In cases of sexual violence, justice can come from outside the courts

TheStar.com – Opinion/Commentary – We need to fundamentally rethink the way that the law handles sexual violence. To do that, we should start by asking survivors what “justice” means to them.
July 25, 2017.   By

Last week, the Ontario Superior Court overturned the conviction of Mustafa Ururyar, the man accused of sexually assaulting a fellow PhD student, Mandi Gray, in January 2015.

For Gray, the decision means that a painful chapter in her life cannot come to an end. Speaking to reporters outside the courthouse, she explained why our criminal justice system failed her: “I’m disturbed by the entire system. You won’t be believed, there is no one to support you, and it will be a brutalizing process.”

The evidence is clear. Many survivors of sexual violence experience the criminal justice system — with the intense public scrutiny and victim blaming that often come with it — as causing them further trauma.

In May, the House of Commons passed a bill requiring prospective judges to undergo training in sexual assault law. In June, the House of Commons proposed new legislation to modernize the criminal law so survivors are treated with more compassion and respect.

These efforts do not go far enough. We need to fundamentally rethink the way that the law handles sexual violence. To do that, we should start by asking survivors what “justice” means to them.

For some survivors, justice means reporting their assaults to police. It means participating in a criminal trial process that protects them.

But for other survivors, justice means repairing the harm caused by the offender’s actions through healing and reintegration. It means holding the offender accountable through voluntary measures that engage the community and prevent future crime. It means understanding sexual violence as the product of complex systemic forces that impact different groups differently. It means working together with offenders to promote gender equality in our society.

The criminal justice system cannot meet all of these needs. For one, the criminal courts are limited by the types of remedies they can order. A harsh sentence cannot promise that survivors will find closure or that offenders will be rehabilitated. There are additional restrictions on who can participate in a criminal trial, with family, friends, and community members not taking an active role unless they appear as witnesses. This prevents opportunities for public engagement and social support for survivors.

Given the limitations of the system, survivors should be given access to meaningful alternatives to criminal justice so they can make an informed choice about which process is right for them.

One option is “restorative justice,” which is increasingly being offered in sexual violence cases across the country.

Restorative justice begins with a screening procedure to determine what steps are necessary to conduct the process safely and effectively. After that, a qualified facilitator brings together the survivor, the offender, and community members who will participate in a discussion about the harm that was caused by the offender’s actions.

The emphasis is on direct communication, building empathy, and forging an agreement about how to move forward. Early research shows that the method works to reduce recidivism and promote cultural change.

Some critics have resisted the use of restorative justice in sexual violence cases. They argue that it is not “tough enough on crime” and that it sacrifices public accountability in the name of private peace.

I agree that alternatives to criminal justice should not be used in every case. But it is also clear that the goals of the system conflict with the interests of many survivors.

Last week, Mandi Gray gave an interview in which she was asked about the use of restorative justice. She said, “I don’t think [jail] will rehabilitate the man who assaulted me, but unfortunately there are few options available to those who experience sexual assault. Restorative justice may be good for some, but not all. It really depends on the objectives of the individuals involved.”

Alternatives to criminal justice are underfunded in Canada. The government should support ongoing efforts to research their use in sexual violence cases and, where possible, make them available to survivors.

On the local level, universities should revise their campus sexual violence policies to provide the option of addressing complaints through restorative justice. Education about the different approaches should be a priority.

Justice means more than punishment. Survivors should be empowered with the choice to pursue whatever justice means to them under law.

Daniel Del Gobbo is a Pierre Elliott Trudeau Scholar at the University of Toronto Faculty of Law and adjunct professor at Osgoode Hall Law School. He writes and teaches about dispute resolution, equality law, and access to justice in Canada.

https://www.thestar.com/opinion/commentary/2017/07/25/in-cases-of-sexual-violence-justice-can-come-from-outside-the-courts.html

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