Will restorative justice help Indian sexual crime survivors where legal system lacks?

Sujatha Baliga remembers running away from home in rural Pennsylvania in the United States when she was 13. For a while she stayed with a teacher, who eventually brought her back home. The teacher made Sujatha and her parents sit at their dining table and said, “No one will interrupt each other; we are just going to answer the question: why does Sujatha want to run away from home?”

Sitting around the table, Sujatha remembers that her mother went on a tirade about how their daughter was a problem child. “I was a wild child… shaving half my head, wanting to be a typical American teenager who wanted a boyfriend and go to school dances and all. My mother did not like that, and was very strict,” Sujatha recalls. And when it was teenage Sujatha’s turn to talk at that table, she looked her father in the eye and said, “I don’t know, why don’t you tell us? Why do you think I want to leave home?”

“For the first time in my life, I saw fear in his eyes,” Sujatha says.

For years, her father had been sexually abusing her. And though Sujatha ultimately did not out him, the abuse stopped from that day.

That conversation, says Sujatha, was her first exposure to a restorative justice process, a model of justice based on listening, forgiveness and acceptance.

Restorative justice (RJ) shifts the way we look at crime -- as harm done to a person or a relationship as opposed to a violation of the law. Instead of punishment, it focuses on how the person who has done the harm can repair it.

Shortly after that dining table conversation, Sujatha’s father took ill, and passed away when she was 16.

While Sujatha’s mother eventually realised that the abuse was not her daughter’s fault, she initially felt that her husband had fallen sick due to the stress of being found out. “We always find a way to blame the victim, don’t we?” remarks Sujatha.  

“But even if that was the reason for his illness and ultimately death, I wish that he had a better coping mechanism. I wish he was alive and I could have asked him, ‘What happened to you that you did that to me?’” Sujatha says.

What is restorative justice?

RJ processes can take many forms - it could be a victim-offender dialogue, like the one Sujatha wished to have with her father; a restorative circle, where people can address a number of things like impact of the harm on those involved as well as their families and the community and what needs to be done to set things right. The idea of restorative justice is to listen, find validation, support and ultimately take a step towards healing, as opposed to punitive measures.

In 2015, Sujatha founded Impact Justice, a non-profit organisation in the US which focuses on restorative justice. Sujatha was in Bengaluru in the third week of January for a training session on ‘harm circles’ with a few Indian organisations that are using restorative processes with children who have survived sexual violence and with children in conflict with law. Experts say restorative justice processes, when facilitated by trained professionals to aid the legal system in India, have helped both survivors and offenders in a way the criminal justice system never allowed them to.

According to the International Institute for Restorative Practices (IIRP), the concept emerged in the 1970s in Ontario, Canada. However, the practice of "peace circles" by indigenous communities, a precursor to RJ processes, is deeply rooted in Native American history.

Due to RJ’s success and positive response from victims, it became popular in North America and Europe in the 1980s and 1990s. Over time, RJ broadened to include families and communities on the sides of victims and offenders as well, and developed several techniques like restorative circles, conferencing and victim-offender dialogue.

“Restorative justice operates on the ideas that we are not the worst things that we have done or the worst things that we have experienced,” Sujatha explains.

Facilitating RJ processes requires time, patience, trust building and formulating a set of common values for all parties involved, Sujatha says. And though it may involve a face-to-face meeting between a person who has caused the harm to the person who they have harmed, it is not a mediation - the needs of the person who has been harmed are always at the core.

Restorative justice processes and how they work

The fundamental bedrock of restorative justice is that crime and harm are violations of people and interpersonal relationships, rather than law, Sujatha explains. “Even if that relationship was developed at the moment of injury, as in the case of stranger violence,” she says. “These violations create obligations, and the central obligation is to set right what you have done wrong. And that family and community are also required to help heal the harm,” Sujatha adds.

RJ can work through many processes. One such process is restorative circle, which Swagata Raha, a legal researcher and a consultant on RJ processes with Enfold Trust, an NGO which works on issues of gender and sexuality with emphasis on child sexual abuse, has been trained.

She explains that there are different kinds of restorative circles – listening circles, harm circles, grieving circles, reintegration circles and so on. Essentially, everyone sits in a circle, and the circle facilitator guides the participants with a question; the facilitator does not control the circle. In sequential restorative circles, a ‘talking piece’ is passed from one person to the next and no one speaks out of turn, allowing for active listening and preventing back and forth argument.

“A circle is an equaliser as there is no hierarchy and no judge, and everyone has an equal opportunity to speak. There are a set of common values that the people in the circle arrive at, such as listening attentively, confidentiality, speaking truthfully and so on. Everyone is responsible for holding the circle together,” Swagata says.

There are other methods too, like the conferencing method, where the facilitator plays a larger role by deciding who will speak when. Another method is the Family Group Conference, where the idea is to empower family support groups to make decisions that would otherwise have been made by professionals, IIRP says.

A still from a weekly restorative circle with children in conflict at the office of Ashiyana Foundation in Mumbai.

Sujatha’s organisation trains and helps NGOs, which work with cases that come through the legal system. They spend weeks working with the person who has done harm “to help them develop a sense of accountability, remorse, identify their own needs in order to repair the harm,” she says. Then, they work extensively with the crime victim. “The person who has been harmed puts forth what they want, and a plan is formulated that has four parts – doing right by the person who has been harmed, doing right by your parents, by your community and doing right by yourself,” she explains

While several organisations practice RJ in the US, the concept is very new in India. Only a handful of organisations – Enfold Trust, Ashiyana Foundation, Counsel to Secure Justice and Leher – are using RJ practices, apart from a few individuals. And due to the difference in legal frameworks, RJ practitioners are looking to aid the legal system than posit it as an alternative, as is the case in the US.

In India, organisations largely use circles. For instance, Ashiyana Foundation, which operates majorly in Mumbai and works with children in the state observation homes, has been using restorative circles since 2015. The year was an important one for those working in child welfare – in May, the Lok Sabha passed the Juvenile Justice (Care and Protection of Children) Act, 2015 which allowed for children between the ages of 16 and 18 who had committed heinous offences to be tried as adults.

“It was this push towards more punitive measures that compelled the child rights community to look for alternatives, because criminalisation and increasing the punishment were not working,” says Nimisha Srivastava, who heads the restorative justice program at Delhi-based Counsel to Secure Justice (CSJ).

The impact of restorative practices in India

Though it’s early days, practitioners say that the impact of RJ processes has been profound.

Sachi Maniar, director of the Ashiyana Foundation, recalls that in 2015, at an observation home they were working in, out of the 20 children who were there for heinous offences, 12 cases got transferred to sessions court. Ashiyana started doing restorative circles with them.

“In a forgiveness circle we did, one thing that came up was that while they could forgive those who had harmed them, they could not forgive themselves for the harm they had done and the hurt they had caused to their parents. The bonding inside the home increased. In a listening circle, one child expressed the desire to study. Because we got him enrolled, the others were also interesting and so we started an education program for all of them. There was an increase in their social and emotional skills. And instead of just being a place to lock up children in conflict with law, the home started becoming a place of transformation,” Sachi narrates.

While Ashiyana’s experience showed how transformative restorative justice processes could be for those who have done harm, the experience of Counsel to Secure Justice showed how it could help fulfil survivors’ needs where the criminal justice system was lacking.

Urvashi Tilak, research and systems change manager at CSJ, notes that for survivors of child sexual abuse (CSA), many of them felt that their needs weren’t met even after their abusers were convicted. “Especially in cases of incest, when we spoke to survivors, they talked about how there was so much brokenness in the family, and their family was not supportive of them having reported the abuse,” she says.

“Majority of them said that their voices were not heard in the criminal justice system. In one case, a girl’s abuser, her father, had been convicted. She wanted to go back to the family, but has not been able to do so because she is in a state shelter home. There were financial troubles and she was not in touch with her siblings. She had been reluctant to report the abuse because she knew there would be backlash from the family,” Urvashi shares. “That was a turning point for us. Was justice only limited to the legal sphere? Because even if convictions happened, survivors were left wanting.”

In 2016, CSJ attended a workshop on RJ conducted by Sujatha in India, and got acquainted with restorative justice concept and processes. They also decided to interview families of CSA survivors and also adult survivors of CSA, to understand what justice meant to them. Adult survivors had never reported their abusers, but wanted a sense of closure.

2017: A restorative circle with women from a local community by CSJ at Delhi-based NGO Abhas (Action Beyond Help and Support)

It was during these interviews that CSJ also got the idea of doing re-entry circles with families. “When children who have been harmed are placed back with their families after being in shelter homes, no one really talks about the abuse. The survivor’s needs are unmet and they still feel unacknowledged by their families. This circle would help the families understand the survivors’ needs,” Urvashi explains.

Some adult survivors CSJ interviewed also expressed a desire to meet with their abusers and for them to acknowledge the harm they had done. However, the Protection of Children from Sexual Offences (POCSO) Act does not allow for the same. In India therefore, the restorative justice processes so far are not alternatives to legal redressal as in the US, but simply support the legal system and in rehabilitation of those who have been harmed and those who have done harm.

Those who practice restorative processes in India say that the system is still building muscle and they are working to demonstrate to the authorities how this can work, before it can be institutionalised.

Why restorative justice?

A number of studies have shown that children in conflict with law come from difficult backgrounds. For instance, in a survey of 500 people who have been on the US sex offenders’ registry since they were juveniles found that they had all had interventions from child protection services previously, Sujatha says.

This was observed by Indian social workers as well. For instance, Ashiyana did a training in restorative circles with children in conflict with the law at a state observation home. Sachi says they also asked members of the Juvenile Justice Board (JJB) members to be part of the circle as well.  

“Everyone sat in a circle on the floor. We asked who inspires them. The JJB members had answers, but none of the children did, except maybe one or two who said their mothers or uncles,” Sachi recounts.

“Then, we asked when you committed a mistake, who was that person in your life that helped you come back on the right track? It became so clear that the JJB members could easily have been the ones in the observation homes had they not had the support they did as children, which these children in the observation homes clearly didn’t,” she adds.

The power of restorative circles, observes Kushi Kushalappa of Enfold Trust, is that in a circle, children in conflict with law are not seen as offenders. “When he or she is speaking, everyone listens. The validation and importance that person feels in that space cannot be replaced,” she says.

2015: Sachi Maniar facilitates a restorative circle with children in conflict with law and children abandoned by their families at a Mumbai beach. 

As Sujatha observes, it is hurt people who often hurt other people. She explains that when a person who has done the harm is confronted with punishment, they make themselves the victim of the system, and of the person accusing them. “If we treat people as humans who make mistakes, then we can have a possibility for reparation,” she says. “People can’t talk about how they have done harm unless we give them a chance to say how they have been harmed.”

In one murder case, Sujatha spent two months building trust with the person who had shot his girlfriend, before starting the restorative process. “It was just questions like, which book are you reading? How is jail treating you? If I approached him with an accusation of having killed his girlfriend, a wall would have gone up,” she says.

RJ processes are particularly helpful when in cases of sexual offences where the harm is done by someone who is trusted and close. In India, in 95% of the cases, perpetrators of child sexual abuse are known to the survivors – and this, Sujatha observes, is a pattern that is seen world over.

In these situations, reporting the abuse becomes difficult because of the personal relationship shared by the survivor, their family and the perpetrator. Sujatha says that she too would not have reported her father. “You could say it’s because of internalised misogyny, but it could also be because of normal human connection with our parents,” Sujatha says earnestly. “He sexually abused me, but he celebrated when I got good grades. He drove me to violin lessons, and came to my performances. It was complicated.”

Precautions and challenges to restorative justice in India

With RJ being very new in India, there are several challenges before it can be used in a big way to reform young offenders as well as survivors.

It’s important to understand what restorative justice is not, experts say. “Restorative justice is not about compromise, it isn’t mediation and it is not about brokering a settlement,” Swagata asserts. “It is not about bringing the victim and perpetrator together and asking the victim to forgive and forget. This brokering and compromising is happening already – you see how many victims and witnesses turn hostile in courts because they have been offered a monetary compromise or are pressured in some other way. On the contrary, restorative justice is about ensuring that the questions of the person who has been harmed are answered. The person who has harmed has to accept complete responsibility – there is no minimising, defending or justifying.”

“It is completely rights based. If at any time a survivor feels that the process is not working for them, she can opt out and go for the legal route,” Swagata adds.

It is also crucial that RJ processes be undertaken only by people who are trained. If not done properly or without keeping in mind the survivor’s rights, it can re-traumatise them and do more harm than good.

Another misconception about RJ processes, Kushi says, is that perpetrators are being let off easily without punishment. But RJ practitioners insist that the accountability is real. “Sitting in front of the person they have harmed and saying, ‘I am taking responsibility for my actions and want to repair the harm I’ve done’, is much tougher than standing in a witness box and having a third person speak for you,” she argues.

Restorative justice and navigating the Indian legal system

Other challenges to RJ are posed by the existing legal framework. For instance, POCSO mandates that a sexual crime against a child be mandatorily reported under section 19 of the Act. That being the case, accessing RJ options becomes a challenge for those who do not want to report sexual abuse or enter the criminal justice system, Swagata explains.

Incidentally, the Juvenile Justice (Care and Protection of Children) Act has a provision for creating a diversion under section 3(xv) where measures can be taken for dealing with children in conflict with the law without resorting to judicial proceedings unless it is in the best interest of the child and the society. However, Swagata says that this is not followed as such. “The most that is done is that a child who has committed a petty crime is given a warning by the police and let off. However, if that child is repeatedly committing petty crimes, it shows that there is a bigger problem,” she adds.

In India therefore, this diversion exists only for petty crimes, unlike in the US and UK where restorative processes can also be used in cases of heinous offences. “If we want to use RJ in cases of heinous crimes here, we will have to wait for the legal process to get over, or work with the JJBs to allow for group counselling where RJ processes can be taken up,” Swagata explains.

Preparations for a restorative circle experience and training with Child Welfare Committee members

Reiterating that they are only trying to aid the legal system and not sidestep it, Swagata also cautions that it can be problematic to have RJ processes in sub-judice cases because of fair trial standards and the emotional ramifications for the survivor. What is said in a RJ process cannot be used against the person who caused harm during inquiry or trial.  “For a person to admit their guilt and their obligation in the RJ process and then go to court to defend themselves is extremely confusing and difficult for the survivor,” she says.

There is also the challenge of scalability of RJ processes at this stage. Kushi suggests that one way to aid scalability is to introduce restorative circles in institutions like schools and children’s homes.

“Guidelines will emerge with practice. We are working on using restorative justice processes alongside the legal system right now,” Swagata says.

It is important to keep in mind for people practicing RJ processes in cases of child sexual abuse that power dynamics can come into play if there is, say, a huge age difference between the abuser and the child. “In such a case, the child’s parents or other family members can be part of the restorative proceedings rather than the child,” Swagata says.  

Limitations of restorative justice

Restorative justice departs from the more popular alternative of retributive justice, reflected in the recently proposed amendments to POCSO. These amendments, if passed, will allow death to be awarded for violent sexual crimes on children, as well as increased minimum punishment for certain offences under the Act. However, there is very little evidence to suggest these measures – which may cathartic for public anger – are effective in preventing such crimes, or even satisfying the survivors.

On the contrary, restorative justice processes from across the world have proven to have a more success in reducing recidivism as well as satisfying victims. For instance, Sujatha says that at Impact Justice in the US, they have shown a 44% reduction in recidivism, and a 91% victim satisfaction rate. “It is making communities safer, it is making victims happier and it is being done at a fraction of the cost,” she says.

However, critics of RJ point out that there are some limitations to the model. This Canadian research paper talks about while survivors may be happy with the agreements reached in the RJ processes, the question remains if they are appropriately compensated or if it’s more tokenistic in nature, like community service.

Critics also argue that offenders may feign empathy and remorse to get away without punishment – although that seems unlikely in India at this point, given that organisations are trying to work with the legal system and not position RJ as an alternative.