Restorative Justice and Sexual Assault: A Case Study in Healing and Accountability by Eva Marszewski

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I read the two articles by Jacques Gallant (1, 2) in April 2nd’s Sunday Star focused on the question of whether diverting sexual offences from the criminal justice system to restorative justice approaches ought to be allowed by the Ministry of the Attorney General, given that sexual assault survivors and many other advocates are articulating very clearly many reasons why the benefits of restorative approaches to harm far exceed the deficits and hold people to a “higher level of accountability than a court can.”  Moreover, “… the success rate – accountability, healing, and justice – would outdo anything that the current justice system is providing, hands down..”  The two articles raise many challenging questions related to both public policy in relation to our existing criminal justice system as well as questions related to restorative justice practice in contexts far broader than sexual assault.

As the founder in 2003, then Executive Director and current Board member of Peacebuilders International (Canada), I have focused my last 2 decades on designing and implementing circle-based restorative justice programs, not only in Toronto’s youth courts, primarily at the Ontario Court of Justice at 311 Jarvis, focused on young people ages 10-17, but also in our schools, especially in partnership with the Toronto District School Board. Our school programs have demonstrated a reduction in student suspensions by 60-80%. Our Restorative Youth Circles Court Program has diverted over 1,200 young people out of the criminal justice system before trial, had most of their charges withdrawn and redirected them back to school and other productive activities.

Some 10 or 12 years ago, a matter which involved a serious sexual assault allegation was referred to me personally. The young woman was not willing to testify and undergo the stress and extreme invasion of privacy that would need to take place in a court of law should the matter be prosecuted and she refused to proceed in the criminal court with charges of sexual assault. However, she remained extremely upset and traumatized.

Before the assault, she had been a normal, well-adjusted young woman.  The young man who had assaulted her sexually had been a friend.  They were at a party and each had had too much to drink. The totally unexpected assault left her in shock. She began avoiding others and essentially went into seclusion as much as possible.  I met with her to consider the situation and balance the harm that would inevitably continue if no further steps were taken versus the possible harm of potentially re-victimizing her in the presence of the perpetrator of the assault.

I subsequently met with the young man.  He had been in love with her and had lost control while under the influence of alcohol. While I don’t intend to diminish the extreme gravity of his behaviour, it was clear that he had not formed the intent to harm her.

I considered the steps that would need to be taken in order to ensure that a restorative process could go ahead safely and meaningfully for each of them. It would have been possible to go ahead in a restorative process with each of them physically separate from the other.  After considerable separate preparatory work with each of the young woman and the young man, she agreed to participate in a restorative circle process, in person, with him.  He also demonstrated a willingness to participate directly, to listen, and to take responsibility for his behaviour. We thus proceeded with a face-to-face restorative meeting in a Peacebuilding Circle, as the process that Peacebuilders has identified with its practise.

After he listened to her full and lengthy description of the impact of the incident on her life, and her self-esteem, it was his turn to speak. He explained that he had never intended to assault her or to have caused the trauma that had obviously ensued. In his words, I still recall them  clearly, he said: “I would totally understand if you never wanted to have anything to do with me ever again.” His words anticipated her reaction.  She did not want to ever have anything to do with him again.  However, in her parting words, she also regretted that the session had not happened years earlier, as had it happened sooner, it would have been far easier for her to move on as she would have had the opportunity to tell him how he had harmed her and to hear his expressed remorse and apology.

I leave it to the reader to consider the choice. There are countless situations in each of our daily lives when harm happens. Sometimes viciously and deliberately, other times entirely accidentally and most often, somewhere in between. How does the instinct to punish serve any of us? If it’s true that most often, people come out of jail in worse shape than when they went in, how does that make society safer?

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