#MeToo and the call for "restorative justice": Are they compatible?

In New Zealand, “restorative justice” (RJ) advocacy is currently in vogue. In August, the government held a $1.6 million Justice Summit with restorative justice high on the agenda. At the time, Victoria University was wrapping up a free online course catering to over 1,800 students called “Restorative Justice and Practice: Emergence of a Social Movement.” Activist groups from ActionStation to People Against Prisons Aotearoa champion the cause. The hype begs the question: is this a genuinely grassroots, antiviolence movement, or something much more top-down?

When ActionStation’s Laura O’Connell Rapira was interviewed on Radio New Zealand regarding the summit, she explained her position. “The truth is 77% of people who are in prisons currently have once been victims of family or sexual violence, and so victims and offenders are often the same people,” she said. This narrative, that victims-are-offenders-are victims, is central to RJ. The model focuses on “honest dialogue”, “personal experiences of injustice”, and “relational values” to address crime through victim-offender mediation sessions, family group conferences, and “peacemaking circles”.

At the same time as RJ is popularising, women from the United States to New Zealand and Korea are testifying to experiences of male violence while facing up to widespread victim-blaming as part of a #metoo movement. Are the narratives about victim-offenders upon which RJ relies true to these women, and really just? What are the implications of these ideas for women, both in and out of the prison system – and do the #metoo and prison abolition movements represent a convergence of interests, or a conflict?

Jayne Crothall’s experience of the Justice Summit is instructive. Crothall’s daughter was murdered at three years old, so when Crothall attended the summit she had some critiques to offer about the idea that victims and offenders are the same people. In response, she was told that she does not know what it means to be a victim, because she is white and privileged. “This is a horrendous summit for victims,” she told an audience of around 500. “We’ve been re-victimised.” Such is the tension between RJ advocacy and feminism at present (and as an aside, I would here like to suggest a look at Catherine MacKinnon’s essay What is a White Woman Anyway?).

RJ advocates – who are often also prison abolitionists – understand incarceration practices through the application of a race and class-based analysis of the legal system. They challenge realities like the 50 per cent Māori make up of the current New Zealand prison population, when Māori constitute only 15 per cent of the total population. Māori women comprised one per cent of the female prison population in the 1980s – that has now increased to 64 per cent. This is racism, and on top of this, RJ advocates argue that the current punitive legal system does not reduce reoffending in the interest of victims, and it is not rehabilitative.

Writer Moana Jackson is the foremost critic of New Zealand’s prison system. In his work, Jackson considers the “inseparable links between Pakeha law and colonial policy.” He speaks movingly about the place of justice in indigenous cultures before colonisation. Before Europeans came to New Zealand, he says, “The system of behavioural constraints implied in the law was interwoven with the deep spiritual and religious underpinning of Māori society so that Māori people did not so much live under the law, as with it.” Māori society respected that “things and people had an inherent value or mana”, and the concept of tapu was central to the system of law.

The complex system of tapu had two major facets. First, it was the major cohesive force in Māori life because every person was regarded as being tapu or sacred. Every life was a sacred gift which linked a person to the ancestors and hence the wider tribal network. This link fostered the personal security and self-esteem of an individual because it established the belief that any harm to him was also disrespect to that network which would ultimately be remedied.

European colonisation – with its violence, its missionaries and militarism, land theft, disease and introduction of firearms, its racist and assimilationist laws and treaty negotiations, and ongoing discrimination – destroyed this system. It severed Māori ties to family, land and language, and has left Māori in a “cycle of confinement”. “This process had three specific effects,” writes Jackson.

First, it weakened the religious and legal traditions which the Māori used to monitor behaviour and which provided stability to his community. Secondly, it began the long process of exclusion which denied Māori people an input… Thirdly, it established a disenchantment with Pakeha legal processes which still exists today.

In summary, “The historical processes which have confined most Māori people to the lowest levels of society have also created unique stresses and behavioural pressures which may sometimes be manifest in crime.” Indeed, it is impossible to look at New Zealand’s prison system and not accept these critiques.

United States author and activist Angela Davis makes similar criticisms. In her book Are Prisons Obsolete? Davis outlines the concept of a predatory “prison industrial complex” that breeds violence. She shows how corporations have vested interests in both expanding the prison system and in exploiting the destructive impacts prisons have on communities. Corporations producing all kinds of goods – buildings, electronic devices, hygiene products, food, therapy, healthcare and surveillance equipment – “are now directly involved in the punishment business,” writes Davis.

What feminists require of a justice movement, however, is not only an understanding of offending and the criminal justice system, but violence itself. According to Rape Prevention Education, while one in three New Zealand women are sexually assaulted in our lifetimes, an estimated nine per cent of incidents ever reported to police, and only thirteen per cent of reported cases result in a conviction. Men convicted for sexual offending represent about one quarter of prison inmates, but these inmates represent a fraction of perpetrators in the wider society; and incarcerated victims represent only a small proportion of all victims.

One problem with RJ advocacy and prison abolitionism is that it revolves around analysis of class and race, but not sex. It promotes the idea that men offend because of dispossession caused by class and race oppression, but in doing so it minimises the issues of male violence and of sex. Consider why, for instance, New Zealand houses 10,000 male inmates and only 800 female, if trauma and victimisation explains criminal offending? If women have to deal with sexism on top of class and race oppression, should we not offend more than men? And why is it that women more likely to be imprisoned for crimes of poverty, while men commit more violent crime including sexual abuse?

New Zealand’s Family Violence Death Review Committee report shows too that when women do kill, it is for different reasons than men. In the seven years from 2009 – 2015, there were 92 deaths caused by intimate partner violence in New Zealand. 63 women and 29 men were killed, and 70 offenders were male compared to 22 female. But the gendered nature of this data does not end at those numbers: 83 of these deaths followed a recorded history of abuse, and in 82 of those cases, women were the primary victim. In 67 cases those women were killed, and in 16 cases they killed in self defense. This report also showed that “significant proportion” of men who had murdered women employed “overkill – where the violence used was far beyond what was necessary to cause death.”

In light of this, if the RJ and prison abolition movements were truly feminist, one of their first priorities would be to demand release and offer support for all women incarcerated for self defense. You would be hard pressed to find anyone in New Zealand making this demand.

In light of such silences, the essay collection Restorative Justice and Violence Against Women presents a serious challenge to RJ. “Feminists have argued that the current literature on restorative practices lacks an understanding of the dynamics of violence against women and the context of gender inequality that shapes these dynamics,” writes editor James Ptacek. He notes that “This is the same criticism feminists have made of traditional legal practices.” In other words, feminists share critiques of the current legal system with RJ advocates – but feminists believe that RJ fails to address the problem of male violence. It also fails to grapple with and dismantle the misogynist elements of the current legal system, thereby carrying them over into a new and more intimate “restorative” model that also has its own problems.

Feminists who have written about the earliest legal codes to which or current systems trace back note that their original function were not only to protect men’s property, but to define women as such. Andrea Dworkin’s essay The Rape Atrocity and the Boy Next Door points out how the word “rape” itself connects to this history. It comes from the Latin rapere – which means “to steal, seize, or carry away.” Rape was originally criminalised as a form of theft – of one man taking another man’s property outside of any agreed arrangement or transaction. Ultimately, “Rape was a crime against the man who owned the woman,” writes Dworkin. “Women belonged to men; the laws of marriage sanctified that ownership; rape was the theft of a woman from her owner. These biblical laws are the basis of the social order as we know it.”

Jackson, too, places the roots of our current legal system and culture “in the Western Christian heritage,” adding that “their operations perpetuate a set of ideals which reflect that heritage.” When these laws were imposed as part of colonisation, they were imposed alongside the institutions and industries commodifying women, like chattel marriage and prostitution. According to historian James Belich, in New Zealand, “the sex industry began at first contact in 1769, and from the 1810s it became large and important – very probably preceding wool, gold and dairy products as New Zealand’s leading earner of overseas exchange.” Prostitution is still legitimised under New Zealand law (22 per cent of prostituted persons are Māori women) and pornography consumption is widespread and normal, despite its established correlations with child sex abuse.

Jackson touches on these problems in his own classic report on The Māori and the Criminal Justice System. He criticises male consumption of pornography, and also challenges the sexist advertising and media normalised under white society: “they foster certain images about the violent resolution of conflict and sexist demeaning of women,” he writes. He furthermore tackles “Western notions of machismo based on violent domination,” and the replacement of “ancient respect of woman, her tapu” with “sexist definitions of a woman’s place” and “Western chauvinism”.

For feminists, analysis of masculinity like this is central to understanding violence and rape culture, not just a part of the story. As author Lierre Keith writes,

With male entitlement comes a violation imperative: men become men by breaking boundaries, whether it’s the sexual boundaries of women, the cultural boundaries of other peoples, the physical boundaries of other nations, the genetic boundaries of species, or the biological boundaries of ecosystems. For the entitled psyche, the only reason “No” exists is because it’s a sexual thrill to force past it.

Elsewhere, Keith adds:

The real brilliance of patriarchy is right here: it doesn’t just naturalize, it eroticizes domination and submission. Through the concepts – and lived reality – of masculinity and femininity – patriarchy institutionalizes domination and submission across the culture and deep into our psychologies. And so men commit brutal and violating acts as a matter of course. Psychological profiles of rapists have found “that they are ‘ordinary’ and ‘normal’ men who sexually assault women in order to assert power and control over them.

In this context, RJ’s emphasis on “honest dialogue” as a way to engage victims and perpetrators starts to appear sentimental and disingenuous, if not downright suspicious. As Loretta Frederick and Kristine Lizdas point out, any “victim/survivor is often reluctant to voice any disagreement with the batterer and may fear retaliation for objecting to or even revealing the fact of the abuse.” These critics of RJ say that the model can increase danger to women in several ways:

First, practices that engage the victim and the abuser together in discussion… [can] imply that both parties have a role in creating the problem and in finding a solution. Domestic violence cases are particularly vulnerable to misinterpretation and victim-blaming…

Second, because experience shows that a batterer represents a real threat of future violence to his victim, practices that do not assume, in the absence of information to the contrary, that such danger exists will further endanger her…

Third, practices that presume that domestic violence offenders are not aware of the consequences of their violent acts provides batterers with the opportunity to manipulate intervenors and sabotage the process. A much safer assumption is that a domestic violence offender uses violence in his relationship because he is aware that violence creates the desired effect of maintaining authority and control in a relationship.

Critics of RJ are not only concerned with the assumptions implicit in the model, but also in those entrusted to carry it out, who are “the same professionals” who currently operate the retributive justice system. Under this existing system, women often say that their “abuse was trivialised, that there was a pervasive attitude of victim-blaming, and that referral practices were discriminatory”. Counsellor Pamela Rubin has found that “Many women identified significant problems in the existing criminal justice system as arising from systemic patterns of discrimination or direct discrimination by some of these professionals. There was nothing in place to prevent the carry-over of these problems into RJ.”

I also noted when watching actors demonstrate victim-offender mediation sessions in Victoria University’s online course that facilitators promised to “shred” notes taken during the session directly afterward. Whilst confidentiality is important, the Backbone Collective is already complaining about a lack of public accountability and the fact that there is no independent oversight of what takes place in the Family Court, nor accountability for those working within it. “There is a strong likelihood that RJ sentencing practices simply undercut the public accountability function of the justice system,” write Frederick and Lizdas, “the more private, less public sentencing process could actually leave many women unprotected and could inadvertently slow the progress toward ending domestic violence.”

While RJ does not address existing biases among professionals or encourage public accountability, it does promote “community” participation. It actually seems that RJ advocates hold contradictory views on what “community” is, the state that it is in, and the capacity it has to ensure the wellbeing of individuals. An important premise of restorative justice is that colonisation and capitalism have broken communities and left people dispossessed, causing crime. It is a contradiction to then rely on something called “community” to fix these problems, since in this mythical realm solutions supposedly emerge more easily and readily than through state services.

According to Andrea Smith, writing in Restorative Justice and Violence Against Women, “The problem with these models is that they only work when the community unites in holding perpetrators accountable. However, in cases of sexual and domestic violence, the community often sides with the perpetrator rather than the victim.” As Frederick and Lizdas put it, feminism “believes, first, that culture and laws have long reflected the belief that intimate partner violence against women is acceptable.” This leaves women facing prevalent “why didn’t she just leave him?” victim-blaming attitudes, one of the factors that contributes to low rates of reporting in the first place.

Indeed, in the context of this social order, which feminists seek to radically transform, what does it mean to “restore” a relationship in the first place? “RJ proponents,” write Frederick and Lizdas, “take the position that crime damages the balance and equilibrium between victim and offender; the traditional (“retributive”) response damages both victim and offender; and RJ restores equilibrium.” What critics of the current system like Jackson point out though, alongside feminists, is that in a capitalist, patriarchal white society there is no pre-existing “equlibrium”.

What needs to be envisaged is a justice system that could help to build and create this equilibrium. The Icelandic women’s movement offers a case study. Gudrun Jonsdottir has been part of the Icelandic women’s movement since the 1970s, when this movement set up helplines for victims of incest before drawing public attention to the issue and establishing refuges. Those shelters then drew in survivors of prostitution, who lead feminists to gain an awareness and analysis of the harms of the sex trade. Then, after a decade long battle, Icelandic feminists succeeded in criminalising pimps and punters in 2010, before moving to challenge a largely male police force to enforce the law. This is an example of a responsive justice project that is truly victim-centred and socially transformative.

This transformative justice movement in Iceland was propelled by women’s rage. As Ptacek writes, “For many feminists, anger is a powerful process that facilitates insights about injustice and galvanises action against it.” This opens up another problem with RJ – its language of “healing” and forgiveness, revolving around men’s dispossession.

A stated goal of RJ is to reduce not only victims’ fear of offenders, but victims’ anger toward offenders… It is as if restorative practitioners see victims’ anger as an obstacle to justice and forgiveness as transformative whereas feminist antiviolence activists see forgiveness as an obstacle to justice and victims’ anger as transformative.

No true effort to secure justice can afford to frame women’s anger and heartbreak as energies to quell, disperse, fix or remould – in fact, no true justice movement could progress without women’s anger as its engine. What’s more we should be suspicious when the state appoints itself as an emotional “healer”, because this will always result in “corrective” practices that seek individual and group adaptation to the current social order.

It seems that RJ is not as victim-centred as it purports to be. As Ptacek says, “the most commonly used restorative practices, as innovative as they are, were all developed with a focus on offenders.” RJ’s conflation of offender-and-victim, and minimisation of male violence against women ultimately leaves women not only at risk, but groomed for further victimisation. Women are already all too frequently told that abusive men are wounded individuals who just need care, and the benefit of the doubt. Women are further already generally encouraged to measure themselves against ideals of forgiveness and self-sacrifice – these narratives come from the very Christian tradition that Jackson criticises. They prevent women from setting boundaries, demanding sovereignty and fighting back against our relegation to chattel status. A justice model based on these narratives, even if it offers women some form of counsel, is not radical, but domesticating. As it popularises it will also contribute to a reduction in reporting of violent crime against women to police, by sending the message that such measures are merely punitive and unenlightened.

Feminists from Yayori Matsui to Cynthia Enloe and Jane Kelsey have pointed out the reliance of neoliberal reforms on women, specifically, to absorb and overcompensate for their harms and limitations. A justice model in which the role of state services is shrunken, made private, and replaced with more onus on “community” to produce actually very individualistic outcomes looks a lot like cost-cutting neoliberalism, especially when combined with aspirational rhetoric and overreliance on women to make the system work and absorb harmful impacts.

One further aspect of neoliberalism is co-optation, and government co-optation of antiviolence struggle is something that the text Restorative Justice and Violence Against Women concerns itself with in particular. Certainly, government and universities are promoting RJ as an “indigenous” method, however ignorant they are of the patriarchal violence that harms indigenous women first and foremost. Yet calling a government endorsed programme that purports to deal with violence, but does not account for white institutions like prostitution and pornography “indigenous” is appropriation. There is nothing “indigenous” about responding to abuses of power with domesticating methods when what is called for is resistance and accountability.

New Zealand’s rates of male violence are appalling. There were over 33,000 domestic violence incidents in the year ending March 2015 – this is the number of referrals police requested that Women’s Refuge follow up. This figure says nothing about the sex trade, the dating system, stranger rape, the schoolyard, online abuse, or cultural and institutional complicity. Any restorative justice or prison abolitionist movement must not be a movement that also minimises, excuses, ignores, sanitises, glosses over or expects women to absorb, tolerate or be blamed for any amount of male violence. Any justice movement worth its salt needs to be an anti-violence movement – and a feminist movement.