Whenever I hear about an incident of sexual violence on campus, I’m gripped by a tension as I decide how to respond.
I want my response to demonstrate my support for the survivor’s safety and healing. I want to resist the norms that operate to silence them, which persist at Macalester despite our progressive credentials.
At the same time, I worry that retributive responses are sometimes counterproductive. I’m uncomfortable with the logic that defines our collective ethos around sexual violence. I believe that people should be held accountable for violence but not defined by the worst thing they’ve ever done.
In the wake of an allegation against someone on campus, I have found myself torn between these two moral imperatives, feeling like there is no appropriate way to respond, and ultimately choosing the path that seems most socially acceptable. I suspect I’m not alone in this. I believe Macalester needs a new framework to guide our response: one that prioritizes repair over retribution.
Restorative Justice (RJ) is a global social movement that has been used to rebuild post-conflict societies, to combat mass incarceration and the school-to-prison pipeline and, recently, to address sexual violence on college campuses. What unites RJ practitioners is that they view crime as a violation of people and relationships as opposed to a violation of the state or any institution. The goal of RJ is to repair relationships. Whereas traditional criminal justice asks these questions:
What laws have been broken?
Who did it?
What do(es) the offender(s) deserve?
…restorative justice asks the following:
Who has been hurt?
What are their needs?
Who can contribute to meeting those needs?
How can we understand the cause of this incident?
Recently, college campuses have begun to use RJ to address sexual misconduct on college campuses. Skidmore, the University of Michigan and a handful of other schools have added an RJ-based incident response option to the array of possibilities available to survivors on their campuses. Students at these schools can opt to take the RJ route instead of or in addition to filing with Title IX.
What does this actually look like? The process always begins with facilitators (a small group of trained students and staff) contacting the accused student, who must admit responsibility and show the desire to amend the harm they caused before an RJ process can move forward.
If the offender accepts responsibility and agrees to participate, facilitators begin meeting with both parties to prepare them for a conference. Facilitators explain how the process will work, help the parties prepare statements and select support teams. The safety of the survivor is a priority throughout. If a face-to-face meeting between survivor and offender is unsafe or undesired, the survivor can send a surrogate, usually a close friend, in their place. The surrogate, the survivor and the facilitators then meet to prepare impact statements and determine the desired outcome of the conference. These conversations always focus on what harm has been done, how it can be addressed and what, if anything, can be done to rebuild trust between the parties.
A conference could have the same outcomes as a Title IX filing, such as a no-contact order or suspension, but the possibilities for sentencing and resolution are limited only by the creativity of the conference participants. After a conference, the offender continues to meet regularly with a small group of facilitators who ensure that they are complying with the terms agreed on in the conference, and to track their progress. A parallel circle of support may be formed for the survivor if deemed appropriate. The general process can be adapted to the particulars of each individual case.
Though they could lead to similar sentencing outcomes, the goals and metrics of success of Title IX and RJ are fundamentally different. Whereas the Title IX process is focused on determining whether or not the conduct code was violated and what the appropriate sanctions should be, RJ is not bound to code and is concerned exclusively with repairing harm. The success of a conference is measured by concrete behavioral change on the part of the offender and on survivor testimonials of healing.
RJ presents an option for survivors who don’t feel like a formal Title IX complaint will meet their needs. Students decide not to report for any number of reasons: because they distrust the system, distrust the Title IX coordinator or wish to prioritize rehabilitation for the offender over punishment. These are just some of the barriers to reporting that have historically left the needs of survivors unmet. The RJ route provides an option for survivors who previously had to choose between reporting or doing nothing.
According to a study out of the University of San Diego, one of the most common and pressing healing needs of survivors is to receive an apology from the offender that demonstrates an understanding of the nature and extent of the harm they caused. Title IX is unlikely to meet this need because the conduct process drives the accused to deny wrongdoing. By contrast, an RJ process encourages the accused student to accept responsibility, which is likely to help the survivor to heal. RJ seeks to chart a third way between offender rehabilitation and offender punishment, guided by the survivor’s specific healing needs.
In a restorative conference, perpetrators have the chance to understand how they’ve caused harm and change behaviors in future sexual encounters. Most, if not all people accused of sexual misconduct I’ve known at Macalester have been surprised by the allegation raised against them. Many persisted in believing they did nothing wrong. If offenders never hear an explanation of the harm they caused, the belief that they are wrongly accused can harden into a defensive stance. Defensiveness can evolve into apathy: “No matter what I do, I’ll be punished for it” or “I have a target on my back.” The RJ process compels offenders to understand which of their actions caused harm, and this reduces the chance of re-incidence while reinforcing campus values of consent.
RJ gives us the tools to keep offenders accountable in our communities which may be safer than excluding them. We should bear in mind the safety of other communities and reconcile with the fact that when we expel offenders from our friend group, our team or our college we may simply displace a risk. Sometimes exclusion is the best or only option. But in many cases, keeping an offender inside a community with rigorous accountability measures may be safer than letting them move on to a new place that is uninformed about their past.
RJ can remove barriers to a fair procedure. Title IX exists to promote equity on campuses but inherently presents inequity issues in its adjudication process. Rates of litigation in Title IX cases have steadily increased in recent years. Hiring a lawyer can cost a student tens of thousands of dollars, a fee that is inaccessible to most. An RJ process is more inclusive of both victims and offenders without access to lawyers and other dimensions of social privilege.
What’s more, we can use an RJ forum to discuss the racial dimensions of sexual violence allegations. Numerous studies have shown that if an accused student is low-income or black, the likelihood that they will be found in violation increases. By providing a framework to weigh the racial dimension of a case, RJ can help combat disproportionate sentencing. Conversations about racial bias in reporting frequently exclude women and non-binary people of color who experience proportionally more sexual violence and are the least likely to report it. Yet perhaps the equitable solution shouldn’t aim to increase institutional reporting, but rather to expand the options available to people who have systemic reasons for avoiding the institutional route.
If you remain skeptical about applying RJ to sexual violence, you’re not alone. There is fear that embracing such informal methods may lead to less accountability for sex crimes than is afforded by a traditional justice process. For years, college students committed assault with impunity. In 2013, a student at Occidental College who was convicted of rape was sentenced to write a 5-page book report. Some understandably worry that RJ is too lenient, the new version of “write a paper.” But a 2013 study of 66 sexual violence cases found that survivors who participated in an RJ process believed that their offender was held accountable, more so than survivors who saw their perpetrators punished in criminal courts.
Others fear that introducing RJ to the sexual misconduct process is part of a backtracking trend overseen by Secretary of Education Betsy DeVos. As she reverses hard-won progressive reforms, the idea of introducing restorative methods may sound like more regression. DeVos herself is a big proponent of “mediation” in sexual assault cases. Although the two are often equated, mediation is not RJ. The key difference is that the goal of mediation is to resolve disputes, and the goal of RJ is to repair harm. As I noted earlier, the offender must freely accept responsibility for their actions before the RJ process can even begin.
Beyond fears about backsliding, there is a widespread perception that most sex offenders are unlikely to engage honestly and productively in a RJ process, leading even those who generally support RJ to doubt its appropriateness for sex crimes. The image that comes to many of our minds when we hear “rapist” is one of a manipulative repeat offender. The data on the validity of this stereotype are mixed. One famous survey of 49 Midwest institutions found that 46 percent of the assaults were perpetrated by students who raped 10 or more people. More recent studies (such as this one published in The Journal of the American Medical Association) have found that the vast majority of reported incidents are committed by one-time offenders.
Skeptics of restorative methods understandably fear that the type of person who repeatedly takes advantage of others would be likely to cheat an RJ process by feigning remorse or trying to coerce the survivor into lighter sentencing. While I believe there are people who offend repeatedly and don’t know it, I do agree that a manipulative serial rapist is not the best candidate for an RJ process. That’s why the RJ facilitators reserve the right to suspend the process and switch to Title IX route if they detect coercive behavior.
RJ has helped me begin to reconcile my responsibilities to survivors with my belief in harm-repair over retribution when possible. The RJ route isn’t appropriate for every person and situation, but I believe it’s important for Macalester students to have the option. I recommend we pilot the design of the San Diego PRISM project. PRISM advises schools to adopt their three-tiered, campus-wide RJ plan that includes preventative measures and protocols for reintegrating students after suspension or transfer due to sexual violence. I say we start by piloting an incident response protocol, which is where I see the greatest need, and consider expanding RJ programming in the future.
This proposal is meant to start a conversation. For those of you that are interested in learning more, I’ve created a live document with more details and further reading. Feel free to add to it or email me at [email protected] with your criticism and ideas. (And let me know if you are interested in joining a restorative justice working group.)
Email: [email protected]