New report on restorative justice for family violence; Ministry of Justice reviewing Restorative Justice service
Mon 13 Sep 2021
The Office of the Chief Victims Advisor has released a report looking at the use of restorative justice in family violence cases. The Ministry of Justice is currently reviewing the Restorative Justice service.
The Chief Victims Advisor commissioned research to look at the risk of victims being coerced or controlled by perpetrators through restorative justice processes in cases involving family violence. The findings from the research have been published in a new report, The use of restorative justice in family violence cases with a focus on the possibility of victims being coerced or controlled to participate by the persons who harmed them (2021).
The research was prompted by concerns from the Chief Victims Advisor Kim McGregor and the former Parliamentary Under-Secretary to the Minister of Justice (Domestic and Sexual Violence Issues) Jan Logie about the risk of coercion and control for victims participating in restorative justice processes.
The researchers conclude "...that a restorative justice conference going ahead because of pressure on a family violence victim from the perpetrator is most unlikely in cases dealt with by specialist restorative justice practitioners." The researchers estimate that over half of restorative justice cases involving family violence do not proceed to conference because victims choose not to proceed. Restorative justice practitioners who were interviewed for the research, report in a small number of cases they would stop the process when:
- "they suspected violence was continuing
- they suspected coercion or collusion of victims and their seeming inability to say ‘no’
- the case involved a history of serious violence and/or safety concerns
- they could not establish the truth."
While the researchers conclude cases were unlikely to progress if there was coercion or control, they identify four aspects of the restorative justice process in family violence cases that create risks to victims:
- a lack of information and/or poor-quality information in referrals from court to restorative justice providers about the victim and the offender
- the Ministry of Justice (MOJ) risk assessment forms for restorative justice practitioners in family violence cases not being “fit for purpose”
- the fee-for-service funding model could incentivise restorative justice practitioners to press the victim to proceed with the restorative justice process
- a lack of relevant professional development opportunities for restorative justice practitioners including a lack of culturally relevant training.
Issues with the fee-for-service model came up a number of times in the report as an area of concern, including:
- practitioners might be incentivised to proceed to conference to receive funding
- the model does not adequately account for administrative work
- the model does fund follow-up after the conference, particularly when the practitioner has concerns for victim safety
- the model does not fund support people including the involvement of family violence prevention and social service providers
- almost all MOJ funding is for pre-sentence
- travel is not adequately compensated.
The report concludes with a number of suggestions for improvement:
- Review the current restorative justice funding model
- Improve the quality of referral information and the referral process
- Strengthen facilitator training and development including training that is relevant for kaupapa Māori approaches
- Review the Ministry of Justice risk assessment forms
- Investigate routine recording of conferences so facilitators can focus on the facilitation
- Increase diversity of restorative justice practitioners
- Strengthen connections with family violence providers including funding to support involvement
- Prioritise the readiness of participants for restorative justice over court timetables including delaying referrals until it is the right time for victims and offenders
- Investigate the use of restorative justice processes as an alternative to use of court processes
- Fund restorative justice post-sentence.
The researchers note the limitation that the research only involved interviews with service providers, and the researchers recommend "...further research be conducted directly with victims of family violence who have participated in restorative justice processes to verify the findings from this study of key stakeholders." The research draws on 20 interviews with key stakeholders. Of those, 18 were with restorative justice stakeholders and two with stakeholders from family violence support services. Seven of the 20 stakeholders were based in Kaupapa Māori organisations.
The research and report were provided by Judy Paulin, Kirimatao Paipa and Sue Carswell of Artemis Research.
The Chief Victims Advisor has also released the following reports:
- The Victims Code: An exploration of how it is being used and options for the future (June 2020)
- Independent bodies and complaint mechanisms for victims of crime (May 2020)
- Victims Rights Act 2002: How was the Act implemented and how is compliance with the Act monitored? (April 2020)
The Ministry of Justice (MOJ) announced a review of the Restorative Justice service to ensure it "...remains an appropriate and flexible justice mechanism for New Zealanders." The MOJ media release also notes that this is the first phase of a possible multi-year project taking place between June and November 2021. The first phase is focused on gathering information. MOJ is seeking to understand what’s working well and what could be improved. This information could be used to inform the future model of MOJ funded Restorative Justice in New Zealand.
MOJ is engaging with key stakeholder groups about restorative justice including court staff, judiciary, service providers, participants, police, lawyers and Māori providers and participants.
The media release notes:
"The voices of RJ [restorative justice] users will form the basis of the final recommendations submitted to Senior Ministry leadership for endorsement. The recommendations following the review will inform the next ‘service re-design’ phase and help us to future-proof the service. The endorsed recommendations report will be sent to all parties who contributed, as well as made publicly available."
The report and recommendations are expected to be published in March 2022. See the MOJ website for more information about the review and plans for stakeholder engagement. For questions about the review email the MOJ project team at RjServiceReview@justice.govt.nz.
The Ministry of Justice has produced several publications on restorative justice including standards for family violence and sexual offending.
For more information on restorative justice in family violence see the following from our recommended reading list:
Whose Justice, Whose Alternative? Locating Women’s Voice and Agency in Alternative Dispute Resolution Responses to Intimate Partner Violence by Heilman and others (2016, Washington, DC: International Center for Research on Women, Center for Domestic Violence Prevention & Beyond Borders)
Domestic violence and restorative justice initiatives: Who pays if we get it wrong? by Busch R (2002, In: Strang and Braithwaite (Eds.), Restorative justice and family violence, Cambridge: Cambridge University Press).
Also see the following articles and book chapters:
Reimagining VAWA: Why Criminalization Is a Failed Policy and What a Non-Carceral VAWA Could Look Like by Goodmark L, Moore AM and Gover AR (2020, Violence Against Women)
Responsive Alternatives to the Criminal Legal System in Cases of Intimate Partner Violence by Goodmark L (2019, In: Burford , Braithwaite J and Braithwaite V (Eds.), Restorative and Responsive Human Services, New York: Routledge)
Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence by Leigh Goodmark (2018, Oakland: University of California Press)
For more research, search our library using the Restorative Justice Quick topic search.