Restorative Justice A better approach to justice for

Restorative Justice – A better approach to justice for elders as victims? Michael O’Connell Commissioner for Victims’ Rights

Crime and the Elderly - Abuse and the Elderly Phase 1 – high victimisation of the elderly Phase 2 – disproportionate impact of crime on the elderly Phase 3 – excessive fear on the part of the elderly Phase 4 – defining the problem of victimisation of the elderly (Clarke 1989)

Elder Abuse? • World Health Organisation (2002) – Declaration on the Global Prevention of Elder Abuse: “Elder abuse is a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person. It can be of various forms: physical, psychological / emotional, sexual, financial, or simply reflect intentional or unintentional neglect. ” “Elder abuse is the violation of human rights and a significant cause of injury, illness, lost productivity, isolation and despair. Confronting and reducing elder abuse requires a multidisciplinary approach. ”

Nature of Elder Abuse Passive neglect – not given attention & help by family Active neglect – deliberate withholding of needs of life Societal neglect – neglectful practices of a community / society Physical abuse – actual (threatened) physical violence Sexual abuse – indecent assault, rape Psychological abuse – shouted at, threatened, humiliated Exploitation – manipulation resulting in giving up money, personal property (Too often, multiple types of elder abuse co-exist. )

Consequences / Effects of Elder Abuse Physical – bruising, injury, death. Psychological / emotional – feelings of isolation, shame, anxiety, fear, helplessness. Economic / financial – lack of money (or control over financial decisions), loss of personal property Social – inability to access health & welfare assistance, unable to meet basic needs

Values & Attitudes towards Elders & Abuse Discriminatory and / or negative attitudes towards elderly Public apathy & acceptance of (especially in family) of abuse Exploitation of ‘powerless’ people, such as the many elderly dependent on others Materialism – individual and collective greed Negative attitudes and tolerated, yet inappropriate, behaviours in institutions

Remedies – Prevention & Reduction Focus has (until recent years) been on preventing (conventional) crime against the elderly Reduce social isolation Cater for fear of crime Promote home security Offer advice on personal safety Provide access to means to make practical changes Raise community awareness (Doherty 1991) Criminal justice (law enforcement)

Responding to Elder Abuse Challenges • Lack of awareness. • Lack of leadership. • Inadequate funding. • Incomplete knowledge. • Inconsistent practices. • Impediments to reporting. • Obstacles to accessing assistance. • Failure by others to take abuse seriously • Impunity of perpetrators • Nature of consequences for perpetrators

Promising practices - Responding to Elder Abuse • Multidisciplinary interventions & interdisciplinary teams. • Co-ordinated ‘inter-agency’ response. • Laws & procedural reforms. • Intervention (specialist) courts. • Religious / faith institutional engagement. • Victim assistance. (Burgess et al 2013; Heisler 2012; Starr 2012; Groh 2010 & 2003)

An alternative way of responding to Elder Abuse • Restorative Justice is (too) often purported to be a panacea; however, are victims, such as victims of elder abuse, better off?

• There is robust discussion on what restorative justice is or should be (Daly 2005) • It is neither easy to define, nor is there a single and uniformly agreed definition. • It is not rehabilitation repackaged… It is not (exclusively) part of the victims’ rights movement… (Johnstone 2002) • Its aims do overlap with those of rehabilitation programmes and those of the victims’ rights movement. (Johnstone 2002)

• Restorative justice A process to achieve a restorative outcome (UN 2006) • Some existing programmes have restorative elements (e. g. victim impact statements; family conferences; victim-offender mediation (although Braithwaite (2009) distinguishes mediation and RJ) • Restorative justice portrayed as an alternative to the limitations of retributive justice

• Some assertions have resulted in • Misleading characterisations of existing criminal justice systems • Sweeping statements about the merits of restorative justice • Unreasonable expectations.

Pros & Cons of Restorative Justice Enhance victim satisfaction (with process and outcome) Victims’ satisfaction is generally lower than offenders’ satisfaction Satisfaction with what? Procedure, information, assistance, compensation ‘Waterloo Elder Abuse Project’ – 7 of 10 participants interviewed (only half of the 10 were present during the intervention); and of those interviewed: • 50% agreed they were ‘satisfied’ with the process, 37% were ‘uncertain’, 13% disagreed (‘unsatisfied’) • 71% agreed they were ‘adequately informed’ (29% disagreed) • 86% agreed they were ‘supported’ (0% disagreed) • 43% agreed there was acknowledgment of the injustice to the victim (57% disagreed)

• Higher compliance & collection rates than courtordered compensation • In general research findings show: • • Compliance is higher when offenders are monitored Offenders’ apologies – victims have varying views on sincerity • • • ‘Waterloo Elder Abuse Project’ – of those interviewed 83% did not believe that the offender felt remorse Some victims sceptical about offenders’ motives Some victims felt the process (possibly outcome) was too lenient • ‘Waterloo Elder Abuse Project’ – of those interviewed 75% agreed the outcome was appropriate for the offence (abuse); 25% were uncertain & 0% disagreed.

• Integrates victims’ participation and provides recognition of victims’ rights • Programmes limited by victim participation • • • Some victims upset by what offenders (and/or their supporters) said Some victims found the experience unsettling even intimidating • • ‘Waterloo Elder Abuse Project – only half of the ten were present during the intervention ‘Waterloo Elder Abuse Project’ – 7 of 10 participants interviewed (only half of the 10 were present during the intervention); and of those interviewed 100% agreed their safety was ensured and 100% agreed the process was efficient. Some victims feel worse after participating

• Reductions in recidivism, thus prevents victimisation • • Research has produced mixed results Most effective in reducing recidivism when offenders are engaged in rehabilitation programmes but this is not unique to restorative justice

• Improvements in offenders’ attitudes toward victims and towards offending • • Unclear if any improvements are transferrable to other victims Unclear if changes in attitudes are preventive

• Some additional ‘flaws’ in the practice of RJ: – Offenders have access to legal aid; victims do not. – Offenders have veto power, victims do not. – Offender focused rehabilitation greater attention than victim rehabilitation – The Waterloo Elder Abuse Project appears to be an exception. – Enforcement of understandings / outcomes.

• Pointers evident in the final evaluation of the Waterloo Elder Abuse Project • • 63 inquiries for information about the project 45 of these were referred for intake 38 of these were assigned to a facilitator 19 of these were assessed as not appropriate for the ‘circle process’ 9 cases completed involved ‘circles’ or were resolved during preparation for ‘circles’ 10 cases were not pursued because the elder victim did not wish to proceed “[Several cases] were resolved by criminal justice interventions” (Groh & Linden 2011)

(it seems to me) Restorative justice Despite the strength of some research; many of the findings should be interpreted with caution. Research provides lessons to inform reform of adversarial criminal justice and other responses to elder abuse. Can augment criminal justice responses – much elder abuse is a crime

• Personal observations: – Can we have justice at all if there is no justice for victims of elder abuse? – (procedural & distributive justice) – Restorative justice offers promise of a better justice, so it is appealing, but it is not a panacea. – Restorative justice is not an alternative, rather it is another ‘weight’ on a continuum to shift the centre of gravity from the unjust towards the just. – Insofar as restorative justice can play its part giving true voice to victims of elder abuse the jury is still out but the indications are appealing, despite the flaws. The evidence, however, does not prove a case for restorative justice beyond reasonable doubt.

WSV & Partners – Draft Convention on Justice for Victims of Crime and Abuse of Power • Article 9 - Restorative justice • (1) State Parties shall endeavour, where appropriate, to establish or enhance systems of restorative justice, that seek to represent victims’ interests as a priority. State shall emphasize the need for acceptance by the offender of his or her responsibility for the offence and the acknowledgement of the adverse consequences of the offence for the victim in the form of a sincere apology. • (2) State Parties shall ensure that victims shall have the opportunity to choose or to not choose restorative justice forums under domestic laws, and if they do decide to choose such forums, these mechanisms must accord with victims‟ dignity, compassion and similar rights and services to those described in this Convention.

What are some of the lessons? • Elder people as victims of abuse must be treated with respect and dignity • Victim safety is paramount (power imbalances, amongst other concerns, must be taken into account) • Victim participation (in-person / representative) must be voluntary and the victim should be permitted to withdraw at any time during the process (i. e. a right to choose whether to participate or not, and when) • Victim should have the right to have a say on decisions that affect them • The process must be sensitive to victims’ needs and concerns (i. e. victims’ justice (Daly 2012)) • Victims must be well informed about the process (including limitations) and possible outcomes (including implications of offender non-compliance) • Victim participation should be properly supported (including victim preparation and rehabilitation)

What are some of the lessons? • Timing must be ‘right’ for the victim • The practice / process should be designed, developed & delivered in a culturally appropriate manner mindful of victims’ needs • Offenders should only be eligible if they accept responsibility for their offending behaviour • Suitability should be assessed on a case-by-case basis, not necessarily an class of offence basis • RJ in practice should neither be a mask for ‘public justice’; nor a gag on the victim • RJ is not suitable for all cases • Such lessons (e. g. the importance of victim participation) should be applied at different stages of the ‘existing’ criminal justice system

Sadly, too many elders as victims of abuse are over-looked, their needs unmet and their rights not honoured. The way we care for our elderly and other vulnerable people is a measure of our humanity and civility.