Restorative Justice – A better
approach to justice for elders as
victims?
Michael O’Connell
Commissioner for
Victims’ Rights
Crime and the Elderly - Abuse and the Elderly
Phase 1 – high victimisation of the elderly
Phase 2 – disproportionate impact of crime on the elderly
Phase 3 – excessive fear on the part of the elderly
Phase 4 – defining the problem of victimisation of the
elderly
(Clarke 1989)
Elder Abuse?
• World Health Organisation (2002) –
Declaration on the Global Prevention of
Elder Abuse:
“Elder abuse is a single or repeated act, or
lack of appropriate action, occurring within
any relationship where there is an
expectation of trust, which causes harm or
distress to an older person. It can be of
various forms: physical, psychological /
emotional, sexual, financial, or simply
reflect intentional or unintentional neglect.”
“Elder abuse is the violation of human
rights and a significant cause of injury,
illness, lost productivity, isolation and
despair. Confronting and reducing elder
abuse requires a multidisciplinary
approach.”
Nature of Elder Abuse
Passive neglect – not given attention & help by family
Active neglect – deliberate withholding of needs of life
Societal neglect – neglectful practices of a community / society
Physical abuse – actual (threatened) physical violence
Sexual abuse – indecent assault, rape
Psychological abuse – shouted at, threatened, humiliated
Exploitation – manipulation resulting in giving up money, personal
property
(Too often, multiple types of elder abuse co-exist.)
Consequences / Effects of Elder Abuse
Physical – bruising, injury, death.
Psychological / emotional – feelings of isolation,
shame, anxiety, fear, helplessness.
Economic / financial – lack of money (or control over
financial decisions), loss of personal property
Social – inability to access health & welfare assistance,
unable to meet basic needs
Values & Attitudes towards Elders & Abuse
Discriminatory and / or negative attitudes towards elderly
Public apathy & acceptance of (especially in family) of
abuse
Exploitation of ‘powerless’ people, such as the many elderly
dependent on others
Materialism – individual and collective greed
Negative attitudes and tolerated, yet inappropriate,
behaviours in institutions
Remedies – Prevention & Reduction
Focus has (until recent years) been on preventing
(conventional) crime against the elderly
Reduce social isolation
Cater for fear of crime
Promote home security
Offer advice on personal safety
Provide access to means to make practical changes
Raise community awareness
(Doherty 1991)
Criminal justice (law enforcement)
Responding to Elder Abuse Challenges
•
Lack of awareness.
•
Lack of leadership.
•
Inadequate funding.
•
Incomplete knowledge.
•
Inconsistent practices.
•
Impediments to reporting.
•
Obstacles to accessing assistance.
•
Failure by others to take abuse seriously
•
Impunity of perpetrators
•
Nature of consequences for perpetrators
Promising practices - Responding to
Elder Abuse
• Multidisciplinary interventions & interdisciplinary
teams.
• Co-ordinated ‘inter-agency’ response.
• Laws & procedural reforms.
• Intervention (specialist) courts.
• Religious / faith institutional engagement.
• Victim assistance.
(Burgess et al 2013; Heisler 2012; Starr 2012; Groh 2010 & 2003)
An alternative way of
responding to Elder
Abuse
• Restorative Justice is (too)
often purported to be a
panacea; however, are
victims, such as victims of
elder abuse, better off?
• There is robust discussion on
what restorative justice is or
should be (Daly 2005)
• It is neither easy to define, nor is
there a single and uniformly
agreed definition.
• It is not rehabilitation
repackaged… It is not
(exclusively) part of the victims’
rights movement… (Johnstone
2002)
• Its aims do overlap with those of
rehabilitation programmes and
those of the victims’ rights
movement. (Johnstone 2002)
• Restorative justice
A process to achieve a restorative
outcome
(UN 2006)
• Some existing programmes have
restorative elements (e.g. victim
impact statements; family
conferences; victim-offender
mediation (although Braithwaite
(2009) distinguishes mediation and
RJ)
• Restorative justice portrayed as an
alternative to the limitations of
retributive justice
• Some assertions have
resulted in
• Misleading characterisations of
existing criminal justice systems
• Sweeping statements about the
merits of restorative justice
• Unreasonable expectations.
Pros & Cons of Restorative
Justice
Enhance victim satisfaction (with process and outcome)
Victims’ satisfaction is generally lower than offenders’ satisfaction
Satisfaction with what? Procedure, information, assistance, compensation
‘Waterloo Elder Abuse Project’ – 7 of 10 participants interviewed (only
half of the 10 were present during the intervention); and of those
interviewed:
• 50% agreed they were ‘satisfied’ with the process, 37% were
‘uncertain’, 13% disagreed (‘unsatisfied’)
• 71% agreed they were ‘adequately informed’ (29% disagreed)
• 86% agreed they were ‘supported’ (0% disagreed)
• 43% agreed there was acknowledgment of the injustice to the
victim (57% disagreed)
• Higher compliance & collection rates than courtordered compensation
• In general research findings show:
•
•
Compliance is higher when offenders are monitored
Offenders’ apologies – victims have varying views on
sincerity
•
•
•
‘Waterloo Elder Abuse Project’ – of those interviewed 83% did
not believe that the offender felt remorse
Some victims sceptical about offenders’ motives
Some victims felt the process (possibly outcome) was
too lenient
•
‘Waterloo Elder Abuse Project’ – of those interviewed 75%
agreed the outcome was appropriate for the offence (abuse);
25% were uncertain & 0% disagreed.
• Integrates victims’ participation and provides
recognition of victims’ rights
•
Programmes limited by victim participation
•
•
•
Some victims upset by what offenders (and/or
their supporters) said
Some victims found the experience unsettling
even intimidating
•
•
‘Waterloo Elder Abuse Project – only half of the ten were
present during the intervention
‘Waterloo Elder Abuse Project’ – 7 of 10 participants
interviewed (only half of the 10 were present during the
intervention); and of those interviewed 100% agreed their
safety was ensured and 100% agreed the process was
efficient.
Some victims feel worse after participating
• Reductions in recidivism, thus
prevents victimisation
•
•
Research has produced
mixed results
Most effective in reducing
recidivism when offenders
are engaged in rehabilitation
programmes but this is not
unique to restorative justice
• Improvements in offenders’ attitudes toward
victims and towards offending
•
•
Unclear if any improvements are transferrable to
other victims
Unclear if changes in attitudes are preventive
• Some additional ‘flaws’ in the
practice of RJ:
– Offenders have access to legal aid;
victims do not.
– Offenders have veto power, victims
do not.
– Offender focused rehabilitation
greater attention than victim
rehabilitation – The Waterloo Elder
Abuse Project appears to be an
exception.
– Enforcement of understandings /
outcomes.
• Pointers evident in the final evaluation of the
Waterloo Elder Abuse Project
•
•
•
•
•
•
•
63 inquiries for information about the project
45 of these were referred for intake
38 of these were assigned to a facilitator
19 of these were assessed as not appropriate for the ‘circle
process’
9 cases completed involved ‘circles’ or were resolved
during preparation for ‘circles’
10 cases were not pursued because the elder victim did not
wish to proceed
“[Several cases] were resolved by criminal justice
interventions”
(Groh & Linden 2011)
(it seems to me)
Restorative justice
Despite the strength of some research; many of
the findings should be interpreted with caution.
Research provides lessons to inform reform of
adversarial criminal justice and other responses
to elder abuse.
Can augment criminal justice responses – much
elder abuse is a crime
• Personal observations:
– Can we have justice at all if there is no justice for victims of elder
abuse? – (procedural & distributive justice)
– Restorative justice offers promise of a better justice, so it is
appealing, but it is not a panacea.
– Restorative justice is not an alternative, rather it is another
‘weight’ on a continuum to shift the centre of gravity from the
unjust towards the just.
– Insofar as restorative justice can play its part giving true voice to
victims of elder abuse the jury is still out but the indications are
appealing, despite the flaws. The evidence, however, does not
prove a case for restorative justice beyond reasonable doubt.
WSV & Partners – Draft Convention
on Justice for Victims of Crime and
Abuse of Power
•
Article 9 - Restorative justice
•
(1) State Parties shall endeavour, where appropriate, to
establish or enhance systems of restorative justice, that
seek to represent victims’ interests as a priority. State
shall emphasize the need for acceptance by the offender
of his or her responsibility for the offence and the
acknowledgement of the adverse consequences of the
offence for the victim in the form of a sincere apology.
•
(2) State Parties shall ensure that victims shall have
the opportunity to choose or to not choose restorative
justice forums under domestic laws, and if they do decide
to choose such forums, these mechanisms must accord
with victims‟ dignity, compassion and similar rights
and services to those described in this Convention.
What are some of the lessons?
•
Elder people as victims of abuse must be treated with respect and dignity
•
Victim safety is paramount (power imbalances, amongst other concerns, must be
taken into account)
•
Victim participation (in-person / representative) must be voluntary and the victim
should be permitted to withdraw at any time during the process (i.e. a right to choose
whether to participate or not, and when)
•
Victim should have the right to have a say on decisions that affect them
•
The process must be sensitive to victims’ needs and concerns (i.e. victims’ justice
(Daly 2012))
•
Victims must be well informed about the process (including limitations) and possible
outcomes (including implications of offender non-compliance)
•
Victim participation should be properly supported (including victim preparation and
rehabilitation)
What are some of the lessons?
•
Timing must be ‘right’ for the victim
•
The practice / process should be designed, developed & delivered in a culturally
appropriate manner mindful of victims’ needs
•
Offenders should only be eligible if they accept responsibility for their offending
behaviour
•
Suitability should be assessed on a case-by-case basis, not necessarily an class of
offence basis
•
RJ in practice should neither be a mask for ‘public justice’; nor a gag on the victim
•
RJ is not suitable for all cases
•
Such lessons (e.g. the importance of victim participation) should be applied at
different stages of the ‘existing’ criminal justice system
Sadly, too many elders
as victims of abuse are
over-looked, their needs
unmet and their rights
not honoured.
The way we care for our
elderly and other
vulnerable people is a
measure of our humanity
and civility.