Updated: Oct 19, 2022
Thomas Ponissi speaks with the Manager and Convener of Open Circle, at the Centre for Innovative Justice, about intersectional feminism, vicarious trauma, vicarious transformation and more.
During her time as a criminal lawyer, Nareeda Lewers gained unique insight into the legal system’s shortcomings. Nareeda now manages and convenes Open Circle, the restorative justice division of RMIT University’s Centre for Innovative Justice (CIJ). The CIJ was opened in 2013 to research, advocate and apply new approaches to justice [1]. Since 2019, Open Circle has offered restorative justice processes to Victorians impacted by interpersonal harm [2], with a particular focus on sexual violence.
Please note that this interview contains references to sexual and family violence.
How did you end up involved in restorative justice?
I practiced criminal law for a while in the CLC (community legal centre) and legal aid sectors. I enjoyed that work a lot, but I always gravitated towards therapy programs and therapeutic jurisprudence. After a while, I needed a break from practicing law; the Centre for Innovative Justice had a pilot program come up, and I absolutely jumped at that opportunity. I’d encountered restorative justice before that, but I hadn't really worked in it, and it was quite a steep learning curve. The more that I learned about restorative justice and saw it in action, the more excited and inspired I was. After the pilot finished, the CIJ was lucky enough to receive funding to set up an ongoing restorative justice service, which is how Open Circle started.
Do you think that having a CLC background was a benefit in transitioning to restorative justice?
I think so. CLCs have quite a holistic view of their clients’ lives — and I think there's always a bit of a critical perspective on the law.
Can you tell me more about Open Circle?
Our focus is on providing restorative responses to sexual violence. We offer services in response to quite a broad range of harms or crimes — for example, dangerous driving or assault causing serious injury. But yes, increasingly the focus is on restorative responses to sexual violence — and really, since as soon as Open Circle started, that's been the greatest demand. It is such a complex dynamic, offering restorative justice or really any justice response to sexual violence. We’ve gone through a process of really carefully developing a practice.
Why do you think that there is such a demand in that particular area? Is it because the traditional legal system or justice model isn't equipped to handle it?
I think that's fair. I think, in particular, victims, survivors of sexual violence often find that the justice system doesn't deliver what they're looking for. There's such a huge one, there's a huge attrition rate — and we also know that the vast, vast majority of victims survivors don't report to police at all. There are huge unmet needs in terms of getting people who don't want access to the traditional justice system and then those who do find that it doesn't deliver what they're looking for. And I think increasingly, survivors are talking about ways in which the traditional structures don't serve them. I think it makes perfect sense that there's an increased interest in offering restorative justice to survivors.
Absolutely. So what does your role as manager of Open Circle entail?
I've done restorative justice facilitation training, and I do facilitate matters, but I'm concentrated more on setting up the structure of Open Circle. And we've got people now who were specifically focusing on the facilitation. As a lawyer, my skill set is a little bit different, so although I still stay involved, I’m doing other things rather than just the direct practice.
Is that more of that administrative side of the of the organisation?
Yes, management, developing our program structure and framework, doing a lot of work with external stakeholders to make sure that what we're doing fits in what fits in nicely with what they're doing, particularly those in the sexual violence prevention sector. Also very importantly, with the legal sector: we don't say restorative justice is something that people should have to pick instead of a traditional justice response. We want it to exist as an option, particularly for sexual violence, that a victim survivor can choose to report to police and pursue criminal prosecution, and also choose to engage in restorative justice. Because of that, it's really important that our processes don't negatively impact the ordinary workings of a criminal prosecution. There's work that needs to be done in terms of what that looks like, because at the moment, restorative justice doesn't have a legislative basis — at least in the adult jurisdiction.
You've really touched on a very interesting point there. In an ideal world, would restorative justice completely supplement the punitive model of criminal justice? Or do you see the two approaches sustainably coexisting?
I mean, in an ideal world, there would be no need for either, because people will just be wandering around treating each other with respect. I don't think the justice system is going anywhere — and I also think that for some victims survivors, it's an important avenue, especially when you think how historically, many gendered harms weren’t crimes at all. There's been so much work by feminists to really ensure that those harms are taken seriously and bought into public realm, and we don't want undo that work. I think it's just about recognising that victim survivors are different people who've experienced harm in different ways, and so different justice options really need to be there to make sure that that everyone has a chance of getting a justice response that works for them.
Are times where you find that restorative justice doesn't work, or shouldn't even be attempted in the first place? I think it's particularly relevant to what Open Circle does because you do sometimes hear the perspective that for more extreme forms of interpersonal harm, such as sexual violence, restorative justice isn't appropriate.
That is a great question. I think sometimes there can be some nervousness in offering restorative justice to very serious or complex harms. We know that what characterises sexual harm is a power imbalance, and some responses that are outside the formal justice may not have a really good grasp of the complexity of those dynamics. I can see why there's trepidation, but the research that I've looked at on restorative justice programs internationally, shows that from a victim perspective, the more serious the harm, the more satisfaction victims get out of participating in restorative justice — which can be somewhat counterintuitive, but to me it really makes sense. Because the way we practice restorative justice is quite intensive; it involves really spending a lot of time with the person harmed and the person responsible. It requires a lot of time and energy, so I think it makes sense that when this is in response to something really serious, the benefits are really great, whereas if it's something less serious than perhaps the benefits aren't as great. I also wouldn’t rule out any kind of category of offences as being inappropriate for restorative justice. I think it's so contextual. There are certainly times when it doesn't work; we have some quite careful screening processes that we set up, checking for alignment between what someone is looking for and what restorative justice processes can deliver. And so really, I think that's probably a big factor about whether it's the right thing. If someone, really wants financial redress, or they really, really want the person responsible to experience a criminal sanction, our process can't deliver those things. Those needs aren’t going to be met by our processes. Sometimes, the person just might not be ready to take part — they might be feeling so angry towards the person, which is completely understandable and to be expected — but we are clear that we want our processes to be very constructive and be enacted in a very respectful way. We really rely on our screening processes to pick that up, rather than saying, “Are there categories of harm or types of offences that are outside our scope?”
You mention how intensive the process is. How do you care for and protect yourself as a practitioner working in a space that can be incredibly triggering?
Another great question, and I think an important consideration for law students as they embark on their professional careers and are exposed to vicarious trauma. Certainly, in restorative justice, we’re really responding to quite grave harms and we’re working with people who have experienced a lot of trauma. There are a structural things that we have in place: we have a very good culture of debriefing with each other within the team, and we also talk a lot about the risk of vicarious trauma. At the same time, something that we've been talking about a lot is keeping alive to the possibility of what's called vicarious transformation. It's a concept I've come across quite recently, and I find it really exciting. People can experience incredible trauma, and yet go on to just live really ordinary lives and show resilience in the face of all sorts of barriers. It's remarkable. The thing that I love the most about working in restorative justice is that we really do get to walk alongside both people who’ve been harmed and people who’ve caused harm in what can be an incredibly transformative and empowering process. Because you're so close to that process, it can be something really positive. My personal experience is that it's inspiring. We really see what human beings are capable of in terms of their capacity to really face very, very difficult situations with an incredible kind of generosity of spirit. The most humbling thing for me is that often, what people want is to really use their experience to make a positive change. Whether that’s making sure another person doesn't experience what they've experienced, or somehow contributing to the way that harm is responded to — I'm humbled by that every day.
"The irony is that a lot of that tough on crime approach is focused on what should happen to the offender. I think that obsession actually diverts us from listening to victims of crime and really engaging with their experience." Nareeda Lewers
You've spoken about vicarious transformation as a benefit of working in the field. What are the challenges?
Certainly during the pilot, there wasn't much restorative justice being practiced in Victoria. There was nervousness around it, especially for serious harm, and it was challenging to engage with the legal sector and explain the benefits. But there's been a bit of a shift gradually. The Victorian Law Reform Commission last year handed down a report on its inquiry into the prosecution of sexual offences, and recommended that restorative justice be widely available. I mean, each individual matter also has its own challenges. It’s a voluntary process and is absolutely victim survivor focused. We try and create a process that really meets their needs, but we also must keep in mind that the person responsible is choosing to participate. We need to make sure that they remain comfortable in the process, and also that the process is unfolding in a way that's consistent with our values and with the restorative approach. All of this can be quite complex.
So what does a successful restorative justice outcome look like to you?
I think it looks different every time — but to me, it’s when the participants feel really good about having gone through the process. Particularly the person harmed; restorative processes can never make up for the harm they've experienced, but if they feel like this was a really meaningful response, that they've come away feeling stronger in themselves, then that's very successful. There’s also something about the quality of the interaction between the person harmed and the person responsible; if you do see a really genuine willingness of the person responsible to hear the person harmed, and to really accept responsibility and be accountable. Although I sort of see the benefit in people being able to access traditional justice as well, true accountability at a personal level looks really different to me.
What does it mean to take responsibility?
I think it is a lot about really hearing about the damage that's been caused, and, and recognising your own part in that. From a restorative justice perspective, the focus isn’t, ‘Are our laws being broken?’. It's more about this person — who’s a real person — who has been harmed in this way. Can you engage with that? Can you really take that on? Can you learn from that? It’s a responsibility to learn, and to not repeat that behaviour.
What do you think is the most common misconception about restorative justice? And how would you respond to it or correct it?
There's a common misconception that restorative justice is a soft option. Sometimes it's used as a form of diversion, although our program doesn't necessarily work that way — you can do restorative justice and still have a regular criminal prosecution. But I think that people do see restorative justice as instead of a prosecution, and then feel like that the perpetrator can just have a chat and not really get punished. But I don't see it as a soft option at all. I think that some of the work that the person responsible does is really hard — and that's not to excuse their behaviour or ignore how hard things are for the person harmed, especially in sexual violence. That is where we bring in accountability specialists who work quite intensively. It is intensive, it's a big time commitment, and it's really involves a huge level of discomfort in facing up to actions. There’s no letting anyone off the hook; it's a really meaningful form of accountability. The irony is that a lot of that tough on crime approach is focused on what should happen to the offender. I think that obsession actually diverts us from listening to victims of crime and really engaging with their experience. That is what’s really needed. We can work out more creative ways of responding to crime than imprisonment or harsh punishment. When more people aren’t victimised, we can address the causes of offending.
Restorative justice is often framed in highly individualised terms: particular perpetrators and victims, specific offences or conduct. However, there are more collective traumas and crimes that don't fit into such simple paradigms. Can restorative justice be applied to broader cultural or structural maladies?
I think there’s an enormous potential. One of the things that restorative justice can deliver is a space for people to really be heard. I think if there's been sort of collective trauma, and that trauma is not being acknowledged, perhaps by mainstream society or a powerful group, then I think restorative approaches have the capacity to provide that forum. Overseas, restorative inspired processes have been used to respond to sort of widespread harms and trauma. The Truth and Reconciliation Commission in South Africa, responding to apartheid, is often seen as an example of a restorative process that it responded to wrongdoing and trauma on a national scale. There have also been uses in Canada, particularly responding to the experience of First Nations People in Canada being abused in institutions. There's definitely examples of these applications, but it's very complex. I'm not sure I can say that it would work in this country; there needs to be a lot of listening done by dominant groups. What a restorative process might look like, I'm not sure — but I think it's worth exploring.
Do you ever find in your own work that you need to bring in practitioners or experts from other disciplines when you're handling things that may relate to a community that you don't necessarily identify with?
I think you've touched on a really important issue; that if restorative justice is not only to properly address an incident between two people, but also to play a role in addressing more structural issues in society, then it needs to be practiced intersectionally for sure. And what that looks like really depends, case by case. Sometimes, the available facilitators may not be right for a matter — even with the best intentions. You may have to bring other people into the process to make it safe and appropriate for participants.
Is it more a process of bringing practitioners in, as opposed to referring participants elsewhere?
Well, in Victoria, at the moment, there aren't a lot of other restorative programs that we can refer out to, so we really do try find ways for those complex issues to be recognised in each process. Our practice has an intersectional feminist lens. For example, we have invited Aboriginal elders or significant members of the community in the past, if participants felt that that was appropriate to them. We have a facilitator who is an Aboriginal woman and has connections to some of those communities. It’s just about recognising when you don't have the expertise or life experience — and supporting people with the process by calling for help.
I would like to read you a passage from a text published earlier this year by four American feminist activist-academics advocating for prison abolition. They write:
“Many of these small [restorative justice] networks fracture as a result of pressure from funders and others to expand, “scale up,” “streamline,” or “brand,” or to provide a service rather than organise, focus on policy work not base work, elevate a single charismatic leader/director instead of a collective, network with legislators not ordinary people. [...] Since paid employment has opened up for restorative justice practitioners and experts, many of these positions can now only be filled by someone with expensive certifications and credentials.” [3]
What is your perspective?
There are so many pertinent issues in that passage, I sort of don't know where to start. That last point about the way that restorative justice is practiced — I'm conscious that I have a paid position. Some people argue that restorative justice is based on much older forms of responding to conflict, and the restorative justice movement that has formed in the last few decades started as a community based movement, before becoming an expert field. Restorative justice is there to serve the community, so if it's practiced in a way that’s distant, that's a huge problem. It’s always tricky. The passage says there’s pressure to scale up, but that could also be seen as, ‘How do we make restorative justice more accessible?’ I don't know that I have an easy answer, I think I think those considerations are valid. I see their point as emphasising that it needs to remain really connected to community. I think that everyone who works in restorative justice is conscious that restorative values are vulnerable to being taken over by the values of other systems when you engage with them.
This interview has been condensed for clarity.
References
[1]. ‘Home’, RMIT Centre for Innovative Justice (Web Page, online at 15 July 2022) <https://cij.org.au>.
[2] ‘Who We Are’, Open Circle (Web Page, online at 15 July 2022) <https://cij.org.au/opencircle/who-we-are/>.
[3] Angela Y. Davis, Gina Dent, Erica R. Meiners and Beth E. Richie, Abolition. Feminism. Now. (Hamish Hamilton, 2022) 163-4.
Thomas Ponissi is a fourth year Law/Global Studies student, specialising in Human Rights. He works in the refugee settlement sector, as well as at a community legal centre for disadvantaged clients. Thomas’ favourite books are A Little Life by Hanya Yanagihara and Anna Karenina by Leo Tolstoy.