I’m With Them – Restorative Justice in Hate Crimes

by | Aug 1, 2018 | Feed, Restorative Justice

By Sheena Jonker

How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.

And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?

Let’s take a look at Restorative Justice in hate crimes.

 

‘FIRST THEY CAME FOR THE MUSLIMS

AND I SAID

I’M WITH THEM

EVEN THOUGH I WASN’T A MUSLIM

THEN THEY CAME FOR THE IMMIGRANTS

AND I SAID

I’M WITH THEM

EVEN THOUGH I WASN’T AN IMMIGRANT

THEY CAME FOR THE BLACK LIVES MATTER ACTIVISTS

AND THE LGBTQ FOLK

AND EVEN THOUGH I WAS WHITE

AND STRAIGHT

I SAID

I’M WITH THEM

WHEN THEY CAME FOR THE HUNGRY

AND THOSE WHO HUNGER FOR CHANGE

AND HUNGER FOR RIGHTEOUSNESS

I SAID

I’M WITH THEM

I’M WITH THE THIRSTY

AND THE THIRSTY EARTH GRASPING FOR RAIN

I’M WITH THE STRANGER

THE REFUGEE

ALL THOSE WHO SCALE WALLS FOR FREEDOM

I’M WITH THE NAKED

THOSE STRIPPED OF HUMAN DIGNITY

THOSE WITHOUT DECENT WORK

WITHOUT THE CLOTH OF HUMAN COMPASSION

I’M WITH THE SICK

THE DISABLED

THE ADDICTED

AND ALL THOSE DEPENDENT ON THE KINDNESS OF STRANGERS

I’M WITH THE PRISONERS

THE DETAINED

THE DEPORTED

THE JOURNALISTS

THE DEPLORABLES

WHEN THEY CAME FOR THOSE I SAID

I’M WITH THEM

I AM WITH THEM

I’M WITH US’

(WORDS: ROSE-MARIE BERGER)

Am I with them?

How do we say “I’m with them” and “I’m with us” in a real way that helps to bring about change. A way that helps us to be a part of ending the violence.

And specifically, how do we stand with the LGBTQI+ community with our lives, our skills and our experience?

Restorative Justice in Hate Crimes.

Let’s take a look at Restorative Justice in hate crimes.

As a trained lawyer with expertise and experience in alternative dispute resolution and restorative justice, my aim is to share with you something of how we can use victim centric restorative justice processes to assist in getting victims of hate crimes first to safety and ultimately to healing and wholeness.

Let’s start with where we are at. I won’t delve too much into the Hate Crimes Bill as I am sure you have spent much of the time doing just that. All I will say is that any new legislation is still largely reliant on criminal justice and civil justice. Both systems are, at their core, adversarial.

Civil justice is adversarial and criminal justice is accusatorial.

This means that both are rooted in a form of competition. Disputing parties are pitted against each other in the civil courts with a judicial officer there to preside over the rules of contest and ultimately, to decide who wins.

In criminal justice, where the State is pitted against the accused the, judicial officer ensures that rules are adhered to and ultimately decides who wins.

In both systems, the “win” is largely dependent on who has the best lawyer. And this is often a product of who can afford the best lawyer. So, as we know, it is possible to win, but you were wrong. It is also possible to lose, but you were right.

The jurisprudential philosophy that all are equal before the law, cannot easily work in a deeply unequal society. The majority, living in poverty, do not have the same access to justice as our privileged minority.

We do the work we do in order to bring about transformation in this.

Criminal Justice and Victims of Hate Crime and other forms of Violence

Let’s look at criminal justice which is relevant particularly to victims of hate crimes and violence.

We know that in certain senses the prosecuting authorities are becoming concerned with, even obsessing about convictions and statistics on conviction.

We should never be about the regulation of violence. We should always be about the elimination of violence. A conviction centric system can become another form of violence detrimentally affecting both victims and accused offenders that come into contact with it and collaterally, those they love and who love them, and by extension entire communities and ultimately our whole country.

Regulation of Violence versus Elimination of Violence

When it comes to violence against women and children and hate crimes committed against those who do not conform to whatever and whomever, I believe we are looking for solutions in a system that without progressive reform, simply cannot deliver what we need.

Violence against women and children and those othered by society: we are looking to a system that cannot provide what we need.

Here is what I mean.

In a criminal matter the onus of proof (who must prove) is on the state (the accuser). The burden of proof (how much must be proved or the weight of evidence needed) is beyond a reasonable doubt.

That means the state or the accuser has a much tougher task than the accused. Is that a good thing? Yes it is. If we want wrongdoers to be punished by the state then it is imperative that the onus is on the state and the burden is high. A punitive system with a different onus and a lower burden would not offer protection to the innocent.

We don’t see a lot of convictions in rape or sexual violence matters. In fact statistics I have come across tend to show that less than one in a hundred result in conviction. That is of reported matters that result in prosecution. I’ve seen statistics that of actual rapes and sexual violence matters (across the spectrum of reported and unreported matters) less than 6 in 1000 matters result in conviction.

This is worldwide where Western Adversarial systems prevail. I have no idea how many convictions, in turn result in prison sentences. Remember that even where there is a conviction, there may be mitigating factors influencing punishment such as use of drugs and alcohol, personal circumstances of the accused and other factors. We know that reporting is low and we know that victims are often deterred from reporting for fear of contact with the system which can result in re-traumatization.

Convictions and punishment do not make our world a safer place

Criminal justice is too focused on conviction and punishment. I have long believed that if it was more focused on restoration and reparation we would start seeing different results. Whilst our law reform projects and various mechanisms in our law support restorative justice, we are not seeing the vast development of progressive sentencing. Progressive sentencing means that we would really entertain alternative sentences and that restoration and reparation for victims of crime may become a bigger feature of criminal justice.

I specialize in and practice restorative justice. Far from being a soft approach it is a much tougher approach and has higher potential for accountability for someone who has committed a violent offence. Does it mean wrongdoers escape prison sentences? Yes, at times it does. But 99 out of 100 are escaping prison sentences anyway and I believe that acquittals and non-prosecution of rapists will embolden them to continue.

Lessons from Restorative Justice in Domestic and Sexual Abuse

In a restorative justice process I am primarily focused on child protection and victim protection. We have access to civil remedies (mostly by agreement) which may result in no contact and protection orders, severing of relationships with abusers (a failed criminal justice process often results in continued exposure of the victim to the abuser especially where the abuser is family or part of the same community) and there are many options that can be considered regarding restoration and reparations.

Restorative justice does not exclude prison sentences. We can work in and around a prosecution, often helping to motivate guilty pleas which shields victims from cross examination which is still often a brutality and it may also open up the accused to better options on alternative sentencing.

We Believe You

But by far the most important aspect of a process like this is that the victim goes through a process where he or she is actually believed. Our processes speak a genuine “we believe you over a victims life”. Criminal Justice starts and endures with the question “why should we believe you?”. I can share absolute horror stories of what is put, on cross examination, to victims of violent crime.

The process commences with an admission of harm done. This is not the same as a confession to all the elements of a crime. But an admission is the starting point. I only proceed if I believe the wrongdoer has sufficient insight into their actions or is capable of sufficient insight with some work.

Punishment of those who harm or healing and restoration for the harmed

Ultimately, and I can’t emphasize this enough, a process like this is for the protection and healing of the victim. Criminal Justice simply can’t offer that. Is it a perfect answer? No. There is no such thing as a perfect answer to the question of violence against women and children and other vulnerable groups. Perfection would require that the violence itself did not exist.

The truth will set you free versus the truth will destroy you

While our systems remain punitive and conviction centric this is what we will grapple with. I write about this because it is society, it is us, that must insist on criminal justice reform. We will never see high numbers of guilty pleas in serious offences whilst the only option is prison. We should demonstrate a better value for truth telling. Right now we are telling wrongdoers we want the truth and then their truth is going to send them to prison. There are many progressive sentencing measures that I believe will help to stop the cycle of violence. The only way to stop the violence is to take it out of circulation and criminal justice, in its current format, is one of the things that contributes to the perpetual cycle of violence.

Justice Created versus Justice Served

So how?

To talk about the how in an hour is an absolute impossibility. But a significant part of the how is addressing the way we think. Restorative justice is a way. It’s a philosophy and reform and practical results will follow when we change the way we think.

So we start with what is it?

It’s justice created rather than justice served.

When justice is served, it is something you are brought to, often unwillingly, and then it is imposed on you. When justice is served, it can be ugly justice.

But when justice is created through engaging experiments with truth, something new, something beautiful is given space to merge out of the brokenness of harm (Justpeace ethics)

Let’s contrast justice served with justice co-created:

When justice is served… When justice is co-created…
Participants are passive aggressive adversaries Participants are active collaborative healers and work to redress harm and rebuild relationships
Justice is one size fits all handed out by neutral, third party experts Justice gets created and drawn out by those most involved in the harm, sometimes helped along by a trusted facilitator
Justice is a rules based response focused on facts and punishment Justice is a caring response holding people in respect while supporting them to (re) discover who they are
Justice is a narrow approach focusing on dishing out punishment to offenders Justice is an expansive response that addresses both the specific harms and the root causes that may ripple through generations and whole structures
Justice aims to suppress conflict and defend the current system and status quo The goal is to enter into suffering and conflict and to explore together what needs to change to allow life to flow freely
Justice is about appearing strong and knowing the facts beyond a shadow of a doubt Justice is about being vulnerable and entering into self doubt
Justice is about powerful people controlling other people Justice is about listening and participating together to meet needs
Justice is about hating and harming the enemy Justice is moving toward love in our relationships and our organizing
Participants are silent and excluded by rigid process Participants voices are included and processes remain flexible to allow meaningful embrace of participants identity and needs
The guilt and punishment of justice is something to be avoided, and a culture of non-responsibility is perpetuated Restitution and reintegration of victims and offenders create a new horizon when a culture of taking responsibility is encouraged

 

When Justice is created it becomes a creative, almost sacred act of dancing our way back to humanity.

(Source: JustPeace Ethics)

The formal legal system makes it very difficult for offenders to take responsibility. As I said earlier, it creates the traditional approach of avoiding a guilty plea because of fear of the retributive consequences that follow. These often lead to plea bargain, attempts to escape on technicalities and of course high levels of acquittals.

Criminal Justice asks:

  1. What law was broken?
  2. Who did it?
  3. How shall we punish them?

Restorative Justice asks:

  1. What harm was done?
  2. 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.

Healing the whole

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 of knowledge or sickness of the soul.
  • One needs teaching, the other needs healing

Restorative justice understands violation to be social and relational affecting the very fabric that holds us all. A much more expansive approach is required. Restorative Justice can also be understood as a whole systems approach.

We take a step back, take a look at the whole and then step forward and go about the difficult, but vital (life-giving) work of healing the whole.

Encountering Pain and Confusion in order to Heal

by | Apr 4, 2018 | Feed, Sheena Jonker

By Sheena Jonker

We need to encounter the pain and confusion head on so that we can heal. So, do we tell it like it is? Or 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.

For Fear of Fear

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

Taking Courage to Stop and Look Around

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.

Helping Parties to take Courage

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.

Social Power Series (2): Power and Privilege

by | Jul 20, 2017 | Alternative Dispute Resolution Training, Feed, Mediation, Sheena Jonker

Restorative justice and peacemaking are not mere ideals, they 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.

“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”

 The Genesis of Violence

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)

Power as a Gift

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)

Working to Promote Just Distribution of Power

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 raid, 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.

Unaccountable Power

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.

Mapping Social Power

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 people in 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.

Four Capacities of Social Power

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

  1. 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.
  2. 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
  3. 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.
  4. 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)