Why me? Response to JUSTICE paper, “Prosecuting sexual offences”

Published: Wednesday, August 21st, 2019

Restorative Justice for sexual offences

Why me? wishes to respond to discussion and recommendations concerning the use of Restorative Justice in the context of sexual offending, contained in the recent JUSTICE report.

The report states:

The Working Party (WP) also considers that Restorative Justice may be a useful educative tool, if used in the right circumstances.

Paragraph 2.25

It also notes that Restorative Justice is a useful tool, which has high levels of victim satisfaction and reduces re-offending rates. 

Paragraph 2.26 suggests that in post-conviction cases for sexual offences, Restorative Justice will not always be appropriate and should only be considered when the victim gives their full and informed consent, due to the risk of re-traumatisation. We wish to point out that Restorative Justice is only ever used when the victim gives full informed consent.  Otherwise, the process does not qualify as Restorative Justice.

The Working Party also states:

Our proposal would limit its use to sexual offences that are unlikely to result in prosecution, where an educative response is considered appropriate.

Paragraph 2.26

The example given is of image-based offending by young people, without malice. 

They also make this recommendation

We consider that if used in this limited context, Restorative Justice will complement the national curriculum by providing young people who have unthinkingly committed image-based sexual offences with a deeper understanding of the consequences of their actions.

Paragraph 2.27

While we welcome the acknowledgment by the JUSTICE Working Party that Restorative Justice leads to greater satisfaction for victims and reduces re-offending rates, we take issue with a number of points made here:

  • Restorative Justice is far more than an “educative” tool in the context of violent and sexual offences.  It can also be used effectively alongside standard criminal justice interventions, in sensitive and complex cases, so long as the process is managed correctly and victims are supported throughout. 
  • Why me? believe that any offence, including sexual offences, can be addressed with Restorative Justice so long as key conditions for its use are met. We know from our work that Restorative Justice is a powerful and useful intervention capable of being provided at any stage of the criminal justice process.
  • The victim’s full and informed consent is an absolute prerequisite, in order to go ahead with the Restorative Justice process.

Victims of sexual offences often know the offender and therefore any Restorative Justice approach must take into account the danger of coercive control, and the complex aspects of an existing relationship between the victim and the offender.

Restorative Justice for child sexual abuse

Restorative Justice can also be used by victims of historical child sex abuse who have been failed by institutions. As one victim told the Independent Inquiry into Child Sex Abuse (2015):

I would like to see a Restorative Justice approach to be considered for institutions, for them to face up to and consider the harm they have caused.

Victim of Child Sex Abuse
  • Why me? supports victims of any crime who want to access Restorative Justice, whether the offence has led to a prosecution or not.
  • We believe that Restorative Justice should not only take place in youth offending settings.  Youth offending teams are tasked with delivering Restorative Justice with young offenders. Often the process takes the form of a letter of apology written by the young person, which the victim is invited to receive and read. However, a properly managed Restorative Justice process starts with victim need, and asking the victim what they want in a safe and supported environment with no pressure. It is important that whoever is proposing the use of Restorative Justice in a given case, the process follows best practice guidelines and starts with victim need, prioritising victims’ interests throughout.

This includes circumstances where the victim is a young person. If a victim expresses a wish to seek justice through a Restorative Justice process and this is supported by the charging authority, then the final decision on prosecution rests with the charging authority, but the victim’s views should be taken into account.

More broadly, we also support the use of a restorative approach to deal with image-based sexual offences like sexting.  We strongly recommend the use of a proxy victim in this situation, noting the benefit of reintegrated shaming for a young person, through the involvement of the capable guardian in the process.[1]  This is one of the methods by which young people can reflect upon and make changes to their behaviour.

  • Why me? believes that it is misguided to suggest that Restorative Justice be limited to offences involving no violence or malice, in view of the enormous advantages Restorative Justice brings to victims, over and above appropriate criminal justice interventions including prosecution, conviction and imprisonment.  There is significant evidence that victims of crime and their families feel sidelined during the traditional criminal justice process, whereas Restorative Justice gives them a voice.”
  • During the ten years that Why me? has been established, we have been approached by many individuals, often women, who have been victims of sexual or domestic violence, who have either been refused or blocked from access to Restorative Justice.

Why me? has seen through its own work with female victims of violence, such as Janika Cartwright, how transformative and empowering the process can be: https://why-me.org/janika-cartwright-2/

[1] Braithwaite, J. (1989). Crime, Shame and Reintegration. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511804618

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