Can Restorative Justice Work in Cases of Sexual Assault?

In certain cases, it could be an answer

Photo by Tingey Injury Law Firm on Unsplash

Welcome back, readers! This week we take a look at how restorative justice practices can be used in some cases of sexual assault as an alternative to the traditional criminal justice system. While restorative justice practices are not the right remedy for many cases of sexual assault, in some cases, it may be the right fit. Read on to learn more about this relatively new area of practice and how it might support survivors.

But before we get to restorative justice, I wanted to share an article by Kara Cutruzzula discussing the elements that made women leaders better at handling the pandemic: inclusion, authenticity, truthfulness, being decisive, and embracing technology. Perhaps our leaders can take a lesson from these impressive women. My son lives in Taiwan and is enjoying the freedom of living a normal life. He has no interest in rushing home to COVID land any time soon. Can’t say that I blame him.

“In the criminal justice system, sexually-based offenses are considered especially heinous,” yeah right. The way that sexual assault cases are adjudicated through the American criminal justice system leaves many survivors with no legal recourse and significant emotional scars. Without a Detective Stabler or Benson (apologies to Law and Order: SVU) to fight for them, only between 4 and 5 of the rapists out of every one thousand sexual assaults in the United States will be convicted and incarcerated. Survivors are frequently doubted, and even if they are believed, they must undergo a rape kit examination and repeat their story over and over to various detectives, district attorneys, and face the courtroom cross-examination. These are all retraumatizing events that many survivors want to avoid. When only 4.6 out of 1000 rapists are sentenced to prison, survivors know they are most likely not going to receive justice and will endure a grueling process to even try. 

Because many sexual assaults are committed by a person the survivor already knows, sometimes the survivor is ambivalent about reporting the person to police. There may be familial pressure not to report. Or perhaps the person is within their daily orbit of college classes or friend group. Or maybe the perpetrator has power over the survivor in some manner. There are many situations where the survivor may not want to go through the retraumatization of the criminal justice system and likely get a bad result. So, what’s a survivor to do?

Over the past few years, restorative justice has become one of the limited tools available as an alternative to the criminal justice system for sexual assault cases. Within a restorative justice framework, both the survivor and the perpetrator have their own representation and work out their own decisions of what should happen to the perpetrator. Of course, each of them must sign on to this process voluntarily and agree that whatever punishment is agreed upon will actually happen. Within the restorative justice system, a survivor can actually receive the recognition that they were assaulted and obtain an apology. Additionally, the survivor gives input as to what should happen to the perpetrator in terms of restitution. The survivor also has control as to whether or not they will see their assailant during the proceedings. The entire process can be handled by their representatives or they can actually talk to one another. That is up to the survivor to decide. When done well, restorative justice can be a learning experience for the perpetrator and a healing one for the survivor. Within a criminal justice framework, that can never happen, because if the perpetrator admits to the crime, they will be prosecuted. 

Restorative justice is part of a more expansive accountability process for sexual assault. However it cannot be the only option, and certainly, no one should be pressured into using a restorative justice practice in lieu of criminal prosecution. Restorative justice is not appropriate for situations where there is a significant power imbalance between the perpetrator and the survivor. Those who choose to use a restorative justice process are doing it so that they have some sort of control over their own healing. Rather than being dependent on the district attorney, or the judge for justice or restitution, the survivor has control over what happens. 

Before entering a restorative justice practice, the survivor needs to be clear that this is what they want. There may be external pressure from family or friends to pursue a criminal case. Survivors have different reasons for deciding to pursue a restorative justice process. Each case is designed according to the needs and wishes of the survivor. A common question posed to the survivor is, “What do you need to feel whole again?” The restorative justice process for that survivor is created based on the answer to that question. 

One place where restorative justice processes for sexual assault can be especially relevant is on college campuses. When a sexual assault is not prosecuted by the police or addressed by a Title IX officer of the university, restorative justice can be a way for the survivor to get some resolution. At the University of Michigan, Jay Wilgus, the former Director of the Office of Student Conflict resolution applied restorative justice practices to student sexual misconduct cases when the survivor requested it. Both Wilgus and Rachel King of Curry College in Massachusetts recommend checking the state laws to determine which statements and evidence a campus restorative justice program collects may end up being part of a criminal probe if charges are filed later. King notes that sometimes when a survivor has filed charges and is told by the police that there is not enough evidence to pursue a case, restorative justice practices may be a suitable alternative. 

Frequently, cases of sexual assault in college occur when both of the parties have been drinking and/or using drugs. Of course, consent cannot happen when someone is incapacitated, but many times these are the cases where the police are unlikely to press charges. Also, in many of these cases, the people know one another and the survivor may not want to bring charges, but they may want acknowledgment of the assault and restitution. Having an alternative to the criminal justice system for these cases, which allows for apologies and restitution, can be a way to bring some small amount of peace to the survivor. 

Survivors deserve a path toward justice. Since our criminal justice system does not seem to be able to find a way to adjudicate most cases, survivors are left with complex feelings of shame, guilt, anger, pain, and PTSD to name a few. We must find ways to not only improve the criminal justice system but also to open additional pathways toward helping survivors come to terms with their feelings. Restorative justice practices can do that in limited cases. Those who deal with sexual assault cases in any capacity should make a serious effort to add restorative justice practices to their toolbelt. 

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If this idea intrigues you, visit these links for further reading on Restorative Justice practices in sexual assault cases:

Tutorial: Introduction to Restorative Justice | Restorative Justice

Restorative Justice Hub in Chicago works toward relieving mass incarceration

For an in-depth discussion of restorative justice practices in sexual assault cases between Jay Wilgus, Principal at Klancy Street and former Director of the Office of Student Conflict Resolution at the Univ. of MI, and Rachel King, Title IX Coordinator at Curry College