Whither restorativeness? Restorative justice and the challenge of intimate violence in aboriginal communities.

Author:Dickson-Gilmore, Jane
Position:Canada
 
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The issue of partner and family violence in both Aboriginal and non-Aboriginal settings has long presented unique challenges for criminal justice agencies and those who would seek their assistance in addressing this very difficult crime. Dissatisfaction with conventional legal responses, and especially with mandatory charging policies whose implications for victims and families are, at best, mixed, has initiated a shift toward restorative justice and its promises of relationship repair and sustainable healing. Proponents of restorative responses to family violence assert that their focus on healing and communication has greater potential for challenging dysfunctional relationships, empowering victims, and healing families than criminal justice system responses. Push back on these views comes from those who assert that restorative justice presents risks for survivors of partner and family violence, only some of which have been seriously engaged by restorative justice advocates, and that the prevalence, severity, and too-often hidden nature of "crime within the castle" demand the full condemnation and force of the criminal law.

In 2005, Carol LaPrairie and I actively considered the challenges posed by family violence - most notably, intimate partner violence - for Aboriginal decarceration and restorative justice (Dickson-Gilmore and LaPrairie 2005). We cautioned that the nature of this crime, which is epidemic in Aboriginal communities, renders it uniquely resistant to restorative processes that rely on trust, apology, and meaningful communication. How might one effectively and safely engage in restorative processes, when trust is largely absent, and apology is a critical tool of abusers? And where might such cases find a port of entry into restorative or community justice processes, when the risk/need profiles of many Aboriginal offenders suggest that the risks of restorative justice may greatly outweigh the qualified benefits of traditional criminal justice responses?

The debate over the safety and efficacy of restorative versus criminal justice responses, or some hybrid thereof, in addressing family and partner violence persists, and it seems that we are little closer to its resolution or to the provision of safe, sustainable means for holding abusers accountable and emancipating survivors from the vice of partner violence. Aboriginal and other women and their families remain caught between the punitive, often partial, approach of a criminal justice system that assumes dissolution of family is a necessary outcome of addressing the violence and the risks and vagaries of restorative responses that promise much but, thus far, have not been proven to deliver good solutions or free women and children from violence.

Given the limitations implicit in either end of the restorative/ retributive continuum, it may be in the middle ground that we can locate workable solutions. The search for the latter must be cautious, however, and in both Aboriginal and non-Aboriginal contexts a number of hard issues must be addressed before work on the ground can get underway. In the present article, I hope to add some insight to the challenges posed for Aboriginal families and communities by partner and family violence and add my voice to the debate on the propriety of community and restorative processes in addressing that violence. To this end, I will open with a brief elucidation of the nature and extent of family and partner violence in Aboriginal communities, then move on to identify a set of compelling practical barriers impeding efficacious responses to this crime, especially in remote communities. Drawing upon my experiences with northern Cree communities and with restorative justice as both theory and practice, I will explore how these obstacles affect the viability of both restorative (1) and mainstream responses to violence and join the conversation about how we may overcome those barriers while respecting the rights and choices of Aboriginal survivors of partner violence and their children.

Before I begin this analysis, I feel it is important to pause briefly to admit that my sentiments in this debate have always aligned firmly with the push-back crowd. I have long resisted the use of restorative processes in responding to family violence in general, and partner violence in particular. My scepticism of these processes is rooted less in the belief that criminal processes are more efficacious in stopping violence than restorative ones might be, than in what I believe are the greater risks presented by restorative justice, especially in contexts characterized by limited helping resources and supports. I remain anxious about restorative responses to partner violence, but I also stand firm with survivors of partner and family violence that there must be a better way to deal with this crime--a response that not only stops the violence but can truly begin the healing process for women, their children, and the partners with whom they wish to continue some version of the dream of family.

Intimate violence (2) in Canada: What it is and what it looks like in Aboriginal families

[H]e did this for years. So I charged him, I charged him for every one of them [beatings]. And I thought that this would be the last time that he would ever hit me. The judge told him [that] if he does it again he's going to [jail] for a long time. "He's going in for a while," is what he [the judge] said. But for some reason, he still walked away.

--qtd. in Lambertus 2007: 40

Violence against family members, whether involving intimate partners, children, extended family members, or elders sharing the family home, is epidemic in Aboriginal communities. Aboriginal women are almost twice as likely as non-Aboriginal women to be the victim of a physical and/or sexual assault by their partner; they are also more likely to report multiple victimizations. Between 2004 and 2009, 59% of Aboriginal survivors of spousal violence report having been victimized more than once, and 50% were victimized more than three times in that period. This stands in contrast to the experiences of non-Aboriginal survivors of partner violence, of whom 45% report more than one victimization, and 29% report more than three victimizations, in the same time frame (Brennan 2011: 10). The Aboriginal survivors also appear to experience much greater extremes of violence: They are nearly twice as likely to have been hit with some manner of object, or to have been beaten, strangled, threatened, or assaulted with a firearm or a knife, or forced to engage in an unwanted sexual act (Brennan 2011:11). These survivors are also much more likely to report being injured by this violence or to believe their lives were endangered (Brennan 2011:11). Statistics bear out these fears, insofar as Aboriginal women are also more likely to experience lethal violence at the hands of their intimate partners (Native Women's Association of Canada 2010).

The physical costs of family violence are not the only or most enduring injuries. The psychological and emotional costs of surviving and managing a life fraught with intimate terrorism and sporadic violence are not small. Survivors develop habits of hyper-vigilance which are exhausting and exacerbate the anxiety, depression, and reduced social functioning engendered by the violence and control that define this crime. Physical injuries and emotional stress translate into lost time and productivity in the workplace and reduced functioning in the role of parent and homemaker--parents struggling with violence and control are less able to parent well and are more prone to depression, anxiety, difficulty sleeping, low self-esteem, and abuse of alcohol and painkillers (Ansara and Hindin 2011; Woods 2005; Gordon 2000). For those who manage to escape family violence, the consequences can persist: Research into the long-term impacts of intimate partner violence have established that post-traumatic stress disorder (PTSD) is a serious and long-term mental health consequence for survivors, many of whom continue to manifest symptoms of PTSD nearly a decade after leaving the abusive relationship (Woods 2005).

While women are the most frequent recipients of partner violence, in the Aboriginal context, family violence is not limited to that which flows between intimate partners. A 2010 discussion paper prepared by the Cree Regional Authority, the Department of Justice and Correctional Services, and the Cree Women of Eeyou Istchee Association (2010), confirms the statistical profile of Aboriginal family violence as affecting people other than intimate partners (Perrault 2011). The discussion paper reveals that family violence includes not only physical and emotional violence between spouses and intimate partners, whether living together or separately, but also violence by parents against children, including physical, sexual, and psychological violence, or involving nuclear and extended family members who may be living under the same roof or visiting. The violence is also said to include elderly family members and includes such "passive" forms of violence as neglect and financial exploitation (Cree Regional Authority et al. 2010).

Where family violence spreads beyond the intimate partners, the most likely targets are children, who face significant risks of physical, psychological, and sexual violence from family members (Canadian Centre for Justice Statistics 2009). Even where children are spared direct violence and victimization, they experience serious and lasting harm through the secondary victimization implicit in living with and witnessing violence between family members (Graham-Bermann and Perkins 2010). This early exposure to violence has been revealed to be an influential factor limiting the life chances of Aboriginal children. It is a leading cause of the dissolution of families and the removal of children from their homes and into foster care and is implicated as a...

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