Re-conceptualising the Theory of Justice and the Needs of Victims of Sexual Violence in Nigeria: an Appraisal of a Victim Centered Approach

1.1 The concept of Justice

The concept of the term ‘Justice’ lacks a generally acceptable definition (Thursday and Duson, 2021). The meaning of justice is dynamic, and a range of justice paradigms have emerged in the recent administration of criminal justice and practice worldwide (Iliadis, 2020a). Justice has always been defined from different perspectives. Over the years, justice has been perceived more as a punishment, particularly through the practice of retributive justice within the Nigerian Criminal Justice System. However, with the grappling need to shift the focus away from offenders to victims to meet their interest and justice needs, the world is agitating for pathways for criminal justice reforms. The raging question the study tends to answer is whether justice for victims of sexual violence should be solely retributive given the adversarial nature of criminal justice in Nigeria. Black’s Law Dictionary (Garner, 2014) defines justice as follows:

Clark (Clark, 2010) asserts that the expectations of sexual violence victims’ justice are multi-layered and vary depending on a certain range of factors relating to the circumstances of the offence, the individual victim, and the victim’s relationship (if any exists) with the accused. Furthermore, according to Clark, victims seek different explanations and justice systems to assist them in regaining the power they once had and making amends for the harm they have suffered. This is a result of the varying demands and expectations of victims. Jordan (Jordan, 2008) argues that victims of sexual assault may not always receive justice from the traditional legal system. The rationale was based on the idea that victims may be reporting in order “to regain a sense of personal safety, and to have their experience validated,” rather than always expecting the criminal to be apprehended and found guilty (Clark, 2010). These conclusions are corroborated by Kelly (Kelly, 2020), which involved the interview of 100 rape victims in Washington, DC. Kelly discovered that although victims welcomed the idea of the offender/accused being found guilty, a conviction ultimately had little impact on their level of satisfaction with the legal system.

According to Aristotle, the search for justice has not been accomplished (Durant, 1961). His definition acknowledges universal, distributive, and corrective justice. In Aristotle, Distributive Justice refers to the distribution of all resources and goods in equal measure. His corrective justice promoted the rectification of imbalances. As Cardozo, a one time justice of the Supreme Court of the United States said, ‘justice though due to the offender is also due to the victim’(State of Punjab & Bakshi, 2015).The concept of fairness must not be extended to the extent that it is reduced to a thin thread. In his view, there must be a balance between the rights of offenders and victims. If we remove justice from the criminal justice system, we are left with a system that rewards only the criminal (Durant, 1961). To ensure that justice is not removed from the criminal system and that a system was only the perpetrator’s benefit, the role of the victims has started to change dramatically in the criminal justice system of nations in the last few years by providing them with an important place in the criminal justice system and by affording victims a better chance of being compensated either through civil action or criminal compensation or indemnification (Cuomo, 1992).

In the case of Jago v. District Court of New South Wales, Brennan held that justice can be better served when victims’ interests are considered in proceedings (Jago & District Court of South Wales, 1989). According to the Australian Institute of Family Studies (AIFS) (Iliadis, 2020b) victims’ perceptions of justice ‘are formed with reference to the totality of the victims’ experiences within the process.’ This study examined the effects of victim-focused reforms on victims’ criminal justice experiences at a multi-jurisdictional level. The AIFS concluded in their research that the experience of the process defines justice, not the result of the process. For most (victim) participants, getting (justice) meant getting knowledge, affirmation, and respect. There has long been acceptance that the only way to perceive any kind of justice is to be convicted, but from recent research, this may not always be the case.

Drawing from the above scholarly works, justice has no generally accepted definition, but one thing is recurrent in most definitions: equality and fairness. Therefore, this study considers justice as a process that responds to the needs and interests of victims at every stage until an outcome is reached, which puts the victim in a state of wholeness and acceptance. Invariably, whatsoever outcomes so far, the victims climax to a state of wholeness that itself is justice. In addition, the pursuit of retribution justice is neither the primary nor the only element that influences a victim’s degree of satisfaction within the criminal justice system. Therefore, a deeper comprehension of victims’ justice requirements is required to provide a more thorough and nuanced explanation of the variables influencing and forming the perceptions of justice held by victims of sexual violence. Some of these requirements are access to justice, the assessment of rights, and theories underpinning the study.

1.2 Who is a Victim?

The United Nations Declaration of Basic Principles of Justice defines a victim as:

Black’s Law Dictionary defines victims as individuals affected by crime, torts, or any other form of wrong (Black’s Law Dictionary, 2004). In the words of Karibi (Karibi, 1990), a ‘victim’ of a crime is any person, dependent, or institution that has been harmed by an offender. Dignified treatment refers to the proposition that the victim should be treated with ‘compassion and respect for their dignity’ and secondly, that the victim should be endowed with ‘the right of access to justice and that justice be bestowed on the victim with haste for the wrongs that the victim has had to endure. However, the notion of compensation starts when restitution ends and looks forward to the possible, though remote, benevolence of States. If compensation is not available in full from the offender or from other sources, states should strive to ensure that financial compensation is provided to the victims, their families, and dependents, and to other applicable forums, including trust funds, where necessary. It should be noted that, as has been seen, the trial chamber of the ICC in the case of Prosecutor v. Thomas Lubanga Dyilo (Prosecutor & Lugbanga Dyilo, 2008) extended the definition of the victims under Rule 85 of the Victims Declaration to mean any person who had ‘suffered harm as a result of the commission of a crime within the jurisdiction of the Court,’ but this decision was overturned by the Appeals.

1.3 Victim-centred approach

The UN, in its Security Council Resolution (Resolution 2468) that was passed in April 2019, admitted there are loopholes in the policies and laws that seek to address sexual violence, which requires a victim-centered approach (Ojo et al., 2021). Recently, the resident representative of the UNDP, Mr. Simon Ridley, recommended that all EU-UN interventions should align with victims’ modality, norms, and international standards (SGBV, 2017). Further, General Recommendation 35 of the CEDAW Committee also considered that all the measures for addressing GBV should be adopted with an approach that focuses on the victim/survivor, the women’s human rights approach, which embraces agency and autonomy for women and girls of all ages, and developing the capacity of girls from childhood to adolescence. Furthermore, it is crucial that the measures are developed and adopted with the involvement of women and their specific context with regard to women, discriminated based on multiple reasons.”

Regardless of the affiliation of the accused perpetrator, the victim-centered approach places the rights and dignity of victims, including their well-being and safety, at the forefront of all efforts to prevent and respond to sexual exploitation, abuse, and harassment. From a victim’s perspective, justice may serve many other purposes, and being victim-centered recognizes that justice is multifaceted and subjective. For some victims, justice may mean punishment and conviction for others; it may be tied to dignity, truth, or the ability to tell one story in a safe space. Furthermore, in adopting a victim-centered approach, justice can be a vehicle for empowerment or a pathway towards simply feeling happier, healthier, and reconnecting to the community. It could also infer an ability to seek divorce and leave a violent spouse or acknowledgement the harm done to them.

According to South African activists Dyantyi and Sidzumo (Decker, Wood & Kennedy, 2020), in addressing how the system strips victims of power, a victim-centered approach is used. It refers to the challenges they encounter in terms of these support systems, assists them in engaging with such systems in a way that does not re-entrench their disempowerment, and centers on their re-humanization throughout this process. In reality, the Nigerian Criminal Justice System has little regard for victims – even victims of sexual violence – who may be viewed as inconvenient to a smooth prosecution, yet often serve as a witness for the prosecution (Manty, 2001). This is because the NIS criminal justice system is more offender-focused than victim-focused. By being offender-centered, the system places more emphasis on guilt, punishment, and offender rights. The needs of the victim have never been considered, and the question has never been raised. After the prosecution of the criminal trial, the offender, if found guilty, is punished by one form of punishment or the other. This ends the pursuit of justice. A victim-centered approach is recognized as an international best practice in handling victims under the Criminal Justice System. It is a grand attempt to alter the criminal justice process so as to eliminate the principle of innocence until proven guilty, raise chances of conviction, and recast the process as a vital mental health intervention for self-identified survivors. As pointed out by Flynn, victim-centered approaches have been formulated to meet the special needs of vulnerable and threatened victims, including sexual violence victims (Iliadis & Flynn, 2018). Acknowledgement of the special needs of sexual violence survivors aligns with the general mission of adversarial systems that state that justice has been receiving more emphasis on equality, fairness, and respect for the rights of the victim and offender. In its implementation, victimology must employ a multi-sectoral response that encompasses medical treatment; psychosocial services such as mental health services; security services that include police; other law enforcement responses and protection measures; and judicial and legal services.

1.4 Sexual violence

It is pertinent to note that the terms sexual violence, sexual assault, and rape will be used interchangeably in this research. According to Pedersen, Sexual violence is widespread worldwide (Pedersen, 2020). Sexual violence affects women, girls, men, and boys. Sexual Violence has been described as an act of violence that exposes a victim to the risk of physical harm, psychological harm, emotional harm, pregnancy, and STD. As highlighted by Peterson et al., sexual violence is a recognized public health concern, and the physical and mental health consequences of sexual violence, either in the short or long term, include increased risk of sexual and reproductive health complications, including suicide or contracting HIV (Peterson et al, 2017). For instance, in Ejieke Maduka v. Microsoft Nigeria Limited and three Ors (Ejieke & Microsoft, Nig. Ltd, 2012), the National Industrial Court of Nigeria recognizes that sexual harassment violates the provisions of Section 34 (1) (a) of the CFRN, Articles 2 and 5 of the African Charter asserting that the dignity of persons is a human right and that degrading treatments are prohibited (Ejembi et al., 2020). The WHO also noted that sexual violence has severe effects on physical and mental health as it leads to sexual and reproductive health issues with short- and long-term effects such as HIV/STIs, pain, illness, pregnancy, loneliness, and PTSD. The type of sexual violence includes rape, which can be caused by an acquaintance or a stranger, stalking, sexual harassment, forced trafficking, female genital mutilation (FGM), child sexual abuse, and forced marriages. For instance, it has been estimated that one in every five women across the globe will be raped or have attempted rape in her lifetime (UN, 2008).

1.5 Theoretical framework

Here, theories that support the applicability of a victim-centered approach are analyzed. The theories will provide a jurisprudential analysis of why needs and rights are relevant in reconceptualizing justice for victims of sexual violence in Nigeria within the Criminal Justice System. Theories such as Feminist, Restorative, therapeutic jurisprudence, and all inclusive theory will be examined.

1.6 Feminist theory

In recent decades, feminist activists and women’s movements have fought against patriarchal structures and systems that support violence against women and justify the legal system’s treatment of victims of sexual assault as a means of oppression, undermining women’s equality, freedom, and access to the justice system. The social, legal, and political contexts defining responses to victims of gendered violence have also been criticized by these movements. Under this theory, the researcher will look at feminist critiques of the criminal justice system’s response to sexual violence and their call for a more efficient justice system for victims of sexual violence. Since criminal justice is always found to be incapable of responding to cases of sexual violence, feminist scholars have recently shifted their focus to how justice can be sought outside the legal system (Daly, 2017). Feminist advocates and victims’ rights groups have also persisted in reforming the social, legal, and political contexts for responding to victims, especially those of sexual offences, which has led to remarkable changes in how victims are seen and treated in the criminal justice system as a result (Iliadis, 2020b). This has led to further enhancements in the social and service rights of victims associated with information, compensation, VISs, and security features, including video remotes and restrictions on questions about the experiences of complainants of sexual assault during trials. Feminist theories are quite diverse, and it is possible to identify some that are contradictory to each other. Nonetheless, the focus of most feminist interferences, including those that contradict each other, is to respond to the needs and justice issues of survivors of sexual assault. According to Zehr (Zehr, 2003) victims face various demands. Thus, they require opportunities to express their emotions. They must be compensated for the losses. Victims require justice: they require an ethical declaration of their innocence, identifying the guilty party, and emphasizing that this should not have occurred to them. These require responses to queries that bother them. Since perpetrators have taken their authority away, they require it to be restored.

O’Connell (O’Cornell, 2015) opines that despite many changes in the role and level of recognition granted to victims of sexual assault, they continue to experience alienation and exclusion from the prosecution process. To advance the above, O’Connell concludes that victims’ rights remain a secondary consideration in the legal system and that there is a need for victims’ reform. Daly calls for new and more ‘innovative’ ways to address sexual violence issues. She proposes restorative justice wherein she agrees that victims of sexual violence need a justice mechanism that will offer them an ‘informal’ environment in which to discuss the impact of the crime upon them and redress the harm (Daly, 2011). Hudson (Hudson, 2002), is of the opinion that the Criminal Justice System has failed to eradicate the causes of Sexual Violence. Instead, its practice has served to maintain its prevalence. Consequently, while attempting to convince victims of its effectiveness, the overall Criminal Justice System has made little progress up to this point in time. Another area neglected by the Criminal Justice System is the need for victims of sexual violence. However, other authors have noted that this is likely because there is limited comprehension of what it means to achieve justice for victims and what the requirements of sexual violence victims are (Herman, 2005). Major Proponents of Restorative Justice exclude punishment as part of Restorative Justice because it does not seek to cause any form of pain/harm to an offender but rather aims to repair the harm done (Zernova, 2016). As a result, Restorative Justice has been described as a soft option or ‘cheap justice’ (Coker, 1999). If this is the case, it becomes impossible to believe that deterrence theory can stand for this idea. This raises the question whether Restorative Justice can contain the public’s wrath of Sexual Violence. Similarly, the broader category of the feminist school holds that reparative steps are inadequate in the endeavor to stigmatize the offence and deter wrongdoers. Specifically, feminists argue that extending the use of Restorative Justice to this area will reduce the gains made over the years with the aim of ensuring that Sexual Violence is addressed seriously (Naylor, 2010). By contrast, supporters of this practice focus on the shortcomings of the Criminal Justice System in addressing the multiple needs of victims of Sexual Violence. Opponents have predicted that the core principles of Restorative Justice, because the procedure is not mainly legal, will increase the number of reported Sexual Violence cases by victims where the offender is a relative. Furthermore, most feminist scholars such as Pali (Pali, 2017), Zinsstag and Keenan (Zinsstag and Keenan, 2017) affirm the assumption that there is no permissive reason to exclude restorative justice in sexual violence cases when certain standard precautions are taken, including culturally sensitive, trauma-informed, and evidence-based approaches (Sardina & Ackerman, 2022).

1.7 Restorative Justice Theory (RJ)

There have been discussions regarding the application of RJ in Sexual Violence over the last few decades. Some of the arguments that have been made include the following from the victim and the society. Some arguments lie in the possibility of encounters between an offender and victim (Umbreit, 1999). More importantly, feminists argue that the use of RJ in Sexual violence will reverse the gains made in the last few decades to address sexual violence (Naylor, 2010). On the other hand, proponents of this practice point to the shortcoming of the Criminal Justice system in addressing the multifaceted needs of victims of Sexual Violence, thereby supporting RJ. Generally, when one is faced with the concept of using RJ for Sexual Violence cases, what one would usually wonder is what can be rebuilt after a crime of Sexual Violence has been committed? In the usual construction language, ‘reconstruction’ implies that a victim can be brought back to his or her previous position. This question may not be asked in the case of property offences, since replacement of the item will put the victim back to the state he was before the commission of the offence. However, for cases of sexual violence, the question that follows is, is it possible to restore a victim of sexual violence? When asked, Daly (Daly & Curtis-Fawley, 2005) opines that people end up having a very narrow definition of the word ‘restorative’. She points out that RJ is more a label that refers to a range of activities than about ‘restoring.’ Critics counter argues that there are positive features of RJ that include the fact that the process is non-adversarial, and thus the reporting rate of offences of Sexual Violence, particularly by relatives, will rise.

Despite the potential benefits of RJ for victims, it is also important to note that RJ may indeed recreate some of the problems identified with the Criminal Justice System. As Ptacek put it in her own no-nonsense manner, “restorative practices were not designed to address crimes of violence against women.” The main strain of this argument is that RJ replicates victimization. The author recognizes that restorative justice serves a significant purpose in various settings, such as juvenile crime, family law (if there is no violence involved), and probate issues. Those who support its use in other cases, however, object to adopting a restorative model for sexual violence because of its possible effects on victims.

The major proponents of the use of RJ for Sexual Violence affirm that the criminal trial process has been widely accepted for its ability to traumatize victims because of the existing rules that allow for a language of denial. This normally occurs when defense counsel is through the defense examination process. On the other hand, the restorative process (where appropriately implemented) should prevent victims’ revictimization as well as ensure that either the offender or the community does not adopt victim-blaming attitudes (Koss, Bachar & Hopkins, 2003). In the same regard, the process helps the victim recount her ordeal in a safe environment, with full support accorded to the victim (Edwards and Haslett, 2003). This cannot be said of the criminal justice process, whereby the voices of the victims are only considered when they are invited to testify. Finally, RJ can offer more options to different kinds of victims, some of whom do not wish to prosecute the offender, and it is also flexible in addressing the cultural and religious background of a victim. For instance, Delta State Law on Administration of Criminal Justice whereby the law provided for the use of digital/video conferencing for cross-examination of victims. The other powerful argument of antagonist scholars is whether Restorative Justice can act as a deterrent. This has been opposed to punishment because RJ does not use any form of harm/pain in an offender but aims to repair the harm. Hence, it has been described as a soft option or ‘cheap justice’ (Coker, 1999). If this is the case, he argues that it is unlikely that deterrence theory can be applied to this concept. Thus, questions arise as to whether RJ can capture social attitudes towards Sexual Violence. In response, advocates have posited that while the idea cannot guarantee the actualization of general prevention, it may be capable of producing individual prevention (Cunneen and Hoyle, 2010). Depending on the level of understanding of the victim and the degree to which the abuser visibly experiences the social condemnation of the members of his society, this kind of ‘shaming’ may marshal the society’s condemnation of this act (Braithwaite & Daly, 2013). It may therefore lead to individual deterrence. According to King (King et al., 2014), many offenders, especially those who have had an opportunity to meet victims during the program, stated that it was uncomfortable and even more difficult than ordinary retribution. Being given a direct responsibility to take personal blame for the injury to which they contributed can be much tougher than facing a judge and a nameless jury.

1.8 Therapeutic jurisprudential theory

Generally, therapeutic justice is a framework that requires the court to use and promote healing for victims of crime and offenders (Imiera, 2018). The involvement of therapeutic justice in the criminal justice system emerged in the 1990s during David Wexler’s exploration of ways to harness therapeutic power within the criminal justice system (Wexler, 1990). Therapeutic Justice suggests that a legal process must be responsive to the impact of its consequences on parties involved in the criminal justice procedure (Wilson, 2021). It further advocates how the law can be therapeutically applied to reform the Criminal Justice System. In addition, therapeutic justice holds that something as simple as the approach used by a judicial officer to handle a case influences a person’s welfare. It targets the special demands of the people involved in particular circumstances of crime and challenges them to join a personal and confidential process in which they can think about what is required to rebuild their lives. Therapeutic justice seeks to determine the effect of substantive laws, legal rules, legal procedures, and the behavior of legal players, including judges, lawyers, court staff, and service providers, on the psychological and emotional well-being of justice system participants (Babb and Wexler, 2018). Therapeutic justice has appeared as a new criminal justice model (Daly and Marchetti, 2012); it is a reformist paradigm since it postulated that evidence from behavioral and social sciences should inform the development of advocates of therapeutic jurisprudence, affirming that extending recognition to the voices of crime victims improves their mental state and condition (Freckelton, 2008). The poor treatment and violation of crime victims in the criminal justice system only strengthens the weaknesses of the justice system, which marginalizes the suffering of crime victims and thus increases it (Imiera, 2018). Actually, actions taken against the offender help a lot in responding to the pain felt by crime victims and their families due to the crime. Instead, healing is a complex, continuous, and time-consuming process through which crime victims need to engage in proactive efforts to restore their well-being in the aftermath of a crime.

In addition, although Therapeutic Justice may advance a new way of administering justice, Van der Merwe opines that the onus and responsibility are on courts to impose balanced (Van der Merwe, 2007). Therapeutic justice is significant to today’s modern-day criminal justice adjudication system as it builds on collaborative and consensual processes, not only to determine the crime but also to assist in offender retreatment and rehabilitative programs that reduce recidivism (Iwuagwu, 2003).

Pradeep concludes that therapeutic justice is significant in that it releases support to crime victims and, in turn, helps provide relief from strong or repressed emotions (Pradeep, 2015).

1.9 All Inclusive theory

An all-inclusive theory of justice will entail a system that allows victims to choose a process within the Criminal Justice System that will effectively address their needs and situations. The above theory is based on the notion that victims themselves are in the best position to determine the approach that is most appropriate to their circumstances. Here, victims are offered three choices, and the requirement that a victim choose between two options must be made by her and not by her attorney or judge, although the victim may be advised. The first option will be for victims who may wish to confront their abuse informally by opting for restorative justice. Through this channel, a victim can arrange a meeting with an accredited Restorative Justice organization to meet with him/her, the offender, and members of their respective communities in accordance with any of the models of Restorative Justice, which shall be discussed in chapter four of this thesis. For instance, this approach may be useful in the case of an adult victim or a victim of child sexual abuse because of the high rate of failure when prosecuting such a crime owing to the delay in the time in which the offence was committed. The second option concerns those who want to pursue justice through the Criminal Justice System. Criminal charges are initiated against an offender.

The third option is a combination of both retributive and restorative justice. This approach addresses victims who want to engage in restorative justice and those who want retributive justice. Issues regarding the question of deterrence will also be discussed if this approach is adopted because both individual and general deterrence can be affected. The use of both retributive justice and restorative justice shall give structure to the victim-centered approach in addition to addressing some of the safety concerns of victims. For example, an order of protection may be made against the offender and will only be lifted once parties are sitting for a restorative justice program. Likewise, the Criminal Justice system machineries of enforcement can also be utilized to enforce restorative agreements between parties.

1.10 Lessons from Other Countries

This study examines a few practices in South Africa and Australia. These Countries were selected because of their common law similarity with the Nigerian Legal system and the practice of the adversarial system of justice. Some of the lessons learned are as follows.

1.10.1 South Africa

In the case of S & Matyityi, Supreme Court of South Africa (Matyityi, 2011), it was noted that there is a need to change and adopt a more victim-centered approach in the criminal justice system. The Court’s decision shows that has a legitimate and important purpose; hence, the rationale of rape shield provisions and, more importantly, Rights in the Bill of Rights are not exclusively for accused persons (Prinsloo & Bramley Children’s Home, 2006). In a small measure, South Africa was able to introduce the following:

The legislative goals of rape shield laws are targeted for a number of social reasons. One of these is to shield victims of sexual offence victims from being victimized under the legal process as the process can be demeaning, intimidating, and humiliating for the complainant (Jameelah, 2016). Rape shield laws also protect the right of the administration of justice by protecting the constitutional right of the complainant from humiliation and violation of her right to privacy to such an extent that she fails to testify effectively (Smythe, 2005). In another authority, Sv Mothopeng (Mothopeng, 1979), the court reaffirmed that there is a need to properly administer justice by ensuring that if a witness wanted to testify, he or she should not be able to be retaliated against. Decreasing secondary victimization is connected with enhancing the reporting of sexual offences. The Court in the case of S v Staggie (S & Staggie, 2003) pointed out that women reporting sexual offences ought to be afforded greater assistance to entice more women into becoming witnesses in such proceedings if they knew they would not be exposed to massive embarrassment and humiliation.

1.10.2 Australia

Some of the victim centered approach adopted in Australia are as follows:

2.1 Recommendations

Having examined a few of the interventions in South Africa and Australia, the following are recommended: