Contents

Chapter 7
The case for an alternative justice mechanism

Restorative justice

7.51Restorative justice is both a way of thinking about crime and a process for responding to crime,537 however there is no consensus on what does or does not amount to restorative justice.538 The philosophy of restorative justice views crime as a violation of people in relationships, causing harm for which perpetrators and communities are accountable and have an obligation to repair. It is commonly agreed that, in essence, restorative justice practices are aimed at repairing harm. Howard Zehr gives the following working definition:539

Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.

7.52Examples of restorative justice practices from around the world include victim-perpetrator mediations/dialogues,540 group conferences of family and/or community members, diversion or treatment, circle models, community panels and, arguably, truth commissions. In Europe, the 2012 European Union Directive establishing minimum standards on the rights, support, and protection of victims of crime requires member states to implement national laws so that victims who choose to participate in restorative justice processes have “access to safe and competent restorative justice services” subject to the minimum conditions set out in the directive.541

7.53​​One of the most commonly cited examples of a restorative justice practice in the literature is New Zealand’s family group conference (FGC) model, used in the youth justice area and legislated by the Children, Young Persons, and Their Families Act 1989. FGCs are a conferenced-based form of restorative justice that allow a young person, his or her family, a complainant, Police and other youth justice professionals to collaboratively address the underlying causes of offending while still holding the young person accountable. FGCs can occur at a variety of times and for a number of related purposes. The two most common are the “court-ordered FGC” and “intention to charge FGC”. 

7.54An intention to charge FGC may be convened in order to determine whether an offence in respect of which proceedings have been commenced should be dealt with by the court, or whether the matter can be dealt with by way of a plan that is completed and monitored outside of the court process. If a plan is formulated, this might require a young person to undertake treatment, do community work, or make redress. The plan is not filed with the court, but is monitored by Police and Child, Youth, and Family. If the plan is successfully completed this is the end of the matter and no charges are laid. In effect this amounts to pre-charge diversion. However, if the plan is not fulfilled, charges may be laid. 

7.55Sexual violence in the youth justice area is more likely to be dealt with by a court-ordered FGC. In those cases the purpose of the FGC is to formulate a plan to address the consequences and the causes of offending which will then be presented to and monitored by the Youth Court. 

7.56Although restorative in nature, FGCs are focused on the young person who is alleged to have offended, and do not target the justice needs of victims. However, the “intention to charge” FGC does demonstrate the potential for certain types of offending to be dealt with outside of the court. Police act as gatekeepers of the public interest at the outset, before acting in conjunction with Child, Youth, and Family to monitor the plan, completely outside of the court. If the plan fails the court exists as a “backstop”. And the use of FGCs even in cases of alleged sexual violence demonstrates the application of restorative practices in this area, although in a way that is focused on the offender rather than the victim/complainants. 

The use of restorative justice in cases involving sexual violence

7.57Restorative justice practices need to be specially tailored for use in sexual violence cases. It is possible that programmes that are not specially designed or delivered by those with expertise cause further harm. This was emphasised to us in submissions and has been remarked on by commentators. Mary Koss, for example, in describing the restorative justice pilot programme RESTORE, notes that:542

Although there is great enthusiasm for R[estorative] J[ustice] in many countries, careful and well-reasoned analyses raise concerns that these methods could create new risks and potential harms for [victims] of intimate crime… [In designing our programme] we recognized that our planning must acknowledge the unique features of sexual assault, consider how alternative justice practices might improve [victim] experiences in documented areas of dissatisfaction, involve [perpetrators] without violating their constitutional or statutory rights, and anticipate and minimize potential risks of restorative methods.

7.58In New Zealand, the Ministry of Justice defines restorative justice as “a process for resolving crime that focuses on redressing the harm experienced by victims, while also holding the offender to account for what they have done.”543
7.59In New Zealand, there is now no restriction on using restorative justice processes in sexual violence cases. However, Ministry of Justice “best practice” states that the use of restorative justice processes in cases of family violence and sexual violence must be very carefully considered, and advice from those knowledgeable in responding to family violence and/or sexual violence should always be sought.544 Restorative justice conference services for sexual violence cases are conducted by four restorative justice providers, including Project Restore.545
7.60The Ministry of Justice has recognised that there are particular risks with the provision of sexual violence programmes in court-mandated restorative justice services, and therefore, together with Project Restore, has developed standards for the design and delivery of restorative justice in sexual violence cases.546 The Ministry of Justice standards list the principles that guide how restorative justice should be used in cases of sexual violence547 and how providers should design and deliver the restorative justice service, including the need for a case management approach, consideration of timing and pacing, and the role of support people.548 The standards of service and delivery of programmes are covered by each provider’s contract with the Ministry of Justice, rather than the programmes and providers being assessed and accredited (although facilitators are accredited).

7.61In order to ensure that programmes are safe, we considered whether one specific programme should be endorsed for use by all providers of an alternative justice mechanism dealing with sexual violence. One option would be to roll out the programme developed by Project Restore throughout the country and utilise the Ministry of Justice standards already in place.

7.62However, throughout consultation, it was emphasised to us by those who work in the area that a range of programmes to suit different victims is preferable. As sexual violence can occur in a variety of different contexts, and given that not all victims will want the same outcomes or have the same needs, a range of programmes is preferable rather than a “one size fits all” programme. Therefore, rather than endorsing one specific programme, we recommend that an accreditation framework be developed which covers the key values and components that should be present in every programme established under this model.

7.63We acknowledge the criticisms of restorative justice measures, including the view that there is a power imbalance inherent in sexual violence which risks being exploited in a restorative justice conference. The focus on reconciliation or forgiveness is not appropriate for all victims and some victims can be further traumatised in such a setting.549 Some of the concerns such as the willingness and capacity of a victim and/or perpetrator to participate, the potential for a perpetrator to take advantage of the system, and the physical safety of the victim can be dealt with (as we discuss in Chapter 9).

7.64Our preference is to give victims the ability to decide which route to take, but with a public interest override. If an alternative process is elected but a case is unsuitable, that will be identified through an assessment process (discussed in Chapter 8). As such, the model proposed in this Report has parallels with restorative justice practices and may draw upon them, however we wish to present an alternative process as unattached and unaligned to other restorative justice approaches in New Zealand and elsewhere.

7.65Pre-sentence restorative justice referrals (such as to Project Restore) would continue to be available as an option.

537Ministry of Justice Restorative Justice in New Zealand - Best Practice (2004) at 7.
538The United Nations states restorative justice is “any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator”: United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (New York, 2006) at 100.
539Howard Zehr The Little Book of Restorative Justice (Good Books, New York, 2002) at 40.
540According to Koss and Achilles, whether a restorative justice practice uses the word “dialogue” or “mediation” in its title appears to be arbitrary because in both cases the processes are identical: Mary Koss and Mary Achilles Restorative Justice Responses to Sexual Assault (National Online Resource Center on Violence Against Women, 2008) at 5. Note, however, that Sherman draws a distinction between “victim-offender mediation” and “victim-offender conferencing”. The former involves a mediator who negotiates between the parties to achieve a satisfactory outcome. The latter involves a facilitator who provides a forum in which the parties negotiate directly with each other: Lawrence W Sherman and Heather Strang Restorative Justice: The Evidence (Smith Institute, 2007) at 33.
541Directive 2012/29 on establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/22/JHA [2012] OJ L315/57.
542Mary 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 222.
543“Restorative justice” Ministry of Justice <www.justice.govt.nz>.
544Ministry of Justice Restorative Justice in New Zealand - Best Practice (2004) at 19.
545Meeting between Roslyn Hefford and Jared Walton (Ministry of Justice) and the Law Commission regarding restorative justice in New Zealand (15 May 2015). 
546Restorative justice standards for sexual offending cases (Ministry of Justice, 2013).
547These principles build on the principles issued in 2004 regarding the use of restorative justice generally in the criminal justice system.
548Restorative justice standards for sexual offending cases (Ministry of Justice, 2013).
549One study found that 25 per cent of youth victims felt worse after restorative justice conferencing: Gabrielle Maxwell and Allison Morris Family, Victims and Culture: Youth Justice in New Zealand (Institute of Criminology, Victoria University of Wellington, 2003). See also Howard Zehr The Little Book of Restorative Justice (Good Books, New York, 2002).