580 words; 3  minutes to read

One of the most contentious areas in criminal justice discussion is around sexual assault.  Clearly there are very significant issues here around sexual encounters, and consent.  These are difficult for the criminal justice system and the standard of guilt beyond a reasonable doubt when they involve the conflicting accounts of two people with little or no other evidence.  And proceeding through the criminal justice process can be a very difficult experience for victims.  It is slow, their accounts may be doubted, their feelings largely ignored, and if there is a trial they are subject to cross examination which, while a cornerstone of sound criminal justice, can be excruciating for those undergoing it, especially where that person may already feel traumatized.

That’s why the recent account by Marlee Liss of her use of restorative justice as a way to deal with being raped is so powerful.  Restorative justice is a process that addresses harm by bringing the victim and perpetrator together through mutual agreement and under carefully controlled circumstances to promote mutual healing.  In most restorative justice schemes, the person committing the wrong listens to the victim talk about the harm done, takes responsibility for his or her actions, and may make commitments to make amends in various ways.  Research on restorative justice tends to show that is has good results; that both victims and perpetrators end up feeling better, especially when compared to traditional criminal justice approaches. And it is highly cost-effective.

Many uses of restorative justice

Restorative justice is not a new idea.  It is used in many places – for example it is the default option for all youth crimes in Northern Ireland.  Many schools use it as a way of dealing with problematic student behaviour. It is the basic idea behind measure such as Truth and Reconciliation commissions.  Restorative justice approaches are very similar to traditional Aboriginal practices.  A recent article by Harvard Law professor Martha Minow makes a strong case for much broader use of restorative justice.

In Canada, the Liberals made a major commitment to greater use of restorative justice, and the Correctional Service of Canada promotes it on their website and even made a video about it.  However the video has had hardly any views, and despite a further commitment from former Justice Minister Jody Wilson-Raybould, little seems to have been done in Canada to increase the use of this approach.

Marlee Liss story

According to Liss’s account, although the Canadian Victim Bill of Rights specifies the opportunity to use restorative justice, she was not offered that option and indeed had to fight to have it used in her case.  She knew that a prison sentence for this man would not help her feel better and would require her to testify in court.  Through a lawyer who was interested in restorative justice, and using the mediation services of St Stephen’s Community House they began the process.  It took months before everyone was ready to participate, and then an eight hour encounter that involved many tears and a deep and meaningful apology from the perpetrator.

I want survivors to receive more than two lose-lose options – court or silence… I want… a pathway that bridges justice with healing.’ Liss is now working on this issue through the Re-Humanize Foundation, a new organization she is setting up and seeking to fund to promote restorative justice.

Canada would benefit from a much broader use of this approach, which seeks to promote healing and restoration, in criminal justice and beyond.