Draft_Is_Restorative_Justice_for_Sexual_Crime_Compatible_with_Various_Criminal_Justice_Systems (1).d

Right is not violated in restorative justice cases

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right is not violated in restorative justice cases that take place at the post-adjudicatory stage because the offender has already been found guilty (Ikpa, 2007, p. 312). However, as the offender must accept responsibility for the harm caused to participate in restorative justice,
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22 Holmboe (2013) warns that in cases where restorative justice is offered at the early stages of the criminal justice system, we must guard against restorative justice processes that may lead to false confessions or to plea bargaining. By leaving it to the police to find out ‘what happened’, Daly (2013, p. 27) relies on the assumption that the case is clear when it reaches the restorative justice system. However, Holmboe (2013) and Ward (2008) suggest that the possibility of different outcomes between the conventional criminal case and a case that is referred for restorative justice may lead to untrue confessions on the part of the offender if the restorative justice has even a hint of a diversionary possibility and that the accused person could have incentives to ‘assume a responsibility’ that is not grounded in what really happened. He may compromise his own right to the presumption of innocence in the more pragmatic interest of seeking a lenient outcome. On the other hand, he may re-victimize the victim by ‘pretending’ to accept responsibility in his own best interest as the higher order motivation. As part of the repertoire of guidelines for considering the import of RJ and its relationship with conventional justice, the 2002 UN document on the basic principles on the use of restorative justice programs in criminal matters (UN, 2002) offers useful suggestions. Some of the basic principles include the following: o ‘The victim and the offender should normally agree on the fundamental facts of a case as the basis for their participation in a restorative process. Participation of the offender shall not be used as evidence of admission of guilt in subsequent legal proceedings’ (Clause 8) o ‘Fundamental procedural safeguards guaranteeing fairness to the offender and the victim should be applied to restorative justice programs …. including the victim and the offender having the right to consult with legal counsel concerning the restorative process and … minors should have the right to the assistance of a parent or guardian’ (Clause 13 (a) – (c)). o ‘Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision’ (Clause 13 (b)).
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23 To counterbalance the apprehension of scholars who raise concerns regarding the possibility of an offender accepting responsibility and participating in RJ at the pre-sentencing stage of criminal proceedings, the accused and the victim must retain the right to terminate the restorative process at any time if either party feels that the process is compromising his or her integrity and instead opt solely for a conventional justice process, during which the guilt of the offender would have to be proven (Moore, 1993, p. 19;
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Christopher Reinemann
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