Restorative justice can enhance the rights of people with a disability living in group homes
The justice system can on the one hand fail to recognise serious victimisation as criminal offending when experienced by people with disability, while being unable to imagine alternatives to the criminal justice system in responding to complexity.
People with a disability are over-represented in the justice system as victims and offenders and are failed by the justice system in key respects.
A 2014 Australian Human Rights Commission report found that the under-prosecution of crime against people with a disability can leave victims unsafe while the failure to identify disability or make adjustments to justice interventions can trap offenders with a disability in a cycle of criminalisation and disadvantage.
In effect, the justice system can on the one hand fail to recognise serious victimisation as criminal offending when experienced by people with disability, while being unable to imagine alternatives to the criminal justice system in responding to complexity.
The role of the justice system is particularly complex in the case of conflict and abuse between group home residents.
Approximately 5,000 people with a disability live in group homes in Victoria and 17,000 nationally. Group homes typically accommodate around five residents and provide residents with support with the aim of facilitating a living experience akin to that experienced by other members of the community.
Group home residents are at risk of abuse from other residents. There is limited data on the prevalence of co-resident conflict and abuse in group homes and current data is unreliable due to under-reporting. Residents may not report co-resident abuse for a variety of reasons, including fear of reprisal, concern about the loss of services or eviction, or the normalisation of abuse. The Community Visitors Program associated with the Office of the Public Advocate (OPA) monitors and reports on instances of abuse in Victorian group homes. In 2018-19, volunteer Community Visitors conducted 2952 visits of 1148 Victorian group homes and identified 170 instances of abuse and neglect, nearly half of which related to abuse between co-residents. These figures are ascertained by Community Visitors witnessing abuse or residents or staff disclosing abuse and as such vastly under-estimate the prevalence of abuse.
The limitations of the data may be off-set by the voices of group home residents themselves. Consultations with six group home residents undertaken as part of a 2019 OPA report revealed that each had directly experienced or witnessed co-resident abuse.
Justice responses to conflict and abuse between group home residents must ensure that victims have access to justice and safety and are provided with choice and control in meeting their needs. At the same time, justice responses should support offenders to rehabilitate and avoid the harmful effects of criminalisation. Justice responses must take into account the circumstances of each case, including the impact of disability on the conflict or abuse.
Current justice responses to group home co-resident conflict have significant flaws. Community Visitors have observed that reports of co-resident abuse made to police often do not proceed, leaving victims vulnerable to further abuse. When justice interventions are used, they can be a blunt instrument. The involvement of police can lead to the criminalisation of minor incidences of conflict that are capable of being prevented through early intervention or resolved through less intensive means. Police involvement may also result in the criminalisation of behaviours associated with disability. Other justice responses such as intervention orders can be difficult for people with cognitive impairment to understand and comply with and can expose them to further criminalisation. Current justice responses do little to address the root causes of co-resident conflict and offer residents limited choice and control in addressing their needs.
Failures in current justice responses to group home co-resident conflict and abuse must be addressed through a range of legal and policy reforms. While ensuring that the safety of residents remains paramount, and that violence and abuse that amount to criminal conduct are reported, there may be value in exploring the potential of restorative justice to play a role in preventing and addressing minor instances of co-resident conflict.
Restorative justice processes can enable parties in conflict to come together to acknowledge and address the harm caused by conflict. Restorative processes typically involve facilitated face-to-face meetings between people experiencing conflict and may include support persons and other affected individuals. These processes can engage affected parties in a dialogue about how harm can be repaired and how relationships can be restored. Restorative practices emerged within the criminal justice system but have since been embraced in other contexts, including schools, workplaces and residential facilities.
By engaging group home residents in a problem-solving process, a restorative justice process could support group home residents to address the root causes of conflict and develop practical solutions which are not currently offered by justice responses. Practical solutions may include house rules developed by the residents or acknowledgment of past wrongdoing. Restorative processes could also be used as a form of early intervention to strengthen relationships between group home residents, prevent harm, and avoid unnecessary criminalisation of conflict. The OPA suggests that by giving agency to group home residents to address their needs, restorative justice can expand choice and control for group home residents in accordance with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
Importantly, restorative justice is not a replacement for the criminal justice system and does not limit access to justice responses for group home residents. Rather, restorative justice may provide another valuable option which can be used prior to, alongside, or at the end of other justice responses, and promote choice and control.
One potential barrier to the use of restorative justice in group homes is a concern that it may not be suitable or effective for participants with disability. Restorative justice processes may place demands on the capacity of participants to verbally and physically communicate, listen to and empathise with others, recall past events and develop narratives, and engage in problem-solving. Given the demands placed by restorative justice processes on participants, there are a range of ways in which the experience of disability may impact the process.
The empirical research on the impact of disability on restorative processes is limited but is nonetheless unanimous that there is no inherent reason why restorative justice cannot fulfil its potential as a justice process for people with disability. Bolitho analysed 16 Victim Offender Conferences (a post-sentence restorative conference involving victims and offenders) in NSW involving at least one participant with an identified disability. She found that in no case was disability considered a reason not to proceed with the conference or seen as determinative of the conference’s overall success. Cook et al analysed the use of restorative justice conferencing in a UK secure forensic mental health facility as a response to violence and abuse committed by patients against staff. They found that all participants had a positive experience of the process and that it contributed to positive behaviour change and supported patients’ therapeutic goals. Burnett and Thorburn discuss the use of restorative processes in schools with children with special needs. They suggest that restorative processes can be more effective than punitive responses in supporting positive behavioural and developmental outcomes.
The research also acknowledges that there are some circumstances in which disability may preclude access to restorative justice processes. For example, Hayes and Snow suggest that restorative justice responses present risks where the offender has an oral language deficiency. They note that offenders risk being perceived as disrespectful and may experience feelings of inadequacy due to difficulties participating and that victims risk experiencing further harm if offenders fail to express empathy or do not behave in expected ways.
There may be other factors which preclude restorative responses in cases of group home co-resident conflict. Restorative justice processes will be inappropriate where there are significant power imbalances between the parties which inhibit participation or in cases of serious conflict or abuse which require protective measures. Restorative processes may cause emotional distress for residents who fear reprisal or are otherwise concerned by the reality of living with other participants once the process is complete. Restorative processes may also place expectations on participants to reveal personal information about their perspective on conflict which they may prefer to keep confidential, including information relating to their disability.
There are a range of practical measures which can help to ensure that restorative justice is used effectively and in appropriate circumstances in the group home context. Restorative justice facilitators have a key role in establishing trust among the parties and supporting them to feel safe in reporting conflict. Facilitators should support the participation of the parties, including by addressing any impacts of disability. Facilitators should also ensure that the parties have the capacity to consent to their participation and that the restorative justice process does not risk causing further harm. Adjustments to the process such as the use of scripts or physical modifications to the conference space can help to aid participation for people with a disability. The formality of restorative processes may also be scaled up or down based on the circumstances of the case and the needs of the participants. For example, minor conflict may be addressed through an informal restorative conversation while more entrenched conflict may be addressed through a formal restorative conference with preparation and support for the participants.
The UNCRPD places an obligation on the Australian government to provide access to justice for people with a disability. This obligation must include exploring all measures, including alternative justice responses, that have the potential to increase access to justice for people with a disability. It is for this reason that a restorative justice approach should be offered within group homes. Access to restorative justice in this context could enhance the rights of group home residents by providing choice and control, reduce unnecessary contact with the criminal justice system and mitigate some of the harmful effects of discrimination experienced through mainstream justice responses.
Jarrod Hughes, Senior Adviser, Research and Advocacy