Hate Crime and Restorative Justice: Exploring Causes, Repairing Harms

On 15th May 2014 by Mark Walters in alternative justice measures, hate crime

Introduction

In 1998 the UK Government changed the law so that offenders of racially aggravated assault, harassment and criminal damage would receive an enhanced penalty for their crimes. Since then, various Acts of Parliament have been introduced that enhance the punishment for an array of different types of hate crime – including offences where the offender demonstrates religious, sexual orientation, transgender and/or disability hostility.  One of the main justifications for these laws is that hate crimes cause heightened levels of fear, anxiety and insecurity amongst victims and minority communities, and as such offenders deserve a more severe penalty. Such penalties also send a clear message to communities that hate-motivated crimes will not be tolerated and, in turn, it is hoped that others will be deterred from committing similar offences. Critics, however, have noted that penalty enhancements do little to actively repair the emotional, social and cultural damage caused by hate-motivated incidents, nor do they directly challenge an offender’s underlying prejudices – those which are causal to hate crimes more broadly.

It is against this backdrop that I decided to conduct a three year study (which was to make up my doctorate) into an alternative justice measure aimed at repairing the harms of crime: that of restorative justice (RJ).  RJ seeks to bring the “stakeholders” of an offence together via inclusive dialogue in order to explore what has happened, why it happened and how best those involved in the offence can repair the harms caused.  In recent years, governments across the globe have begun to pursue new approaches to justice that focus on restoring, rather than perpetuating, the harms caused by crime. For instance, in November of 2013 the Coalition Government announced a budget of £29 million which will be used to increase the availability of RJ for all victims of crime during all stages of the criminal justice process.

Yet despite the rapid expansion of RJ within many criminal justice systems, there remains a resistance towards its use for hate crime. This is mainly due to the concern that restorative encounters will potentially expose victims to further victimisation. There is also the risk that a restorative approach to hate crime will be perceived as a “soft option”, leaving offenders to simply say “I’m sorry” in order to avoid more punitive sanctions. While such concerns persist, the use of RJ for hate crime in England and Wales is beginning to become more readily available. The Government’s most recent update to its Action Plan on tackling hate crime states that it is now committed to assessing alternative measures to combating hate crime including RJ.  However, until now there was little empirical research from which such an assessment could be made. As such, questions remained as to whether RJ can effectively address either the causes or consequences of hate crime. 

The research study

In order to examine whether RJ helps to repair the harms caused by hate crime victimisation over 60 interviews were conducted with victims, restorative practitioners and police officers, who had participated in restorative practices. In addition 18 separate restorative justice meetings were observed, many of which involved face-to-face dialogue between victim, offender and their supporters.

The research focused on two main restorative practices: Community Mediation, administered by the Hate Crimes Project at Southwark Mediation Centre, South London and the Restorative Disposal, implemented by Devon and Cornwall Police since 2008.  The cases researched involved “low-level” offences (including crimes aggravated by racial, religious, sexual orientation and disability hostility) such as causing harassment, alarm, distress, fear or violence, common assault, as well as more serious forms of violence including several cases of actual bodily harm and grievous bodily harm.

Executive summary of findings

1.      Community Mediation

The majority of complainant victims interviewed (17/23) stated that the mediation process directly improved their emotional well-being. Most participants indicated that their levels of anger, anxiety and fear were reduced directly after the mediation process. The four most common reasons for these improvements were:

• Participants felt they could play an active part in their own conflict resolution
• Participants were able to explain to the perpetrator and others the harms they had experienced, while additionally talking about what it is like for them to be “different” in the community
• Participants felt supported by mediators who listened to their version of events
• The perpetrator signed an agreement promising to desist from further hate incidents.

Prevention of re-offending

Notably, 11 out of 19 separate cases of ongoing hate crime incidents researched in Southwark ceased directly after the mediation process had taken place.[1] A further 6 cases stopped after the community mediator included other agencies within the mediation process. These included schools, social services, community police officers and housing officers.

2.      Police Restorative Disposals

Unfortunately the positive findings reported from Southwark were not repeated for the restorative policing measures used for low-level offences by Devon and Cornwall Police.  Just seven (half) out of the 14 interviewees stated that they were satisfied with the outcome of their case. The study also found that only seven out of the 14 interviewees felt that they were provided with an opportunity to explain how the incident affected them – a key aspect of restorative justice.  It was therefore unsurprising that only four out of the 14 participants stated that they felt the RD helped to repair the harms caused by their targeted victimisation. Reasons for lower levels of harm reparation included:

• Several participants felt pressured by the police to agree to the intervention. This had implications for the voluntariness of the process.
• While 11/14 victims had received an apology from the offender, most felt that the apology was disingenuous; several apologies had been written on a note pad without explanation as to why the crime had been committed. This left several victims feeling ‘let down’ by the police.
• Only one victim was given an opportunity to talk directly with the offender about the offence and how the offender could repair the harms he had caused
• Officers had received a three hour training session on the virtues of RJ. Such short courses mean it is unlikely that police officers have adequate experience or understanding of how RJ should be administered in cases involving hate.

Discussion

Critics of restorative justice techniques often raise concerns about the possibility of causing ‘re-victimisation’ by bringing victims and offenders together via RJ meetings. However, my interviews with victims and practitioners (combined with my case observations) showed that these fears are largely unfounded. In fact, during the entire study only one victim stated that they experienced a sense of re-victimisation during a restorative intervention. In this single case of direct re-vicimisation, it was the facilitating police officer rather than the young offender who had been accused of treating the victim unfairly. This does not mean that concerns regarding revictimisation should be ignored.  Almost every restorative practitioner I spoke to noted how hard they worked to ensure participants were thoroughly prepared before any direct dialogue took place between victim and perpetrator. This was primarily in order to ensure that victims and offenders understood the aims and objectives of RJ and participated voluntarily. It was, however, also an essential part of the restorative process which was used to ensure that incidents of victimisation were not repeated during the process.

If RJ is to be used more widely for hate crime, police services and other justice agencies must use experienced and fully trained restorative practitioners who understand, not only the key values underpinning RJ, but also the sensitive dynamics of hate crime victimisation.  In order to further support the reparative qualities of restorative practice, organisations should work together using a multi-agency approach to addressing hate crime. Such an approach allows the various agencies involved in tackling hate victimisation (including neighbourhood policing teams, housing associations, schools, colleges and social services) to combine their efforts in supporting victims and managing offenders.

The full analysis of hate crime, restorative justice, multi-agency partnerships and the importance of re-conceptualising “community” in restorative discourse in cases involving “difference” can be found in the newly launched book: Hate Crime and Restorative Justice: Exploring Causes, Repairing Harms (2014, OUP). A full text of the book’s introduction can be accessed here.

Dr Mark Austin Walters

Lecturer in Criminal Law and Criminal Justice, School of Law, Politics and Sociology

Co-Director of the International Network for Hate Studies: www.internationalhatestudies.com