Below are power points by Elly Hanson (see her Bio at the bottom) from the workshop held by The Southmead Project
6th January 2016
Part of the “wall of Silence” exhibition
“Many survivors may seek a deep acknowledgement of what they have experienced and its impact and at the very least, respectful interpersonal treatment by those in authority. There is a recognition that such things are not always prioritised or present.”
•Explore what justice means to survivors and compare this justice with what is currently on offer and other models and possibilities
•Develop ideas on what should be changed and how
•We see this as the beginning of something, and you playing an important part in this process
•Similarity and difference: there are some principles that are likely to be universal; there are also different preferences and different situations – nuanced responsiveness to these differences may be an important part of holistic justice, i.e. one size doesn’t fit all
•Justice whether in child or adulthood
•You bring to this workshop your own experiences, those of others that you know of, your views and your values – please have confidence to share and contribute
•What is justice from survivors’ perspectives? (some caveats)
•Different ways abusive people may respond to what they have done, and the impact of these on sense of justice or wellbeing
•Current systems and problems
•Alternatives in particular inquisitorial and restorative forms of justice
•Discussion groups – questions along the lines of:
What should be the minimum standards and provision to child and adult survivors around justice?
Should there be a campaign to increase justice – if so, what should it focus upon? What other ways can we achieve change?
WHAT IS MEANT BY ‘JUSTICE’ HERE?
•Absolute justice is of course that the abuse never took place in the first place
•But in the situation where child abuse has happened, justice might be thought of simply as: what is the right and fair thing to happen next? What should happen?
•Important ideas it relates to and draws on: human rights, fairness, equality, and liberation
•Focus of this workshop foremost on the justice system, second on other societal systems and responses, but at the same time we need to keep hold of how many people and systems are relevant to a survivor’s sense of justice, for example:
PEOPLE AND SYSTEMS RELEVANT TO JUSTICE
Criminal justice system
Social services, NHS
Family and friends
They each have opportunities to facilitate justice.
WHAT KINDS OF JUSTICE DO SURVIVORS VALUE?
‘I felt respected, believed and supported, even when my memories were confused. I was often reminded that I was a child at the time of the crime who needed safety, care and protection; abusing adults not children are responsible for the crime. Didn’t feel so alone! Felt part of a strong protective team.’
Shereen Lincoln (Living as your hero)
‘Part of justice is seeing the effort for justice they put in and the impact of that’
Survivor quoted in Holden (2014)
THEMES IN SURVIVORS ACCOUNTS OF WHAT ‘JUSTICE’ MEANS TO THEM INCLUDE:
➢Validation and acknowledgement by the system & community in relation to what happened, its seriousness and its impact
➢Respectful interpersonal treatment from the system (‘procedural justice’), e.g. taking seriously, recognition of standing, feedback, attending to their welfare
➢Safety for themselves and others
➢Deprivation of offenders’ undeserved status (esp. relevant to abusers with status)
➢True responsibility taken by enablers & accomplices as well as offender(s)
Herman (2005); Holder (2014); Wemmers (2013)
WHAT KINDS OF JUSTICE DO SURVIVORS VALUE?
‘What if one of those other girls went forward; maybe this would never have happened to me. That’s what keeps me going. I kept thinking I’m protecting someone else.’
‘I want him to be seen for what he is by the people who matter to me.’
‘My ideal of a just resolution in my case would be that my father would confess to everything… in a way that I and the rest of the family could believe and trust… I want to be believed, not just on the basis of my word alone’
‘[The prosecutor] said to me “Julie I don’t think you really know what happened.” That hurt more than the rape. I’ll never forget that line.’
‘I knew as a lawyer that you file papers, and then they deny everything. I knew that. It doesn’t mean anything to lawyers, it’s a ritual, but still it affected me… I felt: What do you mean they’re denying it?
They know this happened!’ Ross Cheit, lawyer, academic, survivor
‘By victimizing me, the wrongdoer has declared himself elevated with respect to me, acting as a superior who is permitted to use me for his purposes. A false moral claim has been made – this false moral claim [demands] correcting.’ (Hampson, 1988)
A FEW POINTS TO CONSIDER
•Research shows that some of these forms of justice are associated with increased wellbeing and fewer difficulties – e.g. unfair CJS procedures are correlated with PTSD, & control within the system leads to greater general empowerment (Wemmers, 2013; van Wormer, 2009)
•In the limited research on this topic, survivors of violent crime did not emphasize punishment, deterrence or rehabilitation (some caveats)
•Although they emphasised the importance of control and supervision in the prevention of re-offending
•What do we think of this list – would we add or remove from it?
•It seems that we may expect or hope for different forms of justice following sexual abuse than we do sometimes following other forms of abuse, e.g. emotional abuse or neglect – what might be the reasons for this? (acknowledgment; particularity of intentional use of a child for own purposes?)
•What, if anything, should be expected from the person(s) who abused?
•Tries to understand & respect the abused person’s feelings and experience
•Accepts culpability for their acts & their impact
•Faces and carries feelings of shame & remorse
•Doesn’t have expectations or make demands of the abused person
•Recognises that abusive behaviour is ‘unforgivable’
•Extends oneself through consideration of others’ feelings and experiences, without ‘strings attached’
(Jenkins et al., 2002)
•‘Quick-fix’ solutions which involve avoidance of responsibility
•Feelings of personal loss which are confused with remorse
•Apology as a means of achieving pardon
•Apologies carry implicit demands
•A sense of entitlement to resume relationships following restitution attempts
•How does the position an abusive person takes affect our sense of justice?
•Would we add anything to the other-centred list?
•How might the justice system impact the position an abusive person takes?
THE CRIMINAL JUSTICE SYSTEM
Aims: Deterrence, punishment, incapacitation, rehabilitation
Police, CPS, judge decision-making:
arrest, charge, bail & prosecution
Procedural justice: for example – being treated with respect,
having an influential voice, having the right information at the right time
POSITIVE CHANGES IN RECENT YEARS
•Child sexual exploitation prioritised as a ‘national threat’
•Revised CPS guidance – victim vulnerabilities should not be seen as signs of lack of credibility
•‘Special measures’, e.g. screens & video links
•Training for prosecution barristers and judges
•In cases with multiple perpetrators, the judge can order only one defence barrister to cross-examine
•Victim impact statements
•Rights to greater accountability and speedier feedback
SOME NEGATIVE THEMES
•Police appear to exercise considerable latitude in whether they investigate allegations and how much resources they invest
•Safety of victims not always appropriately prioritised and standard investigatory processes can compromise this
•The process makes many people feel too fearful to come forward (not just its adversarial nature)
•Attrition at all points in the process
e.g. Bunting (2008) found that in Northern Ireland only a fifth of recorded child abuse allegations resulted in detection and formal sanction (e.g. charge)
•Routine delays and problems, often associated with the very measures designed to ease stress
•Some evidence that guidance is not being acted upon, as it goes against ingrained cultures and embedded incentives
•Sentences perceived to be low compared to other serious crimes, bail decisions and community supervision etc not victim-centred
•Survivors deprived by therapeutic support they have a right to
THE ADVERSARIAL APPROACH (1)
‘Can I just make the position clear to you that I do not accept that you ever spoke to your mother about your stepfather sexually abusing you’
numerous times ‘I put it to you that you are lying’
‘During the day I can cope with it. In my sleep… you can’t control your subconscious’
(Tina Renton, You Can’t Hide)
THE ADVERSARIAL APPROACH (2)
1. ‘That is simply not true’
‘You are indulging in the realms of fantasy’
‘Utter fantasy is it not?’
‘This is a lie’
‘What you have told this jury is a complete pack of lies’
2. ‘She described it as feeling as if she had been assaulted all over again. All that she could think was that she was being attacked.’
‘I really understand why so many cases have not come to court’
3. A few days after her court appearance, Francis Andrade killed herself
THE ADVERSARIAL APPROACH (3)
Recent findings from observations of 18 rape or sexual assault trials in the UK:
•Extreme interpretations of ‘right to a fair trial’ and supposed culture of ‘neutrality’ lead to judges and prosecution barristers not intervening enough to stop irrelevant or distressing questioning
•Victims’ rights subordinate to defendants’ rights
•Use of stereotypes to influence the outcome of a trial despite many being aware that the issues they raised were myths – incentivised to use them – ‘winning at any cost’ is the priority, not discovering truth
•To arouse suspicion of the survivor they also used invalid comparisons between survivor’s behaviour and supposedly rational behaviour in hypothetical scenarios
•Manipulative questioning and criticism particularly directed towards victims
•Extreme interpretations of ‘Beyond reasonable doubt’
Smith & Skinner (2012); Smith (2015)
THE ADVERSARIAL APPROACH (4)
‘Beyond reasonable doubt’ requires the absence of reasonable doubt, not no doubt at all… yet for example:
‘It’s just saying… how can I be sure? I wasn’t there at the time’
‘If you think there is any possibility… not probably lying or must be lying, but do you think there is ANY possibility… it’s not saying to her that she’s lying, it’s just saying I’m not sure’
•And leads to a focus on whether the victim can be believed rather than the defendant
Smith & Skinner (2012); Smith (2015)
THE ADVERSARIAL APPROACH (5)
•There is no clear evidence that this approach helps to discern truth (Park, 2003)
•Lawyers often focus on hiding parts of the picture and distorting it
•Inhibits the use of clarifying questions even by prosecutors, because fear of backfire prevents lawyers delving into the unknown
•‘It seems likely that the greatest legal engine for discovering the truth is discovery and investigation, not trial cross-examination’ (Park, 2003, in an examination of the impact of adversarial questioning)
•Encourages abusive persons to be pitted against survivors, and to become entrenched in self-righteous denial
•It may be best thought of as on a continuum with adversarial approaches – different emphases
•Focus on the uninhibited pursuit of the truth, versus establishing ‘fair play’
•Holland e.g. judge or panel consider written evidence and reach a conclusion, may interview as well
•Countries with inquisitorial systems have higher rape conviction rates (Kelly & Lovett, 2009)
•Less expensive and time-consuming
•Current inquisitorial systems are not without their limitations & risks, e.g. often judges instead of jurors used & they may have different biases
ALTERNATIVE / COMPLEMENT:
•Different aims from traditional criminal justice:
greater survivor empowerment; healing & closure; resolution; validation; offender accountability (and rehabilitation?)
•Process should amplify survivors’ voice and their influence in directing justice
•Requirements: Victim-led, voluntary, offender must take responsibility
Keenan & Ailbhe (2015) van Wormer (2009) McAlinden (2011)
STYLES OF RESTORATIVE JUSTICE:
•Family group conferencing
•Community reparation, e.g. truth commissions
•Key features: training, preparation, personal choice, attention to safety and boundaries
RISKS OF RESTORATIVE JUSTICE IN CASES OF CHILD SEXUAL ABUSE
•Pressure on survivor to forgive, accept reparations
•Reinforce power dynamics, re-enact violence
•Some offenders may use it as an opportunity to further terrorise or gain information etc (not appropriate to all offenders by any means)
•Particular difficulties with child victims, e.g. too much responsibility
•Many more complexities and risks when as an alternative to CJS versus a complement…
•Others that we would add?
ALTERNATIVE FRAMEWORK TO CURRENT SYSTEM:
•Victim and offender justice are addressed by parallel, decoupled systems
•Victim support needs are met regardless of what is anything is happening with the offender
•A framework into which RJ could sit?
(Westmarland, 2008; Herman, 1999)
‘If I had a magic wand I would in one instant create a dedicated service for victims of crime where they could go to initiate a RJ process with the person who harmed them if this is something they would seek… I often think that there must be many people out there who are right now suffering.. and who may have a better quality of life in the long run if they were given the option to engage in the RJ process. However they do not known that it exists or how to seek it and to me that seems like a great pity.’ Ailbhe
•Specialist national team for investigation of organised primarily offline child abuse
•Legislation that helps survivors to come forward without fear of prosecution for their forced ‘participation’
•New rules around bail, ability to conduct search warrants
•Develop and evaluate, with the idea of rolling out, an inquisitorial approach to child abuse, sexual violence and domestic violence
•Develop, evaluate, potentially roll-out restorative justice options for all survivors
•Specialist courts with specialist professionals and more informal atmospheres
•Independent representation for victims in the court room
•More personalized rehabilitation, including dealing with own victimization if necessary
•Centres for children (that already exist in many other countries) which co-ordinate professional involvement, minimize interviews and involvement with the CJS, & provide support
•Asset seizure; reparations made to survivor organisations
WHAT SHOULD OTHER PARTS OF THE SYSTEM BE DOING TO IMPROVE JUSTICE FOLLOWING ABUSE?
•The voluntary sector
… bearing in mind holistic justice and human rights, for example:
‘State parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse… in an environment which fosters the health, self-respect and dignity of the child’
UN Convention on the Rights of the Child, Article 39
•Should the government work to key principles for improving justice around child abuse? If so, what should these be?
•What should be the minimum standards and provision to child and adult survivors around justice?
– in the criminal justice system?
– in other systems / parts of society?
•Should there be a campaign to increase justice – if so, what should it focus upon? (top 3?) What other ways can we achieve change?
•Keeping connected and further workshops
And possibilities ahead:
•Local initiatives and evaluation
ABOUT THE AUTHOR & FACILITATOR:
Dr Elly Hanson is an independent Clinical Psychologist who works in the field of abuse and trauma. She is a consultant to the CEOP Command of the National Crime Agency (NCA) and within this role she provides advice and training to the NCA and local police forces in relation to working with survivors of sexual abuse and exploitation. She also undertakes psychological assessment and therapy, academic research, and policy work with other organisations. Her publications include a Centre for Social Justice policy report on domestic abuse, and an evidence scope for Research in Practice on serious risks facing adolescents.
She has previously worked in an NHS substance misuse service, helping adults overcome difficulties relating to childhood trauma and domestic violence, an NSPCC service for young people with sexually abusive behavior, and a company providing residential care for looked after children.