http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/08/29/does-restorative-justice-in-campus-sexual-assault-cases-make-sense/
Does ‘restorative justice’ in campus sexual assault cases make sense?
By Valerie Strauss
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.
