Can Mediation Be Therapeutic for Crime Victims? an Evaluation of Victims' Experiences in Mediation with Young Offenders

Article excerpt

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). …

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