Restorative Justice and the #MeToo movement: The Kavanaugh hearings as a case study

“All sexual assault victims should be able to decide for themselves whether their private experience is made public.”  Dr. Christine Blasey Ford, 9-26-18.

This important, yet underreported statement by Dr. Blasey Ford during her testimony as part of confirmation hearings to the Supreme Court for Judge Brett Kavanaugh, exemplifies how the wishes of sexual assault victims are often at odds with the law enforcement system that depends on the rapid reporting of crimes and a justice system demands a speedy, impartial trial of the accused. 

According to the Bureau of Justice Statistics (BJS) only approximately 32.5% of all rapes/sexual assaults are reported. This low rate is the combination of complex factors. Contrary to the belief expressed even by those in highest echelons of power, severity of assault does not always lead to report of assaults. In fact, severity could depress reporting rates. Data from the BJS indicate that approximately 35% of the victims who did not report the assault cited “fear of reprisal” or that “authorities could not/would not do anything to help” as reasons for not reporting assaults. Unfortunately, there are scores of reports showing that even in cases with abundant evidence, investigations are often not rigorous if the perpetrator is well known and liked, or influential in the community. In addition, after the report, victims who are often minors, are frequently ridiculed and sabotaged by members of their community, even by those supposed to protect them, or more egregiously, have even been threatened with, or persecuted themselves.  In addition, in some cases where the perpetrator is convicted, the sentences can be extremely lenient even for crimes with elements linked to high risk for recidivism, further eroding trust of potential victims in the system that is supposed to protect them.

The aforementioned issues are magnified when the cases involve adolescents, alcohol intoxication, and like Dr. Blasey Ford’s case, they are decades in the past. These cases are particularly thorny because of valid concerns regarding the reliability and malleability of memory for traumatic events, and is compounded by fears of political motivations, and of false accusations, which the data suggest occur in a small fraction of the cases. Importantly, Dr. Blasey Ford’s case has arisen as part of a supreme court nomination during a time of powerful partisan division, and under the more intense scrutiny of sexual allegations brought upon by the #MeToo movement. In short, this case collects almost every controversial issue associated with sexual abuse reporting and has resulted in a process that is far removed from Dr. Blasey Ford’s expressed desire for privacy. How then can a victim achieve a measure of justice for crimes that may have occurred decades ago and for they may not want to bring up publicly due to very valid concerns for their safety in an intensely public case? How can it be done in a way that lets victims “decide whether their private experience is made public” and not be re-traumatized while also respecting the rights of the accused who must be presumed innocent?

One answer is that in our current system, the victim cannot. Regardless of whether you believe Dr. Ford’s, or Judge Kavanaugh’s version of the events (or don’t know what/who to believe) ¹, for those of us who see ourselves as strong supporters of the rights of victims and the accused, the congressional hearings were a reminder of the deep flaws of our retributive justice system. This system relies on an adversarial process in which the state pursues the accused and imposes punishment with little input from the victim. The congressional hearings were an almost surreal, steroidal version of the adversarial system at work: A prosecutor selected by supporters of the alleged perpetrator interviewed a potential victim of sex abuse on national TV(!). Such as system incentivizes competition between defense and prosecution. Prosecutions are sometimes not pursued if they are not perceived as “winnable” even if there is substantial evidence to support them. In other high profile cases, wrongful prosecutions and convictions follow due to community pressure and/or if the accused fit a certain profile and narrative. In retributive justice systems, rehabilitation is only seen as a secondary or tertiary goal to control and punishment of behavior resulting in a self-defeating system from an economic to a social perspective.

However, there is an alternative. I want you to take an imaginary time travel trip to 2012, when Dr. Blasey Ford disclosed in therapy that she had been sexually assaulted as an adolescent. Imagine that at that time, she had been able to find a private, neutral intermediary who would be willing to contact Judge Kavanaugh and mediate a meeting. In this meeting, the parties would be able to present evidence for and against the event. The victim would be able to state the lasting damage that the assailant left, and the assailant could express their remorse. Both parties could mutually arrive at a peaceful, private and proactive resolution that includes ways for the assailant to make appropriate remands.  Sounds far fetched?  It is not.  These are the basic premises of Restorative Justice (RJ), an approach strongly influenced by cultural and spiritual traditions of conflict resolution among the indigenous peoples of Oceania and North America, and reintroduced and formalized as an approach in the United States largely based  on the work of Howard Zehr. Restorative Justice’s focus is broader than mediation. It aims “to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.” (Zehr, 2002). Restorative justice principles and approaches underlied the “Truth and Reconciliation Commission” which helped South Africa move away from apartheid.  

Restorative Justice approaches have, startlingly, helped victims and perpetrators of genocide in Rwanda move forward in reconciliation villages and live peacefully and collaboratively as neighbors. 

In the United States, RJ approaches have been used in various juvenile justice systems. This last point is important. The alleged offenses by Judge Kavanaugh occurred when he was an adolescent and perhaps others, allegedly, as a young adult. The best data available on the trajectory of the approximately 10% of men in college who engage in sexually abusive behavior indicates that 93% of them engaged in it for a time-limited pattern, and only 2.1% showed an increase in abuse. This is not to minimize the enormous suffering that these men inflict on their victims.  But for those of us who are strong advocates of criminal reform and believers in change and redemption, these data point to RJ as a viable way for victims to find justice and redress from people who arguably may have changed, and may not see themselves as abusers. Recently, Beth Jacob wrote a poignant piece in the Washington Post about how she found the man who raped her years ago when she was a college student but she decided not to report because “…as I inventory potential consequences, I know my silence will go on protecting me and…my rapist’s wife by not naming him, I spare us both. I remain safe from scrutiny and from reliving another brutalizing round of doubt.”  Hers is a powerful statement on the double suffering of victims. Would it not be better if there was a system for Beth to approach her alleged abuser, provide a way for her to state her injury, for him to state his remorse and propose appropriate redress without destroying lives but improving them in a way that is satisfactory to both?  Would not that be a better alternative? Would not that be justice?

It certainly feels that way to me.  Importantly, some data support this feeling. Systematic studies on the effects of RJ are still relatively few, but they indicate that victims and offenders report greater sense of satisfaction with the resolution compared to retributive justice, offenders tend to have greater compliance with court requirements, there may be reductions in offender dangerousness and recidivism and it reduces cost of judicial punishment while fostering citizenships and sense of community (Latimer, et al., 2005). This is of particular importance for sexual offenses because greater accountability, but also sense of belonging and community in part of offenders are linked to lower recidivism rates. Considering that many of the #MeToo victims may be dealing with the sequelae of abuse that occurred many years ago, as statutes of limitations may have run out, or may have deep personal reasons to not seek recourse in the retributive justice system, RJ can provide an avenue for them. It could provide a private way that many victims would prefer, to seek redress that helps them heal, and have the added bonus of providing offenders with the possibility of expressing remorse and address their wrong, a possibility that many may be very willing to do.

I cannot pretend to know how Judge Kavanaugh may have reacted if in 2012 if he had been approached by Dr. Blasey Ford in a RJ context. But it is likely that it would have been better than the current state of affairs. It almost certainly would have been better for Dr. Blasey Ford whose life was literally turned upside down as she had flee her home, receive death threats, and be on receiving end of a campaign of smears, to testify at a hearing where she “did not want to be” and “terrified” her.  No victim deserves to be put on actual or a metaphorical trial for their behavior decades ago as minors, in a public forum filled with political grandstanding, for the nation to observe in a process that from a victims’ advocate and law enforcement perspective may have been more hurtful than helpful. We must provide a better alternative for future victims who report abuse.

As the momentum of #MeToo continues, more and more victims will formally and informally report their abuse, and we will continue to have these same issues play over and over. This has deep repercussions not just for the victims but for the accused and society at large. Much is being written about the deep identification that many felt with one of the protagonists during the hearings, and of surveys indicating that anxiety of “trials by public opinion,” and being “presumed guilty until proven innocent” animates much of the opposition to the #MeToo movement. Many have also written about what is “enough punishment” for the (mostly) men who have lost their careers as result of allegations but not being charged with a crime. Once again, perhaps RJ can provide a way to address these concerns. If there is a system by which accuser and accused can mutually agree to convene without the prying eye of a public that may be detrimental to fact-finding and resolution, then fears of injustice driven by non-stop, ratings-driven news coverage could subside.

Similarly, I do not know what is “enough” punishment especially in cases that result in formal charges and in those that do not, but have social and labor repercussions.  I do know that victims of these cases are perhaps in the best position to make that judgment and should be included in such resolutions.  I also know, that at some point, an offender must be allowed to reintegrate into society. Not doing so denies justice and the data shows, it increases risk for all of us.  Ethical and religious traditions that have proscriptions on the role of repentance and forgiveness are part of the foundation of RJ.  Having both victim and offender arrive at a consensus of what is enough contrition and repentance to obtain forgiveness is a close to justice as we may be able to be in an era where retributive justice may be an unavailable or undesirable recourse.   

What I’m proposing is an alternative that may bring a measure of comfort, justice and restoration that our current, flawed retributive system does not for many people, especially for those with old wounds that they do not care to revisit in a public forum. The current system has failed many abused and accused, why not try a better alternative?

¹The issue of whose version of the events is accurate is not a point that will be of discussion here. A very good “This I Believe” comes close to what I considered may be the most balanced opinion on the case. An FBI investigation has been launched as of this writing, ideally it will produce helpful evidence. 

Note of thank you to Dr. Katherine Gordon for comments on a draft, and my first doctoral student, Dr. Allison Foerschener, now a post-doctoral researcher at the Florida Department of Corrections whose passion for RJ go me interested in it. 

Changing Media Reporting Practices to Reduce Mass Shootings in the U.S

The Papageno Effect and Spree Murder-Suicide

As news with details about yesterday’s shooting in Oregon emerge, today's shooting in Orlando there will be much speculation regarding the shooter’s motivation and what should be done to prevent future incidents. As I have been thinking and writing a about this issue in the past year, I’m becoming more convinced that the apparent motivations of the shooters may not matter as much as most people may think, and the main solutions that are usually proposed (namely gun control and improved mental health) may be unfeasible, or will not work as desired. That is not to say that nothing can be done.

Already there are reports about possible religious motive  and political figures on one side of the political spectrum are calling for restrictions to firearms while others say that “it sounds like another mental health problem.”  These two positions are technically correct, and yet neither of them may present a solution to the current problem. First of all: Yes, the available evidence convincingly shows that restrictions to means like guns reduce suicide and gun related death rates, while increased access to mental health resources has similar effects. However, in our current political climate, legislation that will lead to restrictions to guns access is unlikely to pass.  Some of the most horrible mass shootings by civilians have already occurred.  Kindergartners have been killed, movie-goers ambushed, and yet, legislation to restrict guns in these States has stalled or resulted in successful recall votes of legislators who support them. In fact, even research on the effect of guns on mass violence has been blocked.

Similarly, mental health funding has stalled or decreased in many states even in the face of increasing mass shootings. Of note, while increased access to improved mental health resources may aid the most severely mentally ill individuals, they are not at higher risk to commit these type of mass shootings. While some of these shooters, but definitely not the majority, have had some contact with mental health services, they were not severely mentally ill. Indeed, that is one of the biggest challenges in these cases. These men have carried themselves with a veneer of normalcy and were well adapted or even privileged, making their detection nearly impossible by health services and law enforcement. In fact, we can cite that currently, the NSA and other intelligence and law enforcement agencies are engaged in one of the most detailed, technologically advanced, and all-encompassing security surveillance efforts in history. And yet, despite these efforts, they have been unable to prevent these tragedies even when many of these shooters have a heavy online presence in which they detail their frustrations, desires, ideology and even their plans.

To be fair, I’m not pointing the inability of these agencies to prevent these shootings as an indictment of their efforts. Rather I mention it to highlight the incredibly difficult task of predicting violent human behavior even with very intrusive resources, and to make a call to find creative solutions that are not constrained by political and practical difficulties. In short, not relying on the usual responses to mass shootings: Restricting guns which is a political non-starter, and/or massively increasing mental health screenings and/or law enforcement surveillance which is unrealistic and would probably miss their target anyway.

Instead, one possible way to alleviate this problem (not a solution because it is unlikely to solve it altogether), is a public health approach that has shown promise in suicide interventions in Europe. In the early 1980s, there were a series of sensationally publicized suicides of persons who jumped onto the subway in Vienna. As a response, the Austrian Association for Suicide Prevention made an appeal for the media to change the quantity and quality of reporting of these suicides. The association guidelines included tips such as not including pictures of grieving relatives, not putting the word "suicide" on the headline, and including numbers for helplines in the articles. Fortunately, a lot of the Austrian media heeded the suggestions, and as they started publicizing stories of people who had found alternatives to suicide, the rates went down. More recent research suggests that types of reporting on suicides were differentially linked to suicide rates. Specifically, articles that focused on individuals who adopted coping strategies to deal with suicidal crises were linked to lower suicide rates, while articles in which experts were interviewed and there was a focus on epidemiological facts was associated with increases in suicide.  The researchers dubbed the increase and decreases in suicide linked to type of reporting the Werther and Papageno effects respectively, and they may be helpful in stemming the current spree-shooting-suicide crisis in the U.S.

There is already some evidence that the Papageno effect may have been helpful in decreasing suicides in the U.S. After Kurt Cobain’s suicide, there was a concerted effort by media outlets and notably MTV to not glamourize his suicide and give helpline numbers. As a result, the usual contagion effect associated with celebrity suicides was neutralized and reversed in Seattle. In the case of mass-shooters, if we go one extra step, and conceive them as individuals who are in psychological distress, just like any other suicidal person, we could harness the Papageno effect to reduce their incidence.  Currently, the media coverage of mass-shootings are focused on sensationalizing the shooting. The aftermath of shootings are filled with footage of grieving victims, and police responding with sirens blaring. There are loud, dramatic condemnations of the shooter, and close ups of their social media photos often showing them defiantly staring at the camera, while holding a weapon. Based on the evidence about the Werther effect cited above, this is perhaps the worst way to report these events. There is very little emphasis on help resources for persons who may be experiencing the same struggles and may be watching. There are no hopeful stories about people who have felt alienated from society (e.g., ex-skinheads or gang members who renounce their affiliation) but have overcome it to become functioning members of society.

Changing the current reporting practices of these events is particularly important because there is good evidence to suggest that men who engage in mass shootings have followed and idealized previous mass shootings. On their diaries many talk about “outdoing” previous shooters, and/or fantasize about the coverage and “respect” they will receive in the aftermath. This is why I mean that the apparent motive of the shooter may not be as relevant. Whether the shooter espouses frustration about lack of sexual experience and misogyny (e.g., Rodgers, Soldini), xenophobia or racism (e.g., Brevik, Roof), or general misanthropy (Harris, Klebold), these motives are not a satisfactory explanation for their behavior. Many people have those attitudes and yet, they do not engage in murder-suicide.

The men who engage in mass shootings followed by suicide have arrived at a point in which they feel murder-suicide is the only way to gain the notoriety they crave, and escape the psychological pain they are in. With the current shooting in Oregon, there is already evidence that the shooter wrote online about Vester Flanigan (who recently shot a reporter and cameraman on live TV before killing himself ) in admiring tones, and remarked about the infamy he gained. If we modify the content of reports on mass shootings following guidelines already provided by the American Foundation for Suicide Prevention (AFSP), and supplement the reports with information about mental resources that potential future shooters (who, to be sure, are in genuine psychological distress) can access, and importantly do not glorify these events, we may be able to make meaningful reductions in the incidence and lethality of these events.

These changes would require collaboration from media outlets and may be interpreted by some people as an affront to the first amendment to spare the second.  These are valid points but what I and others are proposing is not to stop reporting and informing the public. Rather what is being proposed is a slight change on how the same information is conveyed, and what is emphasized. Incidentally, these changes are not without precedent in the U.S.  Media blackouts and moratoria are requested and honored in a routine basis when reporting deaths of service men and women, and in matters of national security. Mass murder-suicide is a national security issue. More Americans have been killed since 2001 by gun violence than by terrorism. If this does not merit a similar treatment in the media, not just out of respect for the victims and their families, but because it might save lives, then what will?

We all grieve these tragedies in different ways. In my case, it has reinforced my desire to use the tools of our science to help ameliorate them.  But the problem is too big for one person, or two, or whole laboratories of social scientists. Enacting these changes in reporting requires citizen engagement to solicit media outlets to make them (e.g., through petition drives in social media, making calls to stations after these events to follow the AFSPs recommendations, and even potential boycotts of programming). They also require us to enlist the help of legislators who can foster a lawful environment in which reporting is done in the best interest of public health.  We do not allow nudity or curse words in broadcasts, surely we can muster the will to encourage media outlets to report something as serious as murder-suicide with the gravitas is deserves and not as a fictional police-drama with melodramatic music and camera angles.

From a research perspective, there is much work to be done too. Many a dissertation could be written about whether sensationalistic coverage of mass shootings are related geographically to their subsequent incidence. Or, from a more localized, clinical perspective, whether there is increased suicide/homicide ideation among persons with highly antagonistic views of the world after viewing these reports. In addition, we know precious little on the kind of interventions that may best work for persons who have these tendencies and what might stop them if they seek help.  The needs are great, but so is our resourcefulness and desire to help and the faster we do , the more lives we may save.

The Problem with Calling People “Evil” Even if They Engage in Heinous Crimes

A primary aim of this blog wil be to explore, and hopefully explain in accessible terms, why some people engage in extreme antisocial behavior ranging from individual crimes like sexual homicide and murder suicide, to collective crimes like terrorism and genocide, strictly using current scientific findings, rather than moralistic or religious terms.  

This approach is a reaction to proposals by some mental health practitioners and theoreticians (e.g., Michael H. Stone M.D) who have proposed that certain acts are so heinous that persons who commit them can only be described as “Evil”. This type of language and imagery has captured significant popular media attention (from programs in the Discovery Channel starring Dr. Stone, to NPR, and the NYTimes).

While Dr. Stone’s books and shows do cite scientific terminology and neurobiology findings about antisocial behavior, the practice of describing heinous acts and persons who commit them as “Evil” or “Monsters” may do more harm than good.  These terms frame people and their actions in mythological terms that elicit fear or morbid curiosity (as evidenced by the popularity of the shows), or in the worst cases, the desire among misguided vigilantes to “get rid” of the “evil” people (a particularly sobering prospect given the high rates of wrongful conviction and growing numbers of persons exhonerated while in death row). 


While calling some criminals "Evil" may also sell books or boost ratings, it does not lead us to view people who engage in these behaviors as complex individuals with problems that can be solved. Instead, it appeals to an instinct that wants to ogle and perhaps eliminate, but certainly not understand, and much less help, offenders. Ironically, it could be said that it brings out the “inner monster” out of the agog spectator. Characterizing people who engage in heinous crimes as “monsters” or “evil” may satisfy an inner sense of justice or even self-superiority but it does not lead to long-term answers, and that is highly problematic for our society.

Another problem of characterizing people as “evil” is that it ignores a hard truth: Throughout history there have been many people who have been kind, caring, responsible, even heroic, who also engaged in acts that evoke revulsion. A brief look at history finds currently revered figures who also engaged in what we would consider crimes against humanity. One of my favorite examples is Andrew Jackson, whose role in the Battle of New Orleans during the war of 1812 propelled him into the presidency of the U.S. His more colorful exploits include surviving being shot during a duel and killing his opponent, and opening the White House to the public for his inauguration which increased his popularity but also probably trashed the White House. On a much darker front, his frontiersman ethos was tinged with virulent anti-Native American sentiment and he was instrumental in crafting and enacting policy which led to the forcible expulsion of thousands of Native Americans from ancestral lands and their eventual death. He was also an ardent proponent of slavery and he personally owned hundreds of slaves. On the other hand, he also adopted two Native American orphans and grieved heavily the death of his wife.

Was Andrew Jackson "Evil" or a "Monster"?  Not surprisingly, some would argue as much, while others would not. I would argue that his actions were driven by multiple complex factors including his own upbringing as an orphan and child soldier, as well as the period in history in which he lived. With the benefit of more than 150 years of hindsight, this may appear as a non-controversial, self-evident point. However, I would further argue that we must employ the same multifactorial,complex view of persons who because of their crimes are currently qualified as “Evil.”  Understandably, conceptualizing persons who have committed sexual homicide as complex, and worthy of careful, non-judgmental analysis is far more difficult than doing it for the 7th president of the United States. Nonetheless,in future entries, I hope to continue to explain why it is important for all of us to do so.