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The Implications of Restorative Justice For Aboriginal Women and Children Survivors of Violence

Why is it the offender gets all the rights and the victim remains the victim no matter which way you look at it? (SC)

One of our prime motivating factors for this project was to examine the differences in experiences of violence between urban and rural communities, and to look at the implications of implementing restorative justice and alternative measures in each of these communities. In light of our discussion on power imbalances between urban, off-reserve and rural, on-reserve Aboriginal women, above (page 9) we are very interested in learning about the particular impacts on women’s lives in remote communities. For all the communities that we consulted with on the possibility of these reforms, it was consistently identified that woman felt there was a dramatic power imbalance between men and women. Though women expressed that Aboriginal peoples are generally treated as second-class citizens, they felt that Aboriginal women bore the greatest burden of this discrimination and are the ones who are subjected to the highest levels of violence within their families and communities. Just as examining violence in our lives, as Aboriginal peoples, requires that we understand the social condition of colonization, we must also understand patriarchal systems and male domination in the lives of Aboriginal women. Further, we must fully grasp, and come to terms with the fact that, in addition to colonization and patriarchy, there are also dynamics of power and privilege operating between off-reserve, urban, and on-reserve rural Aboriginal women. Finding a basis of unity with each of these forms of oppression is exactly what AWAN has struggled to move toward, for the sake of bringing social justice into the new justice reforms.

It was evident in many of the accounts that women felt they had less power in their communities than men and that the system was designed to privilege and benefit males. The power imbalances within these communities are usually complex and bureaucratic. Band councils were often cited as reflecting the ways of the colonizer, with men holding power in the communities. Focus group participants expressed tremendous concern with the diversion of cases of violence against women and children because they felt that the majority of support goes to offenders along with a prevalence of victim-blaming mentalities. A lack of concern for the safety needs of women and children, particularly in isolated communities was also cited as a major concern in processes such as “Victim-Offender Mediation”. In such situations, women must confront her abuser. This could have grave implications, in terms of psychological and physical safety, if the offender were to remain in the community.[18]

Women who speak out are retaliated against by community, (discredited, run into the dirt, house burnings) etc. (SC)

There used to be support historically for victims, now there is silencing and shame. (L)

When a victim finds the courage to tell the story they are denied the truth. In our culture men are honored to a degree that they are protected, the women depends a lot on the man. She feels she needs to reach out and tell someone but how when the community protects the offender? (PG)

I do not think it is a good idea in rural areas. There is a story of women who was shot at and intimidated into not reporting violence in her community. (PG)

Because a radical transformation of existing structures of domination have not yet happened, women expressed fear that restorative justice reforms would fail to address the underlying power inequity rife in communities from years of oppression.

Another prevailing theme around restorative justice that came up in focus groups was that it was based on a premise that presupposes a healed community. Substance misuse issues were an important concern that played a big part in the way in which women felt communities needed to heal.

Also alcohol is an excuse to continue the violence, both of us work at the healing center and we have a half way house for men, some are there for 5 to 10 years because they might stay away from alcohol and drugs but the thought process is still there. Sobriety does not necessarily mean a healthy community. (PG)

Healing will take a long time because we have been denied this for 200 years. (L)

Unhealed elders who are perpetrators are not called on their abuse. If they are unhealed they will pass on abusive behavior. They are pipe carriers etc. and are protected even if they hurt your grandchildren. Loyalty to the family is a big issue, if the family is in a position of power in the council things are done differently. People in positions of power need to heal. (L)

Women expressed concerns about the fact that there was a lack of accountability and structure in existing alternative justice models. This caused much alarm for women who felt that a failure to do follow up with offenders and enforce sentences would further add to their victimization. In a report on a sentencing circle in Kangiqsujuaq that Mary Crnkovich wrote for Pauktuutit, she addresses this issue. She poses questions such as why this special circle was being used instead of the regular court hearing; what power does the circle have to create new sentencing options? What is a sentence intended to do? How does the law direct a judge in sentencing an offender who has been convicted?[19]

They had an option of circle sentencing, justice was not done. It only happened one time with an elder from Alberta. I was told not to discuss it with anyone if I did I would have to have a feast and apologize. (RB)

One women shared her story about the use of elders who were unaware of what was expected of them in the circle. It was not culturally appropriate; it’s often about saving money. (L)

There are two cases where it was mandatory that they go to the men’s group and they didn’t go. They breached over two and a half months ago. The more the judge shuffles the breach the easier it is for the men to get off. (PG)

During focus group discussions, women have voiced concerns about the levels of powerlessness they experienced. In these circles, we have looked at women’s experience of colonization, which is also informed by gender and in so doing we have named the ways in which women, children and those in positions of less power are marginalized. This marginalization results in not being able to participate in discussions and decision-making on what is good for our communities. For stakeholders of restorative justice reforms to base their understanding of what is good for our communities on what a few more powerful people have to say is to romanticize Aboriginal culture and ignore women and children’s lived reality of violence.

There is the nepotism that goes on in our communities, hiring of friends and family. Discrimination against our race with non-natives treated better in our own communities.

One women shared about this project with a man this morning and it felt like a door was being slammed in her face. That shows communities are not ready. (SC)

Participants had many very serious concerns around the implementation of these reforms but also felt that they had a potential to address Aboriginal crime in a way the justice system does not. As with all the issues we have discussed in this paper violent crime must be understood within a certain social framework. In addition to the fact that violence is not an innate trait that we must resign ourselves to, we must examine the social conditions that contribute to the high rates of crime within our communities. In her work, Carol LaPrairie discusses what Australian criminologist John Braithwaite feels to be a failing in the Justice System in this regard. Namely "that the criminal justice system as it presently operates ignores the social context in which crime and disorder occur and in doing so decontextualizes the offence and marginalizes various players."[20] Because restorative justice addresses the context of crime and not simply the individual, it has something of worth to offer in rethinking the failings of the criminal justice system as it is presently practiced. Yet it is imperative that women’s numerous safety concerns must be concretely addressed prior to any further developments of these programs in our communities. Women who participated in our project had many pro-active suggestions for ways in which this might be possible that incorporate an affirmation of cultural practices from their communities with safety needs for women.

The victim must be agreeable (L)

Ours is mostly a women driven program, it needs to be that way in nearly every aspect of Aboriginal society. (S)

I want you to know what my son has done. He has formed a group with the young people in the community, they meet one night a week, a night for doing something together, it’s their one night to spend together. That is one way you can start, get little groups together. Every month they have a meeting and express their feelings, build self esteem and everything. (PG)

It is time for Aboriginal people to talk to people who are abusing and it’s time for them to begin their own counseling, a need for training and criminal record checks for those involved. (L)

Emma LaRocque speaks to issues in her work on restorative justice, critiquing definitions of community and culture, and at the same time highlighting the danger in reforms, which are more of a reflection of the dominant social system than of Aboriginal customs.[21] The notion of community, as utilized in state policy would be a useful to define. The word ‘community’ is used to describe anything from our homelands to our circle of friends and acquaintances and can mean different things to different people. While an understanding of community is important in our self-definition, tracing our origins and asserting our culture, it can also be used to define us as a homogenous group erasing what is unique and specific to some of us, and state definitions of ‘community’ can do that.