A couple of days ago, I came across a post on Instagram about restorative justice. It suggested justice happens outside of punishment, or at least is better that way. It was flowered with anti police rhetoric and guilded in good intentions. But I disagree. I fundamentally disagree.
I know this opinion may upset some folks. There are many situations where our justice system fails people. The disproportionate imprisonment of black men. The abysmal conviction cases for sexual assaults. Even getting your bike stolen rarely leads to justice. On top of that, there is an immense pressure on survivors from abusers utilising many angles to get them to drop charges. How could you do this to them? The microscopic character assault on survivors. Gaining justice isn’t easy. Not one bit. Systems are underfunded and over stretched. Some communities are drenched in archaic cultural expectations. And most people never see the inside of a court room, so never know what it’s like.
So, I understand those that will disagree with me.
But using restorative justice in replacement of criminal or civil justice not only misuses the concept in which it was founded, but can be a tool by those that deliberately cause harm to intimidate and silence their victims.
The intentions of restorative justice are to provide an avenue for confrontation to their attacker, post conviction, in a safe, protected environment within the justice system. It is offered, never expected. The courts recognise the suffering of survivors and provide this opportunity if/when they want or need it to understand why what happened happened.
From what I know, most accountability processes in some communities are for minor problems. But problems still. If criminal, then I think that’s overstepping the line. Restorative justice is not about resolving problems in our community. It is not to avoid the perpetrators facing justice for the crimes they commit. If a person wants to be held accountable for crimes committed, then they needs to face the consequences of their actions.
I’m not blind to the fact that the land where I live is a democracy. I can choose my leaders and laws that govern me by concensus. If you live on a land where the act you commit is criminal, then don’t do it. Your wider community have said no. So, no. If you disagree, get political.
Engaging in kink is tricky. I get it. What we do is classed as criminal even with consent in some places. We do what we do in good faith with the partners we have. We hope we have consent and no one is harmed. Most people do anyway.
My fear is that by not encouraging victims to report crimes and to resolve things internally, you are taking the law into your own hands. I find that hugely uncomfortable. The people making those decisions and fascilitating pseudo restorative justice panels have far too much power for my liking. The potential for mistakes and corruption is huge. How often do we hear of group leaders having a long history of abuse? Are we really expecting individuals to mediate fairly? What oversight exists so we know whats happening is, in fact, just?
Perhaps you’ll think I’m cynical. I’m not. In my personal, professional and community experience around abuse and supporting survivors, I’m being realistic.
I’ve seen this especially in family courts. Perpetrators of domestic violence and abuse harass and intimidate the survivor, using children as pawns in their ego trip to get back at their ex. I’ve seen abusers in my local community use their influence to silence victims who leave harmed, to never return. I’ve held a close friend of mine, in tears, because the man that raped her daughters used every weapon he could to not face justice. The levels some people go to to feed their delusions of grandeur and evade justice is mind boggling.
When people make unintentional mistakes, they apologise and try to make amends. They own their shit and do the work to get better. We all make mistakes. All of us. You misread a signal? You learn to read signals better. You made a slip of the tongue, you try to figure out where that can from? You make a public mistake, you apologise publicly for it and rectify the problem as best you can.
But, and this is one huge but, you as an outsider or even onlooker to a consent violation or crime, will never know if it was intentional. Never. We are not mind readers. All the lovely experiences with that person is still only your experience. You don’t know everything and should never be expected to.
The ill-intentioned won’t show their true colours. They cry crocodile tears. They pay lip service to all that is expected. They will turn up to any arbitration, mediation or restorative justice panel and do their best to improve their image. But they don’t change. If they don’t face the consequences of their criminality, there is no reason for them to do so. And that is never a guarantee anyway.
An argument for restorative justice is that it centres the victim. Punishment of the perpetrator is bad. Advocates suggest that justice and punishment are not linked. I disagree fundamentally with that. Survivors often need to see their perpetrators punished. Not out of hatred or anger, but out of self love and healing. Shaming a person for attaining justice through criminal justice, which is what is hinted at in posts like the one I refer to, causes further harm.
Tonight we rejoice in the sentencing of Ahmaud Arbrey’s killers. His family got what they needed. The community has been served by removing those people from our streets. Society has affirmed that one of the worst crimes is not acceptable and never should be. And thank God (or whoever you believe in) that Ghislaine Maxwell is behind bars. Yes, these are extreme cases, but hopefully you’ll see why punishment matters. Not all criminals are convicted. Not all those convicted are guilty (but the vast majority are). But we, as a society, need justice, we need courts, we need to see people punished.
So…. I’m not saying restorative justice is a bad idea. I’m saying if mis-applied, it can cause harm. Shaming the need for punishment is ethically wrong. But most of all justice itself should be respected.
These are my personal opinions. You’re entitled to your own.
Cover photo a self tie reflecting choices of impact play in BDSM. A cheeky play on the title word “punishment”.