Restorative Justice: A Healing Approach to Elder Abuse
Mrs. Green is a 75-year-old widow in your congregation. She is recovering from a recent stroke and has difficulty walking. She also has trouble making herself understood. Her 50-year-old unemployed son (who has a history of violent outbursts) has moved into her home to provide assistance. When you visit Mrs. Green, you notice that she seems afraid around her son, who is very impatient with her slow responses. You also note that she has a bruise, in the shape of fingerprints, on her left arm. She does not know how this happened. She tells you that her son takes good care of her.
"Elder Abuse is the mistreatment of an older adult by someone that they should be able to rely on: a spouse, a child, another family member, a friend, or a paid caregiver."1 If you were Mrs. Greens church visitor, what would you do? Would you be able to provide her with support? How would you respond to Mrs. Greens son? Harm of this sort, which fractures a relationship of trust, is an emotional topic that raises feelings of anger and moral outrage. It is especially difficult to contemplate the possibility of mistreatment of older adults occurring within our faith communities.
On the other hand, faith communities in particular embody traditions of restorative justice that can redress such wrong-doing wherever it occurs. "Restorative justice is a response to conflict that brings victims, wrongdoers, and the community together to collectively repair harm that has been done in a manner that satisfies their conception of justice."2 According to Judge Bria Huculak of the Saskatchewan Provincial Court, "scholars have meticulously searched out their [respective] religious and spiritual traditions and found Restorative Justice resides in [them] all."3 This approach, with its focus on forgiveness, healing, and restoration of relationships provides hope that positive solutions can be found to these complex situations. It is an approach that resonates with the Judeo-Christian tradition.
The Restorative Justice Approaches to Elder Abuse Project
The Restorative Justice Approaches to Elder Abuse Project is a collaboration of seven local community agencies in the Kitchener-Waterloo area of south-western Ontario. In partnership with the Waterloo Region Police Service, Community Justice Initiatives of Waterloo Region, Conflict Resolution Network Canada, White Owl Native Ancestry Association Weejeendimin Native Resource Centre, the Kitchener-Waterloo Multicultural Centre, and the Waterloo Region Committee On Elder Abuse, the Community Care Access Centre of Waterloo Region was awarded a Trillium Foundation Grant to design, implement, and evaluate a restorative justice approach to address elder abuse. The project is in its third year of funding. Our mission is to provide an opportunity for change and healing to people affected by elder abuse.
The types of abuse addressed are:
Physical violence: pushing, shaking, hitting, sexual molesting, rough handling, and use of restraints.
Psychological harm: threatening, bullying, name-calling, and harm because of conflict.
Financial: withholding money, forcing sale of property, theft, or misuse of power of attorney.
Neglect: failure to provide adequate food, drink, or medical attention, or leaving an elder in an unsafe or isolated condition.4
In Canada, various laws, codes, and legislation at both Federal and Provincial levels are adequate for combating the various forms of elder abuse. "Many incidents of abuse may be offences under the Criminal Code."5 However, we have not been very effective in bringing these cases through the judicial system. Statistics Canada reports, "It is suspected that a small portion of abuse of older adults ever comes to the attention of the justice system."6 Some of the reasons cited in the literature include:
Ageism: Laws designed specifically to protect the elderly "treat the older persons like children." In addition, an ageist perspective considers the older adult as frail, dependent, incapable, and hence as an unreliable witness.
Difficulty of obtaining evidence: Complaints that police are not interested in bringing such cases to trial may be directly related to the low number of convictions obtained in court. In any event, it is difficult to obtain the necessary evidence to establish guilt beyond reasonable doubt. The older person may be unwilling or unable to complain to the police or testify in court, resulting in a reluctance to prosecute.
Fear: The older adult may fear that the relationship with an abusive family member or trusted person will be seriously damaged if they identify abuse or seek intervention, or if charges are laid.7
Lack of Knowledge: The low incidence of reports to the police by older adults or those who are in contact with them may be because they do not recognize such behaviour as elder abuse, or realize that elder abuse is a crime.8
The impetus for this project comes out of my own experience as a case manager and volunteer. I have found that abuse may be hidden and that resource options, especially legal and justice options, are often declined. The following situation provides a helpful case example:
"Mrs. Smith" is an 89-year-old widow living alone. The assistance of private and publicly-funded services, as well as that of her family, has made it possible for her to continue living in her own home. One day, she discloses that her son has withdrawn $40,000.00 from her bank account. Mrs. Smith is given information about various community resources, including the option of calling the police to report this theft. She refuses these options, saying that her son is a good man who probably needs the money more than she herself does. Furthermore, she needs him to buy her groceries, run errands, and take her to church each Sunday. The relationship with her son and his family is more important to her than the $40,000.00.
The "Mrs. Smiths" in my practice have forced me to consider a different approach to such difficult and complex cases. Was there a better way to address the needs of the older adult who is abused? I became aware of a successful project in our local high schools that used restorative justice approaches to address conflict with young offenders. It occurred to me that an approach that focuses on forgiveness, healing and restoration of relationships might be more acceptable to seniors. I decided to consult with various community members including seniors themselves, along with police, crown attorneys, health care professionals, faith and cultural leaders, lawyers, and members of the local volunteer elder abuse committee. I cautiously described the restorative justice process. The exciting outcome is that application for funding was submitted along with approximately fifteen letters of support from the local Medical Officer of Health, the Chief of Police, the Crown Attorneys office,, a Director of Social Work, a Senior, a Chaplain etc.
As indicated earlier, project funding was provided to the following organizations:
Community Care Access Centre of Waterloo, a central point of access to information and broad range of community-based services, funded by the Ontario Ministry of Health;
Waterloo Region Police Service, which provides a leadership role in crime prevention and law enforcement;
Community Justice Initiatives of Waterloo Region, which provides trained volunteers to facilitate the meetings of people involved in abuse;
Conflict Resolution Network Canada (formerly the Network for Conflict Resolution), which provides consultation and resources on conflict resolution;
White Owl Native Ancestry Association Weejeendimin Native Resource Centre, which provides information about native traditions and helps us improve our services to the aboriginal community;
Kitchener-Waterloo Multicultural Centre, which participates in our Multicultural Working Group and assists with outreach to the multicultural community.
Waterloo Region Committee on Elder Abuse, which assists with publicity and education. The mandate of this volunteer committee is to raise awareness of elder abuse and increase the communitys ability to respond.
Mennonite Central Committee, which has supported the project since inception and is currently under contract to supervise the research assistants for the evaluation of the project
This project provides an opportunity for change and healing to people directly affected by elder abuse. Before elaborating on how the project seeks to accomplish this goal, it is important to consider what "justice" consists of, how justice is realized, and the philosophy of restorative justice.
Justice, according to Dennis Cooley, means achieving a situation in which the conduct or action of individuals is considered fair, right, and appropriate for the given circumstances. It reflects our sense of right or wrong. It is called into question when our understanding of what is right is offended and is restored when wrongs are addressed. Our laws list a series of behaviours that are considered unjust and establish a process for labelling, detecting, and repressing these behaviours. These laws are in place to control socially inappropriate behaviour.9
How is justice realized with the traditional approach to elder abuse? A traditional approach considers that Mrs. Smiths son violated the law when he took $40,000 from his mothers bank account. As a result, the son is charged with theft, an offence under the Criminal Code. A Crown prosecutor tries him and determines whether he is guilty or not. If guilty, he is punished according to a set of prescribed standards. The focal point and purpose of this process is to establish whether or not he is guilty of violating the law and, if so, to administer appropriate punishment. This is sometimes referred to as "retributive" justice.
Traditional, retributive systems of administering justice appear based on a belief that the guilty person is "bad," with the result that for justice to be realized, the individual in question must be punished. Such punishment is thought to be a deterrent to further acts of abuse. Punishment thus serves as a control for inappropriate behaviour. This approach seeks punishment rather than accountability and the victim plays a minor role. It does not consider the fact that abuse occurs for a complex series of reasons, with a complex series of results. Furthermore, retributive justice provides no opportunity for healing or reconciliation.
Restorative justice, on the other hand, represents a fundamentally different approach. Howard Zehr refers to it as a paradigm shift10, while Susan Sharpe refers to it as a philosophy or world view.11 A restorative justice approach considers abuse as a violation of people and relationships rather than as a violation of the law. This holistic approach focuses on a wider range of considerations, including the need for speaking the truth; giving equal voice to all affected individuals; healing and restoration of relationships; respect for individual values and preferences, and the prevention of further harm. It is not simply an alternative to the criminal justice system. Nor does it amount to an avoidance of justice. There is a clear message that particular actions are is unacceptable. At the same time, however, support is given to the person who has done the harm.
The roots of restorative justice can be found in the histories of people around the world. In North America, for example, aboriginal communities have employed this approach for a very long time. According to Dennis Cooley from the Law Commission of Canada , the movement towards restorative justice in Western legal systems began in the early 1970s with two Canadians from Kitchener, Ontario. Mark Yantzi and Dave Worth asked a judge to allow two young offenders, arrested for a night of vandalism, and their victims to take a key role in deciding the most appropriate method of responding to the harm done. This was the beginning of the Victim Offender Reconciliation Program. Since that time, there have been significant developments in the area of restorative justice.12
Restorative justice can be achieved through various practices including mediation, sentencing circles, healing circles, and community conferencing. The selection of a particular method or approach is incident-driven. Although there is no blueprint for restorative justice, it is essential that the process be guided by a clear set of principles.
Participants in the Restorative Justice Approaches to Elder Abuse Project reached a consensus on the following principles (adapted from Gallagher13) to guide their practice of restorative justice:
We believe that people have the right to:
Safety: participants have a right to live in safety and security. All participants need both to feel and to be safe before, during, and after the restorative process. Measures must be in place to ensure an appropriate balance of power among the participants, and the envisaged solution needs to include the prevention of further abuse.
Confidentiality: participants determine for themselves what personal information may be shared with others.
Dignity and Respect: cultural diversity, and the values and preferences of participants, must be respected. Individual stories are to be received without judgment by police, social workers, lawyers, facilitators, or health professionals.
Autonomy: participants have the right to determine and control their own affairs. Participation is voluntary, and all participants have an equal voice in the process.
Access to information: participants receive all the available information that they need in order to make meaningful and informed decisions. This includes information about the restorative justice process, the judicial process, community resources, and how to access them.
The least restrictive interventions: interventions should be the least restrictive of the individuals rights, abilities, and personal liberties.
The Restorative Justice Process
How is justice realized using a restorative approach? This can be illustrated with reference to "Mrs. Smith." We may imagine that in this situation, a referral is made to Community Justice Initiatives. Anyone affected by the abuse including Mrs. Smith, her son, health care professionals, police, or community members could initiate the referral. Initial screening takes place at intake to determine whether all parties consider it safe to proceed; whether the person who caused the harm accepts responsibility for it; whether all parties are willing to participate; and whether the older adult is capable of understanding and participating in the process. In the event that concerns emerge at this stage, a Screening Committee will review the case before it proceeds. After the screening, two facilitators are assigned to the case.
A facilitator contacts Mrs. Smith to hear her story and to gain an understanding of the conflict:
Mrs. Smith might report that she is sad and angry that her son took the money. She thought that she could trust him. Lately her son has been edgy. He yells at her a lot. He seems to be drinking more.
A facilitator contacts Mr. Smith to hear his story:
Mrs. Smiths son might say that he feels very badly about what he did. He really loves his Mom, but things have gotten out of hand. She is increasingly difficult to care for, and flatly refuses to move into a retirement home. He is over there every day and sometimes during the night, which is causing a fair bit of strain on his marriage. His business is also in a slump. To top it all off, his own son has just moved back home because he could not find a job. All these stresses have caused him to start drinking again. He is not sure how to get things back on track.
With permission, the facilitators also contact supporters of Mrs. Smith and her son to gain a broader perspective on the situation. They may discover, for example, that:
Mrs. Smiths minister does not know how to support this family, one which has been active in the church for a long time; Mrs. Smiths sister does not trust the son; Mrs. Smiths daughter does not think her brother is a criminal; the sons wife did not know about the theft of money but is fed up with the hours of care that he provides for his mother.
Such complexity is typical. For this reason, prior meetings with the various interested parties are important. To prepare, the facilitators need to meet separately with the son and his supporters, as well as with Mrs. Smith and her supporters. The son may need to resume attending AA (Alcoholics Anonymous) meetings, while the mother may need to find a support group that will empower her to speak about her situation. It may be weeks or months before everyone feels safe enough to come together and participate in a restorative justice circle.
Eventually, however, the facilitators bring everyone together to discuss why the situation happened, how to repair harm, and how to prevent further harm in future. Each group of supporters sits close to the person whom they are supporting. The circle is opened with a ceremony or prayer. Using a technique borrowed from First Nations practice, participants are instructed that they may speak only when holding the "talking piece" (a feather or other symbolic object). They must speak truthfully, and from the heart:
Mrs. Smith talks about her love for her son and how sad she is that he has stolen money from her. She admits that she is sometimes afraid of him. She speaks of prior abuse that she has suffered, and of her husband having abused her son. She is sorry she was not able to prevent it. The son apologizes to his mother. He knows that he has taken his frustration out on her, but wants to get his life back on track. He will continue with AA, and agrees to a plan to repay the funds he misappropriated. Various supporters indicate ways in which they will be able to help. For example, church visitors will provide caregiver relief hours for the son each Friday and for the grandson each Saturday. The sister will assume power of attorney.
In a scenario such as the one envisaged here, justice is realized when the people affected by the abuse reach a consensus about:
Why the abuse happened (e.g. high care needs, cycles of violence, alcohol abuse, care-giver burnout, financial needs, etc.);
What represents meaningful reparation for the harm done (e.g. an apology, a repayment schedule, community work, etc.);
What needs to happen to prevent further harm (e.g. Respite care, purchase of additional homemaking hours, change in power of attorney, assistance with a business plan, etc.)
The circle may close with a prayer and be followed by refreshments.
The facilitators role in the circle is to help the group stay focussed and productive, and to ensure 1) that everyone present is heard, 2) that the final agreement addresses relevant needs and is workable, and 3) that the group, while denouncing the offenders behaviour, shows support of that individual. The facilitator does not, however, contribute to the content of the group discussion.
Mrs Smith and her son are contacted three months later, and again after six months, in order to determine whether or not the guiding principles have been followed, the abuse has stopped, there is an improvement in well-being, etc.
Within the context of the Restorative Justice Approaches to Elder Abuse Project, follow-up evaluation is directed by Dr. Michael Stones, with funding from the Law Commission of Canada and the National Crime Prevention Centre , which is a programme of the Canadian federal Department of Justice.
Faith Community Response
How does the faith community respond? In his book, Changing Lenses, Howard Zehr highlights the Hebraic concept of shalom. He indicates that shalom describes the way in which God intends the human community to exist and to conduct its various relationships. That is to say, the concept of shalom refers to peace both between people and God and between people themselves on a variety of levels. God intends people to live in a condition of "all right-ness" in the material world: in interpersonal, social, and political relationships; and in regard to personal character.14 Hence, in this context, it is important that those affected by elder abuse come to experience the condition of shalom.
To this end, among the questions that members of different faith communities might ponder are the following:
To what extent does your community embrace the philosophy of restorative justice?
Is your community committed to accountability and restitution or repair of harm?
Would your community be able to support the "Greens" and "Smiths" on their path to reconciliation?
Is your community able to listen to their various stories without passing judgment?
Is your community able to walk with the older adult who has been abused?
Is your community able to support the person who has caused the harm?
How might your community assist these people as they attempt to reintegrate into the church community?
Is the community silent, or does it speak out against the harmful behaviour that is often a hidden crime?
Local faith communities have been and continue to be integral to this particular project. For instance, the Mennonite Central Committee has been supportive and actively involved in this initiative since inception. They in turn facilitated contact with the First Nations Community. They also brought to the table their twenty-five-year history of active involvement in restorative justice. In addition, various cultural groups requested that outreach to their communities should be through their respective faith and cultural leaders. We have begun this process with respect to four communities in particular: South East Asian, Hispanic, Romanian, and Portuguese.
The faith community is an integral part of the complex network of supports required to meet the diverse needs of an older adult who has suffered abuse. Its role is to provide support both to the individual who has been harmed and to the person who did the harm, as well as addressing the underlying causes of abuse, in the interests of long-term prevention. Participation by faith communities is essential to sustaining a restorative justice approach to elder abuse. Indeed, I believe that the faith community is pivotal to the prevention and resolution of elder abuse in general.