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Does ‘restorative justice’ in campus sexual assault cases make sense?

Sen. Claire McCaskill (D-MO), Sen. Dean Heller (R-NV), Sen. Richard Blumenthal (D-CT), Sen. Kirsten Gillibrand (D-NY), Sen. Kelly Ayotte (R-NH), Sen. Mark Warner (D-VA) and Sen. Marco Rubio (R-FL) are joined by sexual assault survivors during a recent news conference new legislation aimed at curbing sexual assaults on college campuses. (Photo by Chip Somodevilla/Getty Images)

Meg Mott, a professor of political theory at Marlboro College in Vermont, recent wrote a post published on this blog about how  many colleges are mishandling cases of sexual assault on campus. The issue has been getting attention, with with a bipartisan group of senators recently introducting legislation in Congress that would force school officials to be more transparent and accountable in dealing with sexual assaults. Here’s a follow-up piece on the issue from Mott


By Meg Mott

In an effort to make it easier for college women to bring charges of sexual assault, the federal government has encouraged the creation of a special breed of disciplinary panels to hear these sensitive cases. The distinguishing factor of these sexual misconduct panels is that victims offer testimony without the accused being present. Unlike criminal courts, where you have the right to face your accuser, these panels hear the details away from the ears of the alleged offender. It is only under these judicial circumstances that victims can share embarrassing details without suffering further humiliation. Without these protections, women will be less likely to report.

At least, that’s the position of victim advocates. The procedures and constitutional safeguards of criminal court, they say, are inherently unsafe for a woman who has been victimized by rape. The adversarial procedures and constitutional protections end up re-traumatizing her. The disciplinary system set up under Title IX is better for the victim because the accused is kept away.

But as more and more of these cases are appealed by respondents who claim their constitutional rights or contractual obligations were violated, more and more colleges are referring these cases to criminal courts. This is a reasonable strategy from the point of view of institutional liability, but not a good idea if it keeps victims from reporting disturbing events in the dorms. But does the in-house system really improve dorm life?

It makes sense that victim advocates put personal safety above all other considerations. They meet her when she is most distraught. But that particular emotional reality, while very big, is not necessarily permanent. In cases of acquaintance rape, the urge to be protected from the offender often competes with the equally strong urge to be heard.

Researchers in the United Kingdom found that sexual assault victims who participated in a restorative justice conference experienced a “really big turning point.” For one victim, being able to speak directly to the offender was not traumatic but deeply healing. “I just wanted him to hear me,” she said.

In Arizona, RESTORE (Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience) uses restorative justice to adjudicate cases of acquaintance rape. Parties in these cases work out a plan for “accountability, healing and public safety.” Safety in this model of justice is not protection from a certain offender but collaboration with others to create a healthier atmosphere.

Rather than seek protection from the offender, which tends to increase his power and her powerlessness, restorative justice allows victims to be more than just afraid. Victims can use their knowledge to create the conditions for better sexual encounters. For students living in co-ed dormitories, this model improves residential life in general. In the current disciplinary system, either the expelled student or the disappointed accuser disappears. Any opportunity for education is lost.

Unfortunately, victim advocates have as many reservations about restorative justice as they do about criminal justice. Restorative justice, they claim, doesn’t recognize the power differential between a victim and her abuser. There is no way that she can approach him and not be re-traumatized.  To confront one’s assailant is to “relieve their assault” as one commentator on an earlier op/ed put it. “How can anyone think that is a good idea?”

If one accepts the assumption that contact equals trauma, then restorative justice is not a good idea. This is position adopted by Title IX guidelines, which prohibit anything resembling mediation. But if we expand our idea of what a healthy confrontation in a well-facilitated and supportive environment might look like, then contact with the offender might actually transform both parties for the better.

Besides, the appellate process undermines the promise that victims can find safety without confronting the accused. She may not have to testify before him in front of a disciplinary panel, but he will be present should she have to testify in a federal appeals court.

Rather than encouraging a judicial system that creates heightened expectations for personal safety, we would do better to provide opportunities for honest conversations that lead to heightened expectations for public safety. The current in-house system, with its fear of confrontation, doesn’t do that. But restorative justice does. The trauma of rape need not define the emotional contours of the recovery.  Using restorative justice allows victims to be more than their fear. And should an aggrieved party decide to sue after a restorative justice hearing, she’ll be ready to meet him in court.

Valerie Strauss covers education and runs The Answer Sheet blog.



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Valerie Strauss · August 29, 2014

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