For too long, campuses have limited the scope of options for survivors who report sexual misconduct. Colleges are obligated to respond to the reports, which can lead to adversarial, monthslong Title IX investigations and campus hearings. Those do little, if anything, to meet the needs of survivors.
After reporting an incident, the survivor is often left out of the investigative process and dissatisfied with the outcome. The fact-finding process involved in many Title IX investigations drags out over several semesters, while both parties anxiously await the finding and the action that campus administrators will recommend to repair policy violations, assuming any violation in policy is found. The term “institutional betrayal” is often used to describe victims’ reactions to their treatment.
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Fortunately, there is an alternative: restorative justice. The process consensually brings together the person harmed, the person responsible, and friends and family members to participate in a structured and professionally facilitated meeting. Facilitated conversations allow all parties involved to be heard, and the victim to describe the impact of the harm. The conferences conclude with a formal plan, created in consultation with the participants, to best repair the acknowledged harm. Facilitators have training in both sexual-assault issues and restorative-justice methods, as well as a protocol to follow. Those elements are necessary to ensure that the meeting is safe and productive.
The cornerstone of the restorative-justice model is that for the most part, when the respondent admits responsibility and the victim expresses a desire to repair harm, fact-finding beyond a cursory investigation is not needed. The accused does not have to agree to the word “rape” but does have to accept responsibility for having caused harm. In one study, nearly 70 percent of those referred by prosecutors for rape accepted responsibility. Restorative justice differs from mediation and conflict resolution because all participants enter into it having already acknowledged their roles.
Those who experience sexual misconduct frequently feel stripped of power and control, and conventional, adversarial responses can create what has been called the second rape. But a study of restorative justice has shown that victims who participate in the process and speak face to face with the person who caused them harm feel they have reclaimed their power. Restoring a sense of empowerment is crucial to recovering from these harmful and deflating experiences.
Restorative-justice conferencing is not a new concept and is already commonly used on campuses to deal with other forms of misconduct, such as peer-to-peer conflicts. But for sexual-misconduct cases, almost no institutions offer fully restorative approaches that focus on facilitated conferences among survivor, wrongdoer, and friends and family members. Why not? Partly because of myths about the process.
One common misconception is that restorative justice is not in the best interests of the survivor. However, one prominent restorative-justice conferencing program reported that 90 percent of participants had found the program successful, that no incidents of physical harm had taken place, and that post-traumatic stress experienced by victims had been equivalent to that of victims treated at rape-crisis centers.
Another misconception is that restorative justice violates the law, particularly U.S. Department of Education guidelines. Yet although it does not specifically mention restorative justice, the Education Department’s 2017 Dear Colleague letter on sexual misconduct allows for and encourages innovative means to deal with the harm of sexual misconduct on campuses. Additionally, measures — like not allowing the recording of the conferences in writing or electronically, and agreements among participants that information given in the meetings cannot be used against them — can be put in place to protect all participants from entangling the process with legal procedures.
A final misconception is that restorative justice is not what the survivor wants. But adding a restorative-justice option does not prohibit a victim from pursuing conventional action; it simply adds options to address and repair harm. Perhaps given additional alternatives that do not pit survivor and person responsible against each other in an adversarial and harmful environment, more survivors would come forward. And perhaps sexual misconduct could be adequately dealt with rather than swept under the rug.
One of us (Mary) believes she herself would have benefited from restorative justice. Early in her career she was sexually harassed by her department head. The professional fallout she experienced from reporting it, along with the lack of acknowledgment by any person or system that she had suffered harm, sticks with her to this day, decades later. Had there been better options available to her beyond contentious ones, she might now have more positive feelings about that upsetting chapter in her life.
Ideally, far fewer students, faculty members, and staff members will be subjected to sexual misconduct in the future. But for those who are, we should make sure that we provide every possible tool to enable them to look back on a painful and difficult experience on campus as a time when they were left empowered instead of victimized.
Mary P. Koss is a professor in the College of Public Health at the University of Arizona. Kate Chisholm is a graduate student at the college.