The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault.
Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.
As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.
{mosads}Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system. In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.
It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us. It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.
But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.
According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking.
Imagine that same manipulation in a restorative justice program setting where the offender fools college administrators and the victim with fake remorse. College administrators, often despite their best intentions, do not have expert command over the dynamics of sex offenders and victim behavior and shouldn’t be entrusted with safe and effective use of restorative justice programs for sex-based offenses.
Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving.
But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.
The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults.
In my work as a victims’ attorney at Cohen Milstein Sellers & Toll, I repeatedly see rapists whose behavior escalated from lesser offenses like voyeurism and other forms of harassment.
Finally and most critically, we must consider the victims of these heinous crimes. As a society, we are too quick to blame victims, overtly or subtly, especially on college campuses.
Student victims regularly hear: “You were both drunk,” or “Don’t ruin someone’s life over one drunken night.” I routinely see offenders and even school administrators attempt to blame the victim. One student’s complaint of rape was rejected by school administrators because she gave the rapist a ride after the attack, despite her explanation that she feared she would be hurt further if she did not do as he asked.
The impact on those subjected to sexual assault can be profound, life-altering and permanent. Furthermore, the effects can be substantially worsened if a community deflects the offender’s responsibility onto things like alcohol, or worse yet, suggests that the victim is partially at fault.
The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.
These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim.
Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”
Michael Dolce is on the board of directors of the Florida Council Against Sexual Violence and was the former political committee chair of Protect Our Kids First. He was instrumental in the passage of landmark legislation in the state that repealed all statutes of limitation for civil and criminal prosecution of child sexual battery. He is of counsel at premier national plaintiffs’ firm Cohen Milstein and has dedicated his career to seeking justice for the victims of abuse.
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