduction

1This appendix reviews examples of alternative justice mechanisms available to victims of sexual violence in overseas jurisdictions. The models are discussed in no particular order and are not comprehensive.

Restore – ArizonaTop

2Project Restore in New Zealand was inspired by this 2003 pilot project conducted in Arizona – Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience (RESTORE).740 This programme utilised a specially designed restorative justice model for resolving sexual offending and was developed by a number of community and government groups. Participation was voluntary, and acknowledgement of the sexual act needed to be admitted by the perpetrator. It focused around a conference model (pre- or post-charging) that followed a set agenda of perpetrator’s description of acts, victim statement and development of a redress plan.
3The process covered four stages, briefly outlined as follows:741

Centre for Victims of Sexual Assault – DenmarkTop

4The Centre for Victims of Sexual Assault in Copenhagen, Denmark, offers a mediation programme similar to RESTORE. The aim is to provide the victim a chance to address the offender directly and give the offender an opportunity to take responsibility.743 The Centre is primarily focused on treatment and recovery, involving doctors, nurses, psychologists and social workers. The victim-offender mediation is an innovative step in victim recovery and is now an integral part of the help offered by the centre. Communication between the victim and the offender is often initiated by a letter, before a more formal mediation occurs.744

The Ellis Process – AustraliaTop

5This process was established by John and Nicola Ellis to work with Australian victims of sexual violence, particularly in the context of those abused by the Catholic Church.745
6Unlike the RESTORE model, conferencing with the offender is not a major element, as in their experience, most victims of sexual abuse in the church do not want to restore the relationship with their abuser. Instead, the Ellis Process looks to restore the individual’s sense of self-worth and self-respect through “more tempered and less confronting interactions and a process that is restorative of the individual’s sense of self-worth and self-respect, irrespective of whether there is any restoration of the connection with church personnel”.746
7The process incorporates therapeutic jurisprudence, the “conversation model” of psychotherapy and trauma-informed care and practice. It involves three phases: first, the victim is provided with stabilisation; second, victims meet with therapists to process the trauma; and third, an external support network or linking with other victims is built to integrate and rehabilitate victims.747

Cedar Cottage – New South WalesTop

8Cedar Cottage was a programme run in New South Wales to deal with intra-familial sexual violence outside of the conventional justice system. It provided treatment that aimed to:748
9The eligibility criteria required that the perpetrator was in a parental relationship with the child victim, the perpetrator had no previous convictions and the perpetrator pleaded guilty to all offences and passed a rigorous eight-week assessment process. The treatment programme lasted two to three years and included “cognitive-behavioural therapy and invitational practice to address criminogenic needs” and supported offenders in behaviour change.749
10It was a remarkably successful programme, with evaluations showing it reduced recidivism amongst treated perpetrators by more than two-fifths.750 However, the Cedar Cottage programme was discontinued by the state government in 2012,751 seemingly in response to public pressure that it was providing a soft punishment in response to child sexual abuse.752

Circles of support and accountability – US, UK and CanadaTop

11Circles of Support and Accountability (COSAs) emerged in Canada in the 1990s as a response to the release of high-risk sex offenders into the community without a formal process of community supervision and aftercare.753 This model has been replicated in the United Kingdom and the United States as well.754 COSAs involve a high-risk offender who is in need of support and a team of four to six screened volunteers who commit to weekly meetings for one year, as well as training and a signed “contract” of terms and conditions for all parties.755 This establishes the norms and behaviours appropriate to the group and clarifies the circle’s expectations and the consequences of failing to meet those expectations. Confidentiality and honesty are emphasised.756 In the initial two to three months, a member of the circle meets with the offender daily.757
12COSAs work to provide reintegration support to the released offender, to support them to make good choices and to ensure accountability.758 Research into the efficacy of the COSA in Canada showed that, following participation, sexual reoffending was reduced by 83 per cent, violent reoffending by 73 per cent and all other reoffending by 71 per cent.759 The United Kingdom project monitored behavioural outcomes for the 22 COSA participants over three years, and none of these offenders committed a new sexual offence.760

Circle sentencing – AustraliaTop

13Circle Sentencing in Australia is an alternative method of court procedure and sentencing, similar to the family group conferences that occur in New Zealand. Models are currently in operation in South Australia, Queensland, Western Australia and Victoria.761 The model was developed to provide a more culturally appropriate court process for indigenous Australians.
14Circle sentencing occurs after the entry of a guilty plea by an indigenous perpetrator. The court does not sit in a normal court room but in a culturally appropriate place for the community. Participants sit in a circle and include community elders, an Aboriginal Project Officer and support people for both the victim and the perpetrator. Circle members discuss and agree to an appropriate sentence plan for the perpetrator. After a few months, the circle is reconvened to assess the perpetrator’s progress.762
15In a New South Wales evaluation report, circle sentencing was found to increase the confidence of Aboriginal communities in the sentencing process, enhance the cultural competency of court officials and the legal literacy of Aboriginal participants, support victims through the sentencing process, and increase participation of offenders in the sentencing process.763 However, despite stakeholder qualitative perception that reoffending was reduced through circle sentencing, it did not seem to have a specific impact on recidivism.764

South Eastern Centre Against Sexual Assault & Family Violence (SECASA) – MelbourneTop

16SECASA has been undertaking informal restorative justice-type sessions for the last 20 years.765 In 2015, it announced a new pilot programme that would enable a structured programme to be developed and evaluated by academics at Monash University.766

17SECASA operates in a similar manner to Project Restore, providing structured conferences with concurrent counselling for both parties. Uniquely, the SECASA process can happen between the victim and perpetrator or between the victim and someone who has been complicit or exacerbated harm such as a family member or institutional representative. Community or institutional representatives may also attend victim-perpetrator conferences if appropriate.

18Victims are given the option to engage in a restorative justice process and must fully consent before the other party is asked for consent. The programme has specific criteria, ensuring the competence of both parties to consent, the safety of the parties and the likelihood of remedying the harm of sexual violence. Parties are also warned of the legal ramifications and the statutory responsibility on parties to disclose sexual violence against children to the authorities.

Alternative measures – British ColumbiaTop

19The Canadian Criminal Code has provision for a form of restorative justice called “alternative measures”.767 A perpetrator may be referred to a programme of alternative measures, rather than having charges laid, if certain criteria are met. To be eligible, a perpetrator must accept responsibility for the alleged offence and agree to participate, and participation must not be inconsistent with the interests of society and the victim.768 Acceptance of responsibility cannot be used as evidence in any future criminal proceedings.769 There must also be sufficient evidence that would enable a case to proceed, to prevent net widening.770 Use of alternative measures itself is not a bar to future proceedings, but if a charge is laid and the perpetrator has totally complied with the terms and conditions of the alternative measures, the charge must be dismissed.771
20As referral must be in the interests of society and the victim, the Public Prosecution Service states that a sexual offence will usually preclude the option of alternative measures.772
21However, some jurisdictions do allow alternative measures to be used in rare cases for family violence. In British Columbia, alternative measures can be used for cases of sexual violence if there is special approval from the Regional or Deputy Regional Crown Counsel. It is stated that “[s]uch approvals may be granted only where exceptional circumstances exist so that the use of alternative measures is not inconsistent with the protection of society”.773

Victim-offender mediationTop

22Victim-offender mediation (VOM) operates as a form of diversion whereby the Police or prosecutorial authority elect not to prosecute if there is an agreed resolution between the victim and perpetrator. As we understand it, this model of mediation is used in Europe including Norway, Austria and Germany (Tater-Opfer-Ausgleich) but, in general, is not currently applied to sexual violence cases (with some exceptions) as it is not considered in the public interest, given the serious nature of the offending.774

23VOM started in the 1970s in Kitchener, Ontario, before spreading into the United States and Europe. It began as a probation-based/post-conviction sentencing alternative whereby the probation office was satisfied that a meeting between the victim and perpetrator would lead to a positive outcome. Some form of reparation is characteristic of the agreed outcome, and we note that, for some victims, the provision of financial compensation can be a practical outcome.

24As a form of negotiation there are inevitably some related risks (from the victim’s perspective), hence there is a heavy reliance on screening, perpetrator admission of guilt and victim willingness.

Truth commissionsTop

25Truth commissions are an alternative justice model that are often used to respond to widespread crimes that occur across a society, such as in apartheid South Africa, civil war in Sierra Leone or lynching in North Carolina.

26These commissions seek to “investigate, gather evidence, [and] create a public record” and to make recommendations about how to heal individuals and broader society.775 As such, there is a strong emphasis on restorative justice. Victims are invited to speak about their suffering, and individuals and institutions are visibly shamed.776 However, there is no formal punishment, and so such commissions may only be seen as appropriate when the wide scale of perpetration (due to war or institutionalism) may limit other models of sanctions. Further, such commissions usually examine a wide range of crimes and human rights abuses, so sexual violence is not the primary focus.777 There is some controversy as to whether truth commissions are forms of restorative justice or should be considered separately.

Recommendations of the Melbourne Centre for Innovative JusticeTop

27In May 2014, the Centre for Innovative Justice based at RMIT University, Melbourne, published a report on innovative justice responses to sexual offending, arguing:778

it is time for an adult sexual offence restorative justice conferencing programme to be piloted in the Australian context. When too few victims of sexual assault have options in the criminal justice process, or the prospect of any real justice outcomes; and when evidence suggests that restorative justice conferencing meets victims’ justice needs to a greater extent than the conventional criminal justice system, it is difficult to justify any further reluctance to embrace reform.

28They wrote that caution is necessary but that safeguards could be put in place to address many of the concerns raised. They pointed to New Zealand’s Project Restore as a model to be built on. As part of a suite of measures, the report set out a proposal for a best practice model of sexual violence restorative justice conferencing. However, as we understand it, there is no plan as of yet to implement the model proposed.

740Shirley Jülich and others “Yes, there is another way!” (2011) 17 Cant LR 222.
741Mary Koss “Chapter 10: Restorative Justice for Acquaintance Rape and Misdemeanor Sex Crimes” in James Ptacek (ed) Restorative Justice and Violence Against Women (Oxford University Press, Oxford, 2009) 218 at 230–234.
742Koss, above and Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) at 405.
743KS Masden “From victim to action” (paper presented to Associação Portuguesa de Apoio à Vítima (APAV), Lisbon, July 2008) at 1.
744At 3.
745John Ellis and Nicola Ellis “A new model for seeking meaningful redress for victims of church-related sexual assault” (2014) 26 Curr Issues Crim Justice 31.
746At 38.
747At 37.
748“Cedar Cottage - About the Programme” NSW Government: Health Western Sydney Local Health District <www.wslhd.health.nsw.gov.au>.
749Jane Goodman-Delahunty and Kate O’Brien “Parental sexual offending: Managing risk through diversion” (2014) 482 Trends & Issues in Crime and Criminal Justice at 3.
750Jane Goodman-Delahunty The NSW Pre-Trial Diversion of Offenders (Child Sexual Assault) Programme: An Evaluation of Treatment Outcomes (Charles Sturt University, 2009) at 9.
751“The NSW Pre-Trial Diversion of Offenders Programme (Cedar Cottage)” NSW Government: Health Western Sydney Local Health District <www.wslhd.health.nsw.gov.au>.
752Anna Patty “Axe for sex offender treatment programme” Sydney Morning Herald (online ed, NSW, 4 September 2012) <www.smh.com.au>.
753RJ Wilson, F Cortoni and AJ McWhinnie “Circles of Support & Accountability: A Canadian National Replication of Outcome Findings” (2009) 21 Sex Abuse J Res Treat 412 at 414.
754Kathryn J Fox Circles of Support & Accountability: Final Report Prepared for the State of Vermont Department of Corrections (University of Vermont 2013) at 3.
755At 3.
756Ian Elliott, Gary Zajac and Courtney Meyer Evaluability Assessments of the Circles of Support and Accountability (COSA) Model, Cross-Site Report (Pennsylvania State University, 2013) at 34.
757Wilson, Cortoni and McWhinnie, above n 753, at 415.
758At 415.
759At 420.
760At 416.
761Arie Freiberg “Innovations in the Court System” (Australian Institute of Criminology, paper presented to Crime in Australia, Melbourne, 30 November 2004) at 1.
762At 9.
763NSW Attorney-General’s Department Evaluation of Circle Sentencing Programme (May 2008) at 33.
764At 84.
765Melissa Davey “Victims face their molester in Victoria’s world-first restorative justice program” The Guardian (online ed, UK, 17 June 2015).
766Email from Dr Bebe Loff (Director of the Michael Kirby Centre for Public Health and Human Rights) to the Law Commission regarding the SECASA Restorative Justice for Sexual Violence Pilot (22 July 2015).
767Criminal Code Canada RSC 1985 c C-46, s 717.
768Criminal Code Canada RSC 1985 c C-46, s 717(1)(b).
769Criminal Code Canada RSC 1985 c C-46, s 7171(3).
770“Net-widening” refers to the process by which an alternative diversionary programme actually results in an increase in the number of individuals engaging with the justice system, often due to relaxed evidence requirements.
771Criminal Code Canada RSC 1985 c C-46, s 717(4)(a).
772Public Prosecution Service of Canada Deskbook, pt 3.8 at [3.3].
773British Columbia Criminal Justice Branch Crown Counsel Policy Manual: Alternative Measures for Adult Offenders at 3.
774We note the “Istanbul Convention”, which states that “parties shall take the necessary legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence covered by the scope of this Convention”; Council of Europe Convention on preventing and combating violence against women and domestic violence CETS 210 (opened for signature 11 May 2011, entered into force 1 August 2014), art 48.
775Leigh Goodmark “‘Law and Justice Are Not Always The Same’: Creating Community-Based Justice Forums for People Subjected to Intimate Partner Violence” (2015) 42 Fla State Univ Law Rev 707 at 709.
776Brenda V Smith “Battering, Forgiveness and Redemption” (2003) 11 Am Univ J Gend Soc Policy Law 921 at 944.
777Margaret Maisel “Have Truth and Reconciliation commissions Helped Remediate Human Rights Violations Against Women? A Feminist Analysis of the Past and Formula for the Future” (2012) 20 Cardozo J Int Comp Law 143.
778Centre for Innovative Justice Innovative justice responses to sexual offending – pathways to better outcomes for complainants, offenders and the community (Centre for Innovative Justice, 2014) at 36.