KRM 220 - Exam - Section A part 2.pdf

12 Study unit 6 Appraise the challenges that the criminal justice system faces with specific reference to: -Protecting victims against violence and intimidation. ● ● ● ● ● ● ● ● ● Broad function of CJS - Protect victim and society from crime ○ Retribution and deterrence, incapacitation,rehabi...

12 Study unit 6 Appraise the challenges that the criminal justice system faces with specific reference to: -Protecting victims against violence and intimidation. ● ● ● ● ● ● ● ● ● Broad function of CJS - Protect victim and society from crime ○ Retribution and deterrence, incapacitation,rehabilitation, compensation ■ Achieved through arrest,prosecution and imprisonment Safety of victims ○ Immediate safety of neglected ■ Vulnerable to intimidation,asssult and murder ○ Prevention, victim participation & empowerment and improving public confidence - Only recently part of ‘justice equation’ ○ Earlier victim support measures ■ Orientated towards victims of domestic violence through shelters ■ Removing victim from home = limited preventative measures Protection orders - Protect victim and forbid perpetrator from certain things ○ Police can arrest if protection order is broken by perpetrator and believe victim would suffer imminent harm as result ○ 2nd type of protection ■ Witness protection - EST. 1996 Protect against attempts to discourage witness State funded and form part of CJS Provides temporary protection, support and related services to vulnerable and intimidated witnesses and related persons. Enabling such witnesses to testify without fear of being in danger Family and witness Witness waiting rooms in court ○ CCTV, one way glass for identification parades and bail orders forbidding interference with witnesses Fear of reprisal - Reduces reporting levels of crime - Medical assistance and advice, emotional support and trauma counseling. ● ● Rape victims - Medical assistence,ARV’s, perpetrator to be tested for HIV, receieve PEP in certain circumstances Police officers have legal duty to inform SGBV survivors of importance of obtaining 13 ● ● ● ● PEP for HIV ASAP, not after 72hrs ○ Victim may apply for orde at the magistrate court compelling alleged offender to undergo HIV test - SA Criminal Law (Sexual offences and related matters) Amendment Act 32 of 2007 ○ Must provide a list of public health establishments in the province that can provide PEP ○ Victim must take medical examination (Even after 72hrs or if bathed) ○ Victims must be offered details of medical and counselling services available in the area as well as support through court proceedings and liaising with the judiciary. Specialised units ○ Family Violence ○ Child Protection ○ Sexual Offences Unit ■ Provide victims with a private and secure environment where trained police officers proceed to interview,record and expedite the investigation procedures, particularly where children are involved 56 ‘designated’ sexual offences courts (SOC) ○ Specialize in hearing sexual offence matters ○ Special victim support and protection services ■ Court prep services ■ Pre & post-trial trauma debriefing ■ Intermediary services (Child victims/persons with mental disabilities can tensity in a private testifying room) ■ CCTV (Testifying from outside courtroom ■ Private waiting room 55 Thuthuzela care centers ○ Provide acute or emergency medical care,medico-legal (forensic) examinations of victims,provision of PEP, counselling, support and preparation for trial ○ Generally located in hospital settings - Medical staff available ○ Aim to reduce secondary victimisation and improve conviction rates Child witness/child advocacy programmes ○ Assist child victims of sexual abuse in preparing consistent,coherant and accurate testimony ○ Inform of court process, role players ○ Reduce secondary victimisation ○ Strengthen victim coping strategies ○ Provide psychological support and referral to counselling services ○ Largely NPO’s 14 -Vulnerable victims and witnesses. ● ● ● Hardships are amplified by increased vulnerability therefore adding to traumatic nature of interaction with CJS and influencing degree they are frightened or intimidated or degree of secondary victimisation ○ May include: ■ Circumstantial factors - Nature of offence (Rape,domestic violence) ■ Witness’ relationship with defendant ■ Dangerousness of defendant ■ Personal characteristics Vulnerability ○ Can be individual thing - Related to one/more age,sex,experiance,social & emotional maturity, disability, communication difficulties, dependence on those you are minded to critisie, misunderstanding of what issue is, anxiety to please, misplaced sene of guilt,general fears,lack of experience,cognitive disaplility ○ Someone with learning disability of any degree is likely to suffer from 1/more of these vulnerability factors Disabled children ○ More likely to be abused - Can’t articulate abuse ○ Interpreters and intermediaries may be appointed to aid in tersifying ○ Court should create category of witness who are automatically declared ‘vulnerable’ ■ Court would be obliged to consider matter formally and vulnerable witnesses would be identified early stages ■ Know what assistance they will receive early on ■ Secondary victimisation reduced significantly ■ Create new ‘norms’ for treatment of vulnerable groups ■ Indicate what can be done to improve the use of witness evidence in the criminal justice system. ● How ○ Improving practice regarding the first contact with and identification of witnesses by the police ○ Ensuring that the info and evidence received from witnesses is of good quality for use by police or the court ○ Responding appropriately to the needs of different types of witnesses,including victims who are vulnerable due to the nature of the offence against them,child witnesses,the elderly and those who are vulnerable for other reasons 15 ○ Engaging in diversity issues relating to witnesses, including language concerts (providing interpreters) and concerns regarding religious observances ○ Preventing intimidation, ensuring protection of those in danger and promoting sense of security for those who are afraid ○ Providing info to and communicating with witnesses ○ Supporting attendance by and testimony of the witnesses in court (ensuring that witnesses don’t attend unnecessarily) ○ Reimbursing witness for the cost of attending court ● May involve ○ Providing direct support to victims and wintennes, addressing their needs in CJ process ○ Supporting uniformed police or detectives in developing good practice in working with witnesses so they’re able to identity and motivate them positively, are assisted in addressing their needs and are able to make proper use of witness evidence ○ Supporting prosecutors by ensuring that they work in a way which is sensitive to the needs of witnesses, have access to witnesses when they need them and are able to make effective use of their evidence 16 Study Unit 7 Outline the objectives of restorative justice. 1. Supporting victims,giving them a voice,encouraging them to express their needs,,enabling them to participate in resolution process and offering them assistance e 2. Repairing the relationship damaged by the crime,in part by arriving at a consensus how best to respond to it 3. Denouncing criminal behavior as unacceptable and reaffirming community values 4. Encouraging the taking of responsibility by all concerned parties particularly offended 5. Identifying restorative,forward-looking outcomes 6. Reducing recidivism by encouraging change in individual offenders and facilitating their reintegration into the community 7. Identifying factors that lead to crime and informing authorities responsible for crime reduction strategy Explain the reasons for the interest in restorative justice. By assessing the needs of crime victims, indicate what victims of crime need from the criminal justice system. Why this interest in RJ Many victims do not trust the CJS (e.g. time it takes to respond to calls, not wanting to record a case, insensitive treatment, being offender centered, not apprehending the offender, offender not being prosecuted). Victims often feel excluded from the process, despite the fact that they are the people most affected by the crime. Many argue that the state owns the case and is only concerned about what laws have been broken and that the guilty person is appropriately punished. Many feel that the needs of those who have suffered, whether emotional or material, are not really a matter of concern. In addition, it is postulated that many people realise that imprisonment is not necessarily the answer and that retribution is not the only need of victims. The above mentioned facts indicate the need for a radical reconceptualisation of justice, and that is the aim of RJ. Needs of crime victims 1. Access to justice and fair treatment 2. Contact with CJS 3. Safety (want to be safe from perpetrator and his/her family and know how to prevent repeat victimisation). 4. Give and receive information 17 5. Assistance and services (practical assistance, emotional support, counseling, services and shelter). 6. To have a voice. 7. Validation and acknowledgement 8. Restitution and apology. 9. Answers to questions: Why me? A framework that is helpful in understanding the behavior and emotions after a crime is the framework developed by Zehr. This framework suggests that the following underlying assumptions or pillars on which we build our sense of safety, wholeness and identity are undermined when victimisation takes place: ● Autonomy ○ We need to feel that we have control over our own lives/NB parts ○ At time of crime - Someone takes control of another's life - Sense of being out of control persists as dreams/intense feelings and is demoralising, affects one's sense of safety,identity and wellbeing ● Order ○ Derive much of our sense of safety from order ○ No order = Feeling unsafe ○ Explain why victims often blame themselves - A way to get answers ● Relatedness ○ Healthy relationships NB for sense of wholeness ○ Through interactions with others we form/affirm sense of self-worth ○ Crime victims becomes suspicious of others and may feel alienated Web of relationships destroyed Evaluate the statement that restorative justice is a reconceptualisation of justice by referring to the: ● Elements of restorative justice ● ● ● Crime is a violation of people and relationships Violations create obligations Central obligation is to put right the wrongs 18 ● Crime is about disrespect ● Justice is about respect ○ Requires 3 things: ■ We respect life of others ■ We respect property of others ■ We respect feelings of others ● Pillars of restorative justice ● Harms and needs (Of victims 1st, but also communities) ● Obligations to put right (Not only offenders but also society) ● Engagements of stakeholders (Namely victims,offenders and community members) ● Values of restorative justice. ● ● ● Encounter: ○ Victim offender mediation (victim, offender and mediator meet to discuss the aftermath of the crime), family conferencing (victim and their family member meet with the offender and someone facilitating the meeting. Family members of the offender may also attend the meeting), circling (include all the members that would be included in family conferences, but also include community members or anyone else with a stake in the matter), impact panels (if the offender or the victim wants to engage in a RJ meeting and the other party is not interested, the offender/victim can meet with offenders/victims of similar crimes). The encounter can also be in the form of a letter. A narrative approach is being followed: both parties tell their stories (victim-how the crime affected him/her and offender-why he/she committed the crime), show emotions, gain understanding and come to an agreement. Making amends: ○ Apologise, change behavior, restitution (return article, replace or do something for the victim to restore the balance that was disturbed by the crime). Reintegration (offender and victim): ○ Acknowledge human dignity, offer moral and spiritual direction. The offender will need the assistance and acceptance of the community to reintegrate back into his/her environment. The victim also needs understanding from the community members as they are scared of stigmatisation. 19 Outline the three concepts of restorative justice. The above is expanded into three conceptions of RJ: 1. The encounter conception a. The victims,offenders and other ‘stakeholders’ in a criminal case should be allowed to encounter one another outside highly formal,professional-dominated settings such as the courtroom 2. The reparative conception a. Perspective that’s represented above, that justice is about making things right 3. The transformative conception a. It views the issues that arise from dealing with individual matters as pointers to a way of life we should lead in contributing to the goal of a just society. b. Grounded in a holistic perspective of people in relation to each other and physical environment c. Has implications for the way we use language, way we treat others and the environment, way we allocate resources and way we respond to all harmful conduct Give an exposition of the basic theories that shape the functioning of the criminal justice system. 1. 2. The retributive approach a. View that offenders are treated as morally responsible members of society, not instruments for deterring others,as they are sick or irresponsible b. Oldest theory - Roots in religious and theological ideas c. Strong influencing on viewing criminal offenses as a ‘sin’ - lead to theories focus on punishment d. Offenders suffering is ‘pay back’ The utilitarian deterrence approach a. State is viewed as having a monopoly on the use of force, which is justified in order to obtain obedience to the legal and moral order b. Retains preoccupation with pain and suffering as means of deterring potential offenders c. Punishment should protect society from offenders is regarded as primary d. Focuses entirely on potential victims of crime but ignores actual victims e. The rehabilitation approach f. Offender viewed as patient or victim or both - Not viewed as morally responsible for offense g. If patient - Offense seen as product of illness for which treatment is required h. If victim - Offense is product of dysfunctional social environment or larger social illness 20 i. Offender who has taken responsibility of repairing the harm done and now has restored the trust and confidence f the community is rehabilitated in a broader sense than can be said of individualized therapeutic measures Indicate how restorative justice could address the shortcomings in these theories. ● ● ● ● The retributive approach The utilitarian deterrence approach ○ Shortcomings ■ No agreement about relationship between severity of punishment and its efficiency ■ Deterrence - It’s impossible to assess accurately how much punishment is required ■ Imprisonment may be effective short term strategy but bad in long term ■ Injustice in punishing individual offender in certain way due to effect on other potential offenders Violate principle that punishment should suit crime ■ RJ can be accomplished aim of deterrence without using offenders punishment as occasion to teach other potential offenders a lesson ○ Providing way back into constructive involvement into society - RJ can claim to meet objective of social protection and deterrence more effectively than utilitarian approach ■ Nothing to suggest restitution and actictions of restorative justice any less effective than infliction of harm or deprivation The rehabilitation approach ○ Criticized - Behavioral therapy is rarely successful ○ General public view rehab as too lenient ○ Sometimes aligned with RJ - Restoration isn’t the same as rehabilitation ○ RJ emphasises the need to accept responsibility so treats offenders as responsible moral agents Assess what restorative justice offers victims of crime. 21 Does restorative justice really offer victims anything different? ● ● ● ● ● ● ● ● View crime and justice through a different lens. Victim, rather than punishment are placed at the centre of the process ● Also focuses on the safety of the community. Can be combined with traditional sanctions for instance in cases of DV – protection order in conjunction with RJ. It has the potential to diffuse emotional situations. Particular attention should be given to cases where children are involved, especially if there is a power imbalance such as in cases where the offender is in an authority position. Victims should never be coerced to get involved in RJ processes as it should always be a voluntary process. What transpires during these processes should be kept separate from the decisions that are taken regarding sentences and parole. The offender has to take responsibility in order to participate in RJ. It could reduce the possibility of recidivism Effectiveness of RJ ● ● ● Various victims feel empowered and satisfied. It has the potential to prevent recidivism. Depends on the way it is implemented. Preparation of both parties is essential, as well as the capability of the facilitator Give your opinion on the application of restorative justice on serious violent crimes in South Africa. 1. Soft option: a. Impression that RJ can’t be used in serious offenses, rather impose a prison sentence for serious offenses. RJ can however achieve deterrence and crime reduction, as well as rehabilitation. Also important to note that RJ can be used in conjunction with other sentences, such as imprisonment. People that are in correctional centers don’t always think about their victims, instead they try and forget about them and only focus on surviving their environment. It should also be kept in mind that it is difficult to meet face-to-face with the victim. 2. The level of anger in communities is so high that people are not ready for RJ: a. The Truth and Reconciliation Commission showed that people want to sit around a table and share what the experience has done to them and want the offender to apologise and take responsibility. The use of peace circles is an age-old custom in some cultures. 22 Some people want to forgive as it sets them free. RJ provides a safe environment where you can have an outlet for your rage. RJ should always be a voluntary process as it will not work for all victims and for all types of crimes. Some victims only want an apology. Most people want punishment as well, but why not combine the two – it all depends on the case and the individuals that are involved in the matter 3. RJ minimises the seriousness of crime a. The purpose of RJ is not to try and pretend that the crime didn’t take place. One has to look at the awfulness, the abuse, the pain, the degradation. Forgiveness doesn’t mean that you are condoning crime. It means that you are not allowing the offender to take away your freedom and peace. It means taking what happened seriously and not minimising it, but in the process trying to free the victim from hatred and pain. Victims have a need to understand why the offender did what he did – they want to get answers to their questions. It is sometimes necessary for the offender to see how his actions hurt other people. Thus, RJ does not aim to minimise the seriousness of the offense, nor does it mean that the perpetrator must be let off the hook. ● Critique about RJ from a victim’s perspective: ○ RJ can only serve a small number of victims ○ RJ still focuses more on the offender than the victim. ○ No active role in helping victims to rebuild their lives.