Do you need an offender for restorative justice?

“I want to even out the power imbalance between us, to sit across the table on my terms and look into his eyes.” 

This quote, taken from a powerful excerpt from her forthcoming book, describes why Carmen Aguirre wanted to meet the man who had raped her as a teenager. This is in no way unusual. Many of the victims who I have spoken to have wanted to regain power and control, as an important step towards putting a crime behind them and moving on. 

What’s unusual about Carmen’s story, from a restorative justice perspective, is that the man she met had not been convicted of raping her, although he had been convicted of a string of similar crimes. Nor did he admit that he had done it. Yet the meeting, which took place in Canada, went ahead, presumably with his consent.

While it would be unwise to comment on the specifics of this case without knowing the details, this appears unorthodox. Normally the involvement of an offender who admits responsibility is a prerequisite for a restorative justice process to take place, at least in the UK. Is this, then, just bad practice? Not necessarily, according to a number of experienced facilitators who have raised this issue with us. They argue that such a process can be effective in the right circumstances.

Despite this, however, I have three concerns. 

First, there are legal issues to consider. If, in the course of a restorative justice conference, an offender admits to a crime that they have not previously been convicted of, then the victim could go to the police, who would surely need to act on it. The facilitator would be a witness to the confession and could have to testify in any ensuing prosecution. I think that the offender would have to be warned about that risk in advance, potentially deterring them from taking part. A handful of lawyers that I have consulted were unanimous in saying they would strongly advise any client who had not been convicted not to engage in a restorative process, due to the risk that they could incriminate themselves.
Second, I would have real concerns about the extent to which a victim’s expectations could truly be met. Of course the facilitator would explain to the victim the limitations of a process involving an offender who is unwilling to accept guilt. But wouldn’t it be human nature for the victim to hope for an explanation or an apology? Even Carmen – who clearly got a huge amount from the process – hoped for an apology that she did not get. It would be hard to manage these risks.

Third, I think that the needs of the ‘offender’, if that label is even appropriate in these circumstances, need to be considered. Why would they take part if they have not committed an offence or will not admit that they have? And what could they possibly get out of the experience? In a response to my last blog, which is well worth reading in full, Steve Jones of Remedi highlights the challenges of running a genuinely restorative process without an engaged offender. Taking responsibility, he persuasively argues, is a key part of restorative justice. Is it really a restorative process if it’s really just a chance for the victim to have their say?

I am, of course, keen for restorative justice to be used as widely as possible. I’m also keen for practitioners to be creative in ensuring that as many people as possible can access a restorative process. But I am not sure that, other than in exceptional circumstances, it can be right to go into a restorative meeting with an offender who does not accept that they have caused harm and has not taken responsibility for their actions. It might help the victim but is it really restorative? I’m not convinced.