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The Need for Restorative Justice Approach to Sexual Offences in India

Aleena Maria Jose, Student, School of Law, Cochin University of Science and Technology (CUSAT), Kochi

ABSTRACT

Sexual offences have now become a commonplace in India. Punishment is the society’s customary response to a crime. It neither is beneficial to the victim nor has any deterrent effect. The criminal justice system which is expected to deliver a sense of justice has failed in its current response to satisfy the large majority of the victims. The horrific incident in Delhi in 2012 that led to the sexual assault and murder of the twenty three year old shook the human conscience all over the world. Death penalty is the ultimate deterrent in rape cases in India, which is rarely given and it embodies the notion that justice is seen to be done. States often turn to symbolic practices of punishment rather than concentrating on eliminating the crime itself. Society can achieve a collective catharsis of anger and fear by punishing the perpetrators while avoiding the challenging work of fixing more systemic social evils. There is social stigma attached to sexual offence victims and historically they have been met with denial and disbelief, with society failing to develop an adequate response to a crime. In recent years improvements called for by reformers and feminists have seen that sexual offences are taken more seriously. As a result the procedures have improved and victims are said to be provided with a fairer treatment. Despite all this efforts sexual assault remains the most under reported form of personal violence which is prevalent in India. Hard hitting policies of tougher penalties, longer sentences and stringent release practices do little to address the majority of sexual offending. The victims are reluctant to pursue a prosecution, not wanting to be drawn into the protracted adversarial process. This exposes the fact that the conventional criminal justice system, with its single option of investigation by police and prosecution through the courts, is failing to provide an adequate response to the majority of victims of sexual assault.

 The justice system should however be fair, flexible and benefit the society. The pragmatic approach to be adopted is the application of restorative justice principles. Restorative justice aims at a holistic approach taking into account the conditions of the victim and the offender. It also emphasizes the reintegration of offenders into societies rather than their control through stratagems of punishment and exclusion. It can be accomplished through cooperative processes that include identifying and taking steps to repair harm, involving all stakeholders, and transforming the traditional relationship between communities and their governments in responding to crime. The advocates of restorative justice argue that it is more likely than retributive justice to reduce the incidence of crime because of its principal concern for the safety of victims. Studies suggest that positive reinforcement of good behaviour is a much more effective way of changing maladaptive behaviour than either punishment or negative reinforcement. The society has now awakened to realize that the punitive options under the current system neither benefit the society nor do they serve as an effective deterrent. Forgiveness in the form of magnanimity in face of a crime to a victim is nearly saintly to expect in case of rape and extreme acts of sexual offences. Hence the need of the hour according to the author is an integration of the two concepts i.e. retributive and restorative as part of the same system of justice where they would complement and work in tandem with each other rather than operate as opposing or alternative systems. The ulterior objective of the system should be to ostracize this challenge and not the offender.

INTRODUCTION

Sexual assault is complex, prevalent and insidious. Of all the offences, sexual offences are considered to be the most treacherous. Violence against women, including sexual violence, has been a persistent and chronic social problem within India.[i] Presently, the criminal justice system is far from perfect.[ii] The focus is more on how evidence was gathered than about what that evidence means. The existing criminal justice system is one designed by lawyers, for lawyers and the result is that victims and offenders are often bystanders in the proceedings[iii]. The system in itself is inadequate in terms of dealing with offenders, victims and communities in the aftermath of crime. This system is seen as retributive, concentrating solely on fixing blame and guilt. Recent legislative response has been aimed at monitoring offenders in communities and keeping them in prison.[iv] This has been done through longer sentences, and such other stringent measures. Such focus does not address the problems which victims and communities daily face.[v]

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Sexual assault is the most dreadful form of personal violence and it often goes unreported. This very fact itself shows the failure of the existing system. Lord Hale’s famous assertion that rape is a charge ‘easily to be made, hard to be proved’ is very true and in tune with the existing criminal justice system.[vi]  The present system with its long drawn battle of evidentiary requirement, trial process and prosecution system is very difficult to establish. Hence what is the need of the hour is a system which encourages more offenders and victims to come forward, principally by reducing public villification of offenders and the threat of punitive sanctions.[vii] Thus it is high time that we may take recourse to an alternative and an effective path.  Restorative justice proclaims that victims are forgotten entities in the current justice system and should have a greater role in determining the outcome of their case. In this essay, the author analyses the various punitive options under the existing system, restorative justice approach as the new way forward, its effectiveness and concerns about the application of the same.

Existing Criminal Justice System

Punitive measures are the response to the various sexual offences in the existing legal system. The focus of the current criminal justice system is not victim centric. The existing system views crime as against the state rather than individuals. It often turns to symbolic practices as deterrence during crimes. The huge public outcry after the horrific Delhi Gang rape incident has paved way for law reforms in this subject. The Justice Verma Commission formed in the aftermath of this incident suggested various reforms and as a result the Criminal Law was amended. Similar incidents in the capital city reveal the very clear fact that all these legislative attempts were futile in dealing with and curtailing such crimes.  Now let us analyze the various punitive options of the conventional system and the shortcomings of the same.

Death Penalty

For the so called heinous crimes death penalty is awarded as the ultimate punishment. It is to be noted that death penalty or capital punishment is “neither a deterrent nor an effective or ethical response to these acts of sexual violence”.[viii] The key argument is that punishment through the death penalty is not necessarily the best way to send a strong message about the fact that sexual violence must no longer be tolerated in Indian Society.[ix] The advocates of the death penalty point to its symbolic value: its ability to communicate collective condemnation.[x] Moreover, there is no data to suggest that the death penalty actually acts as an effective deterrent to rape.[xi] Ultimately, the concept of the fundamental ‘right to life’ implies that even the state should not have the right to take a life, irrespective of who the person is or what he (or she) has done.[xii] Human rights-based approaches argue that punishment should not involve the taking of life, but instead should focus on making punishment meaningful and effective in the context of both the victim’s and offender’s lives.[xiii] Simply using the death penalty to silence public anger, without changing society, will not address the fundamental underlying issues.[xiv]

Life Imprisonment without Parole

Serious cases of sexual assault have now been mandated with sentence of life imprisonment without parole. Many states in India looking for a “stringent punishment” for convictions of rape favour “life till death without leniency and parole instead of the death penalty”.[xv] The supporters of this mechanism argue that such a punishment method creates a room for reformation rather than the capital punishment.[xvi] But the other side of this argument is that the pathetic condition of the jails in India worsens the situation rather than reformation. A recent study revealed that the famous Tihar jail in India has double the number of inmates than its actual capacity.[xvii] In such a condition there is a high chance of the offenders coming in contact with hardened criminals leaving no scope of reformation of the offenders. Thus, this mode of punishment also does not serve the ultimate purpose which it sought to achieve.

Preventive Detention

Another option provided by the law for the less serious offence is preventive detention or imprisonment for life. The legislation is not explicit but it is assumed that life imprisonment means life with the possibility of parole.[xviii] Preventive detention unlike sentencing for a fixed duration proportionate to the seriousness of the crime, involves an indeterminate sentence with a minimum basic tariff; this allows for offenders to be held for longer than would otherwise be the case in order to ensure that the public is protected against further offending[xix]. Under this release may be warranted if and when the offender has shown a reduction in his risk of reoffending and is thus deemed to be safe to live within the community again.

Chemical Castration

Another form of punishment that has gained popularity in India as a viable ‘solution’ to the prevalence of rape is chemical castration. Chemical castration involves the use of anti-androgens and psychotropic medications to lower, and in some cases eradicate, testosterone levels in men[xx]. The scope of adoption of this technique and the practical incorporation of this technique into the existing system is unclear because whether India’s criminal justice system possesses the resources and institutional capacities required to effectively administer the complex and long-term individualized medical treatment involved in chemical castration[xxi]. Introducing the complex and demanding procedures involved in chemical castration on India’s current prison system are therefore a recipe for failure. If such a sentencing option was implemented, it might well do little more than provide a false sense of security while exposing victims, offenders and the wider community to further risks[xxii].

The use of punishment alone via formal criminal justice is, therefore, an inadequate deterrent for sexual crimes. The use of restorative practices with sexual violence as a proactive, holistic response to the problem ultimately as a more effective means of reducing the incidence of sexual offences and sex offender recidivism[xxiii].

Restorative Justice Approach – the new way forward

Restorative justice is an evolving reform movement and may be described as a normative theory of criminal justice.[xxiv] It is a way of seeing crime as more than an act of breaking the law but as a source which causes harm to people, relationships, and the public at large. The theory of restorative justice emphasizes repairing the harm caused or exposed by criminal behavior.[xxv] This evolving response to crimes respect the dignity and equality of each person, builds understanding, and promotes social harmony.[xxvi] Restoration is primarily achieved through a deliberative process, in which all people impacted by the crime have a voice in the resolution, rather than it being determined solely by a judge.[xxvii] Restorative Justice is based on the belief that when an offender is willing to acknowledge wrongdoing, is willing to be accountable for his actions, is willing to make reparations to those he has injured, and is willing to take corrective action, societal pardon and restoration or reintegration should occur.[xxviii] It can be accomplished through cooperative processes that consist of identifying and taking steps to repair harm, involving all stakeholders, and transforming the traditional correlation between communities and their governments in responding to crime.

The restorative justice programs are based on four key principles such as encounter, amend, reintegration and inclusion along with various others.[xxix] Nowadays, many restorative justice programs are rooted in religious or faith-based principles of reconciliation, restoration, and healing[xxx]. It is contended that restorative justice, with its spiritual roots and values, is a more morally and emotionally satisfying model for criminal justice than the current state-centered, retributive model.  Forgiveness and restoration are viewed as fundamental to how we should respond to human misconduct. With its emphasis on making things right and restoring balance and harmony, restorative justice touches the foundational beliefs of the major world faiths[xxxi].

Restorative options include sharing circles, victim-offender dialogue, victim impact panels, community reparation boards, circles of support and accountability (COSA), sentencing circles, conferencing with juveniles and adults, and restorative discipline in educational settings[xxxii]. A brief review of some of the popular restorative justice programs are as follows:

Restorative Justice Conferencing

A restorative justice conference involves the victim and offender meeting with support people, community members, and professional facilitators.[xxxiii] Conferences provide an opportunity for a wider range of perspective, more creative solutions, better coordination of services and increased involvement of the victim and other community members. They have an emphasis on restorative justice and victim compensation for injury caused by the offender.  The purpose is to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, review of sentences and restoration or reintegration plans. The facilitator assists the parties to reach agreement about responses such as reparation for the victim, an apology, and community service.[xxxiv] There may also be an agreement that the offender attend an appropriate treatment program. The agreement may be monitored to ensure completion and to reduce reoffending. Restorative processes may include: family group conferences, community accountability panels, peer mediation, sentencing circles, victim-offender reconciliation, youth justice committees, and inter-agency case conferences. Conferencing in various forms is now widely used throughout the world.[xxxv]

Circles of Support and Accountability (COSA)

The development of COSA can be traced back to the work carried out by the Canadian Mennonite Church in 1994 in response to sex offenders being released from prison into their communities.[xxxvi] The COSA is centered on the pillars of safety and support and often offers public protection and reintegration. The aim of COSAs is to “reduce the risk of re-offense by sex offenders; to ease the offender’s transition into the community; and to address the fears of victims in a practical way”.[xxxvii] The circles are groups of volunteers, often from the faith communities, that form an “agreement” with a released high-risk sex offender to accept the circle’s help and advice, to pursue a predetermined course of treatment and to act responsibly in the society.[xxxviii] It gives the offender pro-social contacts, as well as helping offenders find housing and employment.[xxxix] Research on COSA from Canada, and England and Wales, has been largely positive. COSA do not offer a complete remedy, but they can help in managing the risk that sex offenders pose when living in the community. Thus, COSA may offer an effective way forwards for India as they can help to challenge and change cultural beliefs about the rights and values of men and women.[xl]

Sentencing Circles

These are based upon Aboriginal practices of having communities, elders, families and people in conflict discuss and resolve an issue flowing from an offence.[xli] In sentencing circles, the type of sentence an offender should receive is determined in a meeting of the victim, offender, family, and community members with a judge, lawyers, police, and others and is recommended to the judge. The victim and the community have the opportunity to express themselves to the offender, and may also take part in developing and implementing a plan relating to the offender’s sentence.[xlii]

Victim Offender Mediation programs (VOMP)

It was pioneered in Canada 25 years ago and has proven beneficial in assisting the victims and offenders find a sense of satisfaction, closure and healing in the aftermath of crime.[xliii] Victim-offender mediation is a process that brings interested victim and the accused person together with a mediator to discuss the crime and to develop an agreement that resolves the incident. These kinds of meetings create an avenue for the victims to express their feelings, emotions and harm caused by the incident to the offender and receives answers for their questions. It also provides the offenders to make apologies and to develop reparative plans. This approach has also been incorporated in hundreds of programs throughout the United States, the United Kingdom, and Western Europe.[xliv]

Community Conferencing

It is a broader term being used in Canada for a practice called Family Group Conferencing. It is rooted in Maori culture in New Zealand where, like in other parts of the world, the indigenous population is over represented in the court and prison system.[xlv] It was introduced to the juvenile justice system in New Zealand as an alternative to youth court and later expanded to Australia, North America and other countries.[xlvi] In Canada, this model has been adapted to include not only the notion of family involvement but also the participation of both the offender’s and the victim’s supporters who may or may not be family.[xlvii] The focus of conferencing circles is to repair the harm done by an offence and to minimize the likelihood of future harm. This is accomplished through dialogue geared to increasing understanding between participants and is conducted in a structured circle setting guided by a trained facilitator or convener.[xlviii]

The Effectiveness of Restorative Justice

Proponents of restorative justice advocate that it is more likely than retributive justice to reduce the incidence of crime because of its principal concern for the safety of victims[xlix]. The studies have demonstrated that restorative justice can have a reductive effect in certain cases and can change the attitude and behaviour of offenders. On the whole, there is more evidence that restorative justice is effective in reducing either the frequency or severity of reoffending for juveniles than in the case of adult offenders[l]. The evidence from various studies suggests that positive reinforcement of good conduct/behaviour is a much more effective way of changing maladaptive behaviour than either punishment or negative reinforcement.

Restorative justice programs are beneficial to the victims as they can express their feelings, thoughts and emotions about the crime and the harm caused by it. Such programs provide a variety of settings and circumstances through which victims, offenders and communities can address and repair the harm caused in a particular case.[li] In this program, victims are given an important voice in making things right and hence many victims have expressed high levels of satisfaction after having participated in this system. The involvement of the victim in the process helps them to heal emotionally as well as reduce the fear of the victim and further criminal victimization.

LESSONS FROM OTHER JURISDICTION

The various kinds of challenges faced in the administration of justice and effective delivery of the same to the aggrieved has led many jurisdictions around the world to think about an alternative mechanism for the existing retributive/adversarial system. Most of the jurisdictions in the world started using restorative or quasi restorative justice to remedy the situations. The restorative justice programs are functioning throughout the world in diverse forms.

Canada

A restorative justice movement has emerged in Canada since the past 30 years. In 1996, the sentencing principles in the Criminal Code were amended to encourage the use of community-based sentencing and focus on restorative elements such as the need to promote a sense of accountability in offenders and for them to acknowledge and make reparation for the harm they have done to their victims and to the community.[lii] The different types of restorative programs available throughout Canada, as provided by the Correctional Service of Canada Dispute Resolution Unit are Circles of Support and Accountability, Peacemaking Circles, Healing Circles, Sentencing Circles, Community-assisted hearings, or releasing circles, Community Conferencing and Community Justice Forums. One of the most established programmes, however, is perhaps circles of support and accountability. Circle programmes have been used in Canada for more than 10 years to deal with the reintegration of selected high risk sex offenders at the conclusion of their custodial sentence.

The growing use of restorative justice in Canada was also highlighted in the October 1998 report of the Standing Committee on Justice and Human Rights concerning victims of crime.[liii] The victims’ concern relating to restorative justice was discussed in the report. It also recommended that the proposed “Office for Victims” assess the restorative justice initiatives in Canada to develop principles or guidelines which ensure respect for victim’s interests.[liv] In 2002 when Nations Economic and Social Council adopted the Basic principles on the use of restorative justice programmes in criminal matters, Canada played a key role in its adoption and Department of Justice of Canada also contributed to the development of a Statement of Principles and Values of Restorative Justice and strategies on the funding of restorative justice programs.[lv]

New Zealand

The long history of New Zealand providing restorative justice conferencing began by first introducing restorative justice processes in 1989 with Family Group Conferencing. Restorative justice until 2002 was entrenched through the introduction of three related pieces of legislation: the Sentencing Act 2002, Parole Act 2002, and the Victims’ Rights Act 2002. These three Acts together provide recognition and legitimacy to restorative justice processes, stimulate the use of restorative justice processes wherever appropriate, and allow restorative justice outcomes to be taken into account in the sentencing and parole of offenders, where relevant.[lvi] In addition to this, the Victims of Crime Reform Bill 2011 (NZ) proposes to amend the Sentencing Act 2002 to include a provision which states that the District Court must adjourn sentencing proceedings to allow for a restorative justice conference assessment to take place in all matters where the offender has entered a plea of guilty.[lvii] Although this mandatory provision is yet to be enacted, it can still be said that New Zealand currently has a sophisticated, embedded and legislatively supported restorative justice conferencing program for both young people and for adults, with no sexual offence exclusions.[lviii]

Since 2002, restorative justice conferencing in both sexual offence and family violence matters has been available in New Zealand. It is provided for any type of sexual offence at a number of stages most commonly at the pre and post-sentence stages throughout the criminal justice system.[lix]  The end result of the incorporation of restorative justice practices are that the reoffending rates were lower about 20 per cent compared to those offenders who did not participate in the restorative justice conferences, the reoffending rates were 23 percent less and were 33 per cent less likely to be incarcerated as a result of the offending, than comparable offenders who did not participate in a restorative justice conference.

Australia

The most significant restorative justice legislation in Australia to date has been implemented by the ACT through the Crimes (Restorative Justice) Act 2004 (ACT) (the ACT’s Restorative Justice Act). The ACT’s Restorative Justice Act establishes a two phase program to its restorative justice program, though only the first phase has been implemented. The first phase applies to less serious offences committed by young offenders, while the second creates specific provision for restorative justice practices to apply to both adults and to young people, as well as to more serious offences including family violence and sexual offending.[lx]

The restorative justice processes are now markedly limited in relation to programs providing for sexual offences in Australia. The few available data reveals that these have resulted in positive findings. An increase in victim satisfaction, a reduction in reoffending (when combined with an intensive treatment program), and a reduction in the re-victimization of victims through the justice process itself are some of the outcomes of the program.

Youth restorative justice conferencing is used as a diversionary tool in some youth sexual offence matters in South Australia.[lxi] In South Australia, for example, young people charged with sexual offences who admit their behaviour are sidetracked from court processes, and instead participate in a family conference. In order to access a conference the young person concerned must accept the responsibility. Either the court or the police can make a referral and specialist Youth Justice Co-ordinators facilitates and organize the conferences.[lxii] Matters that have been conferenced include rape and all forms of indecent assault.[lxiii]

The evaluation found that cases which proceeded through a conference were resolved faster than those that went through the conventional criminal justice system.[lxiv] It was also concluded that conferencing has the potential to offer victims a greater degree of justice than conventional court processes, and also that conference penalties did more for victims than court-ordered penalties.[lxv]

United States of America

United States offer a wide range of restorative justice practices, programs and policies.  Victim – Offender Mediation is the most important form of restorative justice program that is practiced in the US. A national survey which provides an overview of the type of cases typically brought to mediation under the VOM in the United States concluded that juvenile offenders are the primary focus. Only 9 percent of VOM programs nationwide are focused on adults alone.[lxvi] About eighty per cent of the VOM participants were satisfied in the process which leads to the impression that it provides a fair treatment. According to the participants the process was fair to both sides and that the resulting agreement was fair.[lxvii] In the United States, victim-offender mediation has also been used with homicide and sexual assault and even between a murderer on ‘death row’ and the family of his victim.[lxviii]

The overwhelming response to restorative justice from all these countries reveals that this new approach has the potential to deal with sexual offences and other forms of violence when implemented accordingly with the existing system.

Concerns about the Application of Restorative Justice

Critics of restorative justice often argue of it being ‘soft on crime’ or rather it does not sufficiently convey the seriousness of the offence.[lxix] Concerns has been voiced that offenders and observers may view the restorative justice process as too easy, thereby reinforcing a belief that sexual offending can be justified.[lxx] It is also feared that taking sexual offences out of the criminal justice system may “re-privatize” crimes against women thus enfeebling the effort to make gendered violence a public issue.

Not every offence fits into the design of restorative justice. Though the principles of restorative justice are sound, they are not necessarily appropriate for every case. The victims of violent offences may not feel that forgiveness, repentance and remorse are appropriate or even possible. The victims may not participate voluntarily and the offenders need not be accountable at all times. Victims of crime should never feel compelled to take part in the restorative process. For some victims, even the thought of meeting the offender may be very disturbing.

 Critics raise concerns that offenders may use power imbalances to manipulate the restorative justice process.[lxxi] They also suggested that the power imbalance present in sexual assault will skew any restitution agreed to by the parties.[lxxii] Moreover, critics fear that victims’ needs will be overshadowed by a community desire to build consensus, coercing victims into participation, as well as into accepting an apology victims’ may feel is inappropriate.

 Concern also expressed with using community based restorative justice programs to deal with sexual violence. It is suggested that community norms may reinforce victim blaming.[lxxiii] Also, that given the cost of treatment and monitoring for sex offenders, and the emotional needs of victims, restorative justice programs based in the community may lack resources to treat offenders and assist victims.[lxxiv] Finally, that community based programs may not have stringent requirements for training employees or rigorous program evaluation methods.

Conclusion and suggestion

The grievous incident of sexual offences such as rape often fuels the public opinion to the point of seeking the most gruesome of retribution such as the death penalty etc. against the offender. The adversarial criminal justice system serves an important symbolic function in the censure and punishment of sexual assault, but in practice provides effective justice for a relatively small proportion of victims.[lxxv] The perception of justice is different for different people. The traditional belief law has instilled is that justice is effectively delivered by punishing the perpetrators. But the society has now awakened to realize that the punitive options under the current system are neither in the society’s long term interest nor do they serve as an effective deterrent. Some victims demand for a benefit in the long run by restitution or restorative method. However, this ‘justice deadlock’ can be overcome by adopting a “more sophisticated way of thinking about the nature of goals of a punitive response – one that incorporates both compassion and condemnation, both healing and justice.[lxxvi] Hence there should be balance of justice. Many important reforms have taken place to substantive, evidentiary and procedural rules but these have pressed the adversarial trial almost as far as it can go without breaching general criminal justice principles.[lxxvii] Without significant changes in attitudes to sexuality and a greater willingness amongst offenders to accept responsibility for their actions, there are limits to the scope for further reforms. A more proactive justice system with the willingness to challenge existing attitudes to sexuality will be better able to empower victims and have the potential to achieve long term change.[lxxviii] Hence the need of the hour according to the author is a tactical choice of adopting a model that is an amalgam of both restitution and some retributive element; thereby giving integrity to the restorative model while not foregoing the retributive principles. Such a system in the view of the author can do wonders and help as a way forward for India in curbing this violent menace.

 _______________________________________

[i] S. Bronitt  & A. Misra, Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Law, 2 (1) Griffith Asia Quarterly 37, 38 (2014) available at https://www.academia.edu/6888564/41._S_Bronitt_and_A_Misra_Reforming_Sexual_Offences_in_India_Lessons_in_Human_Rights_and_Comparative_Law_2014_Vol_2_1_Griffith_Asia_Quarterly_37-56,  last seen on 3/12/2015.

[ii] Canadian Resource Centre for Victims of Crime, Restorative Justice in Canada: what victims should know, 2011, available at https://crcvc.ca/docs/restjust.pdf, last seen on 17/12/2015

[iii] Ibid

[iv] G. P. Green – Mitchell, Developing a Restorative Justice Framework for Sexual Offenses: Victim Empowerment, Community Protection & Offender Accountability, available at https://law.wustl.edu/Faculty_Profiles/Documents/haley/SeminarPapers/GabrielPGreen-Mitchell.pdf, last seen on 16/12/2015

[v] Ibid

[vi] Sir M. Hale, Historical Placitorum Conronae, 126 (S. Emyln, 1971 ed., 1971)

[vii] Centre for Innovative Justice, Innovative justice responses to sexual offending – pathways to better outcomes for victims, offenders and the community, (2014) , RMIT University , available at https://mams.rmit.edu.au/qt1g6twlv0q3.pdf, last seen on 17/12/2015

[viii] Arora K., Women’s collective and human rights groups oppose death penalty for rape, The Times of India (25/12/2012), available at  https://articles.timesofindia.indiatimes.com/2012-12 25/india/35998921_1_deathpenalty-sexual-violence-sexual-assault, last seen on 5/12/2015

[ix] A. K. Gill & K. Harrison, Sentencing Sex Offenders in India: Retributive Justice versus Sex-Offender Treatment Programmes and Restorative Justice Approaches, 8 (2) International Journal of Criminal Justice Sciences 166, 170 (2013), available at https://www.sascv.org/ijcjs/pdfs/gillharrisonijcjs2013vol8issue2.pdf, last seen on 18/12/2015

[x] Ibid

[xi] J. J. Donohue & J. Wolfers, Uses and abuses of empirical evidence in the death penalty debate, 58(3) The Stanford Law Review 791, 795, (2004), available at https://www.stanfordlawreview.org, last seen on 10/12/2015

[xii] S. Verma, Sexual Offences: Liability and Punishment, Academike (2015), available at https://www.lawctopus.com/academike/sexual-offences/ , last seen on 16/12/2015

[xiii] Ibid

[xiv] Supra 9

[xv]No consensus on death penalty for rape convicts, Deccan Herald (4/1/2013), available at https://www.deccanherald.com/content/302954/no-consensus-death-penaltyrape.html, last seen on 12/12/2015

[xvi] S. Ramani, The rope and a chance to reform, The Hindu 12 (Kochi, 7/8/2015)

[xvii] R. Kumar, Capital Punishment, The Hindu 10 (Kochi, 8/8/2015)

[xviii] Supra 9

[xix] Ibid, at 5

[xx] A. K. Gill, India needs comprehensive reform, not death penalty, to deal with violence against women, The f word blog , available at  https://www.thefword.org.uk/2013/08/india_needs_com/ , last seen on 18/12/2015

[xxi] Ibid

[xxii] Supra 9, at 5

[xxiii] G.G. Abel, J. V. Becker, M. Mittleman, J. C. Rathner, J. L. Rouleau,  & W. D. Murphy, Self – reported Sex Crimes of Non-incarcerated Paraphiliacs, 2 Journal of Interpersonal Violence 3, 20, (1987).

[xxiv] A. W. Dzur, Civic Implications of Restorative Justice Theory: Citizen Participation and Criminal Justice Policy, 36 (No. 3/4) Policy Sciences   279-306 (2003).

[xxv] Umamaheswari, D, Restorative Justice as a Process and Its Relevance for the Victims of Sexual Abuse in India, 1 Indian Social Science Journal (2012), available at https://www.questia.com/library/journal/1P3-3169641151/restorative-justice-as-a-process-and-its-relevance,

[xxvi] P. D. Haveripeth,  Restorative Justice and Victims: Right to Compensation, 2(2) International Research Journal of Social Sciences 43,43, (2013) , available at www.isca.in , last seen on 17/12/2015

[xxvii] J. Braithwaite, Setting Standards for Restorative Justice, 42(3) British Journal of Criminology 563, 573. (2002)

[xxviii] Supra 4, at 3

[xxix] Supra 2, at 3

[xxx] Ibid

[xxxi] Supra 2, at 3

[xxxii] M. S. Umbreit, B. Vos, R .B. Coates & E. Lightfoot, Restorative justice in the twenty first century: A social movement full of opportunities and pitfalls, Marquette Law Review, 253-304. (2006), available at  https://www.rjp.umn.edu/img/assets/18492/Marquette_RJ_21st_Century.pdf,  Last seen on 15/12/2015

[xxxiii] A. Morris & L. Gelsthorpe, ‘Re-Visioning Men’s Violence Against Female Partners’ 39 The Howard Journal of Criminal Justice 412, 416; (2000)

[xxxiv] B. Naylor, Effective Justice for Victims of Sexual Assault: Taking Up The Debate on Alternative Pathways, 33(3) UNSW Law Journal 662, 665 , (2010), available at https://www.unswlawjournal.unsw.edu.au/sites/default/files/28_naylor_2010.pdf, last seen on 16/12/2015

[xxxv] Ibid

[xxxvi] S. Hanvey & M. Höing, A more ethical way of working: Circles of Support and Accountability,3,112 in The Wiley Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management (K. Harrison & B. Rainey, 1st ed., 2013)

[xxxvii] S. Hannem & M. Petrunik, Circles of Support and Accountability: A Community Justice Initiative for the Reintegration of High Risk Sex Offenders, 10 Contemporary Justice Review 153, 159 (2007).

[xxxviii]  Supra 2

[xxxix] Ibid

[xl] Supra 9

[xli] Supra 2

[xlii] Supra 4

[xliii] Supra 9, at

[xliv] S. A. Khan, Restorative justice Under The Criminal Justice System in India: With Special Reference to Plea Bargaining and Compounding Measures, available at https://ssrn.com/abstract=2566126 , last seen on 15/12/2015

[xlv] Ibid, at 3

[xlvi] Supra 2

[xlvii] Supra 44, at 10

[xlviii] Supra 2, at 3

[xlix] Anne- M. McAlinden, Restorative Justice as a Response to Sexual Offending – Addressing the Failings of Current Punitive Approaches, 3 Sexual Offender Treatment,  (2008),  available at https://www.sexual-offender-treatment.org/1-2008_03.html , last seen on 10/12/2015

[l] Ibid

[li] Supra 34, at 9

[lii]  Supra 2, at 3

[liii]  Report of  Standing Committee on Justice and Human Rights, House of Commons, Ottawa, Victim’s Rights – a Voice Not a Veto, 1998

[liv] Supra 44, at 10

[lv] See A. Gaudreault, Limit of Restorative Justice, available at https://www.victimsweek.gc.ca/pub/pdfs/restorative_justice.pdf, last seen on 13/12/2015

[lvi] New Zealand Ministry of Justice, ‘Restorative Justice: Best Practice in New Zealand’ (2004), 7 available at https://www.justice.govt.nz/publications/global-publications/r/restorative-justice-in-new-zealand-best practice/documents/RJ%20Best%20practice.pdf , last seen on 17/12/2015

[lvii] Supra 7

[lviii] Ibid

[lix] S. Macaulay, ‘Restorative Justice and Sexual Offending: What Clinicians Need to Know about Possible Trial Process Reform in New Zealand’ 5(2) Sexual Abuse in Australia and New Zealand, 4-11, 4-5. (2013)

[lx] Ss. 14-16. Crimes (Restorative Justice) Act 2004 (ACT)

[lxi] Young Offenders Act 1993 (SA).

[lxii] K. Daly, B. Bouhours, R. Broadhurst & N. Loh, ‘Youth sex offending, recidivism and restorative justice: Comparing court and conference cases’, 46(2) Australian and New Zealand Journal of Criminology 241, 245. (2013)

[lxiii] K Daly, ‘Formal and Informal Justice Responses to Youth Sex Offending’ , Research-Policy-Practice Symposium on Preventing Youth Sexual Violence and Abuse, Griffith University, South Bank Auditorium. (7/4/ 2010) , available at: https://www.griffith.edu.au/__data/assets/pdf_file/0004/364828/formal-and-informal-justiceresponses-1-September-2011.pdf., last seen on 13/12/2015

[lxiv] Ibid

[lxv] Supra 44

[lxvi] M. S. Umbreit, R. B. Coates & B. Vos, Victim-Offender Mediation: Three Decades of Practice and Research, 22 (1-2) Conflict Resolution Quarterly 52,58, Fall Winter (2004)

[lxvii] Ibid

[lxviii] M. Umbreit, W.  Bradshaw & R. B. Coates, Victims of Severe Violence Meet the Offender: Restorative Justice Through Dialogue, 6 International Review of Victimology 321-43. (1999).

[lxix] K. Daly, Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases, 46 British Journal Criminology 334, 342 (2006)

[lxx] Ibid

[lxxi] Supra 4, at 3

[lxxii] C. Q. Hopkins & M. Koss, Incorporating Feminist Theory and Insights Into a Restorative Justice Response to Sex Offenses, 11 Violence Against Women 693, 710 (2005).

[lxxiii] Supra 34, at 9

[lxxiv] Ibid, at 9

[lxxv] Supra 34, at 9

[lxxvi]K. Daly, Sexual Assault and Restorative Justice (2013), available at https://www.griffith.edu.au/__data/assets/pdf_file/0006/50289/kdpaper11.pdf., last seen on 13/12/2015

[lxxvii] P. Verma, Criminal Justice and Sexual Violence: Need for Reforms, (2014) available at https://ssrn.com/abstract=2409493, last seen on 18/12/2015

[lxxviii] Supra 34, at 9

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