Bloodless Revolution Blog and Training Updates

Do we tell it like it is? Or do we tell it like we are?

DO WE TELL IT LIKE IT IS? ARE DO WE TELL IT LIKE WE ARE?

We are all made up of a complex mix of our biology, our experience, what we’ve been taught, what made sense to us at the time, those who have influenced us, our suffering, our triumphs and I could go on.

So to answer the question, it’s probably a bit of everything. Both, and.

I spend my working life mediating high conflict and often complex legal disputes. This means that I spend a lot of time with people going through some of the most profound pain of their lives. In Criminal Justice and Civil Justice in the judicial system, the pain is often masked behind voluminous papers, warring legal teams, complex rules of procedure and the cumbersome of the bureaucratic. Lives are still falling apart, wealth and health is still being destroyed, but it may not have a human face. We lose sight of the pain.

In alternative processes like mediation we encounter the pain, the confusion, the torment head on. We also encounter the healing, the peace, the “just-ness” head on at various points along the way and at the end if we get all the way though to resolution. And that is why we do this work.

But we need to keep learning, keep avoiding assumption, finding new ways to remain open, compassionate and insightful. Especially when parties become stuck in the sheer woundedness of it all.

So I’m always seeking out new ways to learn of and understand the human condition in all of it’s messiness and beauty which can and often does exist all at the same time.

I recently came across the work of Padraig O Tuama.

There is this Irish Phrase ar eagla no heagla that translates “for fear of fear”

What if the way we tell it, is the way it is, and the way we tell it is the way are and at that point where we are is in a place of being terrified of fear. So we can’t really be in the here, because we want to get out as quickly as possible and so we don’t stay and look around and learn what we need to learn.

Most conflicting parties I deal with are in a profound state of fear. More so, terrified of the fear.

In David Wagoner’s poem, “Lost”:

Stand still. The trees ahead and bushes beside you

Are not lost. Wherever you are is called here

And you must treat it as a powerful stranger

Sometimes we help parties stand still and look around. And meet the powerful stranger. We help them be here long enough to learn what they need to. To learn things from the place they are in but wish they are not. Sometimes that is the only way they will be able to move from that place. From here.

One of our most important roles may be to assist conflicting parties in taking courage to stop and look around in the here. Whether they are here by disaster or by choice. What must be learned here? We help them discover that.

O Tuama tells the story of Jesus and the disciples and the boat and the storm and he says it is as if to say that only in the middle of a storm can we find a truth that will steady us.

Sometimes we assist parties to go into the storm to find that truth that will steady them.

“What is the name of the place you are in now?” O Tuama says “It requires close looking. It requires the dedication of observation and commitment to truth. To name it requires to be in a place. It requires as to resist dreaming of where we should be, and look around where we are.”

Sometimes we resist naming where we are. Words have power and we fear giving power to a place we don’t want to be in, by naming it.

Sometimes we are there to help parties to take courage to name the place they are in assuring them that it doesn’t mean they will stay there. Anger. Pain. Trauma. What if my telling it like it is and telling it like I am is an angry, excruciatingly painful mix of all that has happened, all that is and all that I feel. And what if the same mess of things is true for the person I am in conflict with.

Sometimes we help parties start here. Stand Still. Look around. Go into the storm. The truth needed to steady them may be found there. And it will take courage.

Sometimes we are there to literally help parties be here.

By Sheena Jonker

ADR Network SA

sheena@adr-networksa.co.za

Training queries: training@adr-networksa.co.za

Mediation, Arbitration and Restorative Justice Services: panel@adr-networksa.co.za

List of registered mediators and arbitrators: panel@adr-networksa.co.za

Social Power Series for Mediators, Lawyers and Activists, Part 2: Power and Privilege

“Perhaps …I am the face of one of your fears.

Because I am a woman, because I am black, because I am lesbian, because I am myself-

A black woman warrior poet, doing my work-

Come to ask you: are you doing yours?”

-Audra Lorde, “Sister Outsider”

Restorative justice and peacemaking are not mere ideals but are practices that take place in a real world in difficult, messy terrain. (Ambassadors for Reconciliation, Myers and Enns, 2009)

This terrain may be shaped by historic and current inequality and violence in which some hold and exercise power more than others. In the first article I looked at gendered notions and how they affect or alter or give rise to social power, or the lack thereof.

I encounter far too many mediators who believe that anything can be mediated and that specifically lack insight into the dynamics of power at play within a conflict, be it gendered power dynamics, racial power dynamics, class dynamics, the stark imbalance in employer employee relations and the myriad ways in which excessive power and lack of power intersect.

I’ve spoken and written before, and often on the genesis of violence and the spiral of violence as explained in Camara’s Spiral of Violence and which I recommend for all Restorative Justice Practitioners and actually for anyone sincerely trying to make sense of the human experience. The spectrum of peacemaking strategies from mediation to legal remedies to activism require that we develop and pursue a careful understanding of the realities of social power.

We are surrounded by powerful institutions, ideologies and personalities but we are not typically adept at recognizing, naming, and importantly challenging them. Those of us who seek to transform social conditions and bring about more just conditions in society must learn how to “read” patterns and practices of power. (Myers and Enns, 2009)

At a Christian theological level we assume that power is a gift and a good to be shared in a just manner and not a good to be hoarded (Refer to the manna of Exodus 16). Similar thinking is to be found in other faith traditions and humanist philosophy.

The ancient Hebrews in the judeo-christian tradition held the fundamental vision of “enough for everyone” and the Hebrew prophets constantly challenged the distribution of power in their world. In the same tradition, Jesus of Nazareth located himself on the margins, amongst the marginalized.

The Jesus of the ancient world and the Martin Luther King of our modern world understood the need first to be “disturbers of the peace”. Over and over we see how Jesus predicates his alternative, restorative practice for adjudicating violation upon a careful analysis of relative power in the community giving radical priority to the “least”, those with least power. (Myers and Enns, 2009)

So as ambassadors of peacemaking and restorative justice one of our underlying assumptions must surely be that we are to work to promote just redistribution of power rather than a pre-occupation with individual or group power as dominant culture unashamedly models. MLK spoke about the dire need for non-conformists.

Sometimes it’s easy to see power at work around us-a police rade, a corporate take-over, a factory closing down and mass retrenchments, the fulminations of the playground bully or the spectacular excess of a celebrity function. More often, though, power is less easy to see-it’s mystified, obfuscated or denied-especially by those who have it (Enns and Myers, 2009)

So where a white person insists on being “colour blind”, someone with tertiary education attributes his or her success comparable to others to sheer “hard work” or a man insists that he is not sexist, there may be terrains of privilege and power that are going unacknowledged or unnoticed.

And when a bank CEO complains that he is at the mercy of market forces, or a millionaire politician dons culturally appropriated gear at a campaign function or a huge mining company advertises how much it is doing for the environment, we do well to exercise caution. Denial of actual power makes true accountability impossible. And unaccountable power is the true threat to establishing a just society.

So if we work in restorative justice or peacemaking on any part of the spectrum (as mediators, lawyers or activists), a central discipline should be our willingness and ability to apprehend critically how power is distributed in our own households and communities and in the broader societies in which we live and work.

So how do we “Map” social power?

Power is a combination of nature and nurture. For our purposes we are looking at power socially rather than psychicly. Of course we know and understand that someone who is marginalised can exercise tremendous spiritual power or that poor people can be inwardly deeply content. (Enns and Myers, 2009) I have often commented that I have encountered some of the most profound wisdom, joy and strength of spirit amongst shackdweller communities.

Social power is difficult to understand because it varies from context to context, and is usually unacknowledged by those who have it and wield it.

Social power can be understood as a combination of four capacities:

Mobility the ability to be where one is “at home” and to move where one wishes. In my view the majority of South Africans living in suburbia where they are close to schools and workplaces are largely profoundly ignorant of the devastating and lasting legacy of apartheid spatial injustice that a large majority of our people are still subject to today.
Access the ability to procure what one needs for health and well-being. If “at home” is far from schools, work opportunity and health care facilities then a large number of our people remain perpetually without power and “self-upliftment” is a virtual impossibility
Self-determination the ability to make the decisions that most affect one’s life. In our context the rich typically lambaste the poor because the rich pay taxes and “subsidize” the poor. It is ignorance and lack of insight that allows the rich to disacknowledge that but for their exploitation of the labour potential of the poor and in many cases the super-exploitation of that potential they would not hold the social power that they do.
Influence the ability to be heard seen and respected.(Enns and Myers, 2009)

In my next article under the theme of power and privilege I intend to look at the basic frameworks through which we perceive our social world.

Sources and Recommended reading:

Ambassadors for Reconciliation, Enns and Myers, 2009

Restorative Justice: Politics, Policies and Prospects. Van Der Spuy et al. (2009)

TRAINING NOTICE: LATE REGISTRATION FOR FIVE DAY PROGRAM 26-30 June 2017: DURBAN AND JOHANNESBURG

Dear Student/Prospective student

Those wishing to attend a five day session next week (either as a new student or a registered student who needs to make up sessions) are invited to email training@adr-networksa.co.za to enquire about late registrations

In peace

ADR Network SA

Social Power Series: Gender, Justice and Law Reform

#BLOODLESSREVOLUTION SERIES ON UNDERSTANDING SOCIAL POWER

PART 1: GENDER, JUSTICE AND LAW REFORM

Introduction

I am writing this series primarily as a resource for mediators, restorative justice and ADR practitioners and lawyers who are committed to learning more about social power and how it is distributed. I come across too many matters where good mediators fail to understand and apply a good understanding of power dynamics, especially as they relate to social power, and possibly inadvertently allow unequal power dynamics to result in inequitable or unworkable and sometimes even life-threatening conclusions.

I also feel we need a growing body of work conscientizing legal practitioners to power dynamics so that they may feel more ethically encouraged and empowered to counsel clients who hold more social power than there adversaries ,into taking more problem solving approaches as opposed to the winner takes all approach.

So I intend to take a look at race relations, gender, economics, ability and other issues that may influence social power relations.

In this article, I will focus primarily on Gender and specifically on unpacking related concepts.

Patriarchy

This concept was first used by social scientists to describe a system of government where men held political power in their capacity as “heads of households”. Patriarchal power extended not only over women but also over younger men. The concept was introduced into the discourse by radical feminists in an attempt to describe social structures that allow men to dominate women and also younger men and children.[i]

Different schools of feminism articulate the functioning and relative importance of patriarchy according to their theoretical explanations of the causes of women’s oppression. So for instance, radical feminists focus on the power men wield over women’s sexuality and reproductive functions and feminist psycholanalysts emphasize the symbolic dominance of the father in the formation of the female personality.[ii]

In the 1970s Marxist and radical feminists debated the relative importance of capitalism and sexual oppression as causes of women’s subordination resulting in various theories about the interation between the systems of capitalism and patriarchy.[iii]

Hartmann explains how sexuality and identity are used to suppress women in public spaces eg sexual harassment of female workers, expecting secretaries to run errands, make coffee and provide a pleasant atmosphere at work. In private spaces cooking, cleaning and the raising of children are left to women. This work is regarded as inferior in contrast to the male role of supporting the family financially, thus re-inforcing the superior status of men.[iv]

The patriarchal dividend

Some radical feminists argue that all men are involved in the oppression of women. This resounds with the recent hashtag and associated debate #menaretrash which proceeded a series of highly publicized acts of violence against women and children. This view may be inaccurate to the extent that it ignores the structural nature of patriarchy and denies the agency of individual men who may consciously go about treating women equally and with dignity and respect. In other words it may ignore the agency of individual men to either accept or reject the benefits of patriarchy.

The systemic nature of patriarchy means even men who refrain from the active oppression of women, can benefit from the structural forces that favour them. For example, even where a man does not act in accordance with sexual norms which may allow him to co-erce women into sex, he has, as a result of his gender, the ability to exercise this co-ercive power.

Even though individual men may make less mainstream choices such as to take up ballet, they, like those who play rugby, benefit from the higher value society places on male pursuits, whether they want to or not.

This is the patriarchal dividend. Benefits may inadvertently accrue simply because society rewards male-ness.

The derivative power of some women and the matrix of domination

Feminist theory and discussion is evolving to take into account differences in ways women are subordinated in different social institutions, different societies and at different times. It is also attempting to consider the effect of class, race and colonialism which may privilege some women over some men. So some women have power over other women and some men in public spaces and in politics. In our country, white middle class women have generally not been oppressed by black working class men and have actually participated in the economic exploitation of both black women and black men.

It’s important, though to understand that, generally speaking, this power is derived from a white middle class woman’s family and class connections to a powerful man or men to whom they may be subordinate within private spaces.

The matrix of domination means that there are few pure victims or oppressors. Each individual derives varying amounts of penalty and privilege from the multiple systems of oppression that frame everyone’s lives.[v]

The influence of race and class however never negates the effect of gender on the relations between men and women who belong to the same social, racial and economic classes. Patriarchy is common to all social and racial classes and as former Constitutional Judge Sachs has pointed out is “one of the few profoundly non-racial institutions in SA”

But the particular outworkings of patriarchy differ according to the time, place and community in which it is located.

Six Systems of Patriarchy

Walby identifies six systems of patriarchy which occur in all societies and which interact with each other in different ways, sometimes re-inforcing and sometimes counter-acting each other. These are found within:

Mode of production
Paid work
The state
Male violence
Sexuality
Cultural institutions

I will try to unpack each of these further in future articles. But for now it is important to understand that these institutions within societies uphold male power and exist independently of the intentions and actions of individual men. It is also important to understand that to a large extent, changes in power relations depend on public interventions in power relations both at a legal and a political level in the relations between men and women in private spaces of family and sexuality.

Patriarchal interpretations of justice and exposing male-centred assumptions as part of law reform

It is also important to understand that patriarchy extends to structures of legal and other forms of reasoning so that concepts of objectivity and reality are defined in terms of male interests and perceptions.[vi]

This seems to indicate that universal categories like “workers” and “individuals” are not gender neutral but they reflect the experiences of men and male workers.

Patriarchal interpretations of justice and equality exclude qualities like emotion, relationships and care which characterise the lives of women, while edifying abstraction and independence which are associated with male behaviour in public spaces

Sex, gender, sexuality and sexual orientation

Sex refers to the biological and physiological differences between men and women.

Gender refers to the differences which societies and cultures ascribe to people on the basis of their sex.

So for example a woman’s ability to bear children and breastfeed them is sexed. Her role as the one who cooks and cleans for her husband and children and as the primary caregiver is a gendered social assumption. So sexual differences may be natural but gender differences may be socialized. So gender may be an ongoing project that requires daily acts of interpretation and reconstruction. Especially so if we are to dismantle the often damaging role of male social power over women in both public and private spaces.

The need for first generation feminists to distinguish between sex and gender arose from the assumption that a woman’s biological differences rendered her more emotional, less intelligent and less able to take part in male pursuits such as education, religious leadership, intellectual and physical labour and politics.

Gendered assumptions and the structure and logic of law

Because social differences could be addressed through cultural change, unlike biological differences which were regarded as immutable, the exposure of gendered or socially constructed differences was an effective way of defying male dominance. So feminist lawyers began to expose the distinction between sex and gender in order to assist in exposing how these assumptions were embedded in the structure and logic of law.

It is useful to understand that gender, in the way in which it focuses on power differences between men and women is an important analytical tool. Acknowledging and exploring the links between gender and other categories of difference like race, sexual orientation and class may all contribute to much needed law reform as it relates to male social power wielded over women and others with less power.

The debate around the legal effect of sex and gender differences is, Bonthuys points out, largely avoided by S 9 (3) of the Constitution which prohibits discrimination on the basis of both sex and Gender.

The question of sexuality has also come to the fore as part of attempts to understand how the social construction of male and female sexuality may assist in gendered oppression. So in patriarchal societies legitimate forms of sexual expression reflect stereotypes of appropriate behaviour. So male sexuality is socially assumed as active, predatory, selfish and aggressive and female sexuality as passive, submissive and loyal. Not only is sexuality gendered in the sense of being socially constructed but it the political or public spaces it sanctions male dominance in sexual interaction[vii]

By defining and stereotyping male and female sexuality by way of sexual dichotomies, patriarchal discourses construct and justify the double standards which allow and even require men to have many sexual partners while women are supposed to be less interested in sex than in emotional and material security.

For women the failure to comply with the aforegoing may lead to them being regarded as different from other women and stigmatized as sluts and prostitutes.

We must bear in mind, that as with sex and gender, race, class, colonialism and religion intervene and influence the meaning of sexuality in all societies.

Stereotypes

Stereotypes originate when differentiating characteristics, both positive and negative, believed to be synonymous with a particular group are by analogy ascribed to all members of a group whether they possess those characteristics or not.

Stereotypes contain both descriptive and normative elements-they describe how certain people are, but also describe how people should behave. The notion that stereotypes reflect “natural” or differences between men and women translates into a view that behaviour that defies stereotypes should be discouraged.

Women who reflect and behave in accordance with stereotypes of good mothers and wives have been rewarded by the legal system by being awarded “primary care” (or the old custody) of the children and protection of their financial interests. Women who reflect stereotypes of bad wives and mothers have been punished by the legal system and their treatment serves as a warning of the dangers of non-compliance for other women. This may be shifting with a growing jurisprudence in co-parenting rights and responsibilities ushered in by the Children’s Act of 2005.

Closely related to stereotyping is the idea of essentialism. This is the idea that there are various essential features which are generally and universally shared by women. These are thought to be “natural” when they may in fact be socially produced.

Given the social pressures to conform to gendered stereotypes and their wide dissemination through the media, religious, educational and other social institutions, it is no wonder that people internalize stereotypical expectations. This means that stereotypes are often justified by the fact that they reflect statistical realities.[viii]

Our point of departure, though, must be firstly that the stereotype may not be the fact and secondly that just because the stereotype may be reflective of reality (under social and other pressure) it may not be harmless and it certainly may not be helpful to dismantling the widespread subjugation of and violence against women and children.

Stereotypes often create serious problems with legal rules in a society that is pursuing equality, described as Martha Minow as the “dilemma of difference”. So it’s true for instance, that in SA, the primary caretakers of children are women. But solutions that are unable to differentiate biological differences from socially constructed ones will generally favour men, because male experience has been the underlying template for legal rules.The dilemma means that women who behave in stereotypically “feminine” ways will be disadvantaged because of their compliance with social demands (for instance they may be rendered completely dependent on a man or men for survival). On the other hand, the legal recognition of these difference between men and women can be said to re-inforce stereotypical assumptions and expectations and thus entrench the status quo.

Liberal feminism aims to eradicate difference between genders to deal with this problem whilst relational or cultural feminism aims to celebrate the differences between men and women.[ix]

Some Constitutional Court Judgements dealing with legal rules based on gendered stereotypes reflect this. See the contrasting judgments of O’Regan J at paras 109-115 and Kriegler J paras80-86 in President RSA & Ano v Hugo 1997 4 SA 1 (CC). See Skweyiya Jand Ngobo in Volks NO v Robinson 2005 5 BCLR 446 (CC) paras 87-96 for failure to acknowledge the ways in which legal rules can re-inforce negative stereotypes of unmarried women.

I will attempt to unpack the issue of sameness and difference in further articles. But it’s important to highlight two points here:

Firstly, it was Sachs J in National Colaition for Gay and Lesbian Equality v Minister of Justice[x] who stated that the Constitution requires the law and public institutions to acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normally must cease to be the basis for establishing what is legally normative. So what becomes normal in an open society is not an imposed and standardised behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself.

The second point relates to the purpose for which one relies on stereotypical descriptions of people. In the past, different treatment has often formed part of legal patterns which disadvantage women and other oppressed groups. By focusing on historical context of differences and on the impact which differential treatment will have on a group, difference can be accepted and used as a tool to eradicated past inequality.[xi]

This can be contrasted with the use of stereotypes such as pregnancy to glorify motherhood at the expense of working women by Willis J in Woolworths v Whitehead[xii] and with the failure of the majority in the Constitutional Court in S V Jordan[xiii] to acknowledge the way in which its judgment re-inforces stereotypes of sex-workers in particular.

Dichotomies in legal thinking

Frances Olsen explains that dichotomies or oppositional pairs or dualisms, have been part of liberal western thought since the philosophy of Plato.[xiv] Dichotomies are a series of opposite categories which structure the way we think and which we may take for granted. Examples are:

Public/private

Rational/emotional

Strong/weak

Objective/subjective

Autonomous/dependant

Culture/nature

Mind/body

The first thing to understand is that in dichotomous thinking, the contrasting elements of the dichotomies are regarded as inherently opposed to one another. So we cannot describe something as weak and strong at the same time. Objectivity and subjectivity, then cannot co-exist. We also cannot then explain that qualities like strength may exist on a continuum between strength and weakness, but we can rather only explain them in terms of what is strong and what is weak. So the grey areas between dichotomous poles may be completely ignored. Furthermore relationships between the comparators may be completely obscured. For example strength and weakness are regarded as inherent qualities rather than aspects of relationships between the things compared.

So in legal rules, the elements represented in these dichotomies may not be equally valuable. Instead the dichotomies may be sexual and hierarchical. So one side of the dichotomy is usually associated with maleness and carries a higher social vale than the other. An example is that strength and rationality are seen as male while emotions and vulnerability with female and as such less valuable or desrirable. Further to this the male and higher values of objectivity, impartiality, reason and intellectuality are associated with public spaces including the legal system. So this has implications for the ability of the legal system to notice and respond to the problems typically faced by women.

Olsen identifies three feminist reactions to gendered dichotomies:

One group rejects the sexualisation but accepts the hierarchy. So they reject the oppositional pair of rational/irrational as associated with the male/female but still attach higher value to rationality than irrationality. This approach can be linked to liberal thinking and “gender blindness” as a tool to create formal equality through the law[xv]

Another group accepts the sexualization but rejects the hierarchy. So oppositional pairs are accepted in their dichotomies as accurately describing male/female behaviour. However the traditionally “female” characteristics are as valuable as the traditional “male” values.

A third group rejects both the sexualization and the hierarchisation. It argues for the debunking and deconstruction of all dichotomies because they are all based on stereotyped and essential beliefs about sex and gender. Moreover, the notion that law could ever be objective or rational is exposed as untrue.[xvi] This group follows a critical approach to law and exposes law’s power, exclusion and reduction

Conclusion

In further articles I intend to further examine the law’s role in power, exclusion and reduction, highlighting the role of dichotomous thinking and imagining ways in which alternative methods of problem solving, dispute resolution and the pursuit of justice may well be located in the debunking and deconstruction of dichotomous legal thinking along with its stereotyped and essentialized understanding and application as it relates to gender and more generally to social power as a whole

By: Sheena Jonker

Access to Justice and ADR Network SA

Legal Writer, Educator, Restorative Justice and ADR Practitioner

sheena@accesstojustice.co.za

[i]Walby, Theorizing Patriarchy (1990) quoted in Bonthuys, et al, Gender Law and Justice (2007)

[ii] Bonthuys, et al at 19

[iii] Walby, Theorizing Patriarchy at 5-7

[iv] Hartmann, The Unhappy marriage of Marxism and Feminism.

[v] Collins, Black Feminist Thought: Knowledge, Consciousness and the Politics of Empowerment (1990) 229

[vi] Scales, The Emergence of Feminist Jurisprudence: An Essay. (1986) Yale

[vii] MacKinnon, Towards a Feminist Theory of the State (1989)

[viii] Bonthuys, et al at 27

[ix] Pieterse SA Public Law (2001) 103-108

[x] 1991 1 SA 6 (CC) para 134

[xi] See Harkson v Lane NO 1998 SA 300 (CC) paras 92-96; Pierse at 116-121

[xii] 200 12 BCLR 1340 (LAC) paras 143-147

[xiii] 2002 6 SA 642 (CC)

[xiv] Bonthuys, et al at 29

[xv] Olsen, 1990 International Journal of the Sociology of Law 202-203

[xvi] Taub and Schneider, Women’s substitution and the role of law in Kairys (ed) The Politics of Law 328.

UPCOMING MEDIATION TRAINING

Friends

The best of 2017 to you!

Training takes places monthly in Johannesburg and Durban

We also have Saturday school in Limpopo, PE and Cape Town

Please email training@adr-networksa.co.za for training schedules and registration packs.

Peace.

Sheena Jonker

Restorative Justice Processes in Rape Cases and Sexual Violence Matters: What the hell?

I conduct restorative and non-adversarial processes in rape cases and sexual violence matters. Without sufficient information on this you may be offended.

So here is why I do this (and also teach others to conduct Restorative Processes):

Some statistics I have seen tend to show that of the matters reported that actually proceed to prosecution, around 1 in 100 accused persons in sexual violence and rape matters are convicted.

From discussions I have with investigating officers and prosecutors, it may be that less than 1 in 100 are successfully convicted.

In addition to the above, I have seen statistics that only around 1 out of 9 matters of rape and/or sexual violence are even reported.

So if you actually do the maths on that, knowing that rape and sexual violence are prevalent, the numbers of those who commit these crimes and are actually held accountable are very, very low.

One of the reasons that the statistics are so bad is that the Criminal Justice system is just not the best system to deal with these matters. Victims are subjected to having to relive their trauma over and over and the Defence’s right to robustly test the state’s version, means that the victim experiences being implicated in his or her own rape or abuse which is simply beyond what most human beings can actually bear.

The victim in a rape or sexual violence matter is not an actual party to the process but is merely a witness for the state. The state (prosecution) bears the onus of proving that the rape or abuse happened. It also carries the burden of proof. The onus is about who must prove and the burden is about how much must be proved. In a criminal matter the burden is on the state to prove the matter beyond a reasonable doubt. This means that if the defence for the accused is able to raise a reasonable doubt (and only where the prosecution has made out a prima facie case), then the court is obliged to give the accused the benefit of the doubt and he or she must be acquitted.

This is further complicated by the artificial rules of evidence that allow for tactical exclusion of evidence primarily on the basis of relevance. Facts that a court deals with are often so clinically distilled through evidentiary rules that the truth may have been massacred in the process. Not only can this mute or brutalize the narrative of the opposing side but it can lead to significant delays that can impact on the process leading to non-availability of witnesses, dilution of fair trial rights and all kinds of things that can complicate the process and even frustrate the process entirely.

Remember that in rape and sexual violence matters, there may be only two witnesses: the one accused of rape or sexual violence and his or her alleged victim. In many cases there are power dynamics at play that make testimony even more complex and painful. Societal stereotypes that still tend to blame victims for their mode of dress, or for not doing “enough” to ward off the attack and worse, are a real deterrent for victims of rape to come forward to report the matter, let alone be strong enough to survive the kind of cross-questioning that awaits them in court. Even where victims are children and testimony takes place in camera, clever cross examination can easily raise the requisite “reasonable doubt” to dismantle the state case and can contribute to the trauma and scarring of the victim not only not being believed, but also of being made to feel complicit in their own rape or abuse.

Getting to conviction is a harrowing process for the victim and the low numbers of conviction should leave us questioning our bent on getting convictions. We are not achieving them. And we are not achieving them whilst dragging victims through all kinds of hell. That’s the real “What the hell?”

So I am most often contacted by the families of victims who have been exposed to some measure to the criminal justice process and cannot see their way clear to seeing the process through.

So what can a restorative process offer?

We work hard to achieve the highest possible admission. It is only when we know we are working with an admission (of truth) that we can proceed with the process. This is not the same as a confession for the purposes of a criminal trial. However if an agreement is concluded it may contain things like protection orders, no contact orders, admission to the sexual offences register, accountable therapy processes, damages and all kinds of other things that may help to achieve accountability for the accused and restoration for the victim.
In some matters we treat the process as a highly expert and skilled plea and sentence process that the prosecution may be a party to. This means we take far more time in negotiating a plea and sentence agreement than is normally the case
The victim can articulate his or her case in a private safe space and never has to face his or her alleged rapist or abuser or their defence representative.
If the victim wishes to face his or her abuser at a time when he or she feels strong enough to do so, even years after finalization, that can be facilitated

This kind of agreement cannot bind the prosecution which always has the discretion to proceed unless it is a party to a formal plea and sentence process as alluded to above. But the defence may use the agreement to argue for a stay of prosecution or withdrawal of charges or in mitigation of sentence. The primary goal is to shield the victim (often a child victim) of the trauma of a trial.

In truth this kind of process, done properly, has higher potential to get to the truth and therefore accountability and ultimately protection and some restoration for the victim. This may involve perceived benefit to the accused rapist who may “escape” a jail term. Unless of course the process is treated as a plea and sentence negotiation which more often than not involves a custodial term.

But the perception that this kind of process allows rapists and abusers to get off lightly must be juxtaposed against the known phenomenon that more than 99 out of 100 individuals accused of rape are being completely vindicated which leaves them absolutely free and unaccountable in society and may embolden them to continue.

A successfully concluded restorative process can achieve the truth (which is central to the victim’s healing), protection orders and interdicts, enrolment on the sexual violence register which carries with it built in protection for children in various organizational settings, accountability measures such as formal therapy processes with ongoing report back and update mechanisms and a whole host of other possible measures that can be explored and built.

One of the most extra-ordinary aspects of such a process is that because we only proceed with the process once there is admission, a successfully concluded process leaves a victim of rape or sexual violence with the one thing that may have eluded him or her all along: the sense and actual experience of being believed. This is one of the most crucial elements of healing.

You may wonder how often we get to admission. You would be surprised. Once those accused of rape understand the process there is an extremely high rate of motivation to tell the truth.

To engage with me further on this or any aspect, or for more information, please email sheena@adr-networksa.co.za

By: Sheena Jonker

BA (LAW) LLB (UKZN)

RESTORATIVE JUSTICE PRACTITIONER AND EDUCATOR

ADR NETWORK SA (Pty) LTD and ACCESS TO JUSTICE (NPO)

ACCESS TO JUSTICE FOR WOMEN AND CHILDREN: FUNDRAISER

The Access to Justice Association of Southern Africa (NPO 135-398)

Invites you to join us for a FUN fundraising evening in aid of its project

ACCESS TO JUSTICE FOR CHILDREN seeks to promote non-adversarial problem solving in matters involving children, and also to develop and advance the right of children to be represented where their best interests are at stake in any matters that come before our courts.

ACCESS TO JUSTICE also provides legal and dispute resolution resources for women and children in vulnerable situations such as in cases of spousal abandonment, honour-based violence and other contexts of vulnerability

This project was shortlisted in this year’s Hague Centre for Innovation in Law Justice Accelerator Program: Family Justice Section

Invitation:

We would be most delighted to have you join us for a fun awareness-building and fundraising evening

Where: Hilton Bush Lodge

When: Thursday 17 November 2016

Time: 18:00

What: Dinner will be in the form of gourmet BUILD A BURGER with accompaniments and followed by dessert. A cash bar will be available

Dress: Elegantly casual with a touch of pink or mauve in honour of Access to Justice for Children

Cost: R 300 per head

RSVP: adele@accesstojustice.co.za

Format:

The evening will commence with an entrée followed by an informative presentation. Guests can participate in a lucky draw, art auction for Access to Justice Student Matters and will each receive a copy of ADR Network SA’s manual on Restorative Justice

SUSAN ABRO, accomplished family lawyer, former acting judge and member of the International Family Law Team will be our headline speaker.

The HILTON BUSH LODGE is a beautiful venue with a magnificent outlook and tranquil vibe. Guests can enjoy engaging discussion after dinner on the verandah or around the fire pit

Sponsors:

There are various sponsorship opportunities from sponsoring tables of ten to donating gifts for goodie bags, prizes and an art auction.

Please email adele@accesstojustice.co.za to discuss

Training Schedule

TRAINING CALENDER FOR THE REST OF 2016 AND FOR 2017: 5 Day Mediator Training (including content on Court Annexed Mediation)

Trainees can elect to do additional assignments from the One Year Distance Program, for example Arbitration, Family Dispute Resolution, Commercial, Workplace and others which carries additional certification

Distance Trainees can attend monthly study group sessions for tutorial support

For information packs please email training@adr-networksa.co.za

Dates	Durban	Johannesburg (MIDRAND)	Cape Town	Limpopo	Eastern Cape
Rest of 2016
24-28 October	Confirmed	Confirmed	Minimum numbers dependant	No	No
7-11 November	No	No	No	Confirmed	No
28 November to 2 December	Confirmed	Confirmed	Minimum numbers dependant	No	Minimum Numbers dependant
2017
23-27 January	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
20-24 February	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
27-31 March	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
24-28 April	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
22-26 May	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
26-30 June	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
24-28 July	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
21-25 August	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
25-29 September	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
23-27 October	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant
20-24 November	Confirmed	Confirmed	Minimum numbers dependant	Minimum numbers dependant	Minimum numbers dependant

Restorative Justice, the hope for something else (a faith-based perspective)

Restorative Justice: A Hope for Something else

God’s True Cloak

(A poem by Rainer Maria Rilke)

We must not portray you in King’s Robes

You drifting mist that brought the morning

Once again from old paintboxes we take the same gold for sceptre and crown

That has disguised you through the ages

Piously we produce images of you

Till they stand around you like a thousand walls

And when our hearts would simply open

Our fervent hands hide you

In what ways have we hidden the God revealed in Christ.

I believe that one of the ways we fail to get God’s character as revealed in Jesus is in our notions of justice.

In God’s order, justice does not come through punishment and violence, but through restoration. (Richard Rohr, Dancing Standing Still)

Rohr says that most of Jesus’ teaching on non-violence, simplicity, downward mobility, forgiveness of enemies and inclusivity has had no great effect on Christian History.

Our justice system (at the level of litigation) is based on competition.

So you can win, but you were wrong.

Or you can lose, but you were right.

And the win is based on who has the best lawyer.

And that is often based on who can afford the best lawyer.

And that is the system that decides who wins and who loses.

Our notions of justice have us believe that if you are wrong you must be punished. And if you are right, you must be rewarded.

And that’s how we’ve understood the bible: the good guys win and the bad guys lose.

It makes absolute sense-

Unless

You are losing

Or suffering

Or sinning

Or judged wrong in a flawed system

Then you hope for something different.

Rohr says that it is to this hope which Jesus came and to which he spoke.

So God’s power, revealed in Christ is a power for justice. Making things right again. It is a power to restore broken and hurting people; to use their mistakes to liberate them, to soften them, to enlighten them and to transform them.

Even in the Old Testament, concepts of Justice are about restoring relationship rather than vengeance:

Rightly related families form rightly related communities which form rightly related nations which contributes to the Shalom in this world. Nothing missing nothing broken. Wholeness and peace.

The Hebrew concept of T’shuvah speaks of returning to the original design. That no matter what we have done we all bear the indelible make of the Creator and we treat ourselves and each other as such.

Grace is God’s big jailbreak for us.

In the book, Healing the Gospel, we are reminded that we have assumed through the ages that the word “justice” means punishment.

But if we take a fresh look at scripture, we find that salvation on Jesus is a justice of restoration. Making things right again.

Traditional Justice asks:

Who did wrong?

What did they do?

How shall we punish them?

Restorative Justice asks:

What harm was done?

How do we make things right again?

We think that not punishing means ignoring harmful behaviour.

But often the punishment perpetuates the cycles of violence.

Studies show that “tough on crime” strategies have spawned more crime.

And “zero tolerance in schools” has lead to worse behaviour.

Restorative Justice is the hard work of finding non-adversarial ways of getting to truth, accountability and behavioural change.

Some first nation societies believe that people offend for one of two reasons:

Lack or knowledge or sickness of the soul.

One needs teaching, the other needs healing.

But does Restorative Justice work in Practice?

Let’s take a look at the crime of rape:

Some statistics I’ve seen suggest that 1 in 100 charges of rape result in a conviction and that around 1 in 9 incidents of rape are actually reported. This is largely because of what victims of rape are subjected to through a criminal justice process where they are witnesses for the state and often the brutality and indignity or cross-examination by the defence is just too traumatic and devastating to bear and largely results in the vindication of their accused attacker.

Our artificial system of evidence means that often “facts” become the enemy of the truth. An accused in a rape case bears a much lighter burden in that he or she merely has to raise or introduce the presence of a reasonable doubt. The adversarial/accusatorial system supports denialism which often means no-accountability.

But doesn’t a Restorative Justice process allow rapists to get off scott-free?

No, we have a high rate of getting to truth and setting up sanctions that hold the rapist accountable and keep the victim safe.

On the statistics I’ve mentioned 99 out of 100 accused of rape are vindicated, rendering them far more dangerous to society.

In a properly constituted RJ process we can get to truth and accountability around 9 times out of 10.

Why?

We treat both victim and offender with dignity, in a non-adversarial environment where we are free to explore all available options of achieving accountability for the offender and a safe future for the victim. By the way, they never have to face each other if the victim does not want to.

It’s a much better platform for truth seeking. And unless we get to the actual truth, we never even get off the starting blocks of accountability and behavioural change.

So on the one hand we have a punitive justice system rooted in the laws of reward and punishment, blessings and curses which the apostle Paul’s audience embraced. Paul contrasts this with the righteousness of God which is often translated as justice.

Righteousness-making right

Justice-to make right again; to restore

God the rebuilder, the restorer.

Paul criticises his audience who are calling out for justice in the form of retribution and punishment. He proposes that justice really comes through God’s action in Christ to restore all humanity in love.

His audience had adopted what Walter Wink refers to as the myth of redemptive violence.

We have killed people to teach that it is wrong to kill

We bomb nations to bring “peace”

We smack children to teach them not to hurt others

Paul was arguing against the notion that if God was not wrathful, he was unjust.

He declared that this way would lead to death and condemnation.

Instead he proclaimed a superior way of restorative justice in Christ.

Some equate restorative justice with simple acquittal, declaration of innocence.

No. It’s the hard work of transformation. It’s a process of dismantling evil without destroying the evil doer. It is part of God’s dream for humanity-reconciling all things. Transforming sinners to saints.

It is the work of disruption and displacement.

So for darkness, light

Weakness to strength

Hate to love

Disillusion to hope

Mourning into dancing

Ashes to beauty

The hurt healed

Hurters made whole

Oppressors and the oppressed both set free

By Sheena Jonker

sheena@accesstojustice.co.za (public interest matters)

sheena@adr-networksa.co.za (private dispute resolution, mediation and training)

LAUNCH OF ADR NETWORK SA LIMPOPO: BAPTISM OF FIRE

ADR Network SA Limpopo has been launched under the leadership of advanced mediator Mpho Mdingi

Mpho is in the process of preparing for her launch breakfast this Saturday and her first five day program this month. But last week she received an actual baptism of fire. At midnight last Tuesday I sent her an email to request that she assists with a crisis at the University of Limpopo where students had been arrested on their return from a night vigil and silent prayer.

Before 8am the next morning she had assisted (along with BLA) in mobilizing a legal team to assist with release and had started engaging with police, the University and prosecutors. All of the accused were released without charge later that day and she continued to assist the student lead project to get evicted and stranded students home. On Saturday night she received the following message:

“Evening Dear, we are done with our project of taking our students home. I arrived home also. Thank you very much for the overwhelming support that you and ADR Network gave us from the first day. U have been fantastic words alone cannot describe how happy I am now all thanks to you and everyone who support our struggle. I will send you pictures of today from morning to the last taxi which took our students.”

Special thanks must also go to Mr Mohoto of BLA and Mr Kgafane the lawyers who assisted without hesitation.

Mpho is a courageous, energetic and dynamic young woman. If you are keen to get involved in mediation and restorative justice work, or you need assistance via this type of service, please email mpho@adr-networksa.co.za.

The above is an example of mediation as problem solving at it’s best: facilitating connections, building bridges and shining a light in dark places to bring about healing based solutions.

As always, peace

Sheena Jonker

sheena@adr-networksa.co.za