Restorative justice is no substitute for prison

A photograph of the bronze sculpture of "Lady Justice" on top of the Old Bailey criminal court in London, England. The statue has a sword in her right hand and the scales of justice in her left hand.
Lady Justice, the Old Bailey, London. (Source: Andrew Middleton.)

Recently I came across a long thread (starting here) arguing against ‘carceral’ (prison-based) responses to serious crimes and, in particular, rape. The argument is that the justice system serves the state’s purpose, which is incarceration, that trials re-traumatise victims (which is certainly true), that victims often sink into depression after trials “primarily because they expected to gain some measure of healing through the criminal justice system that they just didn’t get”, that prisons cause PTSD which increases re-offending (as does having a criminal record), and that a better way of dealing with the crime, assuming the rapist (as it is mostly about rape) admits responsibility, is to require both to undergo a year of intensive therapy and then to allow the victim to place conditions on the attacker’s life. Most of the premises and solutions I find, to say the least, dubious.

Really? I’m sure some survivors would find great comfort in knowing that the person who assaulted them is behind bars and no longer has access to them and cannot attack anyone else. This is particularly the case if the rapist was a man and the victim a woman; of course, a man who attacks boys and men and is sent to prison may well have access to vulnerable men.

This is where we start to see the US-centricity of this whole thread. The American legal system has particular problems; you have elected prosecutors and judges who are looking to score points with the public and media in expectation of re-election, for example. There have been cases where judges have adjudicated young people as delinquent because they had been receiving bribes from the prison industry; in other cases, there is covert lobbying by the prison industry to impose harsher sentences which make them more money. However valid the claim that the state’s goal is incarceration is in the USA, it is not the case in every country where there is a criminal justice system where the default punishment for serious crimes is prison. Historically, societies dealt with serious crimes that posed threats to public safety with either imprisonment or physical punishment, such as flogging, amputation and the death penalty; in many western societies, these have been abolished, either because they were seen as barbaric or because they were irrevocable and innocent people were known to be being killed. To do away with prison will mean society will have no means of keeping the public safe from repetitively violent offenders.

As for victims being forced into testifying: sometimes this is necessary to protect the public, or to avoid the collapse of the trial where there are other offences or defendants, or because large amounts of money have been spent on the trial, a jury dragged away from their lives and sworn in and so on. To make a point I will come back to: the purpose of prison is not just to punish, but to protect.

There are a few tweets following this about the traumatic effect of rape trials themselves: that victims’ accounts are scrutinised to make sure that the incident fits the legal definition of rape, that victims are questioned about what they were wearing at the time, and so on. These are not arguments against having rape trials or a ‘carceral’ justice system to deal with rape but in favour of reforming the way rape trials are conducted and eliminating irrelevant questions that are calculated to simply discredit the victim as a witness. As it is a fact that the victim’s dress makes no contribution to any rape that starts with an attack in the street, such questions should not be asked. Some progress has been made in this area in the UK; maybe not in the USA, or at least in many jurisdictions as laws on rape differ from state to state.

A rape victim experiencing mental illness after the conclusion of a rape trial may not be because she is dissatisfied with the outcome or the penalty; it could well be because this is the hurdle of the trial is past and this is the first time in months that she has time to think about the situation. Some feel intense guilt at having been responsible for someone else’s suffering (see, for example, Maya Angelou in her autobiography I Know Why the Caged Bird Sings, after the man who raped her as a child was murdered after she reported it; also, the 1992 interview in the Guardian with the victim of the 1988 London rape known as the “Babes in the wood” rape, whose attacker was jailed for 12 years, who said that this “seemed like too much power for a 15-year-old to have” but also that “when everyone else stopped caring, [she] started caring”). It shows the importance of counselling being available in the aftermath of a trial, whichever way the verdict goes.

Therapy is not a replacement for a criminal-justice response to a serious crime. It should not be linked to it at all. In the UK, rape counselling centres have been closing because of funding cuts linked to austerity policies; in some cases, abuse victims have been told not to access therapy before a trial as it could result in their evidence being deemed unreliable. There are other ways to “tell your story to an empathetic other” and other “empathetic others” besides therapists; they could be a relative or friend who believes you rather than instinctively doubting you or telling you all the ways you brought the situation on yourself. But none of these things are alternatives to punishment of the offender or getting them off the streets.

And the problem with using restorative justice as a substitute for a criminal-law penalty is that it assumes that the rapist is a first-time offender or is amenable to being taught the error of his ways or that learning to empathise with the suffering of his victim will necessarily ensure he never offends again. The truth is that many rapists are recidivists and that even if the victim that comes forward is his first, she might not be his last. There is more at stake than the feelings or ongoing mental health of this particular victim; everyone in society who might be a future victim has to be protected from him. There are two ways of doing this: imprison him, or kill him. And I am sceptical about empathy-based approaches to serious crime for the same reason as I am about its usefulness in tackling bullying; the offender knows that his behaviour hurts his victim; it is often the reason he does it. The traumatising effect of any of these things, of any element in a street rape, for example, is obvious. They often enjoy the power it gives them; to a torturer, like the torturer in Orwell’s 1984, ‘real’ power comes not only from making someone do what you want, but from making them suffer.

As for the effect of prison on the offender, of course prisons should be safe and sanitary and free of needless infringements of prisoners’ dignity; of course, they should be free of bullying and abuse. These aren’t arguments for abolishing prisons because society as a whole should be free of these things as well. As for it being difficult for ex-offenders to get jobs, many countries have a set time during which they may be required to disclose a conviction but if they are going into certain professions, this is for life, for the protection of whomever they may be working with (e.g. children, disabled people, sick people). Some US jurisdictions have particularly harsh rules on this, or allow employers to require any applicant to declare any conviction up-front (hence the recent “ban the box” campaigns in some states), but they can be reformed in such a way as to protect the public from the most serious offenders while leaving open the possibility of rehabilitation for the less serious ones.

There are cases where restorative justice can work in rape, but they are at the lowest end of the severity scale, where the rapist may not have intended rape as such or realised that this is what he was doing, or with disturbed juvenile offenders. Any case involving premeditation has to be dealt with through the criminal justice system for the protection of the public. If there is only one victim and no realistic prospect of conviction for some reason, it needs to be kept on file because of the very likely prospect of their being more. Prison abolitionism seems to be popular among a certain type of American idealist, largely because their criminal justice system is racist, corrupt and riddled with political interference, but we must not generalise from the American particular to every criminal justice system everywhere. The aim of the state should not be to incarcerate people for its own sake, but to ensure both justice and public safety and this sometimes involves imprisonment.

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