Carme Guil is a magistrate of the Audience of Barcelona and president of the Spanish Section of the European Group of Magistrates for Mediation (GEMME). It has defends for years to extend the restorative justice processes in Spain, an approach that is focused on meeting the needs of the victim of a crime and seeking the responsibility of the person who commits it. The objective is to achieve repair, on the one hand, and ensure that there is no recidivism, on the other. Hours before offering a talk in Santiago de Compostela, organized by the Andaina de Mulleres Association and the Do Pobo Galego Museum, attends to this newspaper, in a conversation in which the punitivist optics and prison sentences that see incapable to resolve The basic social problems in crimes.
The judge explains that the restorative justice processes are diverse. The best known example in Spain is that of the meetings between victims of ETA and members of the band, but there are formulas that do not imply direct contact between the parties or that call not only victim and victimizer, but also their surroundings. Guil does not exclude any crime of the potential benefits of these models and points out that they have already been applied in cases of sexual aggression. This route, emphasizes, is always voluntary and confidential and does not seek forgiveness or affect the criminal process, which continues its course regardless of whether or not there is a restorative space. The two “poles” that he must attend, he says, are to give voice to the victim and what he needs to express or receive as repair and try to make who commits the crime the impact he has.
You have been involved with restorative justice for years and just given a talk about it in Santiago de Compostela, what is your approach?
That we must change our eyes on what we have been doing in violence against women and sexual violence in recent years. We must think if the answer we have given to the victims, that it has been only punitive, is sufficient and fulfills the purpose that is proposed, which is that the person who has committed a crime does not commit it again and that other people do not commit it either . We can conclude that the criminal process has not served to avoid violence against women or sexual violence and it is necessary to create new, restorative spaces, which focus on victims, give them voice and meet their needs and interests.
Avoid revictimization is one of the focus of attention when restorative justice is applied, but the risk extends to ordinary processes. A recent example have been the appearances before the judge of Elisa Mouliaá and Iñigo Errejón.
There is bad judicial praxis on many occasions, an forgetting that the law forces us to treat with respect to anyone and, especially, the affirmed victims (we talk about affirmative victims because it is before a conviction). They need to be heard and avoid the questions that may have a victimizing load. But the criminal process is, in itself, victimizer and we must explain to the victim, especially in sexual and gender violence, that they will ask questions that will bother her, that they will make her feel questioned in her story. It is not to doubt its version, but it must be able to submit to the contradictory debate of the parties: that the opposite lawyer, your lawyer or the prosecutor asked you.
The ‘I believe you’ is a slogan to claim, but in therapeutic, assistance, community and, of course, in a restorative field, not in a justice room. If it means that the judge has to believe what a person who denounces a crime tells him, it is a bankruptcy of the system. So, we have the judges and the process left over. It is a witch hunt; An accusing finger is enough for a conviction. That has cost us centuries to overcome it and we cannot, in the name of a punitivist feminism, return there.
Talk about punitivism and witch hunt. Do you think behaviors that are reproachable and behaviors are being mixed that are also persecuted for justice?
Speaking of sexual violence, I believe that thinking that everything should be a crime is a mistake. It is not that there is a brutal increase in sexual violence, but a visibility. Beware of reading that any sexual behavior that we do not like is a crime.
And criticism [fundamentalmente, a mujeres en casos de violencia sexual] To the people who take to report?
Another error. And the media throw a lot of firewood to that fire of what a good victim is. The vast majority of victims denounce when you can. What is important is that they are prepared for the criminal process, if they want to start it. If they are not, the process is probably more victimizer. It is a prejudice to say that, as it has taken a long time, it is a lie. The problem is that, in the criminal process, the longer, the more difficulty there is to provide the evidence. And that must also be told to the victim. If there is no corroborator element, it is likely to end in an acquittal. It is part of the repair to say: “The criminal process does not go against you, it is not that it does not believe you, it is that the rules of the game demand that there be elements of corroboration.”
Talk about Spain for a punitivist optics, focused on jail sentences. What does it propose?
It is very important that, both political and media, let’s start rethinking what seems like a mantra that the only response is penalty. In sexual violence we have seen an increase in penalties. Does that mean there are less crimes? No. Criminal law does not serve to solve social problems. With multirreincidental robberies, if whoever commits them does because he is in a situation of destitution, he will hardly serve him the penalty. In gender violence, on many occasions the penalties have not served and the victims do not feel better because they are more sorry. Many of them even tell you: “I do not want me to go to jail, it is the father of my children, what I want is not to be violent.” How can we get that? It is difficult, but only with the punishment we are not going to do it. We must influence education, prevention and the need that, especially with adolescents, the scope of sexual freedom and respect is worked.
Is the social or socioeconomic context blurred in the judicial system?
The criminal process is about giving an equal answer to the same cases, forgetting the people behind. It does not occur in youth justice because there the answer takes into account its environment and situation to see where to influence. That in adults does not happen. In the case of the victim it is even more special because it is his life that has remained upside down and that unifying response, which is necessary in the criminal process, is not adequate for him to feel listened and really attended.
How does restorative justice impact on the victim and who commits the crime?
What works in a restorative space is what the victim needs. We see that on many occasions, especially in sexual violence, they think ‘is my fault, why I did not defend myself, why I put on that skirt’. All these questions and this guilt that are asked cannot be worked in the criminal process because it is not the scope. In a restorative process we try to create that space to explain their emotions and how they can be repaired. And with the perpetrator you work the ‘Do you realize the damage you have caused?’ It is not an issue of recognizing the fact or not. Nor is it a space, as some said, to forgive. Forgiveness is a Judeo -Christian concept that we are not talking about. We talk about the responsibility of the damage and find ways to be able to repair. Maybe a repair is to tell the victim: “I chose you randomly.” This takes away the guilty load to the victim.
It is a completely voluntary process, what happens there and is safe is confidential. It is put in the hands of facilitating professionals specifically trained in victimization. We defend it because we believe they are necessary spaces and that, as a community, we owe them to the victims.
You talk about sexual violence problems in adolescents who learn with pornography. And this occurs in a context in which, due to the impulse of feminism, visibility has been given to sexual violence, what consent means. Isn’t there a contradiction?
There is because feminism has become more and more punthivism. We have copied in feminism the logic of male violence that the response to sexual violence has to be the punishment of the State and Point. In affective and sexual education it is where you have to influence crime. What we want is that there are no victims, not punish the perpetrator.
But the scope of abuse within the couple or ex -partner and that of sexual violence are excluded from restorative justice in Spain.
I do not share this statement. The law, both that of gender violence and sexual violence, talk about mediation and, in sexual violence, also conciliation. Mediation is a process in which there are two parts of equality and, helped by a mediator, try to solve a conflict. A victim does not have a conflict with his victimizer, but is the victim of a crime, he is not in equality. The law prohibits mediation, but there are restorative practices that are not prohibited.
Are the methods of restorative justice in Spain apply?
It is being applied, although with difficulties because the legal provision leads some to be shy with it. There have been cases in murders, not only in those of ETA, in violations (in Catalonia there is some example), in less serious sexual behaviors such as touching … The problem is that all these processes can occur in autonomous communities that have services of Restorative Justice, which are only Catalonia, Basque Country and Navarra, which has a law. In Andalusia they have started and in the Canary Islands they want to start. There we have to focus: it has to be the thing of the administration to create public restorative justice that give maximum guarantees to the victims and allow safe processes. There are examples around the world and the UN has a manual.
Is there any kind of crime in which these methods have more impact?
You have to remember that it is always voluntary. The important thing is to be able to tell the victim that he has that space. In most of the countries in which the type of crime is not differentiated, but the needs of the victim. This does not cancel or replace the criminal process; It is not intended to reduce penalties. The two poles that are worked are to address the restoration with the victim and the responsibility with the person who has committed the crime.
It depends on each victim, how the crime has lived. What is demonstrated with investigations is that the more serious the crime is, the more victimized the victim is, the more advantages the process has. Gender violence, for me, is one of the spaces where restorative justice is most favored because the victims are in fragility. Sometimes they feel guilty, they present many doubts and need empowerment. When the victim is able to tell her victimizer ‘Look what you have done, see how I felt’, the perpetrator can understand the damage caused and give up violence. For women it would be convenient to leave fear behind, a fear that they still have after the condemnation and the restraining order.
Is there a dissemination of this route among the judges themselves?
The vast majority do not know what a restorative justice process is, even in communities in which there are services.
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