Judges' attitudes about and experiences with sentencing circles in intimate-partner abuse cases.

• Author: Belknap, Joanne

This paper is an empirical investigation into the use of restorative justice methods, specifically sentencing circles, in gender-violence cases involving intimate-partner abuse. Restorative justice (RJ) is a "domestic social reform movement" developed simultaneously in numerous countries, including Canada, Australia, New Zealand, the United States, and Austria (Menkel-Meadow 2007). Although RJ has been defined a number of ways, the basic definition is an approach to sentencing criminal offences where there is victim input, victims and offenders meet face-to-face in a community instead of a conventional court setting, and some form of restitution and reconciliation (ideally) occurs between the victim and offender. For the practice to be truly restorative in nature, there must be opportunities for communication and dialogue between the offenders and victims; offenders must be held directly accountable to victims (with an emphasis on offenders restoring victims' losses); both the victims and offenders must be actively involved in the process; and community groups and/or citizen volunteers must play facilitative and supportive roles (Umbreit 1996: 8). To date, most RJ programs are adopted for minor property and juvenile offending cases (Cheon and Regehr 2006).

Gendered violence is primarily associated with a broad range of sexual and physical abuses, which are most often perpetrated by men against women. It has historically been ignored, avoided, or minimized by the criminal legal system (Pleck 1983; Stanko 1985; Tong 1984). In Canada and many other countries in the 1980s and 1990s, two significant departures in processing crimes occurred that appear to be at odds with reference to gender-violence offences. The first was the implementation, in conventional police and court systems, of policies and laws that take intimate-partner abuse more seriously (Wachholz and Miedema 2000). Second, the RJ movement was designed, developed, implemented in an increasing number of jurisdictions to treat offenders (of various crimes) less retributively (Deukmedjian 2008).

In 1992, the Law Reform Commission of Canada stressed exploring alternatives to the conventional adversarial sentencing hearings and incarceration and recommended consideration of sentencing circles (Manson, Healy, Trotter, Roberts, and Ives 2008: 801). Additional developments in legislation and case law in the latter half of the 1990s proved even more significant for the use of RJ models in Canada. With the passage of Bill C-41 in 1996, two new purposes of sentencing were added to section 718 of the Criminal Code that opened the door for restorative justice approaches: "reparation for the harm done" and "promoting a sense of responsibility in offenders." In addition, section 718.2(e), that stated that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders" was added to the principles of sentencing (qtd. in Manson et al. 2008: 788; emphasis in the original). Section 718.2(e) was considered by the Supreme Court of Canada in the 1999 case of R. v. Gladue. The case involved a young Aboriginal woman, Jamie Tannis Gladue, who pled guilty to manslaughter in the killing of her common law partner. The main legal issue considered by the Court was whether the appeal court erred in finding that the trial judge correctly applied 718.2(e) in imposing a sentence of three years' imprisonment. (2) In addressing this issue, the Court held that the section is remedial and not simply a codification of existing sentencing principles; it alters the method of analysis that judges are to use in sentencing an Aboriginal offender. In particular, the Court held that judges must consider "the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his/her Aboriginal heritage," which reaffirmed the use of restorative justice approaches. Thus, in the latter part of the 1990s, both Canadian legislation (Bill C-41) and case law (R. v. Gladue) endorsed RJ, primarily for First Nations people, in unprecedented and profound ways (Manson et al. 2008; Turpel-Lafond 2005). (3)

Despite serious changes in expectations as to the use of RJ with First Nations people and the heated debate about the merits of using RJ in gender-violence cases, there is limited empirical research on this topic. The purpose of this paper, therefore, is to report on the findings of a study concerning judicial attitudes and experiences with RJ in intimate-partner abuse cases. The data for the study were collected from judges in 1998, between the passing of Bill C-41 and the Gladue decision. These findings are useful not only in reporting judges' views of and experiences with RJ but, given the significant legal changes, in revealing some judges' resistance to and misunderstandings about RJ. More specifically, the findings reported here illuminate potential pitfalls and roadblocks for judges in implementing RJ practices, as well as the potential benefits. Additionally, in light of the ongoing debate as to whether using RJ in gender-violence cases can be consistent with feminist legal decision-making, the study described in this paper is the only one to date that asks judges about their opinions of and experiences with RJ in intimate-partner abuse. In general, the judges reported optimism about, concerns with, and requirements regarding the implementation of sentencing circles in intimate-partner abuse cases that were similar to many of those of feminist scholars. Sentencing circles may offer a better alternative than conventional courts, but will victims feel coerced into taking part in RJ? Will sentencing circle members be capable of understanding the dynamics of intimate-partner abuse? Will the sentencing circle members be biased? Will there be monitoring of the victims and offenders after the sentencing?

The applicability of RJ to gendered violence

Given that feminists fought long and hard to have gendered violence taken seriously by the criminal legal system, it is hardly surprising that the initial feminist responses to using RJ in gender-violence cases were negative. Even so, in 1994, Braithwaite and Mugford reported optimism regarding the use of RJ in gender-violence cases, suggesting that, compared to conventional court practices, RJ could empower abused women. Early feminist concern about using RJ models for intimate-partner abuse was based on the belief that RJ was a reconciliatory model too similar to the earlier and harmful mediation-type practices of the 1960s and 1970s, which failed to hold abusers accountable (Cobb 1997; Goel 2000; Hudson 1998). The first pro-RJ publication by feminists, however, argued that RJ was much more than simple mediation (Presser and Gaarder 2000).

Some First Nations and American Indian scholars document the rarity of intimate-partner abuse in Aboriginal communities in what are now Canada and the U.S. before Anglo-Europeans colonized and obliterated these cultures (Cameron 2006; Goel 2000; Smith 2005). Others suggest that the frustration of experiencing oppression due to class-, race-, Aboriginal-, immigrant-, and/or colonization status puts people at risk of becoming intimate-partner abusers (Coker 1999; 2000; Di Bartolo 2001; Goel 2005). Current statistics indicate that First Nations/ American Indian women are at the greatest risk of intimate-partner abuse of any racial/ethnic subgroup in Canada (Ontario Native Women's Association 1989) or the U.S. (Smith 2005).

In addition to concerns about gender power imbalances, some scholars address the threat of racism and neocolonialism towards both defendants and victims, particularly Aboriginal people, regarding both the conventional courts (Dylan, Regeher, and Alaggia 2008; Nancarrow 2006; Wachholz and Miedema 2000) and RJ practices (Cameron 2006a; 2006b; Cheon and Regehr 2006; Cunliffe and Cameron 2007; Daly and Stubbs 2006; Goel 2000; 2005; Hudson 1998; Smith 2005; Tauri 1998). Specifically, some view RJ as it is currently practised with Aboriginal peoples as another tool of the colonizing state (Cameron 2006a; 2006b; Cunliffe and Cameron 2007; Tauri 1998). Other scholars with concerns about racista and neocolonialism are optimistic that RJ practices can be designed to curb harmful practices (Hopkins and Koss 2005; Presser and Gaarder 2000; Smith 2005). Perhaps the most insistent of the RJ critics, Tauri (1998: 176), views RJ practices with Aboriginal peoples as "indigenizing" the justice system and an "attempted recolonisation of the First Nations communities through the incorporation of their existing social control practices." In contrast, in a controversial article, Stenning and Roberts (2001) question whether Aboriginals suffered discrimination in conventional court sentencing and report concerns that different sentencing (i.e., RJ) for Aboriginals may result in unjustifiable discrimination against non-Aboriginals. Thus, the implications for using RJ in intimate-partner abuse cases are profound for reasons of gender and of race/ethnicity.

Since the turn of the millennium, feminist scholars' support for RJ in gender-violence cases has grown significantly (e.g., Campbell 2008; Chancer 2004; Coker 1999; 2004; 2006; Curtis-Falwey and Daly 2005; Koss 2000; 2006; Koss, Bachar, Hopkins, and Carlson 2004; Presser and Gaarder 2000), primarily for two reasons: (1) the conventional court system has proven to be inadequate and ineffective in responding to many gender-violence cases; and (2) getting tough on crime, including increasing incarceration, is also ineffective in changing recidivism (Hudson 2002). Additionally, recent Canadian studies report that the more stringent policies implemented to take intimate-partner abuse more seriously since the 1980s have backfired for abused women, who may feel ambivalent about or even...