Widening the Feminist Lens on Restorative Justice

Kathleen Daly, Griffith University

ABSTRACT
A troubling feature of analyzing any social phenomenon "from a feminist perspective" is the restrictions we, as feminists, may impose on the subject matter. A case in point is restorative justice (RJ). To date, the major debates about restorative justice "from a feminist perspective" have almost universally focused on whether RJ is appropriate in particular kinds of cases, those involving women (or girls) as victims of family or sexual violence. When I first decided to conduct research on RJ, my focus was on this area because at the time, there seemed to be no other way in "from a feminist perspective" than this.

In this paper, I want to suggest that we think about the potential and limits of RJ with a wide angle of vision, a very wide feminist lens, which includes all the major actors and reasons that bring people to an RJ practice. Also in the mix I want to include some key philosophical and legal arguments that have been brought to bear on RJ. In reviewing the current literature and the key players in RJ, I am struck with the dominance of men on the podiums and in the edited collections of works. Why might this be the case? One reason is that many feminist scholars who are curious about RJ come into this new academic/justice practice area with interests in violence against women; others come into the debate wary and skeptical about what this new justice practice will mean for female victims. Few have wondered what RJ may mean to women or girls as lawbreakers, or whether the dialogic encounter that features so prominently in RJ offers a step forward or backward for a feminist friendly justice practice. While the men are asking about the legal frameworks for RJ or sketching future RJ models, I see few feminist scholars (or even women scholars) doing the same. This should be of concern to all of us.

There are many questions that need to be addressed about the applicability of RJ in cases of sexual and family/domestic violence, and as importantly, there are keen debates on this question between white women and women of color. Working from these areas, feminist researchers have challenged mainstream thinking in RJ, which misapprehends family or domestic violence as incident-based, not on-going (see Stubbs 2002), and which ignores the views and experiences of grassroots victim advocacy workers. However, other crimes, even if they do not appear to be "gendered harms" (Daly 2002), invite feminist attention. Likewise, the debates between and among white women and women of color over the the potential of RJ need not be confined to its applicability in cases of sexual and family/domestic violence. In fact, these debates provide a template for a broader discussion on the gender and race politics of what I term "new justice practices" more generally. (By new justice practices, I include not only particular kinds of RJ practices such as conferencing or sentencing circles, but also a variety of sentencing alternatives such as specialized Drug Courts, Domestic Violence Courts, and Aboriginal Courts, or participation by indigenous community groups in advising judges and magistrates.) While I restrict my attention in this paper to what can be termed local justice forms (the state's criminal justice system practices), there is a wide and untapped area of feminist intervention in international courts and tribunals, where RJ can be used (or has been invoked) in the resolution of broader political struggles and civil wars such as in South Africa and Rwanda (Drumbl 2000; Roberts 2002).

My theoretical and political interests currently lie in the gender and race politics of RJ (and new justice practices more generally). I use the term to characterise the different logics and competing justice claims that are associated with (1) victims and offenders and (2) feminist and anti-racist groups. In theory, a "feminist perspective," broadly defined, ought to be able to appreciate and include an "anti-racist" perspective; and it ought to be able to appreciate and see a victim's and offender's interest in a justice practice. The practical problem, however, is that each side of the dualism is often in conflict with the other, and one is often forced to choose sides. For women of color and indigenous women, problems of divided and competing loyalties are especially acute.

My argument, then, is that while feminst theory and research is making a substantial contribution to the RJ discussion, especially in working through areas the mainstream ignores, it needs to extend on these developments and broaden its reach. I will give examples of this by drawing from my research on RJ in Australia and by reviewing key areas of philosophical debate.

[To give more background on my view of RJ as friendly critic; seeing the potential, but also calling the question on advocates' strong claims and myths of RJ. To recognize also that some feminists may argue that RJ should not be entertained at all, that despite its many flaws, the established justice system needs to be reformed first.]

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Updated 05/20/2006