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“Our criminal justice system is very paternalistic”: A Conversation with Kate Clark

Thomas Ponissi speaks with the Legal Director of Clark & Associates Mediation Services about Australia’s lag in restorative justice, race and gender, the importance of collaboration and more.


In 2017, after nearly a decade as a criminal defence lawyer and family lawyer at private firms, Kate Clark opened her own practice, Clark & Associates Mediation Services. As Legal Director, Kate brings “extensive experience in conflict and crisis situations”, [3] using this expertise to spread awareness about the benefits of restorative justice.



Please note that this interview contains references to sexual violence, family violence and self-harm.

 

How did you end up involved in restorative justice?

Every now and then, complainants or victims of crime would reach out and contact me in my capacity as lawyer for the defendant. They wanted to engage in a conversation with my client, essentially to try and understand what happened. The first matter that comes to mind is a client who had been charged with indecent dealing of a child. The child’s mother, who was my client’s ex-partner, came up to me in court one day. She had lost custody of her child and she wanted to speak to my client about exactly what happened, but there wasn't any scope for her to have any sort of discussion. I spoke with my client, who had already pled guilty and was awaiting sentencing. He was very, very keen to meet with her too: he understood that his actions had seriously impacted her life, and he wanted to acknowledge and validate her experience — which is unique, it’s not always the case. So I found a way to appropriately bring them together, and effectively, without even knowing it at the time, I ran my own restorative justice process. After a few similar cases, it became more and more evident to me that not only is this something that people often desire, but also that our system fails to provide an adequate service to assist people in having their experiences understood and their needs met. So in 2017, I finished up my work as a criminal defence lawyer and I opened a mediation-only law practice — which is also pretty unique.


What does your work involve?

We provide restorative justice services on both a private basis and via legal aid funding. The types of matters we’ve mediated range from common assault and property matters, like stealing, to sexual violence and intimate partner violence. I also believe that we are the first private service provider to provide restorative justice mediation for a coronial matter in Queensland. We are not associated with the government process in Queensland; I think that like with anything, as soon as you create a government process around something more philosophical, it is distilled into a process-driven set of targets and steps. It’s not the most humanistic, holistic approach, when the beauty of restorative justice mediation is that it humanises things for people. I’ve had to do a lot of self-directed learning about it. I’m constantly looking overseas; I’ll be watching professional development lectures from Europe at three in the morning. Clark and Associates is guided heavily by the practice and experience of our international friends: the UK, New Zealand, Scandinavia, some jurisdictions in America and Canada. Many other countries have advanced further than Australia, which is a shame.


Why do you think Australia is so behind the curve on this?

I don’t know the answer — and I think about it a lot. One of the challenges of working in this area is that it’s very, very political. The optics around getting people together for restorative discussions don’t seem to satisfy community needs about what justice looks like in Australia, but I think that community needs are really misinformed. When you actually experience something incredibly traumatic like somebody committing a crime against you, you suddenly realise that those punitive measures don't necessarily always equate to what your sense of justice is. We are lied to about crime and fed misinformation about it, and that feeds into those optics, which then makes us believe that we're safe in the world after all, and that crime is being managed effectively by punitive solutions. This is not the reality, but it's not at the forefront of people's minds. Until it happens to you, you don't have the motivation to really explore whether these systems are serving us as a community, because there's a lot going on: a global pandemic, unemployment, all of these other things that for most people need more attention.


Are you comfortable with politics?

Well, the political nature of it doesn’t just stop at the concept of restorative justice. It filters down into the attitudes of prosecution and police more broadly. I'm yet to meet a criminal defence lawyer who doesn't think that restorative justice holds some sort of benefit for defendants, complainants and the community, but I have met only a handful of prosecutors and police officers who hold that view. This is where the political climate is so challenging, because there’s inconsistency in the service being provided: for example, in one jurisdiction, you might have an officer in charge of a police station who very much believes in the concept of restorative justice, and then in the neighbouring jurisdiction, you’ll have a prosecutor or an officer in charge who will not even consider restorative justice mediation, for anybody. Even if complainants tell them that they want it, they tell them they know better. I believe it comes from a place of fear. Our criminal justice system is very paternalistic.


Can you elaborate on that idea, that the justice system is paternalistic?

There is a complete disregard for what victims or survivors may want. Let’s say, hypothetically, that you are violently assaulted by somebody. You may want to know what happened: who that person was, why they assaulted you, what they did with your stuff that went missing during the assault. Maybe they stole your grandmother’s house key, and you’re really worried that they’ll find out where she lives and get into her house and hurt her. As a victim in the traditional criminal justice model, you will likely never know the answers to your questions. The specific defendant may decide to be helpful, but there’s nothing to compel them to do so, and there’s nothing in the traditional model to facilitate a conservation between the two of you. So where does that leave you, the victim? Always worrying about the offender, their intentions, what they may do in the future — with nothing to satisfy your needs. In a restorative justice process, however, you are able to have discussions around these issues, and try to obtain some answers. Maybe you will learn that the gentleman who assaulted you was an alcoholic who had been drinking for four days straight and had also taken some cocaine for the first time and was having a very bad reaction to that. Maybe they didn't know what they were doing — in fact, they have no recollection of what they were doing — and after they robbed you, they were hit by a car and lost everything that they were carrying, including your grandmother's key. Maybe they don't even know who you are. The difference between having that conversation and never having that conversation means a lot to you as an individual.


What does a successful restorative justice outcome look like?

I measure success by looking at the experiences of the parties. Have I provided a trauma informed service? Has that that service met the safety needs of those individuals who have participated — physical safety, emotional safety? The reality is that once you do those things, it doesn't matter much what the outcome is. This is a very controversial comment to make — and I really want to be clear that I have so much respect for police and prosecution throughout Australia — but there are many parts of our traditional model of criminal justice that are incredibly harmful to complainants, victims and survivors of crime. This is not just in the way the police investigate, or in the way that prosecutors perform their obligations, but also in how the courts operate. This is why so many women who have been sexually assaulted never, ever make a report of the incident. They already feel a sense of discomfort about what that process will be like for them — and rightfully so.


Can you describe the process of a restorative justice mediation?

We take the screening of matters really seriously. I see our screening process as two-limbed. Most of the matters that come to us with consent of prosecution. The process is ordinarily prompted by lawyers acting for the defendant, so they have already analysed the matter and have the view that, “Oh, there's something about this matter that could benefit from restorative justice mediation”, and they send a submission of prosecution. Several experienced practitioners have already put some thought into it by the time it comes to us. Then, the first thing I do is send the complainant a letter of invitation to mediation, explaining what the process is, explaining that it’s voluntary and providing them with information about what it looks like. I invite them to contact me, and I tell them that I will follow up if I don’t hear from them by a certain date. Everything I'm doing is setting the tone to allow them to choose how they talk with me, in what format, and when. If they say no, then they hear from me no further. If they say they are interested, I ask them what that looks like. “Do you want to talk with me on the phone, zoom or in person?” I want to do that as soon as possible, so I can talk to them about confidentiality and safety, and ask: “What do you want out of this process?” And most complainants become incredibly emotional, because I'm the very first person to ever ask them that question. And then they tell me what they want. It’s very empowering, right from the beginning. It's about trying to provide an atmosphere of respect, where you're asking participants to make decisions about what feels right for them in terms of safety and what feels right for them in terms of process. What I'm trying to do is actually change the conversation from, “I'm going to come in and save you” to, “What do you want to achieve? What does it look like to get from where you are now to where you want to be? How do I help you in a collaborative way to try and achieve that?” This is empowerment, which is lost in the process of becoming a victim. And it’s doing that for defendants as well, because defendants also have usually experienced quite serious trauma. People who commit crime have usually got traumatic backgrounds. And there is absolutely no benefit to society in me treating them in a different way than I treat complainants. I want them to be heard and understood in the process as well. Interestingly, defendants also say to me, “You're the first person who's ever asked me what was happening for me in that moment.” They have been asked investigatory or legal questions, but not about what was happening for them in the weeks before and after, what it was like in the moment, how they feel now, and what they want to achieve. However, when reaching out to complainants, we’re really transparent that we will override their decision to participate if we regard their participation as being motivated by a sense of an obligation or force. We are keenly aware of the coercion and intimidation that could be occurring in the background. We have mechanisms in place to ensure that safety is at the forefront of our service provision; we create a safety plan with every single complainant and every single defendant who engages in our service. Every single one of those safety plans is different to the next, it’s all tailored through collaboration with individuals. And we talk very openly and transparently about emotional safety, physical safety, power and balance issues.


Do you believe that information shared in restorative justice mediation should be legally privileged or confidential?

Because my service is private, it isn’t legislated by the Queensland government. But I have a procedure in place, which requires that parties enter into a mediation agreement appointing me as the mediator. That agreement sets out my professional and ethical obligations and responsibilities, as well as those of each of the parties. I also require people to sign a confidentiality agreement, because I think to provide a truly restorative process, we need to have an environment of confidentiality so far as the law allows. If you didn't provide that parameter around the conversation, it may mean that the genuineness of participation could be compromised, which would be a huge shame for the participants. The process is obviously confidential so far as the law allows — there are exceptions to ensure safety of individuals from further harm. The mediation itself is both confidential and without prejudice which is essential to the process being as open and honest as it possibly can. And I think that if you didn't provide that, then it may water down the benefits to participants, and people might be more guarded and not really participate.


"I think what we should move towards is to give every single victim and complainant the opportunity to participate in a restorative process, and for them to make an informed decision on a voluntary basis about whether that’s something that could potentially assist them."

- Kate Clark


Do you ever get pushback on the confidentiality clause? NDAs often come up in, say, a sexual harassment case, where the NDA is its own gag order on the complainant.

Not everything is confidential. I explain further to participants that if they want to talk about what it felt like to be at mediation, they can talk to their psychologist, medical practitioners or family members about how it felt and what the experience was like. However, they cannot talk about the contents or particulars of what was said. So it’s not the case that they couldn't talk about the entire criminal act against them, I’m not wrapping them up in confidentiality around that. I have no power or authority to do that. They could say, “We went through a restorative justice mediation”, and if both parties agree on a particular outcome, and that’s not subject to confidentiality, that's also okay to discuss.


In a recent roundtable of opinion columnists discussing Will Smith’s assault of Chris Rock at the Oscars, feminist writer and academic Roxane Gay said:


I would like to believe that men of their means can find a way to use restorative justice to address the violence, to address the harm and to create repair.”


What advice would you offer the parties involved here? Considering the nuances of this particular incident — the intersection of race, gender, and disability; celebrity and wealth; extreme media attention — would practitioners or experts from other disciplines need to be brought in?

Firstly, I think Jada Pinkett Smith needs to be included in this restorative justice mediation. I'm very curious to hear her experiences in this whole situation; I wonder, actually, if hearing her experiences would add accountability not only for Will in his participation in restorative justice mediation, but also to explain to Chris the ramifications of making jokes at the expense of people's medical conditions. It would probably give him a level of insight that has been missed in all this, because he's now the victim of the crime but he's not completely blameless. He's also done something incredibly harmful to somebody. I totally agree with that statement, I think that restorative justice would be an excellent option for all of them. But I think that you have to consider the layers of responsibility and accountability. There would need to a representative of the Academy present also, because they need to be held accountable for allowing Smith to get up and be able to deliver a speech after the assault which obfuscated responsibility.


I want to dig a little deeper here. You have three people of colour involved; in a case like that, where your experience or identity does not necessarily match that of the participants, do you consider that there may be cultural or social nuances layers that you just are not quite attuned to? And how do you navigate that without unduly removing yourself or or absolving the participants?

It's a really good question. Again, it's about the experience of participants for me. A lot of my mediations involve Caucasian males, and I often enter into a dialogue with them about the fact that I'm a female, and disconnected from their lived experiences, and I check with them about whether they feel comfortable with me, and often, they have no issue with me. And again, I've had a number of participants who are First Nations persons, and I check with them about their needs and their experiences and what they want out of the process, and enter into a dialogue about that. For some people, I talk with them about what supports might be available and what support they might like to include in the process. And if culture or language is a difficulty, then we engage in a conversation about that, just like we do with safety planning, in a collaborative way — not me making a decision about it. I've never considered that I should remove myself as a facilitator for those reasons, but I'm always aware of just understanding what the experiences and needs are of participants. I've had a lot of LGBTIQ parties, and I'm not a member of LGBTIQ community. The trauma informed component is particularly important in our services for those participants. Police and court processes often further harm them, as a result of their gender identity or sexual orientation. But it's a good question, and I think I have to keep thinking about it, too. I've never wondered whether I should remove myself as a practitioner because I'm Caucasian, or female, and wondered whether they should be matched with somebody who isn’t.


There has been a fair bit of commentary by women of colour saying how the Smith/Rock incident is a very loaded, contextually specific event, and white people do not necessarily need to get involved in the surrounding debate. It speaks to a broader cultural conversation about whose voice should be magnified when discussing issues that pertain to a particular community, and who should listen instead. And, I mean, I’m included in this too, as a white person. It’s an ongoing thing that I need to be aware of, as someone who has privilege and needs to continually check it.

Yeah, I think that that's absolutely correct. I'd never seek to understand the lived experiences of African American women — or man, for that matter. It’s tricky, though, because the other thing is that we, as mediators, have a professional responsibility not to bring in our own personal biases. I think that's why I find the question intriguing, because I don’t bring my own life into the process of facilitating conversations between participants. I bring neutrality and independence, and my overriding professional ethical obligation to participants is to provide a fair process where people are heard. There’s an atmosphere of respect, and I'm modelling that in my interactions in a culturally informed, trauma informed manner. So I wonder whether it matters whether a facilitator shares the cultural personal identifiers of each of the participants.


Thanks for sharing that. I appreciate that it’s a tricky balance.

It's tricky, yeah. I mean, I think in a lot of ways, being a female in restorative justice is really helpful. Many of our participants are men, so I sometimes use my gender as a screening mechanism to assess someone’s suitability for mediation.


What do you mean by a screening mechanism?

Screening participants to tell whether they're suitable for mediation because I am female. For example, in the domestic and family violence matter, if a male perpetrator or coercive controlling intimate partner has difficulties engaging with me during the intake session, because of their masculine associations with how they are to engage with me, that’s an alarm bell — so in a way, I do use my, I guess, my gender to assist in screening for suitability.


It's almost like you're the canary in the coal mine in a sense.

Yes, exactly — which is something that actually I think police should do more in police interactions with perpetrators of domestic violence. Often because of how our police systems are made out, predominantly our police officers are male. If you have two male police officers going to a call out for domestic and family violence, and they're engaging with an alleged perpetrator of domestic and family violence. They might engage in an Australian blokey chat about the allegations of domestic and family violence. If there is no female presence, they don’t check for engagement with another gender, another representative of authority with a different gender, to see what that engagement is like. And I think that if we have more of that, potentially we'd have different policing approaches to domestic and family violence.


Are there times where restorative justice doesn't work, or where it shouldn't even be attempted in the first place?

Absolutely. When people have dysfunctional personality disorders. When people really don’t want to be doing it, but they’ve been told they should. When a matter is screened as unsuitable, either because of physical or emotional safety issues, or power imbalance issues that can't be managed appropriately.


In an ideal world, would restorative justice ever completely supplement the punitive model of criminal justice?

I’m going to say no, because I think that some people desire traditional avenues of criminal justice. It’s okay, by the way, not to be interested in restorative justice, it’s completely okay. For different situations, we need different options. But I think what we should move towards is to give every single victim and complainant the opportunity to participate in a restorative process, and for them to make an informed decision on a voluntary basis about whether that’s something that could potentially assist them. That must be where we move to, with those models operating alongside each other in parallel.


Would that resemble an opt out system?

In the UK Victims’ Code of Practice, it’s actually a requirement that every single victim of crime is informed about restorative justice and given an opportunity to participate in restorative justice — and the uptake on that is huge. But again, the reason why I think we need both models is because there will not always be an uptake. Some people don't desire restorative justice at all, and it should be a choice that they’re able to make. So it should be that we offer this service as a duty to victims of crime, and that we improve all of our justice processes to make them trauma informed, because it’s a serious inadequacy in Australia.


You’ve spoken about the benefits of restorative justice to participants. What are the benefits of working in this field? You clearly have such a passion for this. Your life and your career have been tailored to facilitate it.

I enjoy how humanistic it is. I enjoy being able to assist people in having their needs met in a way that they haven't through other processes. Some basic human needs are just completely cast aside and sometimes ignored or considered unimportant, which is even more harmful. I enjoy having the ability to collaborate with people who are central to it. I also truly believe that the impacts are long lasting for individuals who participate in appropriate processes. My hope is that over time a complainant will be less impacted by what happened to them. For example, a complainant waking up three months after their restorative justice mediation and saying, “Oh wow, I didn't wake up last night, fearful that I was going to die because I was having night terrors anymore.” And then I think about defendants who maybe are still having ongoing struggles, but they for a minute think about how somebody cares about them, has listened to them, told them that they wanted the best for them, and engaged in a way within which was very consistent, very trauma informed, very appropriate, and very safe and respectful. And even that sensation for a defendant, I hope, is something that can restore their desire to do better for themselves and do better for their family and do better for their community. In the coronial matter I mentioned earlier, I was contacting the wife of the deceased, and the day that my letter was sent, she was contemplating suicide. After she got the letter, she called me and said, “I was going to kill myself today, but I received this letter, and I thought, [restorative justice is] something that I really want to do.”


I can only imagine how emotional that would have been to hear. It’s a lot to take on.

It is, but it also makes the work really rewarding.


This interview has been condensed for clarity.


References

[1] Clark & Associates Mediation Services, ’About’ (LinkedIn, online at 15 July 2022) <https://www.linkedin.com/company/clark-associates-mediation-services/>.


 

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.



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