Tuesday, October 2, 2018

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. 

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