Can mediation be therapeutic for crime victims? An evaluation of victims' experiences in mediation with young offenders.

• Author: Wemmers, Jo-Anne
• Position: Canada

Introduction

Victims have been described as the "forgotten party" in the criminal justice system (Viano 1978). In the criminal justice system, victims are considered to be witnesses to a crime committed against the state; the criminal justice process is centred on the crime, and victims' suffering is secondary. Since the 1980s, victimologists have recognized the risk of secondary victimization within the criminal justice system. One of the first scholars to write on this subject was the American psychiatrist Martin Symonds (1980), who described secondary victimization as a perception by the victim that he or she is not supported or accepted by others. Professional but insensitive reactions from police or prosecutors can augment the victim's suffering (Maguire 1991).

In recent years, the conventional criminal justice system has come under enormous criticism for its failure to recognize the emotions of those affected by it, including crime victims. Authors David Wexler and Bruce Winick (1996), with their model of "therapeutic jurisprudence," and Lawrence Sherman (2003), with his model of "emotionally intelligent justice," are examples of what can be called a growing movement to recognize the impact of legal intervention on the emotions of victims, offenders, and communities. Restorative justice, according to Sherman (2003), is an example of "emotionally intelligent" justice.

Restorative justice is an ideology that focuses on reducing harm and making right the wrong (Zehr 2002). Advocates of restorative justice argue that restorative justice, which recognizes the victim's suffering, offers victims a better deal than the conventional criminal justice system (Scheff 1998; Roach 1999; Fattah 2001). This approach has gradually gained popularity, both in Canada and elsewhere, since the 1980s. For example, the Canadian government played an important role in the development of international guidelines for restorative justice, the Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. This declaration was presented to the UN Economic and Social Council in 2002 and, although it was not adopted, the council did adopt a resolution encouraging countries to use the Basic Principles (Van Ness 2002). More recently, the Department of Justice Canada published a Statement of Values and Principles of Restorative Justice in reaction to the significant growth of restorative justice initiatives across Canada. In addition, the new Youth Criminal Justice Act, which entered into force on 1 April 2003, emphasizes the importance of reparation for crime victims and aims to increase the use of extra-judicial measures such as victim-offender mediation (Canada, Department of Justice 2004).

However, opponents of restorative justice argue that restorative practices may enhance victims' suffering. Victim advocates have expressed concern that confronting victims with offenders may augment the victims' fear (Wemmers and Canuto 2002). For example, in 2002, the Centres for Victim Assistance (CAVAC) in Quebec conducted a survey of attitudes toward mediation among its workers (Cote and Laroche 2002). The results show that victim support workers are sceptical of restorative justice programs and reluctant to refer victims to them. Their main concern was the risk of secondary victimization, or augmenting the post-traumatic stress suffered by the victim as a result of the crime. They emphasized the need to protect victims from further suffering rather than to expose them to greater risks.

These differing views raise the question of whether restorative justice helps or hinders victims' recovery. In this article, we will examine the theory and research on victim participation and present the findings of our own study with crime victims and mediation.

Therapeutic jurisprudence

Therapeutic jurisprudence is the study of the role of the law as a "therapeutic agent" (Winick 1996: 646). Developed by Wexler and Winick (1996), therapeutic jurisprudence views legal rules, procedures, and the roles of legal actors as social forces that often produce therapeutic or anti-therapeutic effects on the people involved in legal proceedings. In other words, crime victims may be favourably or aversely affected by their experiences in the criminal justice system and with criminal justice authorities. Therapeutic jurisprudence calls for the study of these consequences in order to identify them and to ascertain whether the law's anti-therapeutic effects can be reduced, while enhancing its therapeutic effects, without subordinating due process and other justice values (Winick 1996). Therapeutic jurisprudence originated in the field of mental health law, and much of the literature focuses on offenders. However, we believe that this approach to the law is equally relevant with respect to crime victims.

Therapeutic jurisprudence is an interdisciplinary approach to law. In order to explain and predict therapeutic effects, it relies to a great extent on the psychological literature. One body of work that has been extremely influential in the therapeutic jurisprudence literature is the psychology of procedural justice (Waldman 1998). According to this view, when procedures are viewed as fair, they will have a positive, therapeutic effect on the people involved, whereas when procedures are viewed as unfair they will have a negative, anti-therapeutic effect.

The concern of procedural justice is the perceived fairness of procedures. According to E. Allan Lind and Kees Van den Bos (2002), fairness is all about the management of uncertainty: when people are confronted with uncertainty in their environment, they turn to their impressions of fair treatment to help them decide how to react. Crime victims are confronted with a great deal of uncertainty following their victimization: they may question their basic beliefs about the world (Lerner 1980), they may worry about whether or not the offender will seek revenge, and they are often unfamiliar with the criminal justice system and have no idea what will happen during the case or what is expected of them (Wemmers 1996). According to Lind and Van den Bos (2002), uncertainty is increased in situations where people feel that they are not in control, and victims are not in control of the criminal justice process. Because crime victims are confronted with uncertainty, procedural justice is especially important to them (Wemmers 1995, 1996).

Restorative justice and crime victims

Restorative justice programs such as victim-offender mediation, which brings together victims and their offenders in an effort to reach an agreement about how to deal with the offence, give victims an opportunity to participate in the criminal justice process. Because it provides the victim with a sense of participation and control over his or her life, mediation may be therapeutic for crime victims (Levine 2000).

With respect to the healing effects of victim-offender mediation, Mark Umbreit (1994) reports that 90% of victims who participated in mediation were satisfied with the outcome of the mediation process. Based on a comparison to pre-mediation data, the victims in Umbreit's study were less upset about the crime after the mediation session than before. Victims were also less often afraid of being re-victimized by the offender after the mediation session. However, the absence of a control group makes it difficult to conclude whether or not these results are better than those one might expect from the conventional criminal justice system.

Johanne Blanchette (1996) compared victim satisfaction with different alternative sanctions in Quebec. She found that victims who participated in mediation were more often satisfied that justice had been rendered in their case than victims...