One of my favorite blogs has posted some commentary about rape and an approach to dealing with it. In particular this posting discusses a program called Restore which involves getting the accused rapist to participate in a mediation/intervention program of restorative justice. As is often the case this has resulted in lively discussion. As restorative justice is something I am strongly in favor of (as opposed to our current unjust criminal "justice" system), I posted some commentary myself. Since I have written so little here of late I thought that I would repost most of it here.
Unlike many of the previous commentors, I think Restorative Justice (RJ) is something that should be considered in more cases, not just for probably unprovable rape, but for virtually any crime. Our criminal justice system sucks. The punishments are arbitrary and rehabilitation has practically been forgotten as a consideration. Beyond that, punishing criminals may satisfy a desire for vengence, but it really does next to nothing for victims of crime.
RJ recognizes three parties affected by crimes: the victim, society as a whole, and the perpetrator. In our current system it is hoped that taking revenge on the perpetrators through incarceration or other punishments will both rehabilitate the perpetrator and sooth the pains suffered by the victim and society. However, as I said, rehabilitation is practically forgotten and just about the only efforts being made to sooth society is pushing for longer prison terms with less opportunity for parole, basically hoping to lock 'em up and throw away the key. All this has led to is the highest incarceration rate in the world (building and staffing prisons has been one of the biggest growth industries in the USA for the last couple of decades at least).
RJ attempts to help all three parties affected by a crime. If the perpetrator can be made to recognize their culpability and feel genuine remorse then there is a genuine chance for rehabilitation, thus helping the perpetrator and making society safer. Further, demonstrating that remorse through efforts to make restitution can help to alieviate the pain which the victim suffered. Clearly, a successful RJ outcome would still not be as good as if the crime had never been committed, but is putting someone in prison for 5, 15, 50 years going to help anyone (except the prison industry)? RJ offers an alternative approach.
As for why should rapists in particular participate in this, how about setting up an alternative process through which victims can pursue relief. Rather than harping on "beyond a reasonable doubt", how about offering better avenues for civil action (I have to admit I am unfamiliar with what current civil avenues are available for victims of rape). If RJ mediation is offered as an alternative to a full civil suit concerning a rape, either through the Restore program or through other similar groups, then even people who could not be convicted of rape beyond a reasonable doubt might prefer the intervention/mediation approach of RJ to the alternative of a civil suit. If rape is the only crime for which RJ is a strongly encouraged first step before pursuing a suit then perhaps there is a need for a new court or a change to civil court procedures to allow for referring cases to RJ mediation, just as there are different courts created to deal with other specific offenses. However, if the process for pursuing redress through the civil courts included an option for choosing Restore (with agreement of all parties involved), then even someone who felt they were completely innocent might agree to RJ rather than have to defend against a full civil suit. This process would have to include allowances for if the participants are disatisfied with the outcome. That is part of why the process would need to be mediated. If the victim doesn't feel that the perpetrator's participation in remorse and restitution is acceptable then perhaps there should be an option of pursuing further court action, basically appealing the findings of the RJ mediation, but in such a case when the defendent has shown significant efforts at reconciliation through RJ then the victim would have a harder time proving the validity of their request for additional compensation. On the other hand, if the defendant felt that the RJ negotiation was requiring unreasonable demands then there should also be a way to appeal from that perspective. Of course, the way this would be handled would be affected by the different views of different judges and venues where some would be more sympathetic to the victims and others less sympathetic. In either case, an appeal from a RJ mediation should be made fairly difficult if both parties agreed going in so that the parties involved will make a serious attempt at reaching an accord.
I was first introduced to the idea of RJ through the Peacemaking program of the Presbyterian Church (USA). If anyone is interested, there is a free brochure (I haven't even looked at it myself, but I've liked their program and I found this on the PC(USA) website) available at the Presbyterian Marketplace if you search for item 7263096705. (I couldn't figure out a direct link to the item.) It is called _Restorative_Justice:_ _Toward_Nonviolence_ by the Rev. Virginia Mackey.