Child Victims and Restorative Justice

Child Victims and Restorative Justice: A Needs-Rights Model, by Tali Gal. New York: Oxford University Press, 2011. 264pp. Cloth $49.95. ISBN: 9780199744718.

Reviewed by Bill Lyons, Acting Director of Academic Global Programs; Director, The Confucius Institute; Director, Center for Conflict Management. Wtlyons [at] uakron.edu.

pp.681-684

Tali Gal has produced a densely argued defense of a series of important and interwoven claims about rights, childhood victimization, and justice. The analytical framework presented here, integrating rights talk and social scientific needs analysis, is an effort to move beyond the traditional dichotomy between rights that create "duties of omission, rather than of action" and needs that create often paternalistic "obligations to assist" (p.18).

"Children of all ages," according to Gal, "deserve -- and need -- respect for their liberties as well as protection against harm” (p.32). Children, like adults, are "rights holders simply by being human.... [And] needs are not only the justification for having rights; they also identify the nature of children's rights” (p.31).

This is a powerfully thoughtful review of a wide range of interdisciplinary literature relevant to improving our responses to childhood victimization, advancing our understanding of ongoing struggles over the meaning of law and rights, the weaknesses of current criminal justice system responses to childhood victimization, and the promises and challenges associated with restorative justice approaches.

According to Gal, a discourse of rights (or needs) alone is less useful than a single analytical framework that integrates the political and cultural power of a human rights discourse with the concrete and practical power of a sound empirical understanding of the needs of rights-bearing children. "The integration of empirical findings regarding children's needs with normative arguments regarding their rights... [is] helpful in identifying needs-based rights for child victims and related principles for action” (pp.83-84). One of the most important principles for action here is the need and right of children to meaningful participation in decision making about their lives.

Rights-bearers are not merely independent agents with a right to be protected from harm, but also diverse agents within competing and overlapping communities with needs that create and justify positive rights as well (but do not effectively transform these into politically potent claims on resources without connecting empirical needs to normative rights), including the right to participate. The author suggests, building on Martha Minow and others, that this integrated model avoids framing our analysis of responding to childhood victimization in dualistic terms: an either/or choice between rights without agency or protections without autonomy.

"To address the difference dilemma (the dichotomy between [*682] competent, rational people who are granted rights on the one hand, and dependent, incompetent, and irrational people who are subject to paternalistic protections on the other), Minow suggests unraveling the presumptions that create these differentiations and taking the perspective of the other. In this context of children, Minow's theory promotes a complete reevaluation of previous assumptions regarding children's incapacities and exclusion, through a change of perspective to that of the children themselves. It might mean, for example, talking with children to evaluate their own beliefs about their capacities in various fields and a joint reconstruction of rules regarding their participation in civil life” (pp.20-21).

Gal imagines two parallel and ongoing conversations: one between adults and children and another between practitioners (lawyers, social workers, advocates, activists) and researchers to improve our responses to childhood victimization, by linking the politically powerful aspirations articulated in rights talk and the concrete parameters established through empirical analysis. "The two frameworks complete each other through a mutual deliberation in which the human rights principles identify areas of concern for the psychosocial literature to explore, and existing evidence-based findings on the needs of child victims shape the interpretation and implementation of human rights principles” (p.88).

Gal uses the concerns made salient by the reciprocal interactions of empirical data and rights talk to identify specific ways current criminal justice practices fail to secure just outcomes for childhood victims, and to demonstrate that restorative justice practices are more likely to provide children with meaningful opportunities to participate in a safe process, designed to protect their best interests as rights-bearing agents through (variously structured, depending on age and maturity) direct interaction with offenders, where sincere apologies are more likely to help the victims recover and (potentially) forgive themselves and others.

As Gal points out "the 'core sequence' of successful restorative justice processes, the basis for victims' satisfaction and healing and for offenders' rehabilitation, is the expression of shame and remorse by the offender and some (even partial) expression of forgiveness by the victim” (p.123). This sequence supports restoration and helps victims "discharge their shame in constructive ways that can help them heal” (p.123). The author provides a persuasive case that "an ideal restorative justice process” (p.162), particularly restorative circles, is more likely to respond to childhood victimization in ways that recognize children’s need to be seen and treated as rights-bearing agents, worthy of respect and listened to at every stage of the process.

Seen within this more holistic context, an integrated needs-rights framework compels us to expand rights discourses beyond merely a negative right to protection to include the positive right and developmental need of child victims to participate meaningfully in efforts to address the conflicts in their own lives. Gal provides a careful and detailed [*683] review of the relevant rights-related and needs-related literatures to defend a child victim’s right and need to participate.

Combining the right to participate from the Convention on the Rights of the Child with an empirical analysis of a child's need to regain control, participation emerges as a critically important need and right for at least three reasons. First, for immediate instrumental reasons, participation is both an immediate coping mechanism and is expected to improve criminal justice outcomes. Second, for longer term developmental reasons, meaningful participation in experiential learning opportunities is a developmental step toward empowering young adults to master the problem solving skills necessary to make democracy both possible and desirable.

Finally, participation is also important for expressive reasons at the individual and community level. Meaningful participation for individual children is an opportunity to express their views in ways that the best available research suggests is likely to assist them in managing their own shame, guilt, fear and self-blaming, even if no exchange of apology for forgiveness is achieved. And for communities, expressing in practice the value of participatory decision making structures is expected to reduce conflicts, strengthen understanding and mastery of conflict management skills, and enhance the legitimacy and utility of more productive alternatives to punishment like restorative justice.

In the strongest and most engaging chapter in the book, Chapter Five, Gal examines the most common restorative justice practices (victim-offender mediation, family group conferencing, and sentencing or healing circles) through this newly integrated analytical lens and argues that, "the values and principles underlying restorative justice... are consistent with the needs-rights of child victims” (p.161). This chapter is filled with some of the most thoughtful and important ideas a reader can take away from this manuscript.

Chapter Five also examines the complexities of a need and right to meaningful participation in restorative justice and concludes that "meaningful participation is not only a way to achieve the desired outcomes, but, even more importantly, a coping mechanism, an opportunity to experience procedural justice, and a way of managing shame and resolving questions of blame and fear” (p.133).

The need and right to meaningful participation is one of the most powerful challenges that the author attempts to help us make sense of in this book. Children have a right and a need to participate, in age appropriate ways and for reasons laid out throughout the first four chapters. But risks associated with revictimization and a direct or implied pressure to forgive return us to the murky waters of adults speaking for child victims as dependents in need of protection rather than rights-bearing agents capable of meaningful participation.

While the author suggests that the integrated model and its related heuristics can guide the balancing here, in the end the only concrete proposals offered for acting on this central insight [*684] about a right and need for meaningful participation are heuristically-guided adult representations of the child. It is insufficient to conclude that the balancing of competing needs and empowerment of power-poor child victims "can be achieved through victims' advocates, community activists, and others who are able to promote the victims' views and perspectives” (pp.151-152), without reconciling this claim with arguments elsewhere in the book about the importance of children enacting their status as rights-bearing agents for immediate and developmental reasons. At the same time, this book provides a detailed empirical and conceptual framework that, in my view, offers an innovative and thoughtful foundation upon which to continue to analyze the importance of, and challenges to, child victim participation in our collective responses to childhood victimization.

For all these reasons I recommend this book to students, scholars and practitioners because it is serious, thoughtful, and consciously works to bring scholars and practitioners together around an effort to improve our capacity to think about and respond to childhood victimization by displacing unproductive dichotomous frameworks with a more comprehensive and pragmatic model that integrates empirical data on needs and normative aspirations on rights.

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