性暴力案件運用修復式正義之研究――紐澳經驗

Restorative Justice as a Pathway to Justice for Sexual Violence: Lessons from the Experiences of New Zealand and Australia

隨著 #Me Too 等運動鼓勵性暴力事件之被害人勇於發聲，刑事司法體系也應更加精進其處理性暴力案件之程序與模式，以符合當事人對於正義之多元需求。修復式正義雖已引進我國有十年，並於 2019 年正式入法於刑事訴訟法、少年事件處理法、監獄行刑法，然而，運用修復式正義於性暴力事件之實務經驗和學術討論仍付之闕如。有鑑於此，本研究透過回顧與分析三個在紐西蘭和澳大利亞以修復式正義模式處理性暴力事件之方案及相關研究，供我國發展相關政策與操作模式之參考。經本研究分析發現，紐澳經驗顯示在謹慎之風險評估和完整之準備及配套措施下，著眼於被害人的賦權與療癒，以及加害人的責任承擔與行為改變之修復式正義模式，多能妥善處理性暴力事件和協助當事人復歸社會。六點主要建議如下：（1）處理性暴力事件之修復式正義模式應採被害人導向及彈性的程序；（2）處理性暴力事件之修復促進者應受過完整之性暴力專業特殊訓練；（3）建立性暴力事件特殊性設計之處理指引及風險評估原則，並將本土文化特性納入考量；（4）完善性暴力案件當事人支持計畫；（5）建立「道歉信銀行」機制；（6）檢討修復式正義作為刑法量刑輕重標準及假釋要件之可行性。

While victims/survivors of sexual violence are increasingly encouraged to break the silence in society, the criminal justice system should advance its practice in this area. Restorative justice, which focuses on the healing of victims/survivors and the rehabilitation of offenders, has promising potential for addressing sexual violence cases. Although the philosophy of restorative justice was introduced in Taiwan over a decade ago and was embedded into the Code of Criminal Procedure and the Juvenile Justice Act for the first time in 2019, Taiwan still lacks practical experiences and academic discussion on dealing with sexual violence cases through the restorative justice process. Therefore, this research contributes to this field of study by reviewing sexual violence-related restorative justice programs, two in Australia and one in New Zealand. Looking at the experiences in both countries, results indicate that restorative justice can meet both parties’ needs in sexual violence cases if there is sufficient preparation and careful assessment. Six suggestions are as follows: (1) The restorative justice process in sexual violence cases should be more flexible and victim-oriented due to the complex nature of sexual violence cases; (2) Facilitators who are responsible for sexual violence cases should receive special training in sexual violence issues such as power dynamics and trauma-informed knowledge; (3) Tailored restorative justice guidelines and risk assessment principles for sexual violence cases are recommended, with the consideration of local culture, in order to evaluate that restorative justice is an appropriate option for participants, ensure that participants are well prepared, and prevent participants from second victimization; (4) It is necessary to run offender behavior change programs and victim support programs with restorative justice conferencing in sexual violence cases, which plays a crucial role for the offenders and victims’ reintegration into their communities; (5) It is worth considering the establishment of an “Apology Letter Bank”, which does not only provide offenders a mechanism to express their remorse and apology to victims, but it also give victims more room to manage their healing process and their response to offenders; (6) Based on one core value of restorative justice, people have the right to address their conflicts with those involved. Accordingly, it is worth considering adding “the positive outcome of restorative justice conference” as a sentencing criterion in Article 57 of the Criminal Code in Taiwan, with the purpose of valuing victims/survivors’ voices and encouraging offenders’ effort on restoration.