Sexual Violence and Victims’ Justice Interests
by Kathleen Daly
Professor Kathleen Daly
School of Criminology and Criminal Justice
Mt Gravatt Campus
Griffith University QLD 4111
AUSTRALIA
of +61 (0)7 3735-5625
email: k.daly@griffith.edu.au
www.griffith.edu.au/professional-page/professor-kathleen-daly
Paper prepared for Estelle Zinsstag and Marie Keenan (eds.), Sexual Violence and
Restorative Justice: Legal, Social and Therapeutic Dimensions. London: Routledge
(forthcoming, 2017).
Please do not quote or cite without permission of the author.
© Kathleen Daly
23 October 2016
1
Sexual violence and victims’ justice interests
1. Introduction
The idea of using restorative justice for adult sexual violence cases was almost unthinkable
not so long ago. Beginning in about 2010, a discernible shift occurred and has been building
ever since. 1 More commentators today—academics, policy makers, community advocate
groups, judicial officers, among others—are saying that formal justice processes alone cannot
effectively handle the complexity and range of sexual violence cases. In addition, many
victims or survivors do not wish to engage formal processes and are seeking other avenues of
response. Although effective criminal law and conventional justice responses are required,
there is growing interest to develop other justice avenues for victims in the aftermath of
sexual violence. These may work alongside criminal justice (Naylor, 2010) and outside the
realm of criminal law (Powell, Flynn & Henry, 2015). The European Commission Daphne
project on restorative justice and sexual violence is indicative of this shift.
With popular, academic, government and judicial interest in the idea, we need to
consider, what’s next? For theory and research, how do we build a body of evidence that can
assess and compare justice mechanisms in responding to sexual violence? To address these
questions here, I draw mainly from research and argument on justice responses in an
individual context of sexual victimisation in developed countries at peace (an ‘A1 context’,
described below), although my research interests are not limited to this context. My starting
point is changing justice responses to sexual violence. 2 I ask, how can we assess and compare
differing responses to sexual violence from a victim’s perspective? I have in mind a wide
array of justice responses, both conventional and innovative, not solely those associated with
restorative justice.
1.1 Clarifying aims and rationale
My aim in this chapter is not to show the ways in which restorative justice (RJ) practices may
operate in individual cases, with consequences for victims, admitted offenders and relevant
others. I have written on this topic since 1994 and still do, but my conceptual frame has
shifted. Nor is my aim to consider whether RJ processes are appropriate for sexual violence;
this too has been a longstanding concern. Today, I assume that if an RJ process adopts good
1
Evidence for this claim can be supplied on request to the author.
I define sexual violence broadly to include other related offences of assault, kidnapping and torture. In other
non-A1 victimisation contexts, it is part of a broader regime of fear and control.
2
2
practice protocols, i.e. they are modified to address the dynamics of gender violence, the
question of appropriateness is moot. Yes, of course, RJ is appropriate for sexual violence; and
as this volume shows, researchers and practitioners have developed (and are developing)
effective protocols and practices (see also Mercer, Madsen, Keenan & Zinsstag, 2015).
Researchers have different starting points in assessing the relationship of restorative
justice and sexual violence. Some start with restorative justice, asking what it offers victims
(and perhaps others). Others start with sexual violence, asking what justice responses are
optimal from a victim’s perspective. Both approaches are important. However, because the
first question is the focus of this edited collection, I have been asked to explain my reasons
for pursuing the second.
My focus here is on assessing and comparing different justice mechanisms in
responding to sexual violence and violent victimisation more generally. 3 To do that, a
perspective on justice processes is required, and the perspective I develop here and apply
empirically in chapter 7, is a victim’s perspective. As that chapter will show, a victim’s
perspective is not narrow or self-centred, but widens to embrace others in a justice activity,
including admitted offenders, supporters of victims and offenders, and a wider societal view
on the wrong and harm of sexual violence.
I should clarify my definition of restorative justice because it too is a subject of
contention and confusion. Restorative justice is a justice mechanism, not a type of justice
(Daly, 2016). It is a meeting (or set of meetings) of people; thus, it falls within an encounter
or process conception of RJ, not an outcome conception. We might expect that desired
outcomes will vary by the context and purpose of a meeting; thus, they should not be
restricted to repairing harms or restoring relationships. I agree with Shapland (2014: 122-123)
that there needs to be an ‘explicit recognition’ of differing ‘restorative justice processes in
different contexts’. However, I do not bound RJ processes by values (as Shapland does), but
rather by rules and procedures that should govern any legitimate justice mechanism. In any
event, RJ scholars have produced many different lists of values or principles—another
significant source of variation—and a topic for another day.
To advance the evidence base and demonstrate the potential of innovative justice
mechanisms (restorative justice being just one), we need to do the following:
3
I have developed my arguments with reference to sexual and other forms of violent victimisation, but the
arguments can be generalised to other offences.
3
•
Go beyond satisfaction as the sole measure of victims’ experiences and judgments of
justice, and of re-offending as the sole measure of change in offenders’ behaviours.
•
Assess and compare the strengths and limits of different justice mechanisms in a
systematic manner.
To realise these goals, I developed the Victimisation and Justice Model, which has three
components: contexts of victimisation, justice mechanisms and victims’ justice interests. In
previous work, I described and applied the model (Daly, 2014a, 2014b) and analysed contexts
(Daly, 2015) and mechanisms (Daly, 2011). Here I focus on victims’ justice interests.
Responses to sexual violence must also have in mind change-oriented treatment
programs for offenders, which work alongside justice mechanisms, whatever form they take.
My research on conference and court responses to youth sex offending in South Australia
finds that both responses relied on the Mary Street Adolescent Sexual Abuse Prevention
Programme (Daly, 2006; Daly, Bouhours, Broadhurst & Loh, 2013). Programs like these give
police and court authorities some confidence that official responses to youth sex offending do
not require increased criminalisation or the segregation of youth in detention. 4 Importantly,
they also encourage admissions to offending (only when it has occurred, of course), an
important first step in breaking patterns of denial or minimisation of offending, which in time
may shift to taking active responsibility for offending. For conferences to be more widely
used for adult sexual violence, not just for a small number of cases, it is imperative that
effective programs for offenders are in place and accessible.
2. How to compare justice mechanisms?
The need to identify a way to assess and compare different justice mechanisms became clear
to me when I reflected on Annie Cossins’ critique of my research, which compared the court
and conference handling of youth sex offences (Daly, 2006; Daly & Curtis-Fawley, 2006).
She said that I did not have sufficient evidence to show that conferences were better than
court, from a victim’s perspective (Cossins, 2008). In turn, I said that she did not have
sufficient evidence that court was better than conferences, from a victim’s perspective (Daly,
2008). We were talking past one another. Would it be possible, I wondered, to establish a set
of criteria that could adjudicate research findings and debate on the efficacy of different
justice responses to sexual violence? I reasoned that what was required was a systematic way
4
Other programs for intra-familial sexual offending (e.g. Adriaenssens, 2014 for Belgium) give family members
confidence that such behaviour can be addressed without necessarily reporting it to the police or breaking up
families and social bonds.
4
to assess the efficacy of any one justice mechanism and to compare the efficacy of two or
more justice mechanisms.
This led to more questions. Which contexts of sexual victimisation should be
examined? What exactly is to be assessed and compared? What are optimal measures of
‘efficacy’? What outcomes are expected or desired? These are pressing questions when we
know that large datasets, field experiments, or meta-reviews that attempt to compare justice
responses to sexual violence are rare. Except for studies of youth sexual offending or postsentence conferences, the situation is unlikely to change in the foreseeable future. Therefore,
the methods of conducting research must be artful, imaginative and innovative.
Answering the questions above:
1. All contexts of victimisation should be considered.
2. Justice mechanisms should be assessed and compared, not ‘types of justice’ such
as restorative justice and conventional justice.
3. Measures of efficacy should not focus on measures of satisfaction alone, but
assessed against the construct of ‘victims’ justice interests’.
4. The desired or expected outcomes should be victims’ reasonable expectations as
citizens seeking justice in the aftermath of crime.
2.1 Differentiating justice and therapeutic (‘healing’) outcomes
Items 1, 2 and 3 above are the components of the Victimisation and Justice Model, which I
will consider shortly. Here I clarify item 4 on outcomes. I believe that researchers have
placed too much emphasis on achieving therapeutic outcomes for victims, as the sole or
primary aim of a justice activity. For example, they may ask whether a justice mechanism
achieves closure, recovery, healing, reduced symptoms of PTSD and other related outcomes.
This approach centres on the mental and physical consequences of justice mechanisms, 5 not
the prior moral and political matters of what victims as citizens (Holder, 2013) should expect
in seeking justice. These expectations I call victims’ justice interests. If one (or more) of
these interests is achieved, a victim’s sense of well-being may be affected. However, we
should not focus on a victim’s well-being alone as a justice objective. Daems (2009) refers to
this as ‘therapeutic consequentialism’, in which the metaphor of ‘healing victims’ has ceased
to be a metaphor and is now an expected outcome for victims engaged in criminal justice.
5
Others have made a similar point (e.g. Stover, 2005: 11).
5
Pemberton and Vanfraechem (2015: 28) make a stronger point when they critique ‘a repeated
tendency [of justice advocates] to manufacture exaggerated and therapeutic sounding claims
on the basis of … research that does not and cannot support the far-reaching conclusion’. I
suggest we give primary attention to justice interests and then observe what the potential
impact may be on measures of well-being. At a minimum, victims’ justice interests and
victims’ well-being should be viewed as separate dimensions.
3. Victimisation and justice model: contexts and mechanisms
This section sketches two legs of the model (contexts of victimisation and justice
mechanisms), and section 4 gives sustained attention to victims’ justice interests.
3.1 Contexts of victimisation
The contexts of victimisation are conceptualised by the Sexual Violence and Justice Matrix,
which depicts a broad sweep of places, positions and relationships of victimisation. It arrays
country contexts (developed, developing, at peace, in conflict or post-conflict) and offendingvictimisation contexts of violence (Appendix 1). 6 The country categories reflect differing
legal, economic and political capacities to respond to sexual victimisation, 7 along with
differences in social organisation and cohesion for countries in conflict or relative peace. The
offending-victimisation contexts are individual (row 1); organisational-occupational, i.e. a
person using a position of organisational or occupational power in a community-based setting
(row 2); institutional, i.e. a person using a position of power in a closed institution (this
context also includes peer relations) (row 3); victimisation in a symbolically closed
community such as geographically remote communities or segregated urban enclaves, based
on race-ethnicity, nation or religion (row 4); and collective, i.e. by loosely organised gangs or
by state and quasi-state combatants (row 5).
Each matrix cell has different relations of victimisation and offending, social and
place locations, and country contexts. The ubiquity and variability of sexual violence is such
that we should not expect a two-dimensional matrix to accurately map all forms and contexts
of sexual victimisation and offending that occur (or have occurred) in human society. My aim
is to name and organise what is known from research in different contexts of victimisation
and offending—in families, workplaces, closed institutions, war zones—in a compact way.
6
This is an abbreviated form of the matrix, showing less detail than in Daly (2014a).
The matrix is applicable to violent and other forms of victimisation, but created from the literature on sexual
violence.
7
6
With the matrix as an organising tool, we can gather and synthesise research on sexual
victimisation, the problems victims face in seeking justice, available justice mechanisms and
victims’ experiences with them, with reference to each cell in the matrix. In addition, the
many and varied cells in the matrix encourage reflection and analysis of victimisation and
justice in a comparative manner.
3.2 Justice mechanisms
A justice mechanism is a justice response, process, activity, measure or practice—all of these
terms could be used interchangeably. ‘Justice mechanism’ is the term of choice for transitional
justice scholars, who assess and compare a variety of justice mechanisms in transitions from
repressive state regimes and civil war toward more democratic rule and peace. Drawing from
Backer (2009: Appendix Table A2.1) and Olsen, Payne & Reiter (2010: 31), these include
criminal prosecution; lustration, bans and purges; reparations (financial, employment,
symbolic); investigations (truth commissions or independent inquiries); institutional reform;
immunity (amnesties and pardons) and memory projects. The value of the term is that distinct
and multiple mechanisms are used by countries in transition, and these can be assessed (alone
or with other mechanisms) to determine what is effective, using a cross-national comparative
method.
Empirical research on mechanisms in A1 contexts (the cell for which most research is
carried out today) 8 can learn and benefit from this method of assessing and comparing justice
mechanisms. I focus my discussion next on A country contexts and criminal justice
mechanisms, but it is important to also have in mind civil and administrative justice
mechanisms.
Justice mechanisms reside on a continuum from conventional to innovative. These are
umbrella terms that hold a variety of justice mechanisms: they are not types of justice, nor are
they mutually exclusive. In other words, differing mechanisms (conventional and innovative)
can be used in one case (Daly, 2011, 2015). Conventional mechanisms are standard approaches
to criminal prosecution, trial, sentencing and post-sentence; they also include modes of victim
participation in a legal process (for example, victim impact statements). Specialist courts for
domestic or sexual violence may be conventional or a conventional-innovative hybrid,
8
Some forms of victimisation such as partner violence and intra-familial sexual violence may be better placed in
A4, i.e. within the symbolically closed community of ‘the family’.
7
depending upon how they operate. 9 Innovative mechanisms do not rely solely on the standard
tool kit of criminal procedure or justice practices, or those wedded to legal processes alone.
They permit greater participation and interaction of the relevant parties. The processes are often
more informal, although structured by rules and procedures.
Restorative justice is a justice mechanism, not a type of justice (Daly, 2016). Typical
practices are conferences, victim-offender mediation and victim-offender dialogues.
Restorative justice mechanisms are one of many justice mechanisms under the innovative
justice umbrella. Others include contemporary Indigenous justice practices, circles of support
and accountability, a variety of informal (non-state) justice mechanisms, truth telling or truth
seeking mechanisms, cultural performance, days of remembrance and other art and activist
projects in civil society. Innovative justice mechanisms may work alongside of or be integrated
with conventional criminal justice or operate in civil society. When part of criminal justice, the
process is set in motion only after admissions to offending. 10
4. Victims’ justice interests
The third leg of the model is the construct of victims’ justice interests, a term akin to victims’
visions of justice (Herman, 2005), sense of justice (Jülich, 2006; Jülich, Buttle, Cummins &
Freeborn, 2010) and justice needs (Clark, 2010, 2015; Koss, 2006, 2010). All the foregoing
scholars have sexual victimisation in mind and have identified these elements from
interviews with victims or the research literature. All have assumed an individual context of
sexual victimisation in developed countries at peace (A1). By comparison, others have
analysed institutional contexts in developed countries at peace (A3) (Daly, 2014b); 11 and still
others, collective contexts in countries in conflict or in post-conflict transitions (C5) (Backer,
2004; Henry, 2009). 12 Drawing on these and other sources, I identified a parsimonious set of
victims’ interests: participation, voice, validation, vindication, and offender accountability9
Problem-oriented courts (such as drug courts) are closer to conventional mechanisms, although they assume
new roles for participants, especially judicial officers; thus, they may be considered innovative in some respects.
A conventional mechanism that can be innovative or a hybrid, depending on actual practices, is victim
advocacy. I do not wish the terms conventional and innovative justice to suffer the same fate as the false
juxtaposition of retributive and restorative justice, specifically, the inference that one is the ‘bad’ justice and the
other, the‘good’ justice, respectively. The precise classification of justice practices—as conventional, innovative
or a hybrid—is less important than the actual workings of the justice mechanisms themselves in specific
contexts of victimisation (Daly, 2016).
10
In New Zealand’s Project Restore, community referrals to adult conferences (as compared to court referrals)
require an offender to acknowledge ‘the incident to an acceptable degree’ (Jülich et al., 2010: 75).
11
Keenan (2014) interviewed individuals (or their family members) who were victimised in A1, A2 and A3
contexts.
12
In C country contexts, the list of justice interests expands to include redistribution of land or other incomeproducing assets, along with reform of a country’s legal and political institutions.
8
taking responsibility. 13 In defining each, I give greater attention to the three latter elements
because they are variably understood by researchers. I give brief examples here of how each
element can be operationalised, but a more comprehensive empirical application is given in
Daly & Wade (chapter 7, this volume). To clarify the construct of victims’ justice interests, I
next consider my choice of terms.
4.1 Justice needs and survival needs
With A1 contexts in mind, Koss (2010: 221) suggests that victims have ‘two major categories
of needs: survival needs and justice needs’. Survival needs are for ‘safety; physical health;
economic [security], including housing and employment, education, or retraining; and
[addressing] immigration problems’. If survivors cannot live and make decisions in a secure
state of body and mind, seeking justice will come after survival needs are met. 14 Although
survival and justice needs are important, the two need to be distinguished, if we wish to
assess and compare different justice mechanisms.
4.2 Justice needs or interests?
When I began work on the construct, I used the term victims’ justice needs because it was the
term others were using. However, I have come to see that a better term is victims’ justice
interests. Bennett (2007: 248) argues that the empirical basis of ‘victims’ “needs”’ leads to a
‘consumerist approach’, which is not satisfactory in his view. He proposes instead a ‘moral
basis’ for what ‘victims can reasonably expect from offenders … and from the state’ (p. 248).
He identifies ‘what is owed’ to a victim in righting a wrong (p. 247) and what victims ‘rightly
feel entitled to in the wake of an offence’ (p. 261). Holder (2013) argues for analysing
victims’ justice interests as citizens. Drawing on interviews of victims who called the police,
Holder shows that their justice interests were not only for themselves, but for offenders and
the wider society. I use the term ‘interests’ to signal a political relationship that victims, as
13
In previous work, I called this element ‘offender accountability’, but I have since revised it to include a
second dimension of an offender’s ‘taking responsibility’ and to remove any association with censure or
sanction. The term ‘offender’, used precisely, means that a person has admitted to an offence or been convicted
of it; and it is important to distinguish an offender from an alleged perpetrator or wrong-doer. However, for
‘accountability-taking responsibility’, this is more difficult because the processes of accountability involve
asking questions of suspects, accused or alleged perpetrators, or admitted offenders. For this reason, it is not
possible to be precise every time the term is used.
14
This is well documented in C country contexts, where survival needs are a dominant focus for survivors
(Robins, 2011).
9
citizens, have in pursuing justice in the aftermath of crime (see also Pemberton and
Vanfraechem, 2015: 36-37).
4.3 Which justice interests?
Researchers have identified a variety of justice elements from a victim’s perspective, but they
have done so in a vacuum, seemingly unaware of the work of others. 15 Appendix 2 orders the
body of work by year of publication. 16 Each entry lists the author(s), terms used and the
element(s) identified. With one exception (Bennett, 2007), the source of authority for
identifying the elements is empirical, i.e. drawn from interviews or inferred from the extant
research literature. The appendix provides a sampling of the literature and is not meant to be
exhaustive. 17 For each entry, I list and quote the elements in the same order as the author(s).
Several observations can be drawn from it and the wider literature. First, the named
set of justice elements varies, but some elements do recur, even if different words are used.
Second, there are differing definitions (or meanings) for some elements; and this is especially
the case for acknowledgment, validation, vindication and accountability. At times, validation
is embedded within vindication (Zehr, 1990), or vindication is embedded within an analysis
of validation (Clark, 2010, 2015). Acknowledgment may refer to validation, vindication or
both. I shall clarify the definition and interpretation of these elements with the objective of
bringing greater precision to the field. Next, just four of the entries explicitly defined one or
more justice elements (Backer, 2004; Bennett, 2007; Law Commission of Canada, 2000;
Strang, 2002). Although four gave examples of what people said (Choi, Green & Kapp, 2010;
Clark, 2010, 2015; Herman, 2005; Jülich et al., 2010, an explicit definition of elements was
not typical. Of the 14 entries, five applied the elements to one or more justice mechanisms.
Ordered by entry number in Appendix 2, Strang (2002) applied her justice elements to
victims’ experiences of two mechanisms (court and a diversionary conference after an
offender’s admission); Backer (2004), to survivors’ judgments of one mechanism (South
Africa’s Truth and Reconciliation Commission); Choi et al. (2010), to one mechanism
(victim-offender mediation, diversionary after an offender’s admission); Godden (2013), to
15
Herman’s publications (1997, 2005) are often cited by others, however. I first used the term in Daly (2011),
relying on the work of Herman (2005) and Koss (2006).
16
Several 2010 publications were ordered based on whether the author had been developing the idea in earlier
work and then, alphabetically.
17
For example, I do not include Toews’s (2006) set of ‘universal’ justice needs and its application by Bolitho
(2015) because it was developed from research on adult prisoners; furthermore, I am doubtful that such needs
can be ‘universal’ (i.e. the same) for victims and offenders unless they are pitched at an abstract level.
10
three mechanisms (criminal prosecution, civil litigation and restorative justice); and Wager
(2013) to one mechanism (restorative justice meetings).
Some identified elements are not germane for my purposes. These include ‘support
and safety’ or to ‘feel safe’ (which, in my framework, is a survival need more than a justice
interest) 18 and ‘access to counselling and education and training’ (which, in my framework, is
a coping or rehabilitation need). Some elements concern procedures (‘receive a response with
minimal delay’) or outcomes (‘reparation’, ‘retribution’, ‘material restoration’, ‘emotional
restoration and an apology’) that are relevant, but would have been better conceptualised and
operationalised as part of a more encompassing element. Wager’s (2013) attempt to combine
victims’ justice needs (drawing from Herman, 2005) and healing needs (drawing from
Draucker et al., 2009) results in confused blend, and reinforces my earlier point that justice
needs (or interests) and well-being should be assessed as separate dimensions.
5. Defining victims’ justice interests
The five elements of victims’ justice interests—participation, voice, validation, vindication,
and offender accountability-taking responsibility—are sufficiently broad to be
operationalised with different items, depending on the victimisation context. Thus, it is useful
to put forward a generic definition for each element; and if required, modify it to accord with
what occurs in a particular context. In one study, for example, I modified participation and
voice to assess non-criminal justice mechanisms in response to historical institutional abuse
of children (Daly, 2014b). In what follows, however, my discussion of validation,
vindication, and offender accountability-taking responsibility assumes criminal justice
mechanisms.
5.1 Participation
The generic definition of participation is as follows: being informed of the options and
developments in a case, including the different types of justice mechanisms available; the
ability to address offending and victimisation in meetings with admitted offenders and others;
and the ability to ask questions and receive information about crimes (e.g. the location of
bodies or the motivations for an admitted offender’s actions). 19
18
However, victim safety may result from offender accountability-taking responsibility.
Such questions include whether victims were specifically targeted or the circumstances of death and injury.
This differs from asking alleged or admitted offenders to explain what they did and why, i.e. interactions that
seek ‘to hold an offender accountable’.
19
11
This definition is relevant to victims’ interests in a criminal justice process, but I
needed to modify it when analysing other justice mechanisms for historical institutional abuse
such as redress schemes, civil litigation and public inquiries (Daly, 2014b: 118-119). In the
modified definition, I added ‘active participation in shaping the elements of redress, including
optimal modes of implementation; being informed of negotiations and having a say (or vote)
in ratifying a redress scheme (or settlement agreement); and understanding how the process
works’. By comparison to their participation in criminal justice (Edwards, 2004), victims can
have a stronger role in shaping decisions and outcomes in non-criminal justice mechanisms.
Ordered by entry number in Appendix 2, participation is identified as a justice element in
Zehr (1990), Strang (2002), Henry (2009), Koss (2010), Clark (2010, as ‘information’ and
‘control’) and Keenan (2014). Among the items we use to operationalise participation are
these: was the victim (or victim representative) asked what legal process they desired, and
could they ask all their questions? (Daly & Wade, 2017).
5.2 Voice
The generic definition of voice is as follows: telling the story of what happened and its
impact in a significant setting, where a victim-survivor can receive public recognition and
acknowledgement. Voice is also termed truth-telling and can be related to participation in
having a speaking or other type of physical presence in a justice process.
Voice or the ability to tell one’s story is the most frequently mentioned justice
element. Ordered by entry number in Appendix 2, ten of the 14 entries identified voice (Zehr,
1990; Strang, 2002 [discussed in her first element]; Backer, 2004; Henry, 2009; Jülich et al.,
2010; Koss, 2010; Choi et al., 2010; Clark, 2010; Goddens, 2013; Keenan, 2014). In research
on the trial process, scholars have critiqued the manner in which ‘truth’ is elicited from
victim-witnesses, with a question-and-answer format that does not permit victims to explain
what happened and its impact in their own words. 20 Among the items we use to
operationalise voice are these: was the victim able to tell their story and to say everything
they wanted to say? (Daly & Wade, 2017).
20
To be relevant to historical institutional abuse, the voice element can be modified this way: ‘voice can be
present in a range of texts and formats, but may be variably preserved and accessible’ (Daly, 2014b: 162). This
aspect of voice is captured by the element ‘establishing an historical record; remembrance’, which was
identified by the Law Commission of Canada (2000: 75-80).
12
5.3 Validation
The generic definition of validation is as follows: affirming that the victim is believed (i.e.
acknowledging that offending occurred and the victim was harmed) and is not blamed for
what happened. It reflects a victim’s desire to be believed and to shift the weight of
accusation from their shoulders to others (family members, a wider social group or legal
officials).
Four sets of words invite discussion: ‘acknowledging’, ‘victim was harmed’, ‘victim
not blamed’ and ‘shift the weight of accusation’. The term acknowledgment appears in
several entries in Appendix 2, but it is sometimes difficult to know what, precisely, analysts
are referring to. For example, in the Law Commission of Canada’s (2000: 80-83) definition
of acknowledgment, its meaning shades into vindication. A clear definition comes from a
survey item by Backer (2004: 216): ‘I am satisfied that what happened to me (or my family
member) has been recognized by society’. Thus, recognition and acknowledgment have a
shared meaning with validation, as long as attention is paid to validating what a victim said
happened and the harm it caused. The repeated phrase given by victim-survivors is being
believed (Clark, 2010).
Herman (2005: 585) defines validation as ‘an acknowledgment of the basic facts of
the crime and an acknowledgment of harm’. Here, I interpret acknowledgment to mean that
others (for example, a victim’s family members or friends and legal officials) are saying, ‘I
agree with the victim’s version of what happened and its impact’. Harm refers to the
consequences of an offence for a victim (or others) such as hurt, injury or loss; and in a
criminal justice response, it can be distinguished from the ‘wrongfulness of those harms’
(Duff, 2011: 71, emphasis added). Godden (2013: 58-63) gives careful consideration to the
‘core’, ‘consequential’ and ‘material’ ‘harms of rape’, as well as legal responses to rape that
are harmful, to identify what aspects of justice are important to victims. ‘Victim not blamed’
refers to a complex set of movements from potential victim self-blame or others blaming the
victim to assurances by others that the victim is not to blame.
‘Shifting the weight of accusation’ means that others (e.g. a victim’s family members
or friends and legal officials) have come to side with the victim’s account of what happened
and its impact. This accords with Herman’s (2005: 585) observation that the ‘validation of
so-called bystanders was of equal or greater importance’ than an offender’s ‘confession’ (see
also Jülich, 2006: 129-131; Keenan, 2014: 64). Among the items we use to operationalise
validation are these: was there an acknowledgement by legal authorities and/or others that the
13
offence was serious, was there a discussion of the harms, and was any victim self-blame or
blame by others checked or challenged? (Daly & Wade, 2017).
5.4 Vindication
The generic definition of vindication has two components: vindication of the law (affirming
the act was wrong, morally and legally) and vindication of the victim (affirming this
perpetrator’s actions against this victim were wrong). It requires that others (family
members, a wider social group, legal officials) do something to show that an act (or actions)
was wrong by, for example, censuring the offence and affirming their solidarity with the
victim. It can be expressed by symbolic and material forms of reparation (e.g. apologies,
memorialisation, monetary payments or financial assistance to victims) and standard forms of
state punishment.
Herman (2005: 585) defines vindication as ‘communities [taking] a clear and
unequivocal stand in condemnation of the offense. [Such] denunciation … affirm[s] the
solidarity of the community with the victim and transfer[s] the burden of disgrace from
victim to offender’. Conviction at trial ‘condemns [a person’s] criminal action and censures
him as its agent’ (Duff, 2011: 77); thus, a criminal conviction is vindication. 21 Bennett (2007:
261) does not discuss denunciation of an offence or the censuring of an offender. Instead, he
outlines what an offender should do to ‘repent’ a wrong, which is ‘retracting it through an
apology’ and making ‘proportionate amends’; and what a polity22 should do to ensure that
this occurs.
My definition of vindication includes public condemnation and censure (of the act as
wrong and of the offender’s acts against a victim as wrong, respectively) and actions
prescribed by a polity for an offender to make up for the wrong. Thus, a sentence or penalty
imposed is vindication. However, what an offender actually does to ‘make up’ for the wrong
I place within the second part of the element of ‘offender accountability-taking
responsibility’. It is important, I believe, to distinguish a polity’s actions in censuring an
offender and prescribing what an offender should do to ‘make up’ for it (vindication) and
what an offender actually does (taking responsibility), after having admitted to or been
21
Duff (2011: 77) argues, in addition, that conviction ‘is also a kind of punishment’ and in fact ‘a pure kind of
punishment’ because ‘condemnation by one’s fellow citizens is intended to be particularly burdensome …’
22
I use the term ‘polity’ (following Duff, 2011) rather than community because it conveys the meaning of what
‘we’ should consider or are required to do in responding to crime, both as fellow citizens and legal authorities.
14
convicted of an offence. In research on sexual violence, for example, 23 survivors speak of the
failure of legal accountability when convicted or sentenced offenders do not take full
responsibility for their behaviour (Clark, 2015: 24-27).
Duff (2011: 79) distinguishes ‘reparation for the harm caused’, a common expression
used in the restorative justice literature, and ‘moral reparation for the wrong that was done’.
He has pointed out for some time that restorative justice advocates may forget that a crime is
a ‘public wrong [that] requires a public response’ (Duff, 2011: 74). 24 A problem with some
restorative justice mechanisms, such as diversionary conferences for youth, is that although
they are a part of a criminal process, they are diverted to a private activity, where the full
expression of public condemnation and censure cannot occur. Further, by focusing on harms
or repairing harms alone, not on both harms and wrongs, condemnation and censure may be
softened or reduced, and a polity’s prescribed activities may be inadequate. It is beyond the
scope of this paper to consider justice in private, public and hybrid settings. If the elements of
victims’ justice interests are operationalised well, it should be possible to assess and compare
justice mechanisms in a range of settings.
Duff (2011) also suggests that an apology may be all that is required for moral
reparation; but if a wrong is more serious, an apology must ‘take more than a merely verbal
form’. 25 Specifically, an offender must undertake a ‘burdensome task’, which gives ‘material
form and [thus] greater moral force, to that apology’, although offenders may not be
apologetic nor express ‘a genuinely repentant recognition of the wrong they have done’
(Duff, 2011: 79). 26 Among the items we use to operationalise vindication are these: was the
act said to be legally wrong or morally wrong, was the act minimised, was the alleged wrongdoer convicted, and was the imposed or agreed outcome tied to the wrongfulness of the act?
(Daly & Wade, 2017).
23
This phenomenon is relevant to other offences.
Duff (2011: 73-74) notes instances when informal processes are appropriate in responding to ‘conflict’.
25
By ‘moral reparation’, Duff (2011: 79) means ‘making up’ for the wrong by ‘repentant recognition’, or if the
offence is considered to be more serious, by undertaking an additional burdensome task. These actions form part
of the ‘communicative dimension of punishment’ (Duff, 2011: 79).
26
Duff (2011: 79, emphasis added) draws a startling conclusion to his argument when he says that ‘criminal
punishment is … a species of required apology: the offender is required to go through the motions of apology,
even if he does not mean it’. Duff’s analysis focuses on calling and holding alleged wrong-doers to account and
on the meaning and purpose of punishment, but he does not explicitly discuss the relationship of accountability
to punishment and vindication.
24
15
5.5 Offender accountability-taking responsibility27
My definition of this element has evolved from earlier work (Daly, 2014a, 2014b). Drawing
from Duff (2011), I now distinguish two aspects of accountability: calling alleged wrongdoers to account and holding them to account.
Further, I clarify the relationship between vindication and accountability, which was
not clear in my earlier work. I distinguish the identified set of tasks for an offender to
undertake to vindicate a victim and the polity, which is prescribed by a polity or agreed to by
an offender (part of the vindication element), from how or whether those tasks are carried
out by an offender (taking responsibility). Arguably, both the ‘what’ and the ‘how’ of
vindication by an offender to a victim and the polity could be contained within the
vindication element, as philosophers Bennett (2007) and Duff (2011) might propose.
However, by separating them, we may assess what an admitted offender actually did (or did
not do) to ‘make up’ for the offending, i.e. the degree to which they took active responsibility
for it. 28 Furthermore, it accords with what we know from studies of sexual violence victims:
although individuals may be found guilty in a court, ‘they were … not forced to take
responsibility for their behaviour by the system’ (Clark, 2015: 25). ‘Taking responsibility’
should begin to emerge, at least in theory, in the process of ‘holding alleged offenders
accountable’. 29 However, this typically does not occur. Thus, we look to indications that a
person has been ‘held accountable’ after the fact (i.e. post admission, conviction or
sentence). 30 The indications we expect to see, at least ideally, are that an offender is taking
responsibility.
My revised definition of accountability-taking responsibility is as follows: requiring
that alleged perpetrators are called to account and held to account for their actions; and if
admitting to or convicted for offences, expecting that they will take active responsibility for
their wrongful behaviour, by for example, sincere apologies or expressions of remorse and
completing prescribed justice requirements.
27
See fn. 13 on using the term ‘offender’.
This aspect is not developed by Duff or Bennett.
29
Of course, this point is relevant only if questions to and answers by alleged wrong-doers lead to the
conclusion that they were responsible for an offence.
30
Other scenarios are possible. For example, post-plea or conviction, but pre-sentence, an offender can engage
in an intensive counselling program that demonstrates ‘taking responsibility’. This may also occur without an
offence being reported to the police. Furthermore, indications of accountability or taking responsibility are
dynamic and may vary over time.
28
16
For calling and holding to account, Duff (2011: 73) suggests that responses to wrongs
should be addressed ‘by tackling, or trying to tackle the person(s) who wronged’ the victim. 31
This occurs in a series of steps. First, alleged perpetrators are called to account. This occurs
when victims report offences to the police or when the police discover offences. Then,
second, it occurs when police investigate offences and when prosecutors bring charges
against suspects. Third, alleged perpetrators are then held to account for what they did. This
occurs when they are asked and expected to answer questions by authorities. 32 In Duff’s
(2011: 76) view, the criminal trial ‘constitutes the kind of calling to account that … criminal
wrongdoing requires’. Backer (2004: 216) operationalises accountability with two survey
items (negative and positive, respectively): ‘The person who committed the violation against
me (or my family member) has not been called to account for his/her actions’ and ‘I am
satisfied that the person(s) who committed the violation against me (or my family member)
has explained why they committed the act’.
In reality, ‘calling to account’ and ‘holding to account’ occur in complex interactions
between authorities and victims, and between authorities and alleged wrong-doers. For
example, a person may report to the police that they were sexually victimised, but the police
may have insufficient evidence to charge, believe the person reporting the offence lacks
credibility, or cannot locate a suspect. It is infrequent that alleged wrong-doers are ‘held to
account’ with questions by authorities at trial. More commonly, they plead guilty, perhaps to
less legally serious offences, and give no explanation for their actions and perhaps minimise
what they have done. In diversionary youth justice conferences, there are incentives to make
admissions early to avoid a court process and an official criminal conviction. However, as
Hayes (2006) observes, during the conference itself, there are ‘competing demands’ on youth
when they are asked to both explain what they did and apologise for it. They ‘may drift from
apologetic discourse to mitigating accounts and back again’ (Hayes, 2006: 378, emphasis in
original). The real world of interactions between authorities, victims and alleged wrong-doers
is some distance from the normative arguments of philosophers. In assessing accountability,
then, among the questions we ask are these: was an individual charged, did they make early
admissions, did they cooperate with authorities, were they asked to explain what happened,
31
Duff does not explain why he chose the word ‘tackle’. Its connotation of a physical pinning down of an
alleged wrong-doer is somewhat jarring.
32
However, alleged (or admitted) offenders may be ‘held to account’ in counselling or therapeutic programs
(discussed below) or in conferences when participants ask offenders questions.
17
did they have an opportunity to give an explanation, and did they answer questions about the
offence? (Daly & Wade, 2017).
After an individual is called and held to account, 33 they may (or may not) plead
guilty, be convicted on one more charges, or be acquitted of all charges. Following Duff
(2011), a criminal conviction is public condemnation of an act and a censuring of an
offender’s actions; thus, it is properly within the vindication element. Likewise, the
identification of what an offender should do to ‘make up’ for the wrong falls within the
vindication element. Thus, for example, offenders ‘owe [a victim] an apology’, and they may
be required to do more than this by undertaking a burdensome task or sanction (Duff, 2011:
79). What happens, then, if offenders do not apologise or carry out the task? They may again
be ‘called to account’ for failing to carry out what the polity prescribed.
However, if they apologise sincerely and carry out a burdensome task (if required),
we may now say they are ‘taking responsibility’ for their wrong-doing, or as Duff (2011: 79)
suggests, they ‘own the wrong’. 34 In addition to giving a sincere apology and completing a
prescribed task, there may be other indicators of ‘owning the wrong’ such as expressions of
remorse.
Although an apology may be ‘central to moral reparation’ (Duff, 2011: 79), my
research on diversionary youth conferences (Daly, 2003, 2006) and Choi et al.’s (2010) on
youth victim-offender mediation shows that sincere apologies are difficult to achieve. In
addition, Herman (2005: 586) finds that although the victims she interviewed were
‘unanimous in their desire for validation and vindication, they were roughly evenly divided
on the question of apology’. While ‘some expressed a fervent wish for a sincere apology’,
only five of the 22 she interviewed ‘actually received what they considered a genuine and
satisfactory apology’. It is important, then to assess the quality of an apology, not just
whether an offender ‘gave an apology’ in the abstract. ‘Making up’ for harms and wrongs not
only requires a proportionate alignment between them and a prescribed sanction (part of the
vindication element, using a retributivist justification), but also an assessment of what an
offender actually did (i.e. taking responsibility). Thus, among the items we ask for taking
responsibility are these: did an offender say that what they did was wrong, did they apologise
33
The actual sequencing of ‘holding to account’ with other legal and non-legal (counselling or therapeutic)
processes can be expected to vary by the case and change over time.
34
Duff (2001: 111, 123) suggests, however, that some offenders may not be ‘active participants in their own
punishments’; when this occurs, they are engaged in ‘apologetic ritual’, rather than an ‘appropriately reparative
apology’.
18
to a victim, was their apology viewed as sincere, did they give expressions of regret or
remorse, and did they complete all parts of the sanction? (Daly & Wade, 2017).
6. Accountability: toward clarification
In both popular and academic usage, accountability is used in many ways. My focus is on
alleged or admitted offender accountability, not other types (see Shapland, Robinson &
Sorsby, 2011: 84-85 for ‘multiple accountabilities’ in restorative justice). I give examples
from several authors to demonstrate varied understandings of, and at times confusion
surrounding, the term accountability and its relationship to vindication and punishment. My
analysis is illustrative. Far more could be said about the meanings and interpretations of
offender accountability.
To situate my analysis, I first consider the relationship of punishment to vindication
and accountability. As commonly understood, there are two broad types of punishment
theories. One, retributivism, is concerned with punishing (‘making up’ for) past crime in
proportion to the wrong against society and the harm caused; it is associated with retribution.
The second, consequentialism (or utilitarianism), is concerned with preventing future crime;
it is associated with deterrence, rehabilitation and incapacitation, whose punishment aims are
to reform offenders or protect society. My analysis draws from (and is sympathetic to) the
ideas of Duff and Bennett, both of whom use retributivist arguments as their normative
starting point. 35 Of course, what is said in imposing a sentence or deciding a conference
agreement may combine punishment theories. Furthermore, we would expect that over a
longer period of time in a ‘justice response’, what is said will oscillate between
accountability, vindication and imposed punishment. However, conceptually, I can declare a
relationship of punishment to vindication and accountability. It is this: punishment is one
component of vindicating the crime and the victim; it is not a component of accountability. 36
As my following review will show, analysts sometimes use these terms in ways that I believe
are accurate; but at other times, the terms are used inaccurately.
Herman (2005: 589) asked victim-survivors ‘what they thought should be done to
hold their perpetrators accountable and to envision what they would consider a just
disposition’. She found that most were ‘not interested to see their perpetrators suffer’ and nor
35
However, Duff (2011: 78) argues that punishment, based on retributivism, is ‘not purely backward looking
[because] to censure someone for their past conduct is also to say both that they should take care to reform their
future conduct to avoid such wrongdoing, and that they should make some suitable reparation to those whom
they wronged’.
36
My earlier definition of offender accountability (Daly, 2014a: 388) said that it included ‘receiving censure and
sanction that may vindicate the law and the victim’, but I have since removed this association.
19
were ‘they interested in reconciliation or forgiveness’ (p. 591). She says that ‘rather than
retribution or reconciliation, the goal most frequently sought … was exposure of the
perpetrator’ (p. 593). Here, I infer that ‘exposure’ combines some aspects of calling or
holding an individual to account. For example, some victims said they wanted family and
community members ‘to see through the perpetrator’s deceptions and lies’ or to see the
person ‘embarrassed [because] … he was going to have to get a lawyer … and to tell his
family’ (p. 594). However, the desired consequences of exposure then shift to punishment,
specifically to ‘deprive the perpetrator of undeserved respect and privilege’ (p. 594). Herman
says that the ‘vision of accountability’ of those she interviewed was ‘incapacitation … to
prevent offenders from committing future crimes, rather than to punish them for those already
committed’ (p. 597). Here, Herman equates accountability with punishment, not to public
exposure. Although she is right to say that the justification for incapacitation is to prevent
future crime, it is nonetheless a justification for punishing an individual. When considering
participants’ visions, Herman notes that a ‘retributive element’ is evident in wishing to see
‘offenders exposed and disgraced’. Here, exposure and disgrace are combined as one
phenomenon, i.e. punishment (not as I would see them as representing, respectively, ‘being
called to account’ and punishment). And in this passage, Herman equates ‘retributive’ with
‘punitive’, a common error. She concludes that the ‘main purpose of exposure was not to get
even by inflicting pain, [but rather to seek] vindication from the community as a rebuke to the
offenders’ display of contempt for their rights and dignity’ (p. 597). Reading this passage in
context, we may assume that by ‘exposure’, Herman is referring to both ‘exposure and
disgrace’, i.e. to punishment, as she defines it. Here, then, she is arguing that punishment to
victims meant vindication from their community. This is precisely how I define punishment,
i.e. as a component of vindicating the crime and the victim. Although Herman’s paper
contains many useful insights, it is also marred by confusion and error, in part caused by a
common-sense understandings of key terms such as retributive (‘being punitive’) and
punishment (‘getting even’ or concerned solely with past crime) and in part, by equating
punishment not only with vindication, but also offender accountability.
The Law Commission of Canada (LCC) (2000: 87) states that ‘accountability should
not … be seen as synonymous with punishment or the imposition of liability’. The LCC has
in mind criminal and civil justice in responding to historical institutional abuse of children.
For these contexts, other forms of accountability may be relevant, such as seeing ‘the record
set straight and the perpetrators identified’ (p. 87). This comes closest to accountability, as I
define it: by calling and holding offenders to account for what they have done. However,
20
then, the LCC conflates ‘holding people to account for their actions’ with ‘a finding of
criminal guilt’ (p. 88). This is not correct. Holding people to account is one aspect of
accountability, but a finding of guilt is, strictly speaking, vindication. The LCC then says that
the ‘need of survivors for accountability is more than just a desire for revenge through the
punishment of perpetrators … Rather they seek the public denunciation of perpetrators’ (p.
88). Public denunciation is vindication, not accountability. Likewise, a polity’s imposed
punishment is vindication, not offender accountability. Thus, there are errors in the LCC’s
analysis of accountability and its relationship to vindication and punishment, and how these
concepts are used to interpret authorities’ actions, legal decisions and victims’ needs.
Clark (2015) argues that the failure of an offender to ‘take responsibility’ is a failure
of the legal process to hold an offender accountable, which accords with my understanding.
However, she then implies an added meaning of accountability as punishment when saying
that victims want ‘the perpetrator to make an admission and take accountability’ (Clark,
2015: 25, emphasis added). By this, I infer that Clark means to ‘take’ censure and sanction,
which is vindication. Popular understandings of accountability often include notions of what
constitutes deserved punishment of wrong-doers. However, when punishment is imposed by
a polity, this is vindication of the law and of the victim, not holding offenders to account.
Jülich et al.’s (2010) description of how Project Restore operates comes closest to my
definition of offender accountability-taking responsibility. Because the program operates
within the real world of justice activities, ‘calling to account’ or ‘holding to account’ do not
occur in the ways imagined by philosophers or legal theorists. For an offender to be eligible
for Project Restore, they must first acknowledge the offence to ‘an acceptable degree’, or
there is a criminal charge lodged and a guilty plea entered, or a conviction to guilt (Jülich et
al., 2010: 75). Thus, individuals are at different points on a continuum of criminal liability
before they are referred to Project Restore; at the same time, they may be at similar points in
‘accepting responsibility’ for their offending. For Project Restore, the ‘first stage in being
held accountable for their actions is the acceptance of their wrong-doing’ (p. 36). Such
‘acceptance’ is expected to deepen in time to ‘coming to take full responsibility for [their]
actions’, of the sort that is ‘deep and profound … for the provision of true accountability’ (p.
36). 37 Here, I imagine that project staff members are ‘holding an offender to account’, by
probing more deeply into their explanations for what they did in ways that legal officials
37
Other restorative justice practices may define and understand ‘accountability’ differently (see, e.g. Beck,
Bolívar & Vanseveren, 2017, for practices in Belgium). Although restorative justice practices assume eligibility
only for ‘admitted offenders’, such admissions are often partial or incomplete.
21
often fail to do. A good deal of preparation, of both the offender and the victim, occurs before
a conference meeting. In part, this involves identifying ‘clearly defined action plans that
reflect what participants think will put offending right’, including ‘consequences if the action
plan is not complied with’ (p. 37). An offender and victim specialist may need to work with
an offender to ensure the quality of their undertaking, such as how an apology letter is
written. For Project Restore staff, to ‘demonstrate accountability’ means that an individual is
expected to carry out an action plan fully and in a way that ensures ‘the psychological safety
of the victim’ and that ‘cannot be construed as re-victimisation’ of the victim (p. 38). The
term I use is an offender’s ‘taking responsibility’, which includes the quality of the actions
taken by an offender.
Although beyond the scope of this paper, counselling or change-oriented treatment
programs may play an important role in ‘holding offenders accountable’ and encouraging
them to ‘take responsibility’. This can occur at many points along the legal liability
continuum, as well as outside a legal process. Thus, other justice goals of survivors, such as
prevention and safety can be enabled with on-going counselling or therapeutic engagement of
those who have committed sexual offences.
7. Summary and implications
This paper responds to a changing landscape of interest to use conferences or other
innovative justice mechanisms in responding to sexual violence. I outlined the Victimisation
and Justice Model and its three components: contexts of victimisation, justice mechanisms
and victims’ justice interests. Using the model to guide research, we can re-analyse what we
have learned from past studies and craft new research projects. This is essential for building
evidence on the strengths and limits of conventional and innovative justice responses to
sexual violence.
For context, the Sexual Violence and Justice Matrix gives a global picture of the
varied relationships and contexts of victimisation and offending, together with different
problems victims face in seeking justice, the mechanisms available and differing legal and
political-economic capacities to respond. There exists a depth of knowledge for matrix cell
A1, a context that dominates analysis of justice responses to sexual violence, although
research is growing for context cells A3 and C5. It is crucial that researchers begin to locate
their research context more explicitly (particularly those in A1) and not assume that what is
learned in A1 can be readily generalised to other contexts.
22
For justice mechanisms, we need to move away from seeing restorative justice as a
‘type of justice’ and instead see it as one of several mechanisms under a broader innovative
justice umbrella (Daly, 2016). A type of justice approach poorly specifies the actual workings
of a justice activity. We are on more solid evidentiary ground by defining the restorative
justice mechanism itself (such as a conference or victim-offender mediation), which is then
subject to empirical inquiry. Moreover, responses to a single case of sexual violence may
have a mix of conventional and innovative justice mechanisms (e.g. criminal prosecution and
civil litigation, with a conference post-sentence or settlement). We need to understand how
each is perceived and relates to the other, from a victim’s perspective. Conventional justice
mechanisms should not be disparaged or erroneously termed ‘retributive’ or ‘punitive’
justice, as some analysts do. Instead, the task should be to determine the degree to which
conventional and innovative justice mechanisms can address one or more victims’ justice
interests in the aftermath of crime.
In analysing victims’ justice interests, we need to take a large step beyond victim
satisfaction by focusing more precisely on what victims as citizens (Holder, 2013) ‘can
reasonably expect from offenders … and from the state’ (Bennett, 2007: 248). The elements
of victim’s justice interests combine findings from empirical research and philosophical
argument on what crime victims are ‘owed’. I have sought to define the elements and how
they may be operationalised in research. Retrospectively, the construct of victims’ justice
interests can be used to re-analyse data or published research, as Fileborn (2014), Jülich &
Landon (2017) and Powell (2015) have. Prospectively, it can be used to operationalise items
for research on victims’ experiences with, or researcher observations of, a variety of justice
mechanisms, alone or in combination. The construct is provisional and evolving. Perhaps, in
time, elements will need to be added or modified.
Empirical research must be guided by clear definitions of concepts. Thus, I clarified
the elements of accountability and vindication, and their relationship to punishment, with
examples of how analysts have used (and mis-used) these concepts, either in their definitions
or when interpreting empirical findings. We know that the real world of interactions and
relationships between and among alleged or convicted offenders, victims, authorities and
wider social groups is complex, nuanced, contingent and varies over time. Although it is
difficult to capture such complexity in a few words, conceptual precision and accuracy are
crucial building blocks in our research.
Knowledge and debate on sexual violence and justice will be enhanced by
aggregating research on conventional and innovative mechanisms, using a systematic
23
method. We may learn from a small number of case studies or interviews of victim-survivors;
but unless this material is aggregated and analysed using a common framework, we will have
many studies that do not add up to advancing knowledge. What is first required is a broad
understanding of sexual victimisation contexts and justice mechanisms; then, second, the
identification of a common metric to assess (or to both assess and compare) the efficacy of
one or more justice mechanisms. I will be repeating myself in saying that measures of victim
‘satisfaction’ and re-offending alone are not good enough. We can and must do better.
The trick in all of this—and it is profound and challenging—is that we cannot
continue business as usual. Indeed, the enterprise requires a radical reconceptualisation.
Foremost, as individual researchers, we need to see ourselves as part of a larger endeavour.
We need to see the value of different justice mechanisms and not be tied to just one. We need
to be aware of the diverse contexts of victimisation and where our work is located, and the
implications of this for generalising to other contexts. We need to be able to move flexibly
across the knowledge gained from research on sexual victimisation and justice in different
contexts of victimisation; and in that movement, to glimpse the potential for new and
emergent justice forms.
References
Adriaenssens, P. (2014). The model of the Confidential Centre: a restorative justice
framework for sexual abuse cases, paper presented to Exploring the Potential of
Restorative Justice for Sexual Violence, Leuven, Belgium, 12-14 November 2014.
Backer, D. (2004). The human face of justice: victims’ responses to South Africa’s Truth and
Reconciliation Commission process, unpublished PhD thesis, University of Michigan,
Ann Arbor, Michigan.
Backer, D. (2009). Cross-national comparative analysis, in H. van der Merwe, V. Baxter &
A. Chapman (eds.), Assessing the impact of transitional justice (pp. 23-89).
Washington, DC: United States Institute of Peace Press.
Backer, D. & Kulkarni, A. (2013). Conceptualising justice in transition: exploring the
understandings of human rights victims and their sources, paper presented to the Annual
Meeting of the International Studies Association, 5 April 2013.
Beck, M., Bolívar, D. & Vanseveren B. (2017). Responsibility, care and harm: a reflection on
the role of community in cases of child sexual abuse from the experience of the Belgian
mediation service Alba. In E. Zinsstag & M. Keenan (eds.), Sexual violence and
24
restorative justice: legal, social and therapeutic dimensions (forthcoming). London:
Routledge.
Bennett, C. (2007). Satisfying the needs and interests of victims, in G. Johnstone & D. Van
Ness (eds.), Handbook of restorative justice (pp. 247-264). Collumpton: Willan
Publishing.
Bolitho, J. (2015). Putting justice needs first: a case study of best practice in restorative
justice. Restorative Justice: An International Journal, 3(2): 256-281.
Choi, J.J., Green, D. & Kapp, S. (2010). Victimization, victims’ needs, and empowerment in
victim offender mediation. International Review of Victimology, 17: 267-290.
Clark, H. (2010). What is the justice system willing to offer? Understanding sexual assault
victim/survivors’ criminal justice needs. Family Matters, 85: 28-37.
Clark, H. (2015). A fair way to go: justice for victim-survivors of sexual violence, in A.
Powell, N. Henry & A. Flynn (eds.), Rape justice: beyond the criminal law (pp. 18-35).
Basingstoke: Palgrave Macmillan.
Cossins, A. (2008). Restorative justice and child sex offences. British Journal of
Criminology, 48(3): 359-378.
Daems, T. (2009). Criminal law, victims, and the limits of therapeutic consequentialism, in E.
Claes, W. Devroe & B. Keirsbilck (eds.), Facing the limits of the law (pp. 143-160).
Berlin: Springer.
Daly, K. (2003). Mind the gap: restorative justice in theory and practice, in A. von Hirsch, J.
Roberts, A.E. Bottoms, K. Roach & M. Schiff (eds.), Restorative justice and criminal
justice: competing or reconcilable paradigms? (pp. 219-236). Oxford: Hart Publishing.
Daly, K. (2006). Restorative justice and sexual assault: an archival study of court and
conference cases. British Journal of Criminology, 46(2): 334-356
Daly, K. (2008). Setting the record straight and a call for radical change: a reply to Annie
Cossins on ‘restorative justice and child sex offences’. British Journal of Criminology,
48(4): 557-566.
Daly, K. (2011). Conventional and innovative justice responses to sexual violence, ACSSA
Issues 12: 1-35. Melbourne: Australian Centre for the Study of Sexual Assault,
Australian Institute of Family Studies.
Daly, K. (2014a). Reconceptualizing sexual victimization and justice, in I. Vanfraechem, A.
Pemberton & F. Ndahinda (eds.), Justice for victims: perspectives on rights, transition
and reconciliation (pp. 378-395). London: Routledge.
25
Daly, K. (2014b). Redressing Institutional Abuse of Children. Basingstoke: Palgrave
Macmillan.
Daly, K. (2015). Sexual violence and justice: how and why context matters for justice, in A.
Powell, N. Henry & A. Flynn (eds.), Rape justice: beyond the criminal law (pp. 36-52).
Basingstoke: Palgrave Macmillan.
Daly, K. (2016). What is restorative justice? Fresh answers to a vexed question. Victims &
Offenders 11(1): 9-29.
Daly, K., Bouhours, B., Broadhurst R., & Loh, N. (2013). Youth sex offending, recidivism,
and restorative justice: comparing court and conference cases. Australian and New
Zealand Journal of Criminology, 46(2): 241-267.
Daly, K. & Curtis-Fawley, S. (2006). Restorative justice for victims of sexual assault, in K.
Heimer & C. Kruttschnitt (eds.), Gender and crime: patterns of victimization and
offending (pp. 230-265). New York: New York University Press.
Daly, K. & Wade, D. (2017). Sibling sexual violence and victims’ justice interests: a
comparison of youth conferencing and judicial sentencing, in E. Zinsstag & M. Keenan
(eds.), Sexual violence and restorative justice: legal, social and therapeutic dimensions
(forthcoming), London: Routledge.
Draucker, C.B., Martsolf, D.S., Ross, R., Cook, C.B., Stidham, A.W. & Mweemba, P.
(2009). The essence of healing from sexual violence: a qualitative meta-synthesis.
Research in Nursing and Health, 4: 366-378.
Duff, R.A. (2001). Punishment, communication, and community. New York: Oxford
University Press.
Duff. R.A. (2011). Responsibility, restoration, and retribution, in M. Tonry (ed.)
Retributivism has a past: has it a future? (pp. 63-85). New York: Oxford University
Press. Published online January (2012) by Oxford Scholarship Online, DOI:
10.1093.acprof:oso/9780199798278.001.0001
Edwards, I. (2004). An ambiguous participant: the crime victim and criminal justice decisionmaking. British Journal of Criminology, 44: 967-982.
Fileborn, B. (2014). Online activism and street harassment: digital justice or shouting into the
ether? Griffith Journal of Law & Human Dignity, 2(1): 32-51.
Godden, N. (2013). Seeking justice for victim-survivors: unconventional legal responses to
rape, unpublished PhD thesis, Durham University, UK. Available at:
http://etheses.dur.ac.uk/6379/ (accessed 23 December 2015).
26
Hayes, H. (2006). Apologies and accounts in youth justice conferencing: reinterpreting
research outcomes. Contemporary Justice Review, 9(4): 369-385.
Henry, N. (2009). Witness to rape: the limits and potential of international war crimes trials
for victims of wartime sexual violence. The International Journal of Transitional
Justice, 3: 114-134.
Herman, J. (1997). Trauma and recovery: the aftermath of violence -- from domestic abuse to
political terror, 2nd edn. New York: Basic Books.
Herman, J. (2005). Justice from the victim’s perspective. Violence Against Women, 11(5):
571-602.
Holder, R. (2013). Just interests: victims, citizens and the potential for justice, unpublished
PhD thesis, Australian National University, Canberra, Australia.
Jülich, S. (2001). Breaking the silence: restorative justice and child sexual abuse, unpublished
PhD thesis, Massey University, Albany, New Zealand.
Jülich, S. (2006). Views of justice among survivors of historical child sexual abuse.
Theoretical Criminology, 10(1): 125-138.
Jülich, S., Buttle, J., Cummins, C. & Freeborn, E. (2010). Project restore: an exploratory
study of restorative justice and sexual violence. Auckland: Auckland University of
Technology. Online. Available at:
http://www.academia.edu/274691/Project_Restore_An_Exploratory_Study_of_Restorat
ive_Justice_and_Sexual_Violence (accessed 23 December 2015).
Jülich, S. & Landon, F. (2017). Achieving justice outcomes: participants of Project Restore’s
restorative processes, inE. Zinsstag & M. Keenan (eds.), Sexual violence and restorative
justice: legal, social and therapeutic dimensions (forthcoming), London: Routledge.
Keenan, M. (2014). Sexual trauma and abuse: restorative and transformative possibilities?
Dublin: University College Dublin, School of Applied Social Science. Online. Available
at: http://researchrepository.ucd.ie/bitstream/handle/10197/6247/Sexual_Trauma_and_A
buse%3B_Restorative_and_Transformative_Possibilities.pdf?sequence=1
Koss, M. (2006). Restoring rape survivors: justice, advocacy, and a call to action. Annals of
the New York Academy of Sciences, 1087: 206-234.
Koss, M. (2010). Restorative justice for acquaintance rape and misdemeanor sex crimes, in J.
Ptacek (ed.), Restorative justice and violence against women (pp. 218-238). New York:
Oxford University Press.
Law Commission of Canada (2000). Restoring dignity: responding to child abuse in
Canadian institutions. Ottawa: Minister of Public Works and Government Services.
27
Mercer, V., Sten Madsen, K., Keenan, M. & Zinsstag, E. (2015). Doing restorative justice in
cases of sexual violence: a practice guide. Leuven: Leuven Institute of Criminology.
Naylor, B. (2010). Effective justice for victims of sexual assault: taking up the debate on
alternative pathways. University of New South Wales Law Journal, 33(2): 662-684.
Olsen, T., Payne, L. & Reiter, A. (2010). Transitional justice in balance. Washington, DC:
United States Institute of Peace Press.
Pemberton, A. & Vanfraechem, I. (2015). Victims’ victimization experiences and their need
for justice, in I. Vanfraechem, D. Bolívar & I. Aertsen (eds.), Victims and restorative
justice (pp. 15-47). London: Routledge.
Powell, A. (2015). Seeking rape justice: formal and informal responses to sexual violence
through technosocial counter-publics. Theoretical Criminology, 19(4): 571-588.
Powell, A., Henry, N. & Flynn, A. (eds.) (2015). Rape justice: beyond the criminal law.
Basingstoke: Palgrave Macmillan.
Robins, S. (2011). Towards victim-centred transitional justice: understanding the needs of
families of the disappeared in postconflict Nepal. The International Journal of
Transitional Justice, 5: 75-98.
Shapland, J. (2014). Implications of growth: challenges for restorative justice. International
Review of Victimology, 20(1): 111-127.
Shapland, J., Robinson, G. & Sorsby, A. (2011). Restorative justice in practice: evaluating
what works for victims and offenders. London: Routledge.
Stover, E. (2005). The witnesses: war crime and the promise of justice in The Hague.
Philadelphia: University of Pennsylvania Press.
Strang, H. (2002). Repair or revenge: victims and restorative justice. Oxford: Oxford
University Press.
Toews, B. (2006). The little book of restorative justice for people in prison. Intercourse:
Good Books.
Wager, N. (2013). The experience and insight of survivors who have engaged in a restorative
justice meeting with their assailant. Temida, March: 11-31.
Zehr, H. (1990). Changing lenses: a new focus for crime and justice, Scottdale: Herald Press.
28
Appendix 1. Sexual Violence and Justice Matrix
Offendingvictimization
context of sexual
violence
Country A
Developed/affluent
country at peace
Country B
Developing country
at peace
Country C
Conflict, post-conflict,
or post-authoritarian
regime
(1) Person
acting alone
A1
Relations: peer, familial,
known and (atypically)
stranger relations
Place: mainly residential
B1
Relations and place
similar to A1
C1
Relations and place
similar to A1
(2) Person using
position of
organizationaloccupational
authority in
community-based
settings
A2
Relations: religious,
medical, state or
voluntary org workers
(clergy, doctor-nurse,
teacher, police) in
professional relationship
with child/adult
Place: residential and
occupational
B2
Relations: in addition to
A2, aid, NGO and
related staff from other
countries in professional
relationship with
child/adult
C2
Relations: in addition to
A2 and B2, foreign
peacekeepers and
soldiers
Place: similar to A2
Place: similar to A2
(3) Person using
position of
organizationaloccupational
authority in closed
institutions (includes
peer relations in
institutions)
A3
Relations: religious,
medical, state or
voluntary org workers
having duty of care to
child/adult
Place: residential care or
schools, prisons,
detention centres (crime
or asylum-related),
mental health facilities,
armed forces facilities
B3
Relations: in addition to
A3, aid, NGO and
related workers from
other countries
C3
Relations: in addition to
A3 and B3, duty of care
to conflict-related
refugees and prisoners
Place: similar to A3
Place: in addition to A3,
conflict-related refugee
camps and detention
centres
(4) Offending in
symbolically closed
communities
A4
Relations: peer, familial
and known relations
Place: remote
communities or
segregated urban
enclaves
B4
Relations and place
likely similar to A4
C4
Relations and place
likely similar to A4
(5) Offending by
loosely or wellorganised groups
A5
Relations: gangs,
criminal enterprises and
human trafficking groups
B5
Relations: in addition to
A5, international
transiting web of
relations
Place: residential and
occupational
Place: similar to A5
C5
Relations: in addition to
A5 and B5, conflictrelated state or quasistate combatants, militia
and armed forces
Place: everywhere
29
Appendix 2. Justice elements from a victim's perspective
Entry #
and
year
Author (ordered by date),
context and offences
(1)
1990
Zehr (1990: 191-195, 200-203)
(A1 context; offences not
specified)
(2)
2000
Law Commission of Canada
(2000: 74-93) (A3 context;
historical institutional abuse of
children)
Term used
victims' needs
needs of
survivors
Are
elements
defined?
Are elements
applied to
justice
mechanisms?
1) 'support and a sense of safety
2) opportunities to tell their story
and vent their feelings
3) tell their truth
4) need others to suffer with them,
to lament with them the evil that
has been done
5) to feel vindicated [see Notes]
6) reassurance, reparation, [and]
empowerment' (the latter
includes 'participation and safety')
no
no
1) 'establishing an historical record;
remembrance
2) acknowledgment
3) apology
4) accountability
5) access to therapy or counselling
6) access to education or training
7) financial compensation
8) prevention and public awareness'
yes
Elements identified (as ordered by
the author, using the author’s words)
Notes
Validation falls within Zehr’s
(1990: 191) definition of
vindication ('victims want to hear
others acknowledge their pain
and validate their experience'.
Victims’ needs is analysed
discursively. 'Accountability' is
‘multi-dimensional and
transformative’, but is broadly
focused on concepts of 'needs
and responsibilities' of victims,
offenders and society (Zehr,
1990: 200-203).
no
30
(3)
2002
Strang (2002: 8-23) (A1
context; common crime)
what victims
want
1) ‘a less formal process where their
views count
2) more information about both the
processing and outcome of their cases
3) to participate in their cases
4) to be treated respectfully and fairly
5) material restoration
6) emotional restoration and an
apology’
yes
yes, assessed
for conferencing
and court
(chapter 5)
(4)
2004
Backer (2004: 216) (C5 context;
Truth and Reconciliation
Commission [TRC] in postconflict South Africa)
justice index
1)
2)
3)
4)
5)
6)
7)
8)
yes
yes, to TRC
(5)
2005
Herman (2005: 585-589) (A1
context; sexual and domestic
violence, including historical
intra-familial)
victims' visions
of justice
1) 'validation from the community
[that is,] acknowledgment of facts
of the crime and its harm
2) vindication [that is,] their
communities [taking] a clear and
unequivocal stand in
condemnation of the offense
3) apology’
by examples
of what
people said
no
yes
no
(6)
2007
Bennett (2007: 261) (A1
context; offences not specified)
victims' rightful
entitlements
'acknowledgment
voice
truth
accountability
apology
punishment
reparation
systemic change'
(Items 1 and 2 were most important;
informants were divided on apology.)
1) Victims are ‘rightly … entitled to
vindication from the offender in which
a wrong retracted by the offender
through apology and proportionate
amends’.
(continued)
Based on research in West
Africa, Backer and Kulkarni
(2013) amended Backer’s (2004)
original elements
(acknowledgment is now
‘awareness/acknowledgment’)
and replaced ‘systemic change’
with five elements (‘nonrepetition, restoration,
development, redistribution, and
transformation of leadership’).
Elements drawn from interviews
of 22 victim-survivors.
For (1) Bennett (2007: 256) uses
vindication synonymously with
‘repentance’.
31
2) ‘However, victims are also entitled
to the vindication from their
community, … but the collective
cannot require a sincere apology [but
instead] something less such as
making proportionate amends,
regardless of the spirit in which this is
carried out’.
(7)
2009
Henry (2009: 116) (C5 context;
international criminal justice,
three cases from the
International Criminal Tribunal
for the former Yugoslavia)
none: elements
listed
1)
2)
3)
4)
(8)
2010
(2001,2
006)
Jülich, Buttle, Cummins &
Freeborn, 2010: 21) (A1
context; sexual violence,
including historical intrafamilial)
a sense of
justice
1) 'have stories heard by witnesses
in a safe forum based on
substantive equality of victim and
offender
2) acknowledgment of the
difference between right and
wrong
3) offender to take responsibility
and demonstrate accountability
4) experience of victimisation
validated by offenders,
bystanders, and outsiders
5) ability to transform relationships
to co-exist with offenders in
A ‘sense of justice’ is discussed
in Jülich (2001, 2006), but
consolidated in the 2010
publication.
‘participation
validation
acknowledgment
voice’
Bennett’s (2007: 256)
‘proportionate amends' (also
termed ‘proportionate
reparation’) has the same
meaning as Duff’s (2011) ‘moral
reparation’.
no
no
by examples
of what
people said
no
For (2), vindication from the
community, Bennett adopts
Duff’s (2001: 110-11) argument
that a collective cannot compel
an offender to make a genuine
apology, but it can require an
‘apologetic ritual’.
Analysis is of three aspects of
testimony and outcome:
procedural fairness and justice,
telling one's story, and the trial
verdict. At times, these are
related to the four justice
elements, but not systematically.
Elements initially drawn from
interviews of 21 victim-survivors
(Jülich 2001, 2006).
Jülich (2006: 130-131) identified
two other elements: ‘addressing
the underlying causes of
offending, that is, the
motivations for offending' and
‘to be more involved in the
process of justice’.
32
shared communities'
(9)
2010
(2006)
Koss (2010: 221-222) (A1
context; sexual violence)
victims' justice
needs
Victims' justice needs is
discussed in Koss (2006), but
consolidated in the 2010
publication.
(10)
2010
Choi, Green & Kapp (2010:
277) (A1 context; three
property and one violent
offence)
victims’ needs
1) 'contribute input into key
decisions and remain informed
about their case
2) receive response with minimal
delay
3) tell their story without
interruption
4) receive validation
5) shape a resolution that meets
material and emotional needs
6) feel safe'
1) ‘sharing victimisation
2) asking questions and acquiring
answers
3) receiving a genuine apology’
no
no
by examples
of what
people said
yes, assessed
for victim
offender
mediation
Choi et al. (2010: 217) view the
achieving of victims’ needs as
connected ‘to how victims
“become empowered” in
restorative justice’.
33
(11)
2010,
2015
Clark (2010: 31-35; 2015: 2132) (A1 context; sexual
violence, including historical
intra-familial)
victims'
meanings of
justice; victims'
justice needs
Clark (2010):
1) 'information
2) validation
3) voice
4) control
5) outcomes'
by examples
of what
people said
no
Vindication falls within Clark’s
(2010, 2015) analysis of
validation.
Clark (2015):
1) 'acknowledgment and validation
2) perpetrator accountability and
responsibility
3) retribution
4) safety and prevention'
(12)
2013
Godden (2013: 27, 89) (A1
context; sexual violence)
victims’ needs
and interests
(13)
2013
Wager (2013: 22) (A1 context;
sexual violence)
survivors’
healing and
justice needs
1) ‘recognition of wrongful violation
of sexual autonomy
2) respect diverse experiences and
harms of rape
3) tell stories and be heard in a
meaningful way
4) wrongdoers held responsible for
the harms of rape
5) symbolic and material reparation
for the harms of rape’
1) ‘re-establishing a sense of safety
for self … which can include the
offender being held accountable
2) gaining answers to questions
3) repair of damaged relationships
with others, which relates to
validation and vindication
4) restoration of self, such as
overcoming self-blame’
Elements in both articles are
based on 22 interviews of victimsurvivors (the N of women and
men reported in 2010 was 19
and 3, respectively; and in 2015,
as 18 and 4).
Elements differ in Clark (2010)
and Clark (2015), but no
explanation for the change is
given.
induced and
summarised
from a
review of the
literature
yes, assessed
and compared
using reports
and case studies
for criminal
justice,
restorative
justice, and civil
litigation
partly, not
precisely; a
confused
blend of aims
for justice
and wellbeing
yes, assessed
for restorative
justice meetings
34
(14)
2014
Keenan (2014: 28) (A1, A2 and
A3 contexts; sexual violence)
victims’ justice
needs and
interests
1)
2)
3)
4)
5)
6)
7)
‘participation
voice
opportunity to tell their story
validation and vindication
to ask their questions
offender accountability
protection for children and
vulnerable adults
8) recompense where desired’
by examples
of what
people said
no
Analysis of victims’ experiences
in the criminal and civil process,
clerical and institutional abuse,
and intra- and extra-familial
relations.