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McGlade, Hannah --- "New Solutions to Enduring Problems: The Task of Restoring Justice to Victims and Communities" [2010] IndigLawB 2; (2010) 7(16) Indigenous Law Bulletin 8


New Solutions to Enduring Problems: The Task of Restoring Justice to Victims and Communities

By Hannah McGlade

This paper concerns the need to find new solutions to the enduring problems experienced by Aboriginal victims and communities, and the place of restorative justice.[1] As an advocate for Aboriginal women and children who have experienced sexual assault, I am conscious of the level of trauma and abuse that is frequently experienced at the hands of the justice system. All too often the result is one of injustice against the victims. It is little surprise that most cases are never reported.

Of the reported cases, police will lay charges in the minority of instances, and very few will go on to conviction. Moreover, Aboriginal victims do not receive equal treatment. In the Study of Reported Rapes in Victoria 2000-2003: Summary Research Report it was reported that no criminal charges were laid with respect to any of the 16 complaints of sexual assault made by Indigenous victims.[2] An exception appears to be where there is strong commitment and arguably political support for prosecution, and this appears to have been the case in the Kimberley region of Western Australia, where the establishment of a police taskforce in 2007 has resulted in 134 Aboriginal offenders facing charges.[3]

Where Aboriginal victims do proceed to a court hearing, they are likely to experience discriminatory and abusive treatment on the grounds of race and gender. The most comprehensive study of rape cases in Australia, Heroines of Fortitude,[4] showed that Aboriginal complainants were regularly bullied, harassed and intimidated during cross-examination[5] and that ‘the credibility of many Aboriginal women was frequently attacked with the use of racist myths and stereotypes about Aboriginal culture’.[6] This study confirmed that Aboriginal women, who were ten times more likely to be complainants in NSW rape trials (although less likely to see a conviction result) suffered ‘enormous victimisation during the court process’.[7]

Professor Judy Atkinson many years ago spoke of the important task of restoring justice to Aboriginal people, arguing that

Mechanisms designed to ensure justice are critical to the fulfilment of the need of Aboriginal people to rebuild relationships, and to repair the damage and devastation caused by family violence and the continuing impacts of colonisation.[8]

Atkinson urged restorative justice (‘RJ’) models, whereby offenders acknowledge responsibility for their actions, show remorse to the victim and to the wider community, and commit to appropriate restitution.[9]

In considering ways to restore justice in Australia, two leading Aboriginal Canadian approaches offer particular guidance. They are the Community Holistic Circle Healing program of Hollow Water addressing sexual abuse and victimisation, and the Aboriginal Healing Lodges that incorporate culture and healing in community controlled correctional facilities.

Hollow Water

The Community Holistic Circle Healing (‘CHCH’) model of Hollow Water, Canada was formed in 1987 as the community began to learn that sexual victimisation and intergenerational sexual abuse was at the core of the poor wellbeing of many individuals and families. [10] From their experience, the non-Indigenous adversarial legal system could not understand the complexity of this issue, or what was needed for a community to break the cycle of abuse that impacted upon so many of its members. In developing their model, they considered that:

• Victimisers are created and not born

• The vicious cycle of abuse in communities must be broken – and now, and

• Given a safe place, healing is possible and will happen.[11]

Hollow Water does not support the incarceration of offenders because

What the threat of incarceration does do is keep our people from coming forward and taking responsibility for the hurt they are causing. It reinforces silence and therefore promotes, rather than breaks, the cycle of violence that exists. In reality, rather than making the community a safer place, the threat of jail places the community more at risk.[12]

Within the CHCH process, offenders are instead held directly accountable to those most affected by the victimisation: the victims, families and the wider community.

Hollow Water founder Berma Bushie has explained the process as one that works in conjunction with the Canadian criminal justice system. Following a disclosure of sexual assault, a team consisting of a CHCH team member, a representative from the Child and Family services department and the police will come together to investigate and record the victim’s story and ensure their safety.[13] If it is then determined (beyond reasonable doubt) that the abuse has taken place, the abuser is confronted and charged. At the same time, a member of the CHCH team will encourage the person charged to admit to the abuse and agree to participate in the healing program. Only victimisers who agree to plead guilty and fully co-operate with the healing process are accepted. The CHCH team makes it clear that those who do not agree will not receive the community’s support, but will instead be abandoned to the courts with jail as a possible outcome. Abusers who agree to ‘the healing road’ are mandated to the CHCH program, where they may remain for several years.[14]

The CHCH model entails

• the development of a ‘healing contract’ that offenders must agree to be bound by

• healing circles held separately with the victims, perpetrators and their families

• the sentencing circle in which victims, victimisers, families and the wider community are brought together and in which a non-custodial sentence is imposed on the offender and

• a final ‘cleansing’ ceremony held to acknowledge the offender’s participation within the program and their reintegration back into the community.[15]

Fundamentally, the Community Holistic Circle Healing process ‘lives within’ and is guided by the seven Anishnabe sacred teachings, given by the Creator for Aboriginal people to follow. These are honesty, strength, respect, caring, sharing, wisdom and humility.[16] It is considered that the team members’ own personal healing is ‘foundational, extensive and inclusive’ and that authenticity in both personal and public life is essential.[17] In working with victims and victimisers, CHCH relies on traditional cultural practices including prayer, smudging, sweatlodge ceremony and herbal medicines.

CHCH members believe that their work is part of a spiritual process and, in the sacred healing circle, victimisers are able to learn about being honest about themselves, their abuse, the impact on their victims and the broader kin network.[18]

At the same time, a worker is assigned to work closely with victims and their families in coming to terms with the abuse. They work with victims to help them directly confront and face their abusers, and to work towards healing from the harm caused by sexual assault. CHCH has been described as a process of ‘building up’ the victim who has been harmed, and ‘stripping down’ the victimiser to redress the imbalance caused by the assault.[19] Within the circle process they speak directly to the victim, to make them understand that the abuse was not their fault, to acknowledge their pain, and to celebrate their courage in bringing the issues out into the open.[20]

To understand the CHCH model, we need to recognise that it was developed by individuals who are themselves victim/survivors of child sexual assault. That is, the success of the process is considered to be founded directly on the team member’s own personal knowledge and healing from sexual assault.

The CHCH model has reported achieving a remarkably low rate of recidivism. According to one study, of 107 offenders who participated in the program, only two went on to re-offend. [21] The success rate has therefore been described as ‘nothing short of spectacular’ and not comparable to any mainstream, non-Indigenous approach.[22] Moreover, the core values and teachings incorporated within CHCH have been re-embraced by the wider community whose own spiritual, emotional, physical and mental wellbeing has improved significantly since its establishment.[23]

It must be noted that there have been some concerns expressed about restorative justice responses. In a 2001 report by the Canadian Aboriginal Women’s Action Network (‘AWAN’), participants said that many measures presuppose a healed community, and yet a radical transformation of existing structures of gendered domination was yet to occur.[24] Women feared that the restorative justice reforms failed to address the underlying power inequalities still rife in communities after years of oppression. [25]The silencing of victims and normalisation of violence was regarded as a serious issue, as was sexual harassment, nepotism and discrimination.[26] Participants were concerned that ‘unhealthy elders’ (with a past history of abuse) were frequently engaged in leadership roles, and there needed to be more learning around the actual dynamics of sexual abuse.[27] However, even in light of these criticisms, it was still considered that Aboriginal justice reforms had the potential to address Aboriginal crime in a way that the existing justice system did not. [28]

Incorporating Healing within the Corrections System

In Australia, the Federal Government’s ‘Closing the Gap’ commitment through the Council of Australian Governments (‘COAG’) is based on a number of strategic platforms or ‘building blocks’, areas requiring priority commitment and including ‘safe communities’.[29] However, it is not yet clear whether the commitment to safe communities goes beyond the immediate law and order agenda to encompass the wider imperative of effective intervention and treatment of Aboriginal offenders.

According to the Australian Institute of Criminology:

• At June 30 2006, the Indigenous imprisonment rate (1,985 per 100,000) was nearly 16 times higher than the rate for non-Indigenous persons (127 per 100,000). The difference in prisoner rates has increased slightly since 2005

• Indigenous prisoners comprised 24% of the total prisoner population in 2006, an increase from 14% in 1992

• 74% of Indigenous prisoners were known to have previously been in prison, compared with 52% of non-Indigenous prisoners.[30]

The Australian Bureau of Crime Statistics has also reported that, 15 years after the Royal Commission into Aboriginal Deaths in Custody, the rate of Aboriginal imprisonment has increased by almost 55%.[31] Figures released by the Australian Bureau of Statistics in 2007 show that Western Australia now has the nation’s highest imprisonment rate for Aboriginal people.

According to the Aboriginal and Torres Strait Islander Social Justice Commission,

• Indigenous women are currently the fastest growing prison population

• Incarceration rates for women generally have increased more rapidly than for men

• The increase in imprisonment of Indigenous women has been much greater over the period compared with non-Indigenous women and

• Indigenous women are imprisoned nationally at a rate 20.8 times that of non-Indigenous women.[32]

It is also now widely recognised that a very high proportion of Aboriginal women prisoners have a history of untreated sexual abuse and victimisation.[33]

In her Queensland study into Indigenous and non-Indigenous women’s perspectives about family violence and restorative justice, Heather Nancarrow indicated that Aboriginal women express a preference for restorative justice over the criminal justice system.[34] Indigenous women feel that the criminal justice system commonly leads to an escalation of violence more often than ending it. [35] Similarly, the Aboriginal and Torres Strait Islander Social Justice Report in 2003 stated that

… the system is generally ineffective in addressing the behaviour of the perpetrator in the longer term. The effect of imprisonment is to remove them from the community and then, without any focus on rehabilitation or addressing the circumstances that led to the offending in the first place, to simply return them to the same environment.[36]

Contrasting with Australia, Aboriginal Canadian communities and Correctional Services Canada (‘CSC’) have established many Healing Lodges based on a commitment to healing and the safe reintegration of Aboriginal offenders into their communities.[37] The Lodges are designed and developed by Aboriginal people in accordance with local protocols, offering services and programs that reflect Aboriginal culture and in an environment that incorporates traditions and beliefs. The needs of Aboriginal offenders are addressed through teachings and ceremonies, contact with elders and interaction with nature.[38]

Writing of the importance of Aboriginal Canadian approaches within the criminal justice system, Irene Fraser reminds us that ‘no child is born an offender’ but that Aboriginal families and cultures have been weakened by the reserve system, the Indian Act (1876), the residential schools, the introduction of alcohol and racism. [39] The offender’s attitudes and values are fundamental factors determining not just criminal behaviour, but also the prospects of rehabilitation. The re-introduction of Aboriginal cultural values and spirituality through substantive initiatives such as these is therefore significant.

In addition to the Healing Lodges, CSC has adopted an Aboriginal Corrections Continuum of Care model, after consultation with Aboriginal stakeholders, to develop new approaches to addressing Aboriginal offenders’ needs. The model is premised on the understanding that the major factors contributing to offenders’ success upon release were their participation in spiritual and cultural activities, Aboriginal-run programs and the support they received from family and community. The Continuum of Care model embraces the traditional teachings of the Medicine Wheel (incorporating physical, emotional, psychological and spiritual wellbeing) as critical to the healing process. It is recognised that Aboriginal communities must be involved in supporting Aboriginal offenders during their healing journey and reintegration, as they link offenders to their history, culture, and spirituality. [40]

Conclusion

In 2008, Prime Minister Rudd issued an historic apology to Aboriginal people for past government practices and made a commitment to a ‘future where we embrace the possibility of new solutions to enduring problems where old approaches have failed.’[41] What we have seen from a myriad of reports, testimony and cases is that the old approaches to criminal justice, based on the exclusion of Aboriginal people, have failed victims, offenders and wider communities. We need a future that can embrace new solutions to justice, where Aboriginal communities have both the ability and the responsibility to restore justice and healing.

Hannah McGlade is a human rights lawyer, writer and social justice activist. She is an active member of the Perth Noongar community, an Adjunct Researcher with Curtin University Centre for Human Rights Education, and advises the Western Australian Government in relation to issues facing Aboriginal victims of crime.


[1] This is an edited version of an earlier paper by Hannah McGlade, 'Women, Safety and the Law’ (Speech delivered at the Women’s Law Service Victoria Conference, Melbourne, 17-18 March 2009).

[2] Zoe Morrison, ‘What is the Outcome of Reporting Rape to the Police? Study of Reported Rapes in Victoria 2000-2003: Summary Research Report’, ACCSA Newsletter No 17, 2008, 9.

[3] As of March 2009, 134 offenders have been charged with over 600 offences see Paul Toohey, ‘Cycle of Rape Child Sex Smashed’, The Weekend Australian (Sydney) 21-22 March 2009, 1, 6.

[4] Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996).

[5] Ibid, 105.

[6] Ibid, 108.

[7] Ibid, 109.

[8] Judy Atkinson, ‘Voices in the Wilderness – Restoring Justice to Traumatised Peoples’ [2002] UNSWLawJl 15; (2002) 25(1) University of New South Wales Law Journal, 233, 238.

[9] Ibid.

[10] See Kyllie Cripps and Hannah McGlade, ‘Indigenous Family Violence and Sexual Abuse:' Considering Pathways Forward’ (2008) 14(2-3) Journal of Family Studies, 240 – 254; Rupert Ross, ‘Aboriginal Community Healing in Action: The Hollow Water Approach’ in Wanda D McCaslin (ed) Justice as Healing: Indigenous Ways (2005) 184 – 189.

[11] Rupert Ross, ‘The Sentencing Circle: Seeds of a Community Healing Process’, in Wanda D McCaslin (ed) Justice as Healing: Indigenous Ways (2005) 190.

[12] Rupert Ross, above n 10, 187.

[13] Berma Bushie, ‘Community Holistic Circle Healing: A Community Approach’, at <http://www.iirp.org/library/vt/vt_bushie.html> at 25 February 2010.

[14] Ibid.

[15] Rupert Ross, above n 10, 185.

[16] Native Counselling Services of Alberta, A Cost-Benefit Analysis of Hollow Water’s Community Holistic Circle Healing Process (2001) 28.

[17] Ibid, 17.

[18] Ibid, 11-28.

[19] Ibid, 189.

[20] Aboriginal Corrections Policy Unit, The Four Circles of Hollow Water (1997) 176.

[21] Jan Dickinson Gilmore and Carol La Prairie, Will the Circle be Unbroken (2005) 176.

[22] Ibid.

[23] Ibid.

[24] Wendy Stewart, Audrey Huntley and Fay Blaney, The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five British Communities of British Columbia (2001), 39.

[25] Ibid.

[26] Ibid, 45.

[27] Ibid, 56.

[28] Ibid, 41.

[29] Australian Government, ‘Closing the Gap on Indigenous Disadvantage; The Challenge for Australia’, February 2009 at p 20

[30] AIC, ‘Australian Crime: Facts and Figures 2007’, at <http://www.aic.gov.au/publications/facts/2007/06_corrections.html> .

[31] ABC Online, ‘AM – Report finds Indigenous prison has increased’, Monday 6 November 2006 at <http://www.abc.net.au/content/2006/s1781819.html> .

[32] Aboriginal and Torres Strait Islander Social Justice Commission, ‘A statistical overview of Aboriginal and Torres Strait Islander people in Australia’, at <http://www.hreoc.gov.au/Social_Justice/statistics/index.html> retrieved on 10 March 2009.

[33] See Further: Lawrie, R., Draft of Speak Out Speak Strong: Researching the Needs of Aboriginal Women in Custody, New South Wales Aboriginal Justice Advisory Council (2002);

Western Australian Department of Justice, Community and Juvenile Justice Division, Planning, Policy and Review, Profile of Women In Prison (2002), 56.

[34] Heather Nancarrow, ‘In Search of Justice for Domestic and Family Violence: Indigenous and Non-Indigenous Australian Women’s Perspectives’, 10(1) Theoretical Criminology, 87-106.

[35] Ibid at p 97

[36] Aboriginal and Torres Strait Islander Commission, Social Justice Report 2003 (2004), 4.

[37] Irene Fraser, ‘Honouring Alternatives in the Criminal Justice System’, in John Bird, Lorraine Land, Murray Macadam (eds), Nation to Nation, Aboriginal Sovereignty and the Future of Canada109-119.

[38] <http://www.csc-scc.gc.ca/text/prgrm/correctional/abissues/challenge/11_e.shtml> .

[39] Above n37, 11.

[40] Correctional Services Canada, ‘Strategic Plan for Aboriginal Corrections’ at <http://www.csc-scc.gc.ca/text/prgrm/abinit/plan06-eng.shtml#6> retrieved on 10 March 2009.

[41] Prime Minister of Australia, ‘Apology to Australia’s Indigenous Peoples’, House of Representatives, Parliament House, Canberra, 13 February 2008 at <http://www.pm.gov.au/media/Speech/2008/speech_0073.cfm> .


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