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May 27, 2020

Our Criminal Justice System Won’t Stop The Next Bois Locker Room

Text by Anandita Bhalerao. Illustrations by Mrudula Kuvalekar

Our existing legal system is ill-equipped to stem the growing incidence of cases such as the Bois Locker Room. Arti Mohan, a lawyer and restorative justice program officer and Saumya Dadoo, a feminist legal researcher, discuss a kinder, more inclusive alternative.

It’s been over three weeks since students of an elite South Delhi school exchanged photos and lewd comments about their female classmates on the ‘Bois Locker Room’, a now-infamous Instagram group chat. The incident provoked widespread condemnation on social media. As women expressed their anger, it became clear that—as with every public moment of reckoning in the #MeToo era—almost everyone had a Bois Locker Room story of their own. This was followed by calls for legal action to be taken against the boys involved, most of them underage. A common thread in all of the responses was the urge for some sort of justice to be served.

But what does tipping the scales really look like? Is it police action, imprisonment, or being produced in a court of law? Should we be pushing for the school to take disciplinary measures, or is naming and shaming on social media enough of a deterrent? Arti Mohan and Saumya Dadoo are two women among a small but growing community in India that believes such punitive responses might actually be doing more harm than good.

Mohan is a lawyer and restorative justice program officer at the Counsel to Secure Justice (CSJ), an organisation that works with children harmed by violence in India and is exploring restorative justice as a viable response. She has designed and facilitated restorative processes for children in conflict with law, working with both, people who’ve been harmed and people who’ve caused harm. She has been a lawyer for children who have been abused and also spent time working with adult women in prisons across the country. Dadoo is a feminist legal researcher with interests in prison history and criminal justice. She runs the Detention Solidarity Network (DetSolNet), an online space to critically engage with the structures and experiences of detention in India. She has previously worked on prison reform and violence against women.

They’re mapping the blueprint for a better, more empathetic world. Below, the two discuss the dangers of call-out culture, the legacy of the #MeToo movement, the gaps in our existing criminal justice system, and a promising alternative.

What were your instinctive thoughts on hearing about the Bois Locker Room? Did they later evolve based on your experiences and the kind of work you do?
Saumya Dadoo (SD): My first response was of course a lot of anger in looking at the kinds of conversations the boys were having. I was also very frustrated at the backlash on social media towards women who were feeling angry about the case—it made me wonder why we don’t have space for women’s rage. And eventually when the public sentiment shifted towards shaming and calls for punitive responses, what I thought more about was how, as a country, our only way of thinking that we are taking gender-based violence and rape culture seriously is if the police are involved, or if there is some form of conviction in a court of law.

Arti Mohan (AM): It was a heart-wrenching incident, to see so much pain from the people who have been impacted by it. What I was troubled by were the calls for revenge and punishment—not just for the children but also for their families. That call-out culture and desire to shame disturbs me, because working within the system I’ve seen how that often causes more harm. Harsh punishments are not the same as true accountability. While there’s no denying that the boys’ actions were harmful and that they were wrong, it’s worth acknowledging that they happen in a broader social context that has existed for a while. Based on what I’ve seen from the kind of work I’ve done, this issue now needs to be addressed holistically, rather than simply pinpointing 30 people and calling them out.

Is our current legal system equipped to deal with a case like this? Where is it failing in meeting the needs of the victims and ensuring the offence is not repeated?
AM: Under the existing legal system, the trial is fought between the State and the accused. The victims may testify in court as witnesses for the State, but they don’t have a real voice or a say in what happens to them. The trial can be delayed and prolonged trial with no certainty of convictions even where there is evidence. To add to that, not once do the victims receive acknowledgment from the person who caused harm—there’s no space to do that. No one asks them what is it that they really need.

SD: Because reporting an offence and going through the legal system is so difficult, the more stringent the punishment, the more it dissuades the victim from going through the criminal justice system. So that creates an even greater culture of silence about the kinds of harm that you’ve faced. And one of the key things that any survivor needs is some sort of acknowledgement, affirmation and validation of the harm that they’ve faced, which they are unable to find under the current system alone.

AM: Also, since the trial goes on for very long, just the process of testifying can be quite traumatising, and the conviction rate continues to be quite low. And like Saumya mentioned, there is a view that harsher punishments like the death penalty may deter reporting of cases, because often in incestuous cases, if it is the father who has abused the child, they don’t want them to be killed, they just want the abuse to stop. As a result, the case may go unreported.

What is restorative justice, and can it offer a better solution?
AM: The first thing to understand about restorative justice is that it is based on the consent of everyone who participates. There is a lot of work that goes into meeting each participant where they’re at, rather than pushing them to take accountability, in a sense.
Basically, restorative justice tries to create an alternative space where we put the person harmed at the centre, while at the same time taking into account the person who caused harm. It operates on the belief that when someone is harmed, there are needs that arise from that, and it is our collective responsibility to meet those needs and repair the harm. The process can also involve other people who have a connection with the victim or perpetrator—it could be parents, family, or community members, people who can support the children to move beyond the harm caused. And then apart from meeting the needs of the victim, we also focus on how the person who caused harm will continue to stay accountable in the future. This is usually done through an Accountability and Support Agreement which is created by all participants. We understand that someone who caused harm may need additional support in the future, and collectively come together to provide them that support. Even after that process, there is a lot of follow-up to make sure they’re accountable to whatever is decided during the restorative justice process.

In your experience, what has been the main advantage of adopting restorative practices in dealing with perpetrators? 
AM
: We work with children who cause harm, and we’ve seen that often a lot of them don’t have the adequate emotional learning to be able to understand the other person’s perspective, or even how they themselves are feeling about what they’ve done. And that is a skill that needs to be developed. So we have social-emotional learning learning tools that help them identify how they’re feeling and reflect on the impact of their actions on others. If we use these tools not just for children who are in custody but even otherwise, in schools etc, it creates the space to promote empathy and reflect upon their actions. Across the world, we’ve seen how people who are equipped with social-emotional learning are less likely to offend in the future.

Do you believe that collective outrage on social media and the calls for legal action to be taken against perpetrators will act as a deterrent for future cases? Or does it only to serve to assuage our own moral conscience and anger?
AM: What the call-out culture and punitive action—or threats of it—do most of the time is provoke feelings of shame, which contrary to what we might think, can be an extremely unproductive emotion to have. It can often lead those who caused harm to double down on their actions, and do so in more insidious ways—closing all loopholes to ensure they can’t be held accountable, for instance. In this case, the boys seeing how their actions constitute a punishable offence didn’t cause any sort of reflection or realisation of causing harm. Instead, the takeaway is that next time, they must not get caught. So they created another account by the same name, this time encouraging its members to use fake accounts.

Psychologically, shame is also understood to be the first driver of violence across the world.  There’s something called the Compass of Shame which shows how people who have been impacted by shame react in various harmful ways, including withdrawal, avoidance, and in the worst case, further attacks against others. If someone tells you enough times that you’re an offender, you start thinking and eventually behaving like one. And it cuts all spaces for reflection. Even in restorative justice we help people express their shame but intentionally try to move beyond that into something that is more constructive. The shame spiral can cause severe harm not only for those stuck in it but for the people around them as well.

SM: At the same time, we do live in a punitive culture, so if survivors want their perpetrators to be punished, that’s understandable. To push survivors to be the bigger person isn’t fair in a society where we usually don’t even listen to survivors or consider their harm as valid. So I would be wary of that. I would say it’s okay if we can’t empathise with the perpetrators, but what we can do is understand that what we consider a solution really isn’t serving us, and we need to start looking towards the more restorative forms of justice Arti outlined.

What is the scope of incorporating restorative justice into the existing legal system in India?
AM: As of now there is no meaningful legal provision for restorative justice in our country. But a couple of people working on restorative justice in India have tried to use specific provisions under the Juvenile Justice Act to create an entry point. When it comes to other crimes, it’s still going to take us time to get to a point where we can start implementing restorative justice. But there is potential for sure. In other parts of the world, restorative justice is used for all types of offences including serious sexual harm, domestic violence, even terrorism and militant murders. But because we’re just starting out, we’re starting out small. It’s not to say that the punitive system is more effective, but the restorative justice system depends on the willingness of the victim, as well as the offender, to participate in the process. Right now, because of the shortcomings of our current system, a lot of people don’t want to report sexual harm and domestic violence cases, even if they want the abuse to stop. Eventually restorative justice could be a very effective response there. 

Can restorative justice alone function as enough of a deterrent to gender-based violence in India?
AM: In the case of India, at least for now, restorative justice will have to work in conjunction with punitive responses. New Zealand is a great example of this—restorative justice has been enshrined into their laws since the 1980s and is actually the first option for a young person who has committed a crime. Then, if that doesn’t work out, the normal legal trial happens. They’re trying to reduce complete reliance on institutionalisation so that the community comes together to find a collective solution rather than just putting people inside prisons. It prevents repeat offences, reduces the costs on the system, and also has therapeutic advantages. For a lot of victims of serious crimes, when they participate in restorative justice, they have lesser occurrences of Post Traumatic Stress Disorder (PTSD). That’s no small feat, considering PTSD is very hard to cure otherwise. So it definitely has benefits for everyone, not just in New Zealand, but across the world.

SD: Restorative justice is one response, and we still need so many different kinds of restorative spaces for support and for validation. Especially with the Bois Locker Room, I really think a lot of responsibility lies on schools as institutions to create spaces where conversation can happen when incidents like these come up. We are still learning how to apply a lot of these principles, and I think a part of restorative justice that is forgotten is that it is survivor-centric, and it is voluntary. So both those things help us keep the survivor at the centre and build accountability from there. It isn’t, in other words, just a way to not do anything. And I think it’s very important that people don’t cite restorative justice or criticise punitive measures only to not act, because that’s already a problem we have been dealing with.

Can you take us through the stages of a restorative justice process for children and what they entail?
AM: We begin with an initial assessment of the suitability of restorative justice, followed by initial conversations with the child who has caused harm. If the child consents to meet with the victim, we contact the victim and provide information about the process. If the victim consents, preparation with both the parties takes place. Then we have the actual process, after which we have the follow-up. The actual processes can vary. A restorative justice dialogue involves a facilitator, the person harmed (victim) and the person who caused harm (offender). Other processes, like a restorative circle or conference, can involve victim and offender support persons, community representatives, and even government representatives. When we work in conjunction with the criminal legal system, we have various tools that we use at different stages of the process—pre-charge, post-charge, post-conviction, and post-sentencing or during incarceration. These involve conferencing, restorative justice dialogues, and sentencing circles.

Saumya, why is prison reform is an important issue to address as we have these conversations about legal action in response to the Bois Locker Room?
SD:
What I’ve seen from my research is that if we look at the statistics, the people who are in prison, as well as the calls for sending people to prison, tend to be against the most marginalised and those who do not have the legal resources to be able to make a strong case for themselves. And that’s very much part of the reason why prison tends to be a space we don’t think a lot about—whether it’s the effectiveness or imprisonment or conditions within the prison. Usually when we are trying to use an event like the Bois Locker Room—or any specific case of violence—to make our laws and call for long-term changes, the people who it affects the most will be the most marginalised. Especially in the last couple of years, since Jyoti Singh’s case, there has been a lot of advocacy to have stricter laws. And for me, feminists are people who care about everyone’s human rights, and about dismantling all structures of power. So if the prison is a place that tends to house people who are from marginalised communities, it also becomes a feminist issue. It was from that perspective that I felt it was important for a feminist working on gender-based violence to consider prison spaces and be more strategic about their demands.

What do you think of the #MeToo movement’s impact with respect to cases such as the ‘Bois Locker Room’?
AM: I think the #MeToo movement was beautiful because it gave space to survivors and people who had been silenced for so long to speak up and really own their narrative. But instead of leading to meaningful reflection, it gave rise in a way to a cancel culture where there is no real engagement or sense of accountability. Isolating individuals does not meet the intended goal of having a society which is free from sexual harm. And for that I think we need more of reflective spaces, where people who have caused harm can genuinely think through how we have caused harm. To really reflect on the patriarchy and how it is ingrained in people of all genders needs so much more than just shaming people. Restorative circles are a beautiful example of this. It’ll take time, of course, to repair the harm caused. It’s important to acknowledge that there is no quick fix.

SD: #MeToo was a big shift in our cultural moment, so I would be wary of rushing to say one thing or another—whether it served its purpose or not. I agree on the over-emphasis on shaming and cancelling. The kind of support and affirmation we as women can offer to each other in responding to gender-based violence—that as a focus is far more important. I think it’s also important to realise while the #MeToo movement was born out of the failures of the criminal justice system, cancel culture does play on our existing punitive culture. There isn’t one solution, and this is something we’re still figuring out because we know that what we have now isn’t good enough.

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