Transforming Justice: Lessons in Restorative and Transformative Approaches to Sexual Violence from Social Justice Organizations

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Wappen_Ilshofen

Abstract

The criminal justice system rarely produces prosecutions in cases of sexual assault let alone true and enduring satisfaction for the victims and their families (Naylor, 2010). It offers little, if any, provision for perpetrators, their families, or the community that produced them (Hayden, 2012). This view is upheld by the population included in this study: anti-authoritarian (leftist) organizations. Far from frivolous or unorganized in their approach to combating sexual violence within their own ranks, these groups employ interventions in alignment with restorative and transformative justice, which are philosophies and practices representing nonviolent alternatives to retributive or mainstream criminal justice. Although many of these organizations have been employing restorative or transformative approaches to sexual violence cases, there is to date little scholarly work that assesses how they have done so or the benefits and drawbacks they have identified. This study utilizes interviews, personal communications, and existing data to examine the various restorative and transformative models used by several social justice organizations. It provides an analysis of challenges, lessons learned, and suggestions for future implementation.

Introduction

The criminal justice system rarely produces prosecutions in cases of sexual violence, let alone true and enduring satisfaction for the victims/survivors[1] and their families (Naylor, 2010). It offers little, if any, useful provision for perpetrators, their families, or the community that produced them (Hayden, 2012). Recent scholars, notably Michelle Alexander in her seminal work, The New Jim Crow (2010), have demonstrated the high costs — moral, financial, and otherwise — of retributive justice[2], particularly the use of prisons, to society as a whole and to its marginalized members especially. Moreover, in three years of counseling survivors of sexual assault, rape, and child abuse through their trauma in the United States, not one of my clients has ever expressed unqualified support for the current system of justice in how it handles such crimes. Instead, survivors express deep dissatisfaction with the system, ranging from their level of involvement or lack thereof to the many ways they feel re-victimized (Naylor, 2010), and they are unlikely to have their needs met, which include the witnessing of offender remorse (Hopkins, 2012), therapeutic support (Koss & Achilles, 2008), and control over offender accountability and reintegration (McAlinden, 2011), without a different type of intervention.

Perhaps most importantly, the current system has neither stopped sexual violence nor curtailed it in any reassuring way in the United States. According to the Rape, Abuse and Incest National Network (RAINN), 237,868 people are sexually assaulted in the U.S each year (Statistics, 2009). By reaffirming male-dominated hierarchies and authoritarianism, such as in the police force and prisons, the current system maintains the culture of violence that gives rise to sexual assault and rape (Kim, 2010). This view is maintained by most anti-authoritarian organizations, which are generally left-of-center in political orientation. These groups, whose membership consists of those seeking to effect social change on the grassroots level without adhering to the rules and dictates of government and other structures of authority, will also be referred to in this paper as “social justice organizations.” Their practice and promotion of alternatives to the status quo in a variety of areas — including sexual violence — regardless of their size, mission statement, or level of professionalization, is what is relevant here. The specific focus will be on their use of restorative and transformative approaches to address sexual violence.

“Sexual violence,” for the purposes of this study, refers to all cases of unwanted, intentional sexual contact or harassment, which includes repeated advances stopping at words and gestures of a suggestive nature. The most important addition to this definition in the context of restorative and transformative justice theory and practice is that the survivor’s perception supersedes that of all other parties to the incident and even objective reality itself. This is because the goals of using restorative or transformative approaches are not to determine what is empirically true, who was at fault in the legal sense, and who is to blame in the moral sense (Liebmann, 2007, p. 32).

Restorative and transformative justice, in short, are nonviolent alternatives to retributive justice. Restorative justice, in particular, has been criticized in its application to sexual violence due to concerns about survivor safety, emphasis on the perpetrator (as opposed to the victim), and re-traumatization (Hayden, 2012). Yet, measures can be taken to address these criticisms, so this concern alone is insufficient to justify barring practitioners from providing sexual assault survivors and their families an additional resource, which need not serve as a substitute for a punitive or legal response but can be complementary. Further, the tremendous costs associated with retributive responses supersede those of even the most experimental restorative responses, according to the views of social justice organizations and their advocates (Daniel George[3], personal communication, Nov. 24, 2013).[4]

Transformative justice is a largely unexamined grassroots phenomenon that could be considered a sub-category of restorative justice or a different approach altogether (Zehr, 2011). Its strongest advocates emphasize not only intervention to address the offense in question but also the abolition of forms of oppression that give rise to the offense (Staci Haines,[5] personal communication, Jan. 18, 2014). Transformative justice is especially relevant to sexual violence due to the pervasive undercurrents of gender, race, class, ability, age, and sexual orientation that accompany such a crime, and it is also especially relevant to anti-authoritarian organizations and individual activists due to their sensitivity to those undercurrents coupled with their general mistrust of law enforcement and state intervention (Generation Five, 2007).

Through snowball sampling[6] that elicited participants for oral and written testimonies, case studies drawn from a handful[7] of organizations — including Transformative DC, Support NY, Philly Stands Up, and Generation Five — and Grounded Theory as a method of analysis, this paper examines the role of restorative and transformative justice in addressing sexual violence occurring within anti-authoritarian organizations.[8]

Restorative and Transformative Justice

“Restorative justice” and “transformative justice” are processes and practices serving as non-violent,[9] non-punitive responses to harm committed within a community (Creative Interventions, 2012, p. 63). The terms are also used to indicate the philosophies and principles justifying those responses. Because the definition of restorative justice in particular is both controversial and expansive (Keenan & Joyce, 2013), interventions that label themselves as restorative and are relevant to the target population were examined without regard for disputes over semantics.

Restorative justice processes are diffuse in both number and application, but all address through dialogue — to varying degrees — the following three questions: 1) “Who has been hurt?” 2) “What are their needs?” and 3) “Who has the obligation to address the needs, to put right the harms, to restore relationships?” (Zehr, 2009). It should be noted that restorative justice, while codified in the 1970s by Mennonite intellectuals, has ancient roots in indigenous societies all over the globe (Zehr, 2002, p. 11-12). Restorative justice generally manifests in three forms: 1) victim-offender dialogue, 2) conferencing, and 3) circles. Victim-offender dialogue, sometimes called victim-offender mediation, is a facilitated conversation between perpetrators, generally in prison or detention during the sessions, and their victims (Amstutz, 2009). Restorative conferencing, also called community conferencing or family group conferencing, is a facilitated conversation between those involved, both directly and indirectly, in a conflict or crime (MacRae & Zehr, 2004). Circles are also dialogue-based and can include consensus decision-making but involve a more structured process that involves sitting in a circle and passing around a ‘talking piece’ to regulate discussion (Pranis, 2005). Restorative justice can also be infused in larger systems or infrastructure. Specific models or manifestations of restorative justice as they relate to sexual violence and anti-authoritarian organizations will not be examined in detail in this paper but were part of the larger study.

In order to avoid creating the perception of a dichotomy, transformative justice will be explained by way of positive comparison to the better known restorative justice. M. Kay Harris (2006) outlines four conceptual connections between transformative and restorative justice: 1) transformative and restorative justice are completely distinct, 2) restorative justice creates conditions for transformative justice to occur, 3) restorative justice lies on a spectrum between transformative justice and retributive justice, and 4) transformative and restorative justice are functionally the same. Because this controversy is not relevant to this study, which is focused on non-punitive, non-violent responses to sexual violence in the general sense regardless of how precisely they are labeled or how restorative or transformative they are in nature, neutrality in this debate will be maintained to the extent possible, and no effort will be made to distinguish between the results of a restorative vs. a transformative response unless those distinctions are made by the research subjects.

Regardless of which conception is accepted, transformative justice advocates tend to emphasize not only the offense in question but the underlying societal conditions and layers of oppression that give rise to it. They insist that transformative justice not only seeks to change harmful relationships but also harmful systems (Harris, 2006).

Restorative and Transformative Justice in Sexual Violence Cases

Restorative approaches to sexual violence cases are routine in only a few places, including New Zealand, Australian, and South Africa, although the first two use restorative justice only with juveniles. The Mennonite Central Committee of Canada has also implemented a range of restorative practices that address sexual assault and many other types of crimes (Koss & Achilles, 2008). More common than restorative justice is some form of mediation, although advocates often express concern that victims may be further disadvantaged as their abusers will manipulate and control the mediation in the same ways that they have the relationship (Koss & Achilles, 2008). In Canada, many First Nations groups and some others have used sentencing circles, where large groups of community members meet to discuss and determine an appropriate sentence for an offender. Criticism, both from First Nations advocates and others, emphasizes the lack of privacy and stigmatizing effect on offenders and the potential for coercion on survivors. Coker (2004) has argued that sentencing circles do not qualify as restorative justice.

Koss and Achilles (2008) identified just four restorative justice conferencing programs that are specifically designed for sexual assault cases. The South Australia Juvenile Justice Intervention, RESTORE in Pima County, Arizona, RESTORE-NZ in Auckland, and Phaphamani Rape Crisis Counselling Centre in Uitenhage, South Africa. Evaluations of RESTORE found that, of 22 cases in which sexual assault victims agreed to participate, 20 resulted in a successful conference (Koss & Achilles, 2008).

At the time of the study, Phaphamani Rape Crisis Counseling Centre had completed 63 conferences and 72 victim-offender dialogues. Although the programs had not been formally evaluated, staff reported that despite the fact that conferences were emotionally challenging for victims, most were satisfied with the outcome. Two additional difficulties were identified by program staff: 1) offenders’ families’ failure to support participation and 2) lack of referrals from the justice system (Koss & Achilles, 2008).

Daly (2003) conducted an evaluation of the South Australia Juvenile Justice Intervention. Her review of 89 conferences found that survivor/victim satisfaction was higher in the group that was assigned to conferencing compared to court and that conferencing cases more frequently resulted in admission of responsibility and apology compared to trials. More than half (53 percent) of survivors reported having a greater understanding of why the offender committed the offense, and 82 percent reported satisfaction with how their case was handled. Nonetheless, only 20 percent of survivors reported that the conference was helpful for their emotional and psychological healing (Daly, 2003).

Daly (2006) later compared an Australian restorative justice program for youth sexual violence offenders with mainstream approaches. She found that youth were less likely to re-offend if they were placed in a tailored counseling program, which more frequently occurred as a result of conferencing than as a result of court hearings. Further, court cases took twice as long as conference and moved jurisdiction frequently. Survivors/victims attended, on average, at least six hearings before learning the outcome of their case and still had fewer opportunities to speak than they did in conferencing.

In a case study in Durham, England, McGlynn, Westmarland and Godden (2011) interviewed four people who participated in restorative conferencing about a case of rape occurring within a family. The survivor/victim expressed that conferencing gave her the opportunity to speak to the offender without him twisting her words. She found it difficult to listen to the offender but acknowledged that it was useful because he, for the first time, admitted guilt. She felt that the conference was a big turning point in her healing because she requested, and it seems as though the offender complied, that he not attempt to contact her in any way afterward.

At the time of this writing, no quantitative data could be found on the effectiveness of transformative justice[10] in cases of sexual violence. This is likely due to the diffuse and informal nature of the approach when it is regarded as distinct from restorative justice and practiced outside the auspices of the courts and other mainstream institutions (Harris, 2006).

Research Methodology

While probing the existing literature and interviewing restorative and transformative justice practitioners on the specific interventions they use is fairly straightforward, there are numerous challenges, not to mention ethical concerns,[11] inherent in discussing sexual violence with those close to the issue whether they are survivors, supporters of survivors, or perpetrators. As a consequence, gathering more in-depth, evaluative information on the various sexual violence interventions that occur within the context of social justice organizations was not an easy process. In order to manage the twin concerns of anonymity and access, snowball sampling was used to identify key individuals and their contact information when it could not/should not be found online or from other sources (Babbie, 2001). This process was largely facilitated by the author’s pre-existing relationships with restorative and transformative justice practitioners and with social justice activists more generally. If not for those relationships, this study would have not only taken more time to complete but also would have been categorically different in quality and level of detail. While the total number of interviews conducted, 9, is not substantial, the interviewees make up a representative sample of current veteran practitioners. They represent the cutting edge of this work in the United States, and, in one case, internationally. They are mostly women, except for two males — which is not unusual given the context — and they are all under 50 years of age, with the majority in their late 20s or 30s. They are all working class or middle class and reside in major metropolitan areas.

They are either active members of, or more loosely allied with, a social justice organization, which is defined, for the purposes of this paper, as a micro-community of individuals who come together not so much because of geographical or familial ties but due to shared socio-political identity and ideology. These entities represent a subset of larger and harder-to-define social movements, which come together around certain issues that may have a limited lifespan whereas social justice organizations remain even during periods of widespread political and social inaction or apathy. Far from mere lobby groups pressuring the system from without, these organizations are often dedicated to “constructive program” in the Gandhian sense, as they seek to create a better world within and often in spite of the current one (Gandhi, 1957)

Rather than focus on the success or failure of interventions in a quantitative fashion, which likely would not have been as revealing due to small sample sizes, this study utilizes Grounded Theory for its practicality and bent toward social change (Glaser & Strauss, 1967; Finley, 2014).[12] Grounded Theory, in short, is a process by which a researcher identifies a new theory — typically falling in or near the realm of sociology — by allowing patterns or themes to emerge in a data set through careful coding and analysis. While studies using Grounded Theory have focused on a variety of subjects — including restorative justice (Carson et al., 2009) — this is the only one in existence on this particular topic or conducted in this particular context to the best of the author’s knowledge.

Those involved directly in restorative and transformative approaches to sexual violence within social justice organizations have much to say on the subject, and their evaluations allude to innumerable criteria that are not easily understood, relatable, or quantifiable. The themes or patterns that have been identified in the pages that follow are the author’s best attempt at synthesis — albeit through a biased lens — while refraining from the type of dry, statistical analysis that would alienate the target population and fail to capture nuance. Despite Glaser & Strauss’s (1967) early rejection of a literature review in Grounded Theory methodology on the grounds that it would bias the researcher and thus compromise the study, the author has integrated his knowledge of the existing literature with the study’s results but decided to conduct the review of critical literature after completion of the study. This integration, while controversial, is well within the parameters of Grounded Theory (Finley, 2014). Moreover, performing the study in such a fashion creates a link between academia and the grassroots on this somewhat esoteric and deeply controversial subject with the goal of strengthening the broader social movement.

Two primary research questions guided this study:

  1. How is a restorative/transformative vision of justice being applied to sexual violence within anti-authoritarian/social justice organizations?
  2. What are the benefits as well as the challenges of restorative and transformative justice applied to sexual violence within anti-authoritarian/social justice organizations?

Challenges in Studying Social Justice Organizations

The most basic challenge of applying any delicate practice in the context of social justice organizations is that, paradoxically, organization in the traditional sense is not among their strengths. Thus, the structures that exist within these organizations tend to be informal, intermittent, and, consequently, difficult to study and generalize. Much of their membership eschews not only hierarchy in the anarchist fashion but also, in the post-Occupy Wall St. context, leadership in general.

Moreover, due to the demands of contemporary society, individual activists rarely throw their whole weight behind a particular social struggle in Che Guevara fashion but instead balance their activism with school, paid work, family obligations, and recreation. There is at times a large cleavage between an individual activist’s political life and his or her non-political life. After all, even those who spend their free time fighting for a better world still have to feed themselves and their families, pay bills, and so on. Therefore, when restorative and transformative justice interventions are applied in the context of social justice organizations, this is not to say that the same processes will be embraced by individual members in a different context — such as family life or the workplace — and it is not to say that the individual who engages in such work should be defined by it. Although the mainstream media and society have a tendency to stereotype social justice activists, this will be avoided here in favor of a fair and deep analysis of a relatively narrow context.

Another challenge is the size of the target group. While it is difficult to even approximate the number of self-described activists or members of social justice organizations — many of which are small, ad-hoc, and not registered with the government or any other body — in the United States, it is reasonable to assume that the number represents a small proportion of the total population. Studies of revolution show that the vast majority of any society participates in politics only sparingly — often relying on system-prescribed methods, such as voting — and engages en masse only in highly exceptional cases (Chenoweth & Stephan, 2011). Thus, it is possible that the context chosen for this thesis is too narrow and exceptional to alter the general public’s thinking or behavior no matter how relevant or effective the interventions can be demonstrated to be. The response to this concern is that given the radical nature of restorative and transformative justice relative to the status quo of retributive justice, amplified in cases of sexual violence, nothing short of a revolution will bring these processes into the mainstream — and who better to lead such a revolution than self-described revolutionaries already struggling for economic, social, and political justice?

Research Findings

Careful data comparison has led to the identification of four major themes — ideology, safety, accountability, and support and self-determination — that serve to categorize the responses. Each interviewee either directly addressed or clearly alluded to each of the four themes.

The themes were selected by repetition of the terms, synonymous terms, ideas directly following use of the terms, or ideas clearly related to them. The terms/themes themselves are not nearly as important as the categories they serve to label. Whether the term “political views” substitutes “ideology” or “security” substitutes “safety” is irrelevant to successful categorization of compelling concepts brought up consistently by practitioners of restorative and transformative justice in the context of sexual violence occurring within social justice organizations. These concepts will be explored in detail and substantiated by primary sources where necessary.[13]

Theme #1: Ideology

…not all is ideology, beneath the ideological mask, I am also a human person.   –Slavoj Zizek

Most, if not all, approaches to restorative and transformative justice in the context of social justice organizations are rooted in ideological opposition to the status quo of retributive justice. This is certainly not true in the context of mainstream restorative justice practice, which often cooperates or, at least, coexists with the status quo, but is consistent with the overall aim of social justice organizations toward sweeping societal change rooted in radical opposition to the established order (Ptacek, 2010). While ideology plays a strong role in both understanding and challenging the status quo, research shows that it is not as vital to the success of a revolutionary campaign as is challenging the pillars of support of the existing regime through direct action and coalition building (Chenoweth & Stephan, 2011). This is compatible with the organization Generation Five’s efforts to educate the larger community about child sexual abuse and its transformative alternative to addressing it while directly intervening where possible — what Haines calls “service intervention plus organizing” (Staci Haines, personal communication, Jan. 18, 2014).

Because this study is not primarily about political theory and delving into such a controversial area would be far beyond its scope, ideology will be defined loosely as a set of ideas forming the rules and foundation of government and society. A statement such as “I don’t think there is anything that the state can solve that people can’t solve” is rooted in ideology because behind it is a presupposition, determined by the context in which the statement was made, that people should solve problems normally reserved for the state or government (Deborah Ryan, personal communication, Jan. 2, 2014). For instance, one respondent stated, “We have the strength and courage to handle violence ourselves without relying on the [state]” (Deborah Ryan, personal communication, Jan. 2, 2014). This statement is emblematic of the target group’s general belief in the power of individuals, organizations, and communities to manage, resolve, and transform not only instances of non-violent conflict but also crimes as serious as sexual assault and rape. Haines and her supporters, for their part, apply this even to child sexual abuse, which is for many people one of the worst crimes imaginable (Staci Haines, personal communication, Jan. 18, 2014). Another respondent explained, “[It’s my] general philosophy that exporting issues that are so close to our lives to outside professionals is not only unnecessary but will create [an overreliance on outsiders]” (Daniel George, personal communication, Nov. 24, 2013).

Furthermore, this strong confidence in the power of non-state actors is part of a deeper revolutionary ideology that could be associated with anarchism, which, although it will not be analyzed in detail due to the limited scope of this study, is the most popular political ideology within the groups studied. Multiple practitioners who were interviewed identified themselves explicitly as “anarchists” when discussing their position on the state and its role in matters of justice. At the risk of sounding reductive to anarchism’s most ardent adherents, it can be plainly stated that anarchists in these circles tend to share a commitment to solving societal problems through popular, mutual aid and not through reliance on a powerful government for security and social uplift and stability. In the context of this study, this ideological commitment manifests itself in not only rejection, or, at least, suspicion, of state involvement in sexual offenses but also in opposition to mass incarceration (Deborah Ryan, personal communication, Jan. 2, 2014) and, in some cases, opposition to any punishment of perpetrators (Betsy Liu[14], personal communication, Dec. 21, 2013). One respondent described it this way: “Ideologically I don’t support the legal system as an anarchist” (Harold Hunter[15], personal communication, Dec. 28, 2013). This is due not only to real and perceived injustices about how punishment is meted out by the traditional structures of justice in the United States, but also to skepticism as to whether punishment can re-establish order or produce justice at all. These concerns are shared by mainstream practitioners of restorative justice (Aertsen et al., 2013). One respondent explained, “The transformative justice movement plays an important role in other movements such as prison abolition [and] racial justice” (Deborah Ryan, personal communication, Jan. 2, 2014), while another stated, “The state calls justice a legal process, which separates all the relationships and looks for ‘proven, intended harm’ … who actually gets caught, tried, and ‘made accountable’ is based on race and class, [which] promotes how systems of oppression work” (Staci Haines, personal communication, Jan. 18, 2014).

Yet, even a wholesale rejection of state-administered justice and imposed consequences or punishment coexists with a strong belief in individual rights in the context of sexual violence within social justice organizations. Interventions often do not occur at all without the survivor’s consent, and even when they do occur, there is a consensus that the survivor must make his or her own (informed) decision as to whether or not to involve the police or other state authorities, despite the widespread ideological resistance to this approach among social justice organizations (Staci Haines, personal communication, Jan. 18, 2014). Therefore, despite the near-unanimous framing of transformative justice by scholars and practitioners as a diametrically opposed alternative to the status quo, it is conceivable that transformative justice, at least in the practical sense, can coexist with mainstream retributive justice.

Along similar lines, ideology plays a role in the voluntariness implicit with a restorative or transformative approach. Unlike a retributive approach, where not only punitive consequences are imposed but the process itself is imposed by outside authorities, a restorative or transformative approach, in theory, does not force the survivor, the actor/perpetrator, or anyone else involved in the situation to do anything. Instead, the idea is for everyone involved to build the process together, even though general steps and guidelines are typically followed. The emphasis on a consensual, voluntary process — while ideologically essential to practitioners — conflicts with equally prevalent concerns about safety and accountability, which will now be explored.

Theme #2: Safety

People often believed they were safer in the light, thinking monsters only came out at night. But safety – like light – is a façade.                                                                     –C.J. Roberts

Safety, in this context, is not merely a matter of ensuring a survivor’s physical wellbeing. The concept of safety extends further into the realm of the psychological and even the social and political. The term “Safe(r) Spaces,” used during the Occupy Movement and in many other social justice contexts, is more about protecting a vulnerable community or individual’s right to dignity and respect than about protecting that community or individual from any physical attack. This extends to women feeling comfortable as women in spaces where men are present; lesbian, gay, transgender, and/or queer people feeling comfortable where straight people are present; and people of color feeling comfortable where white people are present.

Aside from ideological opposition to retributive justice on the part of the practitioners, alternative interventions are used out of concerns for the safety of the survivor, the actor/perpetrator, and the larger community. Survivors often are re-victimized or re-traumatized by the police and court system by having to repeat their stories and by having the details of their private lives exposed (Generation Five, 2007), and in many cases a victimized person of color is not given the same attention as a victimized white person (Kate Darko[16], personal communication, June 18, 2013). While restorative and transformative interventions have the potential to serve those neglected by the mainstream system of justice, they are still considered by many participants to be in the early stages of development and now represent only a partial remedy to a crime as serious as sexual assault or rape (Kate Darko, personal communication, June 18, 2013).

It is a major source of concern as to how to maintain safety, particularly when the perpetrator has social, economic, and/or political power to bring to bear and is not interested in participating in the intervention (Staci Haines, personal communication, Jan. 18, 2014). Although it has not happened often to the organizations under study, one particularly destructive tactic employed against these interventions has been lawsuits that are, according to one practitioner, designed to scare survivors and their supporters into silence (Harold Hunter, personal communication, Dec. 28, 2013).

The potential of survivors and their supporters — not to mention bystanders — being subjected to physical retaliation is always present. Therefore, even though social justice organizations usually promote and reinforce a non-violent internal culture, survivors and their supporters can never be truly at ease as long as the perpetrator remains free and unrestricted. Even if it were desirable for them to do so, members of social justice organizations lack the power and authority to detain or permanently restrict perpetrators, but they do, as part of the intervention, sometimes make efforts to ban them from places where they might encounter either the survivor or another vulnerable individual (Harold Hunter, personal communication, Dec. 28, 2013). Furthermore, as previously discussed, the shared ideology among practitioners leads them to allow survivors to take personal measures to protect themselves through restraining orders or other means.

Survivors and their supporters are also targeted by perpetrators and their supporters for derision or scapegoating. Rather than examine the merits of a claim of sexual violence, perpetrators and their supporters sometimes dismiss it as an attempt to divide the organization or movement and argue that the source of the claim is working for the state or another enemy of the movement (Harold Hunter, personal communication, Dec. 28, 2013). Perpetrators and their supporters may also make false claims against survivors and their supporters to discredit them, but this is something that could just as easily occur in the context of criminal prosecution or civil litigation (Harold Hunter, personal communication, Dec. 28, 2013). This is not to say, however, that restorative or transformative interventions in the context of sexual violence within social justice organizations increases the risk of some form of retaliation. Since these interventions do not all take the same form, or even similar forms, and are not regulated by any authority, retaliation from the perpetrator’s side could be in response to any number of actions by the survivor’s side — many of which may not be part of the planned intervention or supported by the group as a whole. Moreover, some actions that are designed to get the perpetrator’s attention or force him or her to the dialogue table have the effect of further escalating the conflict (Harold Hunter, personal communication, Dec. 28, 2013). As one respondent explained, “[Perpetrators] are not necessarily going to respond nonviolently to being called out for violence” (Harold Hunter, personal communication, Dec. 28, 2013).

Somewhat paradoxically, the safety of the perpetrator or actor is also a consideration for practitioners — particularly if that person is a member of a vulnerable or marginalized group. This is in keeping with the ideology of social justice organizations as well as their goals. Social justice, after all, means fairness for even those condemned by the larger society. Those condemned most often by the criminal justice system in particular tend to be racial and ethnic minorities as well as people of limited social and financial supports (Alexander, 2010). One respondent explained, “Even though our goal is to stop sexual assaults from happening, we can demonstrate that it’s safe to take responsibility for when you fuck up” (Deborah Ryan, Jan. 2, 2014). In interventions I have taken part in, all efforts were taken to ensure that the team tasked with approaching the perpetrator included members of the perpetrator’s own racial, ethnic, class, and/or gender group. We especially wanted to avoid sending white men, well intentioned as they may have been, to confront a person of color on his or her treatment of white women — to give one example. Doing so would not only have jeopardized the intervention due to barriers in trust, but also would have displayed a profound ignorance of historical wrongs committed against the very populations that social justice organizations seek to serve and to liberate.

We also wanted to take every effort to avoid retaliation against the perpetrator, if or when word got out about the incident. This was especially difficult in the context of close-knit groups like Occupy D.C., where members were camping together in a relatively small, unsecured area and individuals were easy to identify and target. In this context discretion was equally important in the effort to protect the survivors, given the tendency of some to rally around the accused. A respondent noted the importance of keeping perpetrators safe: “The more you isolate the offender, the [higher the] likelihood of recidivism. … Transformative justice says: ‘don’t isolate [the offender]’” (Staci Haines, personal communication, Jan. 18, 2014).

Safety, given the ideology of the practitioners and the nature of sexual violence, is predicated on the view that “anyone can be assaulted” and that “anyone is capable of transgressing somebody else’s boundaries” (Kelly, p. 8). This challenges the mainstream stereotypes of men as perpetrators and women as victims, poorer communities as particularly vulnerable, and dress and outward appearance playing a strong role in victimization. It also challenges those that argue, both inside and outside the ranks of social justice organizations, that sexual violence is not a serious or pervasive problem.

Theme #3: Accountability

A body of men holding themselves accountable to nobody ought not to be trusted by anybody.                                                                                                            –Thomas Paine

One of the words that came up most frequently, directly or indirectly, is accountability. While few interventions bring full accountability and satisfaction to all parties, the sentiment that they are “better than doing nothing” is sometimes enough of a driving force (Kate Darko, personal communication, June 18, 2013). However, for those more dedicated to these alternative interventions, the end goal is total transformation, not only for the perpetrator but for everyone involved (Generation Five, 2007).

To these organizations, it is clear what accountability is not in the context of sexual violence, but it is not so clear what it is. In mainstream American discourse, “holding someone accountable” often implies a harsh punishment of some sort — usually imprisonment. Although in this context accountability usually takes on a gentler meaning in line with anti-authoritarian ideology, long-time practitioners have remarked that it is different for each and every survivor and that it is often difficult to square survivors’ need for accountability with what is fair or reasonable (Daniel George, personal communication, Nov. 24, 2013) (Deborah Ryan, Jan. 2, 2014). For example, what if the survivor asks for the perpetrator to be beaten up? While it would go against the values of accountability and survivor support if the survivor’s requests were not fulfilled, it would go against the value of safety to retaliate against the perpetrator — not to mention the commitment that most of these organizations have to nonviolence (Kelly, p. 7). It is clear that these organizations are still struggling with how to actualize accountability, as exemplified by the following quote: “You can’t hold someone accountable if there is no framework for accountability” (Harold Hunter, personal communication, Dec. 28, 2013).

Public shaming is a more popular yet similarly controversial method of accountability within this context. It seemingly aligns with the major theory behind restorative justice — namely Braithwaite’s (1989) “reintegrative shaming” theory — but it tends to take the form of “disintegrative shaming” (Braithwaite, 1989) when the goal is to isolate or “call out” the perpetrator to the larger community as opposed to seeking acknowledgement and accountability within a restorative or transformative process (Daniel George, personal communication, Nov. 24, 2013). As one respondent specified, “I’m against [public shaming], even though people might have different opinions on accountability” (Betsy Liu, personal communication, Dec. 21, 2013).This is not to say that the results of such a process should be kept private or that the community should not be informed about an individual who presents a risk to its safety[17]; it merely speaks to the paramount importance of the goal of shaming in a particular case as the main indicator of whether shaming is considered a legitimate means of reaching accountability. If the goal is simply to punish, it is incompatible with a restorative or transformative approach (Betsy Liu, personal communication, Dec. 21, 2013).

One solution to this dilemma is Support New York’s effort to help survivors separate revenge fantasies from legitimate needs by directing them to first make a comprehensive list of what accountability looks like, and then reviewing each item on the list with them. The idea is to get to the heart of what the survivor is looking for with each demand or request and see if the less practical or ethical ones can be met in some other way (Daniel George, personal communication, Nov. 24, 2013). Generation Five, in similar fashion, directs survivors to “map out the options”[18] after the crime has occurred with the help of a transformative justice practitioner, who will provide information on what the likely result of each option would be (Staci Haines, personal communication, Jan. 18, 2014).

Beyond demands or requests from survivors and their supporters to perpetrators, there is a second level of accountability identified by multiple practitioners: accountability to the community. The implication is that perpetrators have obligations to not only those they have victimized directly but also to others who were affected indirectly (Daniel George, personal communication, Nov. 24, 2013). Sexual assault or rape, like other crimes, affects the person directly assaulted along with his or her friends, family, and immediate community — who may experience a number of feelings in response including fear, anger, and despair. Regardless of the strength of previous relations, those affected, even indirectly, “are reluctant to trust the perpetrator as an organizer, worker, neighbor, performer, leader, roommate, or peer” (Kelly, p. 7). Therefore, the intervention is incomplete without a plan to support perpetrators in “becoming fully functional, trustworthy, and participating members of the community” (Kelly, p. 7). How this is done various widely from case to case and organization to organization, but it often includes asking the perpetrator to read books; attend classes, counseling sessions, or support groups; write letters of apology; stay away from certain spaces where they might encounter the survivor or other vulnerable members of the community; serve as a mentor for those who are similarly situated, and engage in other actions — both practical and symbolic — to nurture trust (Daniel George, personal communication, Nov. 24, 2013) (Deborah Ryan, Jan. 2, 2014).

According to practitioners, perhaps the greatest challenge to reaching accountability is perpetrator engagement in the process. The claim that many who are guilty of major crimes — not to mention lesser transgressions — seek to avoid the consequences of their actions needs no substantiation. Perpetrators in this context are no different, even though they will seldom be arrested or prosecuted. How does a small group of activists with no legal authority or authority of any kind, with the possible exception of moral authority, encourage a perpetrator of sexual violence to not only acknowledge the crime but consent to consequences? This remains an open question. Sometimes it is difficult to form an “accountability team”[19] on a given case to even ask this question due to anxiety and lack of training or skill (Betsy Liu, personal communication, Dec. 21, 2013). As one respondent explained, “[While it is said that accountability is not about punishment], “there is still a coercive element” (Harold Hunter, personal communication, Dec. 28, 2013).

Even if practitioners have all the training and experience they need and are intervening under the guidelines of a proven restorative or transformative process, the perpetrator may choose to ignore, avoid, retaliate, or all of the above. Given that these processes are voluntary and that practitioners are ideologically opposed to coercive measures, accountability of any kind ultimately depends on the actor/perpetrator. This is why it is a question of encouraging, not compelling, the perpetrator toward accountability — a fundamental divergence from the mainstream criminal justice system. While there is no guaranteed method of achieving this, one long-time practitioner says that establishing trust is essential: “The more leadership someone shares in their own accountability process, the more buy-in they have” (Deborah Ryan, personal communication, Jan. 2, 2014).

Another practitioner said it was about striking a balance between giving the perpetrator too much power over the process, which would not lead to genuine accountability, and giving him or her too little power, which would lead him or her to feel threatened (Kate Darko, personal communication, Jan. 4, 2014). The amount of power or control given to the perpetrator would depend on both the process used in the specific intervention and how strictly that process was followed. A respondent explained what transformative justice aims to do: “Transformative justice makes it possible to take responsibility without being shunned, kicked out of the community, sent to prison … but it doesn’t mean we aren’t holding people accountable” (Deborah Ryan, personal communication, Jan. 2, 2014).

In the case of repeat offenders with a high level of institutional or social power, Haines says a “backup”[20] that includes methods outside of a transformative framework is needed to ensure both safety and accountability because this challenge cannot be overcome by existing interventions in some cases (Staci Haines, personal communication, Jan. 18, 2014). It would not be a stretch to claim that for most practitioners accountability and safety outweigh ideological purity and other concerns.

A final challenge to accountability is the real or perceived ability of the actor/perpetrator to take responsibility. While mental health and acuity are major factors in not only sexual violence but also other criminal and anti-social behavior, no comprehensive effort has been made to adjust restorative and transformative interventions to the needs of the mentally ill or developmentally challenged. This is partially due to the tendency of social justice organizations toward inclusivity, which in this context precludes judging certain individuals with diagnosable mental illnesses as deficient compared to the rest of the group and holding them to different standards. There is also an ideological opposition to professional opinion on mental health due to the association of the mainstream medical establishment with state authority and control (Generation Five, 2007) coupled with the concern that most practitioners are not equipped to manage the mentally ill (Betsy Liu, personal communication, Dec. 21, 2013). Nevertheless, some practitioners have sought the involvement of licensed social workers and clinical psychologists (Jessica Quaranto, personal communication, Aug. 7, 2013).

Theme #4: Support and Self-Determination

If you’ve come here to help me, you’re wasting your time. But if you’ve come because your liberation is bound up with mine, then let us work together.                                 –Lilla Watson

Bound with the overarching ideology of collective action over state power is the emphasis on survivor support and self-determination. The words “support” and “self-determination” are inseparable because supporting the survivor in the context of sexual violence occurring within social justice organizations means nurturing self-determination as opposed to making decisions for the survivor (Staci Haines, personal communication, Jan. 18, 2014) (Daniel George, Nov. 24, 2013). Self-determination can be defined as “the ability to make decisions according to one’s own free will and self-guidance without outside pressure or coercion” (Philly Stands Up, p. 24). It follows that confidentiality is maintained and the survivor’s wishes are respected even when they are contrary to the organization’s overarching ideology, but it does not necessarily follow that practitioners will abandon their attempts at a transformative process if the survivor is not totally cooperative (Staci Haines, personal communication, Jan. 18, 2014) (Daniel George, Nov. 24, 2013) (Deborah Ryan, Jan. 2, 2014). This a consistent approach given that practitioners in this context emphasize self-determination for everyone involved and not just the survivor or the individual most affected by the incident.

Survivor support, in concrete terms, can include a number of things:

…talking someone through a crisis, validating their emotional response to an assault, helping them find a safe place to crash, going with them to the doctor or an abortion clinic, aiding them in dealing with dissociation or panic attacks, or organizing friends to cook meals or provide childcare for them (Colman, p. 9).

In The Chrysalis Collective model, which is used by many of the practitioners interviewed for this study, survivor support is just as important as perpetrator accountability and is even performed in isolation of accountability in the early stages. A respondent explained, “Perpetrator accountability stuff is not brought up during survivor support meetings to keep them separate intentionally as they are not linked” (Daniel George, personal communication, Nov. 24, 2013). The implication is that in order for survivors to feel safe again and to heal, they cannot rely solely on the level of accountability taken by the perpetrator, or, in the mainstream criminal justice context, the amount of punishment or imprisonment inflicted on him or her. The importance of survivor support within this context is so strong that practitioners sometimes consider the intervention a success because a competent support group was formed for the survivor — even if the perpetrator took no responsibility (Betsy Liu, personal communication, Dec. 21, 2013). Despite the difficulties of reaching accountability, there is a consensus that survivor support is one of the major benefits of transformative justice interventions. This is true to a greater extent for those employing The Chrysalis Collective model and to a lesser extent for those employing a model that leans closer to restorative circle or conference,[21] but the mere act of a community response is enough to give some credibility or affirmation to a survivor (Kate Darko, personal communication, June 18, 2013).

There is another element to survivor support that goes deeper than simple intervention and affirmation. All restorative and transformative processes practices in this context have the potential to transform communal relationships, and some models, such as that of Generation Five (2007), are particularly designed for this end. It is this model and those who practice it who most emphasize the role of bystanders in incidents of sexual violence and how they have the power to both allow or reinforce the violence and discourage or prevent it (Staci Haines, personal communication, Jan. 18, 2014). Survivor support is not simply a matter of effective intervention after the fact but also about building a responsive and responsible community. This focus is based on the assumption that sexual violence is not an inevitable fact of life but one of the consequences of an unjust, patriarchal, and authoritarian society (Generation Five, 2007).

Overall, survivor support and self-determination as practiced by social justice organizations does not assume the survivor’s needs without asking or intervene without considering the effect on the survivor. As one respondent explained, “[Philly Stands Up] responds to demands that are set by the community of survivors” (Deborah Ryan, Jan. 2, 2014). This is very different from the mainstream criminal justice system, which would attempt to punish the perpetrator if the necessary evidence had been acquired regardless of the survivor’s wishes, and the punishment would be based not on what the survivor wanted or what would make him or her the safest but on what the law permitted and what the prosecution in that particular case sought (Naylor, 2010, p. 662-665). It is noteworthy that forgiveness, a concept that is often closely tied to any consideration of justice, was almost entirely absent from the discourse. This could be due to the secular nature of the organizations under study.

This research has shown that members of social justice organizations that practice these interventions do so largely for ideological reasons: they do not trust the status quo — namely retributive justice — with its emphasis on punishment decided by the authority of the state, to fairly judge the offense and the circumstances under which it occurred and to protect vulnerable communities, such as women and people of color, from undue reprisal.

At the same time they are concerned, in the practical sense, about supporting the sexual assault survivor’s healing process on his or her own terms, maintaining the safety of everyone involved in an incident of sexual violence, and seeking accountability from those who committed the harm as well as from the community. The overarching goal of these interventions is to combat oppression on both the micro and macro level in order to secure justice for both victimized individuals and marginalized communities. The achievement of this goal, however, is limited by practitioners’ concerns about survivor self-determination, which trumps all other concerns except if the survivor is seeking violent revenge or something equally destructive.

Conclusion and Recommendations

The key contribution of this study was the synthesis generated by the patterns or themes that emerged from the words of key practitioners whose insights have largely gone unrecognized, even in the larger academic fields of restorative justice and peace and conflict studies. These practitioners could be called activists, leftists, idealists and/or revolutionaries — depending on how one sees them based on his or her own perspective. Their zeal for justice, which demands accountability through community and safety through empowerment[22], could be seen as a foolhardy, counterproductive undermining of the state and its legitimate institutions, or it could be seen as the seed of a new society built on a new set of principles.

There is no question that challenges abound: namely how to achieve the elusive goal of accountability, a controversial subject in any context, when those responsible for an offense lack the capacity or willingness to be accountable. Moreover, the commitment to the sexual assault survivor’s self-determination and empowerment means that years of progress can be erased at his or her discretion, and the potential for empowerment is often limited by the lack of a unifying commitment to forgiveness or another value that would lead to a binding and popular resolution. Yet these challenges do not negate the potential for transformative and restorative interventions to provide a wider degree of both safety and accountability than what is achieved by merely isolating or punishing the offender, and there is no denying that these interventions are far more resource-efficient than reliance on police, courts, and prisons.

This study, although unprecedented, is a mere baby step when compared to the journey ahead. More studies are needed to compare the various models utilized by practitioners to determine the strengths and weaknesses of each and to develop new and better models that address the numerous critiques of both mainstream practitioners and those who are members of social justice organizations. This will, in turn, make it easier for the practice to be evaluated based on its full potential, and much of this evaluation will undoubtedly be focused on recidivism. Much existing practice is so under-developed and impromptu that it would be unfair to judge restorative and transformative interventions more broadly based on it. However, these informal interventions must not be dismissed by scholars and more mainstream practitioners if this field is to maintain its dynamism.

Furthermore, more research needs to be done to determine whether the skills of existing practitioners are truly suitable to deal with the highly complex and sensitive issue of sexual violence as well as to determine whether an informal approach undermines formal approaches or reinforces sexual violence as a private matter that should not warrant intervention.

Research on transformative justice, treated distinctly, is very thin. This author invites those who practice it to bring as much critical theory into mainstream restorative justice practice and relevant academic journals as possible until a consensus can be reached on exactly how restorative justice and transformative justice relate. At the same time, more mainstream restorative justice advocates should remain open to the possibility that justice can be even more radical, inclusive, and iconoclastic than their Mennonite predecessors envisioned. Even the appearance of a rift in such a small community can be fatal — not unlike what results from incidents of sexual violence occurring within social justice organizations and their communities.

This author cannot emphasize enough that justice is a process. There is no finish line: justice advocates will continue to develop new methods, models, and theories as the population grows and technological innovation expands — and while it may nonetheless remain inherently incomplete, imperfect, and elusive, this author cannot imagine anything more worthy of pursuit.

Matthew W. Johnson
mwjohnson19@gmail.com

Matthew Johnson holds an MA in Peace and Conflict Studies from Hacettepe University in Ankara, Turkey, and a BA in Journalism from the University of Maryland. He is a scholar-practitioner in alternatives to retributive justice with a focus on social movements.

[1] The word “survivor” will be used in accordance with the general practice of the organizations under study (Philly Stands Up, p. 4) and more mainstream anti-violence organizations.

[2] “Retributive justice” is a term used by restorative justice scholars and practitioners to describe the current dominant state of affairs regarding laws, courts, and punishment in the West and elsewhere (Ptacek, 2010, p. 26).

[3] Pseudonym used due to safety and privacy considerations

[4] It is important to note that the groups under examination have been targeted specifically because they have an ideological and in many cases practical opposition to prisons, courts, and other official institutions of justice.

[5] Staci Haines is co-founder of Generation Five, an organization that seeks to end child abuse in five generations through transformative justice.

[6] “Snowball sampling” refers to the process of locating hard-to-find research subjects by asking for leads from those who are more accessible (Babbie, 2001). It is an appropriate technique for this study due to the private nature of sexual violence as well as the off-the-radar nature of certain anti-authoritarian groups.

[7] Since these processes are used informally and confidentially, it is possible that there are many such initiatives. However, there are very few established organizations dedicated to this mission.

[8] The use of the term “within” is meant to signify that all major parties to an incident of sexual violence must identify with the social justice organization in question or the larger social movement it is a part of in order for that incident to be considered relevant to the context under examination.

[9] There are, of course, both violent and retibutive alternatives to the current criminal justice system, such as vigilantism or civil lawsuits, but this paper will relegate its focus to alternatives that do not seek retribution or litigation.

[10] This is a reference to interventions labeled “transformative justice” that are considered by their practitioners and advocates to be distinct from restorative justice. It is important to emphasize that interventions labeled as restorative justice could be considered by scholars and practitioners to be manifestations of transformative justice as well (Harris, 2006).

[11] Since this research is intended to benefit humanity, it should not compromise the physical safety of even one individual in pursuit of broader social change. Therefore, all efforts have been taken to avoid disclosing information that could be used to track down survivors and other vulnerable individuals.

[12] “Grounded Theory” was designed as an inductive research method that allows patterns to emerge from raw data and eventually become the nucleus of a new theory (Glaser & Strauss, 1967).

[13] Note: Any claim not supported by an in-text citation in this section is based on the author’s own experience as a practitioner of restorative and transformative justice in the context of sexual violence occurring within social justice organizations.

[14] Pseudonym used due to safety and privacy considerations

[15] Pseudonym used due to safety and privacy considerations

[16] Pseudonym used due to safety and privacy considerations

[17] While difficult, it is, however, sometimes necessary to be discreet or secretive to protect the survivor, the perpetrator, and/or other parties to the process as previously discussed (Betsy Liu, personal communication, Dec. 21, 2013).

[18] Options would not be exclusive to those encouraged by restorative and transformative justice practitioners but would include contacting the police, filing a civil lawsuit, ignoring the issue, etc.

[19] An “accountability team” is the informal name given to those activists committed to supporting the perpetrators’ accountability process under The Chrysalis Collective model and its derivatives.

[20] While this would not include directly violent means, it might include involving the police or other state authorities (Staci Haines, personal communication, Jan. 18, 2014).

[21] As detailed in Chapter 2, restorative justice models can be modified to suit the needs of sexual assault survivors, but they have largely not been developed for this purpose, and there is much debate over whether they should be.

[22] “Empowerment” or “self-determination” in this context could be considered a combination of both positive and negative liberty, where the survivor is free from further victimization and also free to pursue his or her legitimate self-interest (Rosen & Wolff, 1999).

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