Apology, Justice, and Trauma Recovery Cheryl Regehr, PhD, and Thomas Gutheil, MD J Am Acad Psychiatry Law 30:425–30, 2002 On November 22, 2001, Pope John Paul II, in his first e-mail message to the world, apologized to vic- tims of sexual abuse perpetrated by priests. In his message, the Pope states: Sexual abuse by some clergy has caused great suffering and spir- itual harm to the victims. . . . Sexual abuse within the church is a profound contradiction of the teaching and witness of Jesus Christ. . . . The synod fathers wish to apologize unreservedly to the victims for the pain and disillusionment caused to them.1 He added that the church was “unequivocally com- mitted to compassionate and effective care for the victims, their families, the whole community and the offenders themselves.”1 We are, it seems, in an era of public apology. In the past few years, the Pope has apologized for the sins and injustices committed by the Catholic church, including wrongs inflicted on Jews, minorities, and women2; the Japanese govern- ment has apologized for atrocities committed in World War II; President Clinton has apologized for America’s history of slavery and for America’s sup- port of foreign dictators3; and the Canadian federal government has apologized for the executions of 23 Canadian soldiers during World War I, volunteers who were shot for desertion or cowardice.4 The move to public apology stems in part from a belief that public actions can cause personal pain. An aspect of this belief is the notion that apology is a necessary prerequisite to forgiveness and that forgive- ness in turn leads to recovery.5 A second aspect is an increased interest in restorative justice as an alterna- tive or adjunct to criminal sentencing or civil liabil- ity.6 This alternative process encourages offenders to take responsibility for their actions and to make res- titution, with the joint goals of assisting the victim in the healing process and reintegrating the offender into society.7 In this article, we seek to explore the issue of apol- ogy and justice within society and to consider the impact of these processes on the healing of individual victims. Defining Apology Although apology is a common part of our lan- guage of relationships, little has been written about the nature of apology and the elements that comprise it. Tavuchis8 suggests that when someone apologizes, he or she is in the position of seeking unconditional pardon in the context of being unworthy of an act that can be neither forgotten nor forsaken. Apology includes three main components: 1. Acknowledgment of the offense or provision of a truthful account of the offense so that the victim’s experience can be publicly verified.5 2. A willingness to admit wrongdoing or, in effect, issue a mea culpa (through my fault). To apologize is to declare voluntarily that one has no excuse, defense, justification, or explanation for the action.8 Implicit in this is the agreement to accept the consequences— social, legal, and otherwise—that flow from having committed the wrongful act.5 3. A willingness to state that the act will not be repeated—that is, to make a pledge (implicit or ex- plicit) to abide henceforth by the rules.8 Conse- quently, it is not acceptable to apologize for abusive behavior with the expectation that one will simply apologize again when the act is repeated. When any of these elements of apology is missing, the apology has been botched. The classic example of a botched apology, cited in many publications, is the Dr. Regehr is Associate Professor, Faculty of Social Work, and Direc- tor, Centre for Applied Social Research, University of Toronto, West Toronto, Canada. Dr. Gutheil is Professor of Psychiatry Co-Director, Program in Psychiatry and the Law, Massachusetts Mental Health Center, Harvard Medical School, Boston, MA. This paper was pre- sented at a symposium entitled “Redressing Historic Injustices: The Holocaust and Other Experiences,” Munk Centre for International Studies, University of Toronto, West Toronto, Ontario, Canada, Jan- uary 24, 2002. Address correspondence to: Cheryl Regehr, Faculty of Social Work, Centre for Applied Social Research, University of To- ronto, 246 Bloor Street, West Toronto, Ontario M6R 2W9. E-mail: Cheryl.regehr@utoronto.ca 425Volume 30, Number 3, 2002 A N A L Y S I S A N D C O M M E N T A R Y case of Richard Nixon, who, in his apology for Wa- tergate, failed to acknowledge the offense and justi- fied wrongdoing by suggesting it was for the greater good.5,8,9 Furthermore, although Mr. Nixon did not dispute the facts of Watergate, he suggested that his own acts were simply misjudgments and mistakes and his resignation was the price paid for an error, not for the commission of a crime.8 Such botched apologies include statements such as, “I am sorry you hurt,” rather than, “I am sorry I did that to you.”5 Apology, Justice, and Liability There is little room in the legal context for apol- ogy. Lawyers reflexively advise clients to refrain from making statements that suggest that they may in any way be responsible for harm, for fear that they may inadvertently accept criminal or civil responsibility for their actions.10 Because the courts do not accom- modate the concept of apology, a victim may obtain monetary compensation or see the offender jailed, but cannot expect an apology. This may leave victims with the sense that no one has acknowledged their pain. Indeed, a study by Des Rosiers et al.11 suggests that the primary desire of victims of sexual assault who pursue civil litigation is to be heard and to ob- tain an apology; most are severely disappointed. One commentator observed that “the time-honored priv- ilege against the incrimination of self has, in effect, morphed into a prescription against the consolation of others [in the legal context]” (Ref. 3, p 26). Concerns that the legal system thwarts effective apology have led some to suggest rewriting the rules of evidence to exclude some apologies as admissions by a party-opponent doctrine.3 That is, some advo- cates want to change the current rules in which an apology is seen as an admission of responsibility or culpability. At the present time in the United States, apology is considered inadmissible only if it falls un- der the Federal Rule of Evidence 408.12 In this situ- ation, there must be a dispute as to the validity of the claim or the monetary amount sought in damages, and the apology must be linked to an offer to com- promise.9 Two states have instituted bills that create “safe harbors” for apology.5 In Massachusetts, state- ments or writings to the family expressing sympathy for pain, suffering, or death of a victim are considered inadmissible as evidence of liability in a civil action.13 Similar legislation was more recently enacted in Texas. Taft,5 however, makes the important obser- vation that the creation of safe harbors undermines a key factor that supports the integrity of apology— that of willingness to take responsibility for the ac- tion. Further, the risk is raised that apology will be defined as merely a pawn in the power game, thus becoming part of another moral economy in which apology is used as a strategy.8 Apology is one means of acknowledging the suf- fering experienced by victims. An alternative method used in the courts is the victim impact statement. This in essence attempts to fulfill the second require- ment for an apology: forcing the offender to face the consequences of criminal actions, whether or not the offender accepts responsibility. In the civil context, problems arise because there is no way to measure whether awards for intangible injuries are reliable and valid.9 Questions are raised about whether finan- cial compensation constitutes public acknowledg- ment and acceptance of responsibility. The evidence does not suggest that financial compensation for in- tangible losses, especially for the pervasive and insid- ious effects of victimization, leads to healing and res- olution.7 An alternative argument in favor of payment of intangible damages is that they are a de- terrence, not compensation.9 In other words, society is attempting to fulfill the third requirement of an apology: the willingness to pledge that the act will not be repeated. In this way, not only may a partic- ular offender be deterred from committing the act again, but also others may be dissuaded from such action. When one considers the effects of punish- ment on deterrence in other contexts, however, the argument is not persuasive. Although they may not require an overt apology, criminal sentencing determinations acknowledge as mitigation the sincere expression of remorse and ac- ceptance of responsibility.9 As a further attempt to ensure that offenders take responsibility for the con- sequences of their actions, impact on the victim has arisen as a factor in court decisions. In civil law, which emphasizes compensating the victim, a conse- quentialist position is taken. That is, the monetary value of the judgment is based in part on the magni- tude of the outcome. Yet, the use of victim impact in sentencing in the criminal justice context is a matter of contention. The offender’s intention is a critical factor, and punishment is guided by normative esti- mations of the severity of the consequences for the victim.14 Although the seriousness of the crime is certainly an important factor in impact, individual strengths and vulnerabilities of the victim also lead Apology, Justice, and Trauma Recovery 426 The Journal of the American Academy of Psychiatry and the Law to traumatic outcomes.15–17 Hills and Thomson14 question why offenders with the same inten- tions, who commit the same crimes, should receive different sentences because the characteristics of the victims resulted in different psychological consequences. An alternative form of justice for violent offenses that is increasing in popularity is restorative justice, a term most often used to describe such informal and nonadjudicative forms of dispute resolution as vic- tim-offender mediation, family conferences, and ab- original forms of justice that promote joint decision- making power.6 The Supreme Court of Canada has embraced restorative justice as a legitimate form of sentencing, with its emphasis on acknowledgment of harm, reparation, and community sanctions.6 An ad- ditional component of the restorative justice model is the concept of disgrace and the belief that a defen- dant’s public acknowledgment of shame acts as both a punishment and a deterrent.18 Although this may appear to satisfy the three aspects of apology, Roach6 questions whether restorative justice satisfies the fun- damental principles of sentencing, including whether the sentence is proportionate to the serious- ness of the crime. As a result, victims may believe that their continuing safety has not been considered and that the magnitude of the crime has not been fully acknowledged. Further, in an attempt to embrace the concepts of contrition and apology, the courts may simply have created an expeditious means of avoid- ing imprisonment. Several other problems regarding the application of restorative justice remain unresolved. One such problem is that reparation politics often have a back- ward-looking dimension, promoting the cultivation of victimhood and cultural parochialism.19 Victims become dependent on the oppressor to engage in the process in a fair and meaningful way. In addition, at a time when many individuals and groups are seeking justice for historic atrocities, restorative justice runs the risk of creating an environment of competition, in which each group of victims must show themselves to be the most wronged and to have incurred the greatest damage. The implementation of restorative justice also makes many assumptions about victims regarding what is necessary for their healing and regarding their willingness to engage in the process. Society must ensure that we do not place the responsibility on the victim to ensure that an offender takes responsibility for his or her actions. In addition, it is important to assess whether the aims of restorative justice are in- deed directed more toward the benefit of the of- fender than the victim.6 Restorative justice supports perpetrators and encourages them to take responsi- bility for their actions, to make some sort of restitu- tion, and to reintegrate into society.7 This may cause distress for victims who view the perpetrator as re- ceiving equivalent or more support than they receive. Finally, it is important not to rush to include the requirement for apology in the restorative justice process on the assumption that the process and an apology will assist in the healing process. The thera- peutic value to the victim has yet to be determined.9 Statements can be found in the literature such as: “The evidence of victim satisfaction as a result of face-to-face confrontation with the offender and me- diation of a restitutionary response is overwhelming” (Ref. 20, p 858). However, reviews of research sup- porting these statements demonstrate significant problems with data collection and sampling.20 In addition, one must be cautious about equating satis- faction with the process of healing. Apology, Justice, and Healing An assumption often made by both victims and society is that an apology is a necessary aspect of healing. In several articles the tendency has been noted for victims seeking compensation to state that if the offender had apologized, they could have be- gun to heal.5,10 Self-help books make such state- ments as: “Apology has the power to heal individuals, couples and families. Almost like magic, apology can mend our relationships, soothe our wounds and hurt pride and heal our broken hearts” (Ref. 21, p 12). Forgiveness is a concept related to apology. Much of the psychotherapeutic literature is based on the health model perspective in which forgiveness is un- derstood as giving up one’s right to retribution and letting go of anger and resentment toward the of- fender, with a consequent reduction in the victim’s emotional distress and anxiety.22,23 A change in the perspective of the forgiver is achieved through replac- ing negative feelings with positive ones of empathy toward the wrongdoer. From this perspective, for- giveness is a gift from the forgiver to the forgiven.22 This act of forgiveness is then seen to lead to resolu- tion of the trauma and the resultant symptoms of distress. A recent study reported in The New York Times,23 however, suggests that Americans are more Regehr and Gutheil 427Volume 30, Number 3, 2002 likely to believe that God has forgiven them (75%) and to have forgiven themselves for transgressions against others (57%) than to have forgiven others for misdeeds against them (52%). Nevertheless, the re- searchers suggest that health benefits accrue for those who forgive.23 However, if forgiveness after a show of contrition through an apology is a requisite aspect of healing, then victims continue to depend on offend- ers’ behavior for their psychological well-being.5 It has been argued that an apology, rather than bringing about the healing of the victim, may in fact represent a means of catharsis only for the perpetra- tor. One Holocaust survivor stated: “I think [the apology] was invented by those who perpetrate atrocities. . .to make them feel better. I don’t know how it can make victims feel better” (Ref. 9, p 184). In this way, apologies may be a way for perpetrators to save face and avoid liability but may in fact have little to do with the victim’s well-being. When one views the public statements of victims and their families, one is often struck by the belief that healing can begin only if justice has been satis- fied. There is a belief that justice will allow “closure” of the issue.7 On another level there may be a belief in retributive justice—that is, only when the wrongdoer has been punished, either through incarceration or financial penalty, can moral equilibrium be re- stored.7 This places the victim at the mercy of a ju- dicial system that may or may not be able to prove guilt beyond a reasonable doubt. If the prosecution fails, victims may feel further victimized and humil- iated.7 Even when the victim “wins,” the experience of grueling litigation may rob that outcome of any healing potential. Secondary guilt after winning may also keep the victim from benefiting from the victory. The quest for justice and apology, in and of itself, may thwart the healing process. Many researchers have shown that the ability to attribute some positive meaning to tragic events is associated with lower lev- els of traumatic reactions. This area of inquiry began with Viktor E. Frankl’s Man’s Search for Meaning.25 in which he recounts his experience in a Nazi con- centration camp during World War II and tells how he came to understand the world and his experience. The literature now includes studies that associate positive meaning with lower levels of symptoms in human immunodeficiency virus (HIV)–positive men,26 people with disabilities,27 and women with breast cancer.28 Conversely, those individuals who continue to seek meaning in events that are horrific and random, such as incest or the loss of a child, continue to have higher levels of affective arousal many years after the traumatic event has ended.2930 The search for apology and justice may have a similar outcome. Public Acts, Private Pain When one considers the scope of human injustices in an event such as the Holocaust and the number of individuals who continue to be affected, the question arises of who should or can apologize. The famous doctor’s trial in Nuremberg (1947–1949)—focused on the experiments of Nazi doctors on prisoners in concentration camps, which included exposure to extreme cold, high altitudes, mustard gas, sulfanil- amide, seawater, and incendiary bombs—provided a window into the atrocities committed by the Na- zis.31 In that case, the first aspect of apology, that of naming the truth and forcing responsibility, was ful- filled. In referring to the trial, U.S. Chief Prosecutor Justice Robert Jackson stated: “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated” (Ref. 31, pp 30 –31). Yet subsequent investigations such as the trial of French bureaucrat Maurice Papon in 1998 have demonstrated that complicity in the extermination of Jews went far beyond the borders of Germany and the realm of the Nazis. How many people and gov- ernments should apologize? In addition, the trial of James Keegstra,32 a teacher in western Canada, who fought (unsuccessfully) for the right to teach public school students that the Holocaust was a hoax, shows that acknowledgment is not universal. A second question arises regarding the extent to which a figurehead or group making an apology ac- cepts responsibility for the wrongdoing. Pope John Paul II apologized for the historic misdeeds of Ro- man Catholics, including those against Jews, and publicly asked God for forgiveness. After the apol- ogy, however, Israel’s Chief Rabbi, Israel Meir Lau, expressed disappointment that the Pope did not mention the Holocaust or the controversial role of Pope Pius XII, who, many believe, turned a blind eye to the death camps.2 Clearly, for many this apology did not go far enough. In contrast, Albert Speer, one of the most sinister figures in Nazi Germany was praised for his apology, which took full responsibility Apology, Justice, and Trauma Recovery 428 The Journal of the American Academy of Psychiatry and the Law for his actions and acknowledged that no call for forgiveness was justified: My moral failure is not a matter of this or that. It resides in my association with the whole course of events. . . . Whether I knew or did not know, or how much or how little I knew, is totally unimportant when I consider what horrors would have been the natural ones to draw from the little I did know. . . . No apologies are possible [Ref. 8, p 21]. An alternative to public apology has been the con- cept of truth commissions, the most famous of which was convened in South Africa. The task of the South African Truth and Reconciliation Commission (TRC) was to expose and document human rights abuses perpetrated under the system of apartheid.33 In the end, the TRC took 21,298 statements from survivors or families of victims of political violence and dealt with 7,128 applications for amnesty.7 Through the truth-recovery process, the commission sought to reconcile South Africa with its past and correct misconceptions and stereotypes.7,34 In this way, truth commissions are designed to fuse polar- ized antagonistic histories into a core of shared his- tory to which both sides can subscribe.18 In addition, truth processes attempt to deal with the destructive influence of enforced silence and social discounting of the experience of victims34 on the basis of the belief that revealing is healing.35 Although some view this as an important process for both individual and societal healing, others assert that the TRC was created for political reasons to smooth the political transition from authoritarian to democratic rule.34 Contentions regarding whether the process was helpful or harmful to individuals ap- pears to be highly personal and dependent on what role the individual played in the process. The com- mission attempted reconciliation in light of a com- mon history, yet critics have suggested that there is no common historical perspective and therefore the potential for discounting some experiences continues to exist.7,35 Others question the value of catharsis in such a prescribed manner within a prescribed time frame in which victims may even be forced to provide testimony.7,35 Some have suggested that individuals may have become further traumatized by the reopen- ing of their wounds and the recounting of events.7 From this perspective, the role of truth commissions is viewed as an attempt to deal with the collective issues at the expense of the individual. In fact, a South African legislator explicitly stated: “We sacri- fice justice because the pains of justice might trauma- tize our country and affect the transition. We sacri- fice justice for truth so as to consolidate democracy, to close the chapter of the past and avoid confronta- tion” (Ref. 7, p 466). Despite anecdotal evidence that the process of the TRC has led to healing, there is little empirical evi- dence to support this claim. In a study of 134 vic- tims, in which the outcome was compared for those who testified, those who gave written statements, and those who remained silent, no significant differences were found in symptoms of post-traumatic stress dis- order (PTSD) or in the victims’ levels of forgive- ness.33 In part, this may be because few psychological support services were made available to victims in the process of testifying or following their testimony.34 Furthermore, the process leading to amnesty for per- petrators preceded the process of reparation for vic- tims. Except in the most dire cases, victims were not to be compensated until the amnesty process was completed.7 In addition, amnesty seekers were not compelled to make any form of restitution beyond the public shame of acknowledging their deeds.7 Fi- nally, it is argued that far more central to the healing process is the ongoing deprivation that contributes to the experience of primary trauma.34 Reparation campaigns for past injustices represent a new phase in relationships between states and the groups that they have victimized historically. It is hoped that these will influence the future willingness of statesmen to oppress other groups.19 However, one of the problems of reparation is the possibility of backlash. Torpey19 suggests that the payment by the Germans of enormous sums in reparation for acts in World War I helped generate a backlash against those who exacted the payments and contributed to the rise of the Nazi party. Further, it is possible that current attempts to obtain reparation contribute to anti-Semitism and the threat of questions about the validity of claims. Thus, the risk to individuals may in fact increase. Conclusion In this review, we have considered some of the studies of apologies made in several circumstances. It is clear from the foregoing that far more systematic research is needed into the variables that affect the potential of the apology to become a step in the heal- ing process. As this review has indicated, the current empirical evidence is insufficiently solid to support the proposition that apology by oppressors, perpetra- Regehr and Gutheil 429Volume 30, Number 3, 2002 tors, and defendants is a panacea leading to healing of trauma under all circumstances. The variability of injuries and their scope, the variety of victims and their psychologies, and the possibilities of misman- aged apology and inadequate personal support dur- ing the process all conspire to prevent a single para- digm from covering all conditions. In particular situations, however, such as civil harm brought to bear on groups of people, apology may be a necessary if insufficient step toward some restitution for the injury. References 1. Pope’s Web apology over sex abuse. 2001. http://www.cnn.com/ world/europe/11/22/pope.apology 2. Pope’s apology not enough. BBC Online. March 12, 2000. Avail- able at http://www.news.bbc.co.uk 3. The role of apology. New Jersey Law J 163:26, 2001 4. A belated apology. Macleans. December 24, 2001, p 15 5. Taft L: Apology subverted: the commodification of apology. Yale Law J 109:1135–50, 2000 6. Roach K: Changing punishment at the turn of the century: restor- ative justice on the rise. Can J Criminol 42:249 – 80, 2000 7. Allan A, Allan M: The South African Truth and Reconciliation Commission as a therapeutic tool. Behav Sci Law 18:459 –77, 2000 8. Tavuchis N: Mea Culpa: A Sociology of Apology and Reconcili- ation. Stanford, CA: Stanford University Press, 1991 9. Shuman D: The role of apology in tort law. Judicature 83:180 –9, 2000 10. Gutheil T: On apologizing to patients. Risk Manage Found Fo- rum 8:3– 4, 1987 11. Des Rosiers N, Feldthusen B, Hankivsky O: Legal compensation for sexual violence: therapeutic consequences and consequences for the judicial system. Psychol Public Policy Law 4:433–51, 1998 12. Compromise and offers to compromise. F.R.E. Article IV, Rule 408 13. Mass. Gen. Laws Ann. Ch. 233, § 23D (1998) 14. Hills A, Thomson D: Should victim impact influence sen- tences?— understanding the community’s justice reasoning. Be- hav Sci Law 17:661–71, 1999 15. Bowman M: Individual differences in posttraumatic distress: problems with the DSM-IV model. Can J Psychiatry 44:21–33, 1999 16. Paris J: Nature and Nurture in Psychiatry: A Predisposition Stress Model of Mental Disorders. Washington, DC: American Psychi- atric Press, 1999 17. Regehr C, Hemsworth D, Hill J: Individual predictors of trau- matic response: a structural equation model. Can J Psychiatry 46:74 –9, 2001 18. Braithwaite J: Shame and criminal justice. Can J Criminol 42: 281–98, 2000 19. Torpey J: Making whole what has been smashed: reflections on reparations. J Mod History 73:333–58, 2001 20. O’Haley J: Apology and pardon: learning from Japan. Am Behav Sci 41:842– 67, 1998 21. Engel B: The Power of Apology. New York: John Wiley and Sons, 2001 22. Scobie E, Scobie G: Damaging events: the perceived need for forgiveness. J Theory Soc Behav 28:373– 401, 1998 23. Toussaint L, Williams D, Musick M, Everson S: Forgiveness and health: age differences in a U. S. probability sample. J Adult Dev 8:249 –57, 2001 24. Goode E: Letting bygones be bygones is often a challenge. The New York Times. December 11, 2001 25. Frankl VE: Man’s Search for Meaning. New York: Washington Square Press, 1984 26. Schwartzberg S: Struggling for meaning: how HIV positive gay men make sense of AIDS. Prof Psychol 24:483–90, 1993 27. Dunn D: Positive meaning and illusions following disability: re- ality negotiation, normative interpretation, and value change. J Soc Behav Pers 9:123–138, 1994 28. Taylor S, Wood J, Lichtman R: It could be worse: selective eval- uation as a response to victimization. J Soc Issues 39:19 – 40, 1983 29. Downey G, Silver R, Wortman C: Reconsidering the attribution- adjustment relation following a major negative event: coping with the loss of a child. J Pers Soc Psychol 59:925– 40, 1992 30. Silver R, Boon C, Stones M: Searching for meaning in misfortune: making sense of incest. J Soc Issues 39:81–102, 1983 31. Marrus M: The Nuremberg doctors’ trial in historical context. Bull Hist Med 73:106 –23, 1999 32. R v. Keegstra, 2 S.C.R. 381 (Canada 1995) 33. Kaminer D, Stein D, Mbanga I, Zungu-Dirwayi N: The Truth and Reconciliation Commission in South Africa: relation to psy- chiatric status and forgiveness among survivors of human rights abuses. Br J Psychiatry 178:373–7, 2001 34. Hamber B: The burden of truth: an evaluation of the psycholog- ical support services and initiatives undertaken by the South Af- rican Truth and Reconciliation Commission. Am Imago 55:9 – 28, 1998 35. Hayes G: We suffer our memories: thinking about the past, heal- ing and reconciliation. Am Imago 55:29 –50, 1998 Apology, Justice, and Trauma Recovery 430 The Journal of the American Academy of Psychiatry and the Law