RJ for Families

Families will benefit from Restorative Justice in all the above perspectives. However, there are other areas that provide more direct opportunities for its application in situations that affect families:



DOMESTIC VIOLENCE

South Africa has extremely high levels of domestic violence. All mediation and dialogue projects that have been undertaken have quickly reflected a very high percentage of cases that involve domestic violence. While this practice has been controversial internationally, there is increasing recognition of the value that these processes can add, and increasing support for it as long as some general principles are observed. Two key principles are that mediation should not be attempted in any event unless the female party, or the victim, is specifically requesting it; and secondly it should be attempted only once the safety concerns have been properly dealt with. The NPA ‘Guidelines for Restorative Justice for Prosecutors’ encourage the use of Restorative Justice explicitly.

Matters can be referred for the possibility of restorative justice processes at a pre-trial stage (for example at the time that an interdict is sought) or at a sentencing stage. Referral to cognitive and behavioural change programmes can also take place at these points, quite separately from, or either before or after, a restorative justice process. Note that the Domestic Violence Act 1998 clearly states that no prosecutor is permitted to refuse to institute an action, or to withdraw a charge, unless authorised by the Director of Public Prosecution (DPP).

For further evidence of the extent to which the application of restorative justice in domestic violence is being considered internationally see domestic violence

 

SEXUAL OFFENCES

With its core emphasis on making things right, RESTORATIVE JUSTICE has particular potential for dealing with the complexities of sexual offences, particularly when they take place within families. Particular attention needs to be paid when the victim is a child, due to the increased vulnerability of the child as well as the obvious power imbalance that exists between a child victim and an adult offender, which would be further heightened if the adult was an authority figure to the child, such as a parent, teacher or religious leader. A power imbalance could have the effect in a direct encounter that the victim/child is directly or indirectly dominated by the offender, that this prevents or limits the extent to which he/she is able to express his/herself, and that the harm he/she has suffered is not appropriately acknowledged. These factors do not mean that no form of encounter should take place, but they do emphasise the need for particular safeguards, support and protection for children. Special care must be taken to attend to the various issues at stake. The victim should never be coerced in any way to participate in an encounter process; what transpires during such processes is directly relevant to the needs of the victim, and it should be kept distinct from the decisions that are taken regarding sentences and parole.

At the same time, the limitations of punishment, and the enormous individual, family and social destruction that imprisonment typically wreaks must not be overlooked. By their very nature, sexual offences frequently take place within a relational context, which indicates the necessity of considering this dimension of justice. The law and punishment remain blunt instruments to use in response.

What is needed is a nuanced and individually appropriate response that does not regard all sexual offences as the same and that recognises the relevance of the specific context. For example, a situation in which a man in his early twenties has engaged in a fully consensual sexual relationship with a 15-year-old girl cannot be viewed and responded to in the same way as a situation of an older man having groomed a girl of the same age or having forced himself on her violently.

 

SEXUAL HARASSMENT

The Second or Amended Code of Good Practice on the Handling of Sexual Harassment, published in 2005 in terms of the Employment Equity Act, 1998 (EEA), contains a number of concepts and values that can be regarded as entirely congruent with restorative justice.

The obligations that rest on employers include, but are not be limited to, the following:

  • advising the complainant of the informal and formal procedures available to deal with sexual harassment;
  • where reasonably practicable, offering the complainant advice, assistance and counselling, including during any disciplinary enquiry that may be instituted; and
  • following the formal or informal procedures required in a manner that is procedurally and substantively fair.

Although this is not mentioned in the Code, nothing precludes the complainant from approaching a third party to mediate the matter informally between the affected persons or writing a letter or email to the harasser.

Specific opportunities where such a process could be applied include the informal procedures as well as internal and external formal procedures. The distinctions are similar to those between applying a restorative justice process in a criminal matter at a pre-trial and sentencing stage. One the one hand, application as part of the informal procedures could have the effect of resolving the matter to the satisfaction of all parties. On the other, as an adjunct to formal procedures, it could have value in ensuring that the victim’s needs for a voice, validation, acknowledgement, restitution, redress and apology could be met. The value such processes could have for perpetrators could be to provide a safe space that could facilitate their acceptance of responsibility and motivate their desire to change behaviour.