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A RESTORATIVE JUSTICE APPROACH TO FAMILY VIOLENCE IN TASMANIA?

A feminist analysis of the strengths and weaknesses of expanding restorative justice
initiatives in Tasmanian Courts.

The Tasmanian Sentencing Advisory Council report into the sentencing of adult family
violence offenders in Tasmania highlights that,
The prevention of male violence against women involves no less than a
transformation of the relations, norms and systems that sustain gender
inequality and violence (2015: 51).
With this in mind, this paper considers criminal justice responses to family violence. It
provides a description and analysis of restorative justice and republican theory. It outlines the
role of restorative justice practices in contemporary Australian justice systems. This paper
develops a feminist analysis of restorative justice and its application to matters involving
gendered violence. It considers the Tasmanian response to family violence under the Family
Violence Act 2004 (Tas), and envisages a way forward, in highlighting the experiences of
Austria and New Zealand. This paper concludes that current family violence proceedings in
Tasmania would benefit from restorative justice techniques.

I.

RESTORATIVE JUSTICE AND REPUBLICAN THEORY

Restorative justice can be defined as a process whereby all parties with a stake in a
particular offence come together to resolve collectively how to deal with the aftermath of the
offence and its implications for the future (Marshall 1996 in Larsen 2014: 2). Parties with a

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stake in an offence can include the victim, offender and the affected community (Strang
2001). Communitarianism, and the idea that justice belongs to the community, are central
themes in restorative justice processes. These themes shape the way in which people
experience justice, and often allow participants to define justice for themselves (Zehr 1990,
Hayden 2012). In this way, restorative justice recognises crime as a violation of people and
relationships, whereby violations create liabilities to restore the victim and put right the
wrong (White 2008). Restorative justice initiatives are therefore diverse, reflecting the
diversity that exists in criminal behaviour. Fundamentally, each of these initiatives is centred
upon the restoration of victims, offenders and communities (Bazemore & Umbreit 1994).

Restorative justice techniques derive from a lineage of indigenous, pre-industrial Western

justice traditions. The term restorative justice was coined to describe victim-offender
mediation programs being conducted in North America during the 1970s (Strang 2001). In
the 1980s circle sentencing practices began in Canada, utilising peacemaking processes
familiar to aboriginal Canadians. Following this, New Zealand introduced Family Group
Conferences in response to decades of dissatisfaction with the treatment of juvenile offenders
of Mori descent. There was some concern among commentators about the limitations of
these victim-offender mediation and group conferencing models. These concerns focused
upon the potential for net-widening, that is, the risk of bringing more people within the
justice system. However, as Marshall (1996: 25) recognises, victim satisfaction in these
programs was high. This focus on victims and their experience of the criminal justice system
emerged as a part of a broader shift in criminology (White 2008). This shift reflected the
themes of republican theory more generally.

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Republican theory provides a value-lens through which the criminal justice system can be
critically assessed. On a practical level, restorative justice processes represent a way in which
the criminal justice system might be reformed to better reflect the principles upheld by
republican theory. A principle theme in republican theory is that of personal dominion (Pettit
1997). Crime is seen to impede personal dominion and in doing so poses a threat to the
broader community. The role of the justice system is to promote personal dominion and foster
communitarianism, thereby mitigating the damage caused by crime (White 2008). Republican
theory gives particular emphasis to the experience of victims within the justice system. This
is the result of republican theorys focus on restoration, reconciliation and healing as opposed
to punishment, proportionality and general deterrence. Republican theory utilises techniques
of re-integrative shaming to appeal to an offenders conscience, while simultaneously
restoring the dominion of the victim. These techniques should be as unobtrusive and as least
restrictive as possible, thereby reflecting the overarching importance of individual liberty.

Critical analysis of republican theory demonstrates its difficulty in identifying the causes of
crime. Republican theory tends to operate at a level of abstraction: providing an interesting,
holistic perspective of crime and criminology that is nonetheless difficult to apply in practice
(McEvoy 2003 in White 2008). Larsen (2014) acknowledges that restorative justice
techniques often fall short in safeguarding participants rights and in developing initiatives
beyond pilot programs. Further issues arise in relation to republican theorys notions of the
self-sanctioning conscience and re-integrative shaming. Here, republican theory fails to take
account of individual bias and prejudice that might constitute an offenders value paradigm
and marginalise them from society. The holistic approach of republican theory also manifests
in many of the theorys strengths. Republican theory situates the criminal justice system
within a broader society, returning responsibility to the community and challenging

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individualistic, bad apple explanations of crime. This critique will be further expanded upon
in relation to the application of restorative justice principles in family violence proceedings.

Restorative justice techniques are now utilised in all Australian states and territories. These
programs are modelled on earlier New Zealand initiatives and are largely focused around
juvenile offenders. Diversion programs for juvenile offenders have become mainstream in
Australian courts. There is a perception that restorative justice is better suited to offenders
who are not yet entrenched in criminal lifestyles (Strang 2001). Over the past decade, New
Zealand has expanded its initiatives to include adult offenders, and some Australian states
have followed suit. Conferencing is now available for adult offenders in New South Wales
and South Australia, circle sentencing in New South Wales and Western Australia, and
victim-offender mediation is offered in all states excluding Victoria. These initiatives have
been well received by offenders and victims. Evidence suggests that restorative justice
techniques may be more effective for prolific offenders and are better implemented postsentence (Larsen 2014). Such evidence suggests that current restorative justice initiatives
could be expanded upon even further. The potential for restorative justice programs to operate
in relation to family violence is therefore topical. A key concern for some commentators is
the power imbalance in many relationships in which family violence has occurred (van
Wormer 2009, Stubbs 2010). This is a significant contention in feminist literature.

II.

A FEMINIST ANALYSIS

There is no single, authoritative feminist analysis of the law (Scutt 1990). Feminist analysis
in this area is marked by the consensus that the law ought to incorporate womens differing

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experiences of life. Feminism questions power and knowledge, thereby challenging grand
theories that suggest a uniform perspective and disregard subjectivities (Smart 1990 in
Gelsthorpe & Morris 1990). In criminology, feminist literature is critical of empiricism and
an unrelenting commitment to objectivity. Traditional, empiricist criminology is reflective of
the Kantian notion of transcendental unity of appreciation, whereby the subject (the
researcher) ought to be interchangeable. Feminist criminologists, such as Naffine (1997),
argue against this radical divide between subject and object. They warn that the specificities
of the masculine hide beneath the generality of what is considered universal (Grosz 1994).
They promote reflective practice and a holistic and non-dichotomised perspective that is
sympathetic to diversity.

Feminist engagements with law reform promote the reconstruction of legal theory and
criminal justice systems so to better reflect diverse perspectives (Scutt 1990). These
engagements do not focus exclusively on women, as without a conceptualisation of men and
masculinity criminal theory is genderless (Gelsthorpe & Morris 1990). It is important to
recognise cultural beliefs about gender and sexuality, as these beliefs can undermine or dilute
the good intentions of law reform. In the absence of such recognition, commentators such as
Daly (2011) question the ability of law to deliver meaningful justice. These commentators are
looking outside of the established criminal justice system to innovative justice responses for
ways forward. Daly recognises that the law, in its traditional form, is a fairly blunt
instrument for changing cultural attitudes. Violence against women is complex and is
situated within a cultural context that is never separate from systems of power and inequality
(Merry 2009 in Hayden 2012). These systems and the gendered nature of violence against
women needs to be considered if law reform is to be meaningful and effective.

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Curtis-Fawley & Daly (2005) situate gendered violence in an entrenched pattern of behaviour
that cycles from stability to escalations in violence to reconciliation. Some victims of this
kind of violence want to continue a relationship with the offender, while others want to sever
it. We require legal systems that accommodate and respect both intentions, while
simultaneously condemning the violence that has occurred. This system should be mindful
not to reinforce the sense of guilt and self-blame often experienced by victims of gendered
violence (Frohmann 1998). Strong condemnation of gendered violence must be tempered by
the risk of negatively impacting victim autonomy. Some victim advocacy groups oppose
increasingly paternalistic policies as they infringe of the autonomy of victims as adults who
have right to ask for help or not (Curtis-Fawley & Daly 2005). Legal responses to gendered
violence must therefore be complex, flexible and reflective. Perhaps most importantly,
however, legal responses should avoid undifferentiated notions of victims and offenders.
Stereotypes of both victims and offenders hinder efforts to respond to gendered violence and
change entrenched cultural beliefs (Daly 2011).

Standpoint feminism provides a useful theoretical lens through which to view family
violence. As a theory it focuses on giving voice to individuals whose knowledges may be
subjugated by dominant discourses. There are parallels between standpoint feminism and
restorative justice. In theory, both promote a non-dichotomised process where choice is
paramount (van Wormer 2009). Standpoint feminism may value-add to restorative justice
techniques, in that it is sensitive to the issues of power, marginalisation and personal
experience that are particularly significant in family violence matters. Standpoint feminism
reflects the value of participant research methods used by ethnographers such as William
Whyte (1943). In adopting the standpoint of those involved in offending, the researcher is
able to gain an intimate insight that is unattainable to more distant, objective observation.

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This is reflected in the work of sociologist Howard Becker in Outsiders (1963). A

standpoint feminist perspective acknowledges that our place in the world affects what we
can know and understand (Naffine 1997). Although it can be criticised for generalising a
singular woman or victim standpoint (see Spelman 1988), standpoint feminism offers
insights into family violence and the legal approaches that may be applied.

III.

THE TASMANIAN EXPERIENCE

The Tasmanian response to family violence is encapsulated in the Safe at Home whole of
government initiative. This program was enabled by the Family Violence Act 2004 (Tas) and
was accompanied by an extensive community education campaign. Safe at Home was based
partly on the Duluth model developed in the 1970s-1990s in Minnesota. The Safe at Home
program is centred around the principles of pro-arrest and pro-prosecution that underpin the
Duluth model. The Duluth model is considered a feminist antiviolence approach (Hayden
2012) as it prioritises victim safety and situates family violence as a public crime rather than
a private matter. Under the Tasmanian legislation, family violence is recognised through a
conduct-based definition that incorporates physical, sexual, emotional, psychological and
economic abuse (Wilcox 2007). Family violence offences may be committed against partners,
ex-partners, parents, family members and caregivers, as well as friends and housemates in a
domestic setting. It is important to acknowledge that statistics demonstrate that family
violence is committed predominately against women by men (ABS 2012). Studies also
suggest that family violence offending is grossly underreported (Safe at Home Annual Report
2013).

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Safe at Home has been subject to a number of reviews since its inception in 2005. These
reviews highlight the strengths and weaknesses of the Tasmanian response to family violence
and make recommendations for improvement. In 2008 the Urbis report, a review of the
Family Violence Act 2004 (Tas), indicated a slight reduction in incidents of family violence
following the introduction of the legislation. In 2009, a review of Safe at Home in its broader
context reported concerns regarding lenient sentencing practices and the perceived failure of
courts in taking family violence seriously. A number of internal progress reports have also
been conducted. These reports demonstrate that in 2012-2013 Tasmanian police responded to
2,248 incidents of family violence and arrested 90% of offenders related to those incidents.
During the same time period, 893 family violence offences were sentenced in the Tasmanian
Magistrates Court. The majority of these matters were dealt with using orders for good
behaviour or by the imposition of a monetary penalty (Safe at Home Annual Report 2013).

While Safe at Home has created a holistic response to family violence, some aspects require
reform if the program is to remain consistent with its goals relating to long term prevention of
family violence offences. Such reform may benefit from principles of restorative justice.
Wilcox (2007) identified dual accountability for compliance orders and the absence of a
specialist court as areas that require attention. Dual accountability, for example, disregards
the complex power relations in abusive relationships and poses increased risks for victims.
The Safe at Home Internal Performance Review Report (2014) highlights that there is a lack
of intervention aimed at changing offending behaviour, and that this is perceived by
stakeholders as the major barrier to achieving the long-term safety of victims. The report
also conveys the frustrations of those working within the system regarding the heterogeneous
nature of family violence and the difficulties of a one size fits all response. Service

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providers suggest that extending offender intervention and adopting a more therapeutic model
may better reflect the original aspirations of Safe at Home.
The reports of both the Tasmanian Sentencing Advisory Council (Observation 12, 2015) and
the Safe at Home Internal Performance Review Report (Recommendation 8, 2014) express
favour towards the creation of a specialist family violence court in Tasmania. A specialist
court with dedicated personnel can better appreciate the dynamics of family violence and
offender typologies. Specialist family violence courts are sufficiently equipped to meet
legislative goals through enhanced training for magistrates, acknowledging the needs and
experiences of victims and in exercising power in concurrent jurisdictions (e.g. family law)
(Wilcox 2007). Where in conventional courts confrontation prevails over communication
(Braithwaite 2005 in Stubbs 2010), specialist courts are collaborative, adaptive and reflexive.
A specialist court may better reflect the principles of both restorative justice and standpoint
feminism. They are equipped to meet the needs of victims and their shift in status from
victim to witness (Daly 2011) and integrate services in a holistic way.

The Safe at Home Internal Performance Review Report (2014) emphasises the strength in
pro-arrest, pro-prosecution strategies in holding offenders accountable for family violence. It
is suggested that ensuring the safety of victims outweighs the potential of negative victim
interaction with the criminal justice system. Victims may experience frustration with the
current system when prosecutions are pursued without their consent. When looking at South
Australian family violence matters, Curtis-Fawley and Daly (2005) reported that one half of
victims of family violence wanted to see perpetrators punished. A similar percentage of
victims were motivated by a more abstract sense of justice and desired accountability not
necessarily retribution. In interviewing victim advocates, Curtis-Fawley and Daly reported
that those advocates who had spent the greatest time working in the field were most

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favourable towards restorative justice. These advocates were disillusioned with the system as
it stood and argued that restorative justice practices ought to operate parallel to established
criminal proceedings. More generally, Daly (2011) has argued in favour of educational
campaigns, as these are more likely to be effective in preventing gender-based violence than
traditional criminal law mechanisms.

IV.

THE WAY FORWARD

The use of restorative justice techniques in Austria and New Zealand offer insight into how
Tasmania may develop its own practices. In Europe, restorative justice has been considered
and developed through initiatives of the Council of Europe and the United Nations. In 1999,
the Council of Europe produced an extensive framework for victim-offender mediation,
recognising mediation as a flexible, problem-oriented participatory option that can be
complementary to, or an alternative of, more traditional criminal justice. Shortly thereafter,
the Economic and Social Council of the United Nations passed resolution 2002/12, entitled
Basic principles on the use of restorative justice programs in criminal matters. These
principles highlighted victim protection as an important aim of restorative justice
proceedings. In 2009, the United Nations produced a handbook for legislation on violence
against women that recommended states explicitly prohibit mediation in all cases of
violence against women. This recommendation is underpinned by the argument that
mediation may lead to reprivatisation of family violence. More recently, in 2014, Article 48
of the Istanbul Convention of the Council of Europe prohibits signatory states from enforcing
mandatory methods of alternative dispute resolution in family violence matters.

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Despite the caution expressed by the United Nations and the Council of Europe, most
European states offer voluntary restorative justice interventions in cases of family violence.
In Austria, victim-offender conferencing matters are referred to Neustart, an independent,
nationwide provider of services for offenders and victims of crime. Neustart provides
conferencing in over 1200 family violence cases each year (Drost et al 2013). Importantly, a
methodology has been established for dealing with matters involving family violence. This
involves the use of mirror stories where two mediators of the opposite sex relay to each
other what they have heard from the victim and offender. These methods aim to reduce the
impact of power disparities in the restorative justice process. Victim rights are carefully
protected under Austrian legislation (DAIC Vienna 2013), including the right to assistance at
all stages of criminal proceedings. Access to victim-offender conferencing occurs after a
referral is made by state prosecutors and upon the agreement of both the victim and offender.
The process itself is carried out by social workers. Studies on the Austrian method have
reported significant victim empowerment in this process (Pelikan 2010).

In New Zealand, Restorative Practices Aotearoa provides performance standards for

providers of restorative justice. Restorative justice techniques have a significant alignment
with Mori values such as reconciliation, reciprocity and the involvement of Whnau in
decision making (van Wormer 2009). As a result of this similarity, family group conferencing
was introduced as a meaningful way to address youth offending in the late 1980s. By 2002,
conferencing for adult offenders was formally recognised under the legislation and guidelines
for best practice were produced by both the New Zealand Ministry of Justice and Restorative
Practices Aotearoa. In 2013, the New Zealand government released a set of standards for
restorative justice in family violence matters. These standards recognise the importance of
victim safety, engendering a sense of justice and maintaining the inherent flexibility of

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restorative justice (NZ Ministry of Justice 2013). In practice, restorative justice techniques
encourage the engagement of community members in informally monitoring the offenders
behaviour. This is particularly appropriate where victims of family violence do not seek to
end their relationship with the offender.

V.

CONCLUSION

In conclusion, it is possible to identify a number of strengths in the implementation of

restorative justice techniques in family violence offences. Restorative justice encourages a
dialogic encounter between victim and offender that has the potential to condemn violence in
ways that are meaningful for those involved. This environment encourages admissions and
validates the experiences of victims (Daly & Stubbs 2006). More broadly, it creates a space
for conversation that isnt confined to legal relevancies (Curtis-Fawley & Daly 2005).
Ultimately, restorative justice has the potential to mitigate, not perpetuate, power imbalances
by giving victims a voice in the criminal justice process. It recognises the standpoint of
victims and gives them authorship in constructing safe and effective outcomes (Stubbs 2010).

There are compelling arguments, however, that caution against an unrestrained foray into
restorative justice and family violence. These arguments centre around the risk to victims
posed by power disparities. Rubin (2003) warns that a poorly planned informal process can
be detrimental to victims safety, and can in fact be worse than doing nothing at all. Due to
their informal nature, restorative techniques may be seen as a soft option, cheap justice or
the watering down of crimes against women (Curtis-Fawley & Daly 2005). Feminists and
victims advocates who worked to have family violence recognised not as a domestic matter

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but a crime against the state fear the reprivatisation of family violence offences. It is possible
to argue that serious offences should be treated as such, and should not be diverted outside of
the formal criminal justice system. However, it is also possible to argue that the delineation of
formal and informal justice does not reflect meaningful and effectual justice.

Stubbs (2010) identifies that we should not confine ourselves to either conventional criminal
justice or restorative justice. Hybrid justice models may be best suited to respond family
violence and the entrenched gender inequality that exists in society. This may be in the form
of diversionary processes, like the court mandated drug diversion (CMD) scheme that
operates in Tasmanian Magistrates Courts, or it may lie in a specialist family violence court.
A feminist perspective offers important insights into how the criminal justice landscape might
adapt to family violence matters. Feminist analysis identifies the need to respect and
acknowledge the role of victims in proceedings. It recognises the value in meaningful,
dialogic justice that is flexible and innovative. As was noted at the outset of this paper,
preventing male violence against women involves transforming social relations and the
structures that underpin inequality and violence. While the criminal justice system cannot be
tasked with the enormity of this feat, it has an important role to play. This paper concludes
that, if carefully planned and implemented in light of feminist literature, restorative justice
could form a part of this role.

3,621 words.

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