Image used with permission. Credit: RudeLoveArt

The word ‘justice’ has been thrown around a lot this year. Protests following the murder of George Floyd set aflame a centuries-long call for racial justice, unprecedented wildfires in Australia and California amplified our urgent need for climate justice, and we are still calling for justice following the massive wave of public disclosures during the #MeToo resurgence in 2017.  When communities push back against conventional avenues for justice that do not work for them, we rarely stop and consider what meaningful justice-- truly transformative justice-- would actually require.

In the case of sexual and gender-based violence (SGBV), what would real justice look like for Survivors? What practices do we need to build to make it achievable, and what processes for seeking justice already exist under our noses, that are underutilized and undervalued? The purpose of this article is to make a few proposals to move our idea of justice away from the conventional criminal justice paradigm and towards alternative frameworks that already exist and do a better job of accommodating the needs of Survivors justice.

What do Survivors need?

Part of the challenge in defining what justice means for Survivors is that there is no one single approach that will serve everyone. In 2018, Clare McGlynn and Nicole Westmarland argued that Survivors deserve justice on their own terms. McGlynn and Westmarland suggest that there are some common elements that all Survivors deserve, which we can think of as a basic list of Survivor’s justice needs.

These include:

1. Centering the voice and agency of Survivors in the justice process;
2. Recognizing the harms that have been done;
3. Ensuring there are consequences for the person or people who caused harm;
4. Providing all forms of emotional and financial support to Survivors in the aftermath;
5. Treating Survivors with dignity; and
6. Preventing further harm.

These requests are not hard to imagine. They are basic principles we should expect from any justice process. But it may be surprising to learn, for those who have not gone through the criminal justice process, that our conventional response to SBGV is not equipped to handle many of these simple requests. The criminal justice process conventionally measures justice through charging, conviction, and punitive sentencing. Although Survivors may find some measure of reprieve knowing their abuser has been found guilty in a court of law, the criminal justice process was never built to meet many of the justice needs listed above: it does not centre Survivor’s voices, it does not automatically believe Survivors and recognize the harm done to them, and it does not meaningfully support them.

What does our conventional criminal justice response provide?

On the contrary, our criminal justice process has been developed on the notion that justice requires providing a fair, standardized, and objective response for all parties involved. This requires removing the victim from the legal process, focusing on due process investigation of the complaint and, when applicable, prosecuting an offender. This leaves little room for designing a response that considers the unique needs of Survivors. Whereas Survivor-defined justice is an umbrella of approaches to harm that largely centralizes the unique and shifting need for healing and care, the conventional criminal justice response narrowly measures justice as punishing people who violate laws.

The difference here is important.

By framing SGBV as a violation of a law, instead of a violation to the Survivor, our conventional legal response fails to meet the first principle of Survivor’s justice needs: it is unable to centre the agency and voice of Survivors in the justice process. The ‘victim’ of harm, as understood within the court, is the state whose law has been broken, not the person who has experienced assault. It is the Crown, not the victim, that is represented as the complainant in criminal proceedings. The fact that our conventional justice response removes Survivors from the process helps us understand why over half of the Survivors who report their assault are not confident in police or the criminal justice process and why so many Survivors never report their assault at all. The criminal justice system was never intended to center Survivor’s needs or provide a just response on their own terms.

That said, there have been some notable reforms, including the creation of victim impact statements, that have helped many Survivors be able to confront their abuser about the harms they have done. However, they still don’t provide Survivors agency to weigh in on the types of consequences their abuser will face, if they face any at all. Rakhi Ruparelia argues that victim impact statements are “not useful for women who have been raped and they risk causing further harm to racialized and other marginalized women [...] because they inevitably play into and potentially reinforce the sexist and racist stereotypes entrenched in the criminal justice system” and that, “any potential benefit of victim impact statements is available only to a narrow category of “ideal” victims.” Ideal victims are those viewed as innocent or chaste which is tied closely to the white supremacist notions of ‘proper’ femininity, heterosexuality, and whiteness. Furthermore, these reforms only help the tiny sliver of Survivors whose cases go to trial.

Conventional criminal justice responses hinder more than they help

In my thesis, Fragmented Feminisms in the Digital Age, I found that when Survivors speak up, they are often the ones who face the worst consequences. First, only 5 percent of sexual assaults are reported to the police in Canada. In the rare circumstance that Survivors do report their assault, Robyn Doolittle recently discovered that one in five are categorized as unfounded, meaning police decided there was not enough evidence to pursue further investigation. Even if Survivors are believed by police, they are still extremely unlikely to see their abuser face consequences. In 2017, Holly Johnson found a massive gap between the number of sexual assaults reported to police in Ontario and the number of those that went to prosecution and resulted in conviction. Of the estimated 9,000 reports made each year, someone was convicted of a crime in less than 1,000 cases. Even when subscribing to the formal legal idea of conviction as a just consequence, the criminal justice system rarely produces it’s own idealized ‘just’ outcome – even when there is ample evidence that sexual assault has occurred.

On the contrary, Survivors often face the worst consequences for speaking out, whether that be through retaliation from their abuser, being disbelieved by police, or being re-victimized by the justice process. After speaking out about Brett Kavanaugh, Dr. Christine Blasey-Ford had her name publicly shared against her wishes, and was forced to publicly take the stand to be cross-examined as she shared an incredibly personal and traumatizing experience. Not only that, Brett Kavanaugh was still appointed to the Supreme Court, and Blasey-Ford faced so much retaliation and abuse she had to move for her own safety. Blasey-Ford’s story is an unfortunately common example of revictimization by the justice process that so many Survivors experience. But most Survivors don’t have the money and privilege Dr. Blasey-Ford has to be able to afford the protection and private counselling needed to survive revictimization and retaliation.

Troublingly, criminal justice processes do not fare much better when it comes to the last principle of Survivors justice needs: preventing further harm.

On top of everything, sentencing abusers to prison does not reduce the likelihood of re-offending or causing future harm to others. If not to rehabilitate, what good is the criminal justice system at all? According to Laureen Snider, incarceration “makes those subjected to it more bitter, resentful, misogynous, and significantly less employable." What is more, many criminal justice reforms expand surveillance and prison industries, rather than invest in women’s shelters and health services that provide direct support for Survivors.

For instance, Snider discusses how zero tolerance policies reforms that require police to arrest someone in domestic violence cases had resulted in counter-charging: the practice of laying charges against the complainant instead of, or in addition to, the alleged abuser. Not only has this resulted in women facing charges when they report their abuse to police, but it can have far-reaching consequences for the women who report. Another example is Joanne Minaker’s study of criminal justice responses to domestic violence in Winnipeg. After an immigrant woman reported her partner’s abusive behaviour to police, a custody battle over her three children ensued, which she lost. Criminal justice intervention and the reforms supposed to improve Survivor’s experiences with police and the court system often do further harm rather than prevent it.

In sum, conventional criminal justice mechanisms fail to live up to any of the six basic principles of justice that Survivors deserve. The legal process centres the offender rather than the Survivor, police and courts often disbelieve Survivors and rarely provide meaningful consequences. In fact, the current system is not set up to distribute meaningful consequences at all. Further, reforms to these systems often serve to expand policing and prisons, which siphons funding from services that would provide Survivors the support they need. What is more, backlash and re-victimization remain troubling components of the criminal justice process. Instead of treating Survivors with dignity and respect, our conventional response begets massive risks and consequences while failing to prevent further harm.

What are the alternatives?

It’s for these reasons that we need to go back to the drawing board and build a justice process based on Survivors needs and concerns. This means thinking more creatively about what justice looks like. Fortunately, this does not mean having to invent entirely new systems. Rather, it starts with reinvesting in existing systems that prioritize caring for Survivors over punishing abusers.  Because Survivors are a heterogeneous group of people who will have unique and different concerns, McGlynn and Westmarland colourfully propose the need for building a ‘kaleidoscopic justice’ process. Instead of trying to provide a standardized approach for everyone, kaleidoscopic justice sees justice as a “continually shifting pattern; justice constantly refracted through new circumstances, experiences, and understandings; justice as non-linear, with multiple beginnings and possible endings; and justice as a lived, ongoing, and ever-evolving experience without certain ending or result.”

While this is a very abstract way of thinking about justice, it is a necessary starting point because it realizes that a cookie-cutter response to SGBV is never going to work. Survivors deserve remedies catered to them and their specific needs following harm. Survivors fleeing domestic violence may need immediate emergency shelter. Survivors who have experienced physical, sexual assault, and/or child abuse who are experiencing anxiety, depression, and/or post-traumatic stress disorder (PTSD) may require long-term therapeutic or medical services. Transwomen, genderdiverse Survivors, and sex workers require inclusive shelters and services that will accommodate them without harassment or judgement. Black and Indigenous Survivors deserve responses that will not rely on police and other hostile justice systems that continue to criminalize their existence. Indigenous Survivors should be provided with supports that are informed by cultural traditions and knowledge. Immigrant Survivors may need additional layers of legal support to protect them from deportation and programming that can be provided in their language. Men who have survived sexual violence desparately need supports that currently do not exist for them to even begin breaking their silence and seeking help. Disabled Survivors require accessible responses. Things as seemingly small as an uncleared sidewalk, the lack of a ramp, not providing services in sign language, or not providing descriptive text for online resources, could make it almost impossible for many Survivors to access local resources. All of these considerations bring that abstract kaleidoscope of justice into concrete solutions. We know the spectrum of SGBV and Survivor’s needs following harm is broad, so why can’t the tools we use to build justice for Survivors be equally as broad?

Addressing all of these needs is doable, particularly because it means reinvesting time and money into programs and services that already exist to make them universally available, affordable (preferably free), and catered to the specific and unique needs of the Survivor. The notion of justice I have offered here may be familiar, but not in the very punitive way we are used to thinking about justice. In part, because this kaleidoscopic framework looks a lot more like extending care to Survivors than distributing punishment to abusers. Part of centralizing Survivors means centralizing their needs following the harm they have experienced.

On December 4, 2020, the Manitoba Government announced that it will distribute$5.6 million by the end of next March to agencies that help victims of gender-based violence for both Indigenous-led projects addressing SGBV and community-based efforts to support Survivors. Reinvesting public funding to systems of care rather than cruelty is the first step to building kaleidoscopic justice for Survivors. It is our job to advocate for ongoing, stable public investment in programs that are led by Survivors and that do not require us to rely on a police response. Meeting these basic needs within the kaleidoscope of justice offers a lot more than our conventional criminal justice process currently does and places us on the path where we can begin building harm prevention strategies and justice processes that deliver meaningful justice. It’s the very least that Survivors deserve.

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Emily Gerbrandt (she/her/they) is a PhD student, public criminologist, and community organizer for anti-sexual violence and transformative justice initiatives. They work and live on Treaty 1 (Winnipeg) and Treaty 6 (Edmonton) land.