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?

  1. 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.
  2. 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
  3. 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.
  4. 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)

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