Note: Since giving the lecture, slight changes have been made to the dataset. This revision updates the statistics as of December 2004.

Transcription

1 RESTORATIVE JUSTICE AND SEXUAL ASSAULT: An Archival Study of Court and Conference Cases Professor Kathleen Daly School of Criminology and Criminal Justice Mt Gravatt Campus Griffith University Brisbane Queensland (0) (of) (ho) Lecture presented by K. Daly, October and November 2004, to University of Cambridge (Institute of Criminology and the Socio-Legal Seminar Group), Oxford University, University of Strathclyde, and the London School of Economics. Revised December Note: Since giving the lecture, slight changes have been made to the dataset. This revision updates the statistics as of December Please do not cite or quote from this paper without permission from the author December 2004

2 1 RESTORATIVE JUSTICE AND SEXUAL ASSAULT: An Archival Study of Court and Conference Cases My paper asks this question: Are restorative justice conferences an appropriate way to respond to sexual violence? Or do court proceedings deliver greater justice for victims? There are just two jurisdictions in the world today, New Zealand and the Australian state of South Australia, which routinely use conferences in responding to youth sexual assault. In other jurisdictions, sexual offences have been excluded from the restorative justice (RJ) agenda: they are understood to be too sensitive or too serious to be handled by an RJ process. Critics of conferences for these offences assume that victims will suffer more from an informal, face-to-face encounter with an offender, than if the case goes to court. Further, it is assumed that if cases are diverted from court, it will appear that offenders are being treated too leniently and that offences not being taken seriously enough, what Donna Coker (1999: 85) terms the cheap justice problem. It s widely known that the criminal justice system is especially inept in prosecuting sexual violence. However, as Barbara Hudson (2002: 622) says, it remains an open question whether restorative justice offers better hope of redress for women and children. This paper presents the results of an archival study of the court and conference handling of youth sexual offence cases. It is the first study to provide empirical evidence on the comparative merits of court and conference for these cases. Part 1: Overview of RJ The best way to understand RJ is not to give a definition per se, but rather to depict its varied legal contexts and its core elements. RJ is used around the world, including the UK, but it s most developed in Australia and New Zealand in an established legislated way. (Here I am focusing on the use of RJ in criminal matters, not in responding to school or workplace disputes, wider political conflicts, or a type of transitional justice.)

3 RJ is used in four legal contexts in the criminal justice system for youth and adults: diversion from court pre-sentence advice to judicial officers a component or a condition of sentence post-sentence: as a component of pre-prison release or a community sentence In most jurisdictions, court diversion is in place largely for adolescent, not adult offenders. (And when used as diversion, there is no official conviction.) In the relatively few jurisdictions where RJ is in place for adults, the legal context is mainly pre-sentence advice. It s crucial to recognise these legal contexts because some critics of RJ assume, wrongly, that it is used solely in the context of diversion from court. Although RJ practices vary, there are several core elements (here I focus on the first two contexts of court diversion and pre-sentence advice). First, a person has admitted the offence to the police or court. Although crucial, this is a commonly overlooked feature of an RJ process. It does not adjudicate or mediate facts, but is part of the penalty phase of the criminal process. As a consequence, some of the more disabling effects of the adversarial process are avoided. Second, the admitted person typically (but not always) has a face-to-face meeting with a victim (or a representative for a victim, say, a parent for a young child victim), along with other supporters or relevant community members. 1 Compared to established criminal justice, one of the most radical features of RJ is that it imagines a more active role for crime victims, although there is debate on what the role ought to be. Victim participation in RJ schemes varies greatly (Youth Offender panels in England averaged 13 percent victim participation [see Crawford and Newburn 2003: ]; it ranges from 50 to 90 percent in Australia and New Zealand conferences, depending on the offence and jurisdiction). Third, it s an informal process that relies on the knowledge and decisions of lay actors. However, it is linked to and constrained by established criminal justice practices. There are clear ground rules for participants behaviour and what can be said. And there are upper limits on penalties (or outcomes), which depend on the legal context. 2 1 It is possible for victims to participate indirectly.

4 3 Fourth, the aims of RJ are to hold offenders accountable for their behaviour and to have them make up for what they did. It s hoped that the process and the penalty will deter an offender from further law-breaking, and provide some form of reintegration into the community, although neither may be achieved. For victims, the aims are to give voice to the experience of victimisation, to participate in fashioning a penalty, and where relevant, to ask why the offence was committed. Some RJ advocates hope that a victim and offender may reconcile and that a victim will recover from the offence. However, reconciliation is not to be expected, and recovery may take a very long time, if at all. Ideally, then, RJ is a set of practices that engages lay people actively in the legal process; provides a forum for discussing fears and insecurities about crime; opens up communication and linkages between people who would otherwise be distant, fearful, or angry (for example, cross-alliances between an offender s supporters and a victim); provides an opportunity for an offender to take responsibility for the offence, for a victim to describe its effects, and for the entire group to hold the offender accountable for the behaviour (a form of censure); may act as a forum for moral education of the offender (and even a victim who may engage in self-blame); and attempts to link the penalty to the offending behaviour and how it may be repaired or punished; and in so doing, seeks to engage the offender in becoming a law-abiding citizen. My previous research has shown that there are gaps between these RJ ideals and actual practices (see Daly 2001a, 2002, 2003b, forthcoming 2005). Part 2: Is Restorative Justice Appropriate in Cases of Sexual, Partner, or Family Violence? Commentators, and especially feminist commentators, face dilemmas in answering this question. Many desire a less stigmatising and less punitive response to crime in general, but we are not sure that RJ, as currently practiced, is capable of responding effectively to these offences (see, e.g., contributors to Strang and Braithwaite 2002). [Define terms: partner violence is between adult partners, whereas family violence (in Australian and Indigenous contexts) refers to a broader set of offences such as child sexual abuse and family fights. Family violence in youth cases includes sibling assaults and assaults on parents by children.]

5 4 In addressing the question of the appropriateness of RJ in these particular cases, there are some major limitations in the literature. First, we lack empirical evidence. We know what happens when sexual or partner violence cases go to court, but except for a few studies, we do not know what happens when such cases go to an RJ process. Most research on RJ to date is of youth offenders in the context of diversion from court. Against this profile, critics of RJ typically have in mind adult offenders of partner violence and RJ as diversion from court (rather than as pre-sentence advice). Second, there is great variation in the contexts and seriousness of these offences, and this is rarely discussed in the literature. For example, an intra-familial sexual assault by a 14-year old male against his 8-year old stepsister may be better addressed by an RJ process than police and court intervention. Ultimately, the question of the appropriateness of RJ for these offences may not be possible to address in the abstract. I shall be highlighting the potential problems and benefits of RJ with reference to sexual, partner, and family violence. Please bear in mind that some problems may be more acute for some offences, and potential benefits may be more likely for others. Potential Problems with RJ As an informal process, RJ may put victims at risk of continued violence; it may permit power imbalances to go unchecked and reinforce abusive behavior. Offenders may use an informal process to diminish guilt, trivialize the violence, or shift the blame to the victim. Some victims may not be able to advocate effectively on their behalf. They may be pressured to accept certain outcomes, such as an apology, even if they feel it is inappropriate or insincere. Some victims may want the state to intervene on their behalf and do not want the burdens of RJ. Community norms may reinforce, not challenge male dominance and victim blaming. Friends and family may support victims, but may also have divided loyalties and collude with the violence, especially in intra-familial cases of abuse.

6 5 Offenders may view RJ processes as too easy, reinforcing their belief that their behavior is not wrong. Penalties may appear to be too lenient. The process may do little to change an offender s behaviour. Critics typically emphasise victim safety, power imbalances, and the potential for re-victimisation in an informal process. However, I suspect the symbolic implications are even more important, that is, critics are concerned that the wrong message is being sent to offenders (and society ) when violence cases are seemingly not being treated seriously enough, when they are diverted from court. Potential Benefits of RJ Victims have the opportunity to voice their story and to be heard. They may be empowered by confronting the offender, and by participating in penalty decisions. A victim s account of the offence can be validated. Offenders are required to take responsibility for their behavior, and their offending is censured. The process can be tailored to child and adolescent victims needs and capacities. Because it is flexible and less formal, it may be less threatening, and more responsive to the individual needs of victims. The process can address violence between those who want to continue a relationship. It can create opportunities for relationships to be repaired, if that is what is desired. Part 3: Sexual Assault Archival Study (SAAS) The Sexual Assault Archival Study (SAAS) is one of several studies in a program of research on RJ in cases of sexual, partner, and family violence. 2 Our aim is to examine empirically and sympathetically the many claims and critiques that feminist scholars and victim advocates have lodged toward using RJ for these offences. South Australia has routinely used RJ for youth sexual offences for over 10 years, since February To carry out this research, I relocated from Brisbane to Adelaide in September 2001 and was based there for 3 months with two researchers. We gathered thousands of pages of documents (police reports, family 2 Others include interviews of victim advocates or opinion leaders in Australia (Curtis-Fawley and Daly 2005), interviews of Queensland Indigenous and non-indigenous women (Nancarrow 2003), and an in-depth analysis of 14 cases of sexual or family violence finalised by conference (Daly and Curtis-Fawley 2005).

7 conference files, the court s certificate of record, and data from the South Australian Justice Data Warehouse). Then, over the next year and a half the project shifted to my university in Brisbane, where we read and coded the material and prepared Excel spread sheets and SPSS data files. There are two datasets: one describes the cases (with over 230 variables) and a second describes the criminal histories of the youth before and after the SAAS case (with over 125 variables). My research assistants and I have written a Technical Report on SAAS, which describes the methods, documents, coding decisions, variables created, and the like. I won t go through the methods in detail here, but I need to give you some highlights. A. Methods highlights The sample is all youth justice cases that began with one or more sexual offence charges, which were finalised in court, by conference, or by formal caution, 1 January 1995 to 1 July 2001 (a 6.5 year period) in South Australia. By finalised I mean finished, whether by a formal caution or by conference or in court. Court cases can be finalised by being dismissed or withdrawn, proved by plea or trial ( proved generally means the same thing as conviction ), or found not guilty at trial. There are a total of 385 cases in the study: 226 court cases, 118 conference cases, and 41 formal cautions. Almost all (95 percent) the offenders appeared in the dataset just once. B. Research questions The core question: Are restorative justice conferences an appropriate way to respond to sexual violence, or do court proceedings deliver greater justice for victims? It has these sub-questions: What distinguishes court from conference cases? Specifically, why are some cases referred by the police (or a judicial officer) to a conference, and others, to court? Is it qualities of the offence, or is it largely a youth s admission? What happens once a case goes to court and is finalised there? Specifically, what share are proved (convicted) or dismissed? What are the outcomes of conference and court cases? Specifically, how do court and conference penalties compare? What is the prevalence of reoffending for court and conference youth? 6

8 7 C. Findings, in brief From a victim s point of view, you are better off if the case goes to a conference. Why? If your case goes to conference, something happens (that is, there has been an admission by an offender, and a penalty of some sort). If your case is finalised in court, your chances of any sexual offence being proved (convicted) is 51 percent. (To be precise, all but three cases were proved by guilty plea.) 3 The potential problems of RJ (that is, the dynamics of the process itself and a concern that serious offences are not being treated seriously) may be less victimising than the formal legal process. As long as those who have offended can continue to deny they ve done anything wrong, the legal process can do little for victims of sexual assault. The promise of RJ in cases of sexual assault is it opens up a window for those who have offended to admit to what they have done. That s the crucial element that requires attention. D. Detailed findings (see further in Daly et al. [2003] Final Report; Daly et al. [2003] Technical Report No. 3 and related analyses in Daly, forthcoming 2005; Daly and Curtis-Fawley, forthcoming 2005). Profiles of young people and victims The young person s (YP, suspect, or admitted offender) median age at the time of the offence was 14.1 to 15.6 years (conference YPs were youngest), and the victim s median age was 8.6 to 13 years (conference victims were the youngest). 4 The age difference was greatest for conference cases (6 years). Almost all the YPs were male (97 to 98 percent across all sites), and most victims were female (66 to 79 percent, lower for caution cases). Aboriginal Australians were a somewhat higher share of YPs in court (13 percent) than conference (8 percent) or caution (5 percent) cases. 3 And to be even more precise, of cases proved, 32 percent were proved with a conviction recorded, and 68 percent were proved without a conviction recorded. This with and without conviction terminology is a method by which this jurisdiction further protects a youth s official criminal history. 4 The median excludes those cases where the victim s age was not explicitly given in the police report, or there was no direct victim (that is, the victim was a non-human animal or the offence was a public order sexual offence).

9 As measured by a standard socio-economic index, court youth lived in more disadvantaged areas (923) than conference (942) or cautioned (972) youth. The mean for all three groups is lower than the average for the state (987). The frequency of reported problems (psychological, mental handicaps, histories of sexual victimisation) was higher in conference (21 percent) than court (14 percent) or caution (10 percent) cases, although there is a good deal of missing data for these variables. Conference cases had a higher share of intra-familial victim-offender relations (40 percent) than court (18 percent) or caution (5 percent) cases. Of the 112 conferences that went forward, a direct victim or supporter was present in 66 percent of them. Victim presence was more likely to be as a victim supporter or representative (52 percent) than the actual victim (37 percent). In 22 percent, both victim and a supporter or representative were present. A higher share of court youth sought legal advice at or before police questioning (22 percent) than conference or caution youth (2 to 4 percent). A substantially higher share of court youth made no admissions or refused to comment to the police (53 percent) compared to those in conference (4 percent) or caution (none) cases. A higher share of court youth had previous contact with the legal system (caution, conference, or court finalisation) (54 percent) than those in conference or caution cases (20 to 24 percent). A higher share of youth in caution (39 percent) and conference cases (20 percent) were explicitly described as remorseful in the police report than those in court cases (4 percent). The picture emerging from the statistical data is that court youth had more developed criminal histories, were more likely to seek legal advice, were less likely to be cooperative with the police, or to be characterised by the police as remorseful. Conference cases were more likely to have intra-familial victimoffender relations than court or caution cases. Offence and case attrition The court cases started out as more serious (based on legal charges and offence elements) than conference cases. However, half were proved of any sexual offence. An additional 4 percent were proved of a non-sexual offence. The rest were dismissed or withdrawn. At finalisation, proved court cases and admitted conference cases were similar in seriousness. 8

10 9 Court cases took twice over as long to finalise as conference cases. Using median time, court cases took 5.7 months from report to the police to finalisation, and conference cases took 2.5 months. Court victims would have to attend court, on average (median), 6 times to follow their case to finalisation, and nearly 20 percent would have to attend ten or more hearings. A small number of court cases (18, or 8 percent) was set for trial. Of the 18 cases, four youth eventually entered guilty pleas and 14 continued with a not guilty plea or no plea. Of the 14, eight were dismissed and three were found not guilty; three cases were proved at trial. The factors associated with case referral and finalisation in court were different from those associated with whether or not a case was proved in court. Logistical regression analysis of three outcomes I ll turn to the results of regression analyses of several outcomes. As some of you know, regression is helpful for identifying the unique contribution of two or more variables to an outcome. (a) What factors are associated with case referral to and finalisation in court (compared to conference or police caution)? the YP made no admission or refused to comment to the police the YP s criminal history: had one or more cautions, conferences or court finalisations before the SAAS case Offence seriousness: the offence was more serious (offence elements, scale) 5 Victim-offender relations: the offence was extra-familial the YP s age: those older were more likely to be referred to and finalised in court Three of the five would be expected: a youth has to admit to an offence (either in full or in part) for the case to go to conference or caution, and the police are to have regard for the seriousness of an offence and the youth s previous criminal history in making the referral. But in addition, we see unique effects of the victimoffender relationship and the YP s age. 5 Many of the coded offence elements are related to the evidentiary strength of a case or its potential for convictability. They include the following: the offence involved penetration or oral sex, presence of weapon, indication of physical or verbal resistance or both by the victim, the victim was tied down, the YP threatened the victim, and degree of victim injury (somewhat, moderate, serious), among other elements.

11 10 (b) What factors are associated with the YP s non-admission to the police? the YP had legal advice before or during police questioning the YP s criminal history: had one or more cautions, conferences, or court finalisations before the SAAS case Offence seriousness: the offence was more serious (offence elements, dichotomy) Victim-offender relations: the offence was extra-familial Note: the character of legal advice is likely to be a phone call to legal aid, and the standard response is to advise the youth to give only his/her name and date of birth. (c) What factors are associated with a case being proved of any sexual offence in court? the YP made an admission to the police (fully or partly, immediately or later) Offence seriousness: the offence was less serious (offence elements, dichotomy) Victim-offender relations: the offence was intra-familial (siblings or step relations) This result is intriguing. We see that the factors associated with cases being proved in court (less serious offence, intra-familial relations) are the opposite of those associated with referral to court (more serious offence, extra-familial relations). 6 Penalties Some background A. Several features of the sanctioning process in court and conference are salient: A youth s guilty plea in court comes with the potential for an officially recorded conviction, whereas for admitted conference youth, there is no potential for conviction The court can impose a maximum detention time of 3 years, and it can order the youth to be supervised by a social worker/probation officer, whereas a conference cannot impose these penalties. 6 Extra-familial court cases involving friends of a similar age were less likely to be proved (24 percent were) compared to friends for whom the age difference was more than 2 years (52 percent proved) or those between strangers (58 percent proved). However, it is largely the intra- or extra-familial character of victim-offender relations that is related to a case being proved in court. For example, of the court cases with victims under 12 at the time of the offence, there was a higher proved rate for the intra-familial (68 percent) than the extra-familial (46 percent) cases.

12 11 The longest period of time for a court obligation is 3 years, and for a conference undertaking is one year. Court outcomes are therefore potentially more onerous than those in a conference. B. In this jurisdiction, there is the Mary Street Adolescent Sexual Abuse Prevention Programme. Mary Street has been in place for over about a decade in Adelaide. It is an intensive counselling intervention, typically of one year s duration, and is based on its Director, Alan Jenkins (1990) book, Invitation to Responsibility. The approach invites young people on a journey towards responsibility and respect of others, which proceeds at their own pace rather than that of the therapist. A good way to compare court and conference penalties is to examine their different penalty regimes. (Note: the attrition process in court has resulted in 115 court cases and 111 conference cases subject to penalty.) The court s penalty regime is primarily centred on scaring youth with threats of greater legal liability if they get into trouble again (strong version: 18 percent had a detention sentence imposed, although it was suspended in all but two cases; weaker version: 75 percent were ordered to be of good behaviour ). Secondarily, it was centred on rehabiliation, with 36 percent of youth to participate in Mary St. (In 60 percent of cases, supervision by family services agency was ordered, perhaps a weak form of rehabilitation, or simply more state control?) A relatively small share (11 percent) were ordered to do community service, a form of punishment, in the eyes of both youth and judicial officers. By contrast, the conference s penalty regime primarily centred on rehabilitation, with a majority of youth (52 percent) having to participate in the Mary St program, although community service (punishment) was given in 24 percent of cases. The most frequent outcome was verbal apologies to victims (77 percent), with one third having to write an apology letter. The median length of time under state control was somewhat longer for the court (12 months) than conference (10 months) cases. 7 A share of court cases (13 percent) was disposed with no penalty at all, and 9 percent of conference cases were disposed as formal cautions or an apology only as the outcome. Let s pause to consider: Virtually all criminal justice research focuses on the effects of penalties on offenders (and I shall be doing this shortly), but we may ask, what is the meaning or impact of these penalties for victims? For example, 7 This average includes those court cases (N=22) and conference cases (N=10) for which there were zero days under state control.

13 does the court s penalty regime of scaring youth bring any benefit to victims or a greater sense of security? 12 Re-offending We defined re-offending as having made an admission for a formal caution or conference, or a case was proved in court. That is, it is officially recognised offending, not an arrest. (Note that re-offending is for all types of offences; sex offences were a small share, less than 8 percent.) Of those court (N=115) and conference (N=111) cases where a sex offence was proved or admitted, the prevalence of re-offending (that is, any offending post- SAAS) was lower for the conference (51 percent) than court (66 percent) youth. 8 A striking result is that participation in the Mary Street program was significantly associated with a lower prevalence of re-offending for both conference (43 percent) and court (50 percent) youth. For court youth, the highest prevalence of re-offending was for those sentenced to detention (including those with suspended sentences) (81 percent), followed by those ordered to do community service (77 percent). For the conference cases, Mary Street participation was associated with the lowest prevalence of reoffending (43 percent), while community service was associated with higher levels (52 percent). We are conducting more sophisticated analyses of re-offending, which correct for the different windows of time that youth are at risk to re-offend and which focus on many more inter-relationships with care. It s important to exercise some caution with these preliminary findings. However, the general message is that the Mary Street program, and the rehabilitation-oriented penalty regime, appear to be associated with a reduced prevalence of re-offending, whether a case goes to conference or to court. 8 The prevalence of re-offending for all the court cases (N=226) was 62 percent, and for all the conference cases (N=118), 50 percent.

14 13 Part 4. Summary and implications To summarise: Debate on the appropriateness of RJ for partner, sexual, and family violence is polarised, in part, because we lack empirical evidence, and in part, because of the symbolic politics of justice in responding to violence against women and children. 9 Let s consider the major findings. First: At the start of legal proceedings, court cases differed from conference cases in expectable ways: the youth did not make an admission to the police, they had a more developed criminal history, and the offences were more serious. These referred court cases were more likely to have extra-familial relationships. There is substantial attrition from the start of court proceedings to proved court cases. Cases proved in court were more likely to have intra-familial relationships. The question thus arises: why do victim-offender relationships matter in these cases? I suspect that it may be easier for youth to deny extra-familial sexual offences because, unlike intra-familial offences, there is no family member or adult to witness the behaviour or to talk to a victim. And, it may be more difficult for youth in the intra-familial cases to say they thought the victim consented to sexual activity. Second: Although the court is a place where more serious penalties can be imposed, it is also a place where accused persons have the right to deny offending. The result: nearly half of court cases were dismissed or withdrawn. To be sure, perhaps no offence was committed, but the more frequent reason for withdrawing or dismissing cases is that prosecutors believed that legal guilt would be difficult to establish at trial, in light of the available evidence and the degree of credibility, reliability, and cooperation of victims or witnesses. Those who are critical of RJ conferences, from a victim s perspective, should consider whether the court is in fact a site of vindicating victims and whether it does in fact send strong messages that serious offences ought to be responded to seriously. And a related point is that a rehabilitation-oriented penalty regime (in particular, a targeted program such as Mary Street) may be more effective than scaring youth in terms of reductions in re-offending. 9 This paper is directed mainly to critics of conferences, from a victim s perspective. There is another set of critics, from an accused s perspective, who are concerned that conferences may be used to coerce admissions to offences not committed. The available evidence suggests that this rarely occurs. From a study of conferencing in South Australia, of 103 eligible conferences set during a 4-month research period, three did not go forward because the young person did not admit the offence at the conference (Daly 2001b: 7). Of the 118 SAAS conference cases, one youth did not admit at the conference, one admitted to a non-sexual offence (a referral from court), and five cases were set, but never held.

15 14 Third, the court process itself re-victimises crime victims. (This is well known from the literature on sexual assault cases in court.) Court cases took twice as long to finalise as conference cases. Victims would have to attend court, on average, six times to follow their case to finalisation. The adjudication process is hard on victims. 10 Implications In discussing the implications, I ll be more speculative. A crucial difference between court and conference cases (one that few researchers or policy makers have fully grasped) is that conference youth have made an admission to the offence to the police (or at times, a judicial officer) at an earlier point in time compared to a portion of court youth. It is here that we can begin to identify advantages of diversionary measures, including RJ conferences. For victims, the advantages of an early plea would seem obvious: an admission to the offence has been made, and there s a likelihood of some penalty. This provides some vindication. For the accused, the advantages are perhaps less obvious. Why would a suspect fess up to an offence? Well, by admitting early on and being referred to conference, there is no potential for a conviction or for a detention sentence; moreover, the maximum time under state control is one year, not three years. In admitting earlier on, a youth trades off the uncertainty of what might happen in court, with a greater degree of certainty of what can occur in a conference. 11 More attention should be given to the early stages of the legal process and the information available to youth when questioned by the police. As long as accused youth are aware that not talking will often mean you walk, they will continue to deny that they have done anything wrong. Defence solicitors have a role to play: in defending their clients, they may be aiding patterns of denying responsibility for sex offending. Again, I must emphasise that although some youth may be wrongly or unfairly accused, surely this cannot be true in half of cases. 10 This is why we cannot, strictly speaking, compare the court and conference handling of cases: court cases include an adjudication phase, whereas conference cases typically do not (except perhaps for those conference cases referred from court). 11 Consider these trade-offs from a victim s and offender s perspective in light of what the data show. Of the 111 court cases where a sexual offence was not proved, 29 youth (26 percent) had made full or partial admissions to the police. From a victim s point of view, it may be preferable for the police to have referred these cases to conference, if only that an admission to some offending would have been made. Of the 115 cases proved in court, 37 youth (32 percent) did not admit to or refused to comment to the police. From an offender s point of view, it would have been better to admit early on and have one s case go to a conference, if only that no official conviction would have been recorded.

16 15 At the same time, such admissions by youth will not occur unless the stigma and exclusion associated with sex offending is reduced. Ultimately, and seemingly paradoxical in the current political climate, to deal effectively with the problem of sexual violence, the socio-legal response needs to be less punitive and less stigmatising. Conclusion I invite those who are critical of RJ in cases of sexual violence to take a wider view of what the court process necessarily entails for victims: it is not just about penalty, but also about adjudication. The potentially victimising effects of what may occur in conferences (power imbalances, victim safety, too lenient outcomes) need to be weighed against those associated with an adversarial legal process. There are limits to my archival study. I cannot say from the data what conference victims experiences were, nor how they compare with those of court victims whose cases were proved and not proved, or court victims in cases in which a youth entered an earlier or later guilty plea. 12 Instead, the case I am making for the appropriateness of conferences for sexual violence, rests on observing just how limited the court process can be in vindicating victims. The evidence before me suggests that the court, not conference, may be the site of cheap justice. References and selected other sources Daly program of research on RJ and gendered violence (2001 to present) (all available on website address, ) Curtis-Fawley, S. and K. Daly (2005, forthcoming) Victim advocacy groups and the idea of restorative justice. Violence Against Women (special issue on RJ, feminism, and gendered violence). Daly, K. (2005, forthcoming) A tale of two studies: restorative justice from a victim s perspective. Forthcoming in E. Elliott and R. Gordon (eds.) Restorative Justice: Emerging Issues in Practice and Evaluation. Cullompton, UK: Willan Publishing. Daly, K. and S. Curtis-Fawley (2005, forthcoming) Justice for victims of sexual assault: court or conference? Forthcoming in K. Heimer and C. Kruttschnitt (eds.) Gender, Offending, and Victimization (working title). New York: New York University Press. Daly, K., S. Curtis-Fawley, and B. Bouhours, with the assistance of L. Weber and R. Scholl (2003a) Final Report: Sexual Offence Cases Finalised in Court, by Conference, and by Formal Caution in South Australia for Young Offenders, Brisbane: School of Criminology and Criminal Justice, Griffith University, August. Daly, K., S. Curtis-Fawley, and B. Bouhours, with the assistance of L. Weber and R. Scholl (2003b) SAJJ Technical Report No. 3: Archival Study of Sexual Offence Cases Disposed in Youth Court and by Conference and Formal Caution. Brisbane: School of Criminology and Criminal Justice, Griffith University, December. 12 Research using random assignment of admitted youth to court or conference compares only those youth who made early admissions to the police. These cases may differ in important ways from those where guilty pleas were entered at a point much later in time.

17 16 Nancarrow, H. (2003) In Search of Justice in Domestic and Family Violence. MA(Honours) Thesis, School of Criminology and Criminal Justice, Griffith University. Daly, K. (2002) Sexual assault and restorative justice. In H. Strang and J. Braithwaite (eds.) Restorative Justice and Family Violence. Cambridge: Cambridge University Press. (Draws on 18 family conference files; discusses potential and limits of RJ in sexual assault cases.) Other related Daly papers, some with colleagues, on RJ Daly, K. (2000a) Revisiting the relationship between retributive and restorative justice. In H. Strang and J. Braithwaite (eds.) Restorative Justice: Philosophy to Practice. Aldershot: Dartmouth/Ashgate. Daly, K. (2000b) Restorative justice in diverse and unequal societies. Law in Context 17(1): Daly, K. (2001a) Conferencing in Australia and New Zealand: variations, research findings, and prospects. In A. Morris and G. Maxwell (eds.) Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Oxford: Hart Publishing. Daly, K. (2001b) South Australia Juvenile Justice (SAJJ) Research on Conferencing, Technical Report No. 2: Research Instruments in Year 2 (1999) and Background Notes. School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland. Available at Australian Institute of Criminology website at < Daly, K. (2002) Restorative justice: the real story. Punishment & Society 4(1): Daly, K. (2003a) Making variation a virtue: evaluating the potential and limits of restorative justice. In E. Weitekamp and H.-J. Kerner (eds.) Restorative Justice in Context: International Practice and Directions. Cullompton, UK: Willan Publishing. Daly, K. (2003b) Mind the gap: restorative justice in theory and practice. In A. von Hirsch et al. (eds.) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? Oxford: Hart Publishing. Daly, K. and H. Hayes (2001) Restorative justice and conferencing in Australia. Trends and Issues in Crime and Criminal Justice, 186. Canberra: Australian Institute of Criminology. Daly, K. and H. Hayes (2002) Restorative justice and conferencing. In A. Graycar and P. Grabosky (eds.) Handbook of Australian Criminology. Cambridge: Cambridge University Press. Daly, K. and J. Kitcher (1999) The revolution of restorative justice through researcher-practitioner partnerships. Ethics and Justice 2(1): Daly, K. and R. Immarigeon (1998) The past, present, and future of restorative justice: some critical reflections. The Contemporary Justice Review 1 (1): Hayes, H. and K. Daly (2003) Youth justice conferencing and re-offending. Justice Quarterly 20(4): Hayes, H. and K. Daly (2004) Youth justice conferencing and re-offending in Queensland. The Australian and New Zealand Journal of Criminology 37(2): Selected sources relevant to the lecture Braithwaite, J. (1999). Restorative justice: assessing optimistic and pessimistic accounts. In M. Tonry (ed.) Crime and Justice: A Review of Research, Vol. 25. Chicago: University of Chicago Press. Braithwaite, J. and K. Daly (1994) Masculinities, violence, and communitarian control. In T. Newburn and E. A. Stanko (eds.) Just Boys Doing Business? New York: Routledge. Busch, R. (2002) Domestic violence and restorative justice initiatives: who pays if we get it wrong? In H. Strang and J. Braithwaite (eds.) Restorative Justice and Family Violence. Cambridge: Cambridge University Press. Coker, D. (1999) Enhancing autonomy for battered women: lessons from Navajo peacemaking. UCLA Law Review 47(1):

18 17 Coker, D. (2002) Transformative justice: anti-subordination processes in cases of domestic violence. In H. Strang and J. Braithwaite (eds.) Restorative Justice and Family Violence. Cambridge: Cambridge University Press. Crawford, A. and T. Newburn (2003) Youth Offending and Restorative Justice. Cullompton, UK: Willan. Hudson, B. (2002) Restorative justice and gendered violence: diversion or effective justice? The British Journal of Criminology 42(3): Jenkins, A. (1990) Invitations to Responsibility: The Therapeutic Engagement of Men Who Are Violent and Abusive. Adelaide: Dulwich Centre Publications. Koss, M. (2000) Blame, shame, and community: justice responses to violence against women. American Psychologist 55: Lewis, R., R. E. Dobash, R. P. Dobash, and K. Cavanagh (2001). Law s progressive potential: the value of engagement for the law for domestic violence. Social and Legal Studies 10: Martin, D Retribution revisited: a reconsideration of feminist criminal law reform strategies. Osgoode Hall Law Journal 36(1): Morris, A. (2002) Critiquing the critics: a brief response to critics of restorative justice. The British Journal of Criminology 42(3): Morris, A. and L. Gelsthorpe (2000) Re-visioning men s violence against female partners. The Howard Journal 39(4): Packer, H. L. (1968) The Limits of the Criminal Sanction, Stanford University Press, Stanford. Shapland, J. (2000) Victims and criminal justice: creating responsible criminal justice agencies. In A. Crawford and J. Goodey (eds.) Integrating a Victim Perspective within Criminal Justice: International Debates. Aldershot: Dartmouth/Ashgate. Stubbs, J. (1997) Shame, defiance, and violence against women: a critical analysis of communitarian conferencing. In S. Cook and J. Bessant (eds.) Women s Encounters with Violence: Australian Experiences. London: Sage. Stubbs, J. (2002) Domestic violence and women s safety: feminist challenges to restorative justice. In H. Strang and J. Braithwaite (eds.) Restorative Justice and Family Violence. Cambridge: Cambridge University Press.