Doing justice differently for domestic violence victims: What, why and how?
When women’s bodies become a battleground, conversations about human rights, justice and development cannot have meaning for those affected victims—either directly or indirectly until there is acknowledgement of the gross violations of the rights of the victims and until the victims are made whole again, insofar as this is possible. The very act of destruction of a woman’s anatomy is symbolic to the tearing apart of the social fabric, one that damages the family and can only fuel revenge and further conflict” (Pinel and Bosire)
The World Health Organization (WHO) studies indicate that globally 1 in 3 women have experienced physical, psychological or sexual violence by their husbands, boyfriends and intimate partners.
Malaysia is no exception.
Studies conducted by the Women’s Development Research Centre (KANITA) revealed that 9 per cent of women in Peninsular Malaysia have experienced intimate partner violence (IPV).
Like any other types of domestic violence, intimate partner violence has often been thought as part of “family and private affair”-seen with certain fatalism of women and girls who are victim of power abuse and manipulation committed in the family context.
Mirroring the best practices of multi-sectoral approach, most organizations focus their resources for programming to establish shelters as a means to provide safe spaces and temporary accommodation. We have seen how they provide emergency medical care and forensic examination, psycho-social and legal support for victims in need.
The Royal Malaysia Police Force has been tasked with investigating domestic violence and a range of other related offenses against the person, which are now clearly defined as public crimes.
And there have been many numerous awareness-raising campaigns and trainings conducted by the Ministry of Women, Family & Community Development throughout the country, all based on the theme of saying ‘no’ to violence. Always, we ensure that offenders who abuse must receive legal punishment.
There is much to appreciate here. In contrast, while intimate partner violence may result in physical damage and severe internal wounding, psychological wounds are far less likely to be treated than other forms of wounding.
Women who have experienced domestic violence experience severe distress and the trauma of the wounding are compounded by the trauma of being helplessness. Abused women often live with very high anxiety and pain. The difficult task of psychologically rehabilitating victims must be at the heart of interventions and must be available routinely.
What are the shortcomings of the current approach to psychologically rehabilitate victims?
Efforts to provide psycho-social support to victims remain insufficient to fully compensate the harm experienced by victims. While many aspects of the primary policy strategies include the provision of trauma counseling, enhancing the access of victims to literacy, income generation projects and shelter, research has shown that even when the prosecution of offenders of domestic violence been successful, the results may not meet the need of the victim-survivor. Critics also point to the disempowerment of felt by victim-survivor
The multi-sectoral approach to domestic violence, including relegation of victims to a passive role in the prosecution process will not enter into fruitful relationships except through the effort to restore victims, offenders and restoring communities that are affected by the crime. To this end, can restorative justice be used as a tool of options for psycho-social response to address the psychological needs of intimate partner violence victims? The recommendation of restorative justice generates a range of responses.
Common arguments for and against the use of Restorative Justice
In combination with formal justice system, restorative justice offers an informal dialogue based practice that seeks to address the harm caused by the crime. Repairing the harm is the central goal of this approach.
· It treats the victims and offender as valuable in themselves.
· Offers the chance for the victims to receive an apology, opportunities to tell their own story, and participation in the process and decisions about the outcome of the matter.
· Offers opportunities for the victims to forgive and transcend resentment and become a more virtuous person.
· Instead of revenge, the emphasis is on resolution and healing
· Permits the offender to repent, take meaningful responsibilities for his actions and make different choices in similar situations in the future.
· It encourages attitudinal and behavioral change in offenders that benefit them directly.
· Help offenders develop empathy for their own victims and to regret what they have done. Sometimes on hearing of the pain of the victim-victims, the offenders will get in tune with their own past victimization.
· It requires the widening of circles of those committed to stop family violence in a way that create coordinated response of informal and formal resources. This will widen the circle of people who can protect victims and held offenders accountable.
· It may be viewed as “soft response” that would fail to punish the offender.
· Most restorative programmes operates within the realm of the existing offender-oriented legal system, this creates a pull towards focus on offenders.
· Intervention that relies on the mobilization of community norms when these norms may not necessarily condemn the use of violence.
· Some restorative justice advocates prefer to avoid the term crime and talk instead of harm, and obscuring the fact that a crime is a public wrong.
When the evidence for the range of positive effects produced by restorative justice in intimate partner violence is juxtaposed against the evidence that criminal justice system are not producing an empowering process to both the victim and offender, I think we are challenged in how we define justice for women survivor of violence as well as how we relate to their long-term needs.
Seeing justice only in terms of getting the offender to be prosecuted and jailed, significant as it is, tell us very little about how justice in sought to restore and repair the harm experienced by women survivor of violence, with a view to enable them to live a fulfilling and freer lives. It is not enough for victims to be liberated from their abuser.
The deeper meaning of this expression is the insistence on the need for personal transformation by which victims can live with inner freedom in face of their past.
Many of the successful restorative approach bridged the gap by the use of victim-offender panels in which offenders listen to crime victims unknown to themselves, who describe the pain and suffering they endured as the result of the crime.
Getting in touch with their own feelings may prepare them for the humanization-rehabilitation process. This facilitates responsible resolutions to harmful behavior; supporting offenders in making amends and addressing underlying causes of harmful behaviors.
There is no rigid formula that can guarantee success. Rather, we can gather insights from best practices on restorative approaches in addressing intimate partner violent; what seemed to work and what did not work.
Victim-offender conferencing is currently practiced in New Zealand, Canada and the United Kingdom as one way of meting out justice for victims of battering. This model acknowledges that many people seek to end the violence but not the relationship. Such restorative processes help partners and those who would like to separate in a more amicable fashion than through standard adversarial disputes.
Limitations of Restorative Justice and conditions under which it may work
Let me assert at the very outset that effective formal justice responses to domestic violence are essential to providing redress to victims, preventing recidivism, discouraging violent behavior in our communities and holding perpetrators to account.
The relevance on ensuring that all forms of domestic violence are investigated, prosecuted and punished, and that victims have access to these justice measures, cannot be denied.
If we are to face these challenges in the right way, we must first see the need for a hybrid restorative model. To this we must not fail to see that it requires discernment that certain criteria have to be fulfilled in order to implement the hybrid model.
First, this is not saying that offenders do not need to be punished. Without putting them in the bars, there would be no justice.
But the process of justice will not have conquered the very roots of abuse, without the offender taking full responsibility for his/her action; sharing remorse and wanting to be able to make different choices in any similar situations in the future.
Second, there must be the victim’s genuine voluntary participation in the dialogue process.
Third, victims must demonstrate the desire, strength, feeling of safety to express her needs and talk honestly in depth about her experience with the offenders’ abusive behavior.
The victim should be secure physically and emotionally outside the session and finally the offender should take meaningful responsibility for his own action and sharing remorse.
Implications of Restorative Justice
Legal-In applying restorative justice into the criminal legal systems regulates a particular initiative that will affect the provisions for offender, community and victim variably. Factors such an administrative accountability mechanisms, breach provisions, provision of mandatory victims services and selection of participants may all be dictated by the legal regime that a particular initiative functions under.
That has to be a primary legal foundation for the use of restorative justice. Restorative justice has significantly changed sentencing in Canada in ways that previous legislation was not or unable to do. Analysis by BC Association of Specialized Victims shows the implementation of restorative justice can be focused on adding conditions in the judicial process such as victim-offender mediation.
Budgetary implication-Because restorative justice requires community support, institutions who are interested to implement this must invest in community support and awareness.
It will require the criminal justice officers to be trained with regard to social, psychological, economic, confidentiality, planning disciplines related to victim and community reparation.
Recommendations and conclusion
Victims of abused expects us to deliver on the promises of Sustainable Development Goal # 5 i.e. Achieve gender equality and empower all women and girls (SDG) in ways that can make real differences in their everyday lives.
We must ensure that the potential of psychologically rehabilitation is integrated into all of the frameworks-legal, institutional, family and all the funding modalities we can draw upon.
As to its feasibility, the call for a conversation is needed among the relevant stakeholder. Hence it is critically important for the Ministry of Women, Family and Community Development, in collaboration with the Attorney General‘s Chambers to consider if Restorative Justice strategies can be institutionalized for family violence in Malaysia under certain circumstances.
To get the conversation started, a discussion can be held with individuals with expertise and experience in justice systems and restorative justice strategies, women advocacies, service providers and victim issues to explore this possibility. — Sin Chew Daily
Article published on The Malay Mail Online.