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When negotiating is not a fair fight
Victims of domestic abuse often tell Shine advocates that they feel coerced by professionals in the community, including court staff, lawyers, judges, social workers and others, to engage in various types of negotiation with their abuser. The negotiation may take the form of couples counselling, formal mediation, or restorative justice.
All of these negotiation-type approaches generally assume that both parties are able to assert their own interests in the presence of the other party. This is rarely the case for a victim of domestic abuse sitting in the same room as her abuser. Women who have experienced abuse are often very fearful of their partners. This fear will constrain their ability to participate freely. When a victim is brave enough to speak her mind, there is huge potential for retaliatory violence.
In processes relating to custody or care of children, if they are reluctant to participate, they risk being seen as the obstructive or ‘alienating’ parent (Hoult, 2006), and punished as a result. In these situations, a victim is likely to negotiate for what she can get, rather than what she actually believes is in her best interest or that of her children. Abusive partners also often use these processes to pressure victims to reconcile with them.
These words of a former client of Shine are an excellent example of why and how negotiating can be unsafe and unfair for victims of domestic abuse:
“He always gets what he wants. A lot of standover tactics, a lot of bullying. When the children were very small, he would just blow up for little or no reason at all… You were living in fear and you sit there every day and you look at your children’s faces and you know you have to do something but you don’t quite know what to do. He was drinking and driving maybe 3-4 times a week. I found out he’d had the children in the car and he couldn’t stand. So that was the catalyst. I telephoned him and said I’m no longer going to be married to you and...this is no longer your home. I couldn’t tell you how angry he was. It was the scariest week, and I was so frightened.
The last Court hearing was a mediation where the judge actually said, one of you has to basically give in, and you’re talking to someone that will never give in, so, just to have resolution I had to. So, by doing that it became exactly equal care.
There was an incident where the children ran away from their dad’s house at night. I was contacted by one of my children, completely distraught. He said, I can’t stay there. I don’t want to, please come and get me. So I went and picked them up. And I phoned the Police to say what had happened.
And the next day the Police came and the children were physically removed from the house and taken back. And I said to the Police officers, just leave them and I’ll take them to your car. I carried both of them down there. And they even said to me, we’re so sorry, we’re so sorry that we have to do this. And I put my kids in the car and watched them drive off.”
Professionals who facilitate negotiation or mediation processes generally lack specialist domestic abuse training and experience, and are likely to unknowingly collude with abusers as a result. For example, when someone who has been violent and abusive apologises to their victim and promises not to be violent again, professionals often conclude that the process has succeeded.
However, domestic abuse specialists understand that perpetrators of violence commonly apologise throughout their relationships after they commit violence and make promises not to do it again. Victims often believe these promises, or just hold out hope that they are true, because they badly want the violence the stop. As a result, they remain in the relationship, vulnerable to further abuse.
Apologising for violence and promising to change should be seen by professionals as a potential tactic for controlling a partner. Enough time must pass before it can be ascertained that the abuser’s behaviour has indeed changed. How much is enough time is a good question, but it should certainly be measured in months and years from the last abusive incident, rather than days and weeks.
Negotiation-type processes like couples counselling, mediation, and restorative justice are generally only safe for victims once the abuser has taken full responsibility for his violence, understood what beliefs led him to use violence, and shifted in his thinking. Further, these processes are only safe for the victim once he has had time to demonstrate that the changes he has made are long-lasting. This can be assessed in part by private interviews with the adult and child victims to see whether they remain fearful of the perpetrator.
A central component of restorative justice is a belief in the community’s inherent knowledge about how best to handle crime and harm (Edwards & Haslet, 2003). Generally, the community, i.e. the general public, does not understand the complexities nor the dynamics of domestic abuse. Our experience is that far too often members of the public hold beliefs about domestic abuse that at least partially blame the victim, and that minimise the abuse and keep it hidden behind closed doors. Perpetrators do not just learn abusive behaviours; they also learn that these behaviours are ‘acceptable’ or at least tolerated because of these kind of widely held beliefs, and because the community fails to sanction them for their behaviour.
The Mediation and Restorative Justice Centre of Edmonton, Alberta, Canada has worked with domestic abuse cases at the “less complex” end of the continuum. Before proceeding with the restorative justice work, all the participants are extensively screened individually, to ensure that the victim’s participation is well-informed and genuinely voluntary, and to identify perpetrators who are not appropriate for the restorative justice process (i.e. lack of empathy and taking responsibility, level of dangerousness).
In order to proceed, the Centre staff need to feel confident that the victim “has the desire, strength, and feeling of safety to represent her own needs and talk honestly and in depth about her experience of his abusive behaviours, and also feels safe terminating the sessions (thereby sending the case back to court) if she is not hearing sufficient remorse or responsibility-taking from her partner.” And that the “victim feels safe, physically and emotionally, outside of the sessions” (Edwards & Haslet, 2003).
Without these kinds of robust safety measures, it is unsafe and inappropriate in cases of domestic abuse, for professionals to refer to, require, or recommend that parties attend couples counselling, mediation, or restorative justice. It is much safer with these kinds of cases, to avoid these processes altogether.
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