Dancing the legal prohibition of restorative justice in intimate partner violence against women: flamenco beats as encounter

Gema Varona Martínez

Gema Varona Martinez is a senior researcher at the Basque Institute of Criminology, University of the Basque Country, Donostia/San Sebastian, Spain. Corresponding author: Gema Varona at gemmamaria.varona@ehu.eus.

Intimate partner violence (IPV) against women committed by adult men is one victimisation in which restorative justice is prohibited in Spain. Considering the emerging criticism against this prohibition, this contribution aims to think about safety and risk as part of a dynamic continuum where the notion of emancipation from interpersonal and institutional abuse of power emerges. After presenting a case study of the use of the art of flamenco dancing by a woman victim of IPV, some conclusions are drawn through a hybrid thematic analysis of data compiled from ethnographic observation and an in-depth interview with this woman and her flamenco maestra or teacher, also a woman. Dancing with a cane serves as a metaphor for the self-reflection and the social support needed to allow the beats for new emancipatory meanings to primary and secondary victimisation. In that complex process, some women might gain security to hold a conversation with themselves, but also to establish an indirect dialogue with the responsible man and the society where both victims and offenders belong. By doing so, the general prohibition for restorative justice is questioned.

1. The improvised programme

I once read that interdisciplinarity means a practice in which certain vices, like intrusion or dispersion, are transformed into ways to better understand reality (Wagensberg, 2017: 14). In these pages I search for that interdisciplinarity in the fields of victimology and restorative justice through the beats of flamenco dancing. I must confess that I am an outsider looking at flamenco, a very complex artistic discipline that helps me question some exclusionary legal provisions. Korsten (2021) who works in the field of literature and society, considers art as an interface operating between the broader sphere of justice and the specific legal system. According to this author, art can affirm or disturb those realms and help approach different experiences of injustice, making legal reform imaginable. The flamenco dance of a victim of IPV might question the general legal prohibition for restorative justice for the harm she has suffered because her emancipation or liberation from abuse of power calls for restorative justice. To be legally and empirically coherent, the notions of secondary victimisation and re-victimisation have to be understood as the rationale that might justify instead of impeding a responsive use of restorative justice.
Mediation is understood as a technique for resolving conflicts, whereas restorative justice entails a whole set of principles and values on how we can conceive crime and its response in a more relational and dialogical way. The purpose of this article is to discuss the reasons behind the Spanish legal prohibition of mediation (and the practice of restorative justice) in cases of IPV against women committed by adult men (McQuigg, 2012). The article draws on restorative justice literature to discuss how emancipation is central to restorative justice defined as a dialogic process that contributes to the reparation of the harm produced. It is based on a case study on the use of the art of flamenco dancing with a cane by a woman victim of IPV. Through an in-depth interview and ethnographic observation,[1] some conclusions are drawn via thematic analysis around the notions of abuse of power and emancipation in relation to risk and safety. Dancing with a cane[2] allows adding nuances to its beats and, thus, the woman’s body with the cane creates a new space between silence and sound where she can meaningfully connect what happened with her current inner and social life.
The article is structured in four parts. First, the international and national legal contexts of the prohibition for restorative justice in IPV cases are described. Second, one concrete moment of the victim’s long journey to recovery is shown in order to reflect on restorative justice through flamenco dancing. Third, the emancipatory elements of restorative justice are highlighted. Finally, some general remarks intending to create further debate are made.

2. Setting the legal stage on divided assumptions

In 1997, after having suffered long and multiple primary and secondary victimisations, Ana Orantes was brutally killed by her former husband (Minder, 2020). Sometime before that, a justice of the peace[3] with no training in these matters had tried to mediate between them. The case helped raise awareness of a widespread problem in Spanish society where, as in other countries, victims had remained invisible both in the justice system and in society itself. The primary legal result of this new-found awareness was the Organic Law 1/2004 on Integrated Protection Measures against Gender Violence. In its Article 44 § 5, the use of mediation in cases of violence against women committed by an adult man is prohibited and, by extension, any form of restorative justice practice is understood as prohibited in practice.[4] Moving away from a reductionist, and at the same time generalised, interpretation of power imbalance, this prohibition embraces false legal assumptions on women’s risks concerning restorative justice (Ehret, 2020), such as the following:

Mediation and restorative justice are one and the same.
Restorative justice entails privatisation and banalisation in comparison with the current social and penal response to IPV.
Restorative justice holds more risks than benefits at any moment of the victim’s journey into the criminal justice system.
All victimisations are equal, all victims need the same responses and all restorative justice processes offer identical dynamics and results.
Restorative justice always requires encounters between a victim and an offender.

Thus, Spanish legislators and courts seem not to understand the difference between mediation and restorative justice. Moreover, they fear the language of forgiveness in emotionally dependent victims, which could provoke secondary victimisation and perpetuate the cycle of violence. However, questioning general assumptions, some authors (Liebmann, 2016; Villacampa, 2020) argue that during restorative justice processes victims can ask questions addressed to offenders and society; can express their feelings and needs after the crime; can make clear to offenders the effects of that victimisation and make them accountable in their process for rehabilitation; can find some alternatives to a criminal justice system discriminatory towards their own community or ethnic group; and can leave the crime behind them.

2.1. International framework

The UN Handbook for legislation on violence against women explicitly prohibits mediation (not restorative justice as such) in IPV cases. According to the Handbook and its supplemental document, offering mediation before and during legal proceedings

removes cases from judicial scrutiny, presumes that both parties have equal bargaining power, reflects an assumption that both parties are equally at fault for violence, and reduces offender accountability. (United Nations, 2012: 37)

At the global level, the first edition of the United Nations Office on Drugs and Crime (UNODC) Handbook on restorative justice programmes only noted that the use of restorative justice in cases of domestic violence and sexual assault was often controversial (UNODC, 2006: 45). In its 2020 edition (UNODC, 2020), a new chapter has been included on serious crimes that offers some examples of its use in several countries, notwithstanding the obstacles that the trauma impact and the power imbalance might cause. The Handbook requires that facilitators be very well trained so that they can be conscious of any form of manipulation at any moment of the process and, if so, direct the victim to support services that will take into account the elements of a potential patriarchal community.
The 2011 binding Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) only prohibits mandatory alternative conflict resolution (Art. 48). The explanatory report to the Convention underlines the power imbalance and the privatisation risk (Dorst et al., 2015). The Council of Europe Convention calls for caution when alternative dispute resolution mechanisms are applied in the field of violence against women and domestic violence and quotes the UN Women Virtual Knowledge Center to End Violence against Women and Girls in its guidelines on how mediation should be used in cases of violence against women, including the need for training those involved in facilitating mediation, without any reference to restorative justice.
At the Council of Europe level, Rule 18 of the Recommendation CM/Rec(2018)8 of the Committee of Ministers concerning restorative justice in criminal matters states that restorative justice should be a generally available service and that the type, seriousness or geographical location of the offence should not, in themselves, and in the absence of other considerations, preclude restorative justice from being offered to victims and offenders. Rule 19 asks member states to develop the capacity to deliver restorative justice at all stages of their criminal justice processes.
In the context of the European Union, the binding Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012, establishing minimum standards on the rights, support and protection of victims, does not exclude any crime from restorative justice, providing there are safe and competent services, but leaves the choice to prohibit to every country (Art. 12). Today, some European countries offer restorative justice for certain IPV cases (Villacampa, 2020: 63).

2.2. Spanish practice framework

From a study of the parliamentary debates, it can be argued that the Spanish prohibition was the result of some Spanish feminist groups’ pressure rather than international standards (Varona, 2021). The prohibition was embraced within the Spanish legal definition of gender violence. Because they are not mentioned in the law, this prohibition does not apply to homosexual couples or to violence where the offender is a minor. It might also be discussed if it applies to other forms of restorative justice beyond mediation, even though the reality is that restorative justice, in general, is not applied in this realm.
The EU official web page on mediation in different fields in Spain[5] states that despite this prohibition:

there are more and more advocates of mediation in this branch of the legal system because it makes sense to look at individual cases in order to assess whether or not mediation would be appropriate.

In relation to this controversial issue, the Provincial Court of Tarragona (Spain)[6] asked the EU Court if the EU legislation in force then could be interpreted as permitting a general exclusion of mediation in criminal proceedings relating to gender violence crimes. In 2011 the European Union Court concluded that it is not a question of the victim’s perception of risk but a question of public interest, based on the risk of re-victimisation where the EU legislation does not confer on victims any rights in respect of the choice of penalties for the offenders. Following the opinion of the EU Court Advocate General, the right of victims to be heard does not mean that the court is bound by their wishes.
However, as potentially similar cases in future EU Court decisions are expected, the 2012 Directive could be interpreted in the sense of reinforcing the victim’s voice because the EU legislation now stresses the need for individualisation of case management, the specific role of restorative justice and the relevance of the victim’s opinion (Hryniewicz-Lach, 2018).

3. An invitation to understand vulnerability by dancing with the victim: some methodological notes

After the previous contextualisation, flamenco is presented here as a context to rethink how victims can transmit the knowledge of their experience on vulnerability and empowerment in a process of remaking of the self and finding a meaning to what happened. Nowadays, flamenco is hegemonic and marginal at the same time. Famous artists use it in music and dancing and, increasingly, its audio visualisation in videos is present in global social networks. According to Romero (2021) flamenco is a performative popular art. It has always been like a social network because it amplifies conversations in bars and meeting places, transforming them in public conversations about the emerging topics present in the dance. At the same time, flamenco links to the Romani culture in Spain have to be considered. This culture has traditionally been criminalised (Buhigas, 2021), and their overrepresentation in the criminal justice system remains.
Flamenco was declared part of the Intangible Cultural Heritage of Humanity by the United Nations and can be traced to the 17th century. Its origin is in Andalusia as a mixture of the Romani, Muslim, Christian and Jewish cultures (Grimaldos, 2010). There are many approaches to flamenco singing that were later also expressed in music and dance. Some expressions (carceleras) are focused on the experiences of people who suffered imprisonment (Herrera, 2017). Indian, African and American indigenous influences can also be found in flamenco dance.
Music or singing can be accompanied by clapping, tapping, guitars, wood box drums or other instruments. Fans, hats, shawls, capes and canes can also be used as complements. The function of canes – among others – is to mark the rhythm. The Flamenco dance has been defined as an introverted and abstract form of dancing performed in a reduced space where both concentration and improvisation are required. More specifically, improvisation and an artist’s creativity play a major role in a performance full of emotional intensity. Flamenco has always been used as a way to communicate feelings of pain, joy, anguish, love, etc.

3.1. The restorative invitation to be vulnerable

Having met her by chance at a previous university-based activity, I was invited, in 2020, by María,[7] a victim of IPV and a facilitator of restorative justice herself, to her flamenco sessions with her teacher, where she danced with a cane. These sessions were not part of her therapy but just regular flamenco dance classes. She had suffered severe violence that eventually sent her ex-partner to jail, where he was at the time of the interview. María had endured grave secondary victimisation by the public social services and the criminal justice system itself. This was characterised by lack of voice and control during her contact with authorities and with failures in the legal promise of protection and support. Yet, as a facilitator of restorative justice, she has always been interested in using restorative justice in her case in the future.
María explained to me that restorative justice is a mysterious emancipatory process in which at certain points you need other community members to support you. She told me that many concepts she had learned and practised in restorative justice made sense in her flamenco classes. Thus, she invited me to have a conversation about this with her and her teacher, an invitation I could not refuse. Teaching victimology has made me very humble about academic knowledge. I wonder why ‘specialists’ in crime and victimisation, such as jurists or criminologists, have failed to see the victims, particularly certain victims, over so many decades. Even when the criminal justice system itself has ignored victims, it is difficult to understand their underestimation and undervaluation by scholars and experts. For this reason and because victims are human beings and not objects of research, I think of them as experts of their own victimisation.
My encounters with victims over the years have shown that they can be potentially intimidated by academic research and activities, and this is why it is so important for researchers to adapt to victims’ preferences for participation, which includes accepting artistic formats of their choice. When I was invited to the flamenco dance session, I was not expected to take a leading role or start giving an academic definition of victimisation or restorative justice as a theoretical framework. I was invited to listen and to observe. When María decided to invite me to see her dancing and to talk to her and her teacher, I was the guest, the observer who could not give lessons (Quintana, 2020) but just appreciate the gift of learning with someone who still suffers, and who is in transition to many possibilities, while questioning my own role in society and the meanings on victimhood and (restorative) justice.
Following the philosopher Rancière (2013), according to Quintana (2020), we have to interrogate ourselves about the understanding of that alleged loss of critical agency by so-called vulnerable women. In the academy, in particular, we have to listen carefully to grasp the existence of that critical agency, questioning the notion of vulnerability. In being affected and allowing shared experiences, the observer can be the vulnerable one (Seguró, 2021). Being vulnerable is being open to questioning, and we are vulnerable because we are corporeal. An ethics of vulnerability is an ethics of reciprocal responsibility about the questions posed by others, to perhaps appreciate the possibilities of change and reparation of harm. Violence against an individual as a form of harm is also violence against the community to which we all belong (Nancy, 2001). Moreover, all these concepts of approaching victims through art (inclusiveness, questioning and reciprocal responsibility) seem consistent with restorative justice values.

3.2. The analytical methodology employed

The interview and the observation notes were transcribed to be analysed later within a qualitative methodology where interpretation followed constructivist grounded theory. A hybrid thematic analysis was developed from a social phenomenological and hermeneutical perspective (Swain, 2018). The focus remained on how a woman who has been victimised interprets her subjective and intersubjective reality within the context of the criminal justice system and its potential alternatives. A priori themes arose from the two topics considered in the semi-structured interview: (i) the meaning of flamenco dancing as an expression of elements of justice for the victim and her teacher; and (ii) the use of the cane when dancing as a form of support for someone feeling vulnerable. A posteriori themes were extracted through inductive analysis by considering the repetition of topics captured in the transcriptions and notes. The final analysis was shared with the participants. Owing to the limited amount of data, no specific software for qualitative analysis was used, and codes and themes have been understood as more or less extensive units of meanings.

4. Dancing away from domination together: analytical notes

The performance I was invited to involved dancing with a cane. Two themes emerged from the analysis of transcriptions of fieldwork notes and the in-depth interview with María and her flamenco teacher: (i) safety and risk as part of a dynamic continuum in the response of justice to IPV; and (ii) individual and social emancipation from interpersonal and institutional abuses of power.

4.1. Safety, risk and healing

According to María, many victims feel unprotected in the criminal justice system, surrounded by non-empathetic professionals. Secondary victimisation in the form of social and institutional harm is usually added to the primary victimisation. Besides, violence suffered by women is not only a personal or interpersonal question but also a social question that involves many dimensions in life. María stated that she often feels ‘tiny and broken’, but not when she is dancing:

Dancing flamenco helps me to repair the broken parts of me … to feel safe again … It helps me use my own resources, the resources I already have or I am starting to have in me with the help of others. My body talks. Sometimes I feel that my legs don’t sustain me and my teacher gives me the cane and I can. With the cane, dancing helps me to say, to shout, what my soul keeps in silence and what I could not express in court. It is very intense at an emotional level.

María did not understand the general prohibition of restorative justice in this field,

If restorative justice is a safe space for conversation and questioning, why not in this field? I am not prepared right now [to engage in restorative justice], but I would like to try in the future.

She adds:

I am a practitioner of restorative justice, and I cannot understand why you can do restorative justice in very serious crimes in Spain, such as terrorism or political violence, but you cannot do it in gender violence. It makes no sense. They say that it is for our own protection, but my experience with state protection has not been a good one – just the contrary. People tell you to report, to start a criminal process you are not going to be able to stop later. You keep losing control since the very first moment you started being a victim.

For María the values of restorative justice resound when she dances the flamenco:

I can be vulnerable and strong at the same time, like restorative justice, dancing flamenco is not a linear process. I can express emotions that were hidden and they fit in the dancing, even if I dance with an audience. I feel I have control over my body and I am not ashamed of my feelings. Those three questions on restorative justice (what happen, what was the impact, what do we do now?) cross my mind, and I can think about who I was, who I am and who I can be and how the harm done could be transformed into something different.

In any case, for María, flamenco is not only an introspective journey:

I need my teacher to guide me at some points. I also like dancing with other women. In a strange way I can also imagine my aggressor is there, but he cannot harm me anymore while dancing – just the contrary, I can show him I am not afraid.

María thinks that ex-offenders or offenders in rehabilitation could be invited to these sessions as part of a restorative programme:

I think that if some offenders can see this dancing, it will make them think. We can talk through dancing with open interpretations on restorative questions. I prefer to talk with them this way rather than just sitting down with them having to listen to me.

María’s teacher underlines the potential of flamenco as a way of safe communication where, if it is wanted, some risks might be taken, quite consciously and always with social support:

Flamenco reaches a profound part of you. It does it in a straight way, even for women from very different cultures that have nothing to do with ours. You don’t need to talk. Your body talks. I can guide you and sometimes I can feel where the blocking or the deadlocks are, but I cannot sustain you completely. I cannot take or solve the problems you might have or suffer from, but I want you to get out of that place to a safer one, by talking about it with your body, by being aware. If you are aware of your own value and capacities, you are not dependent on others’ acknowledgement and you can assess much better risky situations.

4.2. Emancipation from interpersonal and institutional abuse of power

Flamenco dancing within the academic choreography scene might be overly intellectualised, but flamenco dancing is meant to be felt. María likes what she calls the flamenco attitude: ‘Believe in yourself, be flamenca, you have the right to be here and aspire to a better life.’ She continues:

Flamenco helps to communicate with you and with others. It convenes also an indirect dialogue with the person who exercised the violence against you. He is not there, but you are also dancing, summoning his invisible presence, sometimes you dance against him, sometimes for him, to let him know the deep pain he has caused, and its consequences.

According to the teacher, flamenco dancing breaks down prejudices regarding the Basque, Spanish and Romani identities[8] and impacts on other victims and society at large. The teacher states:

We all have drawers we don’t want to open. But the Spanish word for drawer can also be translated as a flamenco box drum.[9] We too have the capacity to play that drum, to make our voices be heard.

The teacher continues:

I am also learning with the dancers. I am advancing in a new flamenco message. I can choose my own way in flamenco and, by doing so with others, I experience a transformation with others. Flamenco is a mixture of many cultures. Thus we have to keep mixing. I like using classic flamenco to question it, something that the most traditional flamenco community might not like because, like the Spanish or the Basque society, is also full of prejudices. The gypsy community is also quite machista. I have been part of the gypsy community my whole life and, like any other community, there are good and bad things, but all tend to evolve in time.

Finally, the teacher makes a more personal reflection:

I have always had to demonstrate that I was not an uncultivated and poor gypsy woman. Over many decades, coming from a humble family, I’ve found many obstacles in my path and I’ve found out that even if this has been a painful challenge, it made me want to overcome those obstacles one after another. At the end, as a migrant woman, I can convey that there are things we women and men can do together. I see two profiles of women who come here: victims who are locked into and are even made to fall into victimism and women in pain who react and break out of the script that others write for them. With different types of support, they integrate that script into other broader stories.

María adds to this:

I think we like flamenco in the Basque Country because it helps us to express emotions in a strong and joyful way that we are not used to express in our culture. Dancing liberates me from those cultural and institutional values that repress my emotions. Expressing sadness, pain, anger … is step towards recovery, but systems like the criminal justice just try to content them. Moreover, that system keeps being patriarchal and ethnocentrist.

4.3. Restorative justice

The previous fragments can be analysed in terms of restorative justice. This justice can be understood as a ‘vital knowledge’ (García Ruiz, 2016: 98) that requires embodied encounters that are significant in everyday lives (Margalit, 2002). The previous section does not offer an account of a regular restorative justice process, but it might help to talk about restorative justice in IPV cases. In this case study the offender does not participate in the dancing and is not part of the audience at that moment, at least not physically. However, ‘the presence of his absence’ is real. There is an evocation of his character and also of the primary and secondary victimisation suffered by the victim. The evocation of the offender becomes real with dancing and music (Redondo & Ríos-López, 2020) because the victim is holding an indirect dialogue. In that dialogue, the ideas of traumatic links after the violence and the need for mutual sustainability appear through the cane.
Dancing creates a physical and emotional atmosphere in the room. It allows us to start from a marginal academic perspective: the voices of victims, diverse in their singularity, are present. In contrast to the abstract normative standards, the corporeal can be felt transmitting new ways of thinking on the relationships and values at stake. Considering the concrete harmed bodies, instead of talking of mere autonomous rational beings, questions the reciprocity that can emerge in an asymmetric society with diverse vulnerable beings (Brugère, 2011). Instead of more judicialisation of social bonds, a greater focus on relationships marked by abuse of power might be needed to be rebalanced through other forms of more participatory and inclusive justice (García Ruiz, 2016: 100).
Dancing is understood here as a human expression beyond artistic choreographies, where damaged and vulnerable bodies, as opposed to young and athletic ones, can express themselves. Dancing interrogates the dancer and the observer and, in the context described in this article, dancing interrogates laws, directives and restorative justice: why the exclusion? Is it dangerous? Coming from the ground (tablao or flamenco floor), the energy trespasses the dancer’s ill-treated body. María is not a dancer, but just a woman who, with the help of her teacher and the support of the cane, dances her experience with violence and her aspirations for restorative justice (Khan, 2021). Observing tapping her heels and the cane, you can feel anger and suffering but also a protest against the lack of control and agency in the judicial process. It seems to me like a form of appropriation of justice victims are denied and an understanding of justice as something open and inconclusive towards individual and social transformation, valuing conflicts as points of departure to respond to abuse of power in its many forms.
Through access to restorative justice, the complex process of victimisation and reparation can be better understood as a journey where the criminal justice system interacts, but it is not the only system in play. As Barlow, Walklate and Johnson (2021: 188) contend, ‘risk is refracted both inter- and intra-organisationally and overrides victim-survivors’ assessment of their risk’, without forgetting intersectional variables that might be at stake in what can be called a kaleidoscopic justice (McGlynn & Westmarland, 2019).
A restoration process can be understood as an inclusive long-term response to experienced injustice and to the need for remaking and reconnection of the self in a society with shared basic values (Pemberton, 2020). Within that restoration, restorative emancipation can be defined as a dialogic accountability free from the abuse of power in its different interpersonal and institutional forms. The notion of emancipation goes beyond the increasing rhetorical use of empowerment as an individual capacity. If restorative justice is about communication, art can help to communicate when words are difficult to find, to be articulated or to be heard, particularly in the process of victim recovery. It is a way of talking and renaming pain without consuming the victim, but rather as an element for individual and social transformation. In particular, dance allows working with the physical sensations of the harmed body and, at the same time lets the mind fly away. With the help of others, because relational autonomy is not self-sufficiency, it can also build community from inner strength (Armstrong, 2021). In the case study presented, the dancer connects with her teacher and, if dancing for a broader audience, she might also connect with that audience. This incipient emancipatory restorative justice process is not about obtaining a result or discovering something that is already within victims, because that strength might not be there at that moment. It is about the possibility to start or to continue different paths to imagine other lives together. The art of dancing can foster the values guiding restorative justice: acknowledging and repairing the harm caused by crime and meeting the needs of those affected, on a respectful and voluntary basis, as well as fostering open inclusion and autonomy through safety, accountability and transformation.
Art can help both in the emancipation process and in expressing emancipation itself. If amplified to a broader audience, flamenco can be an invitation to an encounter to dance or observe the dancing in a complex process of justice beyond courts. Justice entails public acknowledgment (not only by the offender) about the harm that has been caused to a real and tangible person, her family and friends and to the community. Emancipation here means a simultaneous awareness and rupture with the corporeal and how we are situated in our ordinary lives, sometimes under conditions of oppression. Through emancipation, positions can be transformed to look for another kind of life and also justice, reinventing the bodies involved and finding new meanings of their experiences. It is not only about changes in individual knowledge but about ways of seeing how we all are situated in society. Out of her need for justice, María, by dancing, confronts the situation in which she was placed by society and the criminal justice system. By doing so, she is opening her own ways for emancipation and, at the same time, questioning us. Through this aesthetics, as a direct apprehension of María’s body that struggles with abrupt torsions, she reaffirms herself by looking for others. Being sustained with a cane might work as a passage or door to break those invisible violent roots persistent in our machista society. Observing María’s dance confronts us with her denunciation of the isolation of ill-treated bodies that cannot escape from their relational dimension (Quintana, 2020).

5. And the dance goes on

Safety can be understood as attending to the diverse longitudinal needs of women without provoking further harm within this particular context of IPV. Any kind of justice should minimise or eradicate the risk of interpersonal violence and institutional victimisation. At the same time, there might be certain risks inherent in restorative justice processes that victims might want to accept if they are provided equal and adequate institutional and social support. It would not be honest to claim that restorative justice is an entirely safe process, particularly because the definition of what it means to be safe has objective and subjective dimensions that differ from one woman to another and from one moment in her life to another. Instead of denying the possibility of all risks, it should instead be assumed that minimal risk with support might be valued positively by some women as part of their individual and social emancipation process.
Responding to the question of why restorative justice is considered in Spanish law as dangerous for the cause of women in this field is not easy. This article has presented a reflection based on qualitative research to explain the contradictions in the current prohibition and to contribute to new understandings of justice as a complex process that considers contingent conditions for the possibility of change and new individual and social beginnings.
The overrepresentation of migrant women as victims of IPV reveals how the Spanish legal prohibition might affect them if restorative justice could include more collective forms of community participation (such as conferences and circles). In relation to this, the question remains as to the extent to which restorative programmes might be universal in terms of culture, gender, class and other categories of discrimination (Stubbs, 2002; Why me?, 2021).
Restorative justice is challenging because it questions assumptions. One of these assumptions is that we can separate the criminal law notion of prevention from reparation. Restorative justice and its participants show us that repairing is preventing and that prevention is a way of reparation. Both processes are linked in relation to a judicial response that does not create more harm to anyone. When something is irreparable (a murdered woman), we can also think of memory (memorialisation) through art as a form of reparation/prevention.
Art is performative and produces reflection and a different knowledge from the academic one that opens new ways of communication and thinking (Hacsek, 2021). In any case, whereas critical self-reflection is fundamental for social transformation, it is not sufficient in itself (Inglis, 1997). Dancing can be a metaphor of a never-ending individual and social weaving process that can be amplified (Morrison, Woodland, Barclay, Saunders & Beetson, 2020). In this sense, the encounter with María has opened new activities within the academia in the Basque Country to organise performances of flamenco dancing with a cane with different audiences: IPV victims who are incarcerated individuals, students and different offenders on their way to rehabilitation.

Notes

[1] I deeply thank the woman, survivor of IPV and her teacher for the three hours dedicated to the interview, on 30 September 2021. This took place on a flamenco dance floor in a Basque city.

[2] To have an example of dancing using canes, see www.youtube.com/watch?v=6vWZQSusKeQ. A more amateur example with an intergenerational flavour can be seen at www.youtube.com/watch?v=6vWZQSusKeQ.

[3] The justice of the peace (juez de paz) operates in small communities and is in charge of minor cases.

[4] At the end of September, 2022, a new prohibition of mediation and conciliation for sexual violence when the aggressor is an adult entered into force in Spain (Law 10/2022).

[5] See https://e-justice.europa.eu/content_mediation_in_member_states-64-es-en.do?member=1.

[6] See http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62009CJ0483.

[7] Fictitious name.

[8] ‘I had to listen to insults like “shitty gypsy”, “shitty Spanish”, because flamenco is so stereotyped in Spanish culture and abroad’. Today there are some music groups that sing flamenco music in Basque or flamenco music groups that collaborate with Basque music groups.

[9] ‘Cajón flamenco’ is a wooden box where the musician sits and plays music.

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