by Jamie Martin
With global conditions persistently and pervasively shaped by coloniality, systemic racism and violent patriarchy, what does justice mean? How can one seek justice, and where, under such conditions? What does justice feel like for survivors of sexual abuse and violence? How might we attain justice for survivors? Those of us in places shaped by European colonial legal systems have been schooled in white and western models which offer justice as punitive discipline, corporeal punishment, death penalties, oppressive prisons, and further violence or, simply no consequences at all. Such traditional systems for pursuing justice are also often built on the very racism, sexism, and unequal power which one is seeking justice from, leading to questions of whether such systems can really offer us a way forward for reducing harm, improving equity and fairness, and repairing harm already done. As a counter and possible alternative, restorative justice (RJ) offers a space to question, re-think and re-imagine what justice and human relations might look like.
As Marsh has simply put, ‘one of the most straightforward ways to describe restorative justice is as an alternative to retributive justice, which governs our current punitive justice system’. And, as Johnstone and Van Ness describe, while an incredibly diverse practice, process and concept, restorative justice generally refers to an alternative model which centers human relations and community involvement, the needs of the person harmed, and seeks empowerment and healing through perpetrators making reparations and taking accountability. A central feature of most RJ processes are the use of circles, derived from North American First Nations practices, and conferences, from Māori traditions, where the person harmed, the person who caused the harm, and affected community members come together to discuss the harm done, decide how the harm can be acknowledged, and what reparative deeds and actions can be taken. While it is important to acknowledge the influence of indigenous cultures on RJ, Cuneen and Tauri have both challenged the ‘origin myth’ of RJ as purely stemming from Indigenous practices and traditions, pointing to other important influences on RJ and the ongoing colonization of Indigenous life-worlds with little benefit to Indigenous peoples. While each RJ process and conference may differ, the intended outcomes would hopefully enable victims to heal from the trauma and provide an opportunity for perpetrators to take accountability and transform.
This description of RJ, however, is somewhat rosy and romantic. Appropriations of indigenous knowledge and cultures can often paint pre-colonial practices as ideal, peaceful and romantically without fault. However, what that and even my construction of RJ as a neat and positive alternative to traditional and ‘bad’ criminal justice systems does, is create another hierarchized binary. Western criminal justice system as bad, violent, and individualized on the one side and ‘indigenous’ restorative justice on the other, which is good, peaceful, healing, and collective. Like most established binaries, what this oppositional positioning does is present the danger of relativism and obscure the questions and possibilities which emerge from the nuances and complexities of the in-between. What if RJ cannot provide healing, justice and transformation? Is justice possible if a perpetrator does not take accountability and is unable to repair the harm they caused? How can a process predicated on human relationality hold space for rage, anger, and a desire for punishment? Is RJ an appropriate avenue for survivors of sexual violence?
Through reflecting on my own experience as a victim seeking justice through a RJ process, I hope to trouble and question meanings of justice for survivors of sexual violence and offer a feminist embrace of Patricia Hill Collin’s ‘both/and’ conceptual orientation. In trying to escape easy dualisms which reduce rich complexity to diluted simplicity, I intend to turn toward the messiness of the in-between and what that holds.
In 2021, I went through eight months of an internal university sexual harassment investigation and resultant RJ process and conference. I had reported a former professor, mentor, and employer of mine for kissing me without my consent and ensuing verbal sexual harassment. He was found guilty of the charge and breaking the university employee’s code of ethics. One of the main outcomes determined by his superior, the Dean of the faculty, was a RJ process which I could be involved in if I agreed. Upon hearing that this was the outcome of him being found guilty in two separate sexual harassment cases, I was disappointed. My immediate thoughts were, ‘this is not justice’ and ‘he’s getting no punishment’. My desire was for retribution. I wanted him to be fired, to be cancelled, to be publicly named and shamed and to suffer pain like I had.
When speaking with the Dean and RJ practitioner about what the process would entail and whether I wanted to be involved, they said that the process would center what I wanted and needed. In those early moments what I really wanted was not a RJ process. However, one of my main motivations for reporting him for sexual harassment was because I wanted the school, faculty, and university to learn from this. I had given up on him changing or recognizing the harm he’d done based on what he said and did during the investigation, but if he took something from this process, then so be it. I also wanted to finish my process of healing and thought confronting him with my truth would help. I thought that if the RJ process was going to happen, then it better happen with me there and my voice front and center.
With all of this, I entered the RJ process thoroughly skeptical. I am a woman who has experienced multiple forms and instances of sexual violence and have seen and experienced the letdown of institutions and people who are meant to provide support and justice. I live in a country whose femicide rate is four times the global average, is colloquially known as the rape capital of the world, and is regularly failing to support survivors or offer any modicum of protection or justice. I am continuously enraged by the escape from accountability men are afforded in our societies at the violent expense of women. I thought entering the RJ process meant having to close off these feelings of rage and anger, of having to silence and suppress my desires for punishment and pain. I thought I had to show up fully embracing the process as totally healing, evoking imaginations of a loving circle where no bad energy was allowed. So, I entered the RJ process skeptical and angry, unsure if any good would come of it.
Surprisingly, the good didn’t come from the professor abuser taking accountability and showing real, genuine attempts at reparative harm, but rather I found light, solidarity and partial justice and healing in residing in the in-between. At the RJ conference where myself, the professor and affected community members came together, I was given time to talk, to confront him, and to tell my truth. I decided to write my testimony ahead of time and to read it at the conference. In my testimony, I detailed what he did to me, the impact it has had, and specific actions I thought he could take to demonstrate accountability and reparation. While this was the crucial bit to my involvement in the RJ process and seeking healing and justice, the other part of my testimony centered on my feelings and experience of the RJ process itself. I felt it important to speak about how I was entering the space and feeling about the process.
In my testimony, I detail how I’m showing up as both an enraged feminist survivor who doesn’t fully believe in the capacity of men to transform, who wants to be punitive and have men experience the pain women and gender diverse people feel every day, and a critical humanist who believes in human relationality, the capacity for transformation, and understands that punishment and pain will do more harm than good in an already violent society. In that moment, I was trying to articulate that showing up fully in my skepticism and embracing my conflicting emotions of the process was a rejection of problematic binaries and dualisms. It was an embrace of the possibilities of remaining unsettled, of lingering in the in-between.
Although not explicitly acknowledging Patricia Hill Collins development of her both/and conceptual orientation in my testimony, I was referencing her work. In Black Feminist Thought, Collins articulates the experience of Black women residing at the standpoint and position of being both Black and women. Articulating an early manifestation of intersectionality, Collins is conveying the unique positionality of Black women who experience mobility in and out of groups and positions of relative privilege and oppression. Central to this articulation was a critique of the dominant white feminist movements which often insisted on women of color negating their experiences of racism when dealing with the issue of sexism. Collins’ conception not only offers space for Black women’s consciousness and knowledge to be fully acknowledged, but also challenges dichotomized thinking and practices which reduce oppression to an either/or. You are either oppressed or an oppressor. You either experience racism or sexism. Flipping these on their head and into both/and offers a rebuke of neatly dichotomized experiences. As Collins’ says, ‘we not only escape the oppressor/oppressed dualism but we expose it as a false opposition’.
Arner and Falmagne have extended Collins’ conception and articulation of both/and to be a useful ethical stance and tool in dissolving and disrupting harmful dualisms, binaries and dichotomies. Hierarchal binaries are used for control and hegemony, so spending time between, breaking down the dualisms, and offering alternative ways of seeing and being in the world offers radical potential. In Collins’ both/and conceptual orientation, the two aspects are understood as distinct but not necessarily oppositional in nature. In binaries, one aspect is always weighted heavier than the other, producing an uneven distribution. Through both/and, the two aspects can be seen and acknowledged as separate entities without positioning one as higher than the other. Through this, a productive difference instead of oppositional tension is developed which explodes neat categories and offers a new space for knowledge.
In hindsight, it now seems serendipitous to see how Collins’ both/and conceptual orientation was present in my testimony without fully realizing its potential and possibilities. In trying to grasp RJ’s potential and shortcomings, how I can show up as a feminist survivor and experiencing emotions ranging from rage to understanding, a both/and approach enabled a radical acceptance of the space and situation as is. This radical embrace of the both/and was liberating and perhaps offered a small piece of justice.
both skeptical of the RJ process and wholly committed to it
both angry and loving
both wanting to inflict pain/retribution/punishment and understanding that he’s a product of patriarchy and has the capacity to transform
both oppressed and oppressor
What this both/and space has opened up for me is enlightenment that justice cannot be found in a singular act, moment or process. Justice requires holistic action at various levels of society. I have learned to embrace my emotions fully, to show up completely and honestly as I am. To not suppress the feelings or thoughts which might be seen as harmful or bad, but to ask questions of them and see what emerges. In settling in the unsettled, I have come to accept that there is no singular, monolithic answer to what justice means or looks like. Survivors of sexual violence may find justice in a range of places and processes, and my experience of seeking justice may not be the best for all survivors. And, in challenging, troubling and questioning the binaries which are constructed to control and regiment, we can find alternatives and imagine possibilities which cannot even be considered under such oppressive conditions.
Jamie Martin is a PhD student and research assistant at the Wits Centre for Diversity Studies in Johannesburg, South Africa. Her doctoral research focuses on whiteness, vulnerability, and affect. Other areas of interest are feminist and queer studies, and writing in academia.