INTRODUCTION
There seems to be little understanding of child sexual abuse (CSA)2. Despite abhorrence from all parts of the community, its incidence is alarmingly high3, it knows no socio-economic or ethnic boundaries4, and no empirical data can establish its cause, or what will stop it. What remains certain is that CSA is under-reported and therefore under-prosecuted.5 Offenders are generally male,6 victims are usually female.7 Most offenders are related to victims,8 and the abuse has negative short-term and long-term effects on victims.9
Social awareness of CSA and its politicisation have led to increased legislative responses in the area. Legislative reforms have sought to remove traditional stereotypes that portray children as unreliable, and sexual assault complainants as devious and prone to accusing falsely.10 Procedural amendments, including the admission of recorded evidence11 and the availability of alternate arrangements for testifying,12 aim to modify the court process in order to reduce confrontation between complainant and accused, thereby making it less stressful for complainants in CSA cases to be witnesses in the trials of their assailants.13 Whilst modifications seek to remove ‘eye-ball to eye-ball’ glares, they do not attempt to change the fundamental culture underlying the criminal justice system. Rather, the reforms merely mask the adversarial nature of the process with cosmetic changes.
In addition to reforms geared at children and gender stereotyping, legislative intervention has aimed to reflect the community’s acceptance of the rights of victims to be compensated for crimes perpetrated against them14 and, to a limited extent, to participate in, yet not be part of, the sentencing phase of the criminal process.15
Despite laudable changes, CSA victims remain disempowered by, and frustrated with, the present system.16 They are frequently traumatised during the perpetrator’s trial17 and often dissatisfied with its disposition.18 It is argued that these negative results stem from three inherent characteristics of the criminal justice system. First, the process belongs entirely to the State, not the victim. Second, a retributive rather than a restorative model of criminal justice is in place. Third, at present, victim-offender therapeutic/facilitative mediation (mediation)19 does not form part of the process.20
The thesis of this paper is that victim-offender mediation should be included in the criminal process, in intra-familial CSA cases prosecuted when the victim is a child and the offender is an adult. Victim-offender mediation, in this unique kind of case, can address deficiencies in the current system. It can provide a simple mechanism for victims to describe the abuse experience and its ramifications to the offender. It can enable victims and offenders to accept that the abuse was not the victim’s fault and for offenders to acknowledge responsibility for the abuse. This acknowledgement can open the door to the offender’s general re-integration into society and may also reduce recidivism.21 Mediation may also pave the way for reconciliation between victim and offender.
PARADIGMS OF CRIMINAL JUSTICE
The focus of the criminal law in its disposition of intra-familial CSA cases is retribution.22 This is not surprising considering the nature of the offences and the exacerbating fact that the perpetrator is related to the victim
Even though the primary focus of courts in the disposition of intra-familial CSA cases is punitive and coercive,23 treatment programmes for offenders, as well as diversion strategies, have been suggested and discussed.24 This approach is prompted by empirical data which suggests that recidivism rates are largely unaffected by jail terms.25 It is also due to increased recognition of the notion that the retributive model cannot deal with many social problems that result in criminal behaviour and persistent recidivism.26
A restorative model, based on a combination therapeutic and participatory approach should be integrated into the criminal process, not as a ‘soft option’ for offenders to manipulate so as to avoid incarceration, but so as to instill the foundations of a culture where offenders are given the opportunity to atone for their behaviour. In addition, the criminal justice system should be encouraged to repair the damage done to the victim either materially or symbolically.27 The model would be curative to both victim and offender and may result in decreased recidivism.
OBJECTIVES
Kift’s review of the literature identifies five goals achieved by victim-offender mediation.28 First, mediation enables offenders to be rehabilitated by taking responsibility for their conduct. Second, the process allows victims to participate in the criminal justice system by venting their feelings and obtaining compensation. The last three aims concern the criminal justice system itself. Mediation benefits the system because it reduces recidivism, re-affirms community values and promotes reconciliation.
These goals are all significant in intra-familial CSA cases. However, victim-offender mediation in intra-familial CSA cases has several other objectives. Importantly, mediation can serve to humanise the system. It is well documented that the legacy of the standard court process for both victim and offender is an impersonal, dehumanising experience. The process of mediation has an intimate, personal perspective which can de-toxify the overwhelming detachment and disempowerment evident in the criminal justice system. Because the process is interests based, not rights based, both victim and offender have the opportunity to ventilate their feelings and concerns. This may be a satisfying and psychologically important exercise, one that is virtually non-existent in the mainstream criminal justice context. In stark contrast to the mediation process, the courtroom operates by witnesses narrating their version of the facts in response to questions put by lawyers. Because of the rights based focus, freedom of expression is severely curtailed.
From the offenders’ perspective, mediation aims to ‘foster the rehabilitation of the offender by personalising the consequences’29 of the abuse. It gives them the opportunity to apologise to victims, confirming and acknowledging their reprehensibility and the victims’ innocence.
Reconciliation is another important aspiration of mediation in this area. Reconciliation does not necessarily mean ‘forgive and forget’, nor does it necessitate any further contact between the parties or the re-establishment of their relationship. Reconciliation, in this context, can be a recognition, and acceptance of the negotiated parameters of the relationship, if any, between victim and offender.
Importantly, mediation’s objective is to help restore victims to their pre-abuse situation. Whilst it is recognised that mediation is not a miracle panacea, the informal and non-confrontational process is aimed at regaining victims’ self-worth and confidence in a non-threatening atmosphere. They have the opportunity to explain the consequences of the abuse to offenders and to receive the offenders’ explanation as to why they offended. This may reduce the fear of revictimisation. Mediation also offers the parties the opportunity to decide on restitution or reparation, as appropriate.
Holistically, mediation has the potential to redefine justice for victim and offender. Unlike the criminal process, the procedure is based on active participation. In contrast to the criminal justice system, the mediation process is personalised, and easily understood; and so is the outcome. This, in itself, is empowering.
MODELS
Mediation has two applications in intra-familial CSA cases.
Mediation should take place between victim and offender in intra-familial CSA cases after an admission of guilt, or a finding of guilt, as a pre-sentence option. The mediation is ancillary to the criminal justice system and should not have a role in the determination of the guilt of the offender. It should only concern issues associated with the crime, including experiences during the court process.30 Yet, having limited the scope of mediation to cases where guilt is acknowledged, mediation in the pre-sentence context, does not preclude offenders from expressing their feelings concerning the abuse itself.
Kidd describes a process for victim-offender mediation which can be adapted in intra-familial CSA cases.31 The process should be initiated by either victim or offender or may be suggested by court personnel. Participation should be voluntary, with either party being able to withdraw at will, without repercussions. All discussions during the mediation are confidential, unless otherwise agreed between the parties. The aim of the mediation is to enter into an agreement outlining material or symbolic reparation. This agreement is viewed by the sentencing court, and may be taken into account during sentencing.32 Compliance with the agreement should be supervised by court officers.
A combination of facilitative and the therapeutic models of mediation is suggested. Mediators should be neutral third parties,33 trained in the broad area of CSA, who are familiar with theories posed to explain the causes of CSA and the empirical data describing its effects.
It is imperative that victims undergo a thorough screening process to ensure that they are psychologically able to participate in the mediation without sustaining any adverse effects. It is also crucial that they feel safe during the process. To this end, it is essential that the victim be assisted during the mediation by an independent and professional support person, appointed and paid for by the criminal justice administration. The support person must be trained in the disciplines of child psychology and mediation and must be familiar with issues arising out of the prosecution and disposition of CSA cases. It is recognised that a tension exists in the role of the support person if, during the mediation, issues arise which raise a conflict between the child’s wishes and what the support person perceives as being in the child’s best interests. This dichotomy needs resolution, but its discussion is outside the scope of this paper.
The existence of a victim support person provides a ‘level playing field’ for the conduct of the victim-offender mediation by equalising the inherent power imbalance between child victim and adult offender. However, it could be asserted that the support person actually jeopardises the rights of the offender, by effectively allowing the child to be represented whilst the offender is not. It is argued that it is the mediator’s role to ensure that the mediation is conducted fairly and that offender rights are safeguarded.
This form of mediation has a limited ambit of operation. It is not concerned with compensation or reconciliation but rather with facilitating contact or non-contact agreements between victim and offender after the offender’s release from prison34. Pre-Release mediation is important in intra-familial CSA cases because several factors exist which may make contact between victim and offender likely. As the parties form part of the same family unit, their family and social interaction may have considerable overlap. They may also live in the same area. Planned and inadvertent meetings need to be catered for.
Pre-Release mediation is appropriate to deal with several scenarios that can arise in intra-familial CSA cases. There may be a mutually held wish for a renewal of the relationship between victim and offender. On the other hand, the desire to re-establish links, may be one-sided. In some cases, the victim may fear contact with the offender, once the offender is released from prison.
Pre-Release mediation should be implemented to set concrete guidelines for future contact between victim and offender. The object of the process is to enter into a negotiated agreement delineating the agreed contact arrangements between the parties. The agreement could outline the nature and extent of the contact, in any, and if it is to be supervised by a welfare officer, or other family member. Like pre-sentence mediation, protective mediation should only be undertaken on a voluntary basis, initiated by either party. Furthermore, the child’s vulnerability in terms of maturity and power imbalance necessitates the appointment of a support person to assist the child during the process.
The non-coercive focus of pre-release mediation seeks to promote compliance, yet realistically, safeguards need to be put in place in order to mandate performance of the agreement. This is a relatively simple issue to resolve when the offender is on parole or still serving a non-custodial sentence. Procedures could be instituted such as the revocation of parole, if conditions of the mediated contact agreement are breached. For offenders who have served their sentence, and are outside the ambit of the criminal justice system, provisions should be enacted in the Crimes (Family Violence) Act 1987 to provide sanctions for those who breach the agreement.35 Whilst what is discussed during the mediation should remain confidential, the terms of the agreement itself may need to be divulged for enforcement purposes.
CONCERNS
Several issues present identifiable concerns in victim-offender mediation in intra-familial CSA cases.
It has been argued that there is no place for mediation in criminal matters, as when victim and offender meet, the conflict has been finalised, totally on the offender’s terms36. Victim and offender do not have legitimate competing claims. There is an obvious moral imbalance which has led to the attainment of both the victim’s and the offender’s status. The suggestion that the victim should be party to a negotiation with the offender is ridiculous and may lead to a revictimisation.
This argument is based on a narrow view of mediation in the context of intra- familial CSA. Mediation, in these cases, is based on resolving issues stemming from the crime and what flows from it. It in no way puts victims on the same moral level as offenders. Furthermore, the nature of the process of mediation intrinsically counters revictimisation. In fact, mediation provides a forum for victims to express themselves and for offenders to acknowledge their moral blameworthiness.
There is an obvious and serious power imbalance between victim and offender in intra-familial CSA cases. This imbalance can be resolved by relying on the inherent features of the therapeutic and facilitative models of mediation. The equal involvement of both parties in the mediation and the regulation of the process by a neutral third party, can empower the child. Moreover, as outlined above, the child’s support person is vital in ensuring an equality of power during the mediation.
In 1983 Summit described Child Sexual Abuse Accommodation Syndrome characterising it by, inter alia, retraction of disclosures of abuse.37 What happens, if during a mediation, the victim retracts his/her allegations of abuse? This would prompt the mediator to suspend the mediation so that the child can receive counselling or treatment. The possibility of the victim denying the abuse stresses the need for mediators in these cases to be well-versed in child psychology. It also highlights the important role of the child’s support person who can identify and deal with such issues as they arise.
Several writers argue that mediation serves as a conservative mechanism to maintain the status quo, particularly in gendered areas of law such as domestic violence, family law and sexual assault.38 The argument is based on the premise that men have power over women and that this power can go unchecked in the mediation framework because the process of mediation as well as mediated agreements are not subject to public scrutiny. Privatisation of justice is seen as being disadvantageous to females because the spirit of negotiation nurtures entrenched power bases, rather than providing remedies for females.
Whilst this argument may have some merit per se, it is not relevant to the models of mediation described above because they operate in a context where the guilt of the offender has been unequivocally determined in the public forum of the criminal court.
If the agreement reached between victim and offender during mediation is taken into account in the sentencing of the offender, perhaps the entire mediation process will be used as a vehicle for the offender to manipulate a lighter sentence. Whilst this is a real concern, it must be seen in the context of the sentencing discretion which takes a whole range of matters into account,39 including an offender’s plea of guilty as well as his/her display of remorse.
Interestingly, Kidd asserts that victim-offender mediation results in victim satisfaction with the sentencing outcome, even if it is lighter than expected.40 However, Kidd’s conclusions are more pertinent to the situation where victim and offender have no relationship prior to the victimisation. In intra-familial CSA cases, the victim often wishes the offender to receive a non-custodial sentence. These wishes can be expressed during a pre-sentence mediation, and can be taken into account in the sentencing discretion.
There is a danger that the availability of a mediation process, coupled with an accused’s perception that his/her participation may be viewed favourably by a sentencing court, may induce guilty pleas by those who are innocent. It is argued that the risk of this happening is minimal because of the social stigma associated with being labelled a ‘child molester’ as well as the well-publicised ostracism and violence experienced by offenders (rock spiders) in prison.
There is a concern that the inter-action between victim and offender during the mediation may be disturbing for the victim and may lead the victim to relive the abuse. As outlined above, only those victims who are deemed psychologically suitable will be able to participate in mediation. Moreover, the existence of a qualified support person for the child guards against revictimisation and manipulation. In addition, the intrinsic features of the process, as described above, make it unlikely for revictimisation to occur.
Mediation is based on several tenets that are not part of current accepted thought patterns and expectations. Mediation pre-supposes an interest based approach which is inconsistent with the rights based focus of the legal system In addition, mediation works on the principle that the act is separate from the actor. This allows the parties to communicate as rational individuals and look to the future, rather than the past, to generate options to assist in creating a positive future relationship. Whilst these notions are unfamiliar, they are not complex, and can be easily explained by a mediator. Once mediation becomes an established practice, its principles of operation will become part of the culture and therefore more accepted.
CONCLUSION
Victim-offender mediation has been implemented and positively evaluated in several jurisdictions in minor criminal matters41. However, there is no reason to limit its application to cases concerning juvenile offenders, or to doubt its applicability in matters where a serious offence has occurred.42
The effects of intra-familial CSA can be serious and long-lasting.43 It is clear that mediation cannot rectify the criminal acts of the offender in these cases. Still, the process can be a starting point for healing. The opportunity to actually be part of the process and to vent emotions should not be underestimated as therapy for both victim and offender. If retribution remains the only focus of the criminal justice system, social disharmony will persist. If restoration, reparation and a therapeutic participatory approach to criminal justice are integrated into the system, there is a greater chance that recidivism will decrease. Moreover, as empirical data points to mediation resulting in greater victim satisfaction with the criminal justice process, then intra-familial CSA victims may be more willing to report abuse if mediation forms part of their anticipated encounter with the system.
1 This paper is based on an article of the same title published in (1998) 9 Australian Dispute Resolution Journal 265.
2Sexual activity between an adult and a child is criminalised in most jurisdictions. In Victoria, Crimes Act 1958, Part 8C specifically criminalises Sexual Offences against Children. Crimes Act 1958, Part 8B contains the general offence of incest which is a penetrative offence. There is no corresponding general offence targeting non-penetrative sexual activity between family members and those falling within the ambit of Part 8B. This behaviour may be prosecuted under s.39, indecent assault. 3K. Oates ‘Child Sexual Abuse’ 24 June 1994 Australian Doctor I 4P. Yellowlees and A. Kaushik ‘A Case-control study of the sequelae of childhood sexual assault in adult psychiatric patients’ (1994) 160 Medical Journal of Australia 408. 5A. Palmer ‘Child Sexual Abuse Prosecutions and the Presentation of the Child’s Story’ (1997) Monash University Law Review 171-199, 171. 6D. Glaser and S. Frosh Child Sexual Abuse. Macmillan Education, 1988, 13: L. Berliner ‘Child Sexual Abuse: What Happens Next?’ (1977) 2 Victimology 330, 331; D. Finkelhor and D. Russell ‘Women as Perpetrators’ in D. Finkelhor (ed) Child Sexual Abuse: new theory and research. New York Free Press, 1984, 171. 7 Ibid. 8E. Helman ‘Child Sexual Abuse’ 2 August 1991 Australian Doctor Weekly I. Berliner’s data, see footnote 3, indicates that 75% of offenders are known to the victim, most are related to the victim, being the child’s father, step-father, grandfather or uncle. 9J. Gutman ‘The Effects of Child Sexual Abuse: Is There a Child Sexual Abuse Syndrome?’ (1997) 4 Journal of Law and Medicine 361-372. 10For example, in Victoria, since the enactment of Evidence Act 1958, the new s.23, children may give unsworn evidence if they understand the duty of speaking the truth, and can respond rationally to questions. Evidence Act 1958, s.23 (2A) abolishes the requirement that the unsworn evidence of children must be corroborated. It also prohibits a judge from warning a jury that the law regards children as an unreliable class of witness. Crimes Act 1958, s.61 as amended by Crimes (Amendment) Act 1997, s.6 instructs judges to ‘inform the jury that there may be good reasons why a victim of sexual assault may delay or hesitate in complaining about it’. Whether this new legislation will prevent judges from giving the standard Longman v R (1989) 168 CLR 79 warning, remains to be seen. See R. Gibson ‘Major changes to the prosecution of sexual offences’ (1998) 72 Law Institute Journal 49-51. 11For example, in Victoria, see Evidence Act 1958, s.37B. 12For example, in Victoria, see Evidence Act 1958, s.37C. 13See H. Meadows ‘Sex, evidence and videotape’ (1995) 69 Law Institute Journal 966-969. For a detailed study on the stresses experienced by a child witnesses testifying in court see M. Brennan and R. Brennan Strange Language: Child Victims under Cross Examination. Riverina Murray Institute of Higher Education, 1988. See also, G. Goodman and B. Bottoms (eds) Child Victims, Child Witnesses. Understanding and Improving Testimony. Guilford Press, 1993. 14For example, in Victoria, the Victims of Crime Assistance Act 1996 which repeals the Criminal Injuries Compensation Act 1983. For a detailed discussion of the legislation, see C. Corns ‘Rewriting victim’s rights in Victoria (1997) 71 Law Institute Journal 37-39. For a discussion of the increasing recognition of victims’ rights see I. Waller ‘Victims of Crime’ (1988) Australian Crime Prevention Council Journal 19-27. 15In Victoria, see Sentencing (Victim Impact Statement) Act 1994. 16 B. Mason ‘Reparation and Mediation Programmes: The Perspective of the Victim of Crime’ (1992) 16 Criminal Law Journal 402-414; C. Corns ‘Criminal Proceedings: An Obligation or Choice for Crime Victims?’ (1994) 13 University of Tasmania Law Review 346-348; H. Lambrick ‘Mediation in the criminal law jurisdiction’ (1995) 69 Law Institute Journal 412-414, 412. 17K. Oates, D. Lynch, A. Stern, B. O’Toole and G. Cooney ‘The criminal justice system and the sexually abused child. Help or hindrance?’ (1995) 162 The Medical Journal of Australia 126-130. 18See Law Reform Commission of Victoria, Report No.18, Sexual Offences against Children, Melbourne, LRCV, 1988, 19; Brennan and Brennan, loc cit; R. Flin ‘Hearing and Testing Children’s Evidence’ in Goodman and Bottoms, op cit, 283. 19Mediation is defined by J Folberg and A Taylor in Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation, Jossey-Bass, San Francisco, 1988, 7. as ‘[T]he process by which the participants, together with the assistance of a neutral person or persons, systemically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs’. For a description of the therapeutic and facilitative models of mediation see L. Boulle, Mediation: Principles, Process, Practice. Butterworths, 1996, 28-30. 20Victim-offender mediation programmes have been piloted in Victoria, New South Wales, Queensland, and Western Australia. Most programmes deal with property offences and offences committed by young offenders. 21 ‘Mediated restitution for victims of crime’ (1994) 68 Law Institute Journal 109-191, 190. 22For example, see R v Wayland Court of Criminal Appeal, Victoria, unreported, 14 September 1992; R v Sposito Court of Criminal Appeal, Victoria, unreported, 8 June 1993. 23In 1981, 76% of incest offenders received custodial sentences. In 1982, the percentage rose to 88. The percentage dropped to 65 in 1983, but in 1984, 84% of incest offenders were incarcerated. In 1991, 76.61% of incest offenders received custodial sentences. See Sentencing Statistics-Higher Criminal Courts-Victoria 1991. 24For example, E. Butler-Scloss Report of the Inquiry into Child Abuse in Cleveland 1987, London, HMSO, 1988; LRCV, Report No.18, recommendation 42, op cit, 122. Note the criticisms of the LRVC recommendation in C. Coady, M. Coady and G. Pagone ‘Child Abuse: Treatment punishment and other diversions (1989) 63 Law Institute Journal 389. 25A. Groth ‘The Incest Offender’ in S. Sgroi (ed) Handbook of Clinical Intervention in Child Sexual Abuse. Lexington Books, 1982, 235: LRCV, Report No.18, op cit, 114. 26Law Reform Commission of Canada Studies on Diversion, East York Community Law Reform Project, Information Canada, Otowa, 1975, 23. 27See Wright, loc cit. 28S. Kift ‘Victims and Offenders: Beyond the Mediation Paradigm’ (1996) 7 Australian Dispute Resolution Journal 71-87, 73. 29D. Kidd ‘Victim-Offender Reconciliation in Melbourne’ (1994) 14 Socio-Legal Bulletin 12-15, 12. 30Kidd, loc cit. 31Kidd, loc cit. 32It is recognised that a conundrum exists for sentencing courts in a situation where an offender is keen to participate in mediation but a victim is unwilling or psychologically unsuitable. See Kidd op cit, 15. 33The problems associated with the concept of neutrality are recognised, yet fall outside the scope of this paper. For a discussion of the concept see K Gibson et al ‘Shortcomings of Neutrality in Mediation: Solutions Based on Rationality’ (1996) Negotiation Journal 69-80. 34 See M. Wauchope ‘Protective Mediation: A New Approach to the Victim-Offender Relationship’ (1994) 14 Socio-Legal Bulletin 16-19 for a full description of the Western Australian experience with this form of mediation.. 35L. Hill ‘The Bench: Leveling the Playing Field’ (1994) 14 Socio-Legal Bulletin 26-27, 27. 36D. Moore ‘Diversion? Reconciliation? Mediation? Confusion’ (1994) 14 Socio-Legal Bulletin 39-45. 37R. Summit ‘The Child Sexual Abuse Accommodation Syndrome’ (1983) 7 Child Abuse and Neglect 177. 38J. Scutt ‘The Privitisation of Justice: Power Differentials, inequality and the Palliative of Counselling and Mediation’ (1988) 11 Women’s Studies International Forum 503-519; R. Alexander ‘New Mantras in Family Law’ (1996) 21 Alternative Law Journal 276-279. 39See R v Williscroft op cit. 40Kidd, op cit 14. 41T. Fisher ‘Victim-Offender Mediation: Views of a Mediator-Researcher’ (1994) 14 Socio-Legal Bulletin 28-33, 30 42Ibid, citing M. Umbreit ‘Violent Offenders and Their Victims’ in H. Wright and B. Galaway (eds) Mediation and Criminal Justice: Victims, Offenders and Community, Sage, 1989, 109. and T. Marshall and S. Merry Crime and Accountability: Victim/Offender Mediation in Practice, HMSO, 1990, 235; See also J. David ‘Mediation: A Viable Alternative’ (1985) 9 Criminal Law Journal 86-97,94. 43See A. Browne and D. Finkelhor ‘Initial and Long Term Effects; A Review of Research’ in D. Finkelhor (ed) A Sourcebook on Child Sexual Abuse, Sage Publications, 1986, 143.