Survivor initiated-restorative justice as a pathway to justice for sexual assault in the Australian Capital Territory

The ANU convened a Symposium on Survivor Initiated-Restorative Justice as a Pathway to Justice for Sexual Assault on 27 August, 2021. The aim of the Symposium was to highlight the role that restorative justice can play in addressing the needs of survivors of sexual assault in the ACT. As MLA Dr Marisa Paterson who opened the Symposium reflected, sexual violence in Australia is endemic and broad scale cultural change is urgently required. In her words, we are at a critical junction, and action is needed now. The Symposium sought to identify what restorative pathways are currently open to survivors, and what other ones could be developed, and how.

Restorative justice is an approach to harm that focuses on healing. It involves dialogue (face to face, via written communication, via intermediaries or tele or video conference) between those who have caused harm and those who experienced harm about who has been impacted and how and what can be done to heal and move forward. In the context of sexual assault, a restorative approach may enable a survivor to have questions about their assault answered, and to address ongoing fears and concerns, such as how to navigate potential future interactions with the person who caused harm.

Since 2018 the ACT Restorative Justice Unit (RJU) has accepted referrals for cases of sexual assault and family violence. In order to be eligible for restorative justice, a matter currently must be referred to the Unit at some point along the criminal justice system journey, including at the point of police caution, in court at the pre-sentence stage, or post sentence. The new Charter of Rights for Victims of Crime requires justice agencies to advise victim survivors at multiple points in the criminal justice system about their rights and options around accessing a restorative process.

At the symposium, we heard from a survivor who spoke about her positive experience taking part in a restorative justice conference facilitated by the Unit. She highlighted the way in which the response was personalized and responsive to her particular needs as well as being empowering and flexible. After her restorative justice conference she reflected “I could leave that room feeling like I had said everything I needed to say.” She also noted “I was given options at every point, it was all catered to me, and when the options didn’t fit, a personal option was made.”

Many speakers noted that the number of survivors who see a case through to conviction constitutes a drop in the ocean compared with the number of cases that go unreported or where prosecutions do not proceed or do not result in a conviction. A restorative approach recognises that the formal criminal justice system is one pathway but many survivors may also seek community support, resources and insights. As such, the Symposium also heard from speakers about a range of community-based restorative justice initiatives that work to address the needs of survivors of sexual assault and are available separately from the criminal justice system. Such community-based options are not currently available in the ACT.

Some of the key themes to emerge from the Symposium were:

There was resounding agreement that we are currently not responding consistently and well to survivors in all their diversity.
Restorative justice can offer survivors of sexual assault and others impacted a range of benefits, including: to narrate what happened; to find meaning in what happened; to move forward in a safe environment; to have questions (why? why me?) answered; to address the ongoing effects of historical cases of sexual assault; to address an institution’s failure in their duty of care in relation to a sexual assault; to work through the reactions and responses of people around the abuse that may continue to impact the survivor and more.
In cases of sexual assault, it is critical to have a survivor centred and trauma-informed approach to restorative justice.
The needs of all survivors are diverse and multi-faceted and change over time. Work by advocates and survivor-led initiatives demonstrates a widely-held desire for a restorative justice option.
There are significant challenges to developing restorative justice for survivors of sexual assault, such as ensuring safety, confidentiality, ensuring the process is completely voluntary and addressing power imbalances. These should not be considered obstacles to block progress but as important considerations to carefully address. Notably, the participation of sexual assault counsellors, advocates, and trained supporters, who fully understand the restorative justice process, can help ensure proper safeguards.
One potential vision for restorative justice in this domain in the ACT is that of multiple pathways for survivors to different forms of restorative justice operated both within and outside the formal justice system. These pathways need to be well-explained, well-funded, well-supervised, survivor-focused, and survivors need support in determining which choice, if any, is best for them.
There are unique needs experiences by Aboriginal and Torres Straight Islander survivors. Restorative justice practices need to be culturally appropriate, and Indigenous led. To that end, the next steps following the Symposium involve facilitation of a future panel of all Aboriginal & Torres Islander Women. This Symposium will explore the synergies and tensions between Indigenous justice responses and Restorative ones and further develop Indigenous-led restorative justice approaches, either inside the criminal justice system or outside of it.

The Victims of Crime Commissioner, Heidi Yates, concluded the Symposium by reflecting that there had been agreement amongst speakers that “anything that increases options for survivors, including access to restorative options both as part of a criminal justice response, and also without requiring engagement with the criminal justice system is a good thing.” She spoke for us all when she expressed the hope that the Symposium has built and strengthened networks amongst people interested in advancing how our jurisdiction responds to sexual violence.

The Symposium complements other ongoing conversations and work around these themes that are starting to develop momentum in the present moment. Important initiatives include the work done by Open Circle in Victoria, Transformative Justice Australia, and the Thriving Survivors initiative in the UK, and the ongoing work by Project RESTORE in New Zealand continues to inspire.

The Symposium recording is available here.

Symposium on Survivor Initiated-Restorative Justice as a Pathway to Justice for Sexual Assault

27 August, 2021

Programme (with time stamps)

0:00 Welcome, Acknowledgement of Country and Housekeeping, Miranda Forsyth and Meredith Rossner, ANU

5:39 Introductory remarks, Dr. Marisa Paterson, MLA

13:57 Panel 1 - Setting the Scene
John Braithwaite (ANU), Matisse Coyle (survivor and RJU participant); Richard Denning (current head, ACT Restorative Justice Unit); Amanda Lutz (former head ACT Restorative Justice Unit), Heather Page (RJU Facilitator)
Facilitator: Miranda Forsyth (ANU)

58:05 Panel 2 - Understanding the justice needs of survivors of sexual assault and harassment
Nina Funnell (journalist and sexual assault survivor advocate); Paula McGrady (community representative affiliated with Canberra Rape Crisis Centre); Eve Walker (Post Graduate Students Association President, ANU); Sue Webeck (ACT Domestic Violence Crisis Centre)
Facilitator: Richard Denning (ACT RJU)

1:45:55 Panel 3- What could and does survivor-initiated RJ look like in practice?
Clair Berman-Robinson (Restorative justice Conferencing, Queensland); Thea Deakin-Greenwood (Transforming Justice Australia); Kendra Russell (Community Educator and Trainer, CASA House, Victoria); Estelle Zinsstag (Edinburgh Napier University; KU Leuven, Belgium, via pre-recorded interview)
Facilitator: Meredith Rossner (ANU)

2:37:52 Panel 4 - Next steps: what is needed to safely advance survivor-initiated restorative justice as a pathway, both in and out of the criminal justice system?
Shane Drumgold (ACT DPP); Detective Sergeant Michael Woodburn (AFP); Leah House (ACT Victim Support, Aboriginal & Torres Strait Islander Victim Liaison Officer); Claudia Maclean (Women’s Legal Centre ACT)
Facilitator: Amanda Lutz

3:27:50 Closing Remarks and Next Steps
Heidi Yates, ACT Victims of Crime Commissioner