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I HAD A sense of déjà vu when I read the recommendations on restorative justice in the Scoping Inquiry into Historical Sexual Abuse in Day and Boarding Schools Run by Religious Orders: ‘The independent report commissioned by the Scoping Inquiry (conducted by the Centre for Effective Services) found that a further feasibility study would be necessary in order to assess this (restorative justice). It is therefore not recommended, at this juncture, that a large-scale restorative justice project be included as part of the government response’.
We have been here before, in 2009 to be precise, albeit with different words. At that time, the National Commission on Restorative Justice, established by Michael McDowell TD as Minister for Justice in 2007, concluded: ‘While no offence should in principle be excluded from the restorative process, certain serious offences such as sexual assaults should be excluded from the initial phases of implementation’. More research was recommended.
Between 2012 and 2014 I undertook research in Ireland with an NGO, Facing Forward, to examine the matter. We trained research interviewers in trauma-informed interviewing. We interviewed 149 people including 30 victim survivors, 24 offenders, 7 judges, 5 legal professionals, 31 therapists for victims and offenders, nine members of dioceses and religious congregations, six senior politicians, nine members of print and broadcast media as well as other relevant stakeholders.
A team of early career research assistants helped with the coding and analyses. We found the time was right for a statutory scheme of restorative justice for sexual violence cases to be implemented in Ireland, and based on the views of participants located in the context of the international literature, we suggested how this could be done.
We adopted a cautious approach to begin, recommending a three-year pilot programme for restorative justice in post-conviction cases for those victims who wished for it, delivered by a state funded designated agency, and we suggested the establishment of a high level group to examine the feasibility of rolling out restorative justice services for all sexual offences, whether involving convictions or not, for victims who want it.
My 2014 study was launched by the Minister for State at the Dept of Justice, Aodhán Ó’Ríordán TD, at a one day conference in City Hall, December 2014, attended by 300 plus stakeholders. Frances Fitzgerald TD, the then Minister for Justice, arranged for Bernadette Fahy, consultant to the research, and myself to meet her officials early in 2015 to discuss the findings and a way forward. One outcome was the establishment of a restorative justice service in the Probation Service, but this service is only for victims of offenders on the books of the Probation Service. This excluded many victims whose perpetrators are not clients of the Probation Service, and it excluded others in whose minds the Probation Service is aligned with the perpetrator. Some victims were never going there and we told the officials so.
In 2014, I conducted a different but related study – this time an international EU funded one, on the potential role of restorative justice in sexual violence across Europe and the globe. This involved site visits to five European countries interviewing experts on restorative justice; an examination of a sample of programmes from six countries; a global survey of restorative justice in which we mapped the international state of affairs from the detailed responses of 81 restorative justice programmes dealing with sexual violence. That project produced multiple empirical journal articles, an edited collection and a full monograph by Oxford University Press (OUP), published in 2022, soon to be available on open access, which also included four personal narratives, including one Irish, of the many we heard during the study.
In the monograph, we addressed most of the issues raised by the Scoping Report including ‘conducting a thorough review of existing literature and best practices, identifying key stakeholders, evaluating potential risks and challenges’, and how to engage ‘with survivors in a respectful and empowering manner’. We engaged with all the concerns raised in the Scoping Report and how risks can be mitigated, based on international practice and research. We did not assess the available resources in Ireland in detail, but that is easily done; in fact, some colleagues have done that in part with support from the Department of Justice, (see RJS4C). We recommended that restorative justice should be available for all victims of sexual violence who want it, with the correct processes and procedural safeguards in place, and suitably trained personnel to deliver it.
While restorative justice is an entirely voluntary process for all parties, and nobody must be forced into it, if some survivors of sexual violence and abuse want restorative justice, the state must explore this possibility for them with the relevant stakeholders, delivered by a competent authority, ensuring compliance with relevant safety and procedural protocols. Broadly described, that is in essence what the Victim’s Directive 2012/29/EU advocates, and it is what the Victims of Crime Act 2017 suggests.
In fact, the Policy Report of the Dept of Justice on promoting and supporting the provision of restorative justice at all stages of the criminal justice system (2023) outlines ‘the Department of Justice’s intent, in line with the Programme for Government to continue to promote and support the provision of restorative justice at all stages of the criminal justice system’. But this is not what the Scoping Inquiry Report, under the remit of the Department of Education, recommends for victims of day and boarding schools.
Neither the OUP monograph nor any of the earlier papers from that EU-funded study were consulted (at least not cited) by either the CES or the Scoping Inquiry Team. Had they done so, they might have come to a different conclusion on restorative justice. At least they would have appeared more informed and up-to-date than the report suggests. The edited collection was noted.
A state-run scheme for all victims/survivors of sexual violence who wish for it is necessary to ensure (a) the availability of the service as of right rather than benevolence, (b) that adequate information is provided to advertise and inform the relevant parties about restorative justice, and, (c) that the practice, policy and procedural safeguards are of an international standard – to avoid shoddy or dangerous practice.
The recommendations of the Scoping Inquiry on restorative justice thus make little sense and can only be seen as reflecting a lack of necessary expertise on this aspect of the study. I therefore respectfully suggest the Minister for Education, The Taoiseach and the Tánaiste reject the recommendation of the Scoping Report to undertake a feasibility study on restorative justice and thus delay progress. Instead, I suggest we move to an implementation plan for restorative justice in response to sexual violence and abuse in Ireland, including for former students of day and boarding schools who wish for it.
If legislation is required to enable and protect legal practitioners in advising their clients from a restorative justice perspective, as we did with the Mediation Act 2017 in relation to mediation in civil cases, then let’s have a Restorative Justice Act. Let’s match the courage of survivors with political courage to move towards innovative justice, and let’s stop repeating the mistakes of the past again and again.
While I am thanked in the Report of the Scoping Inquiry ‘for insights into the impact of inquiries on survivors and matters relating to restorative justice’ let me be clear: the recommendations of the Report regarding restorative justice do not reflect my views.
Dr Marie Keenan, Associate Professor School of Social Policy, Social Work and Social Justice, UCD.
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